author: JUSTICE CAMPBELL

text:
    O’HARE EXPRESS, INC., et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1—90—1461, 1—90—2300 cons.
    Opinion filed August 31, 1992.
    Rehearing denied October 15, 1992.—Modified opinion filed October 19, 1992.

      Brydges, Riseborough, Morris, Franke & Miller, of Chicago (Thomas A. Morris, Jr., and Gary E. Cooke II, of counsel), for appellants.
    Katten, Muchin & Zavis, of Chicago, for appellee Keeshin Charter Services, Inc.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Jean Dobrer, Assistant Corporation Counsel, of counsel), for other ap-pellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs O’Hare Express, Inc., and O’Hare Express/Jimray Corp. (O’Hare Express) appeal from the April 16, 1990, finding of the trial court that the City of Chicago (City) was not required to use a competitive bidding process pursuant to section 8 — 10—3 of the Hlinois Municipal purchasing act for cities of 500,000 or more population (purchasing act) (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3) to procure an airport bus shuttle service. Plaintiffs further appeal from the March 30, 1990, and July 26, 1990, orders of the trial court dismissing count II of their complaint and amended complaint, respectively, for failure to state a cause of action. For the following reasons, we reverse and remand this matter to the trial court for further proceedings. The following facts are relevant to this appeal.

In 1984, the City solicited sealed bids for a bus transportation service contract at the O’Hare International Airport (O’Hare) Interim Terminal No. 4 (Terminal No. 4). The City awarded a five-year contract to O’Hare Express. The contract called for O’Hare Express to provide a shuttle bus service for passengers and crew between Terminal No. 4 and the hardstand area where airplanes arrived at and departed from O’Hare. The expiration date of the contract was March 16,1990.

In August 1989, prior to the conclusion of O’Hare Express’ contract, the City determined that the new terminal would not be completed until 1993, and that bus service would be necessary for three additional years. At that time, the City Department of Purchasing chose to relet the O’Hare bus service contract as a “cost-reimbursement contract,” using a procurement process called a request for proposal (RFP) instead of inviting submission of sealed bids. In a RFP, the contractor develops a proposal describing the services it will provide and what the costs will be, and the public purchasing agent selects the contractor based on a consideration of price and the product or service proposed. Under a cost-reimbursement contract, the contractor is reimbursed for costs on a monthly rather than annual basis.

The City advertised for submission of proposals and received three, including offers from O’Hare Express and codefendant Keeshin Charter Services (Keeshin). The record indicates that O’Hare Express’ proposed cost for one year was $2,723,087, while Keeshin’s proposed cost for one year was $3,785,481.

On February 22, 1990, plaintiffs filed a complaint in chancery seeking a temporary restraining order (TRO) and permanent injunction, to prevent the City from entering into a contract for bus services with Keeshin. In count I, plaintiffs alleged that the City was required by the purchasing act (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3) to engage in competitive bidding for the continuation of the bus service contract, and that the RFP solicitation was contrary to the law and not in the interest of the taxpaying public. In count II, plaintiffs alleged that the City’s request for plaintiffs to participate in the transition to Keeshin by making the buses and personnel available for inspection and training of Keeshin’s employees required plaintiffs to work past the contract expiration and thus constituted breach of contract. In count III, plaintiffs alleged that the City intentionally interfered with the union contracts of O’Hare Express drivers by coercing them to deal with a nonunion contractor. In response, the City filed a motion to dismiss plaintiffs’ complaint.

The trial court conducted a hearing on February 23, 1990, denied both plaintiffs’ motion for TRO and the City’s motion to dismiss, and set the matter for trial on count I of plaintiffs’ complaint. Plaintiffs voluntarily withdrew counts II and III of their complaint without prejudice to reinstate.

On March 9, 1990, plaintiffs filed an amended complaint in chancery for declaratory and injunctive relief. In count II, plaintiffs alleged that the following actions of the City showed favoritism to Keeshin: (1) the contract between O’Hare Express and the City did not contain any language relating to a transition at the end of the contractual period; (2) on February 2, 1990, O’Hare Express received a letter from the City stating that the City had selected another firm for services, but that the O’Hare Express proposal had not been rejected. On the afternoon of February 2, O’Hare Express received a phone call from the Department of Aviation requesting that O’Hare Express representatives meet with the Department of Aviation to discuss transition to a new contractor; (3) a letter from Mary Rose Lo-ney, the first deputy commissioner of aviation, dated February 7, set forth the procedures which would be followed during the transition period; (4) on February 15, the Department of Aviation called O’Hare Express and demanded that O’Hare Express post a notice at the O’Hare Express time clock that applications for employment would be taken by the new contractor. On or about February 19, Keeshin advertised in the Chicago Sun-Times for drivers because they did not have enough qualified drivers for services at Terminal No. 4. On February 21, Cecilia Ice-Gibson, the O’Hare Terminal manager, told Danny Cargin, a representative of O’Hare Express, that Keeshin was having trouble finding drivers and asked him to pass out Keeshin’s number to O’Hare Express employees; and (5) the City attempted to require O’Hare Express to make buses and personnel available for the training of Keeshin’s employees, to arrange access for auditing of inventory, and to require O’Hare Express to work past contract expiration.

Plaintiffs further alleged in count II that the City arbitrarily utilized an improper selection process and exhibited improper bias toward Keeshin, noting that: (1) Keeshin had no hardstand apron experience; (2) Keeshin’s bid was $1,050,000 higher than O’Hare Express’ bid; (3) Keeshin did not have the required participation of women or minority business enterprises; and (4) Keeshin is a nonunion employer. Plaintiffs also alleged that the City showed an improper bias toward Keeshin and that such bias grew out of questions regarding O’Hare Express’ service history. Plaintiffs filed a motion for temporary restraining order based upon the allegations of count II.

On March 15, the trial court conducted a hearing and denied plaintiffs’ motion, and both the City and Keeshin filed a motion to dismiss count II of plaintiffs’ amended complaint under section 2 — 615 of the Code of Civil Procedure for failure to state a cause of action. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) On March 30, the trial court granted defendants’ motion to dismiss and gave plaintiffs 28 days to replead count II.

Trial on count I of plaintiffs’ amended complaint commenced on April 10. At trial, Francis Ferrone, co-owner of O’Hare Express, testified that the nature of the 1984 contract was to run a shuttle bus service along a 1.210-mile route between Terminal No. 4 and the hardstand where the airplanes were located. He stated that the City specified the type and number of buses and provided schedules of flight arrivals and departures.

Berry Morris, assistant manager of Terminal No. 4 and manager of vehicle maintenance, stated that the bus route would be the same for anybody submitting a proposal under the RFP. He further stated that there was no difference between what Keeshin was going to be providing and what O’Hare Express provided.

Mary Rose Loney testified on behalf of the City that the O’Hare Express buses were not meeting the arriving planes in a timely manner and that O’Hare Express was unable to respond adequately to the extreme time pressures created by an increasing volume of traffic and changing flight schedules. She stated that when she began her position with the City on December 4, 1989, the City had already decided to use the RFP process instead of the sealed bid process, and that negotiations with Keeshin began in early January 1990. On March 14, 1990, the City concluded negotiations with Keeshin. Loney further stated that taxpayer money was not involved in the shuttle bus contract because the airlines paid for the service.

Lawrence Calhoun, an auditor for the City of Chicago, testified that in January of 1989, the City began to reevaluate the bus contract and to discuss ways in which on-time performance could be improved and in which safety could be enhanced. He testified that O’Hare Express miscalculated its proposed costs for annual service and that the actual cost for O’Hare Express would have been $3,463,623 rather than $2,723,087, approximately $320,000 lower than Keeshin’s cost.

Paul Spieles, assistant purchasing agent for the City, testified that the City and the Department of Aviation held meetings in July and August 1989 and determined that the most important features of the shuttle bus contract were superior performance and the quality of the provider. Thus, Spieles concluded, competitive bidding would not be required, and the City was therefore exempt from engaging in competitive bidding under section 8 — 10—4 of the purchasing act. (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—4.) Spieles stated that the shuttle bus contract had features similar to “professional services” which are excluded from competitive bidding under section 8 — 10—4. Spieles recommended that the City utilize the RFP process for the new contract instead of sealed bidding because cost reimbursement was not available under a sealed bid contract. Spieles stated that cost reimbursement would enable the City to pay for the “actual costs” of the service as they arose, and that under such a payment procedure, the City could obtain the most qualified and capable contractor.

