author: JUSTICE CAMPBELL

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellant, v. KAFKA AND SONS BUILDING AND SUPPLY COMPANY, INC., a/k/a Remodeling by Kafka, Inc., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 91—1962
    Opinion filed March 29, 1993.
    Rehearing denied May 5, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Stephen C. Tennant, of Arlington Heights, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This interlocutory appeal arises from an order of the circuit court staying enforcement of a final judgment and consent decree (consent decree) entered into between the Illinois Attorney General (Attorney General) and defendant, Ronald W. Kafka (Kafka), pending the resolution of a criminal indictment against defendant. On appeal, the Attorney General argues that the circuit court erred in staying the proceedings under the consent decree. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. In August 1985, the Illinois Attorney General (Attorney General) filed a complaint for injunctive and other relief against defendant, Kafka & Sons Building and Supply Company, Inc., Suburban Remodeling, Inc., and Remodeling by Kafka, Inc., alleging numerous violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.), and the Uniform Deceptive Trade Practices Act (UDTPA) (Ill. Rev. Stat. 1985, ch. I2IV2, par. 312). On January 25, 1989, defendant and the Attorney General entered into a final judgment and consent decree in court. Findings in the consent decree based on the allegations of the complaint were as follows:

“(D) Defendant Ronald W. Kafka is an individual who was the president of KAFKA & SONS BUILDING and SUPPLY COMPANY, INC., and chief executive of SUBURBAN REMODELING, INC. and REMODELING BY KAFKA, INC.
(E) Defendant, through the above corporate entities, engages in the business of advertising, offering to sell and selling home repair and remodeling goods and services to Illinois consumers.
(F) Plaintiff has alleged that Kafka violated the Consumer Fraud Act and the UDTPA by engaging in the following conduct:
(1) failing or refusing to complete work on homes of consumers as specified in their contracts;
(2) failing or refusing to provide consumers with a written and detachable ‘Notice of Cancellation’ form advising consumers of their right to cancel the transaction within three business days;
(3) failing to disclose to consumers Kafka’s use of subcontractors;
(4) failing or refusing to provide consumers with sworn statements of said contractors as required under the Illinois Mechanics’ Lien Act; and
(5) failing or refusing to pay subcontractors for labor performed and materials furnished on behalf of consumers, despite the fact that Kafka had received payment from consumers.”

The consent decree permanently enjoined defendant from engaging in 52 complained-of business practices in violation of the Consumer Fraud Act and the UDTPA, and set forth a procedure for resolution of consumer complaints against defendant and his entities on file with the office of the Attorney General. The resolution procedure provided that defendant must first attempt to resolve any outstanding complaints by contacting the consumer directly. If those efforts failed, the consumer had the right to seek assistance from the Attorney General, who may then refer the complaint to Mr. Donald Macke. The consent decree designated Mr. Macke as an “expert,” responsible for resolving consumer complaints in arbitration-like proceedings. The consent decree provided:

“(A) The expert shall have the right to settle all questions of fact concerning verbal representations and written agreements, and shall not be bound by formal rules of evidence.
(B) The expert shall decide the amount, if any, to be paid to the complainant as and for restitution. If restitution is due from Kafka to any complainant, such amount as is decided by the expert to represent a fair and accurate sum to be returned, shall be paid by Kafka within twenty (20) days by cashier’s or certified check, unless such decision is contested by application to the court therefor. In order to obtain relief from the decision of the expert', the party seeking relief has the burden of showing that the expert’s decision is patently unreasonable.”

Defendant agreed to be bound by any decision made by Mr. Macke in these proceedings. The consent decree further provided, and defendant agreed, that “the only basis for relief from the expert’s decision will be on application to this court therefor.” In addition, defendant was ordered to pay the State of Illinois $50,000 as a civil penalty pursuant to the Consumer Fraud Act.

After entry of the consent decree, Mr. Macke conducted a number of arbitrations, making awards consistent with his findings, both in favor of the consumer and in defendant’s favor. On at least five occasions, the Attorney General filed petitions for rules to show cause why the defendant should not be held in contempt of court for his failure to comply with awards made by Mr. Macke pursuant to the terms of the consent decree.

On February 28, 1991, the parties appeared before the trial court on the Attorney General’s fifth petition for a rule to show cause why defendant had failed to comply with an award rendered by Mr. Macke in favor of consumer Mary Lou Walsh. The trial court ordered a rule to issue requiring defendant to show cause why he should not be held in indirect criminal contempt of court for intentionally violating the consent decree.

On May 21, 1991, the parties appeared before the trial court on return of the fifth rule to show cause regarding the Walsh claim. At that time, defendant presented a motion to stay the proceedings, asserting his fifth amendment privilege against self-incrimination. In the motion, defendant stated that he had been indicted in Cook County on eight felony counts of forgery and theft by deception connected to his home repair and remodeling business. Defendant stated that Mr. Macke, the appointed expert in the consent decree proceedings, was an alleged “victim” in two of the eight felony counts in the indictment against defendant, and that Mr. Macke is a likely witness in the civil proceeding on the rule to show cause. Therefore, defendant argued, he had demonstrated a possible interference with his rights against self-incrimination. The Attorney General responded instanter that a stay based upon the criminal indictment was improper, as the matters resolved under the consent decree, e.g., the Walsh matter, were not the subject of the indictment. Following argument, the trial court ordered all proceedings, including arbitrations, stayed pending resolution of the criminal charges filed against defendant. The Attorney General’s timely appeal followed.

The issue before this court is whether the trial court erred in granting defendant’s motion to stay all proceedings under the consent decree based upon defendant’s fifth amendment privilege of self-incrimination.

A party may claim the fifth amendment privilege in a pending civil matter to protect from involuntarily disclosing information which may implicate him criminally. (10-Dix Building Corp. v. McDannel (1985), 134 Ill. App. 3d 664, 480 N.E.2d 1212; Galante v. Steel City National Bank (1978), 66 Ill. App. 3d 476, 384 N.E.2d 57.) Where a criminal action is simultaneously pending with a civil action, courts may stay the civil proceeding based on the fifth amendment until the resolution of the criminal matter. (10-Dix, 134 Ill. App. 3d at 672-73.) Courts are willing to defer civil proceedings in such a manner, inter alia, to protect a party from making admissions or furnishing other proof of a crime; to protect the party from not being able to defend a civil suit regarding the same matter; to protect the party from abuse of discovery in the criminal matter; and to protect the party from otherwise prejudicing his criminal case. S E C v. Dresser Industries, Inc. (D.C. Cir. 1980), 628 F.2d 1368.

The Attorney General initially contends that a party’s privilege against self-incrimination is limited to the discovery stage in civil litigation and does not apply to this matter, which has been conclusively resolved by the consent decree. (See People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1, 8, 476 N.E.2d 409 (“a decree entered by consent is *** a court’s recording of an agreement reached by the parties in settlement of a dispute or claim”).) Thus, the Attorney General argues, there is no pending civil case for purposes of analysis under the fifth amendment. In support, the Attorney General cites 10-Dix and Galante. In 10-Dix, this court held that defendant, Margaret McDannel, properly asserted her privilege in response to discovery requests because she reasonably apprehended a risk of self-incrimination based on statements made by plaintiffs’ attorney threatening criminal prosecution. {10-Dix, 134 Ill. App. 3d at 672.) In Galante, this court held that as counterdefendants in a pending civil action involving alleged fraudulent insurance claims, plaintiffs stood as involuntary defendants rather than as voluntary active litigants and therefore retained their fifth amendment privilege against self-incrimination at pretrial discovery depositions. Galante, 66 Ill. App. 3d at 483.

