author: JUSTICE McCULLOUGH

text:
    STEPHEN A. SMITH, d/b/a A B C Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION, Defendant (X L Disposal Corporation, Defendant-Appellant).— STEPHEN A. SMITH, d/b/a A B C Sanitary Hauling, et al., Plaintiffs-Appellees, v. INTERGOVERNMENTAL SOLID WASTE DISPOSAL ASSOCIATION et al., Defendants-Appellees.
    Fourth District
    Nos. 4-92-0164, 4-92-0202 cons.
    Opinion filed December 23, 1992.

      Jeffrey W. Tock, of Tock & Miller, Ltd., of Champaign, for appellee Intergovernmental Solid Waste Disposal Association.
    W. Robert Blair, of Chicago, and Jeffrey W. Tock, of Tock & Miller, Ltd., of Champaign, for X L Disposal Corporation.
    Glenn A. Stanko, of Reno, O’Byrne & Kepley, P.C., of Champaign, for Stephen A. Smith, John Appl, Lawrence W. Boiler II, Charles H. Miller, Chris Johnson, Eddie L. Cook, Sr., Don Cory, Ronald E. Hayden, Gordon Ficklin, Chris Yager, George McLaughlin, Cheryl Manuel, Ronald W. Manuel, Russell Shaffer, William C. Uden, and Willis Sanitary Hauling, Inc.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On September 3, 1991, a number of garbage haulers in Champaign County, Stephen A. Smith, d/b/a ABC Sanitary Hauling; John Appl, d/b/a Appl Sanitary Service; Lawrence W. Boiler II, d/b/a Area Garbage Service; Charles H. Miller, d/b/a C.H. Miller Sanitary; Chris Johnson, d/b/a Chris’s Service Company; Eddie L. Cook, Sr., d/b/a Cook’s Sanitary Hauling; Don Cory, d/b/a Cory Sanitary Hauling; Ronald E. Hayden, d/b/a Hayden Sanitary Service; Gordon Ficklin, d/b/a Illini Sanitary Service; Chris Yager, d/b/a Klean-Way Disposal; George McLaughlin, d/b/a McLaughlin Sanitary; Cheryl Manuel, d/b/a Rollaway Waste; Ronald W. Manuel, d/b/a Ron Manuel Sanitary; Russell Shaffer, d/b/a Shaffer Sanitary Company; William C. Uden, d/b/a Uden & Sons Sanitary Hauling; and Willis Sanitary Hauling, Inc., filed a complaint for declaratory and injunctive relief against defendants, Intergovernmental Solid Waste Disposal Association (ISWDA), and X L Disposal Corporation (XL), in the circuit court of Champaign County concerning a contract to design, construct, and operate a material recovery and transfer facility (MRF) between defendants. Plaintiffs alleged the contract was entered into without competitive bidding in violation of section 5 — 1022 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 1022). As relief, plaintiffs sought a declaration that the contract violated the statute, and is therefore void, and an injunction against performance of the contract by defendants. After defendants filed their answers to plaintiffs’ complaint, plaintiffs filed a motion for judgment on the pleadings. Defendant thereafter filed an affirmative defense of laches; a motion for summary judgment alleging laches, compliance with the statute, and inapplicability of the competitive bidding requirements to the present contract; and a motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2-615).

After considering the documents filed and arguments of counsel, on January 28, 1992, the trial judge issued a memorandum of decision and order. Finding that laches did not bar plaintiffs’ suit, the affirmative defense of laches was “stricken.” While agreeing that there was no genuine issue of material fact as defendants’ motion for summary judgment maintained, the trial judge decided a ruling in defendants’ favor could not be maintained as a matter of law, denied defendants’ motions for summary judgment and dismissal, and granted plaintiffs’ motion for judgment on the pleadings.

On February 5, 1992, defendants filed a motion for clarification which was considered and ruled upon on February 10, 1992. Defendants filed a notice of appeal on February 25, 1992, docketed case No. 4-92-0164.

On February 20, 1992, plaintiffs had filed a petition for rule to show cause against defendants alleging a violation of the trial court’s January 25, 1992, order by pursuing an application for site approval and refusing to withdraw the application for site approval. Plaintiffs sought an order finding defendants in contempt of court, imposing sanctions, directing defendants to withdraw the application for site approval, and enjoining defendants from seeking a developmental permit. On February 26, 1992, defendants filed a motion to strike the petition for rule to show cause, and on March 3, 1992, after hearing arguments of counsel, the motion to strike the rule to show cause was granted. On March 6, 1992, plaintiffs filed a notice of appeal from the order striking the petition for rule to show cause, docketed case No. 4 — 92—0202. A motion to consolidate these appeals was allowed by this court on March 20, 1992. On June 24, 1992, ISWDA’s motion to be dismissed as an appellant in No. 4 — 92—0164 was granted.

The issues to be considered on review are: (1) whether the appeal in case No. 4 — 92—0164 is moot; (2) whether the trial court properly determined that the affirmative defense of laches did not apply to this case; (3) whether the defendants complied with the applicable competitive-bidding requirements; (4) whether ISWDA Ordinance 91 — 3 (Intergovernmental Solid Waste Disposal Association Ordinance No. 91— 3, Nov. 13, 1991) exempted the subject facility from the competitive-bidding requirements of section 5 — 1022 of the Counties Code; and (5) whether the trial court erred in striking plaintiffs’ petition for rule to show cause why defendants should not be held in contempt of court for violation of a court order. We affirm.

Before analyzing the issues raised on review, we must first consider a motion by plaintiffs to strike a portion of XL’s reply brief in case No. 4 — 92—0164 and XL’s objections thereto. Plaintiffs argue the objectionable portion of the reply brief raised for the first time the contention that the subject contract falls within the professional services exception of the competitive-bid statute, relying on this court’s decision in Charlton v. Champaign Park District (1982), 110 Ill. App. 3d 554, 442 N.E.2d 915, and two out-of-State cases.

In Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 553, 522 N.E.2d 837, 838, this court stated:

“The theory upon which a case is tried in the lower court cannot be changed on review and an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 303, 443 N.E.2d 575, 577; Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 25, 473 N.E.2d 588, 594.)”

Furthermore, points not presented in appellant’s initial brief may not be raised in the reply brief. (In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568, 524 N.E.2d 538, 544; 134 Ill. 2d R. 341(e)(7).) Relying on Hux v. Raben (1967), 38 Ill. 2d 223, 224-25, 230 N.E.2d 831, 832, XL argues that as a matter of discretion, this court may consider the contention relating to the professional services exception. Although the motion to strike is denied as overbroad because it requests the striking of pages 6 through 12 of XL’s reply brief entirely, this court declines to consider XL’s belatedly raised contention concerning the professional services exception to the subject competitive-bidding statute, having deemed that contention waived for purposes of review.

The ISWDA is a municipal joint action agency created on July 22, 1984, by the cities of Champaign and Urbana and the County of Champaign under section 3.2 of the Intergovernmental Cooperation Act (Act) to deal with solid waste issues transgressing municipal boundaries within Champaign County. (111. Rev. Stat. 1989, ch. 127, par. 743.2.) The Act requires all expenditures made by ISWDA be in accordance with the law applicable to the ISWDA member with the largest population. (111. Rev. Stat. 1989, ch. 127, par. 743.5.) Champaign County is the entity with the largest population of the three entities which signed the agreement. Thus, section 5 — 1022 of the Counties Code is the applicable law and regulates large purchases of the type at issue here. Section 5 — 1022 states as follows:

“Any purchase by a county with fewer than 2,000,000 inhabitants of services, materials, equipment or supplies in excess of $10,000, other than' professional services, shall be contracted for in one of the following ways:
(1) by a contract let to the lowest responsible bidder after advertising for bids in a newspaper published within the county or, if no newspaper is published within the county, then a newspaper having general circulation within the county; or
(2) by a contract let without advertising for bids in the case of an emergency if authorized by the county board.
In determining the lowest responsible bidder, the county board shall take into consideration the qualities of the articles supplied, their conformity with the specifications, their suitability to the requirements of the county and the delivery terms.
This Section does not apply to contracts by a county with the federal government or to purchases of used equipment, purchases at auction or similar transactions which by their very nature are not suitable to competitive bids, pursuant to an ordinance adopted by the county board.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 34, par. 5—1022.

The ISWDA wished to contract with a party to design, construct, and operate an MRF. It began the process by issuing on July 21, 1989, a “Request for Qualifications” (RFQ). A notice of the RFQ, published in the Champaign-Urbana News-Gazette on July 26, 30, and August 6, 1989, stated the ISWDA was using the RFQ to compile a list of qualified vendors which would then submit “proposals” for the development of the MRF. The notice stated, “The ISWDA is intending to use a full-service procurement process. The proposed facility is to be publicly financed and owned while contracting with a vendor for the design/development of the facility with a separate contract for operation and landfill disposal.” The notice described the proposed facility as receiving 100,000 tons of mixed solid waste per year and 10,000 tons per year of source-separated material. The notice further stated that “it is the intent of the ISWDA to use this RFQ to prequalify vendors to receive the Request for Proposal for the Material Recovery/ Transfer Facility. Only vendors responding to this RFQ and determined qualified will be permitted to submit proposals for the facility.”

On September 20, 1989, ISWDA selected 11 firms which would be permitted to respond to the “Request for Proposal” (RFP). The RFP is a 186-page document soliciting proposals from firms for the design, construction, and operation of the MRF.

Section 1.1 of the RFP announced “the ISWDA intends to use the proposals to determine a Contractor who would subsequently enter into contract negotiations.” The RFP stated the proposal shall include the “design, construction and operation of the facility for a minimum of five years, although longer contract periods are desired.” Further, the RFP stated the minimum period for disposal services is three years. The RFP encouraged alternate bids for facilities at other sites, for longer operating periods, facilities with greater levels of recovery, and other characteristics. The site for this facility was not determined in the RFP, although some potential sites were identified. Bidders were notified that they were not precluded from securing sites they would prefer more.

