text:
    JOSEPHINE MELKO, Plaintiff-Appellant, v. RAY M. DIONISIO, Defendant-Appellee.
    Second District
    No. 2—91—0168
    Opinion filed October 9, 1991.

      R.S. Maione, of Chicago, for appellant.
    Stephen J. Thompson, of Stamos Trueco, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Josephine Melko, appeals a trial court order dismissing her complaint for common-law fraud against defendant, Ray M. Dionisio. Plaintiff alleged that defendant engaged in a scheme to defraud her by selling her corporate notes that he misrepresented as “CDs.” Defendant moved pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5)) to dismiss the complaint as barred by the five-year statute of limitations for fraud (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205). The trial court granted the motion and denied plaintiff’s motion to reconsider and to grant leave to amend the complaint to include a claim for breach of contract.

On appeal, plaintiff argues that (1) the trial court erred in holding that, as a matter of law, the complaint was time barred, as plaintiff raised a factual issue of when she was on notice of the alleged fraud; and (2) the trial court abused its discretion in not allowing her to amend her complaint, as her allegation that defendant dominated the corporation with whom she contracted was sufficient to bind defendant personally. We reject both contentions and affirm.

On January 31, 1990, plaintiff filed her original complaint against defendant and Consumer Systems Corporation (CSC), alleging on information and belief that defendant was president and owner of a controlling interest in CSC. The complaint then made the following allegations. On or about 1981, defendant approached plaintiff, seeking to interest her in lending money to CSC. Plaintiff’s funds were then invested only in bank certificates of deposit (CDs), and she told defendant that she was interested only in investing in CDs. Defendant represented to plaintiff that she would be investing in CDs and gave her a written summary of available investments with their maturities and rates of return. A copy of this summary is attached to the complaint and includes the handwritten heading “CORPORATE NOTES OR C.D.’S.”

Based on defendant’s written and oral representations that the proposed investment was a “CD,” plaintiff invested $10,000, which defendant promptly repaid in November 1981 along with interest of $1,500 as promised. Along with the interest and principal, he sent her a letter, dated November 10, 1981, with the heading “CORPORATE NOTE/CD SUBSCRIPTION.” In the letter, defendant, on behalf of CSC, thanked plaintiff for her participation and informed her that the company would let her know of any future investment opportunities. Plaintiff attached a copy of this letter to the complaint.

Having obtained plaintiff’s confidence, defendant then induced her to make a further investment of $50,000, representing that the corporate notes were “CDs.” To retain plaintiff’s confidence, defendant subsequently paid plaintiff further sums amounting to about $3,000 and thereafter assured plaintiff that temporary obstacles held up payment on her “CDs.” Defendant induced plaintiff to change the form of her investment, telling her that her “CDs” were safe even after CSC became bankrupt, that the various changes were “mere formalities” and that her money would be repaid.

The complaint alleged that “in recent times” plaintiff learned that she had been duped by defendant, whose misrepresentations as to her “CDs” and their repayment were steps in his scheme to defraud her. The complaint prayed for compensatory and punitive damages.

After plaintiff took a voluntary nonsuit against CSC, defendant moved to dismiss the complaint. Defendant argued that because plaintiff alleged fraud in connection with certain investments she made between 1982 and 1984, her complaint was filed outside of the five-year statute of limitations.

Defendant included a statement of facts, later verified by affidavit. Defendant alleged the following facts. On January 8, 1982, plaintiff purchased a $10,000 note from CSC, identified as “Short-Term Corporate Note No. 8.” Neither party could locate a copy of the note. Plaintiff received monthly interest checks on the note. When it matured on June 1, 1982, plaintiff reinvested the money in a similar corporate note, also denominated as “Note No. 8.” The note, a copy of which is attached to defendant’s motion, identifies the obligation as “SHORT-TERM CORPORATE NOTE” and does not use the term “Certificate of Deposit.” The note also states in capital letters that the securities represented therein had not been registered under the Federal act of 1933 and states in small letters that “this Note is the obligation of CSC only.” Plaintiff received $58.24 interest on this note on June 15, 1982. On that date she rolled over this note into a long-term note, maturing on August 15, 1983. She invested an additional $30,000 and signed a note, identified again as Note No. 8, for this new $40,000 investment; the note, a copy of which defendant attached to his motion to dismiss, was similar in form and language to the note of June 1, 1982. As per the terms of the note, plaintiff received a “front end payment” of $2,000 on June 15, 1982, and, between June 15, 1982, and August 15, 1983, received 13 interest checks aggregating $6,500. Defendant attached CSC’s records of these payments to his motion to dismiss.

On August 11, 1983, plaintiff renewed her $40,000 note for one year at 14% interest. The new note was denominated “Note No. 8A” and was similar in language and form to the previous notes. Attached to defendant’s motion are corporate records evidencing plaintiff’s receipt, between September 13, 1983, and June 15, 1984, of 10 monthly interest payments of $466.67 each.

In the latter half of 1983, CSC prepared to undertake an “initial public offering” of securities to the general public. Part of the preparation included securing a $1.8 million credit line from Continental Illinois Bank (Continental). Also, CSC was required to inform present noteholders that their notes were not in technical compliance with Illinois law and to give the noteholders an opportunity to rescind the outstanding notes. Plaintiff therefore received a letter dated November 19, 1983, from CSC’s controller, Edgar Dionisio, informing her that the sale of Note 8A was voidable at her option because CSC had “failed to file a certain form with the Secretary of State” as required by the Illinois Securities Act of 1953. The letter gave plaintiff 15 days in which to accept CSC’s offer to rescind the sale; if plaintiff did so, CSC would repay her principal plus remaining interest and would release her from any contractual obligations to CSC she undertook in connection with the sale.

Plaintiff did not accept the offer, but on April 19, 1984, signed a new short-term corporate note, maturing on July 19, 1984, for $10,000 and $400 interest. The note was similar in language and form to plaintiff’s earlier notes.

On June 27, 1984, Continental, in the early stages of its well-publicized financial crisis, threatened to call the CSC loan and demanded, among other things, that CSC obtain the consent of its note-holders to subordinate their notes to Continental’s loan. On July 3, 1984, defendant, at the direction of Continental, informed plaintiff and other noteholders by letter that Continental demanded that the noteholders agree to subordinate their interests to that of Continental for an undetermined amount of time and that CSC freeze interest payments. The letter stated that if CSC did not meet these conditions, Continental would refuse to assist CSC, “the Company cannot continue to operate and the Noteholders would stand to lose their investment.” Plaintiff signed her copy of the four-page subordination agreement on July 14,1984.

According to defendant’s motion to dismiss, plaintiff some time in October 1984 converted $25,000 of her note obligations to CSC common stock, signing a disclosure acknowledgment letter. Defendant attached a copy of an acknowledgment letter to his motion to dismiss; this copy, however, was signed by another investor, not plaintiff. The letter states that the investor was purchasing the shares with full knowledge that CSC was technically insolvent; that it was delinquent in its taxes and operating under a Federal tax lien; and that the outstanding loan with Continental was in jeopardy “due to covenant violations.” The letter also stated:

“With full knowledge of the above facts, I willingly make this investment with the realization that my investment may not appreciate and indeed that unless the status of the Corporation changes, my entire investment is at risk and may be lost. Further, I understand that I have access to any and all additional information regarding the Corporation. I have also discussed this investment with my own professional counselors.”

Although the record contains no such letter signed by plaintiff, defendant did attach, with his response to plaintiff’s motion to reconsider the dismissal, a copy of a form, on CSC stationery, signed by plaintiff and defendant on October 16, 1984. Plaintiff stated therein that on October 16, 1984, she indicated her intention to invest in CSC common stock by signing a letter of intent; that since that time she had “either personally or through [her] advisors carefully examined all of the data then given to [her] and made such other inquiries as [she] considered necessary to satisfy [herself] about this investment.” The letter also stated, “I recognize that this investment involves a high degree of risk and is best described as speculative in nature. I represent to you that I can afford the loss of this investment.”

On November 9, 1984, CSC also sent plaintiff a copy of her revised Note 8A, which now represented an obligation of $25,000 principal plus $5,061.76 interest, maturing on October 29, 1985. The note was similar in form and language to plaintiff’s previous notes.

CSC was forced into bankruptcy on February 25, 1985. On May 6, 1985, CSC filed a voluntary petition for reorganization under chapter 11 of the Federal Bankruptcy Code. The Federal bankruptcy court notified plaintiff and other creditors of CSC of their right to file claims at a creditors’ meeting to be held June 13, 1985. Plaintiff did not file any claim in the proceeding. Plaintiff also received a copy of CSC’s reorganization plan, under which noteholders including plaintiff would receive, as full satisfaction of their claims, preferred shares with an aggregate par value of 12% of their claims, cash dividends on this stock from January 1, 1995, through January 1, 2000, and the right thereafter to convert their shares to common stock with a value equal to 88% of their respective allowed claims. Plaintiff voted to accept the plan, the bankruptcy court approved the plan, and on May 24, 1989, CSC was discharged from bankruptcy.

In moving to dismiss the complaint, defendant argued that the five-year statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13— 205) required plaintiff to file her suit within five years of the time that she knew or should have known of defendant’s alleged fraud; that by 1984 at the latest, plaintiff was aware of all of the facts needed to discover the alleged fraud; that although plaintiff alleged that defendant misled her into believing that the notes were “CDs” rather than corporate notes, the notes themselves and the November 1983 rescission letter clearly informed her that the instruments were corporate notes and solely the obligation of CSC; and that the correspondence and documents regarding the subordination of plaintiff’s note to the Continental loan and the partial conversion of plaintiff’s note to a speculative investment in CSC stock again put plaintiff on notice that her investment was not what she alleged that she originally believed it was. Defendant also argued that his correspondence with plaintiff negated any argument that he fraudulently concealed plaintiffs cause of action from her; she could not therefore argue that the statute of limitations had been tolled under section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 215).

