author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRON GORDON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—0535
    Opinion filed March 30, 1990.
    Modified on denial of rehearing June 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Mary Schultz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Darron Gordon, and Johnny Green were convicted in a joint bench trial for the murder and armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 9—1, 18—2) of Cornell Lane. We affirmed Green’s separate appeal on December 9,1988.

We reverse defendant Gordon’s convictions and remand the matter for a new trial because we determine that his pretrial motion to quash arrest and to suppress evidence should have been granted.

As we have previously set forth facts surrounding the robbery and murder of Lane in People v. Green (1988), 177 Ill. App. 3d 365, 532 N.E.2d 897, we limit the following summary to testimony adduced during the pretrial hearing on defendant’s motion.

Defendant testified that on October 19, 1983, he was at the apartment of his aunt, Ella Mae Stewart, at 4352 South State Street in Chicago. Stewart, Alvin Burnside, and two of defendant’s cousins were also present. At approximately 10:30 p.m., defendant stated, three or four plainclothes police officers were admitted into the apartment. Defendant stated the officers asked him his name and then told him he was under arrest. One of the officers explained the police wanted to talk to him at the police station. Defendant testified he indicated to the officers he did not want to go to the police station and would talk to them in the apartment. Defendant testified Stewart also argued with the officers about the need to take him to the police station.

Defendant stated he was initially handcuffed, but the handcuffs were temporarily removed to permit him to dress. After dressing, he was again handcuffed.

On cross-examination, defendant stated he had learned from a cousin that the police had been to the apartment earlier looking for Green. Defendant admitted that he drank half of a pint of gin with Burnside that evening.

Ella Mae Stewart testified she witnessed the officers handcuff defendant. When asked why they were handcuffing defendant, the officers indicated to her that it was normal procedure and that defendant was wanted for questioning. Stewart stated she protested and asked why the officers could not question him in the apartment. She stated the officers indicated they could not do so.

Detective Robert McGuire testified that at approximately 4:30 p.m. on October 16, 1983, he and Thomas Tansey, his partner, conferred with Detectives James O’Leary and James Redmond regarding the investigation of the shooting. O’Leary and Redmond informed them of the following facts: the victim’s relatives learned Green was involved in the shooting and indicated Green resided in an apartment at 4352 South State Street; the detectives learned, from Stewart, that Green did not live there; and the detectives learned, from Green’s mother, that Green lived with her at 6653 South Wood Street, but “came and went as he pleased.”

McGuire and Tansey thereafter reviewed Green’s arrest record and discovered defendant had previously been arrested with Green. Defendant’s address was listed as the apartment at 4352 South State Street. McGuire stated he and Tansey proceeded to that address, arriving at approximately 11:30 p.m. or 12 a.m. McGuire testified the purpose for going to the apartment was to interview defendant “to see if he could lead us to the whereabouts of Johnny Green.”

At the apartment, McGuire stated, he and Tansey spoke to defendant and Burnside. Defendant stated he did not know where Green was and stated he knew nothing about the shooting. McGuire testified the detectives then asked both defendant and Burnside if they would agree to accompany the detectives to the police station for a “further interview.” Both agreed. McGuire testified neither defendant nor Burnside was handcuffed or was told that he was under arrest.

McGuire stated defendant was taken to an interview room at the police station (Area 1). There, McGuire testified, defendant was asked the same two questions put to him at the apartment. Defendant reiterated he did not know where Green was and knew nothing of the shooting. However, McGuire stated, defendant did then recall seeing Green on the night of the incident. McGuire stated defendant recalled Green had visited the apartment and asked if defendant wanted to accompany Green on a stick up, but he had declined. At that point, McGuire testified, he informed defendant of his Miranda rights. In response to further questioning, defendant told the detectives he did not know where Green was, but that he had seen Green earlier and had informed Green that the police were looking for him.

McGuire stated defendant was asked, and consented, to take a polygraph examination the following day. McGuire testified he noticed defendant had been drinking and told defendant he would have to be sober for the examination. McGuire stated defendant indicated he would spend the night at Area 1 to insure his sobriety. McGuire testified defendant was not handcuffed or manacled and was free to go if he wished to leave. Finally, McGuire acknowledged Burnside had left Area 1 that night or early morning.

During cross-examination, McGuire testified that, at the time defendant and the police left the apartment, he did not know when defendant would return. McGuire reiterated defendant was taken to the police station to learn the whereabouts of Green because defendant was Green’s acquaintance. McGuire stated the police station provided a better climate for conducting an interview. McGuire acknowledged the interview room was small. McGuire also acknowledged defendant did not have the benefit of communicating with anyone and was not allowed to make a telephone call. Defendant’s interview lasted from approximately 12 to 12:45 a.m. Defendant was provided with chairs to sleep on in the interview room.

Thomas Tansey, McGuire’s partner, testified defendant was asked at the apartment to accompany the detectives to Area 1 because defendant appeared “apprehensive” in speaking in the presence of his aunt and Burnside. Tansey characterized defendant’s manner as evasive and untruthful. Tansey admitted, however, the detectives made no attempt to speak privately with the defendant in the apartment. Defendant was transported to Area 1 in a squad car. Tansey stated defendant was not handcuffed at that time, was not handcuffed or manacled at Area 1, and the door to the interview room was left unlocked while defendant was there. Tansey admitted .that when defendant was initially interviewed at Area 1, the detectives had no information connecting defendant with Lane’s murder.

Defendant James O’Leary testified that when he returned to work at Area 1 on October 20, 1983, he and James Redmond, his partner, learned Gordon was asleep in the interview room and had agreed to take a polygraph examination. O’Leary testified he drove defendant to the polygraph examiner’s office. Only he and defendant were in the car. On the way, O’Leary stated, defendant indicated the examination was unnecessary, implicated himself in the shooting, and stated he would tell “all about it.” O’Leary testified he advised defendant of his rights. O’Leary and defendant returned to Area 1. O’Leary stated he spoke with defendant at approximately 1:15 p.m. and again advised defendant of his rights.

On cross-examination, O’Leary stated the purpose of asking defendant to take a polygraph examination was to see if defendant was being truthful about his knowledge of Green’s whereabouts. During the drive to the polygraph examiner’s office, defendant sat in the back seat of the squad car. He was not handcuffed, but the doors were locked. Defendant was handcuffed later, after admitting involvement in the crime. O’Leary admitted the sum total of information relayed to Detectives McGuire and Tansey on October 19, 1983, was that Lane’s relatives had informed police that a resident in the area of the shooting had witnessed the incident. However, that individual did not indicate the name of the shooter.

Former Assistant State’s Attorney Thomas DiCianni testified that on October 20, 1983, he spoke to Detectives O’Leary and Redmond at Area 1 regarding the case. At approximately 5:30 p.m., DiCianni advised defendant of his rights and spoke with defendant for approximately 45 minutes. At approximately 8:07 p.m. that evening, DiCianni spoke with defendant again with a court reporter present. Defendant’s statement was subsequently reduced to writing, and, after reading over the statement with DiCianni, defendant signed it.

Defendant’s statement recounted his participation in the incident and disclosed information necessary to recover the weapon used.

Opinion

In Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, the Supreme Court held that detaining an individual for purposes of a custodial interrogation which exceeds the limited investigatory stop held valid in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, intrudes so severely on interests protected by the fourth amendment that traditional safeguards against illegal arrest are triggered. (Dunaway, 442 U.S. at 216-17, 60 L. Ed. 2d at 838, 99 S. Ct. at 2258.) Thus, regardless of the label used to characterize the detainment, where a defendant is subjected to such an interrogation without probable cause, a violation of the fourth amendment’s protection against unreasonable searches and seizures, including seizure of the individual (see Dunaway, 442 U.S. at 207, 60 L. Ed. 2d at 832, 99 S. Ct. at 2253), occurs. Evidence obtained as a result must be suppressed absent demonstration that there were sufficient intervening circumstances which purged the taint of the illegal arrest. See Dunaway, 442 U.S. at 216, 60 L. Ed. 2d at 838, 99 S. Ct. at 2258-59.