Our response to the Attorney General’s argument is twofold. First, in the present case there is some dispute as to whether the consent decree settled all issues in the civil matter. The record shows that while the issue of liability is conclusively resolved between the defendant and the Attorney General, the issue of damages is not. The consent decree provides for subsequent determination of damage awards through proceedings which may be contested by defendant at the trial court level. The record indicates that consumer complaints on file with the Attorney General’s office and subject to these post-judgment proceedings are plentiful in number. Therefore, the consent decree has not settled all issues in the civil matter.

Second, 10-Dix and Galante do not support the proposition that the privilege against self-incrimination is limited to the discovery stage in civil litigation, but merely illustrate situations wherein the privilege has been successfully asserted. Our research shows that the privilege has been asserted in a case wherein a judgment had already been entered. In Martin-Trigona v. Gouletas (7th Cir. 1980), 634 F.2d 354, Martin-Trigona asserted his privilege against self-incrimination during asset discovery proceedings following the entry of civil judgment against him, and was found in contempt of court. On appeal, the Seventh Circuit found Martin-Trigona’s assertion of the privilege improper only because Martin-Trigona failed to tender any credible reason why his response would pose a real danger of incrimination, and not a remote and speculative possibility. (Martin-Trigona, 634 F.2d at 362.) Accordingly, the success of a party’s assertion of the fifth amendment privilege depends upon whether a party has claimed a real danger of incrimination, not whether a judgment has been entered.

In any event, the pendency of criminal proceedings does not automatically assure fifth amendment protection; there must exist some nexus between the risk of criminal conviction and the information requested. (See Martin-Trigona, 634 F.2d 354; 10-Dix, 134 Ill. App. 3d at 672.) This ultimate question is one for the trial court. Martin-Trigona, 634 F.2d at 360-61; People v. Mileris (1981), 103 Ill. App. 3d 589, 431 N.E.2d 1064.

In the present case, defendant has shown a reasonable fear of self-incrimination based on a nexus between the civil matter and the pending criminal indictment. The indictment against defendant identifies Mr. Macke, the expert appointed by the Attorney General to resolve consumer complaints in out-of-court proceedings, as a “victim” of two counts of forgery. In his motion to stay the civil proceedings, defendant indicated that Mr. Macke is a likely witness against him in the civil proceedings on return of the rules to show cause initiated by the Attorney General. Under the circumstances, the trial court was presented with ample evidence that a nexus existed between the proceedings for resolution of consumer complaints under the consent decree and defendant’s pending criminal charges.

The Attorney General’s further argument that the trial court did not possess actual copies of the indictment, and therefore could not properly determine the sufficiency of defendant’s claim, is without merit. Defendant’s motion stated that the indictment called for defendant to be arraigned on May 30, 1991, before the presiding judge of the Cook County criminal court. At the hearing, the Attorney General admitted that an indictment had issued and that Mr. Macke is a potential witness and victim in one matter. At this, the trial court sardonically mused, “What is the appropriate punishment for this fellow, torture?” The record reveals that the determinations of Mr. Macke form the entire basis of the rules to show cause issuing against defendant for violations of the consent decree. The trial court noted the significant difficulties the civil litigation would encounter were the parties to attempt to sort out which testimony Mr. Macke could give and which testimony could potentially violate defendant’s constitutional rights. The trial court concluded that the prejudice to defendant under such circumstances outweighed the prejudice to those consumers allegedly harmed by defendant. We agree.

Accordingly, we conclude that the trial court properly granted a stay of all civil proceedings under the consent decree.

For the above reasons, the judgment of the trial court is affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

       The indictment was provided to this court as a supplement to the record on appeal.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    SVETOZAR BULATOVIC et al., Plaintiffs-Appellants and Cross-Appellees, v. ROBERT DOBRITCHANIN et al., Defendants (American National Bank and Trust Company, as Trustee, et al., Defendants-Appellees and Cross-Appellants; Mark S. Simon et al., Cross-Appellees).
    First District (1st Division)
    No. 1 — 91—2740
    Opinion filed April 19, 1993.
    Rehearing denied October 7, 1993.

      Mark S. Simon and Hammond & Kubaszewski, both of Chicago (Carl Kubaszewski, of counsel), for appellants and cross-appellees.
    Nealis & Frazel, of Chicago (Richard J. Nealis, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

The plaintiffs, Svetozar and Leposava Bulatovic, filed a seven-count, second-amended complaint against numerous defendants arising out of a business deal which involved the acquisition, development and sale of certain real property. The trial court granted judgment on the pleadings (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615 (now 735 ILCS 5/2 — 615 (West 1992))) for defendants on plaintiffs’ count in ejectment on the grounds that as a matter of law defendants had “sufficient title here to resist any action for ejectment.” The trial court also denied both parties’ cross-motions for sanctions. On appeal, plaintiffs contend that the allegations in count YII sufficiently set forth an action in ejectment and that plaintiffs still hold legal title to the subject property. Defendants cross-appeal the trial court’s denial of sanctions.

On April 30, 1990, plaintiffs filed an eight-count complaint seeking various relief against numerous defendants. In effect, plaintiffs alleged in counts I through VII that the $525,000 in purchase money-defendants Chung Hwe Park and Moon Hwa Park paid for the property was converted by plaintiffs’ attorney and the general contractor who developed the property. Specifically, plaintiffs alleged that in January 1987, Vuk Zecevic (Zecevic), a friend for more than 20 years, approached them with an investment scheme. According to plaintiffs’ complaint, Zecevic was an experienced general contractor and a co-owner in Rapid Builders, Inc., along with Robert Dobritchanin (Dobritchanin), plaintiffs’ attorney. Zecevic proposed that plaintiffs obtain financing through Howard Savings for the acquisition and development of certain property. He told them he would arrange through Howard Savings for plaintiffs to purchase the property. He would develop the property as the general contractor and then sell it “with no money required from the plaintiffs.” Additionally, Zecevic allegedly represented to plaintiffs that they would be entitled to all the profits.

Howard Savings agreed to provide plaintiffs with $240,000 for the purchase and development of the property, and on May 29, 1987, plaintiffs purchased the property and took title in joint tenancy. The transaction documents were prepared by Dobritchanin. When the construction was nearly completed, Zecevic listed plaintiffs’ property for sale for $525,000 and, on plaintiffs’ behalf, accepted defendant Park’s offer. Allegedly, at Zecevic’s direction, Mr. Bulatovic then went to Dobritchanin’s law office to sign some documents related to the contract for sale. According to plaintiffs, Dobritchanin told Bulatovic that he needed to sign some documents in advance of the closing in order to set up an escrow account because Park was leaving the country. The documents that Bulatovic signed included the deed to the property. Plaintiffs alleged that Mrs. Bulatovic never signed any documents. Plaintiffs further asserted that, without notice to plaintiffs, Dobritchanin sold plaintiffs’ property on December 16, 1988, and delivered a deed containing the forged signature of Mrs. Bulatovic to defendants. Plaintiffs allege that they were never paid any profits and that Zecevic, Dobritchanin, or Rapid Builders are wrongfully withholding the purchase money from them.