In response, plaintiff argued that defendant was a fiduciary of plaintiff and that the documentation that he provided her was irrelevant to the limitations issue because defendant’s domination of plaintiff enabled him to deceive her by representing to her that these various documents were formalities and that he would eventually pay her. Therefore, argued plaintiff, her suit was timely because she discovered the fraud in 1989, after her rights expired in the bankruptcy proceeding and defendant told her that he would not pay her.

Plaintiff supported her response with a statement of facts verified by affidavit. She stated that she and her bedridden husband resided in a lower middle-class Chicago neighborhood. They lived on her husband’s pension and their savings; their savings were invested only in certificates of deposit.

Plaintiff’s daughter worked for CSC and introduced her to defendant, who later called plaintiff to interest her in investing in CSC. After plaintiff told defendant that her and her husband’s savings were invested in a CD, defendant represented his investment as a “CD.” Plaintiff invested in the “CD,” and defendant promptly paid the principal and interest upon maturity. However, at defendant’s request, plaintiff immediately reinvested the money. When plaintiff’s husband received a disability award, defendant successfully solicited her for that money and always told her that the notes and stock were “CDs.”

Plaintiff alleged further that when CSC suspended interest payments on the notes, defendant assured her that the matter was a “formality” and that the “CDs” were safe. Defendant also induced her to ignore the November 1983 rescission letter by telling her that it was a “formality.” When CSC filed for bankruptcy, defendant assured her that when the company was out of bankruptcy (to quote the statement of facts), “she would be paid in full plus interest.” When, in 1989, she discovered that the approved bankruptcy plan provided for only partial payment of her interest, he told her that the bankruptcy court forbade him to pay her, but that when the company was out of bankruptcy, he would pay her in full. When CSC emerged from bankruptcy, plaintiff asked for her money, but defendant refused and told her that he had no money to pay her. Defendant later told plaintiff’s daughter that he was making money “hand over fist.” Plaintiff’s daughter refused defendant’s invitation to go to Hawaii with him.

After hearing arguments, the trial judge granted defendant’s motion to dismiss. Plaintiff then filed a motion to reconsider and to amend the complaint. The proposed amendment added a count for breach of contract in which plaintiff, in addition to incorporating the original complaint insofar as relevant, alleged that defendant executed a written undertaking to issue plaintiff “CDs” of CSC; that defendant at all relevant times owned or substantially controlled the equity of CSC, making the corporation defendant’s alter ego and therefore making the corporation’s obligation defendant’s personal obligation; and that defendant refused to pay plaintiff for her “CDs” even though plaintiff had performed all of her obligations under the contract. As evidence of this written obligation, plaintiff incorporated by reference the exhibits from her original complaint. The trial court denied plaintiff’s motion, and she now appeals.

Plaintiff argues first that the trial court erred in holding that her claim for fraud was barred by the five-year statute of limitations. She contends that because defendant was her fiduciary (or at least because she raised a factual question on that issue), she was not obliged to inquire into the facts that might have put her on notice that she had a cause of action, but was entitled to rely on defendant’s assurances that she was purchasing “CDs” and that the “CDs” were safe. Because of defendant’s fraudulent concealment of her cause of action, she concludes, the statute of limitations did not begin to run until she actually discovered the fraud in 1989, and her suit was timely brought.

We disagree. Even granting the existence of a fiduciary relationship, the evidence before the trial court establishes that, more than five years before she filed her complaint, plaintiff had actual information sufficient to put her on notice of any alleged fraud. Given this actual knowledge, plaintiff could not invoke fraudulent concealment to extend the statute of limitations.

Section 2 — 619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5)) enables a defendant to move for involuntary dismissal based on the statute of limitations. The purpose of section 2 — 619 is to provide a means to dispose of issues of law or of easily proved issues of fact. (Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232.) A motion under section 2 — 619 admits well-pleaded facts alleged in the complaint, but not conclusions of law or conclusions of fact unsupported by specific factual allegations. (Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 1105.) A motion to dismiss pursuant to section 2 — 619 should not be granted if material facts are controverted, and in ruling upon the motion the trial court may not weigh the evidence. Marvel Engineering Co. v. Matson, Driscoll & D’Amico (1986), 150 Ill. App. 3d 787, 796.

As the parties agree, this action for common-law fraud is governed by the five-year statute of limitations (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205; Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 560). The limitations period begins to run when the plaintiff knows or reasonably should know that an injury has occurred and that it was wrongfully caused. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415-16.) This is the point where the injured party possesses information sufficient to put a reasonable person on inquiry to determine whether actionable conduct is involved. (Knox College, 88 Ill. 2d at 416.) When the limitations period commences in a given case is ordinarily a question of fact unless only one conclusion may be drawn from undisputed facts. Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 586.

Section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 215) provides additionally that “[i]f a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such a cause of action.”

The sheer vagueness of plaintiff’s complaint and subsequent argument, at both the trial and appellate levels, does not ease our consideration of her appeal. The gist of the complaint is that defendant schemed to defraud plaintiff by inducing her to invest money that he did not intend to pay back. However, plaintiff’s argument on appeal centers not on the allegation that defendant never intended to pay back the money, but on her assertion that defendant misled her about the type and quality of her investment. As defendant has not challenged the sufficiency of the complaint, we choose not to dwell on the deficiencies of plaintiff’s allegations except insofar as they are relevant to the particular issues on appeal. In discussing these issues, we may consider not only the complaint but the well-pleaded allegations of the verified fact statement that plaintiff made in response to the affirmative defense. See Senior Housing, Inc. v. Nakawatase, Rutkowski, Wyns & Yi, Inc. (1989), 192 Ill. App. 3d 766, 771; Fourdyce v. Bay View Fish Co. (1982), 111 Ill. App. 3d 76, 80.

The investments in “CDs” upon which plaintiff focuses were complete by 1984. As plaintiff’s brief characterizes the actionable fraud in this case as the sale of the “CDs,” we may conclude that she argues only that defendant’s post-1984 alleged misrepresentations are material to the issue of when the limitations period started to run; that is, we do not understand plaintiff to assert that any of defendant’s actions after 1984 were essential elements of her actionable injury itself.

Absent any fiduciary relationship, there can be no doubt at all that plaintiff knew or should have known facts sufficient to put her on inquiry more than five years before she filed her complaint. By the end of 1984, she had ample evidence that her investments were not what she allegedly had assumed they were. Indeed, it may be that she was charged with such knowledge at the outset. A “certificate of deposit” is a written acknowledgment by a bank of a receipt of money with an engagement to repay it. (Ill. Rev. Stat. 1989, ch. 26, par. 3— 104(2)(c); see Black’s Law Dictionary 205 (5th ed. 1979).) The distinction between the safe “CDs” that plaintiff alleges she thought she was getting and the “CDs” that defendant sold her is that the former are issued by banks while the latter were issued by the defendant’s closely held corporation. This difference is of course significant, but it was never hidden from plaintiff; from the outset, she was aware that she was lending money to the corporation for which her daughter worked and not to an insured financial institution.

In any event, by the end of 1984 plaintiff was definitely on notice that something was suspiciously awry. She had received and in some cases signed documents stating that (1) her investments were corporate notes that were solely the obligation of CSC; (2) interest payments on the notes would be suspended because of pressure from Continental; (3) her investment was being changed from $50,000 in notes to $25,000 in notes and $25,000 in common stock; and (4) this purchase of common stock was a risky and speculative investment in a technically insolvent corporation. Moreover, defendant had not paid her interest on her note since July.

At least absent a fiduciary relationship with defendant, plaintiff was, under such circumstances, obligated to make reasonable investigations consisting, at a minimum, of reading the documents themselves. (Belleville National Bank v. Rose (1983), 119 Ill. App. 3d 56, 59.) Even assuming that she read none of what she was signing, plaintiff was aware by late 1984 that defendant had stopped paying her interest and that half of her investment in “CDs” had been converted into stock.

Plaintiff invokes the rule that one who intentionally misrepresents the facts, knowing that another person will thereby be induced to act, may not later evade liability by claiming that the other person failed to discover the misrepresentation. (Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 426.) She argues that defendant may not point to her failure to investigate, as his own false representations that her money was safe regardless of various “formalities” induced plaintiff not to investigate. However, the rule cited by plaintiff is qualified. Plaintiff must show that her reliance was reasonable; otherwise, the duty of inquiry is not suspended. (Guingrich, 139 Ill. App. 3d at 426; see AMPAT/Midwest, Inc. v. Illinois Tool Works, Inc. (7th Cir. 1990), 896 F.2d 1035, 1041-43.) Plaintiff has not met this burden, as the facts known to her by late 1984 were such as to make defendant’s assurances inherently suspect. Moreover, plaintiff’s allegations of such assurances are made with so little specificity that we cannot necessarily infer that defendant made them with the intent to mislead her or defraud her.