In determining whether such a detainment has occurred, we have noted:

“The test to be applied *** is whether a reasonable innocent man would have concluded that he was not free to leave when confronted with the circumstances confronting this defendant. [Citation.] The test is not a subjective one, and therefore it is irrelevant whether the defendant believed he was under arrest [citation] or whether the police intended to detain the defendant against his will[,] unless that intent was conveyed to the defendant [citation], *** [W]here there are significant indicia of coercion, a court will not find controlling the fact that a defendant was merely asked if he would accompany police [citations] or that he was not told he was under arrest or made to undergo booking procedures [citation].” (People v. Holveck (1988), 171 Ill. App. 3d 38, 47, 524 N.E.2d 1073, 1080.)

Indicia of coercion may include: the time and place of confrontation by police; the number of police officers present; the presence or absence of the individual’s friends or family; the presence of steps involved in a formal arrest procedure, including physical restraint, show of weapons or force, booking or fingerprinting; and the manner in which the individual got to the place of interrogation. People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635.

Even viewing only the testimony of the police officers in the instant case and considering that testimony as true, we conclude that defendant’s detention at Area 1 constituted an illegal “seizure” of his person.

McGuire and Tansey went to defendant’s aunt’s apartment in the late evening of October 19, 1983, or early morning of October 20, 1983, ostensibly to determine the whereabouts of Green. The record indicates the detectives believed defendant might be helpful in locating Green because defendant was an acquaintance, as substantiated by the fact that defendant had previously been arrested with Green. However, McGuire and Tansey knew before they went to defendant’s aunt’s apartment that Green lived with his mother at a different address. Once at the apartment, the officers did not limit their visit to brief questioning but, unsatisfied with defendant’s reply that he did not know where Green was and knew nothing of the shooting, asked defendant to accompany them to the police station.

The record indicates the police believed defendant was “apprehensive” in speaking with them in the presence of his aunt and Burnside. However, defendant did not' of his own accord, suggest he come down to the police station at that late hour to aid in the investigation of the crime. No attempt was made to speak with defendant privately in the apartment. Further, when defendant left with the police, the police had no idea when defendant would return.

Defendant was transported to Area 1 by the police.

At Area, 1, defendant was put into a small interview room. He was not permitted to make a telephone call or to communicate with anyone. Defendant’s “further interview” initially consisted of asking defendant the same two questions defendant answered negatively at the apartment. When defendant recalled seeing Green on the day of the incident, he was immediately informed of his Miranda rights.

Defendant was then asked to take a polygraph examination. The record indicates that defendant agreed to spend the night at Area 1 to insure that he was sober for the examination. Again, neither idea originated with defendant. Although only one detective drove defendant to the polygraph examiner’s office, defendant sat in the back seat of a locked squad car.

By the time defendant was taken by the police to the polygraph examiner’s office on October 20, 1983, defendant had been at Area 1 for some 12 hours. At no time was defendant told that he was not under arrest.

After reviewing the record and considering cases in this State cited in defendant’s brief in which similar fourth amendment challenges have been successfully sustained (see, e.g., People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, 438 N.E.2d 222; People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046; People v. McMahon (1980), 83 Ill. App. 3d 137, 403 N.E.2d 781; People v. Dowdell (1980), 81 Ill. App. 3d 266, 401 N.E.2d 295), we conclude the detention and interrogation of defendant by the police required probable cause, which the State all but concedes did not exist until defendant implicated himself in the crime. Moreover, we believe the record fairly reveals the police conduct in this case to contain the “quality of purposefulness” denounced by the United States Supreme Court in Dunaway. (Dunaway, 442 U.S. at 218, 60 L. Ed. 2d at 839, 99 S. Ct. at 2259; see also People v. Townes (1982), 91 Ill. 2d 32, 36, 435 N.E.2d 103, 105.) Here, at the last hour of night, police officers went to where defendant lived ostensibly to learn Green’s whereabouts even though they had learned from Green’s mother where Green lived. Admittedly, the police sought to question defendant solely because he had been arrested with Green in the past. We do not suggest that decision was, in the abstract, indicative of improper purpose. Obviously, at one time, Green was an acquaintance of defendant. However, it is material that, unsatisfied with defendant’s responses, the police requested his presence, at that hour of night, at a police station, acknowledging in explanation at trial that the small interview room there provided a better environment in which to question defendant. That acknowledgment is telling. We have no difficulty postulating it would be police, not defendant, who would find such locale more accommodating their designs.

Once in the interview room, the officers merely asked defendant the same questions put to him at the apartment. When, at last, he gave an inconsistent answer, he was asked to take a polygraph examination to verify his truthfulness. Even ignoring the absurd notion that an individual would rather sleep in the interview room of a police station than at home in his own bed to insure his sobriety for an examination he was under no legal obligation to submit to, we believe the record belies the contention defendant was not, at least by that time, considered a possible suspect. At a minimum, the record indicates an effort to compel defendant to disclose information the police believed he was privy to about Green which defendant was, for one reason or another, unwilling to share. In either case, we find the conduct of the police toward defendant in conflict with the protections afforded him by the fourth amendment.

We are not oblivious to circumstances confronting police in their effort to solve crimes and catch those responsible or the obligation a society imposes on its members to assist in their effort. Over such concerns, however, we must endeavor to insure the precious safeguards contained in the fourth amendment against legally unjustified police “seizures” are scrupulously honored in every case where such issues are presented, fearing that relaxation in seemingly exceptional cases weakens the protections afforded to all.

Last, we find no intervening circumstances in the record sufficient to purge the taint of the illegality of defendant’s detention to otherwise provide a basis for the admission against him at trial of either his statement or the weapon recovered as a result.

We therefore reverse defendant’s convictions and remand for a new trial.

Reversed and remanded.

COCCIA, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI PRESIDING JUSTICE McMORROW,

license: Public Domain

text:
    LOYOLA ACADEMY, Plaintiff-Appellant, v. S&S ROOF MAINTENANCE, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—2525
    Opinion filed May 3, 1990.
    Modified on denial of rehearing June 28, 1990.

      McMORROW, P.J., dissenting.
    Galliani & Doell, Ltd., of Chicago (William R. Galliani and Patrick F. Healy, of counsel), for appellant.
    Raymond A. Boldt, of Mundelein, for appellee S&S Roof Maintenance, Inc.
    Peterson, Ross, Schloerb & Seidel, of Chicago (Terry M. Cosgrove and Stephen M. Hoke, of counsel), for appellee Kelly Energy Systems, Inc.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court granted summary judgment in favor of the defendant. The plaintiff subsequently sought to amend its pleadings. The trial court denied the plaintiff’s motion. This appeal questions the power and discretion of the trial court to deny the motion to amend.

The plaintiff, Loyola Academy, filed a three-count complaint against the defendants, S&S Roof Maintenance, Inc., and Kelly Energy Systems, Inc., seeking recovery for damages incurred to its roof. In count I, directed against S&S, Loyola alleged various acts of negligence related to S&S’s installation of Loyola’s roofing system. In count II, also directed against S&S, Loyola alleged S&S’s breach of an implied warranty of merchantability. In count III, directed against Kelly, the manufacturer of the roof, Loyola alleged breach of an express warranty. The trial court granted summary judgment in favor of the defendants on counts II and III. Loyola moved for a reconsideration of the summary judgment order. The court denied the motion. S&S then filed a motion to dismiss count I, the sole remaining count. At the hearing on S&S’s motion, Loyola made an oral motion for leave to file an amended complaint. The court, with prejudice, granted S&S’s motion to dismiss, and without prejudice, denied Loyola leave to amend. Thereafter, Loyola filed a written motion for leave to amend. In the proposed amended complaint, Loyola alleged that defendant Kelly had breached an implied warranty of merchantability and violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.). Loyola further alleged against both defendants Kelly and S&S breach of an implied warranty of fitness for a particular purpose and breach of contract. The trial court denied Loyola’s motion for leave to amend the complaint.