The various counts against Zecevic, Dobritchanin, Rapid Builders, and the title insurance company involved in the transaction sounded in (1) a claim for constructive trust, (2) conversion and a claim for damages, (3) conspiracy and a claim for damages, (4) legal malpractice and a claim for damages against Dobritchanin, (5) breach of contract and a claim for damages against Rapid Builders, (6) breach of contract and a claim for damages against Howard Savings, and (7) breach of duty and a claim for damages against Intercounty Title Insurance Company of Illinois (Intercounty).

In the alternative to counts I through VII, plaintiffs asserted a claim for ejectment in count VIII against Park and American National Bank and Trust Company, as trustee (ANB). Plaintiffs asserted that they owned a fee interest in the property in question with a right of possession and that defendant Park took possession of the property “without agreement with the plaintiffs.” Plaintiffs then filed a first-amended complaint dropping count VII against Intercounty (thereby making count VIII in ejectment count VII) and adding Mrs. Park as a defendant to the count in ejectment.

Defendants’ motion for judgment on the pleadings as to count VII in ejectment was granted and plaintiffs were given 28 days to re-plead. In the trial judge’s opinion, the ejectment count was “very misleading” because it gave the impression that Park “simply moved into the property and took over.” Additionally, although plaintiffs alleged that Mrs. Bulatovie’s signature was forged, they did not allege the same for Mr. Bulatovie.

Plaintiffs then filed their second-amended complaint. They realleged counts I through VI by reference to their first-amended complaint and made count VII in ejectment more specific. In count VII, plaintiffs asserted that defendants, Mr. and Mrs. Park, entered onto the plaintiffs’ property, took possession, and are

“unlawfully withholding possession of plaintiffs’ property for one or more of the following reasons:
a. On plaintiffs’ information and belief, defendants took possession of plaintiffs’ property pursuant to a certain deed ***.
b. Prior to any signatures being affixed to the Deed, Mr. and Mrs. Bulatovie were named as the grantors so that both were intended to execute the Deed in order to effect a conveyance of plaintiffs’ property.
c. Mrs. Bulatovie never signed the Deed.
d. Although Mr. Bulatovie believes he may have signed the Deed, Mr. Bulatovie never intended to cede control of the Deed to the Defendants without his wife’s signature first being affixed and without receiving consideration in the amount of $525,000 from the Defendants.
e. The Deed was entrusted to plaintiffs’ attorney, Robert Dobritchanin (‘Dobritchanin’), for a purpose preliminary to a closing that was to be scheduled with the Defendants.
f. On the plaintiffs’ information and belief, Dobritchanin caused or allowed Mrs. Bulatovic’s signature to be forged on the Deed.
g. Without plaintiff’s knowledge, authorization, or consent, Dobritchanin delivered the forged Deed to Defendants on or about December 16, 1988.
h. Plaintiffs never intended to cause or allow delivery of the Deed which the Defendants now hold.”

Defendants Mr. and Mrs. Park and ANB again filed a motion for judgment on the pleadings as to count VII in ejectment. The trial court granted the motion to dismiss on the ground that the “plaintiffs’ own allegations show that [defendant] Park has sufficient title here to resist any action for ejectment.” The trial judge stated that, although plaintiffs claim that the deed was “somehow deficient” because Mrs. Bulatovic allegedly did not sign it as a grantor, it is clear that Mr. Bulatovic did sign the deed, gave it to his attorney for the purpose of closing the sale; and his attorney, in fact, did close the deal on the date set in the contract. The trial judge noted that it was plaintiffs’ actions which put the deed “in play” and which vested their attorney with the apparent authority to sell the property. Therefore, the court concluded that, if plaintiffs have a cause of action, it is not against defendants Mr. and Mrs. Park. The court also denied the motions of both sides for sanctions.

Plaintiffs appeal the dismissal of count VII sounding in ejectment. Defendants cross-appeal the denial of sanctions.

Plaintiffs assert that the trial court erred in dismissing their claim for ejectment against defendants in alternative count VII because there were “sufficient well pleaded facts to indicate that plaintiffs did not intend for the Parks to receive the deed” until Mrs. Bulatovic signed it. Additionally, plaintiffs argue that the trial judge applied the wrong standard of review by basing his ruling upon his own factual determinations. Specifically, plaintiffs contend (1) that the trial court’s finding that Mr. Bulatovic gave the deed to Dobritchanin, his attorney, for the purpose of closing the sale “contradicts” plaintiffs’ allegation that Mr. Bulatovic gave the deed to his attorney for a purpose “preliminary” to the closing and (2) that “the court lacked cause to find [that] Mr. Dobritchanin [plaintiffs’ attorney] had apparent authority to represent the plaintiffs.” The plaintiffs also maintain that their allegations meet the statutory requirements for stating a claim in ejectment and that defendants are not bona fide purchasers.

Defendants contend that plaintiffs’ allegations are in bad faith and clearly demonstrate that plaintiffs lack a factual basis to allege an ejectment action. Defendants argue that by asserting that Mrs. Bulatovic did not sign the deed, plaintiffs are using their own breach of contract in failing to tender a properly executed deed as the basis for their action in ejectment. Defendants also assert that plaintiffs are misapplying the law regarding alternative pleading in an effort to obtain both the profits from the sale of the property and also possession of the property.

A motion for judgment on the pleadings admits the truth of all well-pleaded facts in the “attacked portions” of the complaint (Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 389, 577 N.E.2d 1344, 1349) and challenges only the legal sufficiency of the pleading. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100, 582 N.E.2d 1362, 1366.) A reviewing court must determine whether the challenged portion of the complaint, in the light most favorable to the plaintiffs, is sufficient to state a claim upon which relief may be granted. (Aguilar, 221 Ill. App. 3d at 1100-01, 582 N.E.2d at 1366.) In other words, a judgment on the pleadings is proper if the complaint reveals only questions of law and none of fact. Pfeil v. Weerde (1987), 152 Ill. App. 3d 759, 760, 504 N.E.2d 988, 989.

At this stage of the proceedings, the issue is solely the sufficiency of the pleadings and whether plaintiffs can conceivably prove a set of facts which would entitle them to prevail on their claim in ejectment. (Weil, Freiburg & Thomas, 218 Ill. App. 3d at 389, 577 N.E.2d at 1349.) If such a factual scenario exists, then plaintiffs may plead allegations in the alternative and, at trial, choose which theories of recovery to pursue. (Wegman v. Pratt (1991), 219 Ill. App. 3d 883, 895-96, 579 N.E.2d 1035, 1044.) The Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—613(b) (now 735 ILCS 5/2 — 613(b) (West 1992))) clearly authorizes alternative pleading, regardless of the consistency of the allegations, as long as the alternative factual statements are made in good faith and with genuine doubt as to which contradictory allegation is true. (See Wegman, 219 Ill. App. 3d at 895, 579 N.E.2d at 1044; Illinois Casualty Co. v. Turpen (1980), 84 Ill. App. 3d 288, 293, 405 N.E.2d 4, 7.) If these requirements of good faith and genuine doubt are met, then the inconsistent statements of fact will not be used as admissions against the pleader’s interest. (Turpen, 84 Ill. App. 3d at 293, 405 N.E.2d at 7.) In other words, “[a] bad alternative does not affect a good one.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 613(b) (now 735 ILCS 5/2-613(b) (West 1992)).

