text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON COOPER, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3700
    Opinion filed August 17, 1990.

      Michael J. Pelletier and Linda Eigner, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant Aaron Cooper was found in direct contempt of court for refusing to testify at trial. The trial court imposed a six-month sentence to be served consecutively to a previously imposed six-year sentence for an unrelated offense. Defendant now appeals the order finding him in contempt of court, and he contends he asserted a valid fifth amendment privilege against self-incrimination for crimes of murder, obstruction of justice and perjury.

On October 13, 1986, Rodney “Pretty Boy” Williams was found shot to death in an empty apartment occasionally used by drug addicts as a “shooting gallery,” located at 1376 W. 79th Street, in Chicago, Illinois. At the time Williams was killed, he was preparing to inject illegal drugs.

Several weeks later, during the early morning of October 27, 1986, Chicago police officers Williams Gettings and Theodore Roberts responded to a report of a domestic disturbance at a home located at 1262 W. 72nd Place. Jacqueline Cooper had called police to arrest her son, the defendant, for disorderly conduct. According to the State, at the time of his arrest defendant said to his mother in the presence of the officers, “I don’t know why you’re having me arrested. You should have your killer son arrested.” According to Gettings, defendant then asked the officers if they knew about the killing of “Pretty Boy” on 79th Street some weeks earlier. When the officers replied that they did not, defendant said that his brother, Eugene Cooper, had committed the crime.

Officers Gettings and Roberts then transferred custody of defendant to police officers George Klinger and John Nieciak, who transported defendant to 7th District police headquarters. According to Officer Klinger, while the three were en route, defendant told the officers that Eugene Cooper had called Jacqueline Cooper and asked her to drive him somewhere. Defendant had advised her not to get involved, which angered her. Defendant also asked Klinger and Nieciak if they knew who had killed “Pretty Boy.” They responded that they did not, but advised defendant that they would get in touch with detectives from Area Two Violent Crimes. According to the officers, defendant appeared angry, talked continuously, but was understandable, clear and concise.

Once Klinger, Nieciak and defendant arrived at the 7th District, Klinger called an investigator at Area Two to advise him that they had an individual in custody who claimed to have information regarding the murder of “Pretty Boy.” This investigator was aware of the incident and dispatched two officers to the 7th District to speak with defendant.

After these two officers arrived, they took defendant to a second police station located at 111th Street, where he was questioned more extensively by four detectives. According to the State, defendant told these detectives that he was angry with his brother and mother because he had been arrested for disorderly conduct. Defendant related that in early October, his brother, Eugene Cooper, had come to Jacqueline Cooper’s home and told defendant and Ms. Cooper that four men had beaten him with a baseball bat because they were angry about a narcotics deal which had turned sour. At that time, Eugene Cooper had displayed the bruises he received as a result of the beating. Defendant told detectives that his brother referred to the persons who beat him as “Black Jack,” “Goo,” and “Pretty Boy.” Eugene Cooper said that he would kill them all. Defendant’s mother then gave Eugene Cooper a .38 caliber gun.

According to the State, defendant also told detectives that a week after this initial discussion, Eugene Cooper returned to his mother’s home and told defendant and Ms. Cooper that he had just shot and killed “Pretty Boy.” Defendant also said that his brother had given the murder weapon to their mother, who took it the next day to her safety deposit box at the Chicago Bank of Commerce. Ms. Cooper apparently kept several family guns in this safety deposit box, including a gun defendant had used in an earlier shooting for which he had been convicted. Defendant related to detectives that Ms. Cooper had later returned from the bank with two different guns which she gave to both of her sons for their protection. Defendant said that he had carried his gun for three days, but had gotten scared because he was a convicted felon and had given it back to his mother.

Defendant remained in police custody and was taken on October 27, 1986, to the criminal courts building at 26th and California, where he was interviewed by Assistant State’s Attorney Michael O’Donnell. According to the State, defendant substantially repeated the statements he had previously made to police. Defendant also told O’Donnell that when his brother reported that he had been beaten, defendant had asked him whether he wanted to return to “get the guys” who beat him but that his brother had said he would take care of it himself.

Shortly after being interviewed by O’Donnell, defendant was questioned by Assistant State’s Attorney James Kogut in the presence of the grand jury. Defendant testified to essentially the same version of events that the State claims he related to police. Defendant supplemented by testifying that a few days after his brother was beaten, he himself had had a conversation with “Pretty Boy” on 79th Street to learn what had happened. Defendant also testified in response to a question regarding who had hit his brother:

“Wait a minute, only one guy hit my brother. Pretty Boy and the other guy was on the door so he couldn’t get out and Goo was trying to stop the guy from hitting my brother with the bat.”

Defendant further testified that his brother began telling defendant that he had just killed “Pretty Boy” by advising defendant to avoid 79th Street because things were going to be “hot.” Defendant stated that he was testifying without threat under his own free will.

Following defendant’s testimony before the grand jury, a subpoena was issued for bank records which documented two recent visits by Jacqueline Cooper to her safety deposit box. A search warrant was issued for the contents of the box, and five guns were recovered, including one determined by scientific evidence to be the weapon used to kill “Pretty Boy.”

On May 17, 1987, defendant was interviewed by his brother’s attorney, Ahmed Patel. During this taped interview, defendant denied making the statements the State claims he made to the police at the time of his arrest. He told Patel that he had been drunk when the police arrested him, and that for 12 hours prior to his arrest he had been drinking, consuming four or five quarts of wine and several six-packs of beer. Defendant said that although he received an ‘T-bond,” the police did not allow him to go home, but took him from the 7th District to the second police station and placed him in a room until he was sober. The next morning police advised him of these statements which the police had documented. Defendant told Patel that he told police that he did not remember making the statements and that if he had made them, he had been drunk and mad at his mother and that the statements were lies. According to defendant, police then threatened to charge him with the murder of “Pretty Boy” and assured him that he would receive the maximum sentence on a pending attempted aggravated arson charge if he did not testify to support the statements. Supposedly, the police said that they did not really care who killed “Pretty Boy,” but they just wanted to get defendant to testify before the grand jury.

Two weeks before trial, defendant was interviewed by Assistant State’s Attorneys Larry Crown and Gayle Shines and Detective Brownfield. According to defendant, the two assistant State’s Attorneys told him that his mother had or was prepared to implicate him in possession of the murder weapon, and his brother had or was prepared to implicate him in the murder.

On November 18, 1987, prior to Eugene Cooper’s trial, the trial court conducted a hearing to determine whether defendant, as a witness subpoened to testify, could validly invoke a fifth amendment privilege against self-incrimination. The trial court heard substantially all statements that the State alleged defendant made to police, assistant State’s Attorneys, the grand jury, and attorney Patel; the evidence uncovered by a subpoena of bank records and a search of Jacqueline Cooper’s safety deposit box; and that the State declined to grant defendant immunity. The trial court, nonetheless, found that defendant’s fear of self-incrimination for charges of murder, obstruction of justice and perjury was not well founded and that he could not validly invoke the fifth amendment privilege with regard to questions posed by the State at his brother’s trial. The trial court further advised defendant that if he did not answer such questions at trial, he would be held in direct contempt of court and sentenced accordingly.

During Eugene Cooper’s trial held on December 2, 1987, defendant was called to the witness stand by the State. After answering preliminary questions regarding his age, his relationship to Eugene Cooper, and his criminal record, defendant invoked the fifth amendment in response to a question about where he had lived in 1986. During recess, the trial court reiterated its prior ruling and ordered defendant to testify. The State then conducted direct examination of defendant. To all questions posed, defendant responded that on the advice of his attorney he declined to answer and invoked the fifth amendment. The defense cross-examined defendant, including questioning him concerning his knowledge and experience with guns, but defendant similarly invoked the privilege in response to all questions. On the following day of trial, the trial court found defendant in direct contempt of court and sentenced him to a term of six months’ imprisonment to be served consecutively to a previously imposed six-year sentence for an unrelated offense.