In appealing the trial court’s denial of leave to amend, Loyola maintains that under section 2—1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g)), the trial court is explicitly granted the power upon just and reasonable terms to permit amendments after summary judgment. Loyola asserts that the trial court’s denial of its leave to amend was an abuse of discretion. Section 2—1005(g) of the Code, effective September 14,1985, provides:

“Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g).

The defendants’ response to Loyola’s argument is that the standard for amending complaints after any final judgment is enunciated in section 2—616(c) of the Code of Civil Procedure, which states:

“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(c).)

Based on section 2—616(c), the defendants conclude that after summary judgment has been entered pleadings may be amended only to conform the pleadings to the proofs. In support of their argument the defendants cite Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 525 N.E.2d 1127. In Wells, the court reasoned that when taken together, sections 2—616(c) and 2—1005(g) stand for the proposition “that before or after a grant of summary judgment, but before the summary judgment becomes final, the court shall permit pleadings to be amended upon just and reasonable terms.” (Wells, 171 Ill. App. 3d at 1020, 525 N.E.2d at 1132.) The court went on to conclude that, after final judgment, the only permissible amendments are those which conform the pleadings to the proofs pursuant to section 2—616(c).

Our analysis diverges from that of the Wells court. The Code of Civil Procedure is to be liberally construed “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1985, ch. 110, par 1—106.) Standing alone, section 2—616(c) limits amendments to pleadings after final judgment to those that conform to the proofs. In the present case, the summary judgment had already been entered when Loyola made a motion to amend the pleadings. Nevertheless, we do not believe that Loyola is limited to amendments that conform the pleadings to the proofs. We believe that the court’s discretionary power under section 2—1005(g) of the Code of Civil Procedure to permit amendments upon just and reasonable terms implicates the power of the court to vacate judgments under sections 2—1203 and 2—1301(e). (See Ill. Rev. Stat. 1985, ch. 110, pars. 2-1203, 2-1301(e).) It is within the court’s discretion to vacate a judgment when to do so promotes substantial justice between the parties. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 526 N.E.2d 664.) If the court in its discretion believes that under the just and reasonable standard of section 2—1005(g) an amendment to the pleadings is appropriate, the court, in the interest of substantial justice, should vacate the judgment and allow the amendment. In the present case the court had the discretionary power to vacate the summary judgment order, thus removing the section 2—616(c) final judgment impediment to Loyola’s section 2—1005(g) motion for leave to amend. See Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208.

Having established, contrary to the defendants’ argument, that the trial court did have the authority to grant Loyola’s motion for leave to amend, we turn now to examine whether the court properly exercised its discretion in denying Loyola’s motion. Both the defendants and the plaintiff in this case cite to the case of Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, for the factors the court should bear in mind in deciding whether to grant an amendment to the pleadings. In Kupianen, the appellate court considered whether the proposed amendment would cure the defective pleading, whether there had been previous opportunities to amend, the timeliness of the proposed amendment, and the potential prejudice or surprise to the other party. It is important to note, however, that in the Kupianen case, the movant appealed from the trial court’s denial of his motion to amend the pleadings after the court had dismissed his countercomplaint.

In the present case, we are dealing with the court’s denial of a motion to amend the pleadings after the court granted summary judgment. Different considerations are applicable depending upon the stage of the proceedings in which the movant first brings the proposed amendment. (See Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331.) The later in the proceedings the movant proposes the amendment, the more likely it is to prejudice the opposing party and burden the court. (See 3 R. Michael, Illinois Civil Practice §26.2 (1989).) We do not view motions to amend the pleadings after summary judgment with the same liberality that we view motions to amend after a dismissal order in the pleading stage. Upon reaching the summary judgment stage of the proceedings, the court has moved from an examination of the sufficiency of the pleadings, through the discovery stage, to a determination of whether there are material issues of fact to advance to a full trial. See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.

Presumptively, by the time of the hearing on the motion for summary judgment, the parties know everything to be known about the facts and the law of the case. The hearing on the motion is a significant, potentially dispositive stage of the proceeding. Entering this stage, the trial judge has a right and a need to know what the parties know. Accordingly, motions to amend pleadings based on information known to the movant before the hearing should be made before the court reaches the summary judgment stage. (Cf. Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 545 N.E.2d 689 (after motion for summary judgment has been granted, a new matter should not be allowed in the absence of a reasonable explanation of why it was not made available at the time of the original hearing).) It is not appropriate for the moving party to engage in piecemeal litigation — seeing one theory of the case to completion before proposing another. See Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763.

In the instant case Loyola proposes amendments of potentially significant impact to the case. The facts Loyola alleges in the amended complaint were known at the inception of this litigation. The trial court noted that Loyola could have filed its amended complaint before the court granted summary judgment on counts I and II, or contemporaneously with Loyola’s motion for reconsideration of the summary judgment. Loyola offered no justification for its lack of alacrity, and the trial court was within its discretion when it denied Loyola’s motion to amend the pleadings.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE McMORROW,

dissenting:

I respectfully dissent. Although the majority ostensibly recognizes the plaintiff’s right to amend following summary judgment pursuant to section 2—1005(g) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(g)), the majority then eviscerates this right by imposing unprecedented and needlessly restrictive limitations on the circumstances in which the plaintiff’s right to amend will be permitted. The majority creates a broad rule that “motions to amend pleadings based on information known to the movant before the hearing should be made before the court reaches the summary judgment stage.” (Emphasis added.) (Loyola, 198 Ill. App. 3d at 803.) The majority then determines that the trial court properly denied plaintiff’s request to amend following summary judgment because the “facts [plaintiff] alleges in the amended complaint were known at the inception of th[e] litigation” and the plaintiff “offered no justification for its lack of alacrity.” (Loyola, 198 Ill. App. 3d at 804.) In so doing, the majority ignores the admonition of the Code of Civil Procedure that its provisions “shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” Ill. Rev. Stat. 1987, ch. 110, par. 1—106.

The majority’s ruling is contrary to Illinois precedent regarding requests to amend following summary judgment (see Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728; Ruff v. Northwestern Memorial Hospital (1987), 159 Ill. App. 3d 811, 513 N.E.2d 7, relying upon Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377, 437 N.E.2d 774; see also Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963), and fails to accomplish substantial justice. Application of the standard already established in Illinois jurisprudence reveals that the trial court should have allowed plaintiff’s motion for leave to file an amended complaint.

Siebert v. Continental Oil Co. (1987), 161 Ill. App. 3d 891, 515 N.E.2d 728, and Ruff v. Northwestern Memorial Hospital (1987), 159 Ill. App. 3d 811, 513 N.E.2d 7, are virtually identical to the instant cause and show that the trial court in the case at bar abused its discretion when it denied plaintiff leave to file an amended complaint. In both Siebert and Ruff, the trial court entered summary judgment in favor of the defendants and denied plaintiffs’ motions for leave to amend. On appeal, the courts determined that the motions for leave to amend should have been allowed despite the plaintiffs’ previous opportunities to amend their complaints.

To reach this conclusion, the courts in Siebert and Ruff noted that section 2—1005 of the Illinois Code of Civil Procedure provides in pertinent part: “Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g).) The courts observed that, according to the Historical and Practice Notes, this provision in section 2—1005 “ ‘reaffirms the power of the court to permit amendments to pleadings at any time, as mandated by section 2—616(a) of the Civil Practice Law, notwithstanding a party’s invocation of the summary judgment procedure and notwithstanding the success of that invocation.’ ” (Emphasis in Ruff.) Ruff, 159 Ill. App. 3d at 817-18, quoting Ill. Ann. Stat., ch. 110, par. 2—1005, Historical and Practice Notes, at 21 (Smith-Hurd Supp. 1987); see also Siebert, 161 Ill. App. 3d at 895.

