author: JUSTICE BOWMAN

text:
    MARVIN JOHNSON, Indiv. and as Special Adm’r of the Estate of Violet Johnson, Deceased, et al., Petitioners-Appellants, v. VALSPAR CORPORATION, Respondent-Appellee.
    Second District
    No. 2—92—1337
    Opinion filed October 6, 1993.

      Reese & Reese, of Rockford (Bernard P. Reese, Jr., of counsel), for appellants.
    Eugene R. Pigatti, of Rockford, and Fredriksen & Byron, P.A., of Minneapolis, Minnesota (Leo G. Stern, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Petitioners, Marvin Johnson, individually and as special administrator for the estate of Violet Johnson, Fred Johnson, and Donald Johnson, appeal from a series of orders entered by the circuit court of Winnebago County which culminated in the denial of their petition to be reinstated as plaintiffs in a lawsuit against respondent, Valspar Corporation. Petitioners assert the trial court erred in denying their requests for a change of venue and a jury trial and that the court’s findings on their petition for reinstatement were against the manifest weight of the evidence. We affirm.

The parties appear before this court for the third time. This lawsuit was originally filed in 1972 against Valspar and other defendants. The petitioners, along with Marvin Johnson’s two daughters, Elizabeth and Rebecca, were the plaintiffs. All the plaintiffs claimed they were injured in their health and property as a result of contamination of their farmland and water supply. They alleged that the contamination came from manufacturing wastes which Valspar stored on an adjoining farm occupied by another defendant, Walter Tipton. Finding that their cause of action was time barred, the trial court dismissed Elizabeth and Rebecca as party plaintiffs. A trial was held in May 1980 regarding the remaining plaintiffs, and the jury returned a verdict in favor of Valspar. All plaintiffs appealed to this court. We affirmed the verdict as to the petitioners. With regard to Elizabeth and Rebecca, however, we reversed the trial court’s finding that their cause was time barred and remanded the matter back to the trial court. (Johnson v. Tipton (1982), 103 Ill. App. 3d 291.) The daughters continued their suit at the trial level under a caption reflecting their then current surnames: Elizabeth Schoen & Rebecca Hampton v. The Valspar Corp. et al. (Cir. Ct. Winnebago Co.), No. 72 — L—3454.

Almost nine years later, in February 1989, petitioners filed a motion seeking to be reinstated as party plaintiffs in the daughters’ continuing action against Valspar. In an addendum to the motion they indicated they sought relief pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401 (now 735 ILCS 5/2 — 1401 (West 1992))). Petitioners alleged that Valspar had fraudulently concealed relevant evidence during the course of the litigation which culminated in the May 1980 trial and that such evidence, had it been available, would have resulted in a different trial outcome. Although the trial court did not hold a hearing on the motion, in February 1990 it found that Valspar had not fraudulently concealed the information and documents not received by the petitioners, that the materials not received were merely cumulative to the evidence presented at the trial, and that the jury had the evidence before them when deciding the same issues. Accordingly, the trial court denied the petition and found there was no just reason to delay appeal of the issue. (See 134 Ill. 2d R. 304(a).) We reversed and remanded the case for an evidentiary hearing on the matter of fraudulent concealment. Johnson v. Valspar (1991), 207 Ill. App. 3d 1112 (unpublished order under Supreme Court Rule 23).

Upon remand, the trial court first denied petitioners’ motion for a change of venue and granted Valspar’s motion to strike petitioners’ jury demand. Upon completion of the hearing, which was held on October 21 and 22, 1991, February 3 and 4 and March 17, 1992, the trial court again found Valspar not guilty of fraudulent concealment and denied the motion to reinstate. After their post-trial motion was also denied, petitioners brought this appeal.

Petitioners make a preliminary argument that the trial court should have granted their motion for change of venue as a matter of right. The motion was made immediately following remand and alleged prejudice on the part of the trial judge. There is an absolute right to a change of venue where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge hearing the motion has made any substantial ruling (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1001(a)(2), (c) (now 735 ILCS 5/2-1001(a)(2), (c) (West 1992)); In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530), but such a motion is untimely if made after a ruling on a substantive matter (In re Marriage of Smoller (1991), 218 Ill. App. 3d 340, 346). Petitioners do not dispute that the trial court’s denial of their petition for reinstatement was a substantive ruling. They insist, however, that after reversal the trial court’s earlier rulings had no effect since a reversal abrogates the judgment reversed. Petitioners conclude that, upon remand, no substantive rulings had been entered and they were, therefore, entitled to the change they sought as a matter of right. Petitioners’ argument cannot be sustained.

In Schlenz v. Castle (1985), 132 Ill. App. 3d 993, this court held that a motion for change of venue was not timely when it was filed after remand from the supreme court following an interlocutory appeal of a finding that the cause could not proceed as a class action. We stated that the cause in Schlenz was not a “ ‘new’ proceeding, but a continuation of the proceeding.” (Schlenz, 132 Ill. App. 3d at 1015.) In support of our conclusion we cited In re Dependency of Bartha (1969), 107 Ill. App. 2d 214, also a second district case, where the cause was remanded because the trial court order did not contain the findings of fact necessary to allow review. In a subsequent appeal we could not conclude, as urged by the respondent, that the proceedings following remand were new in nature and therefore required that a motion for change of venue be granted. We held in Bartha that the trial court did not err in denying the motion.

We also cited in Schlenz, for purposes of comparison, to Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App. 3d 1055, where it was argued to this court that a motion for change of venue, filed before the commencement of a retrial (following a declaration of mistrial) and before the entry of rulings on issues pertaining to the second trial, was timely and should have been granted as a matter of right. We affirmed the trial court’s denial of the motion, observing that, although the force and effect of a court’s prior rulings are vitiated by an order granting a mistrial, the rulings are not ignored in applying the provisions of the venue statute if they are substantial rulings.

Based on our own precedent, we conclude that petitioners’ motion for change of venue was properly denied. As we did in Bartha and Schlenz, we find that the proceedings following remand in this case were not new, but merely a continuation of all that had previously transpired in the trial court. In addition, if the court’s prior rulings are effective for purposes of determining matters of venue prior to a complete retrial, as in Schlenz, we certainly think such rulings should be effective for the same purpose when a cause is merely remanded for an evidentiary hearing.

Petitioners’ reliance on United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, is misplaced. After explaining that the trial court had denied the plaintiff’s motion for change of venue because it had made a substantive ruling, the United court remarked:

“Upon remand of the present case, however, the trial court’s rulings will have no effect since a reversal abrogates the judgment or decree reversed and leaves the case as it stood prior to the entry thereof. [Citations.] Thus, no substantive rulings will have been entered, and either party may at that point apply for a change of venue.” (United, 110 Ill. App. 3d at 112.)

However, the court’s remarks occurred in dicta, not as a holding. Before addressing the venue issue the court stated: “As the foregoing discussion indicates, it is unnecessary for us to determine if the trial court erred in denying United’s motions for change of venue.” (United, 110 Ill. App. 3d at 111.) Even more significantly, the authority cited by the United court provides no support for its comments. The court cited Willett Co. v. Carpentier (1954), 4 Ill. 2d 407, People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, and Loy v. Booth (1974), 16 Ill. App. 3d 1077. None of these cases raises an issue concerning the propriety of a motion for change of venue following remand. While all of them contain language setting forth the general proposition that when a judgment or order is reversed the effect is to abrogate the judgment or order and leave the case as it stood prior to entry of such order, none of them applies the principle to allow a motion for change of venue following remand. On the contrary, the principle is invoked in Willett and Loy to prevent a party from benefiting unjustly from a judgment subsequently reversed. In Scott it is applied to determine that, when an underlying judgment is reversed, supplementary proceedings to collect the judgment must also fail. Petitioners’ invocation of United is of no avail.

In a second argument based on procedure, petitioners contend they should have been granted a jury trial at the hearing held upon remand. Essentially, petitioners urge that determination of fraud is a legal rather than equitable matter and whether fraudulent concealment occurred presented factual questions which they were entitled to have resolved by a jury. Petitioners lose sight of the nature of their motion to reinstate.

Petitioners’ original motion contained no reference to a statutory basis for their request for reinstatement. The later-filed addendum to the motion, however, specifically invoked section 2 — 1401 of the Code of Civil Procedure, which provides a statutory mechanism for vacating or modifying a final order or judgment more than 30 days after its entry. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401 (now 735 ILCS 5/2— 1401 (West 1992)); In re Marriage of Oldham (1991), 222 Ill. App. 3d 744, 753.) It is well established that a section 2 — 1401 petition for relief from a final judgment is directed to the equitable powers of the court and should be considered in light of equitable principles. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 225; In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 283.) There is no right to a jury trial in equitable proceedings or proceedings seeking equitable relief. (Vaughn v. Speaker (1988), 126 Ill. 2d 150, 167.) The question of whether a section 2 — 1401 petition should be granted lies within the trial court’s discretion, and, absent an abuse of discretion, the determination of the trial court will not be disturbed. (Airoom, 114 Ill. 2d at 221; Old-ham, 222 Ill. App. 3d at 754.) Petitioners’ claim that they had a right to a jury trial is without merit.