The fifth amendment guarantee against testimonial compulsion ensures that no witness will be required to give testimony that may tend to incriminate him. (People v. Thornton (1983), 120 Ill. App. 3d 983, 986-87, 458 N.E.2d 1150.) However, the fifth amendment right against self-incrimination may only be exercised where the witness has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer. (People v. Prater (1987), 158 Ill. App. 3d 330, 336, 511 N.E.2d 842.) The privilege extends not only to answers that would in themselves support a conviction but also to answers that might furnish a link in a chain of evidence needed to prosecute the witness for a crime. (Hoffman v. United States (1951), 341 U.S. 479, 486-87, 95 L. Ed. 1118, 1123-24, 71 S. Ct. 814, 818; People v. Burkert (1955), 7 Ill. 2d 506, 131 N.E.2d 495.) A witness may be denied the privilege only when it is “perfectly clear, from a careful consideration of all the circumstances in the case,” that the answers sought “cannot possibly have [a] tendency” to incriminate. (Hoffman v. United, States, 341 U.S. at 488, 95 L. Ed. at 1125, 71 S. Ct. at 819.) The trial court, not the witness, must decide whether that witness has a valid basis for invoking the fifth amendment right against self-incrimination. (People v. Sehultz (1942), 380 Ill. 539, 544, 44 N.E.2d 601.) Additionally, the right must not be extended to cover imaginary dangers and must not, in any event, be permitted to be used solely for the purpose of protecting a third party from prosecution. People v. Schultz, 380 Ill. at 544.

Defendant argues that his answers to the questions posed by the State and attorney Patel would have tended to incriminate him with respect to either murder, solicitation of murder, conspiracy to commit murder, obstruction of justice, perjury, or illegal possession of a firearm.

In this regard, defendant compares his situation to that of the two witnesses in United States v. Chalan (10th Cir. 1987), 812 F.2d 1302, where the court determined that the trial court had properly granted the witnesses a blanket privilege not to testify. In Chalan, both witnesses had made statements to investigators which placed them, defendant and another person near a convenience store where an armed robbery and murder had occurred shortly before the commission of the crimes. Their statements also revealed that one of the witnesses had destroyed a gun which all four men had been using prior to the crimes. In addition, other witnesses testified that four men who appeared intoxicated were near the store just prior to the crimes on the afternoon of the incident. The court found that the witnesses’ testimony revealed that: (1) they had both been intimately involved in the activities of the accused on the afternoon in question; (2) they were both near the crime scene shortly before the commission of the crime; (3) one of them had destroyed a weapon that had been used that afternoon; and (4) one witness was associated with the owner of one of the suspected weapons. While the court recognized that this information could not directly support a conviction, it stated that “it furnish[es] a link in the chain of evidence needed to prosecute the witnesses.” United States v. Chalan, 812 F.2d at 1310.

Defendant’s involvement here, however, as revealed by his prior statements to the authorities, pales by comparison. Defendant never placed himself at or near the scene of the crime, neither did other evidence indicate that possibility. Defendant never said that he was in any way involved in his brother’s activities on the day and near the time that “Pretty Boy” was killed. In fact, defendant’s statements were to the effect that he was both temporally and spatially removed from the crime and learned of it only after his brother warned him to avoid the area where it had occurred. Furthermore, defendant’s only involvement with the murder weapon was to view it as it was given by his brother to their mother. Defendant’s knowledge of the weapon’s later- whereabouts was not uniquely his, nor was it personal and firsthand, but based upon an assumption of his mother’s unusual practices.

Defendant, however, maintains that his involvement also extended to an offer to help his brother seek revenge on the victim. Defendant’s statement to investigators was that immediately after his brother told him about being beaten, defendant asked if he wanted to return and “get those guys.” His brother’s response, however, as reported by defendant, that he would take care of it himself, strongly negates the inference that defendant’s involvement rose to more than a mere query.

Even with respect to defendant’s statements that he was aware of a motive for the killing, and that he had talked with “Pretty Boy” after Eugene Cooper was beaten to learn what had happened, or his statements that allegedly seemed to show firsthand knowledge of the beating, we are not convinced that such statements are incriminating or could be considered links in a chain of already existent evidence. Solicitation of murder requires that a person either “commands, encourages or requests another to commit that offense.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 8 —1(a).) Conspiracy requires that a person agrees with another and acts in furtherance of the agreement. (Ill. Rev. Stat. 1985, ch. 38, par. 8—2(a).) Defendant’s awareness of the motive behind the killing and his query regarding what his brother wanted to do in response do not translate into the affirmative act of either a command or a request, and neither do they indicate encouragement. Furthermore, without the existence of other evidence conceivably in a chain tending to support such charges, defendant’s knowledge and question cannot constitute any “link” or “linkage.” See United States v. Chalan, 812 F.2d at 1309; People v. Burkert, 7 Ill. 2d at 515.

Defendant claims that such a chain of evidence was beginning to be assembled by the State because he claimed that, several weeks before trial, prosecutors led him to believe that his brother and mother were prepared to implicate him in the murder. Aside from defendant’s claim, however, the record reflects no indication that such a chain was being assembled.

Defendant also claims that the testimony the State sought to solicit would have tended to incriminate him with respect to perjury, obstruction of justice, or the unlawful possession of weapons. Ill. Rev. Stat. 1987, ch. 38, par. 24—1.1(a).

In United States v. Fountain (7th Cir. 1988), 840 F.2d 509, 516, relied upon by defendant, a witness testified against the accused. The witness later recanted the testimony in a statement to the FBI. Later, he recanted the recantation. Then the witness wrote a letter to defense counsel reiterating the recantation, but he refused to swear by it. Finally, the witness wrote a letter to the United States Attorney disavowing the recantation and asserting that he recanted only because he was afraid of retaliation. The court held that extension of the fifth amendment privilege was proper because of the witness’ exposure to charges of perjury arising from his waffling positions. The so-called inconsistency of defendant’s two positions in the present case does not compare to the defendant’s “waffling” in Fountain.

Defendant gave essentially the same consistent version of events to police officers, detectives, assistant State’s Attorney’s and the grand jury. These statements later claimed to be “lies,” during the tape-recorded interview with his brother’s defense counsel, resulted in the discovery of the murder weapon and the uncovering of a motive for the killing. Indeed, the State relied upon the truth of these statements in building its case against Eugene Cooper. It is the defendant, rather than the State, that views the defendant’s statements to the authorities and under oath as “lies” and urges the Anew that he is therefore susceptible to charges of perjury and obstruction of justice. However, defendant should not be able to cloak himself in the fifth amendment privilege on the basis that he fears prosecution for having “lied” when he, himself, by means of a blanket, flat-footed denial converts that prior, consistent, substantiated testimony into “lies.” This is particularly so where the possible motivation for such a denial is so nicely served by the assertion of the privilege.

Neither is defendant’s fear of prosecution for the unlawful possession of a weapon well founded. (Ill. Rev. Stat. 1985, ch. 38, par. 24—1.1(a).) Defendant cannot reasonably believe that merely his statement that his mother gave him a gun for protection which he returned in a few days because he was afraid since he was a convicted felon exposed him to prosecution. We are mindful that the trial judge in appraising the claim of privilege must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. United States v. Chalan, 812 F.2d at 1310.