Section 3.1 of the RFP stated the ISWDA:

“will enter into a Contract with the selected Contractor for the design, construction, start-up, acceptance testing, and operation of the Facility. This section outlines certain terms of the contract. The information provided in this section is not intended to be all-encompassing. The ISWDA reserves the right to modify the provisions contained in this RFP and to add additional provisions. However, the ISWDA believes that providing this information in this RFP will assist respondents in preparing their proposals and enhance the negotiation process.”

Section 3.7 of the RFP, entitled “Performance Criteria,” encompassed a number of subsections. Section 3.7.2 required the contractor to pass an acceptance test for the MRF, which would test its ability to recover materials. However, the types of materials to be recovered were not specified, but would be “based on each Contractor’s proposal and as agreed upon by the ISWDA and the Contractor.” Further, the RFP did not specify what guaranteed material recovery efficiencies were required, leaving that to the contractor to decide. The acceptance test protocol was to be agreed upon by the ISWDA and the contractor before testing and based on performance guarantees proposed by the contractor and negotiated into the agreement. Section 3.7.3 required the contractor to meet or exceed established performance guarantees, or pay liquidated damages, but “the number and type of performance guarantees required by the ISWDA will be subject to the terms and conditions of the Contract.” The contractor was required to provide minimum performance guarantees, such as the number of days the construction period would last, the tons per year of mixed waste and materials processed, and an annual material recovery guarantee, but the RFP included no specifications on these guarantees.

Section 4 of the RFP described the “minimum technical requirements for the design, construction and operation of the Facility.” However, these minimum technical requirements expressly were not “intended in any way to be all inclusive or limit margins of conservatism or special features which the Contractor may wish to apply.” The contractors were warned, “The requirements are subject to change in the Service Agreement between ISWDA and the Contractor. The Service Agreement and other executed documents alone will determine the ultimate rights and obligations of the contracting parties.” Section 4.2.1 required the MRF should be designed, constructed, and operated in accordance with good engineering practice. Section 4.2.2 required that the equipment used must be new, and of a “heavy-duty construction.” Section 4.2.3 required that the minimum life of the MRF was required to be 25 years. Section 4.2.4 adopted the standards for material, construction, and equipment of a number of trade associations and government agencies. Section 4.3 provided a table of estimated waste composition in Champaign County, but the information was for proposal purposes only, and not meant to guarantee the waste composition would be of that quality. This section further provided the facility should be designed with a capacity to receive a minimum of 350 tons per day of mixed waste and 35 tons per day of source-separated materials. The MRF should have the minimum capacity to store 700 tons of mixed waste at a specified maximum floor density. Section 4.7.4 specified the different source-separated materials which the MRF must process and store, and section 4.14.5 described specific wastes that would be excluded from the MRF, including special waste, landscape waste, and hazardous hospital wastes.

Under section 5.2.1 of the RFP, contractors were required to post a proposal bond equal to 2% of the value of the proposal. This bond would be returned to contractors which were not selected upon the signing of a contract with the selected contractor. Further, this section stated, “Failure of the selected Contractor to enter into Contract with the ISWDA on or before September 1, 1990[,] because of non-responsive negotiations or failure of the selected Contractor to exercise good faith in arriving at a formal agreement shall constitute cause for the ISWDA to retain the proposal bond as liquidated damages.” Although the RFP stated in section 5.2.4 that “Permission will not be given for the withdrawal or modification of any Proposal after submission to the ISWDA,” it later reserved the right to request further information from the contractors in order to evaluate the proposals in section 5.2.7.

Section 6 of the RFP described evaluation and selection considerations. In section 6.1 it was stated that “If for any reason during the course of negotiations with the Contractor, the ISWDA determines that a reasonable contract cannot be negotiated, the ISWDA reserves the right to suspend negotiations with the Contractor, contact the second ranked Contractor and begin negotiations for the purpose of signing a Service Contract with that Contractor.” Some contractors would be asked to attend personal interviews to discuss their proposals. Section 6.2.6 permitted the contractor to vary the bid from the requirements of the RFP, stating that in this situation, a contractor must detail and specify “exceptions.” These exceptions, “to the extent that they are material and substantive, will be important elements in the evaluation.”

ISWDA received proposals from three potential contractors as follows: XL ($5,925,500), Seres/Community Recycling Centers (Seres/ CRC) ($13,998,308), and Peoria Disposal Corporation/National Resource Republic System (PDC/NRRS) ($16,320,000). The proposal of PDC/NRRS was judged to be nonresponsive to the terms of the RFP since it did not provide for commercial operation of the facility and did not accept the business conditions of the RFP. The proposals of XL and Seres/CRC were adjusted by the ISWDA. After adjustment, the proposal of XL was $7,445,087 and that of Seres/CRC was $13,148,308. After XL was selected as the lowest responsible bidder, the contract price was further adjusted to $7,410,087.

ISWDA and XL then entered into contract negotiations, and ultimately executed a contract on April 30, 1991. The trial court found that the plaintiffs’ complaint pointed out a number of variations between the requirements in the RFP, XL’s bid, and XL’s obligations under the contract, which the trial court’s memorandum summarized as follows:

“(1) the RFP required 20% of the waste stream be recycled; the contract requires 15%;
(2) the RFP prohibits the contractor from participating in any phase of collecting, processing, or disposing of solid waste in the county; the contract does not prohibit this, and instead permits such activity on ISWDA approval;
(3) the RFP required the contractor to pay $6,000 per hour liquidated damages for each hour the MRF reached maximum capacity and therefore could not [be] used; the contract does not include this provision;
(4) the RFP required facilities for accepting and processing certain source-separated materials; the contract does not obligate XL to accept and process the same materials, batteries and motor oil being excluded;
(5) the RFP required that the contractor provide a rotating head forklift to service municipal collection vehicles; the contract does not require this;
(6) the RFP requires a traffic study; the contract does not.
Finally, the price in the executed contract is $1.48 million more than the price XL offered in its bid that was selected over the other two proposals submitted.”

In the trial court, defendants argued that ISWDA ordinance No. 91 — 3, enacted November 3, 1991, exempted the MRF from the statutory competitive-bidding requirements. (Intergovernmental Solid Waste Disposal Association Ordinance No. 91 — 3, Nov. 13, 1991.) With regard to the ordinance, the trial court ruled that if the MRF was suitable to the competitive-bidding process and compliance with the statute was not had, ISWDA ordinance No. 91 — 3 could not cure the defect.

In striking the affirmative defense of laches, the trial court reasoned that plaintiffs did not have the opportunity to sue until the contract was executed. Until then, an injury was speculative, and no factual issues were raised because plaintiffs’ knowledge of the proposed terms was irrelevant.

Determining that the competitive-bidding statute was violated in this case, the trial court pointed to the absence of specifications. The trial court recognized some of the provisions in the RFP were sufficiently specific. The court also noted that some provisions in the RFP were based on proposals from the contractor with further agreement between the parties being required. Many of the specifics of the project were subject to such negotiability. Furthermore, the bids did not conform to the requirements of the invitation to bid, and the negotiability of the contract improperly allowed the contractor to modify the bid after the bid was submitted. The trial court’s reasoning was as follows:

“A continuing thread through defendants’ argument is that the MRF is a rather unique structure and that may be so, but there is nothing to show that it was unsuitable for the competitive bidding process. As has been stated, the contrary is apparent. The MRF is truly an enormously costly undertaking and it should not have been exempted from the competitive bidding process unless it was truly unworkable to do otherwise. It was not impossible for the ISWDA to be competently advised in advance as to such matters as performance goals and standards so it did not have to throw the process open to permit bidders to negotiate these and then, once that foot was in the door, open the process further to permit more negotiation so that the entire process became one with the potential to invite all of those things which the competitive bidding process is designed to prevent.
The Court rules that the process the ISWDA employed resulting in the contract with XL violated the statutorily imposed competitive bidding requirements because 1) the RFP did not contain sufficient specificity to permit vendors to know what to design to agree to build; instead the RFP contained few performance requirements and permitted vendors in some significant ways to set their own performance standards; 2) there were significant variances between what the RFP required of proposals and what the selected contractor as [sic] actually had to deliver under the contract; and 3) the ISWDA failed to require binding bids and instead negotiated with XL over the contract permitting XL to raise the contract price nearly $1.5 million after the bids had been submitted.”

The first issue to consider is whether the appeal in No. 4 — 92— 0164 is moot. Plaintiffs argue the appeal has become moot because ISWDA has withdrawn as a party to it. Plaintiffs raise this argument even though this court has already denied a motion to dismiss for mootness. Rulings on motions to dismiss on appeal are not unassailable, and reconsideration of the denial of the motion may be had. People v. Nichols (1986), 143 Ill. App. 3d 673, 676, 493 N.E.2d 677, 679.

In the motion to dismiss the appeal, plaintiffs relied on the fact that the contract between ISWDA and XL could be terminated if ISWDA determined that such termination of the contract was in its best interests. Attached to the motion to dismiss the appeal was a copy of the minutes of the ISWDA special board meeting of June 3, 1992. Although the ISWDA did elect to continue the appeal before the Pollution Control Board for MRF site approval, the board also voted to withdraw and discontinue litigation regarding the ISWDAXL contract procurement procedures and “to notify XL of the termination of the contract pursuant to Section 6.20 of the contract in the event the contract is reinstated on appeal.” In its objections to the motion to dismiss, XL argues that section 6.20(c) of the contract provides for recovery of its costs, plus 5% thereof, if ISWDA terminates the contract. According to XL, in order to be entitled to this contractual right, XL must be successful on appeal. Defendant XL also points out that the contract between the ISWDA and XL could be revitalized by a similar vote of the ISWDA board.