Having determined that the trial court possessed the authority to vacate summary judgment and permit the plaintiffs’ amendment to their complaint, the court in Siebert turned to a detailed analysis of “what standards the court ‘shall’ use in arriving at its decision as to whether or not the amendment should be permitted.” (Siebert, 161 Ill. App. 3d at 895.) Relying upon Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377, 437 N.E.2d 774, the Siebert court concluded that the relevant factors are: “ ‘whether the proposed amendment would cure the defective pleading [citation]; whether other parties would sustain prejudice or surprise by virtue of the proposed amendment [citations]; the timeliness of the proposed amendment [citation]; and whether previous opportunities to amend the pleadings could be identified. [Citation.]’ ” (Siebert, 161 Ill. App. 3d at 895.) Applying these factors to the case before it, the court in Siebert found that the plaintiff should have been allowed to file an amended complaint:

“In the case at bar, the amendment would cure the defective pleading ***. ***
The next two elements in the test were addressed by this court in Kupianen in a statement which is applicable to the case at bar: ‘No prejudice or surprise could have resulted to the other parties since the case was still at the pleading stage. The proposed amendment was presented to the trial court at the time the motion to vacate was heard.’ [Citation.] The court in Kupianen, having decided the first three components of the analysis in favor of allowing amendment of the counterclaim, did not apply the final factor when reaching its conclusion that the attempted amendment to the counterclaim should have been permitted. We adopt the same approach. Despite the plaintiff’s having had previous opportunities in the case sub judice to amend the complaint, the only just and reasonable approach now is to allow the plaintiff to amend the complaint.” Siebert, 161 Ill. App. 3d at 896.

Siebert, Ruff, and Kupianen are dispositive of the case at bar. As in each of those cases, the proposed amended complaint in the instant cause contained different legal theories than those alleged in plaintiff’s original pleadings. Plaintiff’s proposed amendments were also sufficient to overcome the defects in its original complaint. The record shows that plaintiff promptly sought leave to amend at the court’s last hearing with respect to the merits of plaintiff’s initial complaint. The record also indicates that plaintiff had not previously sought leave to amend, and that plaintiff filed its motion for leave to amend upon the trial court’s express allowance.

Permitting the motion to amend would not be unfairly prejudicial to defendants, who have remained actively involved in the litigation since its inception. The court in Siebert reasoned: “ ‘No prejudice or surprise could have resulted to the other parties since the case was still at the pleading stage. The proposed amendment was presented to the trial court at the time the motion to vacate was heard.’ ” (Siebert, 161 Ill. App. 3d at 896, quoting Kupianen, 107 Ill. App. 3d at 377.) The case at bar was also at the pleading stage and, as in Siebert, “[n]o prejudice or surprise could have resulted to the other parties.” (Siebert, 161 Ill. App. 3d at 896.) Also, in the case at bar, as in Siebert and Kupianen, “[d]espite the plaintiff’s having had previous opportunities in the case sub judice to amend the complaint, the only just and reasonable approach now is to allow the plaintiff to amend the complaint.” (Siebert, 161 Ill. App. 3d at 896.) Based upon Siebert, Ruff, and Kupianen, and in order to do substantial justice between the parties, the trial court should have allowed plaintiff leave to file an amended complaint.

The majority refuses to apply the Kupianen factors to the case at bar on the theory that Kupianen is distinguishable because it pertained to a request to amend following dismissal with prejudice. In place of the Kupianen factors, the majority creates a new, broad rule that “motions to amend pleadings based on information known to the movant before the hearing should be made before the court reaches the summary judgment stage.” (Emphasis added.) (Loyola, 198 Ill. App. 3d at 803.) On this basis, the majority determines that the trial court properly denied plaintiff’s request to amend following summary judgment because the “facts [plaintiff] alleges in the amended complaint were known at the inception of th[e] litigation” and the plaintiff “offered no justification for its lack of alacrity.” (Loyola, 198 Ill. App. 3d at 804.) Thus, the majority relies exclusively upon the factor which the court in Siebert, Ruff, and Kupianen found least significant and readily excused, i.e., whether the plaintiff had prior opportunities to amend the complaint.

I find neither logic nor wisdom in the majority’s ruling. Contrary to the majority’s statement that different considerations are applicable depending upon the stage of the proceedings in which the plaintiff first requests to amend its complaint (Loyola, 198 Ill. App. 3d at 803), Illinois courts have applied the factors of Kupianen to motions for leave to amend filed following dismissal with prejudice and those filed after the entry of summary judgment. See, e.g., Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963; Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208.

In addition, there is no sound reason to apply one standard when the motion to amend is filed following dismissal with prejudice, and apply a substantially different standard when the motion to amend is made following summary judgment. Both dismissal with prejudice and summary judgment are, in the words of the majority, “significant, potentially dispositive stage[s] of the proceeding^].” (Loyola, 198 Ill. App. 3d at 803.) At each of these points in the litigation, the parties are obligated to know the facts and the law supporting their positions, and to so inform the court. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—611; 134 Ill. 2d R. 137 (sanctions for failure to make reasonable inquiry into facts and law supporting legal position).) The stage at which the motion to amend is presented is a factor with respect to whether the nonmovant will be unfairly prejudiced by the amendment. Irrespective of whether plaintiff’s request to amend has been filed after dismissal with prejudice or after summary judgment, “ ‘[n]o prejudice or surprise could *** result[ ] to the other parties since the case was still at the pleading stage[,] [provided] [t]he proposed amendment was presented to the trial court at the time the motion to vacate was heard.’ ” (Siebert, 161 Ill. App. 3d at 896, quoting Kupianen, 107 Ill. App. 3d at 377.) As noted above, the parties in the case at bar were still at the pleading stage when plaintiff presented its request to file an amended complaint alleging, not new facts, but different legal theories. The parties have acknowledged that little, if any, discovery was taken prior to the court’s ruling on the defendants’ summary judgment motions. The prejudice to plaintiff is apparent in the court’s refusal to allow plaintiff to file its first amended complaint, but I fail to discern how defendant would be prejudiced by the allowance of the motion to file plaintiff’s first amended complaint, particularly since the parties were still before the court with arguments relating to the pleadings.

The cases upon which the majority relies do not support its determination that the plaintiff was properly denied leave to amend because the “facts [plaintiff] alleges in the amended complaint were known at the inception of th[e] litigation” and plaintiff “offered no justification for its lack of alacrity.” (Loyola, 198 Ill. App. 3d at 804.) In Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605, the Illinois Supreme Court disapproved of hybrid motions that seek both dismissal with prejudice and summary judgment. The supreme court cautioned that the trial court judge should dispose of a motion to dismiss before the court entertains the motion for summary judgment. The Janes decision is not relevant to the issues raised in the instant cause.

The majority also relies upon Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331. In Able, the plaintiff requested leave to amend pleadings during the course of trial. The appellate court reasoned that plaintiff’s “amendments ought to be allowed when not to do so will prejudice the plaintiff and when to do so will not prejudice the defendant.” (8 Ill. App. 3d at 563.) The Able court’s reasoning depended primarily upon a balancing of the prejudice to both plaintiff and defendant in the event that amendment were allowed or denied. The majority fails to consider the prejudice to either the plaintiff or the defendants that will result if amendment were allowed or denied in the instant cause.

Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763, to which the majority also refers, involved a plaintiff’s attempt to amend his complaint after notice of appeal had been filed and the statute of limitations had expired. Consequently, Powers is inapplicable to the case at bar. The plaintiff in the instant cause did not request leave to amend the complaint after notice of appeal had been filed. Indeed, defendants in the case at bar never argued to the trial court that the motion for leave to amend should be denied on the ground that the amendment included a cause of action on which the statute of limitations had expired. Nor has the plaintiff in the instant cause litigated various theories of recovery “one after another, allowing each particular claim to proceed to final judgment before instituting the next one,” as did the plaintiff in Powers (52 Ill. App. 3d at 599).