McNare Grant, Jr., former first deputy purchasing agent for the City, testified as a rebuttal witness for the plaintiffs. He stated that during his tenure with the City, he knew of no other situation where a bid contract was changed to a RFP. He further stated that under a sealed bid, a contractor can be paid through a cost-reimbursement type of procedure.

On April 16, the trial judge ruled in favor of the defendants. The trial court found the City exempt from engaging in competitive bidding for the shuttle-bus contract pursuant to section 8 — 10—4 of the purchasing act.

On May 11, plaintiffs amended count II and added count III for breach of contract. In response, both the City and Keeshin filed motions to dismiss count II and to transfer count III to the law division. On July 26, the trial court dismissed count II, finding that plaintiffs failed to state a cause of action, and transferred count III to the law division. Plaintiffs originally filed two separate, timely notices of appeal of the trial court’s finding and orders, and the appeals have been consolidated by this court.

The central issue in this case is whether the City properly complied with the purchasing act in awarding the shuttle-bus contract to Keeshin. Plaintiffs contend that the trial court erred in finding the City exempt from competitive bidding. We agree.

The Illinois General Assembly has mandated that the City of Chicago is required to follow certain procedures when awarding contracts. These procedures are described in Division 10 of the purchasing act, which describes the requirements for “Purchasing and Public Works Contracts in Cities of more than 500,000.” (Ill. Rev. Stat. 1989, ch. 24, pars. 8 — 10—1 to 8 — 10—25.) Among other requirements, the City must engage in competitive bidding in awarding contracts. Section 8 — 10—3 of the purchasing act states:

“Except as otherwise herein provided, all purchase orders or contracts of whatever nature, for labor, services or work, the purchase, lease, or sale of personal property, materials, equipment or supplies, involving amounts in excess of $10,000, made by or on behalf of any such municipality, shall be let by free and open competitive bidding after advertisement, to the lowest responsible bidder ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3.)

Section 8 — 10—4 provides an exception to section 8 — 10—3 as follows:

“Contracts which by their nature are not adapted to award by competitive bidding, such as but not limited to contracts for the services of individuals possessing a high degree of professional skill where the ability or fitness of the individual plays an important part, contracts for supplies, materials, parts or equipment which are available only from a single source *** shall not be subject to the competitive bidding requirements of this Article.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—4.

Our supreme court has consistently stated that the fundamental rule of statutory construction is to ascertain and give effect to the true intent and meaning of the legislature. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 194; State v. Mikusch (1990), 138 Ill. 2d 242, 247, 562 N.E.2d 168; County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) If the meaning of a statute is plain and unambiguous, the courts cannot imply any other meaning. (Hernon, 149 Ill. 2d at 194-95; Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 229, 545 N.E.2d 706; City of Decatur v. German (1923), 310 Ill. 591, 595, 142 N.E. 252.) “ ‘There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” Graham, 109 Ill. 2d at 151-52, quoting People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371.

In this case, the statutory language in section 8 — 10—3, i.e., “Except as otherwise herein provided, all purchase orders or contracts *** shall be let by free and open competitive bidding” (emphasis added), clearly indicates the intent of the legislature: that the City is to engage in competitive bidding for all contracts. (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3.) Section 8 — 10—4 is similarly clear in describing what contracts do not require competitive bidding, i.e., “contracts for the services of individuals possessing a high degree of professional skill where the ability or fitness of the individual plays an important part." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 24, par. 8-10-4.

The purposes behind requiring governmental units to engage in competitive bidding are to “ ‘[i]nvite competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable.’ ” (Smith v. F.W.D. Corp. (1982), 106 Ill. App. 3d 429, 431, 436 N.E.2d 35, 36, quoting 10 E. McQuillin, Municipal Corporations §29.29, at 302 (3d ed. 1981).) Historically, competitive bidding statutes in Illinois have not authorized the unbridled discretion of the municipality in awarding contracts. For example, in City of Chicago v. Hanreddy (1902), 102 Ill. App. 1, aff’d (1904), 211 Ill. 24, the successful contractor in a competitively bid sewer construction contract abandoned the work before completion, and the City chose to complete the construction using hired day laborers. (Hanreddy, 102 Ill. App. at 6.) The Illinois Supreme Court held that the City was required to engage in competitive bidding under section 50 of article 9 of the City and Villages Act of 1872, which required competitive bidding for all municipal contracts in excess of the statutory amount of $500:

“The language of the section is, ‘any work or other public improvement, when the expense thereof shall exceed $500, shall be let to the lowest responsible bidder.’ No discretion is thereby conferred upon the city or any of its officers as to whether the work or improvement shall be constructed under contract or by day labor ***.
*** To hold that the statute does not apply to an unfinished public improvement *** would be to permit contracts for public improvements to be let to irresponsible parties, which *** would open wide the door to fraud and destroy competition, and enable city officials to do indirectly what in express terms they are prohibited from doing by the statute. *** The statute ***does not authorize the municipality to complete the improvement by day labor ***. To hold otherwise would be to nullify the statute.” (Emphasis added.) (Hanreddy, 211 Ill. at 32-33.)

The teachings of Hanreddy are still with us. See, e.g., Inskip v. Board of Trustees of University of Illinois (1962), 26 Ill. 2d 501, 514, 187 N.E.2d 201, 208 (city has no discretion where a statute requires that contracts for “work or other public improvement” be let by competitive bidding); M.A.T.H., Inc. v. Housing Authority (1976), 34 Ill. App. 3d 884, 341 N.E.2d 51 (statute does not authorize housing commission to renegotiate a contract without competitive bidding).

In support of the contention that the City had the discretion to choose between the two sections of the purchasing act in awarding the shuttle bus contract, the City relies upon the only two cases interpreting section 8 — 10—4, Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785, and People ex rel. Adamowski v. Daley (1959), 22 Ill. App. 2d 87, 159 N.E.2d 18. Neither of these cases is persuasive, however, as both cases are distinguishable from the present case.

In Hassett, the contract at issue concerned the storage and cartage of election equipment. The contractor admitted, and the board agreed, that the storage and cartage of election equipment required a high degree of professional skill. (Hassett, 69 Ill. App. 3d at 982, 387 N.E.2d at 791.) The contract required, inter alia, the safe storage of 1,300 voting machines and the safe delivery of voting machines and other election equipment to polling places for use on election days. (Hassett, 69 Ill. App. 3d at 981.) These services were to be performed six times for the six elections scheduled during the term of the contract. (Hassett, 69 Ill. App. 3d at 981.) The court held that the contract was of a nature “not adapted to award by competitive bidding,” because it required, among other things, “near perfect performance under extreme time pressures.” The court noted:

“[T]he failure of a contractor to perform his obligations properly could disenfranchise registered voters in an area and do irreparable damage to an election.” Hassett, 69 Ill. App. at 982.

In the present case, there has been no agreement by the parties, nor is there any evidence in the record, that a shuttle bus service requires any particular degree of professional skill. Mary Rose Loney testified at trial that the contractor must respond adequately to the extreme time pressures created by an increasing volume of traffic and changing flight schedules and that the City was dissatisfied with the past performance of O’Hare Express. Paul Spieles testified that the shuttle bus service required the “most qualified” and “most capable” contractor and that such quality control could not be assured through competitive bidding.

The record reveals that the contract in the present case requires the contractor to transport arriving passengers from the plane to Terminal No. 4 without delay. The record does not reveal, however, any facts which show how the transportation of passengers one and two-tenths of a mile by bus requires the “high degree of professional skill” which would exempt the contract from competitive bidding under section 8— 10 — 4. Violation of airline passengers’ constitutional rights is not a risk apparent here.

The City’s further attempt to show that the shuttle bus service was similar to the “professional services” exempt from competitive bidding in several cases outside of the jurisdiction is unavailing. (See, e.g., Autotote Ltd. v. New Jersey Sports & Exposition Authority (1981), 85 N.J. 363, 427 A.2d 55 (highly technical and scientific computer services); General Engineering Corp. v. Virgin Islands Water & Power Authority (3d Cir. 1986), 805 F.2d 88, 95 (financial advising services); Curtis Ambulance of Florida, Inc. v. Board of Commissioners (10th Cir. 1987), 811 F.2d 1371 (ambulance services).) The City has not indicated how any of the service contracts described in these cases are similar in any way to the shuttle bus contract at issue here.