Petitioners correctly note that the trial court may, in its discretion, use a jury to determine an equitable issue. (See Vaughn, 126 Ill. 2d at 167.) It is urged upon us by petitioners, for a number of different reasons, that the trial court here abused its discretion in denying a jury trial. As we read them, however, the reasons are merely bald and unsupported statements of petitioners’ position. They do not constitute an argument in any sense of the word. Thus, we need consider them no further.

We turn now to petitioners’ contention that the trial court erred when it found Valspar had not fraudulently concealed evidence relevant to the 1980 trial. As we have indicated, petitioners brought their motion for reinstatement pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401 (now 735 ILCS 5/2—1401 (West 1992))), which provides for relief from a final judgment more than SO days after its entry. The purpose of section 2—1401 is to bring before the trial court matters which, if known to the court when judgment was rendered, would have prevented such judgment. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223.) However, section 2 — 1401 is not to be used as a device to relitigate issues already resolved or to put in issue matters which could have been adjudicated. (Halas, 173 Ill. App. 3d at 223; Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497.) Nor is the section intended to be a procedure whereby a litigant may be relieved of the consequences of his own mistake or negligence. Malek, 152 Ill. App. 3d at 497.

A section 2 — 1401 petition must be filed within two years of entry of the relevant final judgment, but time during which the ground for relief is fraudulently concealed is excluded from the two-year period. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401(c) (now 735 ILCS 5/2— 1401(c) (West 1992)); Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 209.) The jury in this case found for Valspar in May 1980. Petitioners filed the motion to reinstate in February 1989, well beyond the two-year limitation of section 2—1401. Accordingly, respondent opposed the motion on the ground that it was time barred. In an addendum to their motion petitioners asserted that Valspar had fraudulently concealed evidence and, therefore, the two-year time period was tolled.

The trial court did not refer to the time-barred issue in its order denying the motion to reinstate. However, we made clear in our order under Rule 23 that the issue on remand was whether Valspar had fraudulently concealed evidence, thereby tolling the running of the statute. We specifically stated that only if the trial court determined that the petition was timely would it have been proper to rule on the merits of the petition. The trial court’s July 1992 order, entered upon remand and again denying the petition to reinstate, expressly stated that a hearing had been held to determine the existence of fraudulent concealment in order to resolve the limitations question. Consequently, the only matter to be reviewed at this time is the trial court’s determination that there had been no fraudulent concealment which might have tolled the statute.

The burden of proving fraudulent concealment is on the party asserting it, and the evidence must be clear and convincing, and not merely suspicious, in order to toll the statutory limit on seeking relief from final judgments. (In re Application of County Treasurer (1977), 51 Ill. App. 3d 697, 701; Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 78; Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 423.) Here, then, the trial court had the initial task of determining whether petitioners offered clear and convincing evidence that Valspar had fraudulently concealed evidence which might have changed the outcome of the 1980 trial.

In their motion petitioners asserted that they had discovered the evidence allegedly concealed by Valspar as a result of other litigation. In 1982 the Royal Backes family, which had purchased petitioners’ property in 1976, brought suit against Valspar in Federal court. (Backes v. Valspar (N.D. Ill. June 4, 1991), No. 81 — CV—20119.) At the same time, Schoen v. Valspar continued in State court. Counsel for petitioners in this case also represented both the Backes family and Rebecca Hampton and Elizabeth Schoen. The parallel State and Federal litigation involved essentially the same claims that had been made in Johnson. Petitioners claimed in their motion to reinstate that the newly discovered evidence was produced in Backes v. Valspar and Schoen v. Valspar, and it fell into the following eight categories:

“A. Raw materials utilized in the manufacturing process by the defendant Valspar from the period 1965 through 1976, which are important in determining the nature and extent of the waste generated by the defendant Valspar.
B. Lab analysis of the waste material generated by the defendant Valspar during the period of 1965 through 1976.
C. Material Safety Data Sheets specifically denied by the defendant to be in existence for the period in question, but a copy of such Material Safety Data Sheet from Valspar for 1972 is attached hereto and made a part hereof as Ex. B for reference.
D. Records concerning the investigation of the defendant Valspar at Franklin Grove, Illinois, which it has either destroyed or continues to conceal.
E. Investigations concerning dumping of toxic waste into Rock River in 1970 and 1971.
F. The disposition of waste containing mercury content.
G. The use and disposition of mercury organic compound as waste. -
H. Federal and State EPA records showing the storage tanks for various toxic chemicals used as raw materials by the defendant and the volume of such usage, together with the presence of such toxic chemical in the waste material generated by the defendant Valspar.”

On appeal petitioners urge that not only was this evidence not disclosed to them during discovery but also that, during the trial, Val-spar’s counsel, as well as witnesses from Valspar, made misrepresentations concerning the existence of the evidence and/or their knowledge of the evidence.

Regarding the categories of evidence set forth by petitioners, Val-spar maintains that the only one requested prior to the 1980 trial or during the two-year limitations period was that concerning its raw materials. Valspar further asserts that detailed disclosure regarding its raw materials was timely made to petitioners.

As a preliminary observation, we note that petitioners cite many, many examples of alleged withholding of later discovered information or documents in both Schoen v. Valspar and Backes v. Valspar. We are concerned here with information purportedly withheld in Johnson. Therefore, petitioners’ examples are pertinent only to the extent they reveal that the later discovered information was also wrongfully withheld during the Johnson litigation. If such examples do not assist in this examination, they are irrelevant and will be ignored.

We return now to the parties’ arguments, beginning with petitioners’ urging that they demonstrated fraudulent concealment by showing that, during the 1980 trial, both Valspar employee witnesses and counsel for Valspar were frequently less than truthful regarding the existence of evidence, or their knowledge concerning the evidence, which was later discovered. We have examined the record in this regard very carefully and find that, over and over again, petitioners have taken testimony from the trial out of context, or mischaracterized it, or, in some instances, misrepresented what the witnesses actually said.

We note in this regard that in the 1980 trial there appears to have been a good deal of confusion or, at the very least, lack of communication between petitioners’ counsel and the witnesses regarding certain critical terminology and technical concepts. This leads us to question whether some of the instances of concealment now urged by petitioners were not so much a matter of concealment as they were merely a misunderstanding.

Also, some discrepancies between witnesses’ testimony in 1980 and the same witnesses’ testimony at later hearings, including the hearing on remand, are not nearly so great as petitioners would have us believe. Indeed, such discrepancies may be easily accounted for by the fact that, by the time of hearing after remand, the witnesses were being asked about events and procedures occurring as much as 20 years earlier. Even at the 1980 trial, the events in question had happened much earlier. We addressed this fact in Johnson, where petitioners also charged that Valspar refused to cooperate in producing witnesses or exhibits. We discussed petitioners’ argument as follows:

“[I]t is unclear what evidence, if any, was, in fact, not produced. The plaintiffs appear to be complaining principally on the lack of knowledge that former Valspar officials displayed at trial, which could have been explained by the passage of about eight years between the time the Valspar barrels were hauled to Tipton’s property and the time of trial.” (Johnson, 103 Ill. App. 3d at 298.)

We think our comment is even more compelling now since the evidentiary hearing took place some additional 11 years after the fraudulent concealment supposedly occurred. In any event, the court below could have determined that petitioners’ citation to testimony in the 1980 trial was not clear and convincing that Valspar employees and former employees made deliberate misrepresentations about the evidence sought from Valspar.

As for representations by Valspar’s counsel, they are again taken out of the overall context of the case. For example, pursuant to a court order in Backes v. Valspar allowing him to go on Valspar’s property to search, petitioners’ counsel discovered certain records, called material safety data sheets, which he claims would have been relevant in Johnson but had not been produced. Too, several years after Johnson, Valspar found and produced for the first time certain batch cards containing information which petitioners claim was relevant and had been sought before the Johnson trial. Valspar had indicated prior to Johnson that batch cards from the relevant period had been destroyed pursuant to the company’s document retention policy which called for destruction of records over five years old. According to Valspar the later discovered batch cards had inadvertently survived the destruction process. Petitioners strongly imply that counsel for Valspar deliberately misrepresented that the company had searched for or destroyed records such as the material safety data sheets and the batch cards. Petitioners’ argument lacks a firm foundation.

First of all, as will be discussed, it is questionable whether petitioners asked for some of the later found information prior to 1980. Furthermore, there was evidence that the material safety data sheets found by petitioners’ counsel had been placed in a storage area where such documentation was not normally stored. That area, therefore, had not been searched by Valspar for purposes of Johnson. It also appears that the binder of material safety data sheets found by counsel was an isolated volume mixed in with other, unrelated volumes of stored records. As for the batch cards, they pertained to only a limited number of the products made by Valspar in the 1968 to 1972 time period. Petitioners point us to no convincing evidence that Valspar did not, as a general rule, destroy batch cards after five years, in accord with its policy. All in all, based on the evidence before it, the trial court on remand could have concluded that petitioners had not adequately shown that counsel intended to deceive them by representations made during the 1980 trial.