In La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 378-79, 121 N.E.2d 486, 488, the Illinois Supreme Court discussed that a case is moot if it does not involve any actual controversy, and the reviewing courts will not consider a case merely to decide moot or abstract questions, establish a precedent, determine the right to, or the liability for, costs, or render a judgment to guide potential future litigation. In light of the impact a determination of this appeal will have on the rights of XL under the contract, we deem the issues on appeal in this case are not moot.

The next issue is whether the trial court properly determined that the affirmative defense of laches did not apply to this case. In order to determine the proper standard of review for this issue, an understanding must be reached regarding the stage of the pleading process that was involved and precisely what the trial court decided. The answers of the defendants did not include the affirmative defense of laches. After plaintiffs filed the motion for judgment on the pleadings, defendants jointly moved to file the affirmative defense, in effect seeking to' amend their answers pursuant to section 2 — 616(a) of the Code (111. Rev. Stat. 1989, ch. 110, par. 2 — 616(a)). That motion was allowed over plaintiffs’ objections on December 2, 1991. Subsequently, plaintiffs moved to strike the affirmative defense. The question which must be considered is whether the trial judge granted the motion to strike as part of the final order of the trial court or decided on the merits that the defense of laches did not apply to this case.

XL suggests the standard of review is whether the trial court committed an abuse of discretion, and plaintiffs concede that is the standard of review. Both parties cite Ruddock v. First National Bank (1990), 201 Ill. App. 3d 907, 559 N.E.2d 483. It is true that in Ruddock an abuse of discretion standard of review applied to a refusal of the trial court to apply the doctrine of laches following a bench trial. (Ruddock, 201 Ill. App. 3d at 910, 918, 559 N.E.2d at 484, 489-90.) In order for this standard of review to apply, the trial court in this case must have determined, on the merits, that the defense of laches did not apply to this case. Had the trial court granted plaintiffs’ motion to strike the affirmative defense, the standard of review would be different, and the issue could be reviewed as a question of law. See Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 929, 588 N.E.2d 1193, 1223; Zientara v. Long Creek Township (1991), 211 Ill. App. 3d 226, 235, 569 N.E.2d 1299, 1303.

In the memorandum of decision, the trial court discussed the affirmative defense of laches and its application to the facts of the case at length. Although the trial court did conclude the discussion by ruling that the “defense of laches is stricken,” we deem this formalistic language to be surplusage and find that the trial court decided the defense of laches was not applicable to the facts of this case on the merits as part of denying the motion for summary judgment, and did not grant plaintiffs’ motion to strike the affirmative defense. Therefore, this court will not overturn the trial court’s ruling as to laches unless that ruling resulted from an abuse of discretion.

The instant action was one for declaratory judgment and injunctive relief. An action to seek an injunction is an action in equity. The equitable doctrine of laches is available as a defense in equitable proceedings if the proper circumstances exist. (See Elliott v. Pure Oil Co. (1956), 10 Ill. 2d 146, 156, 139 N.E.2d 295, 301.) Laches is also available as a defense to declaratory judgment actions. Villiger v. City of Henry (1977), 47 Ill. App. 3d 565, 567, 362 N.E.2d 120, 121; Cangelosi v. Board of Fire & Police Commissioners (1973), 12 Ill. App. 3d 799, 800, 299 N.E.2d 151, 152.

“What facts will combine to constitute laches is to be determined in the light of the circumstances of each case; however, it is pointed out in 19 Am. Jur., Equity, sec. 498, that a suit is held to be barred on the ground of laches or stale demand ‘where and only where’ the following facts are disclosed: (1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.” Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344.

XL attempts to demonstrate that the plaintiffs could have filed an action as early as July 1989 and certainly by the spring of 1990. The action was filed on September 3, 1991. Plaintiffs argue they were not injured until the contract was entered into between ISWDA and XL on April 30, 1991. Plaintiffs’ complaint alleged that the contract would require them to pay tip fees greater than they are currently paying and the amount of the tip fee was directly proportional to the costs of constructing the MRF and to the monthly service fee paid to XL, which included the management fee paid to XL and various operations and maintenance costs which XL was entitled to pass through to ISWDA under the contract, resulting in a significant and detrimental economic impact to plaintiffs. Defendant argues that, through a series of newspaper articles, plaintiffs should have been aware of the potential for this type of impact at an early stage.

Even if it is arguable that plaintiffs knew of the procedure of which they now complain at an earlier date and even assuming that XL expended time and money which it would not have expended had plaintiffs challenged the competitive-bidding process earlier, XL has failed to explain how plaintiffs would actually know they were going to be injured by this process until the ISWDA decided which bid would be accepted. The ISWDA could have rejected all bids as inadequate or unresponsive. And while taxpayers in general may have challenged the bidding process earlier, plaintiffs sought to right injuries unique to them. XL does not allege plaintiffs were bidders or potential contractors or persons to whom an RFP was sent. Of course, injunctive relief could be granted to prevent a threatened injury, but the party still has to convince the court there is potential for a real, rather than an imagined, injury. It would not be appropriate to encourage suits in anticipation of injuries. The fact that plaintiffs plead the date of issuance of the RFP, February 1, 1990, and can now refer to its contents in the complaint does not establish that, on the date the RFP was issued, plaintiffs received one or knew of its contents.

. “Abuse of discretion means clearly against logic. (Daiber, 191 Ill. App. 3d at 568, 548 N.E.2d at 19.) The question is not whether the appellate court agrees with the circuit court, but whether the circuit court acted arbitrarily, without employing conscientious judgment, or whether in view of all of the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.” (Washington v. Illinois Power Co. (1990), 200 Ill. App. 3d 939, 942, 558 N.E.2d 509, 511, rev’d on other grounds (1991), 144 Ill. 2d 395, 531 N.E.2d 644.)

The trial court did not commit an abuse of discretion in refusing to apply the doctrine of laches in this case.

The next issues to be considered relate to the general question of whether the trial court properly granted plaintiffs a judgment on the pleadings. In Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 181-82, 544 N.E.2d 1261, 1262-63, this court explained the distinction between summary judgment and judgments on the pleadings as follows:

“Section 2 — 615(e) of the Code of Civil Procedure (Code) permits a party to file a motion for judgment on the pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615(e).) Although a motion for judgment on the pleadings is akin to a motion for summary judgment, since both suggest no genuine issue of material fact exists, the two motions differ in that a motion for judgment on the pleadings submits that no issue of triable fact existed and the movant is entitled to judgment under the averments and admissions of the pleadings, while a motion for summary judgment may utilize affidavits and other documents to establish the absence of a genuine issue of a material fact. (Tompkins v. France (1959), 21 Ill. App. 2d 227, 157 N.E.2d 799.) A motion for judgment on the pleadings asks the trial court to review the pleadings and determine, as a matter of law, that the pleadings fail to present a triable issue of fact. (Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1976), 40 Ill. App. 3d 1028, 353 N.E.2d 295.) All well-pleaded facts contained in the pleading of the nonmoving party, and the fair inferences therefrom, are considered admitted for the purposes of determining the motion. (Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317.)
After the judgment on the pleadings is entered, the reviewing court must ascertain whether the trial court’s determination that no genuine issue as to any material fact was presented in the pleadings was correct. If no such issues exist, then the reviewing court must determine whether judgment was properly entered. Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 400 N.E.2d 1105.”

In light of this standard of review, the next question which must be decided is “whether plaintiffs’ allegation that defendants failed to comply with the applicable competitive bidding requirements is correct.”

XL cites several Illinois competitive-bidding statutes in an attempt to impress this court with the fact that a great many exceptions to other competitive-bidding provisions have been legislatively created and thereby to convince this court there should be an exception in this case as well because of the uniqueness of this facility. (See 111. Rev. Stat. 1991, ch. 24, pars. 8 — 9—1, 8 — 10—1 et seq.; ch. 34, par. 5 — 36006; ch. 42, par. 310; ch. 105, par. 8 — 1; ch. 122, pars. 10 — 20.21, 103 — 27.1; ch. 127, par. 132.1 et seq.; ch. 139, par. 160.50.) As a result of XL’s argument, it becomes apparent that the MRF is not specifically exempted from section 5 — 1022 of the Counties Code and that, if the legislature wanted to do that, the legislature understood how to accomplish such a result.

Section 5 — 1022 of the Counties Code expressly does not apply to “contracts by a county with the federal government or to purchases of used equipment, purchases at auction or similar transactions which by their very nature are not suitable to competitive bids.” (See 111. Rev. Stat. 1989, ch. 34, par. 5 — 1022.) The question in this case is whether the MRF was one of these “similar transactions not suitable to competitive bidding.”

“In determining legislative intent, consideration must be given to the entire statute, its nature, object, and purpose to be attained, and the evil to be remedied. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340-41; Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 517.) However, if the intent of the legislature can be ascertained from the language of the statute itself, then that intent will prevail without resort to extrinsic aids for construction. In re Marriage of Logston (1984), 103 Ill. 2d 266, 277; Louis A. Weiss Memorial Hospital v. Kroncke (1957), 12 Ill. 2d 98, 105.” (Benjamin v. Cablevision Programming Investments (1986), 114 Ill. 2d 150, 157, 499 N.E.2d 1309, 1313.)

Where the statutory language is unambiguous, the court’s function is to apply the law as enacted. (Benjamin, 114 Ill. 2d at 164, 499 N.E.2d at 1316.) In this case, there may be some confusion as to what the word “similar” refers. In Benjamin, the court described the doctrine of last antecedent as follows:

“This doctrine of statutory construction requires that modifying words or phrases be construed to modify words or phrases immediately preceding them rather than more remote words or phrases, unless the intent of the legislature disclosed by the context and reading of the entire statute requires otherwise. (People v. Thomas (1970), 45 Ill. 2d 68, 72.)” (Benjamin, 114 Ill. 2d at 167, 499 N.E.2d at 1318.)