Adamowski is similarly distinguishable. There, the plaintiff sought to declare void a contract for a rental car concession at Midway Airport because the City did not award the concession by competitive bidding. (Adamowski, 22 Ill. App. 2d at 90.) Although section 22A — 3 of the municipal purchasing act (Ill. Rev. Stat. 1949, ch. 24, par. 22A — 3) required competitive bidding in municipal contracts, the court held the contract valid because section 22A — 4 (Ill. Rev. Stat. 1949, ch. 24, par. 22A — 4) explicitly authorized the City to grant concessions without engaging in competitive bidding. The court found that interpreting the statute to require competitive bids where an exception is clearly stated would be “restrictive.” Adamowski, 22 Ill. App. 2d at 91-92.

In the present case, there is no specific statute providing that an airport shuttle bus service contract may be let without competitive bidding. Although the City argues that the contract is not payable by the taxpayers’ monies, the City does not contend that the contract was improperly let under the City’s authority. Moreover, the purchasing act does not exclude contracts which involve O’Hare airport expenses. Section 8 — 10—3 is clearly broad enough to include the municipal contract at issue here.

The City’s further argument that cost-reimbursement compensation is only available through the RFP process is unconvincing. McNare Grant, Jr., the former first deputy of purchasing for the City, testified that cost reimbursement could be utilized in a sealed bid contract.

The City correctly states that the court must defer to the discretion of municipal officials except where fraud, corruption or gross injustice is shown. (Arnold v. Engelbrecht (1987), 164 Ill. App. 3d 704, 518 N.E.2d 237; Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 377 N.E.2d 287.) However, the presumption of discretion is diminished here in the face of the City’s failure to supply the court with sufficient facts to support its actions. It is not apparent from the record how a shuttle bus service contract calls for the type of professional services defined as not adaptable to competitive bidding under section 8 — 10—4. Further, the statute does not grant municipal officials the authority to choose which provision to apply in letting a municipal contract as involved herein. We conclude that the City failed to properly comply with section 8 — 10—3 of the purchasing act in awarding the shuttle bus contract to Keeshin. Therefore, we reverse the trial court’s finding that the City had the discretion to award the contract under section 8 — 10—4 as contrary to the manifest weight of the evidence. Klaskin v. Klepak (1989), 126 Ill. 2d 376, 389, 534 N.E.2d 971, 976.

In light of the foregoing, we find that the trial court erred in dismissing count II of plaintiffs’ amended complaint for failure to state a cause of action. The trial court dismissed count II of both plaintiffs’ complaint and amended complaint on the grounds that the contract was properly awarded without competitive bidding; thus, favoritism could not be properly stated as a cause of action. See Hallett v. City of Elgin (1912), 254 Ill. 343, 346, 348, 98 N.E. 530 (courts cannot interfere, in the absence of fraud, with the exercise of the official discretion of a municipality in awarding contracts); but cf. Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546; Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969, 972, 382 N.E.2d 1374 (“If a discretionary power is exercised with manifest injustice or if a palpable abuse of discretion is clearly shown, mandamus will issue”).

The complaint must be viewed as a whole and construed liberally with a view toward doing substantial justice between the parties. (Wolcowicz v. Intercraft Industries Corp. (1985), 133 Ill. App. 3d 157, 478 N.E.2d 1039.) On a motion to dismiss, all well-pleaded facts in the complaint will be regarded as true and all reasonable inferences from them will be considered as correct. (Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483, 530 N.E.2d 468.) If the facts demonstrate any possibility of recovery under the theories alleged, the order dismissing the complaint will be reversed. Philip I. Mappa Interests, Ltd. v. Kendle (1990), 196 Ill. A.pp. 3d 703, 708, 554 N.E.2d 1008.

In the present case, plaintiffs allege that the City showed favoritism and bias in electing to award the contract to Keeshin without competitive bidding, and cite numerous facts in support of their allegations. Such allegations are clearly sufficient to withstand a motion to dismiss under section 2 — 615 of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.

For the reasons stated above, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

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

      But see Yellow Cab of Cleveland, Inc. v. Greater Cleveland Regional Transit Authority (1991), 72 Ohio App. 3d 558, 595 N.E.2d 508 (contract to provide special transportation services for the handicapped and elderly is not a personal services contract exempted from competitive bidding under Ohio law, and city transit authority did not have discretion to choose method of procurement of contract to provide such services).


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    SAMELLA EDWARDS, Plaintiff-Appellant, v. ESTATE OF CLARENCE HARRISON et al.,

       Defendants-Appellees (Roosevelt Thomas, Appellant).
    First District (2nd Division)
    No. 1—90—0537
    Opinion filed September 1, 1992.
    Rehearing denied October 15, 1992.

      William T. Rodeghier, of Chicago, for appellant Samella Edwards.
    William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for appellant Roosevelt Thomas.
    Sachnoff & Weaver, Ltd., of Chicago (Stuart J. Chanen and Christine M. Bodewes, of counsel), for appellee.

      We note that although the estate of Clarence Harrison has been made a defendant, it was established at the trial level that no such estate was ever opened and that an appearance was entered on behalf of Sonjia Renee Harrison only.

   JUSTICE SCARIANO

delivered the opinion of the court:

Samella Edwards (Edwards) and Roosevelt Thomas (Thomas) appeal from the judgment of the circuit court which granted attorney fees and costs against them and in favor of defendant Sonjia Renee Harrison (defendant). (Ill. Rev. Stat. 1987, ch. 110, par. 2— 611.) Edwards and Thomas contend that the imposition of sanctions was an abuse of the trial court’s discretion.

On April 25, 1988, Edwards, by her attorney, Thomas, filed a complaint to quiet title and for injunctive relief. In count I she alleged that she owned and was in possession of certain improved Chicago real estate by virtue of an oral agreement between Sa-lathiel Walden, Clarence Harrison, and herself, in which she “gave *** Mr. Harrison the money *** to clear the title of all back taxes and Mr. Harrison agreed to convey the premises back to [her] once he received a clear tax deed.” Edwards further claimed that on the same day that he died, Harrison “received [a clear, 1984] tax deed to the property and delivered the original to [her].” In count II she alleged that she also owned “valuable personal property located on the premises,” and that “on information and belief, *** defendants [were] destroying, selling and otherwise disposing of [her] personal property.” The complaint was signed by Thomas and verified by Edwards.

Defendant moved to dismiss Edwards’ complaint, contending that any alleged oral agreement was unenforceable under the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1 et seq.). Defendant also moved for sanctions pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), attaching to her motion excerpts from Edwards’ deposition in which she stated that she had never seen the complaint and that she claimed to own the property by virtue of both the 1984 tax deed and a 1987 quitclaim deed from Harrison. Edwards also stated in her deposition that she did not see Harrison on the day he died, and that she owned no personal property on the disputed premises. Attached as an appendix to defendant’s memorandum in support of her motion for summary judgment was a letter dated August 7, 1988, to defendant’s attorney from Steven C. McKasson, a professional document examiner, stating that in his opinion, Harrison’s purported signature on the 1987 quitclaim deed was not genuine.

On August 10, 1988, Edwards filed an amended complaint alleging that as proof of the above-described oral agreement, “plaintiff tendered to Jerome Wade the sum of Ten Thousand Six Hundred and Ninety-Four ($10,600.94) [sic] for an assignment of the rights to pursue a tax deed in the name of Clarence Harrison.” Edwards also alleged that Harrison “delivered [to her] the original [1984] tax deed, as well as the [1987] quit claim deed conveying the property to [her],” on the date of his death. Count II still alleged that, “on information and belief, *** defendants [were] destroying, selling and otherwise disposing of [her] personal property.” Defendant moved to dismiss Edwards’ amended complaint, again contending that the oral agreement alleged in count I was unenforceable under the Statute of Frauds, and that Harrison’s purported signature on the 1987 quitclaim deed was a forgery. On October 11, 1988, the trial court dismissed count I with leave to amend, and dismissed count II with prejudice.

On February 7, 1989, Edwards filed a second amended complaint, alleging that by virtue of a 1984 quitclaim deed from Walden and a 1987 quitclaim deed from Harrison she was the owner of the land in question. Defendant moved for summary judgment, contending that, as a matter of law, (1) the 1984 Walden deed was insufficient to establish her ownership in the property, since she admits that the property was sold pursuant to a subsequent tax sale to Harrison, (2) the 1987 Harrison deed was void because his signature had been forged, and (3) the 1984 tax deed did not entitle Edwards to the property because the deed was in Harrison’s name only. Attached as an appendix to defendant’s memorandum in support of her motion for summary judgment was McKasson’s sworn affidavit stating that Harrison’s signature was a forgery. On the same day defendant also answered Edwards’ second amended complaint, setting forth two affirmative defenses: (1) that any property rights which Edwards had in the premises in 1984 were extinguished by the subsequent tax sale of the property; and (2) the 1987 quitclaim deed was void because Harrison’s purported signature thereon was a forgery.