Petitioners also contend that, at the remand hearing, they showed that Valspar fraudulently concealed information sought through discovery procedures prior to and during the 1980 trial. Rather than address separately each of the multitude of specific, but random, instances of wrongful withholding proffered by petitioners in their brief, we will focus on the categories of evidence delineated by petitioners in their motion as having been withheld by Valspar, as set forth above. We note at the outset of this discussion our agreement with respondents that petitioners are not in a position to say certain documents and information were wrongfully concealed in the prior litigation unless they asked for such information at the time. See Halas, 173 Ill. App. 3d at 225; Malek, 152 Ill. App. 3d at 497.

With regard to the first category of evidence, Valspar does not dispute that the petitioners asked for information regarding raw materials used in the company’s manufacturing processes from 1965 through 1976. Rather, Valspar maintains it provided the requested information in response to a 1979 interrogatory. Petitioners nevertheless insist that Valspar concealed batch cards which would have shown the chemical components of Valspar’s products. Petitioners’ argument on this issue is not persuasive.

To begin with, the record reflects that Valspar did, indeed, provide information regarding its raw materials. In their 1979 interrogatory petitioners asked about, and in its answers Valspar revealed, what raw materials the company purchased from each of a number of companies between 1966 and 1972. Valspar also listed the chemical makeup of each raw material. Petitioners further asked if the materials purchased contained certain elements or compounds. Valspar answered, with various qualifications, that they did contain most of the named elements and compounds, including mercury, phenols, lead, zinc, copper, phosphate, and iron. The trade and generic names of the chemicals were provided. Petitioners do not show how the information on the batch cards differed significantly from the information provided in Valspar’s answers to interrogatories. Thus, they have not shown that failure to produce the batch cards amounted to fraudulent concealment of information regarding raw materials.

It is noteworthy also that petitioners never asked for batch cards, per se. Rather, in a 1980, pretrial interrogatory they asked: “For each product being manufactured [between 1965 and 1972], please list the chemical components of that product by chemical or generic name.” Petitioners maintain this question should have elicited the batch cards. Even if the interrogatory is interpreted to include a request for batch cards, however, there were a number of problems with it. First of all, in May 1979 petitioners had filed a motion to compel discovery from Valspar. The motion sought “documents concerning purchase of various chemicals by Valspar for the periods of 1966 to 1970 for use in its manufacturing process and any documentary information concerning disposition of waste during that period of time.” The court denied the motion on the ground it was overly broad in scope. After indicating to petitioners that he thought they ought to specify the chemicals for which they wanted information, the trial judge added, “[Everything they purchased is going too far.” The judge then expressed concern whether, with the trial coming up shortly, counsel knew what chemicals caused petitioners’ injuries. Counsel said he did. Despite this exchange, petitioners never requested information regarding specific chemicals. Rather, almost a year later, they submitted the pretrial interrogatory seeking information “for each product being manufactured,” which is virtually the exact same request the trial judge had previously found to be overly broad.

In addition, while we cannot determine the exact date from the record, Valspar claims petitioners did not serve the relevant interrogatories on them until April 23, 1980, less than two weeks before the trial was scheduled to start. Valspar filed its answers on May 12, 1980, the last day of trial. While petitioners chide Valspar for filing its answers so late, it does not take issue with Valspar’s contention that it was served with the interrogatories only two weeks before trial.

In sum, petitioners had plenty of time to narrow their interrogatory and seek information regarding specific chemicals, pursuant to the court’s suggestion. Even if it is assumed Valspar had batch cards for the period of time requested, in light of the trial court’s remarks Valspar had good reason to believe it was not necessary to produce them, unless petitioners were more specific in their request. Too, if Valspar had the volume of batch cards which petitioners seem to think it did, petitioners should have served their pretrial interrogatory in a more timely fashion. Finally, as we discussed, there was evidence that under defendant’s document retention policy the batch cards that were found later would normally have been destroyed. This record, as a whole, demonstrates that petitioners’ evidence of Valspar’s alleged fraudulent concealment regarding its use of raw materials was far from clear and convincing.

Petitioners’ second category of withheld evidence addresses laboratory analyses of Valspar’s waste. Once again, petitioners do not tell us, and we cannot find, where they asked for this specific information. In fact, we are not certain of the identity of the analyses they claim were concealed. In their reply brief petitioners state that a 1971 laboratory analysis for mercury “rebuts respondent’s denial of waste analysis.” Petitioners cite to a 109-page exhibit but not to an exact page of either the exhibit or the record. Nevertheless, we have examined the cited exhibit and find that it contains a series of mercury analysis reports which were prepared for Valspar between April 1971 and July 1972.

The record reflects that Valspar had the analyses done in response to a recently enacted EPA regulation on the amount of mercury allowable in the waters of Illinois. The regulation pertained to both water received (tap water) and water discharged. In Valspar’s case the primary concern was the amount of mercury in the effluent Valspar was discharging to the municipal sewer system. Hence, most of the reports concern the mercury in either the tap water or the effluent from the Valspar facility. It is evident from the record that Valspar considered the waste produced from its manufacturing process and placed in drums for disposal to be something separate and apart from its effluent. Thus, petitioners rely on analyses whose relevance is, at best, uncertain. We suspect this might be another example of misunderstanding and failure to communicate rather than concealment. It may also explain Valspar’s failure to produce the reports when asked only for information on disposition of waste. Besides, as will be discussed below, although they were aware at the time of the 1980 trial that Valspar had petitioned for a variance from the mercury regulation in 1971, petitioners did not pursue discovery of Valspar’s documentation regarding either the petition or the variance that was granted. Such a request may have produced the laboratory analyses allegedly concealed by Valspar.

Aside from the reports just discussed, in their 1979 interrogatory petitioners asked Valspar about the chemical content of its waste material between 1966 and 1972. Valspar’s answer, while far from comprehensive, did reveal that the company’s waste material probably contained mercury, lead, zinc, and polymerized phenols. Valspar also related in broad terms the type of waste it disposed of in drums. Petitioners did not follow up with interrogatories directed at specific wastes, not even the mercury or phenols which they suspected as the cause of their injuries. We recognize that petitioners now claim their case in Johnson was not limited to only a few of the chemicals ultimately identified. However, it is clear from our opinion in Johnson that heavy metal and phenol pollution were at issue there. Various tests, including tests of petitioners’ well water, were cited primarily for their results as to heavy metals and phenols, and the medical experts testified only as to levels of lead, mercury, and phenols found in members of the Johnson family. Thus, while petitioners claim they were denied lab analyses, they nevertheless received information regarding Valspar’s waste materials which was significant to their cause. It was up to them to ask more specific questions.

In their third category petitioners cite Valspar’s failure to produce material safety data sheets. These sheets provided information on the contents of each of Valspar’s products, along with health-hazard data and safety precautions and procedures to be followed relative to each product. These are the sheets which were discovered by petitioners’ counsel in 1989 during a search of Valspar’s storage areas. While petitioners did not request material safety data sheets by name, they claim the information on the sheets was relevant to their inquiries about the hazardous nature of Valspar’s raw materials, and the sheets, therefore, should have been produced. However, we have already mentioned that the sheets were found in an unexpected location and, as far as we can tell, were in one, isolated volume. Moreover, we have compared the ingredients listed as hazardous in the material safety data sheets to the chemicals purchased by Valspar, as reported in response to petitioners’ 1979 interrogatory. The vast majority of the material safety data sheets chemicals are also included in Val-spar’s answers. This is not clear evidence that Valspar deliberately withheld the sheets from petitioners.

Petitioners next claim that Valspar concealed records concerning an investigation of its waste disposal activities at Franklin Grove, Illinois. Not only is there no showing of a request from petitioners for such records, but it is not at all clear any such records existed prior to the 1980 trial. In their reply brief petitioners urge that later discovered information regarding Franklin Grove demonstrated that Val-spar knew about the disposition of waste at the Franklin Grove site prior to 1980 but concealed that knowledge. We fail to see the connection between this argument and petitioners’ allegations of fraudulent concealment. The evidence they claim was withheld consisted of “records concerning the investigation of the defendant Valspar at Franklin Grove, Illinois,” not Valspar’s knowledge that its waste materials may have been taken there at some time. Furthermore, although one Val-spar employee said he “might have” visited the site in 1979, there is virtually no evidence that any records concerning Franklin Grove were in fact generated before the 1980 trial.