If this doctrine is applied to the case at bar, the word “similar” refers to purchases of used equipment and purchases at auction. The instant MRF contract is not similar to such transactions.

In the absence of a statute requiring competitive bidding, competitive bidding is not necessary for a public body to enter into a valid contract. (People ex rel. Adamowski v. Daley (1959), 22 Ill. App. 2d 87, 91, 159 N.E.2d 18, 20.) In addition, some contracts are not required to be competitively bid. It depends on the language of the statute involved.

In arguing that the statute does not require competitive bids in this case and that, in any event, the competitive-bidding statute was complied with, XL raises the following four contentions: (1) The RFP was sufficiently specific; (2) there was no material variance between the RFP and XL’s bid; (3) the ISWDA did require a binding bid; and (4) the MRF was a unique facility not suitable to traditional competitive bidding.

The trial court in considering XL’s contention determined that the RFP did not provide sufficient detail where it was possible to do so in spite of the arguable uniqueness of the MRF. Plaintiffs do not contest the fact that the facility is unique, but suggest it was suitable for competitive bidding. In addition to the cases cited in the reply brief, XL cited 10 G. O’Gradney & C. Miller, McQuillin on Municipal Corporations §§29.29, 29.53 (3d rev. ed. 1990), and the case of E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664.

The E & E Hauling, Inc., case is cited for the proposition that there is a presumption that public officials act in the best interests of their constituents. The question addressed in E&E Hauling, Inc., was whether the county board should be disqualified as a decision maker on a permit application because of possible bias due to the effect on county revenue. (E & E Hauling, Inc., 107 Ill. 2d at 42, 481 N.E.2d at 667-68.) The E & E Hauling, Inc., case does not stand for the proposition that elected or appointed public officials can do whatever they want to do in disregard of the competitive-bidding statute.

XL also argues the trial court’s notion of competitive bidding does not comport with “modern notions” of competitive bidding.

“The provisions of statutes, charters and ordinances requiring competitive bidding in the letting of municipal contracts are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable, and they are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest. These provisions are strictly construed by the courts, and will not be extended beyond their reasonable purpose. Competitive bidding provisions must be read in the light of the reason for their enactment, or they will be applied where they were not intended to operate and thus deny municipalities authority to deal with problems in a sensible, practical way.” 10 G. O’Gradney & C. Miller, McQuillin on Municipal Corporations §29.29, at 375 (3d rev. ed. 1990).
“The nature of the work required should be stated as definitely as is practicable. Under laws requiring that plans and specifications and detailed drawings be prepared, it is sometimes difficult to determine to what extent the drawings or specifications must be carried into detail. Such provisions are not to be construed literally, but in a manner merely to secure the object for which they were designed.
It is the duty of public officials, in advance of calling for bids, to adopt reasonably definite plans or specifications.” (10 G. O’Gradney & C. Miller, McQuillin on Municipal Corporations §29.53, at 444 (3d rev. ed. 1990).

While the level of professional and scientific skill needed may be relevant to a general exception for transactions not suitable to competitive bidding, that is not what the language in section 5 — 1022 of the Counties Code provides. Had the legislature intended that result it would have so stated, and it certainly could have, as shown by the exceptions to the competitive-bidding statutes applied in Charlton (110 Ill. App. 3d 554, 442 N.E.2d 915), and Waste Management, Inc. v. Wisconsin Solid Waste Recycling Authority (1978), 84 Wis. 2d 462, 267 N.W.2d 659. The trial court correctly rejected XL’s argument that the uniqueness of the facility created an exception to the competitive-bidding statute.

With regard to the specificity of the RFP and variances between the RFP and the bid, in paragraph 44 of the complaint, plaintiffs alleged as follows:

“44. The RFP included no architectural or engineering plans, drawings, or specifications. In its essence, the RFP solicited vendors to design an MRF to process and separate unspecified waste and to process and store certain source[-]separated recyclables; to submit cost estimates for the construction of the proposed facility and its various components; and to submit cost estimates for the operation of the MRF. There was no specification of the building design, the site layout, the desired equipment, or of the manner and method of the operational processes.”

XL admitted these allegations.

XL argues the trial judge’s ruling that the RFP did not contain sufficiently detailed specifications was not the same as the requirement of being “as detailed as practicable.”

“[T]he plans and specifications should be as detailed as practicable. If they are too detailed, however, the plans and specifications act to limit the number of potential suppliers entering bids. (10 McQuillan, Municipal Corporations sec. 29.53, at 355 (3d ed. 1981).) A proper balance must be struck between detail and generality. The plans and specifications drafted by the City of Chicago achieved this balance.” (Smith v. F.W.D. Corp. (1982), 106 Ill. App. 3d 429, 432, 436 N.E.2d 35, 36.)

As already noted, the trial court found several sufficiently specific provisions in the RFP, but also found others that were not.

Before advertising for bids, the local governmental unit should ascertain the nature of the work to be done and the kinds, character, and quality of the material to be used. A plan or profile of the work should be prepared. The specifications contained in the profile should be so definite and of such sufficient detail as to enable anyone experienced in such matters to determine the work to be done in all details. (M.A. Lombard & Son Co. v. Public Building Comm’n (1981), 101 Ill. App. 3d 514, 518-19, 428 N.E.2d 889, 891.) Where a statute requires competitive bidding, compliance with the statute is mandatory, and the failure to comply renders the resultant contract invalid. (Premier Electrical Construction Co. v. Board of Education (1979), 70 Ill. App. 3d 866, 871, 388 N.E.2d 1088, 1092.) With regard to the specificity of the RFP, the trial court recognized the argument that the project could not be predesigned and that soliciting the bids through the RFP was the only feasible method since the technology for the mixed waste processing is new and varies, there being only four such facilities in the country and XL operating the only one in Illinois. The trial court also recognized plaintiffs’ argument that the statute is violated by having firms bid on different designs, citing Sanitary District v. Lee (1898), 79 Ill. App. 159, wherein the trial court stated such a procedure permitted too much discretion and the sanitary district must adopt a plan or design for the bridge project before advertising for bids because the design of the bridge was material to the contract. Bidders were not permitted to bid on their own design. (Lee, 79 Ill. App. at 176.) Lee is distinguishable from this case on this very point. In that case, the project was a bridge. There is therein no discussion of the project being so unique that each contractor’s design would be different of necessity.

The trial court relied on the fact that the contract between ISWDA and XL did not conform to the RFP and that the ISWDA did not seek a binding bid since much of the contract was open to negotiations. In Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340, 344, 422 N.E.2d 1078, 1082, the responsiveness of bids was discussed:

“Bids must conform to the advertised requirements of the invitation to bid. (King v. Alaska State Housing Authority (Alas. 1973), 512 P.2d 887; Application of Glen Truck Sales & Service, Inc. (1961), 31 Misc. 2d 1027, 220 N.Y.S.2d 939; Township of Hillside v. Sternin (1957), 25 N.J. 317, 136 A.2d 265; Sanitary District v. McMahon & Montgomery Co. (1903), 110 Ill. App. 510.) Although a ‘minor’ variance does not require rejection of the proposal (King and the cases cited therein), a ‘material’ variance will require rejection of the proposal. (King and the cases cited therein.) A bid which contains a material variance is an unresponsive bid and may not be corrected after the bids have been opened in order to make it responsive[.] (City of Chicago v. Mohr (1905), 216 Ill. 320, 74 N.E. 1056.) The test of whether a variance is material is whether it gives a bidder a substantial advantage or benefit not enjoyed by other bidders. (King; In re Application of Gottfried Baking Co. (1964), 45 Misc. 2d 708, 257 N.Y.S.2d 833; Application of Glen Truck Sales & Service, Inc. (1961), 31 Misc. 2d 1027, 220 N.Y.S.2d 939.) ‘Every element which enters into the competitive scheme should be required equally for all and should not be left to the volition of the individual aspirant to follow or disregard and thus to estimate his bid on a basis different from that afforded the other contenders.’ Hillside Township v. Sternin (1957), 25 N.J. 317, 322-23, 136 A.2d 265, 268.”

Furthermore, it is improper to allow a bid to be modified in a material fashion after opening because that gives an unfair advantage to that particular bidder. City of Chicago v. Mohr (1905), 216 Ill. 320, 326-28, 74 N.E. 1056, 1058; Leo Michuda & Son, 97 Ill. App. 3d at 344-45, 422 N.E.2d at 1082.