We note, however, that although plaintiffs may be pleading inconsistent legal theories, they really do not set forth any inconsistent fac tual allegations. Although several key facts which are clearly within plaintiffs’ knowledge are more vaguely set forth in alternative count VII than they were earlier in the complaint, they are not blatantly inconsistent. For instance, in counts I through VI, it is alleged that Mrs. Bulatovic’s signature was forged and necessarily implied that Mr. Bulatovic signed the deed. In alternative count VII, however, plaintiff alleges that Mr. Bulatovic “believes he may have signed” the deed. Moreover, in counts I through VI, plaintiffs allege that Mr. Bulatovic signed certain papers and gave them to their attorney, Dobritchanin, in order to establish “a preliminary escrow because *** Park was leaving the country.” In alternative count VII, however, plaintiffs aver that they entrusted the deed to Dobritchanin for an unspecified purpose “preliminary to a closing that was to be scheduled with the defendants.” At oral argument, plaintiffs’ attorney made clear that Mr. Bulatovic did sign the deed and that the preliminary purpose for which he signed the deed, in fact, was to allow Dobritchanin to place the deed in an escrow. We will not say that the averments in count VII are inconsistent and made in bad faith, but they are certainly ambiguous and, as such, will be resolved “against the pleader.” (Church v. Adler (1953), 350 Ill. App. 471, 483, 113 N.E.2d 327, 330.) Therefore, in the best interests of all parties, we will view the more specific averments of fact in counts I through VI as what plaintiffs meant when they pleaded alternative count VII.

In an action in ejectment, plaintiffs must allege (1) that they had possession of the subject premises after obtaining legal title, (2) that defendants subsequently took possession of the premises, and (3) that, at present, the defendants “unlawfully withhold[] from the plaintiff[s] the possession thereof.” (Ill. Rev. Stat. 1991, ch. 110, par. 6 — 109 (now 735 ILCS 5/6 — 109 (West 1992)).) In order to maintain such an action, all the elements of ejectment must not only be pleaded, but also proved. (Dagit v. Childerson (1945), 391 Ill. 611, 614, 63 N.E.2d 706, 707.) Clearly, the object of an ejectment action is to obtain possession of land and involves a question of which party holds legal title. Dagit, 391 Ill. at 614, 63 N.E.2d at 707.

It is to be noted that it is a “time-honored principle that a plaintiff in ejectment must recover on the strength of his own title rather than the weakness of his adversary’s title.” (Old Salem Chautauqua Association v. Illinois District Council of the Assembly of God (1958), 13 Ill. 2d 258, 265, 148 N.E.2d 777, 781.) He must show proof of title under a deed sufficient to entitle him to possession of the premises, otherwise defendant cannot be ejected from the property whether defendant has title or not. (Old Salem, 13 Ill. 2d at 265-66, 148 N.E.2d at 781.) In order to recover property in a claim for ejectment, plaintiff must have an interest in the premises which is “higher and better” than defendant’s claim and which entitles him to present possession (Whitham v. Ellsworth (1913), 259 Ill. 243, 246, 102 N.E. 223, 224), but in no event can he recover property from one who is in lawful possession. (Miller v. Frederick’s Brewing Co. (1950), 405 Ill. 591, 597, 92 N.E .2d 108, 111.) In the instant case, plaintiffs’ own well-pleaded factual allegations taken as true preclude a claim in ejectment as a matter of law. The facts show that, at the least, Mr. Bulatovic conveyed his interest in the property and, therefore, plaintiffs do not have a right to possession superior to defendants’.

Plaintiffs argue that count VII sufficiently pleads ejectment because it is averred that Mrs. Bulatovic never signed the deed. This allegation that Mrs. Bulatovic’s signature is forged, however, is irrelevant. It has long been established that a joint tenant can convey his own interest in property. (See Wisniewski v. Shimashus (1961), 22 Ill. 2d 451, 462, 176 N.E.2d 781, 787.) Therefore, if Mr. Bulatovic signed the deed with the intent to convey his interest, then defendants have an interest in the premises and cannot be ejected.

Plaintiffs also contend that, although Mr. Bulatovic did sign the deed, he never had a present intent to convey his interest in the property. Plaintiffs argue that Mr. Bulatovic signed the deed for the purpose of setting up a preliminary escrow and with no intent to convey the property without his wife’s signature and without a contemporaneous exchange of the deed for consideration of $525,000. Additionally, plaintiffs maintain that defendants were foolish to enter into a contract with Rapid Builders and Zecevic instead of with them since they were the legal title holders. Therefore, plaintiffs assert that there are sufficient well-pleaded facts to indicate that they did not intend for the defendants to receive the deed. The factual allegations as pleaded, however, show differently.

As plaintiffs correctly point out, delivery of a deed is essential to its validity and delivery is a question of intent. (Logue v. Von Almen (1941), 379 Ill. 208, 216, 40 N.E.2d 73, 78.) To be a completed delivery, the grantor must have intended to “part with all dominion, power and control over [the deed] and must retain no right to reclaim or recall it.” (Stevens v. Stevens (1912), 256 Ill. 140, 144, 99 N.E. 917, 918; see McReynolds v. Miller (1939), 372 Ill. 151, 154-55, 22 N.E.2d 951, 953.) The grantor’s intent is evidenced by his words and acts (i.e., “what he said and did at the time”) and not by that “which existed solely in [his] mind.” (McReynolds, 372 Ill. at 155-56, 22 N.E.2d at 953.) Bare allegations that the grantor had no intent to deliver the deed are entitled to no weight. McReynolds, 372 Ill. at 155, 22 N.E.2d at 953.

Plaintiffs’ claim for ejectment shows that Mr. Bulatovic entrusted the deed with his signature to his attorney for a purpose preliminary to a closing and with a view toward an imminent sale to these defendants for $525,000. Obviously, plaintiffs did not intend to convey the deed until receiving the purchase money, but the bare assertion that, in effect, the entire deal turned on Mrs. Bulatovic’s signature is entitled to no weight. Additionally, the fact that the deed was entrusted to Dobritchanin, plaintiffs’ attorney, for the purpose of setting up a “preliminary escrow” presumptively establishes Mr. Bulatovic’s intent to deliver the deed.