Yet, as further support of his claim of a valid privilege, defendant contends that if he had answered the State’s direct examination, he would have exposed himself to self-incrimination during the defense’s broad-ranging cross-examination. A witness cannot assert the fifth amendment privilege with respect to specific questions if they are within the scope of previous testimony; he cannot deprive the opposing party of the right of cross-examination. (United States v. Herrera-Medina (7th Cir. 1988), 853 F.2d 564, 567.) However, we fail to see how defendant’s answers to cross-examination would have exposed him to any broader threat of self-incrimination than that posed by the State’s direct examination. The information that defense counsel requested about defendant’s general knowledge and experience with guns did not necessarily provide a “link” to the crime here, nor did it tend to incriminate him. Defendant is a felon previously convicted and sentenced for a crime involving a gun. Even in conjunction with the evidence the State already attempted to adduce by direct examination, defendant’s anticipated response to this line of questioning is not so strongly adverse as to constitute a “link.”

Accordingly, we affirm the judgment of the circuit court which found defendant in direct criminal contempt of court.

Affirmed.

La PORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    DERBY MEADOWS UTILITY COMPANY, INC., Plaintiff-Appellant, v. INTER-CONTINENTAL REAL ESTATE et al., Defendants-Appellees.-DERBY MEADOWS UTILITY COMPANY, INC., Plaintiff-Appellant, v. THE VILLAGE OF ORLAND PARK, Defendant-Appellee (Camelot Homes et al., Intervenors-Appellees). — DERBY MEADOWS UTILITY COMPANY, INC., Plaintiff-Appellant, v. THE VILLAGE OF ORLAND PARK, Defendant-Appellee (Camelot Homes et al., Intervenors).
    First District (6th Division)
    Nos. 1—89—1612, 1—89—1613, 1—89—2064 cons.
    Opinion filed August 17, 1990.

      Ross & Hardies, of Chicago (Jeffrey M. Cross and R Matthew Glavin, of counsel), for appellant.
    Pope, Ballard, Shepard & Fowle, Ltd., and Jack M. Siegel, both of Chicago (Paul E. Freehling and Catherine P. Wassberg, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Derby Meadows Utility Co., Inc. (Derby Meadows), appeals from several orders of the circuit court of Cook County dismissing its claims against the Village of Orland Park (Village) for tortious interference with various real estate contracts as well as its claims against the respective real estate companies for specific performance. The issues on appeal are: (1) whether the trial court erred in granting summary judgment in favor of Camelot Homes, Inc. (Camelot Homes), based on the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1 et seq.); (2) whether the dismissal of the tortious interference claim against the Village based on the finding that the Camelot Homes’ contract was unenforceable was error; (3) whether the trial judge erred in dismissing Derby Meadows’ complaint against Inter-Continental Real Estate and Development Corporation (Inter-Continental) and Orchard Hill Building Company (Orchard Hill) for failure to state a cause of action; and (4) whether the trial judge erred in granting summary judgment for the Village on the tortious interference claim regarding the Inter-Continental contract. We affirm in part and reverse and remand in part.

This consolidated appeal involves multiple parties and claims which were litigated before three judges. In order to clarify the issues, a description of the parties as well as the events leading to the various claims is presented below.

Derby Meadows is a privately owned public utility company which, until 1980, had only provided water and sanitary sewer service to Will County. In 1980 Derby Meadows expanded its service area into southwestern Cook County, which approached the boundaries of the Village. Thereafter, Derby Meadows and the Village became competitors for the sale of water and sewer services to customers located near the Village.

As a public utility company, Derby Meadows is subject to regulation by the Illinois Commerce Commission, and pursuant to section 8 — 406 of the Public Utilities Act (Ill. Rev. Stat. 1985, ch. 111⅔, par. 8—406(a)), it is required to obtain a certificate of public convenience and necessity in order to conduct business in the State. Anthony Perino is the president of Derby Meadows.

THE UTILITY SERVICE CONTRACT FOR CREEKSIDE

Inter-Continental is a real estate and development corporation whose president is Michael Halikias. Creekside is a parcel of property located near the boundaries of the Village. Prior to October 1980, Creekside was owned by Tope Corporation. Anthony Perino, who is the owner of Derby Meadows, is also the owner of Tope Corporation. On October 30, 1980, Inter-Continental purchased Creekside from Tope Corporation. At the time that the sale of Creekside was executed, Inter-Continental also signed a document entitled “Agreement To Extend Sewer And Water Service Lines And Establishing Tap-In Charges.” The agreement required Derby Meadows to construct water and sewer lines for service to the development, and it required Inter-Continental to pay a tap-in charge for connection to Derby Meadows’ utility system either when Inter-Continental completed the on-site improvements or when Derby Meadows completed its trunk line, whichever occurred first. Derby Meadows completed its trunk line for the Creekside property in 1985. According to an affidavit filed by Perino, Derby Meadows requested payment of the sewer connection fee during the period between 1985 and 1987, and he was assured by Halikias that Inter-Continental would honor their agreement. However, in the fall of 1987 Halikias informed Perino that Inter-Continental would not honor their agreement and would not pay the connection fee.

Derby Meadows subsequently learned that Robert Gallagher and his company Orchard Hill were negotiating with Inter-Continental for the purchase of the Creekside property. At that time, Derby Meadows provided Orchard Hill with a copy of its utility service agreement with Inter-Continental and informed Gallagher that this agreement would be binding on his company if Orchard Hill purchased Creekside.

In December 1987 Inter-Continental signed an agreement with Orchard Hill for the sale of Creekside. On February 18, 1988, Derby Meadows filed a complaint against Inter-Continental for breach of contract and specific performance. Derby Meadows also filed a lis pendens notice on the Creekside property concerning its lawsuit against Inter-Continental. In March 1988, a rider to the real estate contract between Inter-Continental and Orchard Hill was executed which provided that the purchaser, Orchard Hill, rather than the seller, Inter-Continental, would be obligated for the payment of connection fees or sewer payments for the provision of water and sanitary sewer services provided by Derby Meadows.

THE UTILITY SERVICE CONTRACT FOR PINEWOOD NORTH

Camelot Homes is a real estate development company whose president is Robert Kaup. Camelot Homes owns a parcel of real estate in southwestern Cook County near the Village boundaries which is known as Pinewood North.

During 1986-87 Kaup and Perino met and discussed the provision of water and sanitary sewer services by Derby Meadows for the proposed subdivision known as Pinewood North. The conversations between Kaup and Perino included a discussion of the terms under which Derby Meadows would provide the sewer and water service to the property, including the price, method of providing service, the time for service connections as well as joint efforts to obtain approval from the Illinois Commerce Commission. At the end of the meeting Perino asked Kaup if they had a deal, and Kaup replied, “We have a deal.” Kaup then told Perino to “get going on it,” and they shook hands. Perino then retained counsel to initiate a petition with the Illinois Commerce Commission to obtain a certificate of public convenience and necessity to provide service. The petition was to have included a written memorialization of the agreement between Kaup and Perino. At the March 20, 1987, hearing of the Cook County Zoning Board of Appeals, Camelot Homes’ engineer stated that Derby Meadows would be providing the water and sewer service to the site, and at the Village plan commission meeting, Kaup and the engineer presented Pinewood North subdivision plans which showed water and sewer connections to Derby Meadows’ facility. One of Kaup’s attorneys also stated in a letter to the Village planner that Camelot Homes had an understanding with Derby Meadows for the provision of water and sewer service. On August 20, 1987, Kaup told Derby Meadows’ attorneys that Camelot Homes and Derby Meadows had a “handshake deal.” However, despite its acknowledgement of the agreement, Camelot Homes refused to perform. On February 18, 1988, Derby Meadows filed a suit against Camelot Homes alleging breach of contract and seeking specific performance.

