author: JUSTICE STOUDER JUSTICE SLATER,

text:
    PEORIA FIREFIGHTERS LOCAL 544, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, et al., Petitioners-Appellants, v. PETER KORN, as City Manager of the City of Peoria, et al., Respondents-Appellees.
    Third District
    No. 3—91—0495
    Opinion filed June 5, 1992.
    Rehearing denied July 15, 1992.

      SLATER, J., dissenting.
    Cornfield & Feldman, of Chicago (J. Dale Berry, of counsel), for appellants.
    Louise Natonek, of Peoria, for appellee City of Peoria.
    Roy G. Davis, of Keck, Mahin & Cate, of Peoria (Robert M. Riffle and Linda L. Laugges, of counsel), for other appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioners filed a petition to compel arbitration against the respondents in the circuit court of Peoria County. Respondents moved to dismiss the petition pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), and the trial court granted the motion. This appeal followed.

On July 8, 1988, the City of Peoria entered into a collective bargaining contract with Peoria Firefighters Local 544. The contract, by its own terms, was made retroactive to January 1, 1986, and included a broad grievance and arbitration clause. Article 11.2 provided “employees who are disciplined” with “the option of seeking review of any disciplinary action through the grievance procedure.” Under the contract, employees could elect either grievance/arbitration procedures or Fire and Police Commission procedures, but not both.

Before the collective bargaining agreement was signed, petitioners Melvin Blunier (Blunier) and Robert Ochs (Ochs) were firemen with the City of Peoria assigned to duty at the Heart of Illinois Fair on July 13, 1986. Petitioners were charged by the city with sexual misconduct while on duty and with insubordination for failing to answer questions while under interrogation for those charges. Following a hearing before the Fire and Police Commission, Blunier and Ochs were dismissed. On administrative review, this court affirmed the commission’s decision discharging petitioners for insubordination. Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, 545 N.E.2d 1363.

Blunier and Ochs filed a grievance against the city alleging that the commission’s actions violated certain provisions of the collective bargaining agreement. Filed on November 7, 1988, the grievance was processed through the appropriate procedures, and on December 19, 1988, the city was notified that the union was referring the matter to arbitration. On January 4, 1989, the city and union jointly requested a panel of arbitrators from the Federal Mediation and Conciliation Service. However, on March 15, 1989, the city and the union mutually agreed to delay submitting this grievance to arbitration in order to allow completion of the then-pending litigation arising from administrative review of the board’s action.

On May 14, 1990, after the litigation was completed, the union notified the city of its desire to proceed to arbitration and requested again that an arbitration panel be selected. The city took the position that Blunier and Ochs were not entitled to the grievance procedure. In September, the union reasserted its request for an arbitration panel, and the city notified the union that it was refusing the request for arbitration for the following reasons:

1. The matters giving rise to the discharges occurred prior to the evolution of any contractual right to arbitrate alleged violations of the collective bargaining agreement.
2. The fire fighters obtained a complete and thorough review of their discharges under the Police and Fire Commission Act.
3. Even if the grievances were “arbitrable” under the collective bargaining agreement, the fire fighters elected to pursue the Fire and Police Commission option and thereby waived their right to arbitrate.

As a result of the city’s refusal to arbitrate, the petitioners brought the instant action. The trial court granted the city’s motion to dismiss. The petitioners contend on appeal that the language of the collective bargaining agreement grants the union the right to submit this grievance to arbitration, that there has been no waiver of the contractual right to arbitrate the issue presented in the grievance, and that res judicata does not bar submitting the grievance to arbitration.

In Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 524 N.E.2d 758, a university filed charges for the discharge of a university employee. The employee appealed her discharge to the Merit Board of the State Universities Civil Service System as provided by statute. After a hearing, the Board concluded that the university had shown cause for discharging her. In the meantime, the employee filed a grievance which the university rejected and refused to process. Following an examination of these facts, the court concluded that the application of the doctrine of res judicata precluded the arbitrator from determining whether good cause existed to support the employee’s discharge. In reaching that conclusion, the court stated:

“Interests of judicial economy and principles of res judicata require affirmance of the determination of the Merit Board once the employee has elected to follow civil service discharge procedures.” Board of Governors (1988), 170 Ill. App. 3d 463, 483-84, 524 N.E.2d 758.

Petitioners argue that the doctrine of res judicata does not apply to the instant case because the proceedings before the Board and courts involved issues different from those which would be addressed in an arbitration hearing. They attempt to differentiate between the “just cause” standard for discharge which would be applied by an arbitrator under the agreement and the standard which was applied by the Board and the courts in the prior litigation. We find, however, that no such distinction exists.

In the instant case, the collective bargaining agreement entered into between the parties specifically contemplated an election of remedies on facts such as those before us. The purpose of such an election was seen by both parties to the contract as avoiding the just cause confrontation between the administrative review process and the arbitration process that is set up by these facts. More importantly, the conduct of the petitioners subsequent to the execution of the collective bargaining agreement constituted a waiver and election of remedies.

In sum the underlying facts of the instant case are identical. The relief sought is also identical. This court therefore will not engage itself in a semantical exercise in order to skirt the judicially created doctrine of res judicata. Accordingly, the trial court correctly dismissed the petition to compel arbitration.

We further note the earlier commission proceeding should not have been for naught. The fact that the union placed in the contract a general retroactive clause does not necessarily put it into effect in this case. The retroactive clause in this collective bargaining agreement was not intended to erase all previous disciplinary actions brought by the Police and Fire Commission. The collective bargaining agreement contemplates there will be only one procedure employed by the petitioner, either administrative review or arbitration. This fact tends to demonstrate that the parties to the agreement were aware of the problems associated with dual remedies and provides support for the argument that the retroactive clause does not apply to the instant case. Indeed, the petitioners actively pursued arbitration only after exhausting all available remedies through the administrative process which led to a result from this court that was unsatisfactory to them.

Furthermore, the petitioners emphasize that they never affirmatively elected to waive their rights to arbitrate. However, it’s readily apparent the petitioners did not affirmatively waive their right to arbitrate because it would have extinguished an opportunity to succeed at administrative review. To be sure, the petitioners were fully cognizant of the fact that if they lost at administrative review they had an opportunity to get a second bite at the same apple by filing for arbitration under the new collective bargaining agreement.

In Village of Creve Coeur v. Fletcher (1989), 187 Ill. App. 3d 116, 543 N.E.2d 323, this court rejected a police officer’s attempt to have a disciplinary decision of a police and fire board reviewed both through administrative review and by way of a grievance procedure pursuant to a collective bargaining agreement. This court concluded that allowing the police officer to proceed under both administrative review and arbitration would provide for an irrational and absurd result. To support its reasoning, the court proposed the following hypothetical:

“[Supposing that the parties proceeded pursuant to the fire and police commission act by going through the Board of Police and Fire Commissioners, the circuit court, the appellate court to the supreme court of Illinois, one of the parties, dissatisfied by the result of the supreme court, could then *** proceed through the regular grievance procedure where a police offi-
cer’s immediate sergeant could review and decide contrary to the decision of the supreme court.” Creve Coeur, 187 Ill. App. 3d at 118, 543 N.E.2d at 324.

The facts of the instant case bring to life the irrational hypothetical described in Creve Coeur. The parties have proceeded before the Board of Fire and Police Commissioners, the circuit court, the appellate court, and even the supreme court. At this juncture, dissatisfied with the result, the petitioners seek to take the matter to arbitration.

Our decision in Creve Coeur was meant to prevent cases like this. There is a public policy component of Creve Coeur which applies to the instant case — conservation of judicial resources and time. The petitioners here have availed themselves of every opportunity, at four levels of the administrative and judicial system, to argue that they should not have been discharged. They are now before the courts again seeking to invoke the jurisdiction of yet a fifth tribunal — a panel of arbitrators. Considering, as we should, the tremendous expenditure of public resources and judicial time in litigating these claims, it is most appropriate that this court apply the rationale enunciated in Creve Coeur to the instant case.

For these reasons, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

GORMAN, J., concurs.

JUSTICE SLATER,

dissenting:

The majority opinion denies to the petitioners their right to elect the arbitration procedure provided in the collective bargaining agreement. I respectfully dissent.

The grievance which is at issue here does not challenge the commission’s action, which has been affirmed on administrative review. The pending grievance alleges that the personnel actions instituted against Blunier and Ochs constitute a “lock out.” In addition, Blunier and Ochs allege they have been dismissed without just cause. The collective bargaining agreement prohibits the city from authorizing “any lock out of employees covered by this agreement” and provides that “no employee shall be discharged *** without just cause.”

The Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.) establishes the right to arbitrate labor disputes. Section 8 specifically allows for a grievance procedure as follows:

“The collective bargaining agreement negotiated between the employer and the exclusive representative shall contain a grievance resolution procedure which shall apply to all employees in the bargaining unit and shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise.” (Ill. Rev. Stat. 1989, ch. 48, par. 1608.)

The statute mandates that parties to a collective bargaining agreement arbitrate all disputes over the administration and interpretation of the agreement unless they mutually agree not to arbitrate the dispute. The city has the burden to establish that the petitioners have mutually agreed with the city not to proceed with arbitration. No such position was ever agreed to by the petitioners.