We cannot agree with plaintiff that defendant’s alleged assurances that the various documents she signed were “formalities” and that she would eventually be paid constitute fraudulent concealment. Plaintiff had the burden to allege facts that affirmatively showed such fraudulent concealment of her cause of action. (Pratt v. Sears Roebuck & Co. (1979), 71 Ill. App. 3d 825, 830.) Fraudulent concealment ordinarily requires affirmative acts or representations designed to prevent discovery of the cause of action. (Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 561.) Moreover, the plaintiff must show that these acts did in fact prevent discovery of the cause of action. McDaniel v. La Salle Ambulance Service, Inc. (1982), 108 Ill. App. 3d 1042, 1045; Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 898.

The instances of fraudulent concealment are alleged without enough specificity to inform us whether they were in fact false representations or whether the intent to defraud is necessarily or probably inferable from them. (See Board of Education of City of Chicago v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 457.) Assuming arguendo that plaintiff has adequately alleged such affirmative representations, she has not demonstrated that they did in fact prevent the discovery of the action. As we have explained, plaintiff by the end of 1984 had actual information that imposed upon her a duty of inquiry. Where such actual information is available, a plaintiff must take heed of it even though the defendant makes representations to the contrary. Skrodzki v. Sherman State Bank (1932), 348 Ill. 403; Gadsby v. Health Insurance Administration, Inc. (1988), 168 Ill. App. 3d 460, 473; Luciani v. Bestor (1982), 106 Ill. App. 3d 878, 888.

Plaintiff argues, however, that because defendant was her fiduciary, she was not obligated to use ordinary diligence in inquiring into whether she had suffered an actionable wrong. Therefore, she reasons, the statute of limitations began to run only in 1989, when she actually discovered defendant’s fraud. We cannot agree.

Plaintiff is correct that where a fiduciary has a duty to disclose certain facts to the plaintiff but fails to do so, the plaintiff’s failure to use diligence to ascertain these facts is excused, and the statute of limitations begins to run when the plaintiff actually discovers the fraud. (Prueter v. Bork (1981), 105 Ill. App. 3d 1003, 1006.) A fiduciary relationship may excuse a party from the obligation to read a document that she has signed. (Prueter, 105 Ill. App. 3d at 1007; Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82.) Furthermore, in a confidential or fiduciary relationship, the dominant party’s silence alone may constitute fraudulent concealment. Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 562.

Although plaintiff does not maintain that as a matter of law a debtor and creditor stand in a fiduciary relationship, a position for which we are aware of no support, she argues that defendant made himself a fiduciary of plaintiff under the facts of this case when he obtained her confidence after repaying her on her initial “CD” in 1982. Plaintiff points to the parties’ unequal levels of financial sophistication, to her reliance on defendant’s advice and representations, and to defendant’s aggressive role in soliciting her business.

In addition to categories of relations where fiduciary duties exist as a matter of law, the concept has also been held broadly applicable to relationships in which trust is reposed on one side and there is a resulting influence and superiority on the other side. (De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 26; Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82, 97-98.) Important factors to consider in determining whether a fiduciary relationship exists in fact include the degree of kinship, disparity of age, health, mental condition, education and business experience between the parties, and the extent to which the allegedly subservient party entrusted the handling of her business affairs to the other and reposed faith and confidence in him. Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416.

Although somewhat vague, plaintiff’s allegations do raise a factual issue as to whether defendant was her fiduciary. The undisputed and substantial difference in the parties’ level of financial sophistication, particularly as to the transaction in question, combined with defendant’s aggressive pursuit of plaintiff’s business and the parties’ subsequent dealings, satisfies us that plaintiff has raised a genuine question in this regard. (See, e.g., Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82.) We therefore may not assume that the trial court found or would have found otherwise. See Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 704 (where nonmovant’s affidavit raises genuine issue of fact, trial court may not resolve issue without evidentiary hearing).

We cannot conclude, however, that even the existence of a fiduciary relationship would save this cause from the limitations’ bar. Fraudulent concealment necessarily requires that the plaintiff show that the facts putting her on notice of her cause of action were actually concealed. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 215; McDaniel v. La Salle Ambulance Service, Inc. (1982), 108 Ill. App. 3d 1042, 1045.) Thus, although a defendant’s silence may amount to fraudulent concealment where it does in fact conceal matters from the plaintiff, here the information actually available and disclosed to plaintiff — and the facts of which plaintiff was aware, such as that her investment was the obligation of a private corporation, that her interest payments were suspended, and that she herself had converted half of her “CDs” to common stock — put plaintiff on notice by the end of 1984 of defendant’s alleged fraud.

Similarly, although the existence of a fiduciary relationship may excuse a plaintiff’s failure to investigate diligently to ascertain facts that would put her on notice of possible injury, there is plainly a difference between the failure to ascertain facts through diligent inquiry and the failure to act upon facts of which the plaintiff already has actual knowledge. Although plaintiff argues that defendant could have given her adequate notice only via a written warning that “THIS INSTRUMENT IS NOT A CD,” we see no reason why, even as to an unsophisticated investor, the information of which plaintiff was actually or constructively aware was not fully as effective in triggering her duty of inquiry.

We therefore hold that the trial court properly granted defendant’s motion to dismiss.

We also believe that the trial court properly denied plaintiff’s motion to amend her complaint to add a cause of action for breach of a written contract. The denial of leave to amend will be upheld absent an abuse of discretion. Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 749-50.

Plaintiff’s theory is that her amended complaint states a cause of action against defendant because (1) the documents she attached to the original complaint, including the schedule of proposed interest rates and maturities for various “CDs,” the corporate records indicating defendant’s payment of principal and interest on the first “CD” by November 1981, and defendant’s November 1981 letter thanking plaintiff for her initial investment, amount to a written contract with CSC to purchase “CDs” in 1982 and (2) even though the “contract” was with CSC, plaintiff is entitled to pierce the corporate veil and hold defendant personally liable because, as defendant was CSC’s sole or dominating shareholder at the time of the contract, CSC was defendant’s “alter ego” and he may therefore be held liable for the corporation’s obligations.

We find no merit in plaintiff’s arguments. The documents on which she relies evidence at most a contract for the initial purchase of “CDs,” which plaintiff has acknowledged all along that defendant honored. Nothing remotely resembling a written contract for later purchases is presented by these documents.

Moreover, even assuming arguendo that plaintiff properly alleged a written contract, her amended complaint is fully inadequate to enable her to pierce the corporate veil. The general rule is that a corporation is an entity separate and distinct from its officers, shareholders and directors and that they will not be held personally liable for the corporation’s debts and obligations. (McCracken v. Olson Cos. (1986), 149 Ill. App. 3d 104, 109.) The corporate form may be disregarded under certain limited circumstances where the corporation is merely the alter ego or the business conduit of the dominating personality. (People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 128-29; Gallagher v. Reconco Builders, Inc. (1980), 91 Ill. App. 3d 999, 1004.) However, a party seeking to do so must show that (1) there is such a unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and (2) circumstances are such that adhering to the fiction of a separate corporate existence would promote injustice or inequity. McCracken, 149 Ill. App. 3d at 109.

In determining whether the first of these requirements has been met, courts look not to a single factor but consider a number of variables such as inadequate capitalization, failure to observe corporate formalities, the commingling of funds, and the absence of corporate records. (McCracken, 149 Ill. App. 3d at 109.) Plaintiff’s proposed amendment alleges none of these factors, and the record tends to negate at least the last of them. Plaintiff relies instead on her allegation that defendant was the sole or primary shareholder and her conclusion that CSC was therefore his “alter ego.”

Such allegations are inadequate as a matter of law to pierce the corporate veil. There is no minimum number of stockholders for a valid corporate existence, and a corporation with only one shareholder is entirely permissible. (Gallagher, 91 Ill. App. 3d at 1005; Bankers Trust Co. v. Chicago Title & Trust Co. (1980), 89 Ill. App. 3d 1014, 1019.) Absent any allegation that defendant disregarded CSC’s corporate entity, such as by intermixing its finances with his own or using it as a thinly capitalized sham to avoid liability, the mere allegation that he was a dominant or sole shareholder is insufficient to enable a court to disregard the separate corporate existence. Bankers Trust, 89 Ill. App. 3d at 1019-21; Amsted Industries, Inc. v. Pollak Industries, Inc. (1978), 65 Ill. App. 3d 545, 549-50.

The trial court was therefore within its discretion in denying the motion to amend the complaint.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JONATHAN MARTIN, Defendant-Appellant.
    Second District
    No. 2—90—0704
    Opinion filed October 9, 1991.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, Kathleen T. Zellner & Associates, of Naperville, and James P. Palermini, of Huck, Bouma, Martin, Charlton & Zellner, of Glen Ellyn, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Howard Brookins, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

A jury convicted defendant, Jonathan Martin, of one count of delivery of between 400 and 900 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1987, ch. BG1^, par. 1401.1(2)), and one count of delivery of between 15 and 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. BGVa, par. 1401(a)(2)). On appeal, defendant argues that he was not proved guilty beyond a reasonable doubt of either count because he was entrapped as a matter of law. We affirm.

The State’s primary witness was Joseph DeAnda, the undercover agent to whom defendant made the deliveries. On July 12, 1989, DeAnda, a Bensenville police officer assigned to narcotics investigation work with the Du Page Metropolitan Enforcement Group (Du-MEG), met with Jeanine Walters at the Bensenville police station and signed her up as an informant. DeAnda testified that he had never met or heard of Walters before that date. A Bensenville police detective had introduced Walters to DeAnda that day, informing DeAnda that Walters had been arrested for driving with a revoked license after a previous conviction of driving under the influence. DeAnda interviewed Walters. He told her that, in return for being an informant, she might get money and consideration on her pending charge, both normal means of compensating informants.