The next item on petitioners’ list of allegedly concealed evidence relates to investigations concerning the dumping of toxic waste into the Rock River in 1970 and 1971. Although petitioners claim that information about this incident would have helped them to demonstrate what wastes were produced by Valspar during the relevant time period, they never specifically requested such information. Moreover, petitioners challenged the exclusion of this same evidence from the 1980 trial. In Johnson we determined that the trial court had not erred in excluding evidence of the purported occurrence, in part because it was irrelevant to Valspar’s storage of barrels on Tipton’s property. (See Johnson, 103 Ill. App. 3d at 298.) That determination as to relevance is now the law of the case and not open to reconsideration. (See Hamilton v. Williams (1992), 237 Ill. App. 3d 765, 773-74.) In our view the trial court could reasonably have concluded that the failure to produce evidence later determined to be irrelevant did not constitute a clear and convincing showing of fraudulent concealment. This is particularly so in light of petitioners’ very broad and nonspecific requests for information.

Petitioners’ next two categories refer to the disposition of waste containing mercury and the use and disposal of mercury-containing organic compounds. These are two more areas where petitioners did not ask for specific information but insist the information should have been forthcoming pursuant to their very general discovery requests. As we see it, petitioners received enough information to prompt further inquiries on their part. In their 1979 interrogatories petitioners asked if defendant kept records of disposition of waste. Valspar responded — cavalierly in our opinion — that, “Some records kept — what records do you want?” In answer to another interrogatory in the same set, Valspar indicated that its waste likely contained mercury. The trial court strongly suggested to petitioners that their 1979 motion to compel discovery, which was overly broad, would be honored if they were to ask about specific chemicals. Instead of pursuing the potential for more information specifically about the disposal of mercury in any form, almost a year later petitioners served a notice to produce which made another broad request for materials “relating to *** the disposal practices of Valspar of any and all waste products [generated between 1966 and 1972].” Petitioners cannot now characterize their failure to focus their discovery requests as Valspar’s fraudulent concealment.

Petitioners specifically complain that Valspar concealed the petition it had filed with the State EPA in 1971. The petition sought a variance from the EPA mercury regulation, as mentioned earlier, and assertedly contained information about the mercury in Valspar’s waste and the disposal of that waste. However, at the time petitioners were seeking such information, the petition itself was available as a public document through the EPA. With the exercise of ordinary diligence, petitioners could have discovered it. Absent such diligence, the trial court was justified in concluding the petition had not been fraudulently concealed. See In re Application of County Treasurer (1977), 51 Ill. App. 3d 697, 702; County Board of School Trustees of Du Page County ex rel. Hinsdale Township High School District No. 86 v. Association of Franciscan Fathers (1977), 49 Ill. App. 3d 686, 696-97.

The conclusion we reach on this particular matter is particularly compelling since there was apparently nothing secret about the fact that Valspar had filed a petition for a variance. Valspar has included in the appendix to its brief a copy of an article from a Rockford newspaper, dated June 17, 1971, which discusses Valspar’s petition in some detail. Valspar cites only to the Johnson record, rather than the record on appeal, for the location of the article. However, even though they directly address the petition for variance in their reply brief, insisting that it should have been produced, petitioners do not dispute that the petition had been made a matter of public knowledge through the 1971 newspaper article. We note, too, that in Johnson petitioners apparently sought to introduce this article into evidence. (See Johnson, 103 Ill. App. 3d at 297-98.) Under the circumstances the trial court could have been well persuaded that petitioners knew about the petition and could have found it themselves through inquiries at the EPA. They also could have, but did not, request Valspar to produce, specifically, any documentation or other information it had pertinent to this particular petition for variance.

Finally, petitioners assert that Valspar deliberately withheld various Federal and State EPA records concerning toxic chemicals used by Valspar. Once again, petitioners never asked specifically for EPA records prior to the 1980 trial, even though it appears they had become aware of various interactions between Valspar and the EPA before 1980. Like the petition discussed above, these records were public documents, available to petitioners through the EPA. In fact, petitioners ultimately did secure directly from the EPA some of the materials they sought. It is not altogether clear that Valspar had all the relevant documents in its possession at the time of trial but, even if we assume it did, since such records were public documents we cannot say they were fraudulently concealed by Valspar. We note, too, that we have carefully examined the EPA documentation later produced and have evaluated that documentation in light of the requests made by petitioners prior to the 1980 trial. In our view many of those requests were not reasonably calculated to produce the information petitioners now claim was wrongfully withheld. Hence, petitioners’ evidence of fraudulent concealment once again fell below the clear and convincing standard.

The record of this case, viewed in its entirety, is supportive of the conclusion ultimately reached by the court below. The court could have determined that petitioners did not produce clear and convincing evidence that Valspar fraudulently concealed relevant materials they sought to discover. Absent fraudulent concealment, the petitioners’ cause was time barred under section 2 — 1401. It follows that the trial court’s denial of the petitioners’ motion to reinstate was not an abuse of discretion.

For the foregoing reasons the order of the circuit court of Winnebago County is affirmed.

Affirmed.

QUETSCH and COLWELL, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM HORTON, Defendant-Appellant.
    Second District
    No. 2—91—1247
    Opinion filed November 5, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

This case is before us for the second time. Initially, after a stipulated bench trial, defendant, William Horton, was convicted of the armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2(a) (now 720 ILCS 5/18—2(a) (West 1992))) and the aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(1) (now codified, as amended, at 720 ILCS 5/12 — 4(b)(1) (West 1992))) of John Marzolo. (Defendant was convicted of other charges which are not germane to this appeal.) This court affirmed the aforementioned convictions. (People v. Horton (1990), 193 Ill. App. 3d 695.) As relevant here, we held that (1) defendant’s stipulated bench trial was not tantamount to a guilty plea because defendant preserved a defense and, thus, the trial court did not commit reversible error in failing to admonish defendant pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402); and (2) defendant was not deprived of the effective assistance of trial counsel.

On appeal from this court, the supreme court held that defendant was entitled to Rule 402 admonishments because his trial counsel formally stipulated that the evidence was sufficient to convict defendant. (People v. Horton (1991), 143 Ill. 2d 11, 22.) As the court held defendant was entitled to a new trial, it did not consider whether he had received the effective assistance of counsel. Horton, 143 Ill. 2d at 22-23.

On remand, defendant moved pro se for the appointment of counsel other than the public defender, alleging that his trial attorney, who had represented him at the first trial, was unsatisfactory. The trial court denied the motion. Defendant received a bench trial, after which the trial court again convicted him of aggravated battery and armed robbery. Defendant received concurrent prison sentences of 15 years for armed robbery and 3 years for aggravated battery. He timely appealed.

On appeal, defendant argues that: (1) the trial court abused its discretion in refusing his motion for new counsel; and (2) his conviction of aggravated battery must be reversed because it was based on the same act as his conviction of armed robbery. We find no merit in either contention, and we affirm.

We summarize the trial testimony. The State first called Michael Cadman, who worked as a jailer for the Du Page County sheriff’s office in 1987. Cadman’s duties at that time included the processing of inmates, and he was trained in taking fingerprints. Cadman identified People’s exhibit No. 5 as a card containing defendant’s fingerprints and a notation giving defendant’s jail intake number. Cadman testified that he took the prints. He identified defendant in court and also identified People’s exhibit No. 6 as a photograph of defendant that another jail officer had taken in the regular course of business.

The victim, John Marzolo, a cab driver, testified that, at about 1:45 a.m. on July 16, 1987, he was alone in his cab at the Elmhurst passenger train station. Two black men, one of whom Marzolo identified in court as defendant, approached the driver’s side of the cab. Defendant asked about the cost of a ride; when Marzolo replied, defendant opened the driver’s door. Marzolo saw that defendant was pointing a revolver at him.

When Marzolo asked “if it’s for real,” defendant started hitting him on the head with the butt of the gun. Defendant hit Marzolo about 10 to 12 times; Marzolo started to bleed profusely. While defendant was still hitting Marzolo, defendant’s confederate (identified at the first trial as Charles Nunnery) entered the cab from the passenger side, removed the keys from the ignition, pulled the wiring from the radio, and rummaged through Marzolo’s belongings. After a short time, defendant, who was still holding the gun, said “get the money.” After a struggle, during at least part of which defendant continued to hit Marzolo with the gun, Nunnery managed to remove a billfold from Marzolo’s pocket. Defendant and Nunnery fled.

On September 21, 1987, Marzolo viewed a police photographic lineup and identified defendant as the gunman.

Doug Rumick, an evidence technician with the Elmhurst police department, testified that, on July 16, 1987, he processed Marzolo’s cab for evidence, including fingerprints. He collected five fingerprints from various parts of the car. These prints were admitted as evidence at trial. Paul T. Sahs, a fingerprint identification expert with the Du Page County sheriff’s office, testified that he examined these five latent fingerprints. A comparison with the prints on People’s exhibit No. 5 satisfied Sahs that one of the latent prints from the cab was defendant’s.

The trial judge found defendant guilty of armed robbery and aggravated battery. After the court denied defendant’s motion for a new trial, defendant appealed.

Defendant argues first that the trial court abused its discretion in denying his request for new counsel. Although he acknowledges that a trial court ordinarily has the discretion to deny a motion for the substitution of counsel, defendant argues that he was entitled to new counsel because his trial counsel was the same attorney who represented him at the first trial. Defendant reasons that the supreme court’s opinion implicitly held that trial counsel was ineffective because, in essence, he pleaded defendant guilty without obtaining Rule 402 admonishments. Defendant asserts that because he received the ineffective assistance of counsel at his first trial, it follows that he is entitled to have new counsel represent him on retrial.