The collective bargaining agreement, which is retroactive to January 1, 1986, clearly establishes the right of Blunier and Ochs (as members of the bargaining unit) to grieve disciplinary action initiated by the city. Under article 5 of the agreement, a “grievance” is broadly defined as a “dispute arising between the parties concerning a violation or alleged violation of this agreement *** or disciplinary action taken by the City.” Under article 11.2 of the agreement, members of the bargaining unit are given “the right to have disciplinary action reviewed by the Fire and Police Commission” in place of the grievance procedure provided for in article 5. Article 11.2 establishes the procedures by which members of the bargaining unit may knowingly elect to waive their rights to one or the other of the two options. Blunier and Ochs never affirmatively elected to waive their rights to the grievance procedure which became available to them under the retroactive collective bargaining agreement.

Under the collective bargaining agreement, Blunier and Ochs were entitled to pursue grievance/arbitration procedures or commission procedures, but not both. The majority finds that the grievance is not arbitrable because Blunier and Ochs participated in commission proceedings and administrative review of those proceedings. However, at the time the commission proceedings were commenced, Blunier and Ochs did not have the right to proceed by way of the grievance procedure. The grievance procedure was created on July 7, 1988, when the collective bargaining agreement was executed. By its own terms, the effective date of the agreement was retroactive to January 1, 1986. Blunier and Ochs did not waive their option of review of the disciplinary action through the grievance procedure by continuing to participate in administrative review of the commission’s proceedings. In fact, during the review phases of the commission proceedings, Blunier and Ochs did file and cause to be processed, in accord with the collective bargaining agreement, the grievance here in question. Blunier and Ochs, in order to waive their rights to the grievance procedure under the agreement would, necessarily, have had to execute a waiver in writing which they did not do. The petitioners’ continued participation in the administrative review phases of the earlier commission proceedings did not amount to waiver of their grievance rights under the collective bargaining agreement.

It is asserted that if Blunier and Ochs are allowed to have this matter submitted to arbitration, they will be getting a “second bite of the apple.” Prior proceedings act as a bar under the doctrines of res judicata and collateral estoppel to protect litigants from the burden of retrying an identical cause of action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.) The Illinois Supreme Court, in Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 432, 530 N.E.2d 431, 438, however, has recognized that a contractual grievance and a statutory discharge claim “are different, and fundamentally unrelated, claims.”

The issues as to whether there was “just cause” for the discharge and as to whether a “lock out” occurred could not have been raised by the petitioners prior to the date of July 8, 1988, when the collective bargaining agreement was created. Statutory “just cause” and contractual “just cause” are not interchangeable. As stated by our supreme court in Ryherd, “many discharges allowed under our State law are certainly prohibited by the ‘just cause’ provisions of a typical collective-bargaining agreement.” Ryherd, 124 Ill. 2d at 428, 530 N.E.2d at 435.

In Village of Creve Coeur v. Fletcher (1989), 187 Ill. App. 3d 116, 543 N.E.2d 323, this court held that a suspended policeman who had been subjected to disciplinary proceedings before the Board of Fire and Police Commissioners was not entitled to file a grievance and compel arbitration under the collective bargaining agreement. We concluded that allowing the grievance procedure to take place after commission proceedings could lead to contradictory results. Creve Coeur does not preclude the relief requested by the petitioners herein. The collective bargaining agreement here in question came into being after the commission proceedings had been commenced and provided for an election by the fire fighters which required a specific act on their part to proceed with one avenue or another.

For these reasons, I would reverse the trial court’s order dismissing the petition to compel arbitration.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY BEATHEA, Defendant-Appellant.
    Third District
    No. 3—91—0170
    Opinion filed June 4, 1992.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Rodney Beathea, was charged by indictment with burglary. A jury found the defendant guilty and the court sentenced him to seven years’ imprisonment. The defendant appeals. We affirm.

The defendant was an outpatient at Touchstone in Peoria, Illinois. Touchstone, now known as the McBean Center for the Treatment of Addictions, is a drug and alcohol treatment facility. Alcoholics Anonymous, Narcotics Anonymous and the County Work Release Center all use Touchstone for their various activities. On February 28, 1990, Willa Lucas, an employee of Touchstone, noticed that a video tape player was missing from a downstairs meeting room. The tape player had been sitting on a television set mounted on a wall near an outside window. The wires that connected the tape player to the television were wedged in the outside window. Lucas notified the police of the theft.

When the police arrived they took fingerprints and other samples from the window and the areas surrounding the television. The defendant’s fingerprints were found on the inside of the window, on the window sash and on the screen that had covered the window. The screen was found on the outside of the building leaning against the building wall. In addition to the defendant’s fingerprints, the police located the fingerprints of Robert Walker, six other unidentified prints, and several fabric impressions. According to the State’s fingerprint expert, Walter Jatkowski, the six unidentified prints could have been made by one person or up to six different people. Jatkowski also stated that the fabric impressions found on the screen could have been made by a person wearing gloves.

At trial, Jatkowski further testified that the location of the prints on the outside of the window where entry into the Touchstone building was made, as well as the direction of the prints at the time they were impressed upon the window sash, window pane and screen, indicate that the screen was removed and the window forcibly opened. Jatkowski then demonstrated for the jury the location and direction of the prints identified as the defendant’s. Under cross-examination, Jatkowski admitted that there is no scientific way to determine when the fingerprints were made. The defendant’s fingerprints were not found on cable cords wedged in the window or on the television set. The tape player was never located.

The State also called Lea Pierson, a counselor’s aide at Touchstone, to testify. Pierson explained that the window in question was difficult to open and shut. Persons in Touchstone often opened the window to let cigarette smoke out of the building. On the day of the burglary several groups had used the basement meeting room, including the County Work Release Program. The defendant did not have permission, as an outpatient, to be in the room on the date of the burglary. The defendant had, however, attended a meeting in the room in early February of 1990.

At the close of the evidence, the parties presented closing arguments. During his rebuttal argument, the State’s Attorney told the jury that it could infer from the evidence that the defendant’s fingerprints on the screen had been recently made. The State’s Attorney informed the jury that it could make this inference because the fingerprints were of a “high contrast.” The State’s expert, however, stated that there was no scientific way to determine when the fingerprints were made. The State’s Attorney also told the jury that there was no evidence that the defendant had any business being in the meeting room. In fact, the evidence showed that the defendant had attended a meeting in the room in early February. The defendant offered no objection to the State’s comments and did not include these alleged errors in his post-trial motion.

We are now called on to determine whether the defendant was proved guilty beyond a reasonable doubt and whether the prosecutor’s comment constituted plain error.

It is the function of the jury to determine the credibility of the witnesses and assess the weight to be afforded evidence, and we may not lightly set aside such findings, nor substitute our own judgment for that of the jury. (People v. Boclair (1989), 129 Ill. 2d 458, 474, 544 N.E.2d 715.) However, it is our duty and we will not hesitate to reverse a judgment of conviction where the evidence is such that no rational trier of fact could have found a defendant guilty beyond a reasonable doubt because, taken in the light most favorable to the prosecution, the evidence is so palpably contrary to the verdict or the verdict is so unreasonable, unsatisfactory, or improbable so as to raise a reasonable doubt of defendant’s guilt. (Boclair, 129 Ill. 2d at 474-75.) To sustain a conviction, the evidence must support a reasonable and moral certainty that the defendant committed the crime. People v. Berland (1978), 74 Ill. 2d 286, 308, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 63.

Where a conviction is based on circumstantial evidence, it is essential that the facts proved be not only consistent with the guilt of the accused, but they must be inconsistent with any other hypothesis of innocence. (People v. French (1978), 59 Ill. App. 3d 353, 359.) Fingerprint evidence is circumstantial evidence (People v. Malmenato (1958), 14 Ill. 2d 52, 150 N.E.2d 806, cert, denied (1958), 358 U.S. 899, 3 L. Ed. 2d 148, 79 S. Ct. 222), and when a conviction is based solely on such circumstantial fingerprint evidence, the fingerprints must further satisfy both physical and temporal proximity criteria. (People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605.) The fingerprints must have been found in the immediate vicinity of the crime and under such circumstances that they could only have been made at the time the crime occurred. People v. Gomez (1991), 215 Ill. App. 3d 208, 574 N.E.2d 822.

In the case at bar, the State argued that the only possible explanation for the location and direction of the defendant’s fingerprints was that the defendant removed the screen at Touchstone and stole the tape player. During his closing arguments, the prosecutor told the jury as follows:

“[Tjhere is no physical reason for his [defendant’s] fingerprints to be on that window sash and on that screen because there is no physical human way that he could have contorted himself to be inside that room and to touch that window sash in such a manner that his fingerprints appeared the way Officer Jatkowski told you they were.”

The defendant objected to the State’s characterization of the evidence. The defendant argued that there was no evidence presented that the prints could only have been made at the time of the burglary. The court overruled the objection. The court ruled that the prosecutor’s statements were a matter of argument and that the jury would have to resolve the issue for itself. The defendant asserts that there was no showing that the fingerprints could only have been made at the time of the offense.