On Friday, July 14, 1989, DeAnda’s supervisor gave him money to buy an ounce of cocaine from defendant. According to DeAnda, this large an amount would be intended not for personal use but for resale to others. DeAnda went to Walters’ apartment in Bensenville. About 45 minutes after DeAnda arrived, defendant and his fiancee, Marian Anderson, arrived. Walters had told defendant that he would be meeting her boyfriend “Joe.” After Walters introduced the pair to DeAnda, she and Marian went into the kitchen, leaving defendant and DeAnda in the living room. No one else was in the apartment. Defendant handed DeAnda a bag of cocaine, and the two negotiated a price of $900. DeAnda then said that he could use at least five to six ounces of cocaine a week; defendant responded that he could supply that amount at a discounted price of $875 an ounce. DeAnda asked how he could get in touch with defendant; defendant told him to contact Walters. DeAnda replied that she was tough to get and gave defendant his pager number. Defendant wrote down the number and said he would use 58 as a code number.

Defendant and “Joe” conversed some more. After they discussed different ways of testing cocaine for purity, defendant asked DeAnda if the latter had a source for marijuana, which was scarce in the area. DeAnda said that he would see if he could find a source. Defendant also told DeAnda that he disliked police, having had a run-in with the Bensenville police in 1977, and was looking for a weapon with a lot of firepower and a limited amount of noise. DeAnda replied that he had a source for machine guns but would have to check on availability. Defendant said that he would page DeAnda at about 6:30 p.m. Tuesday, July 18.

On Tuesday, defendant paged DeAnda. DeAnda called defendant and told him that he needed two more ounces of cocaine. He also told defendant that the “sewing machine” (machine gun) had come in, but that he had not found a source of marijuana. Defendant replied that two ounces of cocaine would be no problem.

That day DeAnda received a circuit court order permitting him to tape-record his conversations with defendant. The jury heard tapes of these conversations, and transcripts of the tapes are part of the record on appeal. On Wednesday, July 19, at about 7:10 p.m., defendant paged DeAnda, leaving DeAnda the phone number of defendant’s fiancee, Marian Anderson. DeAnda called the number and spoke with defendant. Defendant recalled that DeAnda’s “order was due” and asked if DeAnda had called Walters; DeAnda replied that he had, but only got the answering machine. Defendant replied, “that’s all I got, too,” and asked if DeAnda had brought the “sewing machine.” DeAnda said that he had. The two then discussed a meeting place. Defendant suggested the intersection of Waveland and Irving, where he “used to pick up a lot of stuff,” as the area was “nice and secluded.” DeAnda suggested a busier place, the parking lot at Dominick’s at the corner of York and Grand. The two agreed to meet there at about 8:30. They also agreed on the sale of two ounces of cocaine for “the same amount,” in DeAnda’s words, with defendant adding, “when you can go for more then we’ll see what happens.”

When the two met as planned that evening, defendant handed DeAnda a rolled-up T-shirt; DeAnda unrolled it and found two bags, each containing one ounce of cocaine. DeAnda mistakenly handed defendant $1,900, and defendant gave back the extra $100. DeAnda showed defendant the “sewing machine” and silencer, which the two examined and discussed. Defendant told DeAnda he wanted to talk to a friend to make sure that it was legal; apparently reassured that it was, he counted out $1,000 for the gun. DeAnda informed him, however, that his friend would not sell the gun except as part of a “package deal” including 25 pounds of marijuana at $800 per pound. Defendant said that he would need to see a sample of the marijuana. DeAnda asked if defendant could trade cocaine for marijuana; defendant replied that he probably could do so at a good price and would talk to his source.

Defendant paged DeAnda Thursday evening, July 20. DeAnda called back the same number as before. The conversation was not recorded, DeAnda testified, because he had not brought his recording equipment home with him. Defendant told DeAnda he needed a sample of marijuana to test for quality; DeAnda replied that he would check with his source. Defendant agreed to get back in touch the next day.

Defendant’s number 58 activated DeAnda’s pager the next day; DeAnda called at about 6:50 p.m. Anderson told him to call back.

DeAnda called back Friday, July 22, and Anderson told him that defendant had told her to call DeAnda to find out if “he could get a sample” and if DeAnda could “do it tonight.” Defendant then spoke to DeAnda, explaining that he had paged the latter about a dozen times the previous evening, as planned, but had gotten no answer. DeAnda related that his source had shown him the marijuana and had agreed to let defendant examine it and sample some. The two discussed, at some length, possible deals; defendant eventually informed DeAnda that his source was interested in a “straight up trade” of 25 ounces of cocaine for 25 pounds of marijuana.

Defendant also asked about the “sewing machine.” DeAnda offered to sell it for $900, but agreed to bring the price down to $800. DeAnda said he would let defendant sample the marijuana; defendant replied that he wanted to be cautious because his source had been telling him that there was some “stuff” going around that looked and smelled good but would not “get you to where you want to go.” The two negotiated some more, with DeAnda offering to add some cash if defendant would come up with a kilogram (36-ounce) “brick” of cocaine. Each agreed to discuss matters with his source.

Defendant paged DeAnda a few minutes later. DeAnda called back and told defendant that his source wanted a simple “straight up” deal. Defendant agreed. DeAnda said that that day would not be a good one for him to do the deal because he was “in the doghouse.” Defendant asked him if the “old wifey-poo” was mad. DeAnda explained that he was not married, but his girlfriend was angry at him. DeAnda and defendant agreed to meet Monday evening. DeAnda also agreed to bring along the “sewing machine.” Defendant expressed great interest in “something with one of those things on the end of it,” agreeing with DeAnda’s comment that the gun was for a “somebody done you somebody wrong song.” DeAnda agreed to let defendant check out the marijuana; neither liked the feeling he got from marijuana, but defendant explained that others did, including people “down south” that he had interested. These others could make “this *** a big time on-going thing.” Defendant agreed to call DeAnda about 6:30 p.m. Monday.

The two spoke by phone Monday as planned, and at about 8:40 p.m., defendant and his brother arrived at the Dominick’s parking lot. Defendant got out of his car, exchanged greetings with DeAnda, and walked to DeAnda’s truck to inspect the marijuana. Defendant asked if it was “Sense or what?” and DeAnda replied that it was not Sensimillia but came from Mexico. Defendant inspected the marijuana. Defendant also asked about the “sewing machine” and explained he had brought no cash; DeAnda said he could not let it go without cash, and defendant agreed to “do it next time.”

Defendant then told DeAnda that he had checked DeAnda’s license plates “because I have friends in a lot of places and this [truck] isn’t registered to you.” DeAnda insisted that the truck was his and told defendant that he could show him the registration. Defendant, indicating that he was reassured, walked back to his car and brought over a package containing 700.60 grams of cocaine. At that point DeAnda activated an arrest signal. Police arrived, arrested defendant, and pretended to arrest DeAnda. Defendant was taken to the Bensenville police station.

DeAnda opined that 770 grams of cocaine would have a street value of $70,000 to $210,000. He admitted on cross-examination that this estimate assumed that the cocaine would be sold in small amounts; the amount that he got from defendant would sell for a bulk rate of $700 to $1,200 per ounce, or $17,500 to $30,000 overall.

On cross-examination, DeAnda reiterated that he had never met Jeanine Walters before July 12, 1989, and that to his knowledge she had not been involved with DuMEG before then. She did not tell him that she was a regular cocaine user or cocaine addict. DeAnda first testified that he found out some time after the initial interview that she had been in a drug rehabilitation program. After examining the informant sign-up sheet, however, DeAnda stated that Walters had told him this at the first interview.

When he signed Walters up, DeAnda and Walters went over the guidelines for informants. The guidelines forbid informants to sell or deliver or cause the sale or delivery of any controlled substance, to use their sexuality to induce anyone to sell or deliver a controlled substance, or to engage in activities constituting entrapment. DeAnda expected Walters to abide by the guidelines. To the best of his knowledge, Walters was not impaired or intoxicated at the interview. DeAnda testified on cross-examination that he made mental notes, but no written notes, of the July 12 interview. However, on redirect he explained that he recorded a two-page personal history report on Walters and took a half page of additional notes on a “debriefing sheet.”

DeAnda admitted that the July 14 meeting at Walters’ apartment was the only time he was present at a conversation between Walters and defendant. He did not know whether any conversations between Walters and defendant between July 14 and July 24 were recorded and did not listen in on any such conversations. However, DeAnda did not believe that defendant talked with Walters between July 14 and July 18, as defendant told him on July 19 that he, like DeAnda, had tried to contact Walters and had gotten only her answering machine. DeAnda conceded that telephone records, later admitted into evidence, showed calls between Walters and the number at which DeAnda had called defendant; this number, however, was for Marian Anderson’s apartment, not defendant’s house. Although DeAnda did not know whether defendant contacted Walters after July 18, DeAnda testified that after that date defendant arranged all of his drug deals directly with DeAnda.

DeAnda lost track of Walters late in 1989, after she attempted without success to work on another case. DeAnda did not know where she lived at the time of trial and had not looked for her. In March 1990, after police investigators discovered that Walters was living at the Tokyo Inn in Schiller Park, Walters paged DeAnda and told him that she had changed her telephone number because someone from defendant’s family was harassing her.

Walters set up the July 14 meeting with defendant. This was the first time DeAnda met defendant. It was DeAnda’s idea to have defendant page him rather than setting things up through Walters. To DeAnda’s knowledge, defendant did not have a pager. In DeAnda’s experience, however, some drug dealers had pagers and some did not.