We believe defendant’s argument is fatally flawed in two respects. First, the argument rests on a faulty premise. Defendant assumes that, because his conviction was reversed by the supreme court, the court found that counsel was ineffective at the first trial. However, nothing in the supreme court’s opinion allows such a conclusion. The court specifically declined to reach the issue of counsel’s effectiveness; the court reversed because the trial court erred in failing to provide Rule 402 admonishments. There is nothing in either the supreme court’s opinion or the previous opinion of this court that suggests that trial counsel was constitutionally ineffective.

Second, assuming arguendo that the supreme court's opinion implied that trial counsel rendered ineffective assistance at the first trial, it simply does not follow that there was a conflict of interest (or inherently ineffective representation) in having the same attorney represent defendant at the second trial. Defendant simply fails to explain why counsel’s mistakes at the first trial made counsel unfit to represent defendant at the second trial. There is no reason for such a presumption, particularly where, as here, the error involved was in an area of law that was complex and unsettled at best, as the opinion of the supreme court amply demonstrates.

Although defendant may well have been dissatisfied with being represented by the same attorney who represented him at the first trial, such personal dissatisfaction is insufficient either to establish a conflict of interest or to prove that the trial court abused its discretion in denying the request for new counsel. People v. Carter (1985), 132 Ill. App. 3d 523, 527.

Defendant has not demonstrated that the trial court abused its discretion in denying his motion for new counsel.

Defendant’s second argument on appeal is that his convictions of both aggravated battery and armed robbery violate the principle that two convictions may not be carved out of the same act. (See People v. King (1977), 66 Ill. 2d 551.) Defendant asserts that the continuous beatings to Marzolo were a single act on which both convictions depended. We disagree.

Although two criminal offenses may not be carved out of the same act, separate acts that are closely related may support convictions of more than one offense. (King, 66 Ill. 2d at 566.) Several appellate opinions have upheld convictions of both aggravated battery and armed robbery even though there was only one victim and the acts that formed the basis of both convictions were closely intertwined and occurred in rapid succession. (People v. Cobern (1992), 236 Ill. App. 3d 300; People v. Higgins (1979), 71 Ill. App. 3d 912, 932; People v. Olmos (1978), 67 Ill. App. 3d 281, 299.) In each case, one or more of the beatings sustained a conviction of aggravated battery while further attacks or the use of a weapon during the robbery supported a separate conviction of armed robbery.

Here, any one of the numerous blows to Marzolo sufficed to convict defendant of aggravated battery. The robbery combined with either the further blows or defendant’s continued display of the gun sufficed for a separate conviction of armed robbery.

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

Affirmed.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE QUETSCH

text:
    JOSEPH S. PASKARNIS, JR., Plaintiff-Appellant, v. DARIEN-WOODRIDGE FIRE PROTECTION DISTRICT et al., Defendants-Appellees.
    Second District
    No. 2—92—1120
    Opinion filed November 5, 1993.
    Stanley H. Jakala, of Berwyn, for appellant.
    Justin J. Tedrowe, of Woodridge, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

The plaintiff, Joseph Paskarnis, Jr., was discharged from his job as fire chief of the Darien-Woodridge Fire Protection District (defendant). The plaintiff filed a two-count second amended complaint in the circuit court of Du Page County, alleging the tort of retaliatory discharge in count II. The defendants filed a motion to dismiss count II for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure. (735 ILCS 5/2 — 615 (West 1992).) The trial court granted defendants’ motion and dismissed count II of the plaintiff’s second amended complaint with prejudice. This appeal followed. For the reasons that follow, we reverse.

The plaintiff alleged in count II of his second amended complaint that he was hired as fire chief of the Darien-Woodridge Fire Protection District on October 13, 1986. On September 14, 1990, he approved 12-hour shifts, commencing from 6 p.m. and concluding at 6 a.m., for full-time and part-time fire fighters. On November 7, 1990, defendant Don Boland, the trustee for the Darien-Woodridge Fire Protection District, appointed a part-time fire fighter to schedule the part-timers for work. He scheduled two shifts for the part-time fire fighters, one from 6 p.m. to 10 p.m., and the next shift from 10 p.m. to 6 a.m. The changing of the shifts resulted in no training for part-time fire fighters, and the plaintiff spoke out against their resulting lack of preparedness. On November 7, 1990, and February 15, 1991, the defendants provided the plaintiff with a list of 12 “deficiencies.” On March 13, 1991, the plaintiff was fired from his job as fire chief. The plaintiff complains that he was discharged for speaking out against the lack of preparedness of the part-time fire fighters.

The plaintiff contends that count II of his second amended complaint alleged sufficient facts to plead a cause of action sounding in retaliatory discharge. When reviewing the dismissal of a complaint for failure to state a cause of action, all well-pleaded facts and inferences drawn therefrom are accepted as true. (Eisenbach v. Esformes (1991), 221 Ill. App. 3d 440.) A reviewing court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 162.) A complaint should not be dismissed unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the pleader to relief. (People v. Sequoia Books, Inc. (1986), 149 Ill. App. 3d 383, 386.) Pleadings are to be liberally construed with a view to doing substantial justice between the parties. 735ILCS 5/2-603 (West 1992).

The tort of retaliatory discharge is a limited and narrow cause of action recognized as an exception to the general rule that an “at-will” employee is terminable at any time for any reason or no reason. (Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 505.) To establish a cause of action in retaliatory discharge, the plaintiff must show that he was discharged in retaliation for his activities and that the discharge was in contravention of a clearly mandated public policy. (Fellhauer, 142 Ill. 2d at 505.) A clearly mandated public policy “concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. [Citation.] Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, *** a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130.

In Illinois, retaliatory discharge actions have been allowed in two settings: (1) when an employee is discharged for filing a claim under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 1992)); and (2) when an employee is discharged for reporting illegal or improper conduct. (Layne v. Builders Plumbing Supply Co. (1991), 210 Ill. App. 3d 966, 974.) The only other situation recognized by an Illinois court as giving rise to a claim of retaliatory discharge is when an employee was discharged after refusing to work with a radioactive machine while its operation was being conducted in violation of regulations promulgated by the Nuclear Regulatory Commission and published in the Federal Register. Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502.

In this case, the plaintiff alleged in count II of his second amended complaint that he was discharged in retaliation for speaking out against the defendants’ improper conduct of not training part-time fire fighters. Section 1 of the Illinois Fire Protection Training Act provides:

“It is declared as a matter of legislative determination that in order to promote and protect the health, safety and welfare of the public, it is necessary and in the public interest to provide for the encouraging and aiding of municipalities, counties and other local governmental agencies of this State in their efforts to raise the level of local fire protection by upgrading and maintaining a high level of training for fire protection personnel.” 50 ILCS 740/1 (West 1992).

Thus, section 1 of the Illinois Fire Protection Training Act clearly establishes that the public policy of this State is to maintain a high level of training for its fire protection personnel. “Fire protection personnel” is defined as “any person engaged in fire administration, fire prevention, fire suppression, fire education and arson investigation, including any permanently employed, trainee or volunteer fire fighter, whether or not such person, trainee or volunteer is compensated for all or any fraction of his time.” 50 ILCS 740/ 2(e) (West 1992).

The discharge of the plaintiff for speaking out against the lack of training of part-time fire fighters would contravene the clearly mandated public policy of upgrading and maintaining a high level of training for fire protection personnel. Thus, count II of the plaintiff’s second amended complaint alleges facts which, if proven, would entitle him to relief for the tort of retaliatory discharge. The trial court therefore erred in granting the defendants’ section 2— 615 motion to dismiss count II of the plaintiff’s second amended complaint with prejudice.

We recognize that our supreme court has not strongly supported the expansion of the tort. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525.) However, our holding is consistent with other cases in which an employee has been discharged for reporting illegal or improper conduct. See Shores v. Senior Manor Nursing Center, Inc. (1988), 164 Ill. App. 3d 503 (cause of action allowed when employee/ nurse’s assistant was discharged after reporting to administrator that the full-time nurse, a licensed practical nurse, was not performing her duties properly); Witt v. Forest Hospital, Inc. (1983), 115 Ill. App. 3d 481 (cause of action allowed when employee/nurse was discharged for providing information to the Guardianship and Advocacy Commission about patient care at the employer/hospital).

Although count II of the plaintiff’s second amended complaint is not as artfully drawn as it might have been, and contains surplus-age which we disregard, it does state a cause of action for retaliatory discharge.