The evidence shows that the defendant attended meetings in the basement room along with numerous other persons. It is undisputed that the window was difficult to open and shut and that the window was often opened to clear the room of cigarette smoke. Therefore, the defendant argues that it is entirely possible that the members in the defendant’s therapy group found it necessary to have someone outside to help get the window open or shut and the defendant volunteered to do so. Or, it is possible that the defendant was late for an evening meeting, found the door locked and went to the window to get someone’s attention. In short, the defendant argues that there are numerous valid alternative explanations for the presence and location of his fingerprints.

Although these arguments warrant respectful consideration, this court cannot easily dismiss the fact that the jury had the benefit of hearing Officer Jatkowski’s testimony firsthand and viewing his demonstrations as to the location and direction of the prints. This is something we cannot recreate on review. The State argued to the jury that given the location and direction of the prints, the only possible explanation for their presence was that the defendant forcibly removed the screen from Touchstone and stole the tape player. The jury obviously agreed with the State that the fingerprints were found under such circumstances that they could only have been made at the time of the crime. Based on our review of the record, we cannot say that the verdict is unreasonable or improbable. The jury, as the trier of fact, was in the best position to observe the testimony of Officer Jatkowski with regard to the fingerprints, and we decline to interfere with that role where we are unable to find that no rational trier of fact could have found a defendant guilty beyond a reasonable doubt.

The sole remaining issue is whether the prosecutor’s comments made during his rebuttal argument constituted reversible error. Counsel, on appeal, claims the prosecutor told the jury it could draw inferences from the evidence not supported by the record. The defendant, however, offered no objection to the prosecutor’s comments at trial and did not include these alleged errors in his post-trial motion. The State claims the defendant has, therefore, waived his right to raise these issues on appeal. In the alternative, the State argues the comments were proper and only made in response to arguments forwarded by defense counsel during his closing argument.

It is well established that both a trial objection and a written post-trial motion specifically articulating the issues sought to be raised on appeal are required in order to preserve the matters for review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) As our supreme court noted in People v. Caballero (1984), 102 Ill. 2d 23, there are numerous reasons for this rule:

“Failure to raise issues in the trial court denies the trial court the opportunity to grant a new trial, if warranted. This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended. Appellate counsel may comb the record for every semblance of error and raise issues on appeal whether or not trial counsel considered them of any importance.” 102 Ill. 2d at 31-32.

In the case at bar, a review of the entire record reveals that complained-of statements were made in response to arguments forwarded by counsel for the defense. This is the most likely explanation for the lack of an objection. During his closing argument, defense counsel referred to the fact the prints were of a high contrast and suggested that this “high contrast” was consistent with someone adjusting the window and that the burglar probably used gloves or kleenex to mask his prints.

“[W]hen he (Officer Jatkowski) arrives there, he finds some fingerprint evidence, and he finds that it is of a high contrast. In other words, he finds the fingerprint evidence of Mr. Beathea that is so very obvious, that is so very clear, that it is more in tune with somebody finagling with the window rather than burglarizing the place ***.”

Having commented on the “high contrast” of the prints and offering an explanation for their presence, the prosecution was entitled to offer to the jury its own theory on the meaning of the prints’ “high contrast.” Normally, the defendant cannot complain of comments made by a prosecutor when the defense has opened the door and invited a comment on certain matters. (People v. Miller (1983), 115 Ill. App. 3d 592, 450 N.E.2d 767.) Defense counsel in the case at bar, in all likelihood, did not object because he realized that the prosecutor’s comments were made in response to his own. Perhaps defense counsel failed to object for reasons related to trial strategy. Whatever the reasons for counsel’s failure to object, we cannot consider the matter plain error and deem any objection the defendant may have possessed waived.

For the aforesaid reasons, the judgment of the circuit court of Peoria County is hereby affirmed.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE McCUSKEY

text:
    THE CITY OF PEORIA, Plaintiff-Appellant, v. ROGER HEIM, Defendant-Appellee.
    Third District
    Nos. 3—91—0917, 3—91—0963 cons.
    Opinion filed June 17, 1992.
    Clifton Mitchell, Assistant Corporation Counsel, of Peoria, for appellant.
    Jerry T. Stafford, of Peoria, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The City of Peoria (City) appeals the entry of summary judgment in favor of the defendant, Roger Heim. We affirm.

On August 30, 1989, the City filed a complaint against Roger Heim for failing to have one parking space for each dwelling unit at 103 and 105 N.E. Roanoke. The City alleged that Heim violated section 2 — 22.1033, appendix B, of the code of the City of Peoria (the Code). Heim purchased these properties in 1975. The uncontradicted evidence established (1) the structure located at 103 N.E. Roanoke was converted from a one-family residence to a four-unit, multi-family dwelling prior to 1955; and (2) the structure located at 105 N.E. Roanoke was converted from a one-family residence to a nine-unit, multifamily dwelling in 1952.

The City’s off-street parking regulations enacted May 29, 1979, provide as follows:

“In the use of land for residential, commercial, industrial or any other purpose, no residential, commercial, industrial or any other building or structure shall be erected and no major reconstruction, or no change in use made to an existing residential, commercial, industrial or any other building or structure, unless there already is in existence upon the lot, or unless provision is made for the location on the lot, concurrently with the erection or major reconstruction, or change in use, off-street parking facilities comprising adequate access drives or aisles or parking spaces on the basis of the following minimum requirements:
* * *
.1033 Dwelling: One parking space for each dwelling unit plus one parking space for each roomer in each dwelling unit in respect to single and duplex dwellings.” Peoria, Ill., City Code Appendix B, §§2-22.1000, 2-22.1033 (1979).

Heim filed a motion for summary judgment. Heim alleged that he did not erect, reconstruct or change the use of the structures at any time during his ownership. The City did not dispute Heim’s assertion. Rather, the City admitted that the previous property owners had made the changes to the property, which occurred prior to the enactment of the ordinance. The trial court granted summary judgment in favor of Heim.

The City contends that the trial court erred in interpreting section 2 — 22.1033. We believe the proper issue on appeal is not the interpretation or construction of the ordinance. Rather, it is whether Heim personally violated the ordinance.

A City’s enforcement of an ordinance is quasi-criminal in nature. (City of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 377 N.E.2d 1208.) The City has the burden of proving a violation of an ordinance by a clear preponderance of the evidence. (City of Chicago v. Chiagouris (1968), 95 Ill. App. 2d 446, 238 N.E.2d 167.) A conviction for an ordinance violation requires proof that the accused actually violated the ordinance in effect at the time of the alleged violations. (City of Chicago v. Thomas (1968), 91 Ill. App. 2d 245, 234 N.E.2d 350.) In order to establish an ordinance violation, the ordinance must have been in effect at the time of the violation. Raker v. Village of Maquon (1881), 9 Ill. App. 155; City of Tuscola v. D. & B. Refuse Service; Inc. (1985), 131 Ill. App. 3d 168, 475 N.E.2d 633.

We note section 2 — 22.1033 of the Code was enacted in 1979. Heim purchased these properties in 1975. It is uncontradicted that Heim did not erect, reconstruct, or change the use of the properties at any time during his ownership. The City has clearly admitted that the change in the use of the real estate occurred sometime in the 1950’s by previous owners. We find from our review of the record no evidence to support the City’s claim that Heim violated the ordinance. Accordingly, no violation of the ordinance occurred because the City did not prove Heim personally violated section 2 — 22.1033 of the Code.

We further hold that the zoning ordinance cannot be retroactively applied. The ordinance does not evidence intent for any retroactive application. Any intent that an ordinance operate retroactively must be evident, as where the pertinent language specifically requires compliance by preexisting buildings. (Baron v. Abt (1965), 61 Ill. App. 2d 414, 425, 209 N.E.2d 843, 849.) We find the trial court’s entry of summary judgment was correct.

Based on the reasons indicated, the circuit court of Peoria County is hereby affirmed.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE GORMAN

text:
    IVAN COLVIN, Plaintiff-Appellee, v. HOBART BROTHERS, Defendant-Appellant.
    Third District
    No. 3—91—0699
    Opinion filed June 10, 1992.
    Rehearing denied July 22, 1992.

      Stevenson, Rusin & Friedman, Ltd., of Chicago (Gregory G. Vacala, of counsel), for appellant.
    Hasselberg & Rock, of Peoria (Jeffrey B. Rock, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

In this declaratory judgment action, plaintiff Ivan Colvin requested the trial court to declare the rights between plaintiff and defendant Hobart Brothers regarding acts undertaken by plaintiff’s former attorney which were allegedly beyond his authority. The court granted summary judgment for plaintiff. Defendant appeals. We affirm.

In December 1989, plaintiff filed a second amended complaint. In this complaint plaintiff alleged, and in his answer defendant admitted, that plaintiff had been employed by defendant for approximately 19 years, had filed a worker’s compensation action against defendant in 1983, and had retained attorney Richard Price to represent him in the claim. Plaintiff also alleged and defendant admitted that Price represented to defendant that plaintiff’s case could be settled for $20,000; that defendant agreed to and did pay $20,000 in full settlement of plaintiff’s claim; that the settlement contract was approved in 1984 by the Industrial Commission; and that a settlement check was issued by defendant.