The trial court noted there were variances between the requirements of the RFP, XL’s bid, and the contract. As to the variations, the trial court stated:

“In the instant case, there is material variance between what the RFP required and what the contract contains. These variances were described earlier, and include the percentages of source[-]separated materials to be processed, whether the contractor could participate in waste collection in the county, liquidated damages, processing and storage of motor oil and batteries, and that a traffic study must be performed. Plaintiffs argue the RFP phrased these requirements in the mandatory ‘shall’ but that the contract with XL either omits these requirements or materially alters them. ISWDA responds that none of the variations (which it admits exist) is material because they did not give XL an unfair advantage. Each of the variations are discussed below, along with ISWDA’s argument that they are not material. Recovery Rate
ISWDA claims the variation is not material because while both XL’s and Seres/CRC’s bids exceeded the 20% requirement, they were both adjusted by ISWDA to reflect errors or misunderstandings by the bidders. ISWDA does not reveal what the third bidder, National Resource Recovery, bid. ISWDA argues since neither XL or Seres met the 20% recovery rate, neither was responsive, and neither was unfairly disadvantaged. However, this ignores the effect on the third bidder, which ISWDA has not discussed. Further, it ignores the fact that the 20% requirement in the RFP may have influenced the other two bidders to pursue a certain design in order to achieve the requirement; and had they known the 20% rate was not binding, may have been able to have been the successful bidder for a MRF with a recovery rate of 10-15%. The difficulty in second-guessing who may have been the lowest responsible bidder had the requirements been different underscores the need that there be no material variances between the contract and the request for bids. When material changes are made, after the bids are submitted, the ISWDA no longer knows who the lowest bidder would have been (and thus the best bargain for the public) had accurate specifications and details been provided to the contractors.
Other areas of concern such as the provision of the RFP that other participation is prohibited, for liquidated damages, the forklift, the motor oil and batteries and the traffic study, any of which standing alone, after the requirements were varied, might not be fatal to the contract as any, standing alone, arguably may not be material variances but their mention serves to show the looseness of the total process which overall is flawed.
Contract Price
The most important variance is that between XL’s bid and the contract price. After its bid was selected, XL was permitted by ISWDA to raise its contract price by $1.48 million. If this is not a material variance then nothing is. ISWDA argues that XL’s contract price is still millions of dollars less than Seres/CRC’s bid, and this is true. However, the fact that a contractor submits the lowest bid will not necessarily require that the contractor be awarded the contract. Armstrong v. Crystal Lake Park District (2nd Dist. 1985), 139 Ill. App. 3d 991, 998. ISWDA had the discretion to determine the ‘lowest responsible bidder,’ based in part on whether the contractor would be able to discharge the obligations under the contract, and the bid’s conformity with the specifications. Armstrong, 139 Ill. App. 3d at 998; Ill. Rev. Stat. 1989, ch. 34, par. 5—1022. Thus, just because XL’s bid, even with a $1.48 million increase, is still lower than the other bid, does not automatically mean it is the lowest responsible [bid].
ISWDA again asserts that the ‘modification’ in XL’s price occurred after it was selected. However, this practice, if permitted, leads directly to the problems that competitive bidding is meant to prevent. For example, if a contractor is permitted to increase its price after being selected as the lowest responsible bidder, what checks are there to prevent favoritism, corruption, and fraud? There is absolutely no indication that occurred here, but there is nothing imposed by the bidding process to prevent it. The problem of these variances, especially price, is a result of the final flaw of ISWDA’s process: of not requiring a binding bid.”

As the trial court’s comment concludes, there is an interrelationship between the overall negotiability of the contract, the failure of the ISWDA to issue a sufficiently specific RFP, and the variations between the bid and the RFP, particularly those variations which resulted from post-bid modifications. XL argues there were no “material” variations between the bid and the RFP. We agree with the trial court that these variations are material and conclude that section 5 — 1022 of the Counties Code does not allow for the procedure utilized in this case.

As the case of Sinram-Marnis Oil Co. v. City of New York (1989), 74 N.Y.2d 13, 18, 542 N.E.2d 337, 338, 544 N.Y.S.2d 119, 120, points out, “the heart of this process must be public competition, not private negotiation.” As a matter of law, there was no need for any post-bid negotiations in the case at bar. If ISWDA was unfamiliar with the variety of designs available, bids should first have been requested for design by engineering firms which would probably fit within the professional services exception of section 5 — 1022 of the Counties Code. Then, having a design which ISWDA found accommodated its needs, bids could be requested as to construction and operation. It may be that some contractors would not be able to bid because the design settled on by ISWDA incorporated processes or equipment which they were unable to utilize for some reason. However, the ISWDA would have studied the design submitted and settled on the design most able to accommodate its needs. There would be no need to negotiate with the contractor. Either the contractor could build it or not, and if so, the price bid would not be negotiable. This is the process which the Hlinois legislature has determined to provide the greatest protection for the public.

Although we conclude the requirements of section 5 — 1022 of the Counties Code and prior case law were violated as previously discussed, there is some merit to the argument that a governmental group such as the ISWDA should be allowed to have the bidders propose various designs for a facility which is to be constructed to solve a particular governmental need and the price to be charged. This would allow the governmental unit to select the bid, giving consideration to the feasibility of plans suggested and the costs. Thus, where only a few firms have the expertise to construct and operate a particular type of facility, a greater number of bidders would be obtained and the competition to present an economically feasible facility would keep the costs down. However, the development of such a scheme is for the General Assembly, not the courts.

In determining the propriety of the judgment on the pleadings in favor of plaintiffs, this court was also asked to decide whether ISWDA Ordinance No. 91 — 3 exempted the subject facility from the competitive-bidding requirements of section 5 — 1022 of the Counties Code. As XL conceded in its brief, this issue need only be considered if this court finds the MRF is a “similar transaction” not suitable to competitive bidding under section 5 — 1022 of the Counties Code. The trial court found, in essence, the MRF was suitable to the competitive-bidding process, the statute was not complied with, and ISWDA ordinance No. 91 — 3 could not cure the defect. Since this court agrees with the trial court that the MRF is not exempt from the competitive-bidding process, this issue need not be addressed.

The final issue to be addressed is whether the trial court erred in striking plaintiffs’ petition for rule to show cause why defendants should not be held in contempt of court for violation of a court order. On February 20, 1992, plaintiffs filed a petition for rule to show cause why defendants should not be held in contempt of court because, even though the trial court’s earlier judgment voided the contract between XL and ISWDA and the defendants were enjoined against performing the contract, the ISWDA, on behalf of itself and XL, submitted an application to the City of Champaign for site approval for the MRF, the application referred to the voided contract, the voided contract was submitted as evidence at the site-approval hearing, plaintiffs made a written demand on defendants to withdraw the application for site approval, defendants refused to withdraw it, and plaintiffs alleged such acts of defendants were willful and contumacious. Defendants moved to strike the petition for rule to show cause, and has already been noted, the trial court granted the motion to strike the rule to show cause.

Based on an analysis of the relief sought by the petition for rule to show cause, this proceeding was one for indirect civil contempt. Therefore, the rules of civil procedure apply to this case. (See In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 43-48, 558 N.E.2d 404, 415-19, appeal denied (1991), 136 Ill. 2d 541, 567 N.E.2d 328.) Since the trial court did not rule on the merits that the defendants were not in contempt, but granted the motion to strike the petition for rule to show cause, the standard of review is the same as for rulings on motions to strike or dismiss a complaint in a civil action, which is to say all well-pleaded facts are taken as true, with all inferences therefrom to be drawn in favor of the nonmovant, and the pleading should not be dismissed or stricken in its entirety unless it clearly appears that no set of facts could be proved under the allegations which would entitle the plaintiffs to relief. (Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1230; Alderman Drugs, Inc. v. Metropolitan Life Insurance Co. (1979), 79 Ill. App. 3d 799, 803, 398 N.E.2d 984, 987.) This is an issue of law which this court may consider independent of any ruling by the trial court. Zientara, 211 Ill. App. 3d at 235, 569 N.E.2d at 1303.

Defendants argue that plaintiffs’ petition was legally deficient. The application for site approval was filed on September 16, 1991, well before the January 28, 1992, order of the trial court. Defendants’ counsel represented to the trial court that the site application hearing was completed prior to the January 28, 1992, order and the only subsequent proceedings concerned the impact of that order on the site application. The City of Champaign determined the site application was not affected since the city was reviewing a particular facility for a particular site and that was independent of the contractual arrangements between ISWDA and XL.

Courts have the inherent power to use contempt proceedings to enforce their orders (In re Marriage of Betts (1989), 190 Ill. App. 3d 961, 965, 547 N.E.2d 686, 689), but such power is limited to cases of willful refusal to obey the court’s order. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175.) While recognizing that the case of O’Leary v. Allphin (1976), 64 Ill. 2d 500, 356 N.E.2d 551, involves criminal contempt rather than civil contempt, the court’s discussion in that case concerning the specificity of the injunction order is instructive. In that case the court concluded, “an injunction order cannot support a finding of contempt unless it sets forth with certainty, clarity and conciseness precisely what actions are enjoined.” O’Leary, 64 Ill. 2d at 513-14, 356 N.E.2d at 558.

In their reply brief, plaintiffs point out that although defendants filed a post-trial motion for clarification seeking guidance as to how the ISWDA could structure future arrangements for the design, construction, and operation of the MRF, that motion did not seek a determination as to the continued pursuit of the application for local site approval. Plaintiffs apparently never saw fit to raise that question either, and the trial court’s order does not specifically enjoin the ISWDA’s continued pursuit of site approval. The person best capable of deciding what the trial judge meant to enjoin by his order is the trial judge, and in ruling from the bench on the motion to strike the petition for rule to show cause, the trial judge stated it was not his intent to enjoin the site approval application. Since his ruling addressed the contract between the parties, the trial judge stated, “it wasn’t necessary for me to implement that order to adopt some exclusionary rule prohibiting the use of information already acquired, particularly for the siting application process which was well underway at the time the matter was brought before the Court.” If the trial judge never intended by his order to enjoin the site approval process, then defendants cannot possibly be in contempt of court.

Accordingly, the judgment on the pleadings entered in favor of plaintiffs and against defendants by the circuit court of Champaign County is affirmed in No. 4 — 92—0164; also affirmed is the order of the circuit court striking the petition for rule to show cause why defendants should not be held in contempt of court in No. 4 — 92—0202.

No. 4 — 92—0164, Affirmed.

No. 4 — 92—0202, Affirmed.

COOK and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    SCOTT SYRCLE, Special Adm’r of the Estate of Catherine E. Syrcle, Deceased, Plaintiff-Appellant, v. ROBERT SPRINGER, Defendant-Appellee.
    Fourth District
    No. 4-92-0296
    Opinion filed December 30, 1992.