For these reasons, I disagree with the majority’s refusal to apply the factors set forth in Kupianen and the majority’s determination that the trial court properly denied plaintiff leave to amend its complaint following summary judgment.


author: PRESIDING JUSTICE DiVITO

text:
      In re SALMONELLA LITIGATION
    First District (2nd Division)
    No. 1—88—0983
    Opinion filed May 8, 1990.
    Rehearing denied June 19, 1990.

      William J. Harte, Ltd., and Lawrence W. Leek & Associates, Ltd., both of Chicago (William J. Harte and Lawrence W. Leek, of counsel), for appellants.
    Skadden, Arps, Slate, Meagher & Flom and Phelan, Pope & John, Ltd., both of Chicago (Sheila L. Birnbaum, Gary E. Crawford, David E. Springer, James F. Martin, Richard J. Phelan, Richard A. Devine, Mary K. Rochford, and Sandra D. Oliszewicz, of counsel), for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

This is a consolidated class action suit brought by persons seeking damages due to the March 1985 outbreak of Salmonellosis traced to milk produced by defendant Jewel Companies, Inc., at its Hillfarm Dairy in Melrose Park, Illinois. Jewel Companies, Inc., and its owner, defendant American Stores, Inc. (collectively Jewel), conceded liability for compensatory damages under a theory of strict liability in tort. The issue of Jewel’s liability for punitive damages was then tried before a jury. After hearing evidence for nearly three months, the jury returned a verdict in favor of Jewel, finding specifically that Jewel had not engaged in willful and wanton conduct. Plaintiffs appealed, raising as issues (1) whether the jury verdict in favor of Jewel is against the manifest weight of the evidence and (2) whether the jury verdict must be overturned because of prejudicial and inflammatory remarks made during defense counsel’s closing argument. We affirm.

The evidence adduced at trial established that production of milk at the Hillfarm Dairy met or exceeded the requirements of the Grade A Pasteurized Milk and Milk Products Act (PMO) (Ill. Rev. Stat. 1987, ch. 56½, pars. 2201 through 2219), which sets forth standards for cleanliness and sanitization procedures. The Hillfarm Dairy used a “closed system” of stainless steel pipes to protect milk products from contamination. The Food and Drug Administration’s report on the 1985 Salmonella outbreak described the Hillfarm Dairy as “state of the art” and “one of the most modern and sophisticated in the United States.” Harold Waines, an expert in dairy bacteriology, dairy design, and food processing sanitation, testified that the Hillfarm Dairy was “one of the best plants in the United States.”

The Hillfarm Dairy produced “Hillfarm” and “Bluebrook” milk. Both brands were produced from the same “raw” milk under the same pasteurization process, but the Hillfarm brand contained added milk solids. Each brand was produced during different production “runs” and stored in different pasteurized storage tanks. The packaged milk was coded with a “pull date” of nine days after the date of production. Retailers were not permitted to sell milk after the pull date.

Raw milk entering the Hillfarm Dairy underwent “thermoduric” tests to determine whether it contained any organisms that could survive the pasteurization process, and “psychrotrophic” tests to determine whether it contained organisms that could grow at low temperatures. Milk that passed these initial tests was stored in stainless steel milk silos at low temperatures to retard the growth of bacteria. The milk then passed from the storage silos to the pasteurizers.

The pasteurization process at the Hillfarm Dairy consisted of heating “raw” milk to a high temperature, holding the milk at that temperature, and then cooling and storing the milk to retard the growth of any remaining bacteria. The process killed harmful bacteria, including the Salmonella bacterium and, specifically, Salmonella typhimirium, the Salmonella serotype involved in the 1985 outbreak. The pasteurization process at the Hillfarm Dairy heated the raw milk to temperatures exceeding the minimum required by law and cooled the milk to temperatures below the required maximum. The Hillfarm Dairy maintained pasteurization and storage temperature records which indicated that the pasteurization process was functioning properly during the production of milk that caused the 1985 Salmonella outbreak.

After pasteurization, the milk was stored in a pasteurized milk tank. Tests were performed on samples taken from the storage tank, including a test for the presence of coliform, a nonpathogenic organism. The coliform test was used in the dairy industry as a test for post-pasteurization contamination. The Illinois Department of Public Health (IDPH) considered the coliform test a reliable check for post-pasteurization contamination by Salmonella and other organisms. The PMO did not require testing for Salmonella, nor was such testing recommended by the IDPH or other regulatory agencies. The records at the Hillfarm Dairy showed normal testing results during the production of the milk that was linked to the Salmonella outbreak.

The Hillfarm Dairy operated five days per week. The dairy was “down” on Sundays and Tuesdays for maintenance purposes. At the end of each day’s production, the entire system of pipes, pasteurization tanks, and various valves was cleaned and sanitized with a “clean-in-place” system. This system pumped a hot water rinse solution, a wash solution containing iodine or chlorine, both of which kill Salmonella bacteria, and a final rinse solution through the entire system of pipes, tanks, and valves. The clean-in-place system records at the Hillfarm Dairy showed that the sanitization system was functioning properly during the production of milk that caused the 1985 Salmonella outbreak.

In August 1984, a higher than normal incidence of Salmonellosis cases was reported to the IDPH. The IDPH conducted a study and found that the reported illnesses were linked to persons who had shopped at Jewel. No specific product was implicated, just dairy products generally.

Jewel hired Silliker Laboratories, Inc. (Silliker), to investigate the source of the outbreak. Silliker tested product samples covering one week. No Salmonella was found in the production process or in the production area of the Hillfarm Dairy. The only Salmonella found in the plant was on a drip pan under a conveyor belt used to transport used milk crates. That strain of Salmonella, however, was different form the strain involved in the reported cases.

The IDPH performed its own tests in September 1984 and found that all dairy equipment was functioning properly. The IDPH did not recommend Salmonella testing because the coliform tests did not indicate any post-pasteurization contamination.

The Food and Drug Administration investigated the Hillfarm Dairy in September 1984, found nothing indicating that the production process at the Hillfarm Dairy caused the Salmonella outbreak, and found no evidence linking the Hillfarm Dairy’s products to the reported Salmonella cases.

On the morning of March 29, 1985, IDPH received reports of an increase in the number of Salmonellosis cases in the Chicago area. That same morning, Dr. Steven Potsic, executive director of the Lake County Health Department (LCHD), learned that Lake County had nine “culture-confirmed” cases of Salmonellosis. Because food consumption patterns suggested a possible link to milk sold at Jewel stores, the LCHD contacted several Jewel stores to determine whether the contamination might be due to refrigeration or other in-store problems. No such problems were found, and at about 4 p.m. that afternoon, Potsic telephoned Carl Langkop, Administrator of the IDPH Communicable Disease Control Program in Springfield, Illinois. Langkop told Potsic that the IDPH had already contacted Jewel. According to Potsic, he suggested to Lankop that Jewel close its dairy. According to Langkop, however, Potsic suggested only that Jewel withdraw a certain milk product.

Langkop telephoned Dr. Robert Flentge, chief of the governing Food, Drug, and Dairy Division of the IDPH. Flentge indicated that he disagreed with Potsic and thought the evidence was too weak to either withhold milk or close the dairy. Dr. Byron Francis, Associate Director of the IDPH Office of Health Protection, disagreed with Flentge and thought the Bluebrook milk should be withdrawn.

That afternoon, Paul McDonnell, Supervisor of the IDPH west Chicago office, telephoned Lawrence Gambill, Jewel’s head of quality assurance, and Michael McClory, Jewel’s director of quality control manufacturing. McDonnell told both Gambill and McClory that some of the people who tested positive for Salmonella claimed to have consumed Bluebrook 2% milk. McClory telephoned Dr. Russell Flowers, Silliker Laboratories’ director and vice-president, and asked him to speak to the IDPH and to immediately begin testing samples. Both the IDPH and Silliker gathered product samples that night and began testing the following morning.