Plaintiff alleged that Price told him that the settlement money was only for back-due temporary disability benefits; that plaintiff never agreed to or authorized settlement of his claim; and that Price did not notify plaintiff that Price had signed the contract in full settlement of his claim. Plaintiff further alleged that after December 1984, Price was still representing to him that he was pursuing the worker’s compensation claim; that plaintiff did not discover that a settlement contract had been signed and approved until March 1986; that in April 1986 plaintiff filed a complaint against Price with the Attorney Registration and Disciplinary Commission (ARDC); that plaintiff contacted his present attorney in 1987; and that plaintiff has no remedy at law against Price because Price is in prison, has filed for bankruptcy, and insurance coverage is precluded because Price’s acts were intentional. Finally, plaintiff alleged that the settlement contract was procured by fraud on the part of Price and was invalid. Plaintiff requested that the court declare the settlement order void and unenforceable and asked that the court remand the cause to the Industrial Commission with directions to allow plaintiff to proceed with his claim for worker’s compensation benefits.

The trial court denied defendant’s motion to dismiss. In its answer, defendant raised four affirmative defenses: (1) failure to state a cause of action; (2) laches; (3) release/settlement/prior order; and (4) ratification.

Defendant deposed plaintiff. In his deposition, plaintiff stated that he had never settled a personal injury or any other type of case before. He further stated that Price told him that he was entitled to two-thirds of his pay that he was receiving (for life), back pay, and full insurance for the disease he had. Plaintiff testified that Price told him that he was negotiating a settlement for back pay only. Plaintiff further stated that Price gave plaintiff his personal check for plaintiff’s share of the settlement amount, $15,832. The check had no reference to it being out of a trust or attorney/client account. Plaintiff also stated that when he received the check, he received a copy of a statement showing the amount received, Price’s fees, expenses, and plaintiff’s amount. Plaintiff testified further that in April 1986, Price first told plaintiff that his case was settled. Plaintiff stated that the signature on the settlement contract was not his and stated that he did not authorize Price to execute the contract.

Attorney Price was not deposed. Defendant moved for summary judgment. Defendant maintained that because there was no fraud alleged on the part of the defendant, because plaintiff’s deposition showed acts of ratification of the settlement by plaintiff, because plaintiff’s cause of action for rescission was equitable in nature and plaintiff had an adequate legal remedy, and because of laches on the part of plaintiff in pursuing this claim, that defendant’s motion should be granted.

Defendant’s motion was denied. Plaintiff filed a cross-motion for summary judgment, which was granted.

Defendant now appeals.

Defendant first contends that a declaratory judgment action does not lie here.

A declaration of rights may be obtained by means of a pleading seeking that relief. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(b).) The scope of declaratory judgment relief is broad, liberal, and unrestricted by technicalities. (In re Estate of Moerschel (1980), 86 Ill. App. 3d 482, 407 N.E.2d 1131.) It is designed not to supplant existing remedies, but as an alternate or additional remedy to facilitate the administration of justice and to settle and fix rights of the parties based upon an actual justiciable controversy. (Miller v. County of Lake (1980), 79 Ill. 2d 481, 404 N.E .2d 222; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 389 N.E.2d 529.) A complaint for a declaratory judgment which recites in sufficient detail an actual and legal controversy between the parties and prays for a declaration of rights states facts sufficient to state a good cause of action. (Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428.) A client may not be bound to a settlement agreement entered into by an attorney without the client’s express authorization. Danziger v. Pittsfield Shoe Co. (1903), 204 Ill. 145, 68 N.E. 534.

A declaratory judgment action properly lies here. Plaintiff is not here suing to recover compensation or damages from defendant, but is merely requesting a declaration from the court that he may pursue his rights under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Specifically, plaintiff requests a declaration of the rights between plaintiff and defendant regarding acts undertaken by plaintiff’s attorney which were allegedly beyond his authority. Plaintiff requests that his worker’s compensation case be remanded to the Industrial Commission with directions to allow plaintiff to proceed with his claim for worker’s compensation benefits. Plaintiff acknowledged that the Commission would be in a position to credit any monies that he has received in favor of defendant, if any worker’s compensation money would be awarded.

The second issue for review is whether the trial court erred in granting summary judgment for plaintiff and denying defendant’s motion. We note that defendant did not present any substantive evidence that plaintiff had authorized the worker’s compensation settlement contract.

An attorney authorized to represent a client in litigation does not necessarily have authority to conclude a settlement, but must have express consent or authorization to do so. (McAllister v. Hayes (1988), 165 Ill. App. 3d 426, 519 N.E .2d 71; Kazale v. Kar-Lee Flowers (1989), 185 Ill. App. 3d 224, 541 N.E.2d 219; Danziger, 204 Ill. 145, 68 N.E. 534.) Moreover, as in general agency law, defendant has the burden of proving by a preponderance of the evidence that the agent had authority to act. Kazale v. Kar-Lee Flowers, 185 Ill. App. 3d 224, 541 N.E.2d 219; Palos Bank & Trust Co. v. Kardaras (1982), 104 Ill. App. 3d 505, 432 N.E .2d 1123.

In the instant case, defendant did not depose Price. Other than plaintiff’s deposition, defendant did not introduce any substantive evidence as to the circumstances surrounding whether this settlement contract was authorized at the time Price entered it. The agreement alone, although approved by the Industrial Commission, provided no evidence that plaintiff authorized his attorney to settle the claim in full. Although defendant had the burden of proof on the issue of authorization, defendant did not address the issue, but instead raised four affirmative defenses.

The only evidence before the court was that Price settled the case without advising plaintiff of the true facts. Plaintiff alleged that he never gave Price the authority to settle his worker’s compensation case in full for $20,000. Plaintiff also alleged that his attorney told him that the settlement money was only for back pay. Although plaintiff has retained $15,832 of the settlement proceeds, he has maintained that he accepted and retained these benefits without full knowledge of the extent of his attorney’s actions. Moreover, plaintiff has acknowledged that these monies may be credited to defendant if the cause is remanded to the Industrial Commission and an award is made.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Lower v. Lanark Mutual Fire Insurance Co. (1983), 114 Ill. App. 3d 462, 448 N.E.2d 940.) Considering all of the foregoing, we cannot say that the trial court erred in granting summary judgment for plaintiff.

Affirmed.

HAASE and STOUDER, JJ., concur.


text:
    EDWARD JAMES KOCAL, Petitioner-Appellee, v. VICKI S. HOLT, f/k/a Vicki S. Bay, Respondent-Appellant.
    Third District
    Nos. 3—91—0195, 3—91—0316 cons.
    Opinion filed June 5, 1992.
    Rehearing denied July 22, 1992.
    Dean A. Stone, of Macomb, for Vicki S. Holt.
    James R. Standard, of Monmouth, for Edward James Kocal.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by petitioner-father for joint custody of his daughter, Krista Bay. The trial court imposed joint custody and ordered petitioner to pick up Krista in Macomb, Illinois. We affirm in part, reverse in part, and remand.

Petitioner Edward Kocal and respondent Vicki Holt (formerly Bay) began living together in Macomb, Illinois, in August 1982. Krista Bay was born to the couple on August 16, 1984. Respondent was the primary caregiver. Petitioner and respondent stopped living together in May 1985. Petitioner moved to Davenport, Iowa. He visited Krista monthly for the next several months. He then stopped paying child support. In 1987, an Iowa county court entered an order for support. That year, respondent married and continued to be the primary caregiver of Krista. During 1987-88, petitioner visited Krista on a regular basis and had her for several overnight visits. To facilitate the overnight visits, petitioner and respondent’s husband met in Monmouth, Illinois, to transfer Krista.

In February 1989, respondent stopped allowing petitioner to visit Krista. Respondent alleged petitioner had returned Krista late and that the minor had been riding in petitioner’s vehicle without a child’s car seat, while seated in the lap of petitioner’s female companion in a manner which caused the shoulder belt to cross the child’s neck.

In August 1989, petitioner filed a petition for order regarding custody and visitation. Respondent counterpetitioned for an increase in child support. In February 1990, the court heard evidence on the petition. Respondent testified that she was opposed to joint custody. She stated that her relationship with petitioner was marked by animosity and a total lack of agreement concerning Krista. She also testified that she and petitioner do not communicate at all.

The trial judge interviewed Krista in camera. Krista told the judge that her mother had said that she does not like her father. Krista also said that she herself does not like her father. Further, the youngster indicated that she had fun when she visited her father. She also said that she understood that her father loved her and that he has told her so.

In April 1990, the court held that the proceeding was an initial custody determination and, therefore, petitioner’s burden of proof was by a preponderance of the evidence. The trial judge ordered that petitioner and respondent have joint custody of their daughter, “in spite of the vitriolic interrelationship between the parties and the distance involved.” Joint custody was to encompass all major decisions such as education, health care, and religious training. All other day-today decisions were to be left to respondent, who was also awarded primary residential custody. The judge set forth petitioner’s visitation rights and directed the parties to undergo counseling. On rehearing, the court ordered petitioner to pick up Krista in Macomb, which order reversed an earlier ruling requiring petitioner to pick his daughter up in Monmouth.

Respondent now appeals the joint custody decision. Petitioner appeals the decision regarding the transportation of the child for visitation.

The first issue respondent raises for review is whether the trial court applied the correct standard in making its custody determination.

Section 14(a)(2) of the Parentage Act of 1984 provides the following:

“If a judgment of parentage contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting custody to the other parent.” Ill. Rev. Stat. 1989, ch. 40, par. 2514(a)(2).