Edwards responded to defendant’s motion by relying on Walden’s discovery deposition regarding the authenticity of Harrison’s signature to support her contention that there was a genuine issue of material fact as to whether the signature on the 1987 quitclaim deed was genuine. On March 28, 1989, the trial court issued its memorandum opinion, holding that Edwards’ “ ‘response’ to defendant’s motion for summary judgment [was] legally insufficient” because “the mere attachment of a party’s ‘verification’ to a response to a motion for summary judgment does not bring the response in conformity with Supreme Court Rule 191” (107 Ill. 2d R. 191), and requested that an order be drafted consistent with the ruling therein. Although his “instinct [was] to grant summary judgment originally,” the trial judge “interpreted] respondent’s evidence liberally” and declined to rule that Edwards had admitted that Harrison’s signature was a forgery, and set the matter for an evidentiary hearing as to the forgery issue only.

The evidentiary hearing was held on May 2, 1989, and although McKasson testified in behalf of defendant, Edwards produced no witnesses to attest to the authenticity of Harrison’s signature, but instead, “rel[ied] on our response to defendants’ motion for summary judgment.” The court responded, however, that because it was an evi-dentiary hearing, it could not “read affidavits and accept those, unless there is a stipulation to that effect.” Thus, as to the issue of authenticity, Edwards had only the 1987 quitclaim deed itself to rely upon. As a result of this hearing, the court ordered “plaintiff’s complaint *** dismissed with prejudice.”

On May 23, 1989, pursuant to section 2 — 611, defendant again moved for sanctions against Edwards and Thomas, alleging that they had filed a series of “false and fraudulent” complaints which were not grounded in fact and were not supported by existing law. In particular, defendant alleged that Thomas should have discovered that Edwards’ claim of ownership was barred by the Statute of Frauds, that a subsequent tax sale extinguished any ownership rights which Edwards may have had by virtue of Walden’s 1984 quitclaim deed, and that the signature on the 1987 quitclaim deed, purporting to be Harrison’s, was a forgery. Edwards responded that the underlying theory of her case had never changed, e.g., that her oral agreement was supported by consideration to a third party who had purchased the taxes to the property. Edwards also alleged in her response that prior to the evidentiary hearing, Thomas had hired a private investigator to locate the notary public who notarized the deed, but had been unable to locate him. Nowhere in the record, however, does Thomas provide the name of the investigator, or an affidavit from the investigator, or a description of the steps the investigator undertook to locate the notary public. Edwards also claimed that she was financially unable to hire her own handwriting expert.

On October 2, 1989, the court granted defendant’s motion for sanctions, noting the following:

“2 — 611 requires that a lawyer make a reasonable inquiry into the law and the facts before filing a complaint. There is no requirement or test for subjective bad faith and good faith is not a defense to imposition of 2 — 611 sanctions.
The pleading is not well grounded in fact if the pleading contains untrue statements of fact which the attorney knew or reasonably should have known that all, that the complaint with reference to the validity of the quit claim deed contained untrue statements of fact.
Had Mr. Thomas conducted a reasonable inquiry into the facts before filing the complaint, he would have discovered (a) That the signature was suspect to a lay person’s eyes; (b) Attempt to corroborate the testimony of the single witness who claimed to know Mr. Harrison’s signature; (c) Produce those people at the trial; and frankly (d) If finances warrant it, produce a handwriting expert.
I want to make my position clear here to the Appellate Court. What I am saying is that this signature on the deed compared to genuine signatures of Mr. Harrison were so grossly disproportionate that it created a duty on a lawyer’s part to make reasonable inquiry as to the genuineness of the signature.
Second of all, once the defendant raised the affirmative defense of forgery, which admittedly was not raised until obviously the complaint was filed, the plaintiff’s counsel had a further obligation to inquire further, further than his client’s statements as to the genuineness of the signature, which was not done at least from a production of evidence point of view.”

On December 13, 1989, the court “deducte[d] $8,070.25 from the [claimed] fees for a total of $20,824.75, and $853.64 from the [requested] costs, for a total of $1990.56.”

Pursuant to Edwards’ motion to clarify, on January 19, 1990, the court issued a memorandum opinion stating that Edwards and Thomas were jointly and severally liable for the amount of sanctions pursuant to Monument Builders of Greater Kansas City, Inc. v. American Cemetery Association (D. Kan. 1986), 629 F. Supp. 1002, 1013, rev’d on other grounds (10th Cir. 1989), 891 F.2d 1473, for “when the attorney and client share responsibility for litigation strategy that violates the rule, the court will impose joint and several liability.” On February 21, 1990, Edwards filed her notice of appeal. Edwards and Thomas filed separate briefs, each on his or her own behalf.

I

In his brief Thomas claims that the trial court erred in applying section 2 — 611 instead of Supreme Court Rule 137. (134 Ill. 2d R. 137.) Defendant responds, however, that the court could not have applied Rule 137 because “[constitutional law, as well as common sense, dictate that a court cannot apply a new rule — especially one involving sanctions — to conduct that occurred before the new rule was even announced.” We disagree. Rule 137 became effective August 1, 1989, and preempted all matters previously governed under section 2 — 611. It is identical to former section 2 — 611 except for three minor changes: (1) Rule 137 makes the imposition of sanctions discretionary rather than mandatory; (2) Rule 137 requires a trial judge to set forth specific reasons for sanctions in an order; and (3) unlike section 2— 611, Rule 137 has no provisions regarding insurance companies.

In support of her contention, defendant cites Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303. Although Rivard notes a general “presumption of prospectivity,” it also notes that “the presumption of prospectivity does not apply to changes in procedure or remedies. When a change in the law changes procedure alone, it will be construed as retroactive so long as that is what the legislature intended.” (Rivard, 122 Ill. 2d at 310.) More important, this court has recently held in Sajdak v. Sajdak (1992), 224 Ill. App. 3d 481, 494, that even though the defendant’s pleadings there were filed

“before the adoption of the rule, we believe that the rule should be given retrospective application since it imposes no greater duty on the parties than did section 2 — 611. The only change relevant to the case before us is a procedural one — the requirement that the judge make specific findings in his order imposing sanctions.”

(But see Cmarko v. Fisher (1990), 208 Ill. App. 3d 440, 444 (because the complaint had been filed prior to the effective date of Rule 137, the court held that amended section 2 — 611 controlled); In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1008-09, appeal denied sub nom. Gualandri & Co. v. Smith (1991), 136 Ill. 2d 544 (because all relevant pleadings, except one, had been filed prior to the effective date of Rule 137, the court “le[ft] it to the circuit court on remand to determine which of section 2 — 611 and Rule 137 apply to which of the papers filed”).) Accordingly, we find that under these circumstances Rule 137 is capable of retroactive application and that it was the appropriate measure to apply in the case at bar.

We also find, however, that although the trial court did not explicitly state that it was following the requirements of Rule 137, the standards it applied were consonant with the rule. In particular, the judge “set forth on the record and with specificity” the reasons for imposing sanctions (In re Estate of Smith, 201 Ill. App. 3d at 1010), in that he made specific findings regarding Thomas’ and Edwards’ failure to ensure that their pleading was well-grounded in fact.

II

On appeal Edwards and Thomas contend that the trial court abused its discretion (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334) in awarding sanctions against them. Rule 137, as did its predecessor section 2 — 611, imposes on both client and counsel the duty to make reasonable inquiry into the facts to support a legal claim or defense before pleadings and other legal papers are filed with the court. (Lewy, 211 Ill. App. 3d at 334; see also Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622.) Generally, an attorney cannot simply rely on the client’s representations when additional information is readily obtainable from third parties, but instead,

“must objectively review the information submitted by his client, to determine if it factually supports the client’s claim; [and] if such review reveals important discrepancies, inconsistencies, or gaps in the information provided, the attorney must investigate further before filing the relevant legal paper with the court.” (Anderson, 177 Ill. App. 3d at 625.)

Subjective good faith is not sufficient to meet the burden of Rule 137; rather, a court must use “an objective standard to determine whether a particular inquiry was reasonable, based upon the circumstances that existed at the time the pleading was filed.” (Cmarko, 208 Ill. App. 3d at 445.) This standard is met when the relevant legal paper has a “reasonable basis in fact.” Tarkowski v. County of Lake (7th Cir. 1985), 775 F.2d 173, 176.