Between 3 and 5 p.m. on March 29, 1985, plant manager Bill Fisher checked the clean-in-place records, the pasteurization records, and the post-pasteurization cooling charts for Bluebrook 2% milk produced on March 20, 1985, and code-dated March 29, 1985. The records showed that the clean-in-place runs had been normal, that all products produced on March 20, 1985, had been properly pasteurized, and that the products had been stored at the required temperatures. Fisher also checked the coliform test results and found that the coliform counts indicated no post-pasteurization contamination.

At about 5 p.m., Ted Byers of the Lake County Health Department told McClory that a number of confirmed Salmonella cases had been found. Byers did not believe the evidence was sufficient to withdraw milk, but asked McClory whether Jewel had a computer link-up with its stores in the event that the LCHD unilaterally decided to pull milk from the stores. According to Byers, McClory stated that he thought there was insufficient evidence to withdraw milk and that there would be legal action if the LCHD tried to withdraw milk from the stores.

That evening, McClory called Robert Neslund, Jewel’s vice-president of marketing and told him about the Salmonella outbreak. Neslund telephoned David Clarke, Jewel’s vice-president of merchandising, and told him to stand by for a possible recall of milk. Neslund also called Al Kara, Jewel’s vice-president of manufacturing, and apprised him of the situation.

On Saturday, March 30, 1985, Kara called Jim Henson, Jewel’s president, and told him that Bluebrook 2% milk produced on March 20 and code-dated March 29 was the suspected cause of the Salmonella outbreak. Kara told Henson that the IDPH and the Center For Disease Control had begun an investigation. Kara also told Henson that the production records showed that the milk produced on March 20 had been properly pasteurized. Henson told Kara to make certain that all Jewel employees understood they were to cooperate fully with everyone who needed information.

At 8 a.m. on Monday, April 1, 1985, Henson met with Jewel’s executive committee and reported that the IDPH had begun an investigation, that the Center For Disease Control (GDC) and the Food and Drug Administration (FDA) had been notified, and that Silliker was testing samples of Bluebrook 2% milk. Henson told Kara to keep him fully informed, to contact him at any time, and, at a minimum, to confer with him daily.

That same morning, Henson met with several persons, including Kara, McClory, and Fisher. They discussed the subjects of recalling products and closing the Hillfarm Dairy. Everyone present believed at that time that the only suspected product was Bluebrook 2% milk produced on March 20 and code-dated March 29. Henson concluded that the available information did not require any additional action.

By mid-day on Monday, April 1, the CDC completed its study which showed, for the first time, a statistical link between the reported Salmonella cases and Bluebrook 2% milk produced on March 20 and code-dated March 29. Jewel immediately implemented a complete recall of that product. Jewel issued a press release asking its customers to return all cartons of Bluebrook 2% milk code-dated March 29. Jewel also sent recall notices to all stores, even though the milk code-dated March 29 was already off the store shelves.

At 2 p.m. that day, the IDPH stated during a press conference that the Bluebrook 2% milk code-dated March 29 was being recalled and that the problem was limited to that product. The IDPH issued a press release which stated that its investigation showed “no association with other types of milk” produced at the Hillfarm Dairy. The IDPH also told Jewel personnel that there was no need to close the Hillfarm Dairy.

Tuesday, April 2, 1985, was a regularly scheduled “down” day at the Hillfarm Dairy. Representatives of various Federal and State regulatory agencies arrived that day to inspect the Hillfarm Dairy.

On the morning of April 3, 1985, Charles Price of the FDA stated that he believed a “skim milk transfer line” in the Hillfarm Dairy violated the PMO. The transfer line sent pasteurized skim milk to the frozen dessert system and to the raw milk storage tanks at the end of each production day. Price requested that the line be disconnected, and Jewel immediately complied.

The skim milk transfer line was never identified as the cause of the Salmonella contamination. A task force formed by the IDPH did not identify the transfer line as the cause of the contamination in its final report. Harold Wainess, one of Jewel’s expert witnesses, testified that in his opinion the transfer line did not violate the PMO and did not provide an opportunity for raw milk to mix with pasteurized milk. Evidence was also presented at trial that certain Hillfarm milk produced after the transfer line had been disconnected was contaminated with Salmonella.

Late in the morning on April 3, 1985, Jewel learned that IDPH tests showed that Bluebrook 2% milk produced on March 20 and code-dated March 29 was presumptively positive for Salmonella. Jewel also learned that 151 containers of Bluebrook 2% milk code-dated March 30 and March 31 tested negative for Salmonella.

Later that afternoon, Henson called a meeting to discuss the possibility of closing the Hillfarm Dairy. Kara reported that the regulatory officials were not recommending that Jewel close the Hillfarm Dairy. Henson then called McClory, who was in his office at the Hillfarm Dairy with McDonnell of the IDPH. Henson asked if the Hillfarm Dairy should be closed and heard McDonnell respond that it was “not necessary to close the dairy at this time.” Based on this information, Henson decided not to close the Hillfarm Dairy.

At 2 p.m. on April 3, the IDPH issued a press release which stated that “the contaminated product is limited to just the Bluebrook brand 2% milk in one-gallon containers dated 3/29/85.” The IDPH also commended Jewel for its cooperation with health officials.

On April 4, 1985, the IDPH confirmed its earlier test results that Bluebrook 2% milk code-dated March 29 was contaminated with Salmonella. Further testing by Silliker and the government agencies continued to show that no other product was involved.

On April 5, 1985, Silliker also confirmed that Bluebrook 2% milk code-dated March 29 was contaminated. Silliker then reported that it had tested samples of Bluebrook 2% milk produced from March 21 through March 29 with negative results for Salmonella. The IDPH reported that its tests of Bluebrook 2% milk code-dated March 24 through March 28 and March 30 through April 4 were all negative for Salmonella.

That same day, the FDA showed Jewel its preliminary investigation findings. The FDA believed that the transfer line might have caused the contamination, but did not conclude positively that it had. Henson read the FDA report and asked Kara and McClory whether the report raised any concerns about closing the Hillfarm Dairy. Kara and McClory told Henson that McDonnell of the IDPH continued to advise them not to close the Hillfarm Dairy.

On April 8, 1985, the IDPH reported that the number of reported Salmonellosis cases had increased since April 5, but that the number of new cases was decreasing. The IDPH attributed the increase primarily to the fact that local health departments had been closed from April 5 through April 7 because of the holidays.

April 9, 1985, was a regularly scheduled “down” day at the Hillfarm Dairy. Henson heard radio reports that morning that Hillfarm 2% milk code-dated April 8 might be contaminated with Salmonella. He confirmed the reports with the dairy and, at about 8:30 a.m., met with several senior Jewel personnel. Henson announced at the meeting that he had decided to close the Hillfarm Dairy. His decision was not based on any action by the IDPH. Those present at the meeting also decided that Jewel would immediately withdraw and recall all fluid milk products. Later that day, Henson decided to withdraw and recall all products made at the Hillfarm Dairy and every item made using Hillfarm Dairy products.

The IDPH report on April 9 stated that the source of the Salmonella contamination was still unknown. Charles Price of the FDA testified that on April 9 there was still insufficient evidence to close the Hillfarm Dairy.

Beginning April 1, 1985, Jewel received consumer complaints about products other than Bluebrook 2% milk code-dated March 29. Kara and McClory told Henson that the IDPH and the GDC had warned that customer complaints about other products should be expected because of consumer confusion and “secondary infection.” Dr. Daniel Roth, one of Jewel’s expert witnesses, testified that the complaints did not provide evidence that another product might be contaminated. He testified that false reporting of the identity of contaminated products is a well-known phenomenon among epidemiologists.

On April 19, 1985, the IDPH formed a task force to investigate the cause of the Salmonella outbreak. The task force included representatives of the IDPH, the FDA, the CDC, Jewel, and independent experts. The task force issued a final report on September 13, 1985, which concluded that there were two outbreaks of Salmonellosis in the spring of 1985, the first associated with Bluebrook 2% milk produced on March 20 and the second associated with Hillfarm 2% milk produced on March 30. The report indicated that the task force had investigated several possible sources of the contamination, including the possibility of heavily contaminated raw milk deliveries, a heat-resistant Salmonella that survived pasteurization, and defects in the plant such as the skim milk transfer line, but was unable to determine the source of the contamination.