In pertinent part, section 610 of the Illinois Marriage and Dissolution of Marriage Act sets forth the following:

“(a) *** [N]o motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian ***.” Ill. Rev. Stat. 1989, ch. 40, pars. 610(a), (b).

In the March 1987 Iowa county stipulation for support, petitioner acknowledged paternity. In the later order for support, the court set child support at $100 per month. Under the above-quoted provision of the Illinois Parentage Act, the Iowa order is considered a judgment granting custody of Krista to respondent. Since more than two years had elapsed from that order until the petition with regard to custody was filed in this case, section 610(b) of the Illinois Marriage and Dissolution of Marriage Act applies and the correct standard to be applied, as in any modification, is clear and convincing evidence.

The petitioner cites In re Upmann (1990), 200 Ill. App. 3d 827, 558 N.E.2d 568, as support for his position that custody should be determined by a preponderance of the evidence. There, an illegitimate boy was born. Six months later, the mother filed a paternity petition. An order was entered finding paternity and imposing a support obligation on the father. Shortly thereafter, the father petitioned for custody. The trial court granted mother and father joint legal custody and gave the father physical custody. The appellate court affirmed and refused to follow section 610(a).

The Upmann court’s decision is distinguishable in several ways. First and most important, that court was analyzing the interplay of section 14(a)(2) of the Parentage Act and section 610(a) — not section 610(b) — of the Illinois Marriage and Dissolution of Marriage Act. Second, the father there petitioned for custody within a matter of days of learning that the minor was indeed his child. Third, the minor there was only a few months old and the mother was not providing the child with a stable environment.

The second issue respondent raises is whether the trial court abused its discretion in awarding joint custody of Krista to the parties.

Under In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 455 N.E.2d 887, joint custody orders are appropriate only where both parents have displayed an “unusual capacity to cooperate.” In Pool, there was testimony regarding noncooperation and discord during the period of separation and trial. Therefore, the appellate court held that the trial court had abused its discretion in making a joint custodial award and reversed with instructions to place the children with one parent, subject to visitation by the other. Although Pool was decided under a prior statute which provided that joint custody was appropriate only where it was in the best interest of the child and both parties agreed to the arrangement, the Pool case is still applicable here. Presently the statute does not require the parties’ agreement to the arrangement, but does provide that one factor in the joint custody determination is “the ability of the parents to cooperate effectively and consistently with each other towards the best interests of the child.” Ill. Rev. Stat. 1989, ch. 40, par. 602.1(c)(1).

The parties here have not displayed a capacity to cooperate effectively regarding their daughter’s upbringing. Rather, petitioner and respondent have such a history of disagreement that imposing a joint custody arrangement, even though limited, is against the best interests of the child. Therefore we reverse the imposition of joint custody and remand for a determination regarding visitation.

The final issue, which was raised for review by petitioner, was whether the trial court abused its discretion in directing him to pick up Krista in Macomb, Illinois.

Visitation orders will not be disturbed on appeal absent a grave abuse of discretion. (In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 399 N.E.2d 1018.) Although the trial court did originally order that Monmouth, Illinois, would be the pick up/drop off point, it modified that order approximately six months later after hearing testimony of respondent’s changed working shift. This change in schedule occurred through no fault of the respondent. The court then directed that the pick up point was to be Macomb. We can find no abuse of discretion here and affirm the trial court’s determination on this issue.

Affirmed in part; reversed in part and remanded.

HAASE and STOUDER, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID RAMAGE, Defendant-Appellant.
    Second District
    No. 2—90—1311
    Opinion filed June 17, 1992.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Edmond Urban, of Oak Forest (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, David Ramage, was charged by indictment with 11 counts of child pornography (Ill. Rev. Stat. 1989, ch. 38, par. 11— 20.1(a)(2)). After defendant pleaded guilty to three of the charges, the court sentenced him to 30 months’ probation and ordered him to undergo counseling. The sole issue on appeal is whether the trial court erred, prior to sentencing, by denying defendant’s motion to withdraw his guilty pleas because the court failed to determine if defendant’s counsel had filed a certificate pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). We reverse and remand for a new hearing on defendant’s motion.

The indictments charged that in June and July 1990 defendant disseminated various magazines depicting lewd exhibitions of children under the age of 18. On September 7, 1990, defendant pleaded guilty to three of the charges, and, after admonishing defendant and finding there was a factual basis for the charges, the trial court conditionally accepted defendant’s guilty pleas. The other charges were subsequently nol-prossed.

On October 17, 1990, just prior to the sentencing hearing, defendant filed and presented a motion to withdraw his pleas, raising a defense of entrapment. The trial court denied defendant’s motion, unconditionally accepted his guilty pleas, and sentenced him to a period of 30 months’ probation and ordered him to undergo counseling.

After pronouncing sentence, apparently believing that defendant had complied with Supreme Court Rule 604(d) (134 Ill. 2d 604(d)) because defendant had already filed a written motion to withdraw his pleas, the court did not admonish defendant to file a new Rule 604(d) motion within 30 days to preserve his right of appeal. The trial judge stated: “In order to appeal, you must within 30 days file with the Court a written motion asking — no, you don’t. You’ve already done that.” The court did advise defendant regarding his right to appeal the judgment within 30 days, the availability of counsel and the provision of free transcripts. Defendant filed this timely appeal.

Defendant argues that the trial court committed reversible error by denying his motion to withdraw his guilty pleas without determining whether defense counsel had filed a certificate pursuant to Rule 604(d). Supreme Court Rule 604(d) provides in part that defense counsel must file a certificate stating that he has consulted with defendant to ascertain his contentions of error and has examined the court file and the report of the proceedings in order to present adequately defendant’s contentions of error. 134 Ill. 2d R. 604(d).

The State contends that this court should not consider the applicability of the certification requirements spelled out in Rule 604(d) where defendant’s motion to withdraw his guilty pleas was premature. The State points to the fact that defendant’s motion was filed prior to sentencing. The State argues that defendant did not scrupulously follow Rule 604(d) by filing his motion to withdraw his pleas and vacate the judgment within 30 days after the imposition of the sentence, as required by the rule.

Although the State does not couch its arguments in jurisdictional terms, we have an independent duty to examine whether we have jurisdiction to hear an appeal. (See People v. Ishmon (1991), 213 Ill. App. 3d 653, 655, citing Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.) The filing of a motion to withdraw the plea and vacate the judgment pursuant to Rule 604(d) is a jurisdictional condition precedent to an appeal from a defendant’s plea of guilty. (People v. Radunz (1989), 180 Ill. App. 3d 734, 739; People v. Potts (1985), 136 Ill. App. 3d 1059, 1061.) In cases where defendant has pleaded guilty, is sentenced and fails to file such a motion, dismissal of the appeal is normally the proper disposition of the cause. (See, e.g., Ishmon, 213 Ill. App. 3d at 656; Potts, 136 Ill. App. 3d at 1064.) However, a defendant may be excused from the precise requirements of Rule 604(d) if he was misled or prevented from doing so by an insufficient admonition pursuant to Rule 605(b) (134 Ill. 2d R. 605(b)) that he must file such a motion as a prerequisite to an appeal. Radunz, 180 Ill. App. 3d at 739; People v. Balsar (1989), 178 Ill. App. 3d 876, 879-80.

In the present case, defendant filed his motion to withdraw his pleas prior to sentencing. It is understandable that the trial court may itself have been led to believe that this was sufficient to comply with Rule 604(d), and, under the circumstances, the trial court should not be faulted. Until recently, conflicting appellate decisions regarding strict compliance with the requirements of Rule 604(d) may have sent a mixed message to the bench and the bar. (See People v. Hancock (1991), 208 Ill. App. 3d 1092, 1093-94.) In People v. Paul (2d Dist. 1981), 93 Ill. App. 3d 302, under circumstances similar to the case at bar, this court declined to apply the strict rule enunciated in People v. Hale (4th Dist. 1979), 77 Ill. App. 3d 721, rev’d on other grounds (1980), 82 Ill. 2d 172. (Paul, 93 Ill. App. 3d at 310.) The Hale court held that, where a court heard and denied a defendant’s motion to withdraw his plea prior to sentencing, a defendant could only perfect his appeal and satisfy Rule 604(d) by filing another motion within 30 days after the imposition of sentence. Hale, 77 Ill. App. 3d at 722.

In Paul, the defendant’s Rule 604(d) motion was filed prior to sentencing, and the trial court noted that defendant had already filed a motion, stating, “so that’s taken care of.” The reviewing court observed that the order denying the motion to withdraw was not signed and entered of record until after the sentence was imposed. The Paul court concluded that it would be unfair to refuse to consider the appeal on the precedent of Hale due to defendant’s failure to file a second motion, a motion which the Paul court believed would have been wholly redundant and unnecessary. (Paul, 93 Ill. App. 3d at 310.) In People v. Potts (5th Dist. 1985), 136 Ill. App. 3d 1059, the reviewing court declined to follow Paul, preferring instead to follow the reasoning in Hale and requiring that a defendant who files a premature Rule 604(d) motion to withdraw his plea must renew his motion by assiduously following Rule 604(d) in order to preserve his right to appeal. See also People v. Gamboa (3d Dist. 1992), 225 Ill. App. 3d 668, 670-71 (a defendant is allowed no deviation from the statutory procedure required in Rule 604(d)).