A

We conclude that the trial court did not abuse its discretion in awarding attorney fees against Thomas. Even if the outcome of this matter would have been different had it been decided originally by this court, such is not the standard of review we are required to employ. Rather, the standard, as enunciated in Lewy (211 Ill. App. 3d at 334-35), is that if “reasonable persons could differ as to the propriety of the trial court’s actions, then a reviewing court cannot say that the trial court exceeded its discretion.” Thus, it would not be meet for us to substitute our judgment for that of the trial court.

Before Thomas filed the second amended complaint, which relied, in part, upon the 1987 quitclaim deed from Harrison to support Edwards’ claim to the property, defendant notified him that there was a strong likelihood that Harrison’s signature was a blatant forgery, showing him the report from McKasson which indicated glaring discrepancies in a comparison of the signatures. Nevertheless, Thomas chose not to heed the evidence and subsequently filed the second amended complaint, still relying on the validity of the 1987 quitclaim deed from Harrison.

Even though an attorney is not obligated to voluntarily dismiss his lawsuit merely because the opposing party presents purported evidence of a crucial fact in his pleadings (Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387, 391-92), under the facts at bar, once Thomas was aware of “important discrepancies, inconsistencies, or gaps in the information provided,” it became his responsibility to “investigate further before filing the relevant legal paper with the court.” (Anderson, 177 Ill. App. 3d at 625.) Although Thomas asserts that he made a reasonable inquiry into the validity of Harrison’s signature before he filed his amended pleading, at no time did he ever present any evidence in support of his efforts. First, at the evidentiary hearing, he represented to the court that he had hired an investigator to locate the notary who witnessed Harrison’s signature on the deed, but Thomas failed to offer into evidence the name of the investigator, the efforts the investigator undertook to locate the notary, or the results of his search.

Second, Thomas asserted that he could reasonably believe that Harrison’s signature on the deed was genuine because of Salathiel Walden’s discovery deposition testimony attesting to its validity. The critical portion of Walden’s deposition testimony, however, is hopelessly unpersuasive. In response to the question, “And does that look like his signature that you have seen before?” Walden answered, “Close.” Indeed, defendant presented two witnesses to contradict Walden’s statement: Shinell Lasley, Harrison’s ex-wife, and Stephen McKasson, a handwriting expert. Moreover, McKasson provided a detailed and irrefutable analysis to support his conclusion that Harrison’s signature was a forgery. Thus, even if the trial judge had considered Walden’s deposition, the evidence indefeasibly proved that the signature was forged.

Thomas also attempts to buttress his argument with the allegation that Edwards had paid $10,694 to Wade in return for a tax deed in Harrison’s name, but the record does not support this contention. The record reflects only that Edwards withdrew $10,694.49 from the Inland Steel Credit Union. Nowhere, however, is there any evidence that this amount was in turn received by Wade or that it was given to him for the purpose of obtaining a tax deed to the property in question.

We also deem it irrelevant to determining the propriety of sanctions that the trial court did not grant summary judgment in favor of defendant. The trial judge exhibited extraordinary patience in allowing plaintiff multiple opportunities both to plead and to prove her case. Indeed, he viewed Walden’s deposition testimony in an extremely favorable light in order to reach the conclusion that it was necessary to hold a hearing on the issue of genuineness; but, merely because the trial court refused to grant summary judgment on this issue does not mean that Thomas conducted a reasonable inquiry into the validity of Harrison’s signature and therefore had a reasonable basis for relying on the 1987 quitclaim deed to support his claim. Summary judgment and Rule 137 address different issues; summary judgment is permissible where no genuine issue of material fact is present. Rule 137 is applicable, however, where the person signing the legal paper failed to make a reasonable inquiry into the factual and legal basis for the claims made in that document.

The means are many and varied by which a party may be able to create an issue of fact and .defeat a motion for summary judgment and still not meet Rule 137’s reasonable inquiry requirement. By its denial of summary judgment the trial court enabled Thomas to produce evidence at the hearing to rebut defendant’s evidence that Harrison’s signature was forged; yet, Thomas merely demonstrated how totally lacking his efforts were in getting to the truth of the matter — to be sure, it was entirely appropriate for the trial judge to conclude that Thomas was arrantly incredible as to this all-encompassing issue. Indeed, at the close of the hearing on May 2, 1989, the trial judge stated, “I am outraged at this case. It has a strong odor of fraud on the court,” and he expressed the opinion that if the deed was in fact notarized, “there is no question that *** he did it contrary to the law.” After even the most cursory review of the record, we can, without any tedious cerebration, agree with the judge’s conclusions.

We therefore hold that once Thomas received notice of the exceedingly strong probability that Harrison’s signature was not genuine, he was under a duty to make reasonable inquiry into the validity of the signature. We are not convinced that Thomas made even the flimsiest record of his attempts to hire an investigator to locate the notary who witnessed Harrison’s signature, and we do not agree that Thomas was justified in relying upon the quitclaim deed itself, along with Walden’s totally forceless deposition testimony appended to plaintiff’s response to defendant’s motion for summary judgment, to contradict the testimony of Harrison’s former wife and the conclusions presented from the witness stand by McKasson, an expert in such matters. For these reasons, we hold that the trial court did not abuse its discretion in awarding sanctions against Thomas.

B

We also find, in addition to the reasons stated above, that the trial court did not abuse its discretion in awarding sanctions against Edwards. Rule 137 places the burden of reasonable inquiry on clients as well as on their attorneys by virtue of the fact that their signatures appear on the relevant legal papers. (Lewy, 211 Ill. App. 3d at 334.) Thus, because Edwards verified both the first and second amended complaint, she was under the same duty as Thomas to make reasonable inquiry regarding the genuineness of Harrison’s signature. More so than Thomas, Edwards should have had reason to question the validity of the deed, since she had been Harrison’s business partner for quite a while and thus would have been quite familiar with his genuine signature.

C

Having found both Thomas and Edwards liable under Rule 137, we also find that the trial court was within its discretion in making their liability joint and several. See Dreisilker Electric Motors, Inc. v. Rainbow Electric Co. (1990), 203 Ill. App. 3d 304, 313; Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 793; and National Wrecking Co. v. Midwest Terminal Corp. (1991), 234 Ill. App. 3d 750, 601 N.E.2d 999.

Ill

Finally, in oral argument before this court defendant sought imposition of costs and fees incurred in defense of this appeal; but since she has not filed an appropriate motion or petition in this court, and inasmuch as she did not argue it in her brief, we decline to entertain the issue sua sponte.

For the above-stated reasons, we affirm the decision of the trial court.

Affirmed.

DiVITO and McCORMICK, JJ., concur.

      The tax deed was dated in 1984 and recorded in 1987.

      The quitclaim deed was dated in 1987 and recorded in 1988.

      In later pleadings, plaintiff refers to this amount as “$10,694.00.”


author: PRESIDING JUSTICE EGAN

text:
    WAGNER EXCELLO FOODS, INC., Plaintiff-Appellant, v. FEARN INTERNATIONAL, INC., Defendant-Appellee.
    First District (6th Division)
    No. 1—91—1566
    Opinion filed September 4, 1992.

      Norman P. Jeddeloh and Michael A. Kraft, both of Siegan, Barbakoff & Gomberg, of Chicago, for appellant.
    Barry T. McNamara and David P. von Ebers, both of D’Ancona & Pflaum, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Wagner Excello Foods, Inc., appeals from orders dismissing its complaints against the defendant, Fearn International, Inc. The first complaint alleged breach of contract and promissory estoppel. After that complaint was dismissed, the plaintiff filed an amended complaint alleging only breach of contract. That amended complaint was also dismissed.

Because the complaints were dismissed pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615), the factual allegations of the complaints are taken as true. Our recitation of the facts is based on the complaints.

The plaintiff and the defendant entered into a five-year agreement on February 1, 1985. Under the terms of the agreement, the plaintiff agreed to manufacture for the defendant various pasteurized fruit drink concentrates with a juice content of less than 35%. The plaintiff was to manufacture the concentrates from formulas supplied by the defendant and was to package the concentrate according to the defendant’s specifications.

The agreement contained minimum quantity purchase requirements: the defendant was to purchase 150,000 cases of concentrate of assorted varieties the first year, 300,000 cases the second year, and at least 450,000 cases in each of the final three years.