The purpose of placing a deed in escrow is “ ‘to give security to both parties to an existing transaction' ” and is considered a delivery subject only to any express conditions placed upon it at the time. (Hakala v. Illinois Dodge City Corp. (1978), 64 Ill. App. 3d 114, 121, 380 N.E.2d 1177, 1182, quoting A. Corbin, Corbin on Contracts §249 (1952).) In other words, when a deed is placed in escrow it is considered delivered and cannot be recovered unless an express condition is attached at the time which reserves the right to revoke the escrow. The purpose of such an escrow is to guarantee exactly what Mr. Bulatovic alleges he intended, namely, that there be a contemporaneous exchange of consideration. Ultimately, as plaintiffs’ attorney admitted at oral argument, the transaction closed in escrow and, therefore, there was a contemporaneous exchange of consideration. Plaintiffs do not allege that at the time Mr. Bulatovic signed the deed he expressed his desire to reserve the right to recall or revoke the escrow. Without such expressed conditions, Mr. Bulatovic’s presumptive intent was to deliver the deed (McReynolds, 372 Ill. at 155, 22 N.E.2d at 953) and, when the deed was placed in escrow, it was delivered.

Additionally, a necessary condition to placing a deed in escrow is a preexisting contract between the parties. (Hakala, 64 Ill. App. 3d at 121, 380 N.E.2d at 1182.) By having the deed placed in escrow, Mr. Bulatovic was acknowledging that a contract for sale existed between him and defendants. This contract was signed by Zecevic for Rapid Builders. Therefore, plaintiffs’ assertions that defendants were foolish to deal with Zecevic and Rapid Builders rather than the Bulatovics is contradicted by their own argument which admits that plaintiffs knew of and accepted the contract, thereby confirming Zecevic’s authority to enter into the contract on their behalf. Consequently, plaintiffs’ assertion that Mr. Bulatovic signed the deed and entrusted it to his attorney for the purpose of setting up a preliminary escrow in contemplation of the sale to defendants establishes that Mr. Bulatovic was aware of the contract for the sale of the land to defendants and intended to deliver the deed to defendants in conjunction with that contract.

According to plaintiffs’ attorney at oral argument, the transaction ultimately was closed in escrow. We also know that delivery of the deed by plaintiffs’ attorney on the date set in the sale contract was in conformity with Mr. Bulatovic’s underlying and expressed intention that his interest be conveyed to the Parks in exchange for the agreed upon contract price of $525,000. Therefore, the factual allegations in the claim for ejectment show that, at the least, Mr. Bulatovic conveyed his interest in the premises as a matter of law. Since an ejectment action seeks possession and defendants have a legal interest in the property, recovery on such a claim is precluded. Clearly, if plaintiffs were entitled to profits on the sale of their land and have a cause of action, it is not against defendants Mr. and Mrs. Park. After reviewing plaintiffs’ claim, we affirm the trial court’s entry of judgment on the pleadings as to plaintiffs’ count in ejectment.

On cross-appeal, defendants maintain that plaintiffs’ claim in ejectment is “on its face unfounded in fact” because the facts as pleaded by plaintiffs were directly opposite to those required to plead a prima facie case. Therefore, the trial judge abused his discretion in denying their request for sanctions or at least holding a hearing on the matter.

The purpose of sanctions is to prevent frivolous pleadings and those “interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (134 Ill. 2d R. 137; Singer v. Brookman (1991), 217 Ill. App. 3d 870, 879, 578 N.E.2d 1, 6.) The decision whether to impose sanctions is a matter within the sound discretion of the trial judge and will not be reversed absent an abuse of discretion. (Singer, 217 Ill. App. 3d at 879, 578 N.E.2d at 6.) “Whether a hearing must be held to determine if the allegations within a pleading are untrue and made without reasonable cause depends upon the circumstances presented in each case.” (Beno v. McNew (1989), 186 Ill. App. 3d 359, 365-66, 542 N.E.2d 533, 537, appeal after remand (1991), 213 Ill. App. 3d 720, 572 N.E.2d 295.) Although a hearing is generally held, it is not necessary if the judge can determine the merits of the contention “by looking at the pleadings, trial evidence, or other matters appearing in the record.” Beno, 186 Ill. App. 3d at 366, 542 N.E.2d at 537.

We do not believe the trial judge abused his discretion in summarily denying defendants’ motion for sanctions. It does not appear from the record that plaintiffs filed their alternative count in ejectment in bad faith or with the improper purpose to harass defendants or to cause unnecessary delay or needless increase in the cost of litigation. In addition, we note that defendants’ reason for requesting sanctions is because it is factually impossible for plaintiffs to establish a claim in ejectment. This is precisely the reason that judgment on the pleadings was granted. If for that reason alone this court were to hold that the trial judge abused his discretion here, then any time judgment on the pleadings is granted on an alternative count, the prevailing party should be awarded sanctions. Moreover, we believe such a finding would cause other counsel to hesitate before pleading alternatively out of fear that if judgment on the pleadings is granted on any alternative count, they will be sanctioned. We find that any other conclusion in this case would place other parties who desire to plead alternatively “in the perilous situation of either foregoing one claim or having one claim used against another as an admission.” (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 842, 462 N.E.2d 645, 651, citing Slocum v. Ford Motor Co. (1981), 111 Mich. App. 127, 134, 314 N.W.2d 546, 549.) Therefore, the trial court’s denial of sanctions against plaintiffs is affirmed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellant, v. MICHAEL RIZZI, Indiv. and as Adm’r of the Estate of Holly Rizzi, Deceased, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 92—3994
    Opinion filed August 9, 1993.
    Hinshaw & Culbertson, of Chicago (Stephen R. Swofford, David H. Levitt, and Peter C. Morse, of counsel), for appellant.
    O’Connor, Schiff & Myers, of Chicago (Mark M. Lyman and Loretta M. Griffin, of counsel), for appellee Michael Rizzi.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Allstate Insurance Company (Allstate) filed this inter-pleader action because multiple claims had been filed against plaintiff’s insured, defendant James Harasek, regarding an automobile accident. Plaintiff appeals an order of the circuit court of Cook County requiring plaintiff to deposit $300,000, representing the policy limits of the claims.

The record indicates the following facts. In June 1990, Allstate filed an interpleader complaint indicating that on May 5, 1990, Harasek was operating a motor vehicle that caused injuries to some or all of the defendants named in the complaint. Papers filed by defendants allege that Harasek drove an automobile through a Little League baseball diamond, resulting in the death of three children and the injury of nine others.

Allstate’s complaint indicates that defendants filed claims against Harasek as a result of this accident. Allstate indicated that without admitting liability, it stands ready, willing and able to settle all claims against Harasek in exchange for full releases of Harasek. However, because of the multiple parties and the seriousness of the injuries, Allstate sought the circuit court’s assistance in allocating the $300,000 available under the policy as the court deemed fit and appropriate.

The interpleader complaint also prayed for three specific forms of relief. First, Allstate requested that the court determine the allocation of the $300,000 policy limits to all injured parties. Second, Allstate requested that the court approve the settlement amounts on behalf of the defendants. Third, Allstate sought an order finding that releases entered into between Harasek and defendants are in good faith, barring any and all contribution claims.

Appearances were subsequently filed for defendants Justin Glardon; Kevin Rose; Andrew Vacek; Michael Larmon, individually and as step-father and next friend of Timothy Larmon-Keast; Holly Rizzi; Bruce Anderson, individually and as administrator of the estate of the late Colin Anderson; Jacqueline Tuglus; and Robert Wegnerski, individually and as father and next friend of Peter Wegnerski. Glardon filed an answer denying that Allstate was entitled to interpleader relief.