We note that Paul was decided prior to People v. Wilk (1988), 124 Ill. 2d 93, in which our supreme court emphasized the mandatory nature of the conditions precedent to an appeal spelled out in Rule 604(d). Following Wilk, courts have construed Rule 604(d) narrowly and have insisted on strict rather than substantial compliance with the rule. (See People v. Dickerson (1991), 212 Ill. App. 3d 168, 171 (and cases cited therein).) It is now well settled that the timely filing of a Rule 604(d) motion after the imposition of sentence is a jurisdictional condition precedent to an appeal where a defendant has pleaded guilty.

In view of these developments, we believe that our prior decision in Paul, to the extent that it suggests that a Rule 604(d) motion need not be renewed to perfect an appeal after a premature motion has been filed and heard, should no longer be followed, and to that extent it is overruled. A premature motion filed prior to sentencing does not satisfy Rule 604(d) for purposes of an appeal. The language of the rule makes it clear that such a motion MUST be filed within 30 days after the imposition of sentence. Since the filing of such a motion is MANDATORY for purposes of appeal, it cannot be waived by the trial court or by defendant. See Gamboa, 225 Ill. App. 3d at 668.

Under the circumstances presented in the case at bar, defendant should not be penalized for failing to renew his Rule 604(d) motion where he may have been misled or prevented from filing his post-sentence motion. Pursuant to People v. Radunz (180 Ill. App. 3d at 739), we elect to consider the merits of the issue raised by defendant: that trial counsel did not satisfy the certification requirement of Rule 604(d). We find no evidence in the record that the certification procedure was followed. In Dickerson, this court held that, where a defendant has not waived counsel, the filing of the defense attorney’s Rule 604(d) certificate is a condition precedent to a hearing on defendant’s motion to withdraw his plea of guilty and to vacate the judgment. Thus, where the trial court denied defendant’s motion to withdraw his guilty plea without defense counsel’s compliance with the certification requirement of Rule 604(d), we reversed the judgment and remanded the cause for further proceedings. Dickerson, 212 Ill. App. 3d at 171-72; accord People v. Kendall (1991), 213 Ill. App. 3d 782, 786.

In this case, the proper disposition is to remand the cause to the trial court for further proceedings. Defendant will be allowed to file a new motion to withdraw his guilty pleas and will be allowed a hearing on the new motion. (See Gamboa, 225 Ill. App. 3d at 672; Kendall, 213 Ill. App. 3d at 786.) It is incumbent upon the trial court to insist that defense counsel comply with the certification requirements before allowing a hearing on the motion because certification is a condition precedent to a hearing on the motion. People v. Reed (1991), 213 Ill. App. 3d 855, 857.

For the foregoing reasons, the judgment of the circuit court of Lake County denying defendant’s motion to withdraw the pleas of guilty is reversed, and the cause is remanded with directions.

Reversed and remanded with directions.

DUNN and DOYLE, JJ., concur.


author: JUSTICE NICKELS

text:
    LINDA DURAN, Plaintiff-Appellant, v. LESLIE OLDSMOBILE, INC., Defendant-Appellee (CIM Insurance Corporation, Defendant).
    Second District
    No. 2—91—0701
    Opinion filed June 11, 1992.

      Lehrer, Flaherty & Canavan, P.C., of Wheaton (Maureen Flaherty, of counsel), for appellant.
    Sandra K. Macauley, of Lord, Bissell & Brook, of Chicago (Gerald O. Sweeney, Jr., of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

The circuit court of Du Page County granted defendant’s, Leslie Oldsmobile, Inc.’s (dealer’s), motion for summary judgment, which • plaintiff now appeals. Plaintiff’s complaint sought actual and punitive damages and attorney fees and costs based on common-law fraud and statutory fraud under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. 12½, par. 261 et seq.). Specifically, plaintiff alleged that the dealer made four misrepresentations as follows: (1) a 1988 Volkswagen Jetta was a demonstrator (demo) car; (2) an extended warranty on the Jetta would be effective from the date and mileage at which plaintiff purchased the car; (3) the dealer could and would obtain the lowest possible new-car financing rate; and (4) such rate was 14.25%. In fact, the Jetta was used and had been previously titled to and driven by a national rental-car company located at O’Hare International Airport; 11 months and 7,000 miles of any extended warranty had expired during such prior usage, and the 14.25% financing rate was for a used car, which was significantly higher than the prevailing rate for financing new cars. The circuit court held that plaintiff’s reliance on the dealer’s alleged oral misrepresentations concerning the Jetta and the extended warranty was unreasonable in light of plaintiff’s signature on certain documents (sales forms) that expressly contradicted the alleged misrepresentations. The circuit court further found that the dealer’s representation that it could obtain the lowest financing rate was a future promise inactionable under both the common law and the Consumer Fraud Act. Finally, the circuit court found that plaintiff suffered no damages as a result of the dealer’s alleged misrepresentation that the 14.25% rate was the lowest available because she returned the car without making any installment payments.

Plaintiff appeals asserting summary judgment was inappropriate because: (1) either her prior execution of a “Retail Order for a Motor Vehicle” (retail order form), which did not contradict the dealer’s salesman’s alleged misrepresentations, or the lack of the opportunity to review the subsequently completed sales forms and discover the contradiction created a question of material fact as to the reasonableness of her reliance; and (2) the pleadings, depositions, and affidavits demonstrated a factual basis to infer damages; proof of damages is unnecessary to sustain a cause of action under the Consumer Fraud Act; or nominal damages may be presumed under the Consumer Fraud Act based on the dealer’s alleged violation of the Act.

The over 1,300 pages of pleadings, affidavits and depositions describe the events before, during, and after plaintiff’s purchase of a 1988 Volkswagen Jetta from the dealer. On Friday, December 9, 1988, plaintiff spontaneously visited the dealer’s Volkswagen showroom, although she had been planning on purchasing a car for several weeks and was specifically interested in a Jetta. Plaintiff was temporarily driving a rental car because her insurer had determined that an accident had totally destroyed plaintiff’s previous car.

Plaintiff spent two hours with the dealer’s salesman, during which time plaintiff inspected the Jetta, discussed financing, negotiated the price of the vehicle, and ascertained the cost of a 6-year/60,000-mile extended warranty. Plaintiff alleged that she specifically told the salesman that she wanted a new or demo car and not one that had been used. As the dealer’s general manager testified at his deposition, a demo in Illinois is a car that has not been titled and is the equivalent in value to a new car, although it has been previously driven by an employee of either the manufacturer or the dealer.

Plaintiff alleged that the salesman told her that the Jetta, which had been driven over 7,000 miles, was a demo. In response to plaintiff’s request to see the documents showing the history of the Jetta, the salesman told her that the paperwork on the history of the Jetta was unavailable because it was locked up for the weekend, but that he believed it had been driven by an employee of the manufacturer rather than an employee of the dealer. However, both the general manager and sales manager were present at the dealership that day and had access to the files containing the Jetta’s prior ownership history. As part of the negotiations, the salesman allegedly told plaintiff that the dealer would obtain financing at the lowest available new-car rate. In response to plaintiff’s inquiry concerning a warranty that would last until she completed installment payments on such financing, the salesman told plaintiff that a 6-year/60,000-mile extended warranty effective beginning with plaintiff’s purchase of the Jetta was available for a price of $625. However, the dealer’s employee responsible for such extended warranties testified at her deposition that a 6-year/60,000-mile extended warranty costs $625 and begins with the date a car is first placed in service at 0 miles. Therefore, despite payment for 6 years and 60,000 miles of coverage, plaintiff would have received something less than 53,000 miles and 5 years and 1 month of coverage.

After negotiations over the price of the Jetta, the salesman completed in handwriting the blanks on the preprinted retail order form, including the price, plaintiff’s deposit, and the transfer of the remaining manufacturer’s factory warranty. However, the salesman did not complete that preprinted portion of the form requiring him to check a box describing the vehicle as either new or used. Plaintiff signed the retail order form and gave the salesman a $200 check as a deposit, and the order was accepted by the dealer. While waiting for the sales forms to be completed, plaintiff ran two brief errands, first to return her rental car and then later to pick up her young son from day-care, because the sales forms were still not complete.

Sometime after 5 p.m., the dealer’s general manager, who was acting as the finance manager that day as well, eventually completed the sales forms including an invoice, retail installment contract, extended-warranty agreement, revenue department form, and odometer statement to conclude the sale, each of which plaintiff signed. However, plaintiff testified at her deposition that when she attempted to review the sales forms by laying them on a chair next to her while also trying to watch her young son, the dealer’s manager asked plaintiff to wait until he completed the transaction so that the documents would not get out of order. Plaintiff gave the dealer a second check in the amount of $1,800 as partial payment for the Jetta.

Although the invoice, retail installment contract, and revenue department forms expressly indicated that the Jetta was a used car, those documents more specifically concerned the warranty, financing rates, and sales tax respectively. The description of the Jetta as used contained therein was merely incidental to such other information. When plaintiff noticed the 14.25% financing rate, she asked the general manager whether it was the lowest available new-car rate to which he replied affirmatively.