Defendant’s call to DeAnda on July 18 did not, unlike the other calls, come from Marian Anderson’s apartment. DeAnda denied that defendant on that occasion told him that he was calling from the Catholic Charities building in Chicago, where defendant was receiving an award from the Chicago police. DeAnda further denied that defendant, during this call, told him that he did not want to go through with the drug deals. When cross-examined about the July 22 conversation, DeAnda stated that he never told defendant that he had a wife, but did not know if Walters had said so to defendant. Walters told DeAnda that she had told defendant that DeAnda was not her boyfriend.

Officer John Bright, a DuMEG agent who helped to arrest defendant, testified that defendant, after being given his Miranda rights at the station, explained that he had had a problem with cocaine in the past, had squandered a $100,000 inheritance on cocaine and on his friends, and that he was just attempting to make back some of the money he had lost to cocaine. Defendant added that watching “Miami Vice” on television had made it look easy. On cross-examination, Bright admitted that defendant’s statement had not been recorded and that the police had not asked defendant to write anything out.

Steven Dahl, a detective with the Du Page County sheriff’s office, also participated in the interview at the police station. His testimony corroborated Bright’s. Dahl recalled that during the interview, defendant never brought up Jeanine Walters’ name. Defendant did state that he had been “straight” for two months, and defendant did not appear to be under the influence of cocaine or any other drug at the time.

Jeanine Walters did not testify. Thomas Pope, an investigator with the Du Page County State’s Attorney’s office, testified that on March 8, 1990, at the request of the assistant State’s Attorney assigned to this case, he served Walters with a subpoena at the Tokyo Inn in Schiller Park. The State’s Attorney’s office had since tried unsuccessfully to find out Walters’ address from her employer! Pope attempted to serve her with a subpoena at the Tokyo Inn on the morning of the trial; employees of the motel told him that she had moved in March or April without leaving a forwarding address.

Defendant’s witnesses were himself and Michael Toomey, Bensenville chief of police. Chief Toomey testified that after he learned of defendant’s arrest, he issued, as part of his regular duties, a press release stating that the arrest culminated a two-month investigation by DuMEG and the Illinois State Police. This information was published in the Chicago Tribune. On cross-examination, Toomey acknowledged that he was not privy to information about when DuMEG begins its investigations and did not supervise Officer DeAnda’s daily activities with DuMEG. However, on redirect, Toomey stated that his information about the length of the investigation came from the director of DuMEG, who was aware of such information and did supervise DeAnda.

Defendant testified that he was born in Tennessee and moved to Chicago at age six. After graduating from high school, he started but did not complete college. At the time of his arrest, he was a warehouse manager for a local building materials company.

Defendant explained that he started using cocaine in 1980, about three years after graduating from high school. He used cocaine casually until he became addicted in 1988. At his tenth high school reunion in 1987, he met Marian Anderson, now his fiancee. Defendant eventually moved in with Anderson and lived with her until February 1989, when he took possession of a nearby house that he had bought with part of a $93,000 inheritance he had received when he turned 30 in August 1988. Defendant and Anderson got into the habit of buying cocaine for each other; soon, both became addicted. Defendant did not sell cocaine to others, but regularly bought it in small amounts for personal use.

Defendant and Anderson decided that they needed to break their habits. They made a pact to quit. Anderson entered the Parkside Drug Rehabilitation Center on April 24, 1989. Defendant quit on his own. At the time of his arrest, he had gone without cocaine for slightly over two months. Joseph DeAnda was the only person to whom defendant was selling cocaine after he quit using it.

At Parkside, Jeanine Walters was Anderson’s roommate. As was customary in the program, the roommates became very close friends. Defendant visited Anderson about 15 or 20 times in Anderson’s initial month at Parkside; Walters was present each time. The first time defendant met Walters, she asked him if he had brought cocaine. Defendant said no. Six or seven times thereafter, Walters asked defendant to get her cocaine. Each time defendant refused, telling Walters that would defeat the purpose of the program. Walters once ran her fingers through defendant’s hair and told him that she had been a hooker in Las Vegas. However, defendant never felt sexually attracted to her.

Anderson left Parkside on May 23, 1989, after she used cocaine on a weekend pass, and went to a sister facility in San Antonio, Texas. Before Anderson left, Walters gave defendant a self-addressed envelope, later introduced into evidence at trial, and asked defendant to put some cocaine in it and mail it to her. Walters told defendant that she would get out of Parkside in two days and was still going to use cocaine. Defendant refused Walters’ request and threw the envelope into a desk in his house instead.

While Anderson was away in San Antonio, Walters called defendant five or six times, each time asking him to get cocaine for her. Defendant refused each time. On July 8, Anderson returned and defendant picked her up. The two went to defendant’s house, where he received a phone call from Walters. Walters told him that one of her boyfriends, “Joe,” was interested in purchasing cocaine. Defendant replied that he did not deal and refused the request. Walters and Anderson then talked. On July 9, Walters again called and asked defendant to use his source to get her cocaine. Again, defendant refused.

On July 14, defendant finally agreed to get cocaine for the man he later learned was Officer DeAnda. Walters called him that day and told him that her boyfriend Joe was desperate because dealing was his whole living, his connections had no drugs, and he, along with his wife and daughter, were close to going on welfare. Walters was desperate because she, too, had large bills to pay; defendant had seen her throw several of these bills into the garbage at Parkside. Walters then spoke with Anderson for about a half hour. Defendant initially did not want to supply Walters with cocaine, but Anderson changed his mind by telling him that Walters was a friend, so it would be all right. Defendant spoke to Walters and received directions to her apartment. Defendant testified that he would not have agreed to the transaction had not Walters and Anderson, the former playing on her close relationship with defendant’s fiancee, talked him into it. Walters initially asked defendant to supply an ounce of cocaine, more than he had previously ever bought at one time. Defendant’s understanding was that he would supply Joe with cocaine until Joe’s connections could resupply themselves.

Defendant had never talked to DeAnda before their July 14 meeting. When they met for the first time, defendant was scared of DeAnda, as Walters told him that “Joe” could be mean when he had to be. Also, defendant was frightened by the tattoos on both of DeAnda’s arms. DeAnda paid defendant $900 as earlier arranged; as defendant had paid his source $600, he made a profit of 50%. Although defendant really did not want to continue the relationship, DeAnda insisted on giving him his pager number; because he feared DeAnda, defendant did not give DeAnda his phone number, but told DeAnda to get in touch with Walters if he needed to reach defendant. DeAnda left about an hour after defendant and Anderson arrived. After he left, Walters not only thanked her two guests for helping “Joe,” but brought out some cocaine and started using it. Defendant had no idea where Walters obtained the cocaine. Defendant and Anderson stayed for a while, watching television and conversing with Walters, then went home.

After trying to call Walters and receiving only messages on her answering machine, defendant, on July 18, paged DeAnda. At the time, defendant was at the Catholic Charities building in Chicago to receive a certificate of commendation (admitted into evidence) from the Chicago police department. Defendant received the award for helping police officers physically apprehend a man suspected of murder and several armed robberies and purse snatchings. According to defendant, he told DeAnda that he did not want to deal with DeAnda any more. DeAnda reminded defendant that he had promised Walters to supply DeAnda until DeAnda’s supplier received more cocaine. Defendant then agreed to DeAnda’s request to obtain two more ounces of cocaine. DeAnda told defendant to page him the next day. Defendant testified that despite his reluctance to deal with DeAnda, he felt pressured and scared because Walters had defendant’s address and phone number, and defendant was afraid of what DeAnda might do if defendant backed out.

Defendant went through with the deal as planned. He used drug dealers’ argot because DeAnda liked it and because Walters had told him to play the role of a drug dealer when talking to DeAnda.

On the night of Saturday, July 22, defendant and Anderson went to Walters’ apartment after Walters had invited them over to “party” with her. Defendant and Anderson stayed two or three hours. Defendant told Walters about his conversation with DeAnda earlier that day. Walters told him to go through with the deal because “Joe” was “okay.” On July 24, defendant called Walters twice, telling her that he was afraid of going through with the transaction and that he wanted to find out more about DeAnda first. Walters assured him that DeAnda was “okay,” that this was probably the last deal defendant would have to do, and that “something might happen” to defendant if he backed out.

After his arrest, defendant told the police that he had been “clean” for two months. He also mentioned his inheritance, all but about $10,000 of which he had gone through by the time he was arrested. Defendant testified that he did not tell the police about Jeanine Walters because at that point he still believed she and “Joe” were his friends and he did not want to implicate either one. Defendant also testified that he became interested in the machine gun because it would be a “neat toy,” but did not buy the gun from DeAnda because a friend told him it would be illegal.

On cross-examination defendant stated that he paid his source $600 for the ounce of cocaine that he sold DeAnda on July 14 and $1,200 for the two ounces he sold DeAnda July 19. Defendant conceded that his sympathy for DeAnda’s economic woes did not prevent him from making a profit of $300 per ounce, or 50%, on these deals. He also admitted that his profit per ounce equaled a week’s take-home pay. Even though defendant himself had used gram amounts of cocaine, his source willingly provided him with larger amounts; moreover, defendant’s source trusted him enough to “front” him 25 ounces of cocaine for the July 24 trade. Defendant testified that he did not anticipate making money off this trade, but intended to take the marijuana back to his source so that his source could sell it. However, defendant did not deny telling the police after his arrest that he saw selling drugs as an easy way to recoup some of the money he had spent on his cocaine habit. He did not mention helping “Joe” pay his bills as one of his reasons for dealing with DeAnda.