On May 16, 1990, the trial court entered an order enjoining Allstate from distributing funds until May 30, 1990, and setting a hearing on motions to be filed May 30, 1991. On May 23, 1991, Allstate moved to have the court approve settlements it made with Kevin Rose, Michael Larmon and Timothy Larmon-Keast in the amounts of $80,000, $8,000 and $12,000, respectively. These three defendants had executed releases of the insured. The Rose settlement had been approved in another court pursuant to a separately filed lawsuit.

On May 30, 1991, Allstate filed an amended interpleader complaint, adding Harasek as a defendant. This amended complaint omits the earlier reference to allocating the $300,000 as the court deems fit and appropriate; instead, it simply asks for assistance. The first specific prayer for relief is similarly amended.

On July 22, 1991, Allstate filed motions seeking approval of settlements reached with Holly Rizzi, Andrew Vacek, Ryan Womack and the Wegnerski defendants. On August 19, 1991, the four nonsettling defendants filed memoranda in opposition to the Allstate motions.

On September 12, 1991, the trial court held a hearing on Allstate’s motions for approval of settlements. During this hearing, the trial court first considered whether the matters presented in this case were properly presented in an interpleader action. The trial court concluded that Allstate’s interpleader action was proper. The trial court entered an order directing the parties to submit memoranda regarding: “(a) whether the court has the option to approve settlements of less than all the claims or whether it must divide the insurance proceeds among all claimants; (b) if the court may approve settlements of less than all claimants, what standards must the court use; (c) if the court must divide the insurance proceeds among all claimants, what type of hearings the court must hold; [and] (d) whether Allstate is permitted to pay the insurance proceeds to some claimants without receiving a release of Harasek in return.”

Between September 17 and December 10, 1991, Tuglus, the Anderson defendants, Glardon and Rizzi filed answers to Allstate’s amended complaint. Tuglus and the Anderson defendants denied that Allstate should be entitled to the relief it requested, and also asked that Allstate be ordered to deposit its policy limits with the trial court. Glardon’s answer denied that Allstate was entitled to any relief and sought dismissal of the complaint. Rizzi’s answer denied that Allstate was entitled to the relief it sought, but prayed that the trial court assist in the distribution of the policy limits.

On June 2, 1992, the trial court denied Allstate’s motion to approve settlements and issue good-faith findings. On August 14, 1992, Rizzi filed a motion requesting that the trial court order Allstate to deposit the interpleader fund with the court and issue an order discharging Allstate from the action. This motion was supported by Glardon and the Anderson defendants and opposed by Allstate.

On October 27, 1992, the trial court issued an order compelling Allstate to deposit the $300,000 with the clerk of court within 21 days of entry of the order. Allstate filed a motion to reconsider, which the trial court denied. Allstate timely filed a notice of interlocutory appeal to this court pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307). On December 15, 1992, Rizzi moved to dismiss the appeal; this motion was taken with the case.

I

Initially, we address the motion to dismiss the appeal for lack of jurisdiction. Rizzi maintains that the order appealed from is merely administrative and thus not appealable under Rule 307(a). (See In re a Minor (1989), 127 Ill. 2d 247, 262, 537 N.E.2d 292, 298.) Rizzi also contends that the order is in substance a permanent mandatory injunction from which an appeal will not lie. See Steel City Bank v. Village of Orland Hills (1991), 224 Ill. App. 3d 412, 416-17, 586 N.E.2d 625, 628.

These arguments, while not completely without merit, are unpersuasive. At this stage of the litigation, Allstate has filed an inter-pleader complaint, but has not been dismissed from the action. In a similar situation, this court has previously indicated that an order to deposit funds is injunctive in nature and may subject the party so ordered to contempt for failure to deposit the funds. (Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 1121-22, 415 N.E.2d 625, 627-28 (discussing American Reinsurance Co. v. M G I C Investment Corp. (1979), 73 Ill. App. 3d 316, 391 N.E.2d 532).) Thus, the order cannot be said to be “merely” administrative.

Nor can the order be said to be permanent. Allstate explicitly refuses to admit any liability in its complaint. At this stage of the litigation, the policy limits are not exhausted. As Allstate could hypothetically retain some portion of the deposit, the order may be considered temporary in nature.

We therefore conclude that this court has jurisdiction to consider Allstate’s appeal.

II

Allstate argues that the deposit of funds is not a prerequisite to pursue interpleader and cannot be required until the relief requested in its amended complaint is granted.

Interpleader, which is governed by section 2 — 409 of the Illinois Code of Civil Procedure, permits a plaintiff to join as defendants those having claims against it arising out of the same or related subject matter when those claims may subject plaintiff to multiple liability. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 409.) Section 2 — 409 “eliminates the distinction between bills of interpleader and bills in the nature of bills of interpleader and combines them into a single broadened remedy.” (Ill. Ann. Stat., ch. 110, par. 2 — 409, Joint Committee Comments, at 500 (Smith-Hurd 1983).) Section 2 — 409 is based directly on Federal Rule of Civil Procedure 22. (Ill. Ann. Stat., ch. 110, par. 2 — 409, Joint Committee Comments, at 500 (Smith-Hurd 1983).) It is therefore appropriate to examine Federal law regarding inter-pleader under Federal Rule of Civil Procedure 22.

Unlike Federal statutory interpleader actions filed pursuant to 28 U.S.C. §1335 (1988), which jurisdictionally requires the stakeholder to deposit the stake with the Federal court, so-called “rule interpleader” proceedings do not require a deposit. (See General Accident Group v. Gagliardi (D. Conn. 1984), 593 F. Supp. 1080, 1086-87, aff'd without op. (2d Cir. 1985), 767 F.2d 907.) Nevertheless, “the general equitable powers of the court permit, if not invite, the court to receive a deposit and thereafter discharge the stakeholder.” (Gagliardi, 593 F. Supp. at 1087.) Moreover, there is precedent in Illinois supporting the equitable power of a trial court to order the deposit of funds with the court pending the outcome of litigation, albeit none decided under the exact facts and circumstances presented in this case. (See Computer Teaching Corp. v. Courseware Applications, Inc. (1989), 191 Ill. App. 3d 203, 205-06, 547 N.E.2d 718, 720; American Re-Insurance Co., 73 Ill. App. 3d at 324-25, 391 N.E.2d at 539.) Accordingly, we conclude that although a deposit may not be required as a prerequisite to an interpleader action, the trial court may exercise its discretion and order that funds be deposited with the court.

The record in this case, particularly the transcript of proceedings for the hearing on Allstate’s motion to reconsider, indicates that the trial court believed it had no discretion as to whether to compel the deposit. The trial court’s refusal to exercise its discretion due to its belief that it has none is error. (E.g., People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169.) Whether the error requires reversal depends upon the circumstances presented by each case. See Queen, 56 Ill. 2d at 565-66, 310 N.E.2d at 169.

The circumstances of this case must necessarily be viewed in the context of the general rules of interpleader. The Gagliardi opinion discusses the general interpleader procedure:

“Normally, an interpleader action is concluded in two stages. First, the court determines whether interpleader lies, i.e. are there two or more claims to the stake. If so, the stakeholder is ordered to pay or deliver the stake into court and is discharged of further liability insofar as the stake is concerned. *** In the second stage, the adverse claims are adjudicated and the proceeds disbursed.” (Gagliardi, 593 F. Supp. at 1087.)