Plaintiff took delivery of the Jetta and drove it home. That evening, a friend of plaintiff’s, who was also an attorney, spent the evening with her and noticed the 14.25% rate, which he thought excessive. However, due to the lateness of the hour, plaintiff insisted that her friend wait until the following morning to review the rest of the sales forms. At that time, both plaintiff and her friend discovered that the sales forms indicated that the Jetta was a used car. After confirming that new-car financing rates were significantly lower, they concluded that the 14.25% rate was for a used car. After several unsuccessful attempts to speak with the general manager by telephone, plaintiff together with her friend sought to return the Jetta in exchange for an actual new or demo model. Plaintiff’s friend identified himself as her attorney during that discussion. The dealer refused to rescind the purchase or exchange the Jetta except at an increased cost to plaintiff. Therefore, plaintiff and her friend left the dealer’s facilities with the Jetta.

On Monday, plaintiff discovered that the Jetta had in fact been titled to a national rental-car chain located at O’Hare International Airport. Plaintiff stopped payment on the checks she had issued as a deposit and down payment on the Jetta and at 5 p.m. that day returned the Jetta to the dealer’s facility after requesting a police officer to be present to witness the return of the Jetta. The leasing company from whom plaintiff had rented temporary transportation prior to this transaction once again furnished her with a short-term leased car at that time.

In December 1988, two separate entities existed, one selling Volkswagens and one, which we have referred to as the dealer, selling Oldsmobiles. The facilities were located adjacent to each other and shared common management and salespersons. The forms used in this instance originated from both the Oldsmobile and Volkswagen entities. However, during the pendency of this proceeding on January 1, 1990, the separate identity of the Volkswagen entity was merged into the Oldsmobile entity. In March 1989, plaintiff filed this suit in two counts alleging common-law fraud and a violation of the Consumer Fraud Act and naming Leslie Oldsmobile as defendant. In November 1990, after the entities had merged, Leslie Volkswagen filed a separate small claims action against plaintiff to enforce the retail order form, which was consolidated with the present action. Attached to its small claims complaint Leslie Volkswagen attached a copy of plaintiff’s second check containing a handwritten notation that it had been returned to plaintiff on December 30,1988, without any attempt to cash it.

Leslie Oldsmobile then asserted as an affirmative defense that Leslie Volkswagen, and not Leslie Oldsmobile, was the proper defendant because two separate entities existed. Leslie Oldsmobile then filed a motion for summary judgment that included an allegation that no attempt to enforce the contract had been made and, therefore, plaintiff could claim no damages. Plaintiff opposed that motion relying in part on Leslie Volkswagen’s attempt to enforce the retail order form as evidence of damages. Over plaintiff’s objection, the small claims action was dismissed with prejudice. The circuit court then granted the dealer’s motion for summary judgment.

The circuit court found plaintiff’s reliance on the alleged misrepresentations regarding the Jetta and the extended warranty unreasonable in light of her signature on the sales forms, which expressly noted that the Jetta was used and that the extended warranty dated from January 1988 and 0 miles. The circuit court found that plaintiff’s allegation relating to the dealer’s promise to secure the lowest available financing was a future promise not actionable under either the common law or Consumer Fraud Act. Finally, the circuit court found plaintiff’s return of the Jetta without any payments at the 14.25% rate defeated both her claim under the common law and Consumer Fraud Act for lack of damages. Plaintiff now appeals asserting that questions of material fact were raised by the pleadings, depositions, and affidavits that precluded entry of summary judgment as a matter of law.

Summary judgment should be awarded with caution so that the right to present a case in which a material dispute exists and to a trial by jury is not preempted. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) It is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Hagy, 190 Ill. App. 3d at 842.) The evidence in the record must be construed strongly against the movant and in favor of the nonmovant. (Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 304-05.) If there is no dispute as to any material fact and the undisputed facts permit but one inference, it is only the legal effect of such facts that is at issue, and a court should grant summary judgment. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294; Dockery, 185 Ill. App. 3d at 304.) A party’s right to summary judgment must be clear and free from doubt before it may be granted. (Purtill, 111 Ill. 2d at 240.) The purpose of summary judgment is not to try questions of fact, but rather to determine if such questions exist. Addison, 124 Ill. 2d at 294; Dockery, 185 Ill. App. 3d at 304.

To prevent the entry of summary judgment, an opponent must present a bona fide factual issue and not merely general denials and conclusions of law. (Wil-Shore Motor Sales, Inc. v. Continental Illinois National Bank & Trust Co. (1984), 130 Ill. App. 3d 167, 172.) An issue is “genuine” only if there is evidence to support the position of the nonmoving party. (N. W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1075.) Thus, although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law. (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.) Only facts related to the essential elements of the plaintiff’s cause will be considered, no matter how sharply controverted other immaterial facts in the record might be. Fuller, 117 Ill. App. 3d 939.

Because the circuit court entered summary judgment for the dealer as a matter of law based on its finding that plaintiff failed to allege necessary elements of both her cause of action for common-law fraud and for fraud under the Consumer Fraud Act, we must first set out those elements. The elements of common-law fraud are: (1) a statement by defendant; (2) of a material nature as opposed to opinion; (3) that was untrue; (4) that was known or believed by the speaker to be untrue or made in culpable ignorance of its truth or falsity; (5) that was relied on by the plaintiff to his detriment; (6) made for the purpose of inducing reliance; and (7) such reliance led to the plaintiff’s injury. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286; Parsons v. Winter (1986), 142 Ill. App. 3d 354, 359.) In addition, such reliance must be reasonable. Soules, 79 Ill. 2d at 286.

The majority of the elements of common-law fraud have been eliminated by the Consumer Fraud Act, and it affords broader consumer protection than the common-law action of fraud by prohibiting any deception or false promise. (Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 721; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 198.) Therefore, to state a cause of action for statutory fraud, a plaintiff is not required to prove all the elements of common-law fraud. (Perlman, 64 Ill. App. 3d at 198.) However, despite the number of cases decided by our appellate courts under the Consumer Fraud Act, the elements of a statutory fraud cause of action have not been specifically articulated. Therefore, we must review those specific decisions that have considered each individual element of common-law fraud to determine which of those elements also remain an element of a cause of action for statutory fraud.

The Consumer Fraud Act eliminated the requirement of scienter, and innocent misrepresentations are actionable as statutory fraud. (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (5th Dist. 1977), 46 Ill. App. 3d 252, 259; Beard v. Gress (4th Dist. 1980), 90 Ill. App. 3d 622, 627-28.) In Duhl v. Nash Realty Inc. (1st Dist. 1981), 102 Ill. App. 3d 483, statutory fraud was held to include misrepresentations of not only existing material facts, but of future promises (Duhl, 102 Ill. App. 3d at 495), although the materiality of the misrepresented fact is still an element of a claim under the Consumer Fraud Act (Mack v. Plaza DeWitt Ltd. Partnership (1st Dist. 1985), 137 Ill. App. 3d 343, 350). A plaintiff’s diligence in ascertaining the accuracy of misstatements was also eliminated as an element of fraud by the Consumer Fraud Act. Beard, 90 Ill. App. 3d at 627-28; see also Munjal v. Baird & Warner, Inc. (2d Dist. 1985), 138 Ill. App. 3d 172,182.

Finally, damages remain an element of a cause of action under the Consumer Fraud Act. (Greenberg v. United Airlines (1990), 206 Ill. App. 3d 40, 45-46; Warren v. LeMay (5th Dist. 1986), 142 Ill. App. 3d 550, 569.) However, we must discuss the decision of the Appellate Court, First District, in Greenberg in some detail. Not only plaintiff, but the dealer and the circuit court below as well, relied on Greenberg, which appears to find both that allegations of damages are required and that allegations of damages are not required.

Before turning to the specific language of Greenberg, we note that both the court in Greenberg and the circuit court below relied on the 1979 version of the Consumer Fraud Act, which contained language apparently limiting a private cause of action to one of the enumerated violations (see Ill. Rev. Stat. 1979, ch. 121½, par. 270a (“[a]ny person who suffers damage as a result of a violation of [sections 2 through 2N of] this Act”)) and which was amended in 1988 to delete reference to the enumerated specific violations and instead broadened to include any violation of the Consumer Fraud Act. Although such application of the incorrect law may have affected the decision of the circuit court below, it is not material to our interpretation of the holding of Green-berg.

The applicable language in Greenberg provides that the Consumer Fraud Act permits “a cause of action for damages and a violation can be found even if no damages are suffered.” (Greenberg, 206 Ill. App. 3d at 45.) Greenberg then goes on to cite the statutory language declaring certain conduct unlawful “whether any person has in fact been misled, deceived or damaged thereby.” (Greenberg, 206 Ill. App. 3d at 45-46.) Greenberg then concluded that the Consumer Fraud Act allows a private cause of action if a plaintiff can show that he “suffered damages as [a] result” of the unlawful conduct. (Greenberg, 206 Ill. App. 3d at 46.) Thus, although a violation of the Consumer Fraud Act may occur in the absence of damages, a private cause of action does not arise absent a showing of both a violation and resultant damages. Greenberg merely recognized the distinction between a violation absent damages, which the Attorney General may prosecute (Ill. Rev. Stat. 1989, ch. 121½, par. 263), and a violation causing damages, which either the Attorney General or a private party may pursue (Ill. Rev. Stat. 1989, ch. 121½, par. 270a).