THE TORTIOUS INTERFERENCE ACTION

The Village is a municipality in southwestern Cook County. In 1980 the Village obtained the right to purchase and resell Lake Michigan water. At this time the Village expanded its water lines and installed sanitary sewer lines in order to provide sewer service and Lake Michigan water to customers both within and outside the Village boundaries.

Pursuant to section 11—12—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11—12—5), the Village has the right to review and approve as well as give input into the character and design of plats of development on property located within D/2 miles of its boundaries. The real estate developments involved in these proceedings are located within this 1½-mile area. Unlike Derby Meadows, the Village, as a municipality, is not required to obtain a certificate of public convenience and necessity to provide water and sewer service.

Because the Creekside property owned by Inter-Continental and the Pinewood North property owed by Camelot Homes were both located within V-k miles of the corporate boundaries of the Village, the Village’s approval was required before the properties could be developed. The Village learned of Derby Meadows’ agreements with InterContinental and Camelot Homes when each of the developers applied for subdivision approval. However, neither property was approved for development prior to the refusal of Inter-Continental and Camelot Homes to honor their agreement with Derby Meadows. On September 28, 1987, Derby Meadows filed a suit alleging that the Village tortiously interfered with Derby Meadows’ contract with Inter-Continental and Camelot Homes.

PROCEDURAL HISTORY

Judge Roger Kiley presided over the trial of Derby Meadows’ lawsuit against the Village and found that Derby Meadows had a valid enforceable contract with Inter-Continental and Camelot Homes, and that the Village had tortiously interfered with the contracts. However, before Judge Kiley issued a written order, Camelot Homes and Orchard Hill filed petitions to intervene, claiming that their rights would be affected if an injunction order were entered. The trial court granted both petitions and ordered Derby Meadows to consolidate its specific performance lawsuits against Camelot Homes and Inter-Continental with its lawsuit against the Village. Following the consolidation of the cases, Inter-Continental moved for a change of venue which was granted. The specific performance claim against Inter-Continental was assigned to Judge Albert Green. However, Derby Meadows’ tortious interference claims against the Village, including the tortious interference claim regarding the Inter-Continental contract, remained with Judge Kiley. Camelot Homes then brought a motion for summary judgment, claiming that its contract with Derby Meadows was unenforceable based on the Statute of Frauds. A briefing schedule and hearing date were ordered. Derby Meadows was also ordered to add Orchard Hill as a party defendant in the Inter-Continental case. On January 10, 1989, Derby Meadows filed its second amended complaint adding Orchard Hill as a defendant. Judge Kiley subsequently resigned from the bench, and the consolidated suits against the Village and Camelot Homes were assigned to Judge Monica Reynolds. On May 24, 1989, Judge Reynolds granted Camelot Homes’ motion for summary judgment. Based on her finding that the Camelot Homes contract was unenforceable, Judge Reynolds entered an order dismissing Derby Meadows’ tortious interference claim against the Village. These orders are the subject of appeal No. 1—89—1613. In the InterContinental case before Judge Green, both defendants filed motions to dismiss pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615), alleging that Derby Meadows’ second amended complaint failed to state a cause of action. The trial court granted both motions. The order granting these motions is the subject of appeal No. 1 —89—1612. The Village then filed a motion before Judge Reynolds, requesting the court to adopt Judge Green’s dismissal orders and enter summary judgment in favor of the Village on the tortious interference claim regarding Derby Meadows’ contract with Inter-Continental. The trial court granted the motion. This order is the subject of appeal No. 1—89—2064. The three appeals were subsequently consolidated.

I

Derby Meadows first contends that the trial court erred in granting Camelot Homes’ motion for summary judgment because there were questions of fact as to whether its contract with Camelot Homes was unenforceable under the Statute of Frauds. When an order for summary judgment is reviewed, the only issue on appeal is whether “ ‘ “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ’ (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1005.)” (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 85, 508 N.E.2d 1201, quoting Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 646.) The granting of a motion for summary judgment is not a matter of discretion, and if no genuine issue exists, the motion should be granted and the cause terminated in the moving party’s favor. Manaban v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 12, 365 N.E.2d 1045.

Camelot Homes’ motion for summary judgment was granted based on the Statute of Frauds. The relevant portions of that statute provide:

“That no action shall be brought *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (Ill. Rev. Stat. 1987, ch. 59, par. 1.)

Section 2 of the statute provides:

“No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” Ill. Rev. Stat. 1987, ch. 59, par. 2.

Derby Meadows’ first argument in support of its contention that the Statute of Frauds is inapplicable to the Camelot Homes’ contract is that the record raises questions of fact as to whether Camelot Homes admitted the existence and material terms of the contract and, therefore, brought the agreement within a valid exception to the Statute of Frauds. Derby Meadows claims that Camelot Homes admitted the existence of a contract in its pleadings and the sworn deposition of its president, Robert Kaup, and that these admissions were judicial admissions which created an exception to the Statute of Frauds defense.

In order to qualify as a judicial admission, the statement must be clear, unequivocal and within the party’s personal knowledge. (Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 15, 545 N.E.2d 965, citing Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301 (Hansen I).) Pursuant to Supreme Court Rule 212, a discovery deposition may be used as an admission by a party, its officer or agent in the same manner and to the same extent as any other admission made by that person. (107 Ill. 2d R. 212(a)(2); Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 569, 390 N.E.2d 60.) In addition, a party’s admission must be deliberate testimony relating to a concrete fact and not an inference or uncertain summary. Tom Olesker’s Exciting World of Fashion, Inc., 71 Ill. App. 3d at 569.

Derby Meadows claims that statements made by Camelot Homes in its answer to the complaint were judicial admissions. However, in Camelot Homes’ answer, the statements to which Derby Meadows refers only admitted the occurrence of a discussion between Perino and Kaup as to the possible terms of a future contract. Some of the terms discussed were that Camelot Homes would assist Derby Meadows to obtain approval from regulatory agencies, that Camelot Homes offered to assume construction of on-site water and sewer facilities for the subdivision and that the preliminary discussion between Perino and Kaup was to culminate in a written contract to be used, “among other purposes,” for Derby Meadows’ application before the Illinois Commerce Commission. None of these statements were an unequivocal admission that the discussion resulted in a contract at that time. They were, at best, statements as to the possible terms of a future contract.

Derby Meadows also claims that the statements by Kaup in his deposition were judicial admissions. However, Kaup’s deposition was taken as part of discovery in the tortious interference action against the Village in which Camelot Homes was not a party. Supreme Court Rule 212(a)(2) (107 Ill. 2d R. 212 (a)(2)) states that it is the statements in the discovery deposition of a party which can be used as an admission. (See also Tom Olesker’s Exciting World of Fashion, Inc., 71 Ill. App. 3d at 569.) Furthermore, Kaup’s acknowledgement in his deposition that, at the end of his meeting with Perino, he shook hands with him and said that they had a deal was not a statement under oath that he had a deal with Perino but was only a statement that he had this conversation with Perino at the time of their meeting. Additionally, Kaup’s reference to his agreement with Perino as a “deal” was not an unequivocal statement regarding the existence of a contract, as opposed to the statements in the cases cited by Derby Meadows which directly referred to the particular transaction as a contract. See Whildin v. Kovacs (1981), 93 Ill. App. 3d 582, 417 N.E.2d 736; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226.