When he agreed to sell drugs to “Joe,” defendant did not know how long it would be until DeAnda’s sources would be resupplied with cocaine. Walters never told defendant when or how often to call DeAnda, and defendant took the initiative in getting in touch with DeAnda on July 18, 19, 20, 22 and 24. Although defendant feared DeAnda threatening him if he backed out, DeAnda not only did not initiate these contacts but never called or visited defendant even though he could have obtained defendant’s address and number from Walters. Defendant denied that his calls to Walters July 24 arose from his fears that DeAnda might be an undercover policeman; although his check of the license plates on DeAnda’s truck had convinced defendant that DeAnda was lying to him, it did not cross defendant’s mind that DeAnda might be a policeman.

After meeting “Joe” on July 14, defendant and Anderson stayed at Walters’ apartment long after DeAnda left, even though Walters was using cocaine and defendant was concerned about his and Anderson’s susceptibility to the drug. Similarly, defendant and Anderson visited Walters on July 22 and stayed while Walters used cocaine even though he knew it meant exposing both of them to cocaine abuse.

Defendant testified that after he sold DeAnda two ounces of cocaine on July 19, he counted out the $1,000 for the machine gun only because he felt obligated after DeAnda told him how scared he had been transporting the gun to the parking lot. According to defendant, much of what he told DeAnda in their recorded conversations was bluffing. He never really believed that their deals could be a “big-time, ongoing thing” and never had any customers “down south” for the 25 pounds of marijuana he received.

The parties stipulated that, if called, Joseph DeAnda would appear before the jury, raise both shirt sleeves and show that he had a single tattoo, on his right arm.

The jury convicted defendant on both counts. The trial judge, stating that he agreed with the jury that defendant had not been entrapped, subsequently denied defendant’s post-trial motion and sentenced defendant to concurrent terms of 6 and 15 years’ imprisonment, plus fines. Defendant now appeals.

Defendant argues that the State did not prove beyond a reasonable doubt that he was not entrapped into the offenses of which he was convicted. Defendant emphasizes that because Jeanine Walters did not testify, his account of Walters’ attempts to induce him into dealing with Joseph DeAnda is uncontradicted and shows that, as a matter of law, the State’s agent persuaded an otherwise unpredisposed individual to become involved in illegal activity. The State replies that, from the evidence, the jury could have found that defendant eagerly and aggressively pursued what he saw as a lucrative opportunity, that he participated in his deals with DeAnda as a sophisticated and well-connected businessman, and that governmental agents merely encouraged him to follow his own criminal bent. We believe that the State has the better argument and that defendant was not entrapped as a matter of law.

A reviewing court will not set aside a guilty verdict as long as the evidence, viewed in the light most favorable to the prosecution, is sufficient for any rational trier of fact to conclude that the essential elements of the offense have been proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Once a defendant raises the affirmative defense of entrapment (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 12), the State must prove beyond a reasonable doubt that the defendant was not entrapped. (People v. Cross (1979), 77 Ill. 2d 396, 401.) However, the question of entrapment is ordinarily for the jury, unless a court can find entrapment as a matter of law. People v. Ferro (1990), 195 Ill. App. 3d 282, 289.

Entrapment is established when governmental officials originate a criminal design, implant in the mind of an innocent person the disposition to commit the offense, and induce the commission of the offense in order to obtain evidence in order to prosecute that person. (People v. Keen (1990), 206 Ill. App. 3d 940, 947.) Entrapment is not available as a defense where governmental agents merely afford a person predisposed to committing a crime the opportunity to do so, or merely aid and encourage such a predisposed person to commit the offense. (People v. Tipton (1980), 78 Ill. 2d 477, 488; People v. Gaytan (1989), 186 Ill. App. 3d 919, 925.) Factors relevant to assessing a defendant’s predisposition to commit a drug-related offense include the defendant’s initial reluctance or willingness to commit the crime, the defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s prior or current use of drugs, whether the defendant had ready access to a drug supply, and the defendant’s prior criminal record or lack of same. Keen, 206 Ill. App. 3d 940.

With these standards in mind, we see no reason to disturb the jury’s determination that the defendant was not entrapped into either the July 19 cocaine sale or the July 24 cocaine-for-marijuana swap. Defendant claimed to be a newcomer to selling drugs. However, the jury was entitled to take into account his admission that he was a heavy drug user (and purchaser) for almost a decade until shortly before his arrest and that he therefore had access to supplies of cocaine. See Keen, 206 Ill. App. 3d at 949; People v. Schillaci (1988), 171 Ill. App. 3d 510, 518.

The record shows, in fact, that defendant was able to procure large amounts of the drug for $600 per ounce. Although defendant testified that he had previously bought only small amounts of cocaine for personal use, the evidence was undisputed that he was able to procure amounts far in excess of those intended only for personal use and that he was able to obtain this cocaine at bargain prices. Defendant himself told DeAnda that he would have no trouble supplying five or six ounces per week at a discount to DeAnda. Most strikingly, defendant’s source willingly “fronted” him 700 grams of cocaine worth at least $17,500 (more if sold in small amounts). Also, defendant’s assertion that he was new to drug dealing was dubious given that he took the initiative in trying to obtain marijuana from DeAnda and eventually received 25 pounds of it. Defendant engaged in extensive negotiations of the deals, which the jury heard by listening to the audiotapes. During these taped negotiations, defendant revealed his familiarity with jargon from the cocaine and marijuana trades.

Furthermore, the evidence was strong that defendant, far from entering either transaction hesitantly, eagerly pursued DeAnda’s patronage for the sake of quick and substantial profits. Defendant paged DeAnda a total of 18 times within a period of 12 days to arrange drug sales. Defendant’s statement to the police that he engaged in the deals to make money is corroborated by his 50% profit on the July 14 and July 19 cocaine sales. Defendant also took the initiative in arranging with DeAnda to obtain marijuana for resale. The jury could conclude from the audiotapes of the negotiation that he did so in hopes of further business success. It was also defendant’s idea to ask DeAnda to find him a machine gun with a silencer, an idea that defendant pursued to the point of counting out the money to pay for the gun. Although defendant was not on trial for attempting to purchase the marijuana or the gun, the jury could view his initiative in pursuing these items of contraband as grossly inconsistent with his attempted self-portrayal of a well-meaning innocent who entered into his criminal activities only reluctantly after psychological pressure.

Under these circumstances, the jury did not have to accept defendant’s version of why he entered into dealing with DeAnda. Although defendant argues that the failure of the State to call Jeanine Walters makes his version of Walters’ actions in inducing his offense undisputed, other evidence at trial gave the jury good reason not to give too much weight to defendant’s account. That defendant was reluctant to provide Walters with cocaine inside a rehabilitation facility does not establish that he was not predisposed to sell large amounts at a high profit to DeAnda later on. Defendant’s “good Samaritan” version of why he made the initial sale to DeAnda is not altogether plausible in view of the substantial profit that he made, his initiative in seeking marijuana and weaponry from DeAnda, and his continuing deals with DeAnda after he found out that “Joe” owned a truck ostensibly used in business and was probably not the destitute family man that Walters portrayed.

Moreover, even if the July 14 deal was induced by Walters as defendant argues, the jury would not be required to find that the subsequent transactions were the product of that inducement. Whether an initial entrapment continues through a series of criminal transactions is a factual question for the jury. (Gaytan, 186 Ill. App. 3d at 925; People v. Washington (1987), 154 Ill. App. 3d 648, 653; People v. Estrada (1980), 91 Ill. App. 3d 228, 234.) Here the jury could reasonably conclude that even if defendant reluctantly entered the first transaction, he willingly embarked on the later transactions once he saw how profitable doing business with “Joe” could be.

The jury was also not compelled to believe defendant’s testimony that he kept dealing with DeAnda because he was afraid of the consequences if he stopped. Defendant did not mention this explanation to the police, instead emphasizing financial motivations. Moreover, there is no evidence that “Joe” threatened defendant, called defendant at the latter’s home, or even took very much initiative in arranging the number or size of the sales. The jury could find defendant’s hesitancy to go through with the final deal explicable only out of his fear that he would be caught by the police, despite defendant’s denial that he ever suspected that DeAnda might be an officer. Where the evidence shows that a defendant had ready access to drugs, which he sold for the sake of a profit, the jury is not required to disregard this evidence in favor of the defendant’s assertion that he felt compelled to engage in such persistent and lucrative behavior. See Ferro, 195 Ill. App. 3d at 290; People v. Beavers (1986), 141 Ill. App. 3d 790, 795.

Defendant invokes certain cases where a conviction was reversed on appeal based on entrapment. In each case, however, unlike the instant case, the State did not present evidence of defendant’s predisposition. (People v. Poulos (1990), 196 Ill. App. 3d 653 (defendant had no previous experience with drugs and had no intention of profiting from the sale); People v. Connor (1988), 176 Ill. App. 3d 900 (defendant had no prior criminal record, no prior use of drugs, and was induced to find a buyer for police in order to be repaid money loaned to the informer); People v. Boalbey (1986), 143 Ill. App. 3d 362 (no evidence of predisposition presented by State at trial).) In that the State presented adequate evidence of defendant’s predisposition in this case, the above cases cited by defendant do not apply here.