I

Plaintiffs maintain first that the jury verdict in favor of Jewel is against the manifest weight of the evidence. Plaintiffs argue that the evidence showed that Jewel continued to market its milk products even though it did not know the source of the Salmonella contamination; failed to obtain test results for milk produced after March 29, 1985, even though finished product testing was necessary because Bluebrook and Hillfarm milk shared raw milk sources and pasteurization tanks; ignored consumer complaints that put Jewel on notice that other products were contaminated; and failed to withhold such products or warn the public of the dangers of such products. This evidence, plaintiffs maintain, conclusively established willful and wanton conduct on Jewel’s part. We disagree.

Punitive damages may be awarded where torts are committed “with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353.) To establish willful and wanton conduct, a plaintiff must prove the defendant’s intent to inflict injury or a “callous disregard for whether injury will occur.” (Del Muro v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 473, 481, 464 N.E.2d 772.) Whether the defendant’s conduct rises to the level of willful and wanton conduct is generally a question of fact for the jury. (Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 451, 501 N.E.2d 830.) A jury’s refusal to award punitive damages will be set aside as against the manifest weight of the evidence only if the verdict is arbitrary, unreasonable, and not based on the evidence. (Martin v. Zucker (1985), 133 Ill. App. 3d 982, 990-91, 479 NE.2d 1000.) The verdict will not be set aside if credible evidence fairly tends to support it. Tedrowe v. Burlington Northern, Inc. (1987), 158 Ill. App. 3d 438, 444, 511 N.E.2d 798.

In this case, there is ample support in the record for the jury’s verdict in favor of Jewel. When Jewel first learned that there was a statistical correlation between the reported Salmonellosis cases and its Bluebrook 2% milk, it immediately withdrew that product, began to investigate the source of the contamination, and hired a private laboratory to inspect the Hillfarm Dairy and test product samples. In addition, three government regulatory agencies, the IDPH, the CDC, and the FDA, became involved in the investigation.

The jury heard evidence that Jewel employees cooperated fully with the investigations conducted by the government agencies; that Jewel was commended for its efforts by the IDPH; that Jewel immediately disconnected a skim milk transfer line when it was suspected by the FDA to be the cause of the contamination; that no government agency ever recommended that Jewel close the Hillfarm Dairy; and that on April 9, Jewel voluntarily closed the Hillfarm Dairy when it learned, for the first time, the Hillfarm 2% milk produced on March 30 might be contaminated.

The jury also heard evidence that until April 9, 1985, the only product known by Jewel’s employees to be contaminated with Salmonella was Bluebrook 2% milk produced on March 20' and code-dated March 29. On April 1, the IDPH issued a press release which stated that its investigation showed “no association with other types of milk.” On April 3, Jewel learned that 151 samples of Bluebrook 2% milk code-dated March 30 and March 31 tested negative for Salmonella. That same day, the IDPH issued another press release which stated that “the contaminated product is limited to just the Bluebrook brand 2% milk in one-gallon containers dated 3/29/85.”

On April 4 and 5, Silliker Laboratories reported that samples of Bluebrook 2% milk produced from March 21 through March 29 tested negative for Salmonella. On April 5, the IDPH reported that samples of Bluebrook 2% milk code-dated March 24 through March 28 and March 30 through April 4 all tested negative for Salmonella. Evidence that test results for samples produced on March 30 should have been available by April 2 is hardly evidence of willful and wanton conduct on Jewel’s part, given Henson’s testimony that if the results had been available he would have known of them. Even if the test results had been available on April 2, Jewel would not have known that Hillfarm 2% milk was contaminated because the test results were all negative for Salmonella.

Finally, the jury heard evidence that the pasteurization process at the Hillfarm Dairy was working properly and that following each production run, the entire system of tanks, pipes, and valves was flushed with a disinfecting solution which killed Salmonella bacteria. Thus, even though elements of the pasteurization system were shared by the Bluebrook and Hillfarm brands, that Bluebrook milk produced on March 20 was contaminated was not reason to suspect that the Hillfarm milk produced on March 30 was also contaminated. The consumer complaints received by Jewel were also not reason to suspect that products other than Bluebrook 2% milk produced on March 20 were contaminated. The IDPH and the GDC informed Jewel that complaints about other products should be expected because of consumer confusion, and there was expert testimony at trial that such complaints were not a reliable indicator of product contamination.

This evidence belies plaintiffs’ contention that Jewel continued to market milk products with callous disregard for public safety, failed to obtain test results for milk produced after March 29, and should have known that Hillfarm 2% milk produced on March 30 was contaminated. Certainly, there is credible evidence which fairly tends to support the jury’s verdict and thus there is no basis for setting the verdict aside.

II

Plaintiffs maintain that defense counsel committed prejudicial error in his closing argument by using a “traffic analogy” to explain willful and wanton conduct; by misstating the scope of the pretrial agreement to pay compensatory damages by failing to explain that the agreement did not apply to members of the punitive class and others who opted out of the compensatory classes; and by expressing his personal opinions. Again, we disagree.

Attorneys are permitted wide latitude in closing argument. (Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 454, 501 N.E.2d 830.) Counsel may properly state what .they believe the law to be (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 748, 464 N.E.2d 866), and may explain to the jury what each side believes the evidence proves (Patur v. Aetna Life & Casualty (1980), 90 Ill. App. 3d 464, 470, 413 N.E.2d 65).

A closing argument must be “clearly improper and prejudicial” to warrant reversal of the judgment. (Boasiako v. Checker Taxi Co. (1986), 140 Ill. App. 3d 210, 214, 488 N.E.2d 672.) A party may not claim error based on invited remarks (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 246, 529 N.E.2d 525), and errors not objected to at trial are deemed waived (Daniels v. Standard Oil Realty Corp. (1986), 145 Ill. App. 3d 363, 369, 495 N.E.2d 1019). In determining whether a party has been denied a fair trial because of the opposing party’s closing argument, considerable deference is extended to the trial court’s judgment, because the trial court is in a superior position to assess the accuracy and effect of counsel’s statements. Lawinq v. Chicago Transit Authority (1986), 142 Ill. App. 3d 119, 125, 491 N.E.2d 145.

In this case, plaintiffs contend that defense counsel’s use of a traffic analogy misrepresented to the jury that only intentional conduct rises to the level of willful and wanton conduct. Defense counsel had asked the jury several times during closing argument whether Jewel’s conduct was like that of a motorist driving 75 miles per hour on a busy downtown street. The record shows, however, that defense counsel referred to the analogy as an “example” and the jury was instructed on the applicable law. Indeed, in denying plaintiffs’ motion for a new trial, the trial court stated:

“The closing argument did not represent to the jury that only intentional misconduct constitutes willful and wanton conduct. It was made clear to the jurors that [defense counsel’s] comments concerning the operation of an automobile were solely for illustration and by way of analogy. This was done in the argument and by comments of the court. Furthermore, the jury was informed as to the law on this point by way of instructions.”

On this record, it cannot be said that plaintiffs’ case was prejudiced by defense counsel’s use of the traffic analogy.

The cases relied on by plaintiffs on this point are all inapposite. In Basden v. Kiefner Brothers, Inc. (1980), 92 Ill. App. 3d 218, 414 N.E.2d 951, and Noll v. Snap-on Tools Corp. (1980), 89 Ill. App. 3d 1120, 412 N.E.2d 1185, counsel’s remarks related to affirmative defenses that the trial court had earlier ruled were not relevant. There was no such attempt here to inject an irrelevant issue into the case. Rather, defense counsel’s remarks concerned willful and wanton conduct, an issue properly before the jury.