Derby Meadows also argues that the Statute of Frauds does not render its contract with Camelot Homes unenforceable because the contract could have been performed within one year. Derby Meadows claims that this could have occurred if it was denied a certificate of public convenience and necessity by the Illinois Commerce Commission, which could be a contingency factor precluding further performance of the contract. Because the denial of the certificate could have occurred within the year, performance of the contract would be completed at that time.

Although Derby Meadows cites George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co. (1973), 12 Ill. App. 3d 362, 299 N.E.2d 601, and Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 292 N.E.2d 52, in support of its argument, the contract at issue could only be outside the statute if it was capable of being fully performed within one year and not simply terminated by some contingency such as death or bankruptcy. (Gilliland v. Allstate Insurance Co. (1979), 69 Ill. App. 3d 630, 388 N.E.2d 68, citing Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 195 N.E.2d 250, aff'd (1964), 31 Ill. 2d 507, 202 N.E.2d 516.) In this case, the contingency to which Derby Meadows refers was the Illinois Commerce Commission’s denial of the certificate of public convenience and necessity, which was a prerequisite for the performance of the contract. If Derby Meadows were unable to obtain the certificate, it could never perform on the contract. At this point, the contract would not just be terminated, as in Stein and George F. Mueller & Sons, but it would be a nullity. Therefore, denial of the certificate would not render the contract capable of performance within one year.

Derby Meadows also claims that its oral contract with Camelot Homes is divisible and that the provisions concerning water and sewer service did not require a writing. The question of whether a contract is severable is based on a determination of the intent of the parties. The factors considered are whether performance by one of the parties consists of separate and distinct functions and whether the price paid by the other party is apportioned to each function performed. Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 1097, 484 N.E.2d 399; Kaplan v. Keith (1978), 60 Ill. App. 3d 804, 808, 377 N.E.2d 279.

The terms of the alleged oral contract between Derby Meadows and Camelot Homes were set forth in Derby Meadows’ complaint. According to these terms, the performance by both parties consisted of similar or related actions which were directed toward the common goal of establishing water and sanitary sewer service for the Pinewood North property. In addition, the only term which referred to a specific price was item (b), which stated that Camelot Homes agreed to pay a tap-in connection charge of $1,700 per lot. The terms of this agreement were discussed at a single meeting between Kaup and Perino, and both parties’ references to the agreement support the conclusion that the agreement was intended as a single transaction. Therefore, we conclude that the agreement between Camelot Homes and Derby Meadows is severable.

For the reasons set forth above, we conclude that Judge Reynolds properly granted Camelot Homes’ motion for summary judgment based on the Statute of Frauds.

II

Derby Meadows also contends that the trial court’s dismissal of its claim agains the Village for tortious interference with the Camelot Homes contract was error. Subsequent to her finding that the Camelot Homes contract was unenforceable, Judge Reynolds entered an order that the Village and Derby Meadows were collaterally estopped from relitigating this issue. Judge Reynolds then dismissed the tortious interference claim regarding the Camelot Homes contract.

The elements of a cause of action for tortious interference with a contract are the existence of a valid contract, the intentional and unjustified inducement of a party to breach his contractual obligation and the incurring of damages as a result of the breach. (Mineral Resources, Inc. v. Classic Coal Corp. (1983), 115 Ill. App. 3d 114, 450 N.E.2d 379.) Because Derby Meadows failed to establish that it had a valid enforceable contract with Camelot Homes, its claim against the Village for tortious interference with this contract also fails.

III

Derby Meadows next contends that Judge Green erred in granting Inter-Continental and Orchard Hill’s section 2 — 615 motions where Derby Meadows pleaded adequate facts in its second amended complaint to support a cause of action for breach of contract and promissory estoppel. The second amended complaint contained three counts. Count I alleged that Inter-Continental breached the water and sewer contract concerning the Creekside property. Count II was a claim for promissory estoppel which alleged that Inter-Continental had represented that it would develop the Creekside property, purchase water and sewer services from Derby Meadows, and that Derby Meadows reasonably relied on these representations to its detriment. Count III stated a breach of contract claim against Orchard Hill as a contract purchaser of Creekside lots. Derby Meadows alleged that Orchard Hill had notice of the Inter-Continental contract and that the contract obligations would run with the land. Inter-Continental and Orchard Hill responded to the complaint by filing motions to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure. Both motions were granted.

When a judgment appealed from is entered as a result of a motion to dismiss, all properly pleaded facts and all reasonable inferences from them will be regarded as true. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 499, 520 N.E.2d 37; Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360, 466 N.E.2d 224.) To survive a motion to dismiss, a complaint must present a legally recognized claim as its basis for recovery, and it must plead sufficient facts which, if proved, would demonstrate a right to relief. People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.

In its second amended complaint, Derby Meadows alleged that on October 30, 1980, Tope Corporation through its trustee Marquette Bank contracted to sell its rights to the Creekside property to InterContinental, and that as part of the same transaction, Derby Meadows contracted with Inter-Continental to provide water and sanitary sewer utility services to Creekside. The utility service contract, which was incorporated into the pleadings, referred to the real estate contract between Tope Corporation and Inter-Continental. Under this contract, Derby Meadows was required to construct sewer and water lines to provide sewer and water utility services to Creekside. InterContinental was required to pay Derby Meadows a tap-in fee of $1,200 per unit for sewer capacity. The tap-in fee was due at the time that on-site improvements were completed by the developer or at the time that Derby Meadows completed its trunk line, whichever occurred first. Derby Meadows further alleged in the complaint that the trunk line was completed in 1985, but that Inter-Continental had refused and failed to perform on the utility service contract, including the payment of utility connection fees.

Inter-Continental argues that count I of the second amended complaint failed to state a cause of action because the well-pleaded allegations of plaintiff’s complaint stated that, as of December 1987, Orchard Hill became the equitable owner of the Creekside property by virtue of the contract for sale. However, even though the complaint made reference to negotiations between Inter-Continental and Orchard Hill regarding the sale of Creekside, the allegations identified Inter-Continental as the owner of the property, and this fact must be taken as true for purposes of a section 2 — 615 motion. Furthermore, although Derby Meadows made reference to the real estate contract and rider in count III of the complaint, which alleged a cause of action against Orchard Hill, the 1987 document only contained the signature of the trustee purchaser, Standard Bank and Trust Company, acting on behalf of Orchard Hill. The signature of Steel City National Bank on behalf of Inter-Continental did not appear on the document until March 1988. For these reasons, we conclude that Derby Meadows’ complaint alleged sufficient facts to support its claim that Inter-Continental was the owner of Creekside when the complaint was initially filed in February, 1988.

Inter-Continental also argues that the utility service agreement with Derby Meadows was not a contract. However, in its second amended complaint, Derby Meadows set forth the parties to the agreement, the terms of performance, consideration and the time period in which performance was to occur. These allegations were sufficient to support Derby Meadows’ claim that the utility service agreement was a contract.

We, therefore, conclude that count I of Derby Meadow’s second amended complaint properly pleaded a cause of action for breach of contract against Inter-Continental.