      Grady E. Holley, of Holley Law Office, of Springfield, for appellant.
    Kent R. Schnack, of Schnack, Schnack & Cashman, of Quincy, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Scott Syrcle, father of six-year-old Catherine Syrcle, deceased, and special administrator of her estate, filed a wrongful death action on behalf of her estate against defendant Robert Springer in Pike County circuit court. At trial a jury ruled in favor of defendant. Plaintiff seeks a new trial, arguing the trial judge committed reversible error because (1) he was not allowed to pursue his theory of the case, and (2) the judge accepted defendant’s jury instruction that negligence does not arise merely because an accident has occurred. Plaintiff also argues (3) reversible error occurred because defense counsel repeatedly referred to defendant’s grief and sorrow about the accident. No reversible error occurred.

I. Facts

Decedent was killed on April 29, 1987, while riding her bicycle near her home. There were no eyewitnesses to the incident. Defendant was performing farming operations near the scene of the accident, which occurred at approximately 6:30 p.m. It was a generally clear evening and the sun was shining brightly. The accident occurred in rural Pike County, Illinois, at a “T” intersection. The road extending north to south ends at the “T.”

A. Trial Testimony

1. Accident Site

Both the north-south and the east-west roads were unpaved. The east-west road is flat and level while the north-south road slightly inclined downward as it intersected the east-west road. Plaintiff and his wife Cheryl lived in a home approximately 150 yards east of the scene of the accident. The accident occurred on the east-west road. Plaintiff’s mailbox was located just west of the “T” intersection.

The night the accident occurred the Syreles had finished supper and plaintiff and Cheryl were outside doing chores. Cathy informed her mother she was going to ride her bicycle down to the mailbox to pick up the mail. Plaintiff and Cheryl saw Cathy as she headed toward the east-west road which intersects with the north-south road.

2. Defendant’s Testimony

Defendant was returning from his farm, which is located north of the scene of the accident. He was driving a tractor with a water wagon attached to it, followed by an attached 14-foot-wide field cultivator. According to defendant, he was travelling south at approximately 13 to 13V2 miles an hour when he approached the “T” intersection.

Defendant’s view to the left was obstructed by a bank, a hedge row, a fence, a tree, and some brush on the north-east corner of the “T” intersection. Because of the width of the field cultivator, he swung the tractor to the far left side of the road so he could turn right at the “T” intersection without going off the roadway. Defendant testified he slowed the tractor to make the turn. He did not remember whether he stopped at the intersection, but he knew he looked both directions before proceeding.

Defendant is effectively blind in his left eye, but this disability reportedly did not affect the accident. Upon questioning by plaintiff’s counsel, defendant explained he injured his eye when he was a child. He had farmed all his life without this disability affecting his work and he had been a truck driver for five years.

3. Additional Testimony

Jean Hoover testified on plaintiff’s behalf. She described herself as a neighbor of the Syrcle family and a longtime friend of defendant and his wife. She lived approximately a quarter of a mile north of the “T” intersection. She saw defendant’s tractor travelling south the night in question, but she did not see Cathy or the impact which caused her death. Hoover testified defendant did not stop his tractor at the intersection before he turned right.

Decedent’s mother Cheryl also testified she saw defendant approach the “T” intersection and turn right without stopping. Defendant was travelling quite fast when he approached the intersection and he did not slow down before he turned.

Witnesses in addition to defendant testified the view to the left of the “T” intersection (which was the direction in which decedent was travelling) was obstructed. Hoover travelled the road nearly every day. She testified that when the accident occurred, a row of hedges obstructed the view for drivers travelling south when they looked to the left (to the east).

Illinois State trooper Lawrence Drennan, who investigated the accident scene and drafted an accident report, concluded southbound drivers’ view to the east was obstructed by bushes and trees.

According to defendant, when he looked to the left before turning, he did not see Cathy. It was not until he had completed his turn and looked back that he saw Cathy being dragged in the tines of his cultivator.

Teresa Robinson, Cheryl’s sister, stopped at the accident scene after leaving the hospital the night of the accident. At the scene she saw a pool of blood approximately 8 to 10 inches from the mailbox, located mostly in the gravel or traveled portion of the roadway.

Upon questioning by defense counsel, Jeri Sue Springer, defendant’s daughter-in-law, testified she went to the accident scene immediately after the accident and observed drag marks in the intersection. Trooper Drennan concluded decedent’s body was lying approximately V-k feet north of the southerly edge of the east-west road. Drennan also indicated there were smudge marks from the tire of decedent’s bicycle on the water tank which was attached to the tractor.

4. Post-Accident Observations

After the accident occurred, defendant and a neighbor brought Cathy to the Syrcle residence. Plaintiff took Cathy in his arms and his neighbor drove them to the hospital in Pittsfield, Illinois. Plaintiff testified Cathy’s arms were limp. She was bleeding from her nose, mouth, arms, ears, and from the back of her head. Cathy had gravel imbedded in her clothing and in her knees, arms and ears. Cheryl similarly described Cathy’s condition.

B. Plaintiff’s Allegations

Plaintiff’s original complaint alleged defendant was negligent for failing to yield the right-of-way to Cathy at the intersection in violation of section 11 — 901.01 of the Illinois Vehicle Code. (111. Rev. Stat. 1987, ch. 95V2, par. 11 — 901.01.) The allegation was later included in an amended and a second-amended complaint. However, the trial judge struck the allegation. Although the order does not indicate the judge’s reason for doing so, defendant had argued in his motion to dismiss the count that the duties outlined in section 11 — 901.01 did not apply to defendant’s duty to Cathy because she was on a bicycle, which was not a “vehicle.”

Plaintiff later requested leave to file a third-amended complaint containing the right-of-way allegation, but the trial judge reserved ruling until the conclusion of the evidencé, and never made a formal ruling on plaintiff’s request. Plaintiff’s tendered jury instruction on the right-of-way allegation and his burden of proof instruction related to this allegation were denied.

Defendant tendered a nonpattem instruction advising the jury no presumption of negligence arises from the mere happening of an accident. Plaintiff’s objection to this instruction was overruled. The jury returned a verdict in favor of defendant. This appeal followed denial of post-trial motions.

II. Analysis

A. Plaintiff’s Instruction

Plaintiff sought to provide the jury an instruction pursuant to Illinois Pattern Jury Instructions, Civil, No. 60.01, regarding violation of a statute. (Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1992) (hereinafter IPI Civil 3d).) The pertinent statute, which was incorporated into plaintiff’s instruction No. 25, states:

“Vehicles approaching or entering a ‘T’ intersection. The driver of a vehicle approaching the intersection of a highway from a highway which terminates at the intersection, not otherwise regulated by this Act or controlled by traffic control signs or signals, shall stop, yield, and grant the privilege of immediate use of the intersection to another vehicle which has entered the intersection from the non-terminating highway or is approaching the intersection on the non-terminating highway in such proximity as to constitute a hazard and after stopping may proceed when the driver may safely enter the intersection without interference or collision with the traffic using the non-terminating highway.” Ill. Rev. Stat. 1987, ch. 95½, par. 11—901.01.

The trial judge rejected this instruction, and plaintiff argues the trial judge committed reversible error in doing so.

Defendant argues plaintiff waived review of this issue because he failed to obtain the trial judge’s ruling as to whether the right-of-way allegation could be added to his third-amended complaint.

Waiver also allegedly occurred because plaintiff included this allegation in his earlier pleadings, but did not include it in his third-amended complaint. Finally, defendant contends waiver occurred because plaintiff included only a general argument in support of the tendered instruction. Plaintiff argued:

“Your Honor, I would argue that there is sufficient evidence to show that the jury could find that the Defendant had, in fact, violated the statute referred to in this instruction and would deem that it would be appropriate to give the instruction to the jury.”

If waiver does not apply, defendant argues plaintiff’s theory of recovery did not support providing this instruction to the jury. His basis for this contention is that plaintiff presented no evidence or argument in opening or closing statements that defendant’s alleged failure to stop at the “T” intersection was in any way related to the accident let alone that it proximately caused the accident. He directs us to what he characterizes as plaintiff’s theory of recovery as represented during the hearing on a motion for summary judgment.

Defendant next directs us to testimony elicited by plaintiff that as Cathy approached the “T” intersection, she would ordinarily ride on the south side of the pavement, dismount her bicycle at the mailbox and then return home. Because plaintiff’s theory throughout the proceedings was that the accident occurred near the mailbox, defendant argues, the “T” intersection statute is not relevant. He also contends it was his theory of the case that the accident occurred at the “T” intersection.

Defendant also argues the instruction at issue was properly rejected because the “T” intersection statute was not designed to protect against injury to someone on or next to his or her bicycle. At oral argument defendant was permitted to submit additional authority for his proposition and plaintiff was provided additional time to respond.

Even if error occurred by rejecting the instruction, defendant contends it did not rise to the level of reversible error because the jury was provided the following instructions regarding defendant’s duty:

“It is the duty of every operator of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger to exercise ordinary care at all time[s] to avoid a collision.”

See IPI Civil 3d No. 70.01 at 70 — 9 (duty of driver using highway).

“It was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the decedent. That means it was the duty of the defendant to be free from negligence.”

See IPI Civil 3d No. 10.04, at 10 — 13 (duty to use ordinary care, adult defendant).

“The plaintiff claims that the decedent was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
1. In failing to keep a proper lookout.
2. In driving at an excessive rate of speed.
3. In failing to exercise due care to avoid collision with a pedestrian.
4. In failing to exercise due care to avoid collision with a bicycle rider.”

See IPI Civil 3d No. 20.01, at 20 — 7 through 20 — 8 (negligence issues instruction).

An additional instruction tendered by plaintiff regarding defendant’s duty to pedestrians, bicyclists and children, which was given over defendant’s objection, stated:

“There were in force in the State of Illinois at the time of the occurrence in question certain statutes which provided that:
Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian, or any person operating a bicycle or other device propelled by human power and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

See IPI Civil 3d No. 60.01, at 60-7.