The agreement did not establish the price at which the concentrate would be sold. Instead, it provided that the plaintiff and the defendant would review the price per case of each product every four months. Thirty days before the end of each four-month period, the plaintiff was required to notify the defendant of, and substantiate, any proposed price changes for the upcoming period. If the defendant failed to object to the proposed price change, the new price would go into effect. If the defendant objected, however, the plaintiff and the defendant would seek to “mutually agree” on the price change. If the plaintiff and defendant were unable to agree on a price, the agreement terminated 30 days after the end of the four-month period. At the end of five years, the agreement would automatically extend on a year-to-year basis until one party terminated through written notice between 120 and 90 days before the expiration of the agreement or its extension.

After the agreement was signed, the plaintiff hired additional employees and bought equipment, including machinery, necessary to package the concentrate as the defendant instructed. The purchase of the equipment and additional employees cost the plaintiff $900,286. The plaintiff purchased the equipment and hired the additional employees “solely in contemplation of a continuing business relationship” with the defendant.

During the first year of the agreement, the defendant purchased only 28,823 cases of concentrate from the plaintiff, far short of the agreed 150,000 cases (19.2% of the required amount); in the second year, the defendant purchased only 35,927 cases (12% of the required amount); in the third year, the defendant purchased 40,196 cases (8.9% of the required amount).

Near the end of the third year of the agreement, the plaintiff and defendant executed a revised agreement on January 20, 1988. The revised agreement stated that it did not alter or modify the previous agreement except as provided in the revised agreement. The revised agreement stated that it evolved from several meetings between the parties and reflected “understandings between the parties as to pricing and other conditions” which were noted in the revised agreement. We judge that the primary purpose of the revised agreement was to establish a method for fixing orange juice concentrate prices.

Specifically, the parties agreed that “[cjoncentrate prices were rising with [ojrange [juice] experiencing the largest increases” and that the parties would “discuss pricing and conditions outside the calendar dates specified in existing agreements.” The agreement also contained the following language:

“We are satisfied with the volume of sales we have achieved on juice products[;] however, Fearn believes passing cost increases on to its customers at the present time would hurt sales.”

The revised agreement provided that orange juice prices would be determined by the future prices as published by the Wall Street Journal on certain specified dates and that the agreement would expire on December 31, 1988, if notice of termination was given by November 1, 1988. If notice of termination was given after November 1, 1988, the agreement would expire 60 days after either party notified the other of termination.

In the 10 months after the revised agreement was executed, the defendant purchased 32,078 cases (7.1% of the required amount of 450,000). On November 16, 1988, the defendant notified the plaintiff of its intent to terminate their relationship effective at the end of the year. Consequently, the defendant did not purchase any juice for what would have been the fifth year of the initial agreement.

On April 23, 1990, the plaintiff filed a complaint containing two counts: count I was a breach of contract claim which sought in excess of $3 million for profits lost due to the defendant’s failure to meet the minimum purchase guarantee over the entire five years of the agreement; count II was captioned “Quantum Meruit,” but the parties now agree that it was actually a promissory estoppel claim. In this count, the plaintiff alleged that it had “expanded its plant, purchased additional equipment, and retained services of additional employees” in reliance on the defendant’s “promises and representations with respect to volume of total business.” The plaintiff alleged that as a result of this reliance, substantial additional costs were incurred, that the defendant knew of these additional costs, and that the defendant did nothing to prevent the plaintiff from incurring these costs. The plaintiff alleged that the initial agreement’s exclusivity provision prevented it from reducing its dependency on the defendant and sought $900,268 in damages.

The defendant filed a motion to dismiss the complaint under section 2 — 615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) In response to the breach of contract claim the defendant contended that (1) the initial agreement between the parties was merely an agreement to agree as there was no fixed price and the agreement would terminate in the absence of an agreement on price by the parties; (2) the revised agreement constituted a novation of the original agreement; and (3) the plaintiff waived its right to enforce the minimum quantity terms of the agreement.

In response to the plaintiff’s promissory estoppel claim, the defendant contended that the plaintiff had waived its claim or that the revised agreement’s novation of the initial agreement barred recovery.

On October 24, 1990, Judge Alan J. Greiman entered an order dismissing both counts of the plaintiff’s complaint. Judge Greiman found that the plaintiff had alleged a valid contract; that the revised agreement, however, either modified or supplanted the original agreement; and that the particular characterization of the revised agreement was not relevant because, whatever the characterization, the minimum quantity guarantees had been waived. He concluded that the plaintiff had no breach of contract cause of action for any sales prior to the revised agreement. He dismissed the contract claim but gave the plaintiff leave to amend to seek damages for sales after the revised agreement.

Judge Greiman then dismissed the plaintiff’s promissory estoppel claim with prejudice. He determined that the plaintiff’s reliance on the defendant’s promise was not reasonable as a matter of law; he said that it was unreasonable for the plaintiff to expend almost a million dollars in reliance on such short-term contracts.

On October 31, 1990, the plaintiff filed an amended complaint that included only the breach of contract count, which strongly resembled the count dismissed by Judge Greiman, except for the amount of damages sought. In response to the plaintiff’s amended complaint, the defendant filed a second section 2 — 615 motion and again contended that the initial agreement was merely an agreement to agree and that the quantity requirements contained in the agreement were modified by the revised agreement.

On April 15, 1991, Judge Jerome T. Burke dismissed the plaintiff’s amended complaint with prejudice. Judge Burke found the minimum quantity requirements “did not survive the signing of the revised agreement.” Judge Burke stated that the parties’ course of conduct also supported a waiver of the minimum quantity requirements.

The plaintiff appeals Judge Greiman’s order dismissing part of the contract claim and the promissory estoppel claim with prejudice and Judge Burke’s order dismissing the remainder of the contract claim with prejudice. We will first address the appeal of Judge Greiman’s order.

The defendant maintains that there was no contract of five years duration because the price was not settled at the time the agreement was made; instead, every four months the parties entered into a new contract when they agreed to a price. In substance, it is the defendant’s position that the parties actually entered into an agreement to agree which was not a binding contract.

To be enforceable, a contract must show a manifestation of agreement between the parties and be definite and certain in its terms. (Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 578 N.E.2d 981; Trittipo v. O’Brien (1990), 204 Ill. App. 3d 662, 672, 561 N.E.2d 1201.) When material terms and conditions are not ascer-tamable, there is no enforceable contract, even if the intent to contract is present. (Academy Chicago Publishers, 144 Ill. 2d at 29; Penzell v. Taylor (1991), 219 Ill. App. 3d 680, 579 N.E.2d 956.) Under the Illinois Uniform Commercial Code (the Code), a contract for the sale of goods will not fail for indefiniteness, however, “if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.” Ill. Rev. Stat. 1989, ch. 26, par. 2-204(3).

Here, the terms of the agreement are definite. All the essential elements of an agreement are present except for the price of the goods. The absence of the price term is the sole basis for the defendant’s contention that no contract exists.

The Code, as adopted in Illinois, expressly addresses the situation where the parties deliberately leave the price term open. (Ill. Ann. Stat., ch. 26, par. 2 — 305, Illinois Code Comment, at 180-81 (Smith-Hurd 1963).) Section 2 — 305(1) of the Code provides that “[t]he parties if they so intend can conclude a contract for sale even though the price is not settled.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 305(1)); see also Alter & Sons, Inc. v. United Engineers & Constructors, Inc. (S.D. Ill. 1973), 366 F. Supp. 959, 965.) In the case of an open price, the Code provides for a reasonable price at the time of delivery if, among other instances, “the price is left to be agreed by the parties and they fail to agree.” Ill. Rev. Stat. 1989, ch. 26, par. 2-305(1)(b).

Section 2 — 305(4) provides an exception to the recognition of a contract when there is an open price term. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 305(4).) This section provides:

“Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.” (Emphasis added.)

In both section 2 — 305(1) and section 2 — 305(4), the intent of the parties is the dispositive factor in determining whether a contract is present. The plaintiff states that the question of the parties’ intent as to contract formation is a factual question that cannot be decided on a section 2 — 615 motion.

The Code comments emphasize that the language of section 2— 305(1) “if the parties so intend” must be read together with section 2 — 305(4). The comments conclude that whether the parties have intended to enter into a binding agreement “is, in most cases, a question to be determined by the trier of fact.” Ill. Ann. Stat., ch. 26, par. 2 — 305, Uniform Commercial Code Comment, at 182 (Smith-Hurd 1963).