Count II of Derby Meadows’ second amended complaint was a promissory estoppel claim against Inter-Continental. A cause of action in promissory estoppel must allege an unambiguous promise, reliance thereon by the party to whom the promise is made, injury resulting from this reliance and the foreseeability of this reliance by the party making the promise. (Bolden v. General Accident, Fire & Life Assurance Corp. (1983), 119 Ill. App. 3d 263, 266, 456 N.E.2d 306.) In its complaint, Derby Meadows alleged that it entered into the utility service contract with Inter-Continental in reliance on Inter-Continental’s promise to develop Creekside as a residential subdivision, and that Derby Meadows would receive the connection charge for sewer and water service from Inter-Continental and the monthly utility service fees from residents of Creekside. Derby Meadows further alleged that throughout 1980-1987 Inter-Continental’s officers and agents made representations to the officers and agents of Derby Meadows as well as public and governmental bodies that Inter-Continental would develop the Creekside property as a residential subdivision, and that it would use Derby Meadows as its source of water and sanitary sewer utility service. Derby Meadows then listed the specific situations in which these representations were made including sessions before the Village plan commission and the Cook County zoning board. Derby Meadows also alleged specific facts to support its allegation that it had changed its position in reliance on Inter-Continental’s representations by committing large sums of money to construct utility lines and a trunk line to service the Creekside property.

Inter-Continental first argues that Derby Meadows’ promissory estoppel claim was legally insufficient because Derby Meadows alleged in its pleadings that it relied on representations made by Inter-Continental in 1987 although the construction performed in reliance on these representations occurred in 1985. Inter-Continental’s argument is only partially accurate. Although Derby Meadows refers to representations made in 1987, Derby Meadows also states that: “Such representations were made by Inter-Continental in 1980 during negotiations between Inter-Continental’s president and Perino ***.”

Inter-Continental next argues that there was no basis for Derby Meadows’ promissory estoppel claim because any representations by Inter-Continental were promises of future action. Inter-Continental cites Ozier v. Haines (1951), 343 Ill. App. 400, 99 N.E.2d 395, aff’d (1952), 411 Ill. 160, 103 N.E.2d 485, in support of its proposition that statements as to future action are not representations of existing fact and, therefore, do not give rise to estoppel. However, the court in Ozier v. Haines addressed the doctrine of equitable estoppel rather than the doctrine of promissory estoppel. The elements of equitable estoppel are: (1) words or conduct by the party against whom the estoppel is alleged consisting of misrepresentations or concealment of material facts; (2) the party against whom the estoppel is alleged must have actual or implied knowledge at the time the representations are made that they are untrue; (3) the truth regarding the representations is unknown to the party claiming the benefit of estoppel both at the time they are made and when they are acted on by him; (4) the party estopped must intend or expect that his conduct or representations will be acted on by the party claiming estoppel; (5) the party claiming estoppel does rely and act on the representations and in such a manner that he would be prejudiced if the party making the representations is allowed to deny the truth thereof. (Lowenberg v. Booth (1928), 330 Ill. 548, 555-56, 162 N.E. 191.) The elements of promissory estoppel are: “(1) a promise, (2) which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee, (3) which induces such action or forebearance, and (4) which must be enforced in order to avoid injustice.” Phillips v. Britton (1987), 162 Ill. App. 3d 774, 785, 516 N.E .2d 692.

Although both forms of estoppel consist of words or conduct by one party which is expected or intended to cause action or forebearance on the part of another party, equitable estoppel is based on an intended misrepresentation or concealment of a material fact, while promissory estoppel is based on a promise, which is a “declaration that one will do or refrain from doing something specified.” (Webster’s Third International Dictionary 1851 (1986).) Furthermore, promissory estoppel claims based on future action have been recognized by Illinois courts. (See Kaluzny Brothers, Inc. v. Mahoney Grease Service, Inc. (1988), 165 Ill. App. 3d 390, 518 N.E.2d 1269; Lawrence v. Board of Education of School District 189 (1987), 152 Ill. App. 3d 187, 503 N.E.2d 1201.) Thus, we conclude that Inter-Continental’s statement of future action could give rise to a claim based on promissory estoppel.

Inter-Continental’s remaining argument is that it was not reasonable for Derby Meadows to rely on Inter-Continental’s statements regarding the development of Creekside because the statements were ambiguous and contingent on such future events as governmental approval and financing. However, in Phillips (162 Ill. App. 3d 774) and Huegel v. Sassaman (1979), 75 Ill. App. 3d 414, 393 N.E .2d 1361, cited by Inter-Continental in support of this argument, the ambiguity of the promise or the fact that it was based on some contingency was a factual determination by the trial judge following consideration of the evidence. In this case, Derby Meadows’ promissory estoppel claim was rejected solely on the basis of the pleadings which, taken as true, were sufficient to state a cause of action for promissory estoppel. Therefore, it was error for the trial court to dismiss count II of Derby Meadows’ second amended complaint.

Count III of the second amended complaint was a breach of contract claim against Orchard Hill, alleging that as a contract purchaser of Creekside lots, Orchard Hill was bound by the obligations of the contract between Derby Meadows and Inter-Continental. Derby Meadows supported its contract claim against Orchard Hill with allegations regarding the sale of Creekside to Orchard Hill and the actions Derby Meadows took to give Orchard Hill notice of the Inter-Continental contract when Derby Meadows learned that Creekside might be sold. Based on the notice to Orchard Hill, Derby Meadows alleged that the utility service contract was a covenant running with the land and would be binding on subsequent purchasers such as Orchard Hill.

In order for a covenant to run with the land, the contracting parties must have intended it at the time of the contracting, the covenant must touch and concern the land and there must be privity of estate between the party claiming the benefit of the covenant and the party resting under its burden (Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 188, 457 N.E.2d 1226; Nassau Terrace Condominium Association, Inc. v. Silverstein (1989), 182 Ill. App. 3d 221, 224, 537 N.E.2d 998; Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 904, 278 N.E. 813.) Therefore, the first determination to be made is whether Derby Meadows and Inter-Continental intended the utility service contract to be a covenant running with the land. Where the terms of the contract are plain and unambiguous, the intent of the parties must be determined solely from the words within the instrument. Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161, 165, 430 N.E.2d 631; Herbert Shaffer Associates, Inc. v. First Bank (1975), 30 Ill. App. 3d 647, 653, 332 N.E.2d 703.

The utility service contract between Inter-Continental and Derby Meadows was clear and unambiguous, and it contained no language which illustrated that the parties intended to create an agreement which would run with the land. Therefore, Orchard Hill, as a contract purchaser of Creekside, was not bound by the utility service agreement between Derby Meadows and Inter-Continental, and the trial court’s dismissal of Derby Meadows’ claim against Orchard Hill was proper.

IV

Derby Meadows’ final contention is that Judge Reynolds erred in granting summary judgment in favor of the Village on the tortious interference claim regarding the Inter-Continental contract. Because Derby Meadows stated a valid cause of action for breach of contract against Inter-Continental, the dismissal of count I of the second amended complaint was error. Therefore, it was also error to grant summary judgment in the Village's favor on Derby Meadows’ tortious interference claim regarding the Inter-Continental contract.

Accordingly, the orders of the circuit court for summary judgment in Camelot Homes’ favor, for dismissal of the tortious interference claim on the Camelot Homes’ contract and for dismissal of the breach of contract claim against Orchard Hill are affirmed. The orders dismissing the breach of contract and promissory estoppel claims against Inter-Continental and the order for summary judgment in the Village’s favor on the tortious interference claim regarding the InterContinental contract are reversed.

Affirmed in part; reversed in part and remanded for further proceedings.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE McNAMARA

text:
    ROBERT BRIJA, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF DOLTON et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—89—2959,1—89—3152 cons.
    Opinion filed August 17, 1990.