Plaintiff asserts, however, that nominal damages may be presumed based on a violation of the Consumer Fraud Act. A venerable principle of the law was the presumption of damages from every infringement of a right. (Crosby v. City of Chicago (1973), 11 Ill. App. 3d 625, 629.) However, that rule has been expressly abandoned in Illinois in negligence actions. (Crosby, 11 Ill. App. 3d at 629.) Rather, the presumption continues only for intentional torts. (Crosby, 11 Ill. App. 3d at 630 (supplemental opinion after rehearing).) However, in expanding the application of the Consumer Fraud Act to provide broader protection to consumers than that found under common-law fraud, the legislature eliminated the element of intent, and innocent misrepresentations are now actionable. (American Buyers Club, Inc., 46 Ill. App. 3d at 259.) In the absence of a mental state equivalent to that of an intentional tort, we find damages may not be presumed under the Consumer Fraud Act.

Finally, reliance by the buyer remains an element of a cause of action under the Consumer Fraud Act. Section 10a specifically provides that “[a]ny person who suffers damage as a result of a violation of *** this Act committed by any other person may bring an action against such person.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 121½, par. 270a(a).) Thus, just as with damages, reliance remains an element of a private cause of action although it has been eliminated as a requirement for actions brought by the Attorney General.

Although the decision of the Appellate Court, First District, in Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, appears to otherwise hold, Brooks is not controlling because it was decided under a prior version of the Consumer Fraud Act that did not expressly provide for a private cause of action. (Brooks, 47 Ill. App. 3d at 272-73.) The legislature subsequently amended the Consumer Fraud Act to conform to judicial interpretations of the statute and to expressly allow a cause of action only when a violation results in damages. (See Ill. Rev. Stat. 1985, ch. 121½, par. 270a.) Moreover, Brooks addressed the propriety of a class certification and whether class questions predominated over individual questions. (Brooks, 47 Ill. App. 3d at 272-73.) However, as was explained in Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, in deciding whether common questions predominate over individual questions, the focus is on the violation of the Consumer Fraud Act. (Hayna, 99 Ill. App. 3d at 711.) Therefore, in the context of certification of a class, it is the intent of the seller, rather than individual reliance of the buyer required for the private cause of action, that is dispositive. Hayna, 99 Ill. App. 3d at 711.

In contrast to common-law fraud, to state a cause of action for fraud under the Consumer Fraud Act a plaintiff must allege: (1) a statement by the seller; (2) of an existing or future material fact; (3) that was untrue, without regard to the defendant’s knowledge or lack thereof of such untruth-, (4) made for the purpose of inducing reliance; (5) on which the victim relied; and (6) which resulted in damages to the victim. With these elements of common-law fraud and fraud under the Consumer Fraud Act in mind, as well as the distinctions between these causes of action, we now turn to the alleged misrepresentations to determine if plaintiff sufficiently alleged facts to support an inference of each of the necessary elements.

We consider first the circuit court’s finding that plaintiff’s signature on the sales forms rendered plaintiff’s reliance on the salesman’s alleged misrepresentations unreasonable. (See Belleville National Bank v. Rose (1983), 119 Ill. App. 3d 56, 59-61.) The reasonableness of a plaintiff’s reliance is determined at the time such plaintiff acts in reliance on the misrepresentation. (Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 247-48.) The signing of a buyer’s order creating a binding contractual obligation is conduct in reliance on the representations that preceded such conduct. (Buechin, 159 Ill. App. 3d at 247-48.) A plaintiff’s subsequent opportunity to inform himself of the true facts contradicting such misrepresentation cannot render such prior reliance unreasonable. Buechin, 159 Ill. App. 2d at 248.

Contrary to the dealer’s assertions, plaintiff testified at her deposition that the salesman hand wrote the information concerning the Jetta on the blanks in the preprinted retail order form omitting the fact that the Jetta was used and that plaintiff signed the retail order form several hours before the general manager/finance manager completed the other documents containing the true information. Thus, plaintiff acted in reliance on the salesman’s representation not when she signed the sales forms containing the true information, but rather when she relied on the alleged misrepresentations of the salesman and executed the retail order form. (See Buechin, 159 Ill. App. 3d at 248, 250.) On execution, the retail order gave rise to plaintiff’s obligation to the dealer, which the dealer in fact attempted to enforce during the pendency of this suit when it filed its small claims action against plaintiff. Plaintiff’s later opportunity to discover the alleged misrepresentation does not alter the nature of her conduct or reliance as reasonable at the time she signed the retail order form and entered that contract. See Buechin, 159 Ill. App. 3d at 248, 250.

The dealer also asserts that plaintiff’s failure to attach the retail order form to either her original or amended complaint precludes her from relying on such document. However, we consider all the pleadings and must do so in the light most favorable to plaintiff, including any reasonable inferences that may be drawn from such pleadings in their entirety. (Dockery, 185 Ill. App. 3d at 304.) It is entirely reasonable to infer that the retail order form was omitted from plaintiff’s pleadings because the omissions therein contained neither supported nor contradicted the alleged oral misrepresentations. However, the dealer attacked the reasonableness of plaintiff’s reliance on such alleged misrepresentations, and the retail order form is evidence of the reasonableness of plaintiff’s reliance at the moment she became contractually obligated to the dealer. The circuit court erroneously found that plaintiff’s reliance occurred when she executed the sales forms and, therefore, erred in finding that plaintiff’s reliance was unreasonable.

We next consider the circuit court’s finding that plaintiff’s reliance on the alleged misrepresentation as to the extended warranty was unreasonable. It found that the plaintiff’s reliance on the salesman’s representation of the duration of the extended warranty was unreasonable because of the express contradiction of such representation in the eventual written warranty agreement. Plaintiff’s deposition testimony indicated that the alleged oral misrepresentation of the availability of an extended warranty was a factor in her decision to purchase the demo Jetta despite its prior use. Thus, plaintiff relied on the misrepresentation of the extended warranty not only in deciding to purchase the extended warranty itself, but in deciding to purchase the Jetta. As we have found, such reliance was reasonable at the time of plaintiff’s decision to purchase the Jetta. Therefore, we find that her reliance on the alleged misrepresentation of the extended warranty was also not unreasonable for that purpose.

The circuit court next found that plaintiff’s reliance on the salesman’s alleged misrepresentations of the availability of low-cost financing was unreasonable because it was an inactionable promise to do something in the future. (Soules, 79 Ill. 2d at 286; Parsons, 142 Ill. App. 3d at 359.) Although this finding was correct under common-law fraud, misrepresentation of future facts is actionable under the Consumer Fraud Act. (Duhl, 102 Ill. App. 3d at 495.) However, the circuit court also found that because plaintiff returned the Jetta without making any payments under the retail financing agreement she failed to allege facts to support the element of damages.

We have disposed of plaintiff’s assertion that damages are unnecessary under the Consumer Fraud Act or that a presumption of damages arises from a violation of such act in identifying the elements of a cause of action for statutory fraud. However, plaintiff also asserts that the cost of retaining an attorney to protect her from the dealer’s collection attempts and the inference of damages arising from deposition testimony that plaintiff stopped payment on her deposit and down-payment checks to the dealer sufficiently allege facts inferring damages. In addition, the depositions submitted also refer to plaintiff’s rental of temporary transportation, which arguably gives rise to an inference of damages as well. See Gent v. Collinsville Volkswagen, Inc. (1983), 116 Ill. App. 3d 496, 497.

Although we agree that such deposition testimony gives rise to a bare inference of damages, we find that those damages were the result of plaintiff’s conduct in signing the retail order form in reliance on the alleged demo and warranty misrepresentations. Similarly, the dealer’s small claims action and plaintiff’s attorney fees defending it were based on the retail order form and not the retail installment contract. (See Marvel Engineering Co. v. Matson, Driscoll & D’Amico (1986), 150 Ill. App. 3d 787, 793; Nalivaika v. Murphy (1983), 120 Ill. App. 3d 773, 776 (attorney fees for defense of third-party action caused by plaintiff’s tortious conduct proper as compensatory damages); see also Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 374 (attorney fees that are “nothing more than ordinary losses resulting from the defendant’s conduct” are recoverable as damages).) Finally, there are no allegations or facts to support an inference that the financing rate was a material fact in plaintiff’s decision to execute the retail order form. In addition, the express language of the retail installment contract describing the Jetta as used rendered plaintiff’s reliance on any reference to a new-car financing rate unreasonable. (See Belleville National Bank v. Rose, 119 Ill. App. 3d at 59-61.) Thus, the circuit court did not err in granting partial summary judgment to the dealer regarding the alleged financing misrepresentations.

The order of the circuit court granting defendant’s motion for summary judgment is affirmed in part and reversed in part. Both count I and count II of plaintiff’s complaint allege four distinct misrepresentations by defendant. Specifically, we affirm that portion of the circuit court’s order as it relates to defendant’s alleged misrepresentations of its ability to obtain the lowest new-car financing rate and 14.25% as such rate. The order of the circuit court is reversed, and the cause is remanded for further proceedings relating to plaintiff’s allegations that defendant misrepresented that the Jetta was a demo and that a 6-year/60,000-mile extended warranty was available.

Affirmed in part; reversed in part.

INGLIS, P.J., and BOWMAN, J., concur.