Defendant contends these instructions sufficiently informed the jury of his duties and providing the added instruction would have been repetitious. He finally contends the jury would have been confused if the added instruction was provided because Cathy would then have been viewed as both a pedestrian or bicyclist and also as being in a vehicle.

At the pretrial conference, the trial judge reserved ruling on plaintiff’s oral motion to amend his third-amended complaint by adding the right-of-way allegation. Plaintiff never sought or received a ruling on his motion. His failure to obtain the trial judge’s ruling constitutes waiver of this issue. Selby v. Danville Pepsi-Cola Bottling Co. (1988), 169 Ill. App. 3d 427, 439, 523 N.E.2d 697, 704.

We reject defendant’s argument section 11 — 901.01 of the Vehicle Code, which outlines the rights and duties of a vehicle approaching a “T” intersection, does not relate to duties when the accident involves a bicyclist. The case which defendant submitted after oral argument provided no added support for this proposition. In Bekele v. Ngo (1992), 236 Ill. App. 3d 330, 330-31, the minor plaintiff’s injuries were incurred while he rode a bicycle on a sidewalk and defendant was operating a vehicle through an alley. The court concluded the plaintiff could not be considered a pedestrian for purposes of considering defendant’s duties pursuant to section 11—1205 of the Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—1205.) The Bekele court did not address the duties of an operator of a vehicle on a public highway to a bicyclist on a highway.

Although section 11 — 901.01 states a vehicle approaching the intersection of a highway from a highway which terminates shall yield to a vehicle entering the intersection from the nonterminating highway, an added provision grants a bicyclist all rights and subjects a bicyclist to all duties of the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 1502.) Under different circumstances the instruction tendered by plaintiff may be proper.

If plaintiff had properly preserved review of this issue, wé would conclude reversible error did not occur. We initially note the instruction did not support his theory of the case which was that the accident occurred near the mailbox and not within the intersection. Moreover, when reviewing an instructions issue, the given instructions should be considered as a whole to evaluate whether they fairly represented the law relevant to the case. (Nika v. Danz (1990), 199 Ill. App. 3d 296, 307, 556 N.E.2d 873, 881-82.) Plaintiff’s tendered and given instruction which outlined defendant’s duty to bicyclists, in conjunction with the additional duty instructions given to the jury, provided proper guidance to the jury in defining defendant’s duty to Cathy as a bicyclist.

B. Defendant’s Instruction

Over plaintiff’s objection, the trial judge admitted the following instruction submitted by defendant:

“No presumption of negligence arises from the mere happening of an accident. Negligence is not presumed but must be proved as a fact by the party alleging it.”

Plaintiff contends providing this nonpattem jury instruction to the jury was improper because the pattern instruction adequately instructed the jury. He further contends considering the additional instructions provided, this instruction was confusing to the jury.

Defendant contends tendering the nonpattern instruction was proper because of the unusual nature of the case where there was no proof when, where, why or how the accident occurred. He also contends it was properly simple, brief, impartial and free from argument. Even if improperly tendered, defendant contends the error was waived because plaintiff only made a general objection stating:

“[Plaintiff’s counsel]: I would object on that. The case cited doesn’t specifically state that it should be given as an instruction. It just merely recites this ,as a point of law, and I think that this would tend to confuse the jury.”

Plaintiff provided no explanation about how defendant’s instruction would confuse the jury or specifically why the instruction should not be given. Defendant finally argues even if error occurred, plaintiff has not established how he was prejudiced by the instruction. Rather, defendant argues, the instructions as a whole properly advised the jury of the relevant law.

Plaintiff’s objection did not specifically inform the trial judge the reason he (plaintiff) contended the instruction should be rejected. Supreme Court Rule 239(b) provides that objections to an instruction must be stated with specificity to advise the trial judge of the specific nature of the objection. (134 Ill. 2d R. 239(b).) Plaintiff failed to inform the trial judge how the instruction at issue would confuse the jury.

Defendant directs us to a second district ruling in Soderquist v. St. Charles Mall Associates, Ltd. (1988), 177 Ill. App. 3d 207, 223, 532 N.E.2d 903, 912, which concluded defendant’s objection to an instruction tendered by plaintiff was not sufficiently specific because the objection was clearly an afterthought. It was not raised until the court had proceeded to additional instructions. Defendant in Soderquist also argued against it because it was a non-IPI instruction and it was argumentative. These objections were neither timely nor specific. (See also Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350-51, 415 N.E.2d 337, 339-40.) Although plaintiff’s objection in this case was timely made, it failed to include the basis for his objection which he now raises on appeal. He has waived review of defendant’s tendered jury instruction.

If plaintiff had preserved this issue for review we would conclude the trial judge did not commit reversible error by tendering the instruction at issue. Contrary to defendant’s contention, the instruction could properly be characterized as an “unavoidable accident” instruction, although it was a nonpattern instruction.

Where no IPI instruction accurately states the legal principle at issue, a non-IPI instruction is permissible if it is simple, brief, impartial and nonargumentative. (134 Ill. 2d R. 239(a); Roberts v. Norfolk & Western Ry. Co. (1992), 229 Ill. App. 3d 706, 722, 593 N.E.2d 1144, 1155; Daly v. Carmean (1991), 210 Ill. App. 3d 19, 31-32, 568 N.E.2d 955, 963; Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 46, 502 N.E.2d 480, 482.) Defendant’s tendered instruction met these qualifications. Although courts should be cautious before using an unavoidable accident instruction, such an instruction is proper when there is evidence the injured party’s injuries did not result from defendant’s negligence, but through accident alone. Crutchfield v. Meyer (1953), 414 Ill. 210, 213, 111 N.E.2d 142, 143; Wolpert v. Heidbreder (1959), 21 Ill. App. 2d 486, 489, 158 N.E.2d 421, 423.

The evidence provided support for an unavoidable accident theory of the cause of Cathy’s death. Defendant testified he slowed while making the turn at the “T” intersection and he did not see Cathy until after he completed the turn. The evidence suggested Cathy may have rammed into defendant’s water tank while he was making the turn at the intersection. There were no eyewitnesses to the accident and there was limited, if any, evidence which may have suggested defendant’s negligence caused Cathy’s death. Numerous witnesses testified defendant’s view was obstructed in the direction which Cathy would have been travelling. The trial judge did not err by admitting the complained-of instruction which was tendered by defendant.

C. Defendant’s Comments

Plaintiff complains about defendant’s reference to his (defendant’s) remorse and grief following the accident. Although plaintiff concedes he did not object to these remarks during the trial, he contends the remarks were so inflammatory and prejudicial that waiver should not apply.

Defendant argues the jury could not have been affected by hearing about his grief because of the obvious overwhelming grief and sorrow of Cathy’s family. In the alternative, he contends the complained-of evidence was admissible to show defendant’s state of mind and mental and emotional condition. Defendant finally argues even if the comments are viewed as error, they do not rise to a plain error level.

We must strictly apply the waiver rule unless the evidence shows defense counsel’s comments involved flagrant misconduct such that the judicial process was substantially impaired and the jury verdict was brought about by biased passion rather than an impartial consideration of the evidence. Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 375-76, 553 N.E.2d 291, 297; Cunningham v. Millers General Insurance Co. (1992), 227 Ill. App. 3d 201, 207, 591 N.E.2d 80, 84.

Before the trial began, defense counsel filed a motion in limine arguing the grief, sorrow, or mental anguish of Cathy’s parents was irrelevant to any issue in the case. The trial judge excluded this type of evidence. Plaintiff argues defendant’s presentation of such evidence related to himself (defendant) was prejudicial and requires reversal of the jury verdict.

In opening remarks, defense counsel stated there was no dispute about the grief and sorrow the Syrcles had experienced since April 1987. Defense counsel again indicated the Syrcles’ grief while questioning plaintiff. Counsel stated “there’s no question about the effect on you and your wife.” In his closing argument, defense counsel again noted plaintiff’s grief when he stated, “everybody in this courtroom sympathizes with Scott and Cheryl. In your sympathy for the Syrcle family and in your compassion for the Syrcle family don’t place blame where it doesn’t belong.”

Plaintiff directs us to defense counsel’s comment in his opening remarks alluding to a call defendant received from the Syrcles a year after the accident in which they told defendant Cheryl was pregnant again. Defense counsel stated this was their effort to alleviate some of defendant’s grief over the accident.

While cross-examining Hoover, defense counsel elicited her view the Syrcles had not blamed defendant for the death of their daughter. Hoover also opined the accident significantly affected defendant. Plaintiff also complains about responses defense counsel elicited while cross-examining plaintiff. Plaintiff stated that when defendant came to the hospital the night of the incident he (defendant) was upset as was everyone. Plaintiff also reported defendant attended Cathy’s funeral and was upset as was everyone else. When asked whether the incident had an effect on defendant, plaintiff responded, “I imagine.”

Plaintiff also directs us to defense counsel’s direct examination of defendant during which defendant reported that after the incident, his physician placed him on medication and that he was unable to sleep or eat for two or three weeks. Plaintiff also outlines the following testimony by defendant:

“Q. What happened when you got to the hospital?
A. Well, we met them on the parking lot, and we was too late. Cathy was already gone when we got there.
Q. Did you see Scott’s mom or dad?
A. Yes. She throws her arms around me and told me that they didn’t blame me in any way.
Q. And then did you see the Syrcles again at the funeral home when Cathy had her funeral?
A. Yes.
Q. And *** since then have you seen them periodically like at things like the Corn Carnival?
A. Yes.
Q. Have you guys basically, you know, said hi and talked when you come into contact with each other?
A. Yes.
Q. Am I right that you even got a phone call at your house on Christmas that let you know for whatever reason that Cheryl was expecting another child.
A. Yes, we did.
Q. And, in fact, when that child was bom did you send them a baby gift?
A. My wife took one over, yes.”