      Gasperec & Szwed, Ltd., of Homewood (Timothy J. Szwed, of counsel), for appellants.
    Stinespring, Lambert & Associates, of Flossmoor (Charles W. Denham, Jr., of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Robert Brija, worked as an engineer for the Village of Dolton when he was disciplined for not responding to a general alarm call on his pager. The fire chief, defendant John W. Conley, suspended plaintiff for 24 hours. The defendant Board of Fire and Police Commissioners of the Village of Dolton (Board), and the individual defendant Board members, modified the fire chief’s decision and reduced the suspension to a 12-hour period. On administrative review, the trial court reversed the Board’s decision, finding it was based on facts not charged in the fire chief’s suspension order. Defendants appeal, contending the Board’s decision should be reinstated since it was not against the manifest weight of the evidence.

Plaintiff was employed by the village for 10 years. On January 16, 1989, he was off duty. At 8:30 a.m., he went to the fire station to play basketball. In his duffel bag, plaintiff carried his pager, which was in the “power on” mode, on low volume.

At 10 a.m., the basketball game ended. Shortly thereafter, a call came in reporting a fire in the village. Several minutes later, the call was changed to a “general alarm,” and consequently all personnel were “beeped” on their pagers and required to report to their work stations.

At the hearing, it was established that plaintiff was in the station when the first call was made. However, no one could testify that he was still in the station two minutes later when the call was changed to a “general alarm.” Plaintiff testified that he was leaving the station for home as the other firemen responded to the first alarm. At the time of the general alarm, he was on the way home. Because his pager was on low volume and inside his duffel bag, he did not hear about the general alarm until several hours later.

Because plaintiff failed to respond to the general alarm, Chief Conley suspended him for a 24-hour tour of duty, the equivalent of three days’ pay. This disciplinary action was accompanied by a written order by Chief Conley, dated January 26, 1989, which stated:

“That on January 16, 1989, at or about 1014 hours, while you were in Fire Station No. 1, you failed to respond to a general alarm request issued by myself for a structure fire in violation of Section 3, Articles 3.08 [personnel must perform their duties], 3.16 [personnel must use reasonable judgment], 3.88 [personnel must carry pager in operating condition so calls can be received at all times] and 7.05 [all personnel must respond to general alarm] Response Procedure of the Fire Department Rules and Regulations ***.” (Emphasis added.)

Plaintiff appealed this suspension to the Board, which modified it to a 12-hour shift, or the equivalent of V-k days’ pay. Plaintiff sought administrative review, and the trial court reversed the suspension because the charge specified that plaintiff violated the rules while in the fire station, and there was no evidence that he was “in” the fire station when the general alarm was issued.

Charges in administrative hearings need not be technically precise. (Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151.) Such charges need not be drawn with the same refinements and subtleties as court pleadings. (Batley v. Kendall County Sheriff’s Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201.) The charges need only be specific enough to enable the party to intelligently prepare a defense. Altman v. Board of Fire & Police Commissioners (1982), 110 Ill. App. 3d 282, 442 N.E.2d 305.

The fire chief’s order accused plaintiff of the violation of certain department rules, including numbers 3.08, 3.16, 3.88 and 7.05, on January 16, 1989, at or about 1014 hours, “while you were in Fire Station No. 1.”

Rule 3.08 requires personnel to carry out “all duties required of their rank and/or assignments.” The evidence established that plaintiff failed to carry out his duties when he failed to respond to a general alarm.

Rule 3.16 requires all personnel to “use reasonable judgment in the exercise of their responsibilities.” The evidence clearly permitted a finding that it was poor judgment on plaintiff’s part to put his pager on low volume in his duffel bag. The trial court noted there was support in the record for this factual finding, when it stated there was “[n]o doubt he didn’t use common sense when a fire broke out and, because he was off-duty, he takes his pager and puts it in a duffel bag so he can’t hear any subsequent emergency, which a reasonable person thinks *** might occur.” The court found the evidence demonstrated that plaintiff’s behavior was “outrageous, irresponsible” and that it was “frustrating to see an officer acted with stupidity and disregard for the safety of people.”

Rule 3.88 requires fire department members to carry the pager “at all times,” and keep it in “proper operating condition at all times, so that calls can be received and the pager activated to acquire needed manpower.” The Board could clearly find from the evidence that plaintiff failed to keep the pager in a condition permitting calls to be received, thus preventing the Department from acquiring needed manpower during an emergency.

Rule 7.05 provides that a “general alarm” requires all engineers to report immediately to their duty stations when command requires more manpower on the scene. Plaintiff conceded that he did not report to his duty station when the general alarm was communicated to all engineers.

The proof adduced at the hearing, therefore, established that plaintiff violated the rules listed in the charging order. The trial court found that, without question, the evidence established that “he violated the rules.”

Plaintiff asserts, however, that he “cannot be expected to come in and be prepared to defend [himself] to a charge of failing to respond to a request by the Chief while in Fire Station No. 1, and then, at the hearing on the charge, the case is about some other set of factual allegations.”

The variance in the charging language was not key, or serious, here. The charges sufficiently alerted plaintiff to the specific case against him. He was accused of violating very specific rules by his actions, and was not accused of failing to be physically in the fire station at that time. We conclude that defendants’ case against plaintiff does not vary significantly from the charges defendants filed against him. See Northtown Ford v. Human Rights Comm’n (1988), 171 Ill. App. 3d 479, 525 N.E.2d 1215; Slager v. Pollution Control Board (1981), 96 Ill. App. 3d 332, 421 N.E.2d 929. Gf Moore v. Department of Driver Services (1990), 201 Ill. App. 3d 587 (charge inadequate where it concerned the bribe of one person, while the proof concerned the bribe of a completely different person); Wierenga v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 270, 352 N.E.2d 322 (charge inadequate where it listed a violation of one code section, while the evidence concerned the violation of a different code section).

Whether plaintiff was “in” the fire station, or “near” the station, had little or no relevance to the charge. The physical location of plaintiff’s body bears no weight on this case. Plaintiff was not charged, for example, with being on duty in the station when he refused to get on the fire truck when it left on an emergency call. Neither was he charged with being physically out of range with his beeper.

We hold, therefore, that the trial court erred in reversing the decision of the Board. The charging instrument sufficiently notified plaintiff of the charges against him and permitted him to adequately prepare his defense prior to the hearing on those charges. The decision of the Board is hereby reinstated.

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

Judgment reversed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE RIZZI

text:
    INRYCO, INC., Plaintiff-Appellee, v. MULTULOC CORPORATION, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—2780
    Opinion filed August 22, 1990.

      Walter E. Trittipo, of Chicago, for appellant.
    Carrie A. Durkin and Keith J. Shuttleworth, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Multuloc Corporation (Multuloc) appeals from an order of the circuit court of Cook County which denied its motion for summary judgment and granted plaintiff Inryco, Inc.’s (Inryco’s) motion for summary judgment. We reverse and remand for trial.

Inryco, a manufacturer and supplier of flooring and roofing products, brought suit against Multuloc, a floor and roof deck subcontractor, to recover damages for the balance of the contract price for roof decking materials it provided to Multuloc for its use during the 1981 construction of the Continental Baking Company bakery (Continental) in Hodgkins, Illinois. The balance allegedly owed by Multuloc was withheld after Continental refused to pay Multuloc the same amount when it discovered that the interior roof of the building did not comply with its specifications. As a result, Continental had to pay for corrective painting of the interior roof. The cost of the painting was the payment amount which Continental withheld from Multuloc and the amount of Multuloc’s setoff against Inryco.