For the foregoing reasons, the trial court’s order dismissing with prejudice count II of the plaintiff’s second amended complaint for failure to state a cause of action is reversed, and the cause is remanded.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEGGY L. VEASEY, Defendant-Appellant.
    Second District
    No. 2—91—0332
    Opinion filed November 2, 1993.
    G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Brian L. Buzard and Mark K. Vincent, both of Mt. Morris (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Peggy L. Veasey, was convicted of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17-3(a)(1) (now 720 ILCS 5/17-3(a)(1) (West 1992))) and theft over $300 by deception (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(b)(1) (now codified, as amended, at 720 ILCS 5/16— 1(a)(2)(A) (West 1992))) following a jury trial in the circuit court of Du Page County. Defendant filed a timely appeal from her theft conviction questioning whether there was sufficient evidence to prove, beyond a reasonable doubt, that she had an intent to permanently deprive the owner of possession of the subject property. Defendant also argues that victims assistance fines were improperly imposed against her by the circuit clerk.

The relevant facts are briefly summarized as follows. On June 12, 1986, Terrance M. Brady, then president of Market Lease, Inc. (Market Lease), received a telephone call from a person purporting to be Dolores Winfield. The caller was interested in a 48-month lease for a Chevy Cavalier. Brady eventually took various credit information from the caller including the caller’s name, address, date of birth, driver’s license number, social security number, and several credit card numbers. Brady compiled a credit application with this information which he telefaxed to GMAC Corp. (GMAC) for approval. Brady testified that credit information is traced through an individual’s social security number. The caller’s credit application was ultimately approved by GMAC.

Brady testified that on June 17, 1986, defendant and an unidentified male came into his offices. Defendant identified herself as Dolores Winfield and stated that she was there to pick up her vehicle. Brady testified that he explained the lease agreement and all its terms and conditions to defendant; they went outside and looked at the vehicle; they then finalized the lease agreement, license application, and insurance validation form; they signed the contract; and Brady gave defendant the vehicle’s keys and owners manual. Brady stated that defendant signed both the lease agreement and insurance validation form, and she drove the vehicle away after the transaction was completed. The forms were signed “Delores R. Winfield.” The lease agreement indicated that the first month’s payment ($231.56), a refundable security deposit ($250), and various fees (totaling $50) were due upon signing of the lease. No testimony was presented concerning whether these sums were paid on June 17, or, assuming they were, who paid them or the manner in which they were paid.

Dolores Bell Winfield identified the social security number and two of the credit card numbers appearing on the credit application as her own. Winfield testified that she has never had contact with Market Lease, and she denied ever entering into any lease agreement for a Chevy motor vehicle on or about June 17, 1986. In fact, Winfield testified that she does not drive a car. Winfield stated that she gave no one permission to use her name, social security number, or credit rating. Winfield examined the signature appearing on the lease agreement and stated that it was not her signature.

James Boerema, an officer with the Homewood police department, testified that he executed a traffic stop of the subject vehicle at approximately 8:50 p.m. on June 19, 1986. The vehicle was being driven by a male subject with defendant as a passenger. The jury found defendant guilty of both forgery and theft of over $300 by deception.

Defendant argues on appeal that the evidence introduced at trial failed to show that she did not intend to fully comply with the terms of the lease agreement, including relinquishing possession of the vehicle at the end of the 48-month period, and, therefore, the State failed to prove that she had the requisite intent to permanently deprive the owner of the motor vehicle’s use or benefit. The State responds that an intent to permanently deprive may be inferred from the circumstances surrounding defendant’s actions. In particular, defendant represented herself to be another person to induce Market Lease to execute a lease for the subject vehicle in reliance on false credit information.

It is well established that the standard for reviewing the sufficiency of evidence supporting a criminal conviction is whether, after considering all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Smith (1992), 149 Ill. 2d 558, 565; People v. Hendricks (1990), 137 Ill. 2d 31, 62; People v. Grengler (1993), 247 Ill. App. 3d 1006, 1011-12.) This standard is applicable in criminal cases regardless of whether the evidence is direct or circumstantial. (People v. Campbell (1992), 146 Ill. 2d 363, 374; People v. Kaminski (1993), 246 Ill. App. 3d 77, 82.) A reviewing court must consider that the jury heard and saw the witnesses and was, therefore, in the best position to assess their credibility, determine the weight to be accorded their testimony, decide what inferences to draw from the evidence, and resolve any actual disputes arising from conflicting or inconsistent testimony. (Hendricks, 137 Ill. 2d at 65; People v. Reid (1990), 136 Ill. 2d 27, 61; Grengler, 247 Ill. App. 3d at 1012.) A reviewing court must not substitute its judgment for that of the trier of fact on those issues unless the evidence presented at trial is so unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Reid, 136 Ill. 2d at 61; Grengler, 247 Ill. App. 3d at 1012.

A defendant’s intent to permanently deprive the owner of property may be deduced by the trier of fact from the facts and circumstances surrounding the alleged criminal act. (People v. Falkner (1978), 61 Ill. App. 3d 84, 87; People v. McClinton (1972), 4 Ill. App. 3d 253, 256.) “With respect to many criminal acts, the act clearly ‘speaks for itself.’ The act so clearly broadcasts the intent with which it was performed that the question of intent either becomes inconsequential or the proof of it is so directly related to proof of the act that the evidence is regarded as direct even though technically it might be ‘circumstantial.’ ” (People v. Reans (1974), 20 Ill. App. 3d 1005, 1009.) For example, it has been generally recognized that an intent to permanently deprive the owner of his property may ordinarily be inferred when a person takes the property of another. (Falkner, 61 Ill. App. 3d at 90; People v. Steinmann (1978), 57 Ill. App. 3d 887, 892.) This is particularly true when the owner of the property is a stranger to the accused. (See People v. Jones (1992), 149 Ill. 2d 288, 298, quoting People v. Beck (1976), 42 Ill. App. 3d 923, 924 (“ ‘It would be contrary to experience and reason to conclude a stranger would *** take money from another stranger without fully intending to permanently deprive the wronged party of the money’ ”).) Concealment of property has also been recognized as a circumstance supporting an inference of an intent to permanently deprive. (See McClinton, 4 Ill. App. 3d at 256.) Fraudulent or deceptive acts can also give rise to an inference of such intent. See People v. Varellas (1985), 138 Ill. App. 3d 820, 826-27 (uttering or offering of a forged instrument in conjunction with use of fictitious driver’s license provided strong evidence supporting finding of requisite intent for charges of forgery and theft by deception); Reans, 20 Ill. App. 3d at 1008 (knowingly tendering check without funds on deposit would, in and of itself, support inference of existence of felonious intent).

In People v. Jones (1972), 4 Ill. App. 3d 927, defendant wrote a bank counter check for $10 in a friend’s name. The friend had a savings account, but no checking account, at the subject bank. Defendant signed both her name and that of her friend to the check, and she also wrote her address and driver’s license number on the check. The appellate court again determined that the record supported defendant’s conviction of theft by deception. Jones, 4 Ill. App. 3d at 928.

Also, in People v. Neary (1969), 109 Ill. App. 2d 302 (abstract of opinion), the appellate court held that there was sufficient evidence to support defendant’s conviction of the charge of theft by deception where a store manager had received a telephone order for rental of a fur, and, two days later, defendant, acting under another name and by means of a false driver’s license and social security card, succeeded in obtaining such fur on the pretext he was acting on behalf of the person who purportedly made the telephone call. Neary, 109 Ill. App. 2d at 302-03.

Defendant concedes that the State established that she obtained control over the subject vehicle through deception. It is clear and undisputed that defendant drove away with the subject vehicle after having perpetrated an intentional fraud upon Market Lease. Also, when defendant concealed her true identity and credit history by providing a false name and credit information, she effectively concealed the vehicle from the owner. Defendant’s argument that she might have made regular payments under the lease agreement and might have returned the car at the end of its term ignores the fact that, in light of her fraud in obtaining the lease, the agreement was voidable, and defendant may not be heard to assert that she acquired any rights under the agreement. It is also noted that defendant was in violation of the lease agreement’s terms from its inception. Paragraph 2 of the lease agreement required the lessor to maintain insurance on the subject vehicle; however, defendant obtained and executed an insurance validation form under the same false pretenses as the lease agreement, including the forgery of Dolores Winfield’s signature. Although one might infer, as defendant urges, that this is merely a case of fraudulent leasing, it was also reasonable to infer that this was a case involving an outright, though cleverly perpetrated, theft.

In obtaining the subject vehicle by fraud, defendant stands in the same position as one who obtains property in exchange for a forged instrument or other deception. We see no reason to distinguish her case merely because the fraud involved the leasing of property rather than its purchase under a credit agreement. Such a distinction would operate to reward defendant for her decision to choose this particular device for her deception. Defendant’s conduct, as demonstrated by the facts and circumstances of this case, provided a sufficient basis from which the jury might reasonably infer the requisite felonious intent. The issue, therefore, was properly left for the jury to determine based upon the evidence presented. The fact that a deposit may have been made at the time of delivery of the vehicle, as the lease terms imply, does not prevent a finding of felonious intent. The amount deposited was less than one-twentieth of both the total value of the lease and the cost of the vehicle, as indicated in the lease agreement and credit application. Rather, it was a fact for the jury to weigh together with the other evidence presented. Schemes of fraud and deception frequently involve token acts toward performance of the agreement, but such acts will not always preclude a finding that there was an intent to permanently deprive. (See People v. Riner (1992), 234 Ill. App. 3d 733, 737.) We cannot say that the evidence presented was so unreasonable, improbable, or unsatisfactory that the jury could not find the requisite intent.