The Gagliardi court also suggested that it is not improper to file an interpleader action to act as a catalyst for settlement discussions. Gagliardi, 593 F. Supp. at 1087.

The record in this case indicates that Allstate filed its interpleader complaint to act as a catalyst for settlement discussions. The record also indicates that the trial court found at the September 12, 1991, hearing that the interpleader was proper. Generally, a trial court should enter a preliminary order memorializing such a finding. (Elmhurst National Bank v. Glos (1968), 99 Ill. App. 2d 74, 79, 241 N.E.2d 121, 124.) There does not appear to be such an order in the record on appeal. However, the record does not show that Allstate objected to the absence of a written order in this matter. Indeed, Allstate relies upon the trial court’s finding in its brief before this court. Thus, we need not consider whether the failure to enter a preliminary order was error. Following the general procedure for “rule inter-pleader” set forth in Gagliardi, the trial court exercised its general equitable powers and ordered Allstate to deposit the stake with the court. Moreover, the general procedure set forth in Gagliardi permits the trial court to order the deposit before it acts upon the merits of the complaint or grants relief. Furthermore, we note that Allstate has failed to cite any authority for the proposition that the trial court may grant only that equitable relief specifically requested by the plaintiff.

Allstate contends that Rizzi’s motion to compel the deposit was improper because none of the claimants has a right to any part of the stake at this point in the litigation. However, Rizzi did not assert any right to any specific portion of the stake at this stage of the action. Rather, the motion simply requested that the court compel Allstate to deposit funds with the court in accordance with general interpleader procedure.

Allstate also contends that the general interpleader procedure detailed in Gagliardi ignores the difference between bills in interpleader and bills in the nature of bills of interpleader that existed at common law. However, as noted above, section 2 — 409 was designed to eliminate these distinctions and adopt the broad remedy afforded to Federal litigants under Federal Rule of Civil Procedure 22. Accordingly, we are persuaded that Gagliardi accurately describes typical inter-pleader procedure.

In sum, we conclude that the trial court erred in believing it lacked discretion in ordering Allstate to deposit funds with the court. However, the order at issue was not only within the scope of the trial court’s discretion, but also typical in interpleader actions. In addition, plaintiff has not demonstrated that it would be unduly prejudiced by the order. Consequently, the error was not of a magnitude warranting reversal, given the facts and circumstances in this case.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

       The remaining defendants are those who filed the claims against Harasek, most of whom are discussed later in this opinion.


author: JUSTICE DiVITO

text:
    FIRST NATIONAL BANK OF BLUE ISLAND, Plaintiff-Appellee, v. BOARD OF MANAGERS OF FAULKER HOUSE CONDOMINIUM ASSOCIATION et al., Defendants (Jack Davis, Intervening Defendant-Appellant).
    First District (2nd Division)
    Nos. 1—92—1789, 1—92—2483 cons.
    Opinion filed August 10, 1993.

      David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Margarita T. Kulys, of counsel), for appellant.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Cynthia G. Swiger and Ethan E. Trull, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff First National Bank of Blue Island (the Bank) obtained orders of foreclosure and sale for two condominium units, which intervenor Jack Davis purchased at the subsequent sheriff’s sale. Unbeknownst to Davis, however, Midwest Partnership had already purchased the back taxes for the same units. The tax deeds then were issued to Midwest Partnership after confirmation of one of the sheriff’s sales and prior to confirmation of the other, so Davis intervened in these two foreclosure proceedings to petition for vacatur of the orders confirming the sheriff’s sales. Both circuit courts denied the motions. We affirm.

Plaintiff Bank became the mortgagee of the units in February 1988. One year later, Midwest Partnership purchased the units’ taxes for 1987 and 1988. Almost two years passed, and in December 1990, the Bank filed complaints to foreclose the trust deeds. Among the allegations was that the mortgagors had not paid the 1987 and 1988 property taxes. In June 1991, the Bank sought summary judgment on the foreclosure actions. That same month, the Bank was sent a notice of the tax purchases redemption period deadline, which was November 27, 1991; at trial, however, the Bank denied receiving this notice.

In September 1991, the circuit court granted the Bank’s summary judgment motions for foreclosure, which allowed them to be sold by the sheriff. Those orders contained the following provision:

“The subject property is offered for sale without any representation as to quality or quantity of title and without recourse to [the Bank].”

The published notices of the sheriff’s sale included the same disclaimer. The judgments of foreclosure also contained statutory language that upon confirmation of the sale, the sheriff was to issue to the purchaser “a deed sufficient to convey title” and that the conveyance “shall be an entire bar to all claims of the parties *** and all claims of Unknown Owners and any Nonrecord Claimants.” Davis bought the units at the sheriff’s sale on December 3, 1991, that is, six days after the tax redemption period had ended. On December 26, 1991, the circuit court entered an order confirming one of the sheriff’s sales (the December 26 order), and the property was conveyed to Davis the next day. He did not record the deed. On January 17, 1992, in a separate proceeding, the other sale was confirmed (the January 17 order). On December 30, 1991, however, the judge in the tax proceedings had ordered issuance of tax deeds for both units to Midwest Partnership.

On January 27, 1992, the Bank’s attorney told Davis that it “ha[d] become aware that a court action [was] pending which may adversely affect [his] interest” in the units. Approximately two weeks later, on February 14, 1992, Davis moved to intervene and to vacate the January 17 order, asking the court to declare the sale void; 12 days later, he made the same request for the December 26 order. In the latter proceeding, the court decided to relax the due diligence and meritorious claim requirements, but it denied the requested relief. It reasoned that the doctrine of caveat ew/ptor applied to the sheriff’s sale and that the exceptions for fraud, misrepresentation, and mistake of fact did not. Vacatur of the other order was also denied, but there is neither a record of proceedings nor a reason given in the order itself.

I

As our supreme court recently observed:

“There are two types of post-judgment motions: the most common type which challenges the judgment, basing its attack upon facts apparent at the time the judgment was rendered, and another type which raises new facts or matters which were not presented to the court or considered by it when it ruled, but which, arguably, would have prevented rendition of the judgment had they been known to the court. A primary requisite of the latter type of post-judgment motion is that the newly discovered evidence was in fact ‘newly discovered’ and was not previously discoverable prior to judgment by the exercise of ordinary diligence.” (Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 347-48, 549 N.E.2d 1262, 1265 (absence of valid post-judgment motion results in no appellate jurisdiction).)

The orders here concern the “latter type” because Davis’ argument is that, had the circuit courts known that the units had been sold for taxes and that the redemption period had ended, they would not have confirmed the sales.