The negotiations on the project began when Multuloc submitted a written proposal to Continental on April 22, 1981. The proposal called for Multuloc to construct a two-part cellular roof deck having a G-60 galvanized coating. The G-60 description is an ASTM industry standard specification for a galvanized coating having sixty one-hundredths of an inch of galvanizing material per square foot of surface area. Continental accepted the proposal and authorized Multuloc to construct the building. On May 8, 1981, Multuloc sent a material purchase order to Inryco. The purchase order contained, inter alia, the following requests, “approx. 1356 sqs. of Inryco l-5/s NF 20/20 Galv. (G60) Roof Deck.” In his affidavit, Kenneth R. Grearson (Grearson), president of Multuloc, stated that he received a written acknowledgement of his order on May 14, 1981. The acknowledgement letter informed Grearson that a complete and final bill of material should be sent to Inryco on or before July 13, 1981, in order to maintain the desired production schedule.

On July 10, 1981, Grearson telephoned Inryco to provide the necessary information to complete the bill of material. The information was taken via telephone by Inryco’s customer service representative. The customer service representative transcribed the order specifications onto a bill of material form. On or about July 15, 1981, Inryco sent Multuloc a copy of the final and complete bill of material. That bill of material contained a product description which called for roof deck material with a G-60 coating on the top and an A-40 coating on the bottom. The coating specifications were written in the language of Inryco’s internal code classifications and not in ASTM standard language. In his affidavit, Grearson indicated that he did not alter his original G-60 coating specification when he provided the information for the bill of material by telephone. Grearson further indicated that when he received a copy of the bill of material, he did not review the product coating specifications because he was unfamiliar with Inryco’s internal code classifications. Grearson stated that he focused his attention on the “cutting list,” which detailed the lengths and numbers of pieces to be cut by the mill for shipment to the job-site.

Inryco fabricated the ordered material in accordance with the bill of material. From August 8, 1981, to August 22, 1981, Inryco shipped the materials to Multuloc’s work site. Inryco also sent 15 individual notices of shipment to Multuloc. The notices contained Inryco internal code classifications for a deck product with a G-60 coating on the top and an A-40 coating on the bottom. Grearson acknowledged receipt of the notices, but stated that he never reviewed the product specifications for accuracy. The roof deck product was stored at the jobsite on pallets in the bundles shipped from the Inryco factory. Because the product was stored with the underside down, no one at Multuloc examined the underside of the product.

The roof deck product remained bundled until erection of the structure began on September 19, 1981. According to Multuloc, it was its practice and the practice of other roof deck subcontractors operating in the Chicago market at the time of the performance of this subcontract not to make detailed inspections either of the numbers and lengths of pieces or of the conformity of the various galvanized coatings to contract specifications at the time of delivery but, rather, to wait until the materials were lifted by crane to the location where they were to be used. On or about September 23, 1981, Grearson was informed by Continental that the underside of the partially constructed roof was badly streaked. Continental informed Grearson that it would not accept the installed galvanized deck product in that condition because it was not the product specified in their contract.

In response to Continental’s complaint, Grearson obtained a sample of the product and took it to Inryco’s Melrose Park office on September 23, 1981, to inquire if the underside of the product had a G-60 surface. Inryco tested the product and on October 7, 1981, informed Multuloc that the underside of the product had an A-40 surface. When Continental was informed that the underside of the deck product surface was A-40 instead of G-60, it informed Multuloc that the A-40 finish was unacceptable and that field painting would be performed at Multuloc’s expense. Continental refused to consent to removal of the objectionable product or wait for delivery of a new order. Bids were solicited for the roof painting, and the low bid price was $27,667. Continental deducted the price of the paint job from its payment to Multuloc. Thereafter, Multuloc requested, but was refused reimbursement from Inryco for the cost of the painting. As a result, Multuloc deducted the cost of painting from the payment due Inryco for the deck materials. This lawsuit followed.

On appeal, Multuloc contends that the trial court erred in granting Inryco’s motion for summary judgment and in denying its motion for summary judgment. Alternatively, Multuloc contends that because material issues of fact exist, summary judgment for either party was inappropriate. We agree with Multuloc’s latter contention.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 273, 533 N.E.2d 75, 78; Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The aim of summary judgment is not to try issues but to determine whether any triable issues exist. (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 633, 461 N.E.2d 612, 614.) Evidence in support of the motion must be strictly construed against the moving party, and summary judgment should be denied where reasonable persons could arrive at different conclusions. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 327, 532 N.E.2d 333, 336.) An order granting summary judgment must be reversed if a reviewing court determines that an issue of material fact exists. Arnold v. Village of Chicago Ridge (1989), 181 Ill. App. 3d 778, 785, 537 N.E.2d 823, 827.

In the present case, there are several genuine issues of material fact which preclude summary judgment for either party. Following the hearing on the motion for summary judgment, the trial court made the following conclusions of law: (1) the evidence shows that there was an agreement between the parties based on the writings and conduct of the parties in their totality; (2) Multuloc had a duty to know its own obligations to the owner; (3) Multuloc ordered the product that it received and accepted; (4) Multuloc had a duty to inspect the product upon delivery. The bill of material, shipping notices, and the length of time the product was in Multuloc’s possession provided Multuloc with adequate opportunities to inspect the product for the alleged defect; (5) Multuloc did not provide timely notice to Inryco of any alleged defect in the product; and (6) Multuloc made no effective revocation of the product accepted.

Contrary to the court’s conclusions, several disputed factual issues exist. First, the terms of the contract are in dispute. Inryco contends that Multuloc ordered a roof deck product with a G-60 surface on the top and an A-40 surface on the bottom. Inryco states that its position is supported by the bill of material and shipping notices which designate, in their internal language, that particular product specification. Multuloc responds that it did not at any time request an A-40 surface on the underside of the roof product and that it was unfamiliar with Inryco’s internal product specification language. Its position is supported by the purchase order form which contains a G-60 coating specification.

Second, the parties disagree as to whether the bill of material was either a modification or a material alteration of the parties’ prior agreement as specified in the purchase order. Multuloc contends that the Illinois Uniform Commercial Code provision which provides that a written confirmation delivered within a reasonable time operates as an acceptance, unless the terms materially alter the agreement, governs the transaction. (See Ill. Rev. Stat. 1987, ch. 26, par. 2— 207.) It is Multuloc’s position that Inryco’s bill of material materially altered the parties’ previous agreement. Inryco responds that even if Multuloc’s purchase order could have constituted an agreement between the parties, it was clearly modified by the subsequently prepared bill of material, which complied with the Illinois Uniform Commercial Code modification provisions which provide that written modifications between merchants need not be signed. (Ill. Rev. Stat. 1987, ch. 26, par. 2 —209(3).) Inryco further contends that Multuloc’s failure to timely object to the contract modifications resulted in acceptance of the terms. In short, the parties disagree about whether or not their original agreement was modified or materially altered.

Third, the parties disagree on the issue of timely objection. Inryco contends and the trial court agreed that Multuloc did not timely object to the alleged defects in the roof deck product. Multuloc counters that timeliness under section 2—607(3)(a) (Ill. Rev. Stat. 1987, ch. 26, par. 2—607(3)(a)) is for the trier of fact to decide. We agree with Multuloc that the timeliness of an objection to allegedly defective goods is a factual issue to be determined on the basis of the nature of the goods involved and the custom and practice of the trade. See S.M. Wilson & Co. v. Reeves Red-E-Mix Concrete (1976), 39 Ill. App. 3d 353, 357, 350 N.E.2d 321, 325.

In sum, there are numerous material issues of fact which preclude summary judgment for either party in this matter. We believe that fair-minded persons could draw different inferences from the facts and that therefore one or more triable issues exist. Because the trial court could not have reached a decision without resolving these factual issues, summary judgment was inappropriate in this case.

Accordingly, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for trial.

Reversed and remanded.

CERDA, P.J., and FREEMAN, J., concur.