Upon our review of the evidence elicited at trial, we find no reason to disturb the jury’s determination that defendant was not entrapped. And defendant has never denied that the other elements of the two charges were proved beyond a reasonable doubt. The judgment of the circuit court of Du Page County is therefore affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. THOMAS O. RHODE, Defendant-Appellee (The County of Stephenson, Petitioner-Appellant).—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. CORNELIUS TOWNSEN, Defendant-Appellee (The County of Stephenson, Petitioner-Appellant).
    Second District
    Nos. 2—90—0982, 2—90—0983 cons.
    Opinion filed October 10, 1991.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    No brief filed for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

The County of Stephenson (County) appeals from two orders of the circuit court in separate causes which granted the motions of defendants, Thomas 0. Rhode and Cornelius Townsen, to appoint a private investigator to interview witnesses for their respective defenses. The County raises two issues on appeal: whether the trial court erred in appointing an investigator for two indigent defendants when their need for an investigator was speculative; and whether the investigator’s fees did not conform to the reasons for his appointment. On the County’s motion, the appeals were consolidated.

In appeal No. 2 — 90—0982, defendant Rhode was charged with theft over $300 (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)) on January 12, 1990. In appeal No. 2 — 90—0983, defendant Townsen was charged with seven counts of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4(a), (b)(1), (b)(8)) and one count of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)) arising from an incident on December 16, 1989. While four people were playing football in Krape Park, another group of men came up and played football with them. Witnesses identified Townsen, Phillip Shipp and Quitman White as among the men who joined the game. Following the game there was a disagreement which turned into a fight. Quitman White went to a vehicle and returned with a car jack and some other equipment. Norman Metz, who was not involved in the game, saw the fight and indicated that the men should stop fighting. Metz was then struck on the head from behind with the car jack. Several of the football players were also struck with the car jack. According to the witnesses, Townsen was the person who used the car jack to hit the victims. Although Phillip Shipp participated in the fight, he was instrumental in breaking it up. In a related indictment, Townsen was charged with aggravated battery and mob action (Ill. Rev. Stat. 1989, ch. 38, par. 25 — 1(a)(1)) in that defendant, Quitman White and Phillip Shipp struck Metz with a car jack. Those causes were consolidated in the trial court.

The court appointed Howard Prestwich, an assistant public defender, to represent both Townsen and Rhode. Prestwich filed identical motions in each cause requesting the appointment of an investigator. According to each motion, an investigator was necessary to interview and obtain statements from some witnesses the State intended to call at trial. In addition, Prestwich filed a memorandum in each cause in support of the motions.

At the hearing on the motion in Townsen’s case, Prestwich informed the court:

“[An] altercation occurred at Krape Park in which there were at least two people present who have not yet been identified *** and we need an investigator to try and locate *** at least those two persons who have not yet been identified.
In addition, there were other people who were present that have given statements but they haven’t given signed statements. In some cases their statements are somewhat *** confusing. We would like an investigator to interview the occurrence witnesses and particularly to help find the two people who have not yet been identified.”

Prestwich further indicated that the two witnesses who had given inconsistent statements were the accomplices, Shipp and White. The State objected to the appointment of an investigator because all the witnesses were listed in the State’s discovery materials and there were interviews of some of the victims. The court stated that the decision whether to appoint an investigator was a matter of its discretion, and it granted the motion, but limited the amount to be expended to $300.

At the hearing in Rhode’s case, Prestwich explained that Rhode was charged with exerting unauthorized control over property that was stolen in Portage, Wisconsin. Rhode’s defense was that he purchased the items from Dennis Stark in Montello, Wisconsin. Rhode needed an investigator to help determine Rhode’s whereabouts on the date of the theft and to locate Stark. The State objected to the appointment of an investigator on the ground that it had not charged Rhode with taking the property and, therefore, Rhode’s whereabouts on the date the property was stolen were irrelevant. The court decided to appoint an investigator to ascertain the location of Stark. The court appointed the same investigator for both causes.

Rhode pleaded guilty prior to the combined hearing on the fee petitions, and Townsen pleaded guilty one month after the court granted the petitions. Townsen pleaded guilty to three counts of aggravated battery and one count of mob action. Rhode was allowed to withdraw his guilty plea, and the State subsequently dismissed the case against him.

In each case, the County filed a motion in this court to file a late notice of appeal, which was allowed. Neither defendant has filed an appellee’s brief, so we will review the issues presented pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The County first contends that the trial court erred in appointing an investigator for these indigent defendants. The County relies on People v. Veal (1982), 110 Ill. App. 3d 919. In Veal, the defendant contended that the trial court’s refusal to appoint an investigator denied his constitutional rights. Without relying on any authority, the court found that the right to free expert assistance does not implicate a right for free investigative services. (Veal, 110 Ill. App. 3d at 925.) The appellate court further held that the defendant was not entitled to the services of an investigator because the defendant wanted the investigator to locate and identify other possible occurrence witnesses and, according to the court, it was mere speculation whether any such witness existed or would have been helpful to the defense. (Veal, 110 Ill. App. 3d at 926.) The court stated that even if the need for an investigator was not speculative, “it would seem reasonable to assume that an effort could have been made by the [defendants’] friends or relatives to locate additional witnesses.” (Veal, 110 Ill. App. 3d at 927.) The County argues that because any person should be able to attempt to locate a potential witness, defendants in this cause failed to show why defense counsel could not have performed this service.

Veal articulated a standard for determining whether an investigator should be appointed for an indigent defendant. According to Veal, where the investigator is necessary to prove a crucial issue and where the lack of funds necessary to provide investigative services will substantially prejudice the defendant, there is a constitutional right to such services. 110 Ill. App. 3d at 926.

Veal is distinguishable from the present causes because here the County is appealing the appointment of an investigator, whereas in Veal the defendant was appealing the trial court’s refusal to appoint an investigator. In the only case cited by the County in which a governmental entity appealed the award of fees, In re Petition for Fees (1983), 117 Ill. App. 3d 744, the court discussed the standard of review for the appointment of an investigator to aid an indigent’s defense. The court recognized that although there is no statutory provision for the allowance of such fees, if the Veal factors are satisfied, then the defendant has a constitutional right to such fees. (Petition for Fees, 117 Ill. App. 3d at 752.) The court determined that the award of such fees is a matter of the trial court’s discretion and refused to disturb an award which was reasonable. 117 Ill. App. 3d at 752.

Thus, based on In re Petition for Fees, we conclude that the trial court has the inherent authority to appoint an investigator and award fees to ensure that a defendant is not denied the effective assistance of counsel and that' on review such an award should not be disturbed absent an abuse of that discretion.

The court heard the reasons proffered by defendants for their need for an investigator. There is no evidence in the record that anyone other than an investigator could have performed the services. We reject the County’s assertion that defense counsel could have located and interviewed the witnesses. In Townsen’s cause, the record indicated that there were at least five assailants, but only three had been identified, and defense counsel sought an investigator to locate the other two men. In addition, the two accomplices had given inconsistent statements, so defense counsel wanted an investigator to interview them privately. Townsen’s defense was to be that he was not one of the men involved in the football game and subsequent fight in the park. In Rhode’s cause, the necessary witnesses were in Wisconsin. Rhode’s defense was that he bought the property in Wisconsin without knowing that it was stolen.

The trial court, which was familiar with the assistant public defender and his duties, was in the best position to determine whether he had the time to undertake such investigations in light of his commitments in representing other indigent defendants in Stephenson County. In addition, there is nothing in the record to indicate that defendant Rhode was ever released on bond so that he could go to Wisconsin to attempt to locate Dennis Stark. We cannot say that the appointment of an investigator here was an abuse of discretion.

The County next contends that the trial court erred in ordering payment of the investigator’s fees. The gist of the County’s argument is that the investigator did not do what he had been appointed to do and that he did not perform his work in the most efficient manner.

At the combined hearing on the fee petitions, the investigator testified that in Rhode’s cause he went to Portage, Wisconsin, and interviewed two law enforcement officers and a bartender and bar owner at a tavern there. The investigator also contacted the witness whose name was given him by Rhode. The investigator talked with the witness by telephone, and they met later. The investigator indicated that he generally interviews the witnesses in person because that type of interview is more fruitful than an over-the-telephone interview.

Following the testimony and the arguments of counsel, the court explained that it did not think that the investigator’s services in Rhode’s cause were duplicative because the investigator interviewed people who had not been interviewed by the police. The court also found it reasonable that the investigator conducted personal interviews instead of telephoning the witnesses. The court did not elaborate on its decision to award the fees in Townsen’s case.

After considering the County’s arguments, we conclude they are without merit. The investigator needed to interview each defendant to determine whom he should find and what he should ask the witnesses. In Townsen’s case, although the investigator was appointed to find the unknown accomplices, under the facts of this cause, the best place to start would be with known accomplices. Thus, it is reasonable that the investigator interviewed Shipp and tried to interview White. Furthermore, despite the County’s assertion that the investigator should have telephoned White prior to visiting his house, there is nothing in the record to indicate that White had a telephone. Similarly, in Rhode’s case, Stark allegedly lived in Wisconsin, and it is therefore reasonable that the investigator would interview people in Wisconsin to ascertain his whereabouts. The court found that the amount of fees was reasonable and within the limitations it imposed. Therefore, the award of fees was not an abuse of discretion.

The judgment of the circuit court of Stephenson County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    TERESA DiMAGGIO, Plaintiff-Appellant, v. THE CROSSINGS HOMEOWNERS ASSOCIATION, Defendant-Appellee.
    Second District
    No. 2—91—0318
    Opinion filed October 10, 1991.