We believe that the complaint alleges an agreement that a fact finder could reasonably conclude manifested an intent of both parties to be bound by the agreement for five years, subject only to the condition subsequent of termination by the failure to agree on the price. (See 2 R. Anderson, Uniform Commercial Code §2 — 305:7, at 497 (3d ed. 1982).) The agreement provided that the plaintiff would not manufacture for sale nor sell to anyone other than the defendant. It also provided that the plaintiff would indemnify and hold harmless the defendant for any claims made against the defendant; that the plaintiff would carry product liability insurance; and that the agreement could not be assigned without the written consent of either party. Acceptance of the defendant’s argument would require that we ignore the other parts of the contract. Most important, the interpretation urged on us by the defendant that, as a matter of law, the parties intended only to enter severable 120-day contracts would render the minimum quantity requirements of the initial agreement meaningless. We agree with Judge Greiman that the complaint alleged a contract.

The case cited by the defendant, Quaker State Mushroom Co. v. Dominick’s Finer Foods, Inc. (N.D. Ill. 1986), 635 F. Supp. 1281, does not support the defendant’s position. In fact, it supports the plaintiff’s position here. In that case, the plaintiff filed a motion for summary judgment which was denied. One of the reasons for the denial was that “[a]t a minimum there [was] a factual issue on this point” of whether the parties “ ‘intend[ed] not to be bound unless the price be fixed or agreed.’ ” (Quaker State, 635 F. Supp. at 1286, quoting Ill. Rev. Stat. 1983, ch. 26, par. 2 — 305(4).) The judge held that a jury must decide that fact question.,

The defendant also maintains that the contract lacks mutuality of obligation and is, therefore, unenforceable, citing Wabash Chemical Corp. v. Scholle Chemical Corp. (1966), 67 Ill. App. 2d 222, 214 N.E.2d 596 (abstract of opinion). That case also does not support the defendant’s position. In Wabash, the agreement provided that if the parties failed to agree on the price, only the seller was excused from its obligations under the contract; the seller could reestablish the contract for the last agreed-upon price by sending notice to the buyer. In the case before us, both parties are excused from performance if the parties do not agree on the price of the goods.

The defendant alternatively argues that, assuming a valid contract, the plaintiff waived his right to the minimum quantity requirements by his conduct and by the revised agreement in February 1988. Reduced to its essentials, the defendant’s argument is that the facts establish waiver, as a matter of law, that is, that the defendant would have been entitled to a directed verdict in its favor if the alleged facts were before a jury.

A waiver is an intentional relinquishment of a known right which may be express or implied from the conduct of the party that has allegedly waived its right. (Ryder v. Bank of Hickory Hills (1991), 146 Ill. 2d 98, 585 N.E.2d 46.) The waiver of a contractual provision may be established by conduct indicating that strict compliance with the provision will not be required. Community Convalescent Center of Naperville, Inc. v. First Interstate Mortgage Co. (1989), 181 Ill. App. 3d 996, 537 N.E.2d 1162.

Both parties cite to section 2 — 208 of the Code, which addresses the course of performance. (Ill. Rev. Stat. 1989, ch. 26, par. 2 — 208.) Subsection 1 of this provision allows the course of performance of the parties to be considered in determining the meaning of the agreement when there have been “repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other.” Ill. Rev. Stat. 1989, ch. 26, par. 2-208(1).

Subsection 2 of section 2 — 208 provides that the “express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance.” Ill. Rev. Stat. 1989, ch. 26, par. 2 — 208(2).

Subsection 3 provides that “such course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance.” Ill. Rev. Stat. 1989, ch. 26, par. 2-208(3).

Relying on subsection 2, the plaintiff maintains that express terms of the contract, that is the minimum requirement provisions, control over any course of conduct. The plaintiff has misconstrued the issue as evidenced by its citation of Consolidated Water Power & Paper Co. v. Louisville Herald (1918), 211 Ill. App. 569 (abstract of opinion), in which the court was called upon to construe an agreement. The issue before us is not the meaning of the language of the minimum requirement provision; the issue is whether the minimum requirement provisions were waived.

The contract between the parties extended over a four-year period and involved at least three opportunities every year where the agreement would not continue unless an agreement on price was reached. The plaintiff knew exactly how much the defendant was buying and that the defendant had not come close to the minimum purchase guarantees established in the agreement during any year of the contract.

On January 20, 1988, with full knowledge that the defendant had not complied with the minimum purchase guarantees, the plaintiff signed an agreement which provided that the parties had agreed that “[w]e are satisfied with the volume of sales we have achieved on the juice products.” The agreement also provided that it “reflects understandings between the parties as to pricing and other conditions as noticed herein, but does not otherwise alter or modify” the initial agreement.

The plaintiff contends that the determination of whether those facts constituted a waiver of the minimum purchase requirements is a question of fact incapable of being decided on a motion to dismiss under section 2 — 615. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) The question of waiver is a question of fact when the material facts are in dispute or when “reasonable minds” differ from the inferences drawn from undisputed evidence. (Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 335 N.E.2d 491.) Where there is no dispute as to the material facts and only one reasonable inference can be drawn from them, the question of waiver is a matter of law. Wells v. Minor (1991), 219 Ill. App. 3d 32, 578 N.E.2d 1337.

Waiver, like estoppel, is an equitable doctrine and in contract law is designed to prevent the waiving party from “lullpng] another into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.” (Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991.) The Code comments are instructive:

“Where it is difficult to determine whether a particular act merely sheds light on the meaning of the agreement or represents a waiver of a term of the agreement, the preference is in favor of ‘waiver’ whenever such construction, plus the application of the provisions on the reinstatement of rights waived (see Section 2 — 209), is needed to preserve the flexible character of commercial contracts and to prevent surprise or other hardship.” (Emphasis added.) Ill. Ann. Stat., ch. 26, par. 2— 208, Uniform Commercial Code Comment, at 156-57 (SmithHurd 1963).

Judge Greiman’s finding of waiver is consistent with the underlying policy of the waiver doctrine. In this case, the agreement could have been terminated every four months if no price was agreed to by the parties. Instead of seeking compliance with the provisions of the contract after the first year, the plaintiff decided to accept the defendant’s inadequate performance. If the plaintiff had informed the defendant at the end of the first year that it would insist on performance of the minimum quantity requirements, the defendant would have been in a position to cut its losses by opting out of the contract. Instead, the plaintiff lulled the defendant into believing that strict compliance would not be required and then “surprised” the defendant by filing suit 17 months after notice of termination for the entire four-year period. Moreover, it is reasonably inferable that the defendant would not have entered into the revised agreement if it had been informed at any time before January 20, 1988, that the plaintiff would insist on compliance with the minimum purchase requirements provision of the original agreement. In our judgment, the course of conduct of the plaintiff in failing to object to noncompliance, coupled with the revised agreement, establishes waiver as a matter of law.

We are aware that a case should not be dismissed pursuant to section 2 — 615 unless the plaintiff could not recover under any of the facts pleaded. We see no distinction in this case, however, between a motion to dismiss or a motion for summary judgment. The facts are not in dispute. (Cf. Aetna Casualty & Surety Co. v. Oak Park Trust & Savings Bank (1988), 168 Ill. App. 3d 1000, 523 N.E.2d 117 (waiver determined by summary judgment upheld).) For these reasons, the order of Judge Greiman dismissing count I is affirmed.

Count II was based on a claim of promissory estoppel. In order to establish a cause of action for promissory estoppel, the plaintiff must prove (1) an unambiguous promise by the defendant to the plaintiff, (2) the plaintiff’s reliance on such promise, (3) that the plaintiff’s reliance was expected and foreseeable by the defendant, (4) that the plaintiff’s reliance was detrimental, and (5) that the plaintiff’s reliance was reasonable and justified. (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 565 N.E.2d 990.) In dismissing the promissory estoppel claim, Judge Greiman held, as a matter of law, that the plaintiff’s complaint should be dismissed because there could be no reasonable reliance by the plaintiff based on the facts alleged in the complaint. The plaintiff maintains correctly that in determining whether the dismissal of a claim is proper, all well-pleaded facts are accepted as true and must be viewed in the light most favorable to the plaintiff. (I K Corp. v. One Financial Place Partnership (1990), 200 Ill. App. 3d 802, 558 N.E.2d 161.) Therefore, the plaintiff argues, whether its reliance on the defendant’s promise was reasonable was a question of fact that should not be decided on a motion to dismiss.

The defendant maintains that the promise it made to the plaintiff was ambiguous and that the judge’s decision that the plaintiff’s reliance on the defendant’s promise was unreasonable as a matter of law was correct. We have already determined that the defendant’s promise was not ambiguous and, therefore, reject that part of the defendant’s argument. But we have also determined that we need not decide whether the plaintiff’s reliance was reasonable, because we have also determined that the order dismissing the promissory estoppel claim should be affirmed, but on a ground not raised by the parties.