Concerning defendant’s assertion that victims assistance fines were improperly imposed against her by the circuit clerk rather than the trial court, the State has confessed error and requested that the case be remanded to the trial court with directions that the appropriate mandatory fine be imposed. (See Ill. Rev. Stat. 1985, ch. 70, par. 510 (now codified, as amended, at 725 ILCS 240/10 (West 1992)).) We agree, pursuant to our decision in People v. Turner (1993), 249 Ill. App. 3d 474, 483, that the fines were improperly imposed, and we vacate that portion of defendant’s sentences involving the victims assistance fines and remand to the trial court for imposition of the appropriate mandatory fines.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed, and the cause is remanded.

Affirmed in part and remanded in part with directions.

INGLIS, P.J., and COLWELL, J., concur.


text:
    OLYMPIC RESTAURANT CORPORATION, Plaintiff, v. BANK OF WHEATON et al., Defendants (Jack H. Wager et al., Third-Party Plaintiffs-Appellees; Chris Broches et al., Third-Party Defendants-Appellants).
    Second District
    No. 2—93—0140
    Opinion filed October 29, 1993.

      Timothy S. Buckley and Samuel G. Kramer, both of DeFrees & Fiske, of Chicago, for appellants.
    W. Randal Baudin, of McCuaig, Haeger, Bolz, McCarty & Baudin, of West Dundee, for appellees.
    Konstandenos S. Bazianos, of Skoubis, Tarnaris & Skoubis, P.C., of Rolling Meadows, for Olympic Restaurant Corporation.
   JUSTICE McLAREN

delivered the opinion of the court:

The third-party defendant-appellant, Chris Broches, appeals from a grant of summary judgment by the circuit court of Du Page County in favor of the third-party plaintiffs-appellees, Jack H. and Sharon E. Wager, which rendered null and void a contract for the sale to Broches of the Wagers’ home and other land in West Chicago. We affirm.

Under a contract dated October 25, 1991, Broches agreed to buy the Wagers’ West Chicago home for $125,000. The contract, a printed form supplied by the Wagers’ real estate agent, also contained a handwritten option under which Broches obtained the right to purchase additional lots from the Wagers for $75,000. The contract provided that Broches would pay earnest money of $2,500 for the home on or before November 8, 1991. Broches also agreed to pay $1,000 per month for four months for the option to purchase the additional lots. Broches never paid or tendered any money to the Wagers.

The printed portion of the contract contained an attorney review clause, which became the focus of the present dispute between the parties. That clause provided:

“14. Attorneys Review: The parties agree that their respective attorneys may review and make modifications, other than stated purchase price, mutually acceptable to the parties, within ten (10) business days after the date of the Contract acceptance. If the parties do not agree and written notice thereof is given to the other party within the time specified, then this Contract will become null and void, and all monies paid by the Purchaser will be refunded. IN THE ABSENCE OF WRITTEN NOTICE WITHIN THE TIME SPECIFIED HEREIN, THIS PROVISION WILL BE DEEMED WAIVED BY ALL PARTIES HERETO AND THIS CONTRACT WILL BE IN FULL FORCE AND EFFECT.”

The 10-day review period expired on Friday, November 8, 1991. On October 30, 1991, the Wagers entered into a contract with Olympic Restaurant Corporation to sell the same home and lots as named in the Broches contract to Olympic Restaurant for a total of $220,000. On November 7, 1991, the attorney for the Wagers sent a letter to Broches and his lawyer which contained the following:

“Pursuant to paragraph 14 of said contract, please be advised that I do not approve said contract.
Thus I have enclosed herein my modifications and/or changes to the contract:
* * *
If the above meets with your approval, kindly sign a copy of this letter and return it to the undersigned.”

The same day, Broches’ attorney, after apparently having received the above-quoted letter, sent a letter in response to the Wagers and their attorney, which included the following:

“Pursuant to the terms of Paragraph 14, Attorney’s Review, please be advised that the following modifications should be made to the Contract:
* * *
With regard to Seller’s attorney approval letter dated November 7, 1991, I disagree with the following modifications and or changes.
* * *
If the above modifications and changes as provided are acceptable, please acknowledge the same below and return to my office.”

Neither side accepted the other’s modifications. The only other correspondence presented in the record was a letter from the Wagers’ attorney to Broches dated November 11, 1991, three days after the 10-day review period had expired, which included the following:

“My clients advise that they do not wish to accept your counter offer [sic] of November 7, 1991, and thus have authorized the return of your earnest money deposit. They thus consider this matter to be closed.”

On November 26, 1991, Broches filed a copy of the original October 25 contract in the office of the Du Page recorder of deeds, which created a cloud on the title to the Wagers’ property that blocked them from closing their sale with Olympic. On January 17, 1992, Olympic filed suit against the Wagers seeking specific performance of its contract with them.

On March 2, 1992, the Wagers filed a third-party complaint against Broches seeking to quiet title. The complaint sought a declaration that the October 25 contract with Broches was null and void and asked that Broches’ recordation of the contract be invalidated. On May 6, 1992, the Wagers filed a motion for judgment on the pleadings against Broches. The motion was denied on June 19, 1992, when the trial court determined that uncertainty as to the meaning of the attorney review clause constituted a question of fact that required introduction of the evidence.

The Wagers then received leave to file an amended complaint. On September 4, 1992, they filed a motion for summary judgment, again seeking nullification of the Broches contract. The Wagers submitted affidavits in support of their motion which established that Broches had never paid any of the earnest money. Broches did not contest this claim, nor did he file any affidavits or depositions. Broches filed a memorandum of law arguing that his failure to pay earnest money did not constitute lack of consideration in support of the contract. He maintained that the promise to pay earnest money, not the actual payment, was the true consideration. Broches also argued that the meaning of the attorney review clause was ambiguous and required a trial to clarify.

After a hearing on September 14, 1992, the trial court granted summary judgment for the Wagers, finding that the November 7, 1991, letters between the attorneys for Broches and Wagers constituted counteroffers, neither of which was ever accepted by the other party. Thus, the court ruled the October 25 agreement was not binding because there was no valid offer and acceptance. The court also declared that the failure to pay earnest money was relevant only as an indication that Broches considered the contract to be nonbinding.

On December 30, 1992, the trial court denied Broches’ motion for reconsideration following a hearing. This appeal followed. Broches raises two claims on appeal: (1) that the trial court erred in granting summary judgment because there was a genuine issue of material fact pending; and (2) the court erred in concluding that the contract in question was terminated by the parties pursuant to the attorney review clause.

On appeal of a trial court’s grant of summary judgment, we have de novo review. (Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 683.) Summary judgment should not be granted unless “the right of the moving party is clear and free from doubt.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; see also Palomar v. Metropolitan Sanitary District (1992), 225 Ill. App. 3d 182, 188.) “ ‘Summary judgment is properly granted when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ ” (Wright, 229 Ill. App. 3d at 682, quoting Gardner v. Navistar International Transportation Corp. (1991), 213 Ill. App. 3d 242, 246; Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c) (now 735 ILCS 5/2—1005(c) (West 1992)).) Evidence in support of the motion must be strictly construed against the moving party. Siegel v. Levy Organization Development Co. (1991), 219 Ill. App. 3d 579, 585.

In contract cases, a genuine issue of material fact exists when a key element of a contract contains an ambiguity requiring the admission of extrinsic evidence. (Village of Glenview v. Northfield Woods Water & Utility Co. (1991), 216 Ill. App. 3d 40, 49.) In such cases, granting summary judgment is improper. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272.) Conversely, if the intent of the parties can be determined from the plain language of the contract, no genuine issue of material fact exists. (Glenview, 216 Ill. App. 3d at 49.) In such cases, summary proceedings are appropriate. Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 554.

Whether an ambiguity exists is a question of law for the court to decide. (Elliott v. L R S L Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 730; Newcastle Properties, Inc. v. Shalowitz (1991), 221 Ill. App. 3d 716, 722.) In making this determination, the trial court may draw inferences from undisputed facts. (Wright, 229 Ill. App. 3d at 683.) However, if reasonable persons could draw different inferences from the undisputed facts, the issue should proceed to trial and not be decided by summary proceedings. Glenview, 216 Ill. App. 3d at 47.

In granting summary judgment for the Wagers, the trial court declared that the “clear implication” of the attorney review clause was “that within the stated time, the attorneys for the parties may make modifications and that if those modifications are not agreed within the specific time, then the contract becomes null and void.” The court found clear, unambiguous language in the November 7 letters between the parties’ attorneys invoking the attorney review clause and clear expressions that the original contract was not acceptable to either side. Thus, the court concluded that the letters were counteroffers which, as a matter of law, nullified the October 25 agreement. We agree.