Initially, we note that the two orders here present different procedural postures. The December 26 order was attacked more than 30 days after the judgment was entered, so a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1401) was the proper vehicle for requesting relief from that order. The purpose of such petitions is to present evidence that, if known at the time of the judgment, would have prevented the court from entering it; the statute is to be liberally construed to achieve justice, and its application invokes a court’s equitable powers. (In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 282-83, 580 N.E.2d 1186, 1192-93.) To prevail, a petitioner must demonstrate by a preponderance of the evidence in the common law record or, if there is a factual dispute, at an evidentiary hearing, that:

“(1) a meritorious claim or defense exists; (2) the petitioner exercised due diligence in discovering the defense or claim in the original action; (3) despite such diligence and through no fault on the part of petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action; and (4) petitioner exercised due diligence in the section 2 — 1401 petition.” (Marriage of Hoppe, 220 Ill. App. 3d at 282, 580 N.E.2d at 1193, citing Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386, and other cases.)

(See generally Klein v. La Salle National Bank (1993), 155 Ill. 2d 201, 205-06, 613 N.E.2d 737, 739; Kaput v. Hoey (1988), 124 Ill. 2d 370, 377-78, 530 N.E.2d 230, 236.) The reasonableness of a petitioner’s reasons for delay must be considered in light of all the circumstances surrounding entry of the challenged judgment, including the conduct of the litigants and their attorneys, and equity requires a liberal construction so that justice is served. (Marriage of Hoppe, 220 Ill. App. 3d at 282-83, 580 N.E.2d at 1193.) The circuit court’s ruling on the petition will be reversed only if it represents an abuse of discretion. Klein, 155 Ill. 2d at 206, 613 N.E.2d at 739.

By contrast, Davis filed his motion attacking the January 17 order within 30 days of its entry, so in that proceeding he could proceed instead under section 2 — 1301(e) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e)). (Anglin v. Dearth (1988), 175 Ill. App. 3d 367, 529 N.E.2d 1176 (explaining difference between these mutually exclusive remedies).) The standard applied to section 2 — 1301 motions is far less onerous than that for section 2 — 1401 petitions: one need neither establish the existence of a meritorious claim or defense on the face of the motion nor show due diligence or good cause for the delay. (Andreasen v. Suburban Bank (1988), 173 Ill. App. 3d 333, 340, 527 N.E.2d 595, 601 (distinguishing between standards for setting aside default judgment under the two statutes); see also People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 406, 270 N.E.2d 841, 843 (“overriding consideration now is whether or not substantial justice is being done between the litigants and [if order was a default judgment,] whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits”); In re Marriage of Romashko (1991), 212 Ill. App. 3d 1018, 1024, 571 N.E.2d 995, 999 (due diligence and meritorious defense are factors, as is severity of penalty as result of the judgment).) Like the rulings on section 2 — 1401 petitions, however, decisions on motions under section 2 — 1301 are within the court’s discretion. Romashko, 212 Ill. App. 3d at 1024, 571 N.E.2d at 999; Day v. Curtin (1989), 192 Ill. App. 3d 251, 254, 548 N.E.2d 670, 672-73 (abuse of discretion, including violation of right to fundamental justice); but see Campbell v. White (1989), 187 Ill. App. 3d 492, 503, 543 N.E.2d 607, 614 (question on appeal from denial of motion is not abuse of discretion but whether substantial justice has been done between parties), appeal denied (1990), 129 Ill. 2d 561, 550 N.E.2d 553.

II

Davis contends that the circuit court should have vacated the confirmation orders and set aside the sales because the Bank committed constructive fraud, which he defines as “any act, statement or omission that amounts to positive fraud or that courts construe as fraud because of its detrimental effect upon public interests and public or private confidence,” quoting Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 843-44, 512 N.E.2d 1286. Any contract may be declared void on proof of misrepresentation or fraud, he explains, and given that the Bank’s foreclosure complaint included an allegation concerning the tax purchase, it doubtless knew that Midwest Partnership had purchased the units’ back taxes and that unless the units were redeemed by November 27, 1991, Midwest Partnership would be entitled to title to the units. Because the Bank knew that the redemption period had expired prior to the sheriff’s sale, he continues, it also must have known that the sheriff could not execute a deed “sufficient to convey title” to the units, as required by both the foreclosure statute and the sale order, because title to the units was with Midwest Partnership. Worse yet, Davis argues, despite this knowledge, the Bank nevertheless bid on the units at the sheriff’s sale, which surely constitutes fraud in light of the presumption under Johnson v. Zahn (1942), 380 Ill. 320, 324, 44 N.E.2d 15, 17, that the Bank would bid the fair market value of the units. Davis likewise disputes the Bank’s characterization of the question presented to the circuit court as one of the quality or quantity of the Bank’s title, contending that the only inquiry is whether the Bank engaged in fraudulent conduct and thus, under the doctrine of unclean hands, was unworthy of the equitable remedy of foreclosure.

As Davis apparently concedes, there can be little question that the doctrine of caveat emptor applies to judicial sales except in cases of fraud, misrepresentation, or mistake. (Checkley & Co. v. Citizens National Bank (1969), 43 Ill. 2d 347, 349, 253 N.E.2d 441, 443.) As a preliminary matter, we note that even if we were to consider Davis’ argument of constructive fraud, which he did not bring to the attention of the circuit court, we would be obliged to reject it, for courts uniformly refuse to find constructive fraud outside the context of a fiduciary or other confidential relationship (Maguire v. Holcomb (1988), 169 Ill. App. 3d 238, 242-43, 523 N.E.2d 688, 691). Even in Beaton, the case cited by Davis for the definition, the court made plain that the existence of a fiduciary relationship is a prerequisite for a finding of constructive fraud. In this arm’s length transaction, however, there was no foundation whatsoever from which a court might infer a relationship of trust and confidence between Davis and the Bank on which to ground a finding of constructive fraud.

Given that Davis does not claim that the parties were mistaken, the only other exception to the doctrine, we treat his challenge as one based on actual fraud. Accordingly, the question before the circuit court was whether, when the Bank put the units up for the sheriffs sale with the actual or implied knowledge that the tax redemption period would end prior to that sale and that issuance of the tax deeds would occur soon thereafter, the Bank intentionally made a false statement of, or concealed, material facts, which Davis then relied on to his detriment as the Bank intended. Tague v. Molitor Motor Co. (1985), 139 Ill. App. 3d 313, 316, 487 N.E.2d 436, 438.

Despite the apparent harshness of the result, we agree with the circuit courts that under the circumstances of this case, the fraud exception to the caveat emptor doctrine does not apply, so Davis had no right to vacatur of the confirmation orders. Here, information concerning the tax proceedings was certainly material, but it was readily available both in public records and in the complaints for foreclosure, so the Bank cannot be said to have concealed it. Likewise, the Bank made no false statements concerning the title to the units, and in fact the disclaimers in the foreclosure orders and in the published notices of sale made plain that the purchaser would assume the risk of any defect in title. As for Davis’ argument that the sheriff was unable to issue “a deed sufficient to convey title,” we interpret this statutory provision to concern the nature of the deed, not the soundness of the title, in light of the long history in Illinois of the application of the doctrine' of caveat emptor to all judicial sales, a history that the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1991, ch. 110, par. 15 — 1101 et seq.) does nothing to negate. Consequently, we hold that the circuit courts did not abuse their discretion in refusing to vacate the confirmation orders. Given this disposition, we need not address the timeliness of Davis’ petition.

For the reasons stated above, we affirm the judgments of the circuit court.

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.