We recognize the general rule that points not raised by the parties are waived. That rule is a limitation on the parties, not on the jurisdiction of a reviewing court. The responsibility of a reviewing court for a just result and for the maintenance for a sound and uniform body of precedent may sometimes override the considerations of waiver that stem from the adversarial nature of-our system. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) Because recognition that the plaintiff may maintain a promissory estoppel claim could have far-reaching precedential effect, we deem the general waiver rule inapplicable here.

Count I alleged a breach of the promise to purchase minimum quantities of fruit concentrate and sought damages for lost profits to-talling in excess of $3 million. Count II alleged that the plaintiff bought machinery and hired additional employees at a cost in excess of $900,000 in reliance on the defendant’s promise to purchase minimum quantities; the plaintiff also alleged that it was damaged in excess of $900,000 because of the defendant’s breach of its promise. Thus, the plaintiff pleads two separate causes of action for two separate awards of damages based on the same wrongful act.

We recognize that a party may plead in the alternative. For comparison purposes we refer to Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 565 N.E.2d 990, in which the plaintiff filed a complaint in one count for breach of contract and in another count an action under promissory estoppel. The damages sought under each count were identical: the lost profits and the sums expended by the plaintiff in procuring the contract and in preparing to perform under the contract. It is obvious that the claims were alternative claims. The plaintiff could not properly have claimed recovery under both.

We have held, at the plaintiff’s urging, that count I was based on an unambiguous promise and was an enforceable contract at the time the parties entered into it. That being so, the question before us is whether a party may maintain a breach of contract action and a promissory estoppel claim based on the breach of the same promise. We have found only one Illinois case even analogously in point, Barker-Lubin Co. v. Wanous (1960), 26 Ill. App. 2d 151, 167 N.E.2d 797 (abstract of opinion), which involved a contract dispute about the price. It was the defendant who invoked the doctrine of promissory estoppel. In rejecting the defendant’s claim, the appellate court said this:

“[Promissory estoppel] is a theory of law by which a person may be held liable upon a promise, for which there is no consideration. The theory was that, if the promise is made with the intent that it be relied upon, and the promisee does rely upon it and puts himself in a position where grave injustice would result if the promise is not kept, it may be enforced. This has nothing to do with contract law where there is a consideration, such as mutual promises.
The name, ‘Promissory Estoppel’ is modern, but the doctrine had existed in some jurisdictions for many years. It has not received much attention in Illinois, and we do not go into it further in this case, because the doctrine has never been considered available when the parties have entered into a contract which is binding under contract law. Union Mutual Life Ins. Co. v. Mowry, 96 U.S. 544, 24 L. Ed. 674.” (Emphasis added.) Slip op. at 8.

In addition to Union Mutual Life Insurance Co. v. Mowry, cited in Barker-Lubin, there are cases from other jurisdictions reflecting the same views expressed in Barker-Lubin. In General Aviation, Inc. v. Cessna Aircraft Co. (6th Cir. 1990), 915 F.2d 1038, the plaintiff sued for breach of contract, and later maintained that it could prevail under promissory estoppel. The court of appeals affirmed the district court’s denial of the promissory estoppel claim:

“[The plaintiff’s] theory is that [the defendant’s] oral promises to treat it fairly and equally with other dealers caused it to rely to its detriment on those promises. Relying on Walker v. KFC Corp., 728 F.2d 1215 (9th Cir. 1984), the District Court found that ‘where ... the performance which is said to satisfy the detrimental reliance requirement of the promissory estoppel theory is the same performance which represents consideration for the written contract, the doctrine of promissory estoppel is not applicable.’ General Aviation, 703 F. Supp. at 647 n.10.
In other words, [the plaintiff] agreed to forego its future dealings with Beech Aircraft in order to enter into a written contract which, by its own terms, was a full and complete expression of the parties’ intentions. [The plaintiff] knew exactly what it was getting into because each and every term was spelled out in black and white in the contract. ‘Promissory estoppel is not a doctrine designed to give a party to a negotiated commercial bargain a second bite at the apple in the event it fails to prove breach of contract.’ Walker, 728 F.2d at 1220.” General Aviation, 915 F.2d at 1042.

Walker v. K F C Corp. (9th Cir. 1984), 728 F.2d 1215, cited in General Aviation, interpreted California law and relied on Youngman v. Nevada Irrigation District (1969), 70 Cal. 2d 240, 449 P.2d 462, 74 Cal. Rptr. 398. In Youngman, the supreme court of California reversed the dismissal of a breach of contract claim and held, as we do here, that the plaintiffs had pleaded a valid contract. But the court affirmed the dismissal of the count of the complaint which sought relief under a promissory estoppel theory. In doing so, the court spoke as follows:

“The purpose of [the doctrine of promissory estoppel] is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. If the promisee’s performance was requested at the time the promisor made his promise and that performance was bargained for, the doctrine is inapplicable.” (70 Cal. 2d at 249, 449 P.2d at 468, 74 Cal. Rptr. at 404.)

The court pointed out that the plaintiff’s allegations established that he had performed his part of the bargain and rendered the consideration called for by the contract. The court added, “[t]here is no occasion, therefore, to rely upon the doctrine of promissory estoppel, which is necessary only to supply consideration for a promise when no actual consideration was given by the promisee.” 70 Cal. 2d at 250, 449 P.2d at 469, 74 Cal. Rptr. at 405.

In the case before us, the plaintiff performed its part of the bargain and thereby rendered its consideration. There is no reason, therefore, to rely on promissory estoppel.

We judge that relief under promissory estoppel is not available to the plaintiff under these facts. We are not persuaded to hold otherwise because the plaintiff has alleged separate damages for the same act, in effect, splitting its cause of action. Acceptance of the plaintiff’s argument would mean that whenever a contract for a sale of goods is breached and the seller has incurred start-up costs, the seller has a cause of action for lost profits under a breach of contract claim and at the same time a cause of action based on promissory estoppel for the start-up costs. We cannot accept that argument. For these reasons, the order of Judge Greiman dismissing count II is affirmed.

We turn now to the order dismissing the amended complaint. Judge Greiman dismissed the complaint entirely but granted leave to amend. He was sure that the minimum requirements provision had beep waived for the period up to the signing of the revised agreement on January 20, 1988, but he was not sure that there was a waiver for the period after the signing of the revised agreement. He said it might “be we require evidence” and granted leave to file an amended complaint. Judge Jerome T. Burke replaced Judge Greiman. Again the defendant argued that there was no enforceable contract in the first place and that, if there was, the minimum requirement provision had been waived.

Judge Burke pinpointed the issue when he said that the “plaintiff wanted to salvage its minimum requirement” in the revised agreement. The defendant’s attorney agreed but argued that the plaintiff did not do so. In dismissing the complaint Judge Burke held that the minimum quantities guarantee did not survive the signing of the revised agreement; he also held that “with respect to waiver, the course of conduct, is availing in favor of the defendant.”

In our judgment, whether the parties intended to remove the minimum quantities requirement when they entered into the revised agreement is a question of fact. The revised agreement recited that the parties “are satisfied with the volume of sales we have achieved on the juice products.” (Emphasis added.) The agreement also provided that it “reflects understandings between the parties as to pricing and other conditions as noted herein, but does not otherwise alter or modify” the initial agreement. To accept the defendant’s argument, we would be required to say that when the plaintiff said it was “satisfied with the volume of sales we have achieved,” it meant it was satisfied with what it had received but would also be satisfied with whatever amount of cans of juice concentrate the defendant might order in the future. This is a construction of the plaintiff’s language we are unwilling to accept as a matter of law.

Nor do we agree that the plaintiff’s conduct before the revised agreement constituted waiver of the future minimum quantity requirements as a matter of law. If the defendant’s interpretation of the effect of the revised agreement is correct, whether the plaintiff’s conduct before the revised agreement constituted waiver becomes moot. If the fact finder, however, accepts the plaintiff’s interpretation, that is, that the plaintiff intended to retain the minimum quantities requirement, there obviously could be no future waiver of the requirement. We judge, therefore, that a fact question remains under the amended complaint that could not be resolved on the basis of what was presented to the judge. For that reason, the order dismissing the amended complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment affirmed in part; reversed in part and remanded.

McNAMARA and RAKOWSKI, JJ., concur.

       Justice Rosemary LaPorta participated in oral argument prior to her death. Justice Daniel J. McNamara was substituted on the panel and has listened to the oral argument tape and has read the briefs.