Plaintiff contends defense counsel referred to defendant’s grief and sorrow again in closing argument when he urged the jury that its conclusion negligence occurred in this case would be a “dirty word.”

Plaintiff argues these references to defendant’s grief were an effort to appeal to the jurors’ sympathy and to overcome the sympathy the jurors may have felt for the Syrcles. Defendant contends the jury was not swayed by this line of questioning. In the alternative, he argues evidence of defendant’s state of mind and mental and emotional condition was relevant. Defendant’s general reliance on Hackett v. Ashley (1979), 71 Ill. App. 3d 179, 186-87, 389 N.E.2d 246, 251, is misplaced. Hackett addressed the relevance of the state of mind of parties who allegedly entered a contractual agreement. Testimony about defendant’s emotional state after the incident was not relevant to whether he was negligent when the incident occurred.

Defendant also contends the questions were relevant as an admission of prior inconsistent conduct by plaintiff. These questions simply were not relevant or material to whether defendant was negligent the day the incident occurred. As evidence of Cathy’s family’s grief would have been inappropriate, testimony presented by defendant related to his grief over the accident should not have been permitted.

Although the testimony elicited by defendant was improper, plaintiff waived review of the issue by not objecting at trial. Moreover, plaintiff has not shown how he was prejudiced by this testimony. The trial judge admonished the jurors before trial and before deliberation that they should not allow sympathy, passion or prejudice to influence their decision. We find no reversible error in the trial judge’s rejection of plaintiff’s instruction, admission of defendant’s instruction, or defense counsel’s inappropriate references to defendant’s grief.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE STOUDER

text:
    EXCEL ENERGY COMPANY, INC., et al., Plaintiffs-Appellees, v. DEAN PITTMAN, d/b/a 3PPP Enterprises, Defendant-Appellant.
    Fourth District
    No. 4-92-0344
    Opinion filed December 4, 1992.
    Rehearing denied February 2, 1993.

      Randy E. Blue, of Springfield, for appellant.
    Robert B. Goldman, of Springfield, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Dean Pittman, d/b/a 3PPP Enterprises, appeals from an order of the trial court denying the defendant’s motion to quash service of process. The plaintiffs, Excel Energy Company and Clipper Oil Company, Inc., filed a three-count complaint against the defendant, alleging breach of warranty and violations of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1991, ch. 121½, par. 261 et seq.). On appeal, the defendant argues that the plaintiffs failed to establish any basis for the courts of Illinois to exercise jurisdiction over the defendant where the defendant has neither transacted business nor committed a tortious act within this State. For the following reasons, we reverse the order of the trial court and remand with directions to dismiss the suit for lack of personal jurisdiction over the defendant.

Gary Billingsley, president of the plaintiff corporations, filed a three-count complaint against the defendant on October 7, 1991. The plaintiffs are Illinois corporations, and the defendant is a sole proprietorship with its principal place of business in Moore, Oklahoma. Count I of the complaint alleged breach of warranty by the defendant in a sale of a piece of oil field equipment to the plaintiffs on October 3, 1990. Counts II and III allege violations of the Act in the sale of a gas compressor by the defendant on March 26,1991.

The defendant was served with process in Oklahoma on October 23, 1991. The defendant filed a special and limited appearance to contest jurisdiction (Ill. Rev. Stat. 1991, ch. 110, par. 2—301) and a verified motion to quash service of process. The defendant contended that he had not submitted himself to the jurisdiction of the courts of Illinois. In support, the defendant listed the following facts: his sole place of business is Moore, Oklahoma; he does not have an office, employees, or agents in Illinois; he has never been to Illinois; plaintiffs took delivery of the equipment in Oklahoma; and, on information and belief, the plaintiffs made the telephone call seeking to purchase the equipment from Houston, Texas.

The plaintiffs filed a counteraffidavit to the defendant’s motion to quash. Billingsley asserted that he contacted the defendant about purchasing the equipment in response to an advertisement in Oiltzer. Oiltzer is a magazine of general national circulation. The plaintiffs also attached a list of telephone calls to their affidavit. The plaintiffs alleged that these calls were made to the defendant about the equipment sold to the plaintiffs. The phone calls were for the purpose of discussing the purchase and repair of the equipment. The plaintiffs further alleged that the defendant sent a repair person to Illinois in July 1991, to attempt to repair the problems the plaintiffs had experienced with the machinery.

Following a hearing, the circuit court denied the defendant’s motion. The court entered a written order on March 30, 1992, setting forth that jurisdiction over the defendant was proper under section 2 — 209 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—209) for the following reasons: (1) the defendant was aware that the equipment was to be used in Illinois; (2) the defendant responded to telephone calls placed from Illinois by the plaintiffs; and (3) the defendant sent a repair person to Illinois. The defendant’s appeal followed.

The defendant argues on appeal that personal jurisdiction was not established because he neither transacted business in Illinois nor committed a tortious act in Illinois. The defendant also argues that the exercise of jurisdiction would not be constitutionally permissible. The plaintiffs argue on appeal that jurisdiction over the defendant is proper under any one of three theories: (1) the defendant transacted business within the State of Illinois (Ill. Rev. Stat. 1991, ch. 110, par. 2—209(a)(1)); (2) the defendant committed a tortious act within the State of Illinois (Ill. Rev. Stat. 1991, ch. 110, par. 2—209(a)(2)); or (3) the exercise of jurisdiction is constitutionally permissible (Ill. Rev. Stat. 1991, ch. 110, par. 2—209(c)). The plaintiffs only pay lip service to the first theory and primarily argue that jurisdiction is permissible under section 2—209(a)(2) of the Code because the defendant committed the tort of misrepresentation within the State of Illinois and that the exercise of jurisdiction meets the due process standards of the United States and Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.

The assertion of personal jurisdiction over a nonresident defendant must satisfy the requirements of due process as well as those of the long-arm statute. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 489 N.E.2d 1360.) It is unnecessary to determine whether the requirements of the long-arm statute have been met when the due process clause bars any exercise of jurisdiction over the defendant. (Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc. (1991), 213 Ill. App. 3d 675, 572 N.E.2d 353.) The burden on the party asserting jurisdiction under the long-arm statute is to make a prima facie showing that jurisdiction exists under the statute; on review, the appellate court must determine whether the plaintiff met its burden of proof. (Aetna Casualty & Surety Co. v. Crowther, Inc. (1991), 221 Ill. App. 3d 275, 581 N.E.2d 833.) The long-arm statute has been amended recently to provide that the Illinois courts can exercise personal jurisdiction on any basis permitted by the United States and Illinois Constitutions. See Ill. Rev. Stat. 1991, ch. 110, par. 2-209(c).

We do not believe that the plaintiffs have sufficiently proved jurisdiction on the basis of either transaction of business within Illinois or the commission of a tortious act -within Illinois, but our resolution of the due process issue would make a discussion of those issues irrelevant. Due process requires that a nonresident defendant have certain minimum contacts with the forum State such that maintenance of the suit there does not offend “ ‘traditional notions of fair play and substantial justice.’ ” (International Shoe Co. v. State of Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158, quoting Milliken v. Meyer (1940), 311 U.S. 457, 463, 85 L. Ed. 278, 283, 61 S. Ct. 339, 343.) The following three criteria are examined to determine whether a court’s jurisdiction over a nonresident defendant satisfies due process: (1) whether the nonresident defendant had “minimum contacts” with the forum State such that he had “fair warning” that he may be required to defend himself there; (2) whether the action arose out of or relates to the defendant’s contacts •with the forum; and (3) whether it is reasonable to require the defendant to litigate in the forum State. (Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 472-78, 85 L. Ed. 2d 528, 540-44, 105 S. Ct. 2174, 2181-85.) Additionally, the Illinois Supreme Court stated in Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302, that the Illinois Constitution’s guarantee of due process requires that jurisdiction only be asserted when it is

“fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” Rollins, 141 Ill. 2d at 275, 565 N.E.2d at 1316.

We do not believe that any of the above criteria have been satisfied in this case. The minimum contacts and fair warning requirement is satisfied if the defendant either purposefully directed his activities at Illinois residents, reached out beyond one State to create continuing relationships with citizens of another State, or purposely derived benefits from his interstate activities. (Ores v. Kennedy (1991), 218 Ill. App. 3d 866, 578 N.E.2d 1139.) The defendant in this case did not purposefully direct his activities at Illinois residents. The plaintiffs found the advertisement for the equipment in a magazine, sought out the defendant and inquired about purchasing the equipment, and took delivery of the equipment in Oklahoma. The defendant took no actions purposefully directed at Illinois residents such that he would have fair warning that he would be hailed into court in Illinois.

The United States and Illinois Constitutions both require an exercise of jurisdiction over a nonresident defendant to be reasonable and fair in light of the defendant’s acts connected to the forum State. We do not believe that it would be fair to require the defendant to litigate this case in Illinois. Illinois does not have any substantial interest in resolving this case that could not be adequately addressed by the Oklahoma courts. The plaintiffs chose to initiate a contact with a nonresident defendant, chose to do business in a foreign State, and chose to travel to Oklahoma to purchase the machinery. We do not believe that it would be consistent with due process to require the defendant to litigate this case in Illinois. The contacts listed in the trial court’s order are not sufficient for the Illinois courts to exercise in personam jurisdiction over this defendant. The plaintiffs have failed to meet their burden of proof that jurisdiction exists over the defendant.

For the foregoing reasons, we reverse the order of the circuit court of Sangamon County which held that it had personal jurisdiction over the defendant, and remand the cause with directions that the complaint be dismissed.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.