Both November 7 letters clearly referred to the attorney review clause and stated that the terms of the contract as originally entered into were not acceptable. Both proposed modifications required the other party to agree in order to render the agreement binding. Thus, under long-settled contract principles, the letters amounted to counteroffers, which operated as rejections of the original agreement and proposals for new agreements. See Loeb v. Gray (1985), 131 Ill. App. 3d 793, 799 (“An acceptance requesting modification or containing terms that vary from those offered constitutes a rejection of the original offer and becomes a counterproposal that must be accepted by the original offeror before a valid contract is formed”).

In their briefs, the parties disagreed as to the meaning of the attorney review clause and the effect of the November 7 writings, but such disagreements alone do not mean that the clause is ambiguous and that its meaning must be determined in an evidentiary hearing. (Newcastle, 221 Ill. App. 3d at 722-23, citing Hickox v. Bell (1990), 195 Ill. App. 3d 976, 990.) Indeed it would be anomalous for parties in a dispute over the effect of a certain contract provision to agree as to its meaning. There would be no reason to seek the court’s intervention.

The construction of an attorney review clause was discussed by the Appellate Court, Third District, in the case of Anand v. Marple (1988), 167 Ill. App. 3d 918. Although the wording of the attorney review clause in Ananá differs from the clause at issue here, the logic and ruling of Ananá are instructive. The appellate court in Ananá affirmed the trial court’s grant of summary judgment in favor of the owner of a farm who sought nullification of a contract for sale of the farm. In declaring the contract void, the trial court construed a handwritten attorney approval clause which was so sloppily written that the court could not decipher the clause’s most important word. The word was included in the following sentence: “This offer is subject to seller’s (indecipherable word).” (Emphasis in original.) (Anand, 167 Ill. App. 3d at 919.) The defendant-owner of the farm contended the final word was “attorney.” The plaintiff claimed the word was definitely not “attorney” but suggested no alternative word.

The appellate court also was unable to discern what the final word was but found that “the parties’ use of the ‘subject to’ language in the document unambiguously indicates that the document was subject to some unknown, illegible, and indecipherable condition subsequent.” (Anand, 167 Ill. App. 3d at 921.) That was sufficient, the appellate court found, to conclude that the document “fell short of a binding or enforceable contract.” (Anand, 167 Ill. App. 3d at 921.) In the present matter there was no uncertainty that the parties’ attorneys had the right to review the contract.

Broches cites R.S. & V. Co. v. Atlas Van Lines, Inc. (7th Cir. 1990), 917 F.2d 348, for the proposition that when a party declares it will not renew a contract unless it is modified, the declaration does not break the agreement but is only an invitation to negotiation. This accurately reflects language of the case, but it does not support Broches’ position in the present matter. In Atlas Van Lines, the parties had a long-standing contract that was undoubtedly in full force and effect when one of the parties sent the other notice that he would not renew their contract upon expiration unless certain concessions were made. In the present matter the issue is whether a binding agreement ever existed.

Another case cited by Broches is close factually to the present matter and instructive. In Indoe v. Dwyer (1980), 176 N.J. Super. 594, 424 A.2d 456, the seller of a home claimed that the buyer breached their contract by invoking an attorney review clause to reject the agreement without stating a reason. The court held that while the review clause must be invoked in good faith, it is not necessary for a party to state a reason when rejecting a contract pursuant to a review clause because the attorney’s right to disapprove is a proper exercise of his or her judgment. (Indoe, 176 N.J. Super. at 601, 424 A.2d at 460.) In making its ruling, the court in Indoe declared:

“The purpose of such an attorney approval clause is to provide the purchaser or seller with the opportunity of obtaining legal advice with respect to the transaction, and its value lies in the fact that the contract may be canceled upon receiving such advice. Parties to a real estate transaction are entitled to the benefit of the judgment of a trusted counselor, and an approval contingency is designed to accord this right to those who, for some reason, enter into a purchase and sale agreement before reviewing the matter with their attorney [sic].” Indoe, 176 N.J. Super. at 601, 424 A.2d at 460.

We believe this is sound logic and should apply in the present matter. The only reason to have an attorney review clause is to give the parties to a contract, who may not be sophisticated in matters relating to real estate and/or contracts, a chance to have their attorneys scrutinize the offer before final acceptance. In the present matter, if there was no way for the parties to get out of the October 25 contract during the review period, the review clause was meaningless and the attorney review process was a pointless exercise.

It is true, as Broches suggests in his brief, that the Wagers’ actions in signing a contract with Olympic while their agreement with him was pending raised a question of bad faith on the part of the Wagers. However, the trial court properly dealt with this matter. In arriving at its ruling on the motion to reconsider, the trial court decided to ignore the November 7 letter written by the Wagers’ attorney because it may have been tainted by a bad-faith attempt to get out of the Broches contract in favor of the more lucrative Olympic agreement. The court concluded, and we agree, that the November 7 letter written by Broches’ attorney was by itself a rejection of the original contract and a counteroffer. Thus, regardless of the Wagers’ apparent bad faith, Broches disapproved the October 25 agreement and made a counteroffer that was never accepted.

Broches’ letter of November 7 states clearly that the original deal is not acceptable and requests significant changes, including a proposal to consolidate into one sales contract the purchase of the Wagers’ home and the option for the additional parcels of land. Broches’ letter also proposed increasing the amount to be financed under the agreement to include financing for the parcels of land. This was not part of the original agreement, which called for financing only of the Wagers’ home. The handwritten option on the October 25 contract detailed no financing arrangements.

The attorney review clause could have been drafted with greater clarity, but the key language provided that “[i]f the parties do not agree and written notice thereof is given *** then this Contract is null and void.” What that phrase does not make clear is what the parties may not “agree” to. If the phrase means “if the parties do not agree to the contract,” then clearly either side has the right to void the deal by giving written notice. If the phrase means “if the parties do not agree to modifications,” however, the result is the same on these facts. The parties clearly did not agree to modifications, and there was written notice of that in the November 7, 1991, letters from the parties’ attorneys.

The review clause does not spell out formalities for the required written notice. However, the November 7 letters by both attorneys were obviously writings, both were signed, both were sent within the 10-day approval period, and Broches’ letter even acknowledged receipt of the Wagers’ modifications. Thus, the letters were sufficient, in the absence of specific requirements, to provide written notice of disagreement.

The trial court also found that Broches’ failure to pay or tender any earnest money bolstered the claim that the November 7 letters were counteroffers. We agree. When seeking to determine the intent of the parties to a contract, courts may look to the acts or conduct of the parties. (Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 183.) In the present matter, Broches’ actions were those of a person who did not believe he had a binding contract. He never paid any earnest money. He did not, according to the record submitted, respond to or challenge the letter from the Wagers’ attorney dated November 11 stating that the Wagers considered the contract void. Broches filed no claims or actions against the Wagers. The only affirmative act by Broches that would indicate he considered the October 25 contract valid was his recordation on November 26, 1991, of the contract.

Broches also suggests in his brief that the trial court’s grant of summary judgment was inappropriate because it was granted on exactly the same evidence as was presented to the court when it denied an earlier motion for judgment on the pleadings. This argument misstates the facts.

To begin with, a trial court has the power to review any of its own orders until final adjudication, absent a statutory prohibition. (James C. Wilborn & Sons, Inc. v. Heniff (1965), 56 Ill. App. 2d 217, 223.) In the present matter, the trial court’s ruling denying judgment on the pleadings was not a final order, and no statute bars its review by the trial court. Additionally, the trial court did not, as Broches suggests, base its decision in granting summary judgment on exactly the same evidence it considered earlier. Affidavits not before the court for the judgment on the pleadings motion were presented for the summary judgment motions. Those affidavits, offered by the Wagers, demonstrated that Broches had paid no earnest money, and this supported the court’s finding that Broches considered the October 25 contract void.

Although the nonmoving party in a summary judgment motion is not required to prove his case, he must nonetheless present a factual basis which would arguably entitle him to a judgment. (Lutz v. Goodlife Entertainment, Inc. (1990), 208 Ill. App. 3d 565, 568.) “If a party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely on his pleadings alone to raise issues of material fact.” (Purtill, 111 Ill. 2d at 240-41.) The Illinois summary judgments statute provides that the party opposing such a motion may “prior to or at the time of the hearing on the motion file counteraffidavits. The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c) (now 735 ILCS 5/2-1005(c) (West 1992)).

In the present matter, Broches made no attempt, other than through argument and submission of a memorandum of law, to demonstrate that any issue of material fact existed that required a trial. Broches’ attack on the motion for summary judgment consisted of his contentions that an ambiguity existed in the attorney review clause and that his failure to pay earnest money did not result in failure of consideration. As we noted above, the trial court correctly decided as a matter of law that there was no ambiguity. Because the trial court properly determined that the original agreement was void for lack of a proper offer and acceptance, it is not necessary to consider Broches’ argument as to consideration.

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

Affirmed.

DOYLE and QUETSCH, JJ., concur.