      Rafael Del Campo, of Chicago, for appellant.
    Michael Resis, of Querrey & Harrow, Ltd., of Waukegan, and Michael S. Loeffler, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Teresa DiMaggio, appeals from the order of the circuit court of Lake County which granted summary judgment in favor of defendant, the Crossings Homeowners Association, and the order which denied plaintiff leave to amend her complaint after the entry of the summary judgment. Plaintiff raises four issues on appeal: (1) whether the trial court erred in raising on its own the question whether the proper motion would be a motion to strike rather than a motion for summary judgment; (2) whether the court was required to presume that the complaint stated a cause of action; (3) whether there was a genuine issue of material fact; and (4) whether the court should have allowed plaintiff to amend her fourth amended complaint. We will summarize briefly the relevant facts.

Plaintiff alleged that on August 21, 1987, she resided with her mother at a townhouse in defendant’s association at 1313 Bristol Lane, in Buffalo Grove. Defendant retained an independent contractor to repair some of the concrete sidewalks in the association, including the sidewalk in front of 1313 Bristol. At approximately 9 p.m., plaintiff returned home from work and, while walking towards her home, fell into the torn up concrete walkway to the unit. There were no warning devices to alert the public to the construction. In count I, plaintiff alleged that “it should have became [sic] apparent to [defendant] and its agents that the contractor was not competent in that he or it did not provide for the safety of *** third parties and should have seen to it that such failure to protect the public be instituted at once.” In count II, plaintiff alleged that defendant was negligent because it failed to hire a competent and qualified contractor to repair the sidewalks and because it failed to protect and warn third parties of the potentially dangerous condition when defendant learned that the contractor did not warn of the condition.

Defendant filed a motion for summary judgment, arguing that plaintiff had presented no evidence to support her allegations that defendant knew or should have known that the contractor was unfit to repair the sidewalk. Defendant referred to plaintiff’s deposition, in which she admitted that she had no knowledge regarding the contractor’s competency, and she did not know if defendant or its agents had any knowledge regarding the fitness of the contractor. Defendant also submitted a copy of the contract between defendant and the independent contractor, PGR, Inc. The contract, which was accepted on August 20, 1987, provided for the removal and replacement of concrete sidewalks and/or stoops at 16 units and the clubhouse. The contract guaranteed that the work would be “completed in a substantial workmanlike manner.”

In her response to the motion, plaintiff argued that the contract between defendant and the contractor raised an issue of material fact regarding whether defendant knew or should have known that the contractor did not contemplate the use of warnings to protect the public.

On December 20, 1990, the court granted the motion for summary judgment on both counts of the fourth amended complaint. On January 10, 1991, plaintiff filed a motion to amend the fourth amended complaint. The court denied that motion on February 19, 1991, for the following reasons:

“(a) the plaintiff has failed to submit a proposed amended complaint; (b) this court’s ruling granting summary judgment in favor of the defendant on 12/20/90 was not based on 2— 615 or 2 — 619, but was because this court felt there was no genuine issue of material fact on the negligent hiring or ordinary negligent [sic] count; (c) this court finds the facts of the instant case to be similar to those in Hill v. Jones 198 IL 3d 854 [sic] and in the exercise of this court’s discretion, this court denies the plaintiff’s motion for leave to amend her pleadings.”

Plaintiff filed her notice of appeal on March 18,1991.

Before considering the merits of plaintiff’s appeal, we will first address defendant’s motion to strike portions of plaintiff’s reply brief. Defendant points out that plaintiff included as exhibits to the reply brief a pleading and an affidavit which plaintiff admits were not made part of the common-law record. Plaintiff asserted in her reply brief that when she presented this pleading, the trial court indicated that it would entertain a motion for sanctions regarding false statements of Terry Foley in one of his affidavits. Plaintiff has not included a transcript or report of proceedings and has not moved to supplement the record on appeal. The reply brief is in violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) as it consists of matters outside the record. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 60.) We therefore grant the motion to strike.

On appeal, plaintiff first contends that her allegations were sufficient to state a cause of action. Plaintiff asserts that “the court itself raised the issue as to whether the defendant had filed a motion to strike or dismiss the Fourth Amended Complaint” and that “the court was of the opinion that the Fourth Amended Complaint did not state a cause of action and would more properly be subject to a motion to strike or dismiss.” In violation of Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), plaintiff has failed to cite to any part of the record in support of this novel assertion. Plaintiff did not include a transcript of this hearing either, and the common-law record does not indicate that the court ever considered the summary judgment motion to be anything other than a motion to determine whether there were genuine issues of material fact. Significantly, the court’s February 1991 order specifically stated that the summary judgment motion was not treated as a section 2 — 615 or section 2 — 619 motion to dismiss the complaint. (See Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619.) Since the appellant bears the burden of supplying a complete record on appeal, any deficiencies in the record will be construed in support of the trial court’s ruling. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Thus, we conclude that the court found that there were no genuine issues of material fact.

This conclusion supports the trial court’s decision to deny the motion to amend the fourth amended complaint. The decision to permit or deny an amendment is a matter of the trial court’s discretion. (People v. Brockman (1991), 143 Ill. 2d 351, 363.) Although plaintiff is correct that section 2 — 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g)) permits amendment of pleadings after a summary judgment, the court did not find that the fourth amended complaint failed to state a cause of action. Since any amendment here would not have cured the underlying problem which resulted in the entry of summary judgment, we conclude that the trial court did not abuse its discretion in denying the motion to amend. See Martin v. Yellow Cab Co. (1990), 208 Ill. App. 3d 572, 576-78.

Finally, we note that plaintiff has failed to present any argument in her appellate brief in support of her contention that the court erred in granting summary judgment for defendant because there exists a genuine issue of material fact. Merely referring to a pleading in the common-law record is insufficient to satisfy the requirements of Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)). Such a failure generally results in waiver of the issue on appeal. (Ray Dancer, Inc. v. DMC Corp. (1988), 175 Ill. App. 3d 997, 1005.) However, even if we construe a portion of section II of her brief as an argument that summary judgment was improper, we still conclude that this issue is without merit.

Summary judgment should be granted when the pleadings, depositions, affidavits and admissions on file show that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) The trial court is to construe the evidence strictly against the moving party and liberally in favor of the opponent when ruling on a summary judgment motion. (Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.) While a plaintiff is not required to prove her case at the summary judgment stage, she must present some evidentiary facts to support the allegations in her complaint. Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 250.

Plaintiff has merely relied on the fourth amended complaint to raise issues of fact. Where a party moving for summary judgment relies on supporting affidavits containing well-pleaded facts and the party opposing the motion files no counteraffidavits, the material facts set forth in the movant’s affidavits stand as admitted. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 924.) Here, defendant relied on the affidavits of Terry Foley, which averred that he was the agent for defendant and entered into a contract with PCR, Inc. (PCR), on behalf of defendant; that PCR was an independent contractor; that Ron Paar assured Foley that PCR was in the construction business and had expertise in repairing sidewalks; and that PCR had total control over the manner in which the repairs were to be performed and the date each sidewalk would be repaired. Defendant also relied on plaintiff’s deposition testimony in which she admitted that she had no knowledge regarding whether defendant knew of any unfitness of PCR. The contract contained a guarantee that the work would be performed “in a substantial workmanlike manner.” When the opponent of a summary judgment motion fails to controvert the proof offered in support of the motion, and the movant would be entitled to judgment as a matter of law, summary judgment is proper. Blankenship, 209 Ill. App. 3d at 924.

“One who employs an independent contractor is not liable for the latter’s acts or omissions [citations] except where the principal orders or directs the acts causing the harm, negligently selects an incompetent contractor [citation], or retains control over the ‘operative details of the contractor’s work.’ ” (Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 633.) Plaintiff alleged that defendant failed to exercise reasonable care in the selection of the independent contractor. To succeed in that cause of action, plaintiff would be required to show that defendant negligently hired an independent contractor which it knew, or should have known, was unfit for the job so as to create a danger of harm to plaintiff. (Huber v. Seaton (1989), 186 Ill. App. 3d 503, 506.) More specifically, a plaintiff must establish “that a ‘particular unfitness’ of an applicant creates a danger of harm to a third person which the employer knew, or should have known, when he hired and placed this applicant in employment where he could injure others.” (Huber, 186 Ill. App. 3d at 508.) In addition, there must be a connection between the particular unfitness and the negligent act of the independent contractor. Huber, 186 Ill. App. 3d at 508.

Plaintiff offered no evidence to support the allegation that defendant knew or should have known that PCR would not use warning devices to alert third parties to the danger of the dismantled sidewalk. Although plaintiff claims that her deposition testimony that she had no knowledge of the contractor’s incompetence does not preclude her from offering evidence of his incompetence at trial, this argument is insufficient to avoid summary judgment. As the court in Holland v. Arthur Andersen & Co. (1991), 212 Ill. App. 3d 645, explained:

“We also do not believe that the plaintiff can avoid a motion for summary judgment by alleging *** that further evidence might be forthcoming, or that the testimony of an expert *** might add to the plaintiff’s response. The purpose of the summary judgment procedure is to avoid the needless expense and time of a full trial where there is no showing that the plaintiff has even a prima facie case. *** The plaintiff never asked for additional time for discovery on the issue ***. *** To allow the plaintiff to avoid the summary judgment stage of these proceedings by alluding to some vague and possible future evidence would be contrary to the purposes of a summary judgment motion.” (Holland, 212 Ill. App. 3d at 652-53.)

Similarly, in the present case, plaintiff did not ask for more time to complete discovery and did not present any evidence in opposition to the affidavits of Terry Foley, the agent of defendant.

Since the alleged negligence was the result of the acts of an independent contractor, and plaintiff failed to present any evidence to raise an issue of fact regarding defendant’s knowledge of the contractor’s unfitness, the trial court’s entry of summary judgment for defendant was proper.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.