Defense counsel’s comments regarding the pretrial compensatory damages agreement were likewise not prejudicial and, in any event, were invited by plaintiffs’ counsel’s remarks. The record shows that defense counsel made remarks such as “ [compensatory damages will be paid” and “[tjhese persons who have been affected will be compensated in full” without explaining that not all persons in the punitive damages class were covered under the pretrial agreement. Plaintiffs admit that it was not improper for defense counsel to inform the jury that compensatory damages would be paid, but maintain that defense counsel’s remarks misstated the scope of the compensatory damages agreement and thereby induced the jury to conclude that “justice and the public good” did not require the imposition of punitive damages, based on irrelevant compensatory damage considerations.

Plaintiffs’ argument fails, however, because immediately following defense counsel’s remarks, plaintiffs’ counsel objected and the trial court heard argument outside the presence of the jury. The trial court then admonished the jury that Jewel “agreed to pay compensatory damages to make compensation to those people who are in what we will call the compensatory class.” The trial court also instructed the jury that “[t]he amount of compensatory damages that will be paid is not an issue in this case.” In denying plaintiffs’ motion for a new trial, the trial court stated that “[djefendants’ final argument did not misstate to the jurors or mislead them as to whom compensatory damages would be paid *** They were made aware that compensatory damages and punitive awards were separate issues.” Thus, there is no indication in the record that the jurors were confused about the distinction between compensatory or punitive damages or that they based their verdict on compensatory damages considerations. Plaintiffs’ argument, that defense counsel’s remarks necessarily prejudiced the jury because of “the incongruity between the verdict and the overwhelming evidence of defendants’ conscious disregard for the safety of millions of people,” is not persuasive, given that there is in fact ample support in the record for the jury’s verdict.

In any event, defense counsel’s remarks were invited by plaintiffs’ counsel. Plaintiffs’ counsel stated during closing argument that Jewel agreed to pay compensatory damages only after V-k years of litigation, insinuating that Jewel initially refused to pay compensatory damages out of “corporate greed.” Plaintiffs’ counsel argued that punitive damages were appropriate in light of Jewel’s manner in defending against the claims. Plaintiffs’ counsel did not at that time make any distinction between the compensatory and punitive classes. Plaintiffs may not now claim error based on defense counsel’s subsequent remarks which likewise failed to distinguish between the compensatory punitive classes.

Finally, plaintiffs waived any objection to defense counsel’s statements of his personal opinions by failing to object at trial. In any event, defense counsel’s comments do not warrant reversal in this case. The statements “I simply do not believe from the bottom of my heart that there is any evidence of utter or reckless disregard” and “[w]e believe, all of us, 280,000 people who work for Jewel, that Jewel acted responsibly[,]” were based on the evidence. If, as plaintiffs maintain, the statement “I believe the mere utterance of the word is absolutely outrageous” referred to punitive damages, then that statement, even if improper, could not have substantially prejudiced the jurors, who were instructed that arguments of counsel are not evidence and that it is their responsibility alone to consider and weigh the evidence presented at trial.

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

Affirmed.

WHITE and McMORROW, JJ., concur.


author: JUSTICE FREEMAN

text:
    BERNARD J. RILEY et al., Plaintiffs-Appellants, v. JONES BROTHERS CONSTRUCTION COMPANY, Defendant (O’Hare Associates et al., Defendants-Appellees).
    First District (3rd Division)
    No. 1—89—0189
    Opinion filed May 9, 1990.

      Anthony M. Colantoni, of McDowell & Colantoni, Ltd., of Chicago, for appellants.
    Michael M. Lane and Ann P. Goodman, both of McCullough, Campbell & Lane, of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiffs, Bernard and Frances Riley, appeal the dismissal of counts III through VI of their amended complaint for damages for personal injuries sustained by Bernard due to the negligence of defendants, O’Hare Associates and American Airlines, Incorporated (hereinafter appellees). The trial court dismissed the amended complaint under section 2—619(a)(5) of the Civil Practice Law, which provides for involuntary dismissal of actions not commenced within the time limited by law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619.) Counts I and II of the amended complaint remain pending in the trial court against the original defendant, Jones Brothers Construction Company.

On February 17, 1986, Bernard sustained personal injuries at O’Hare Airport. On February 8, 1988, Bernard filed a complaint in negligence and a jury demand against defendant Jones Brothers Construction Company (Jones). After Bernard dismissed his original attorneys, Goldstein, Goldberg and Fishman, his new attorneys, McDowell & Colantoni, Ltd. (McDowell), presented two emergency motions for hearing before Judge Dean Sodaro on February 17, 1988. The notices of motion pertaining thereto were stamped:

“FILED Feb 17, 1988 MORGAN M. FINLEY CLERK OF THE CIRCUIT COURT.”

In the first motion, McDowell sought leave to file its appearance as plaintiffs’ attorney. In the second, plaintiffs sought leave to file an amended complaint adding Frances as a plaintiff and appellees as defendants in Bernard’s action against Jones. A copy of the amended complaint was attached to the second motion. However, it bore a docket number, 88—L—2183, different from that which had been assigned to the original action, 88—L—2483. The two emergency motions were stamped identically to the notices thereof. The copy of the complaint, attached to the second motion, was never date- or “filed”stamped. On February 19, 1988, a paralegal employed by McDowell, Julie Isenberger, obtained the issuance of summons against O’Hare and American. The copy of the amended complaint served with the summons bore the correct docket number and was stamped as filed on February 19, 1988. Appellees were served with summons on February 25,1988.

Subsequently, appellees filed motions to strike plaintiffs’ amended complaint on the grounds that it was time barred under the two-year limitations period applicable thereto. The motions were based on the date which the copies of the amended complaint, served upon appellees, bore.

Plaintiffs opposed the motions on the grounds that their amended complaint had been initially filed on February 17, 1988, as shown by the notice of the emergency motion, the emergency motion for leave to file the amended complaint and a printout of computerized docket entries by the office of the clerk of the circuit court of Cook County reflecting that fact. Plaintiffs also presented the affidavits of Isenberger and Michael Inman, one of their attorneys. In his affidavit, In-man stated that he filed plaintiff’s amended complaint with Judge Sodaro’s clerk, a deputy circuit court clerk, on February 17, 1988. In her affidavit, Isenberger stated that, on February 19, 1988, she filed summonses and complaints in this case with the sheriff of Cook County for service upon appellees. She further stated that, as part of that filing procedure, she first took the summonses and complaints to Room 801 of the Richard J. Daley Center, where a deputy circuit court clerk, inter alia, time and date stamped the amended complaints served upon appellees. Alternatively, plaintiffs argued that there was at least a material question of fact as to when the amended complaint was filed, given the affidavits of Isenberger and Inman, and the computer printout.

After oral arguments, the trial court granted appellees’ motion. It did so on the basis of: (1) the amended complaint with the February 19, 1988, “filed” stamp; (2) the absence of a copy of the amended complaint with a February 17, 1988, “filed” stamp; and (3) the printout of the circuit court clerk’s computerized docket entries, which also reflected that the amended complaint was filed on February 19, 1988. Subsequently, the trial court denied plaintiffs’ motion to reconsider its ruling.

Opinion

On appeal, plaintiffs first contend that there is sufficient evidence in the record to prove that the amended complaint was filed on February 17, 1988, notwithstanding the absence of a copy of the complaint stamped with that date.

Specifically, plaintiffs assert that the evidence in the record “by way of offer of proof” supports a likelihood that pleadings are filed in the circuit court without being date- or “filed”-stamped. That is why, they assert, the clerk’s office considers a pleading filed if it is entered in its computerized docket. In support of the foregoing, plaintiffs cite the affidavit of one of their attorneys, Anthony Colantoni, filed in support of the motion to reconsider. Therein, Colantoni states that Joan Keane, a deputy clerk of the circuit court in Judge Sodaro’s chambers, advised him that she “entered” the February 17, 1988, order granting plaintiffs leave to file the amended complaint instanter. Colantoni also states that Keane told him that it was not unusual for a pleading to be filed without bearing a “filed” stamp and that it was more than possible that the amended complaint could have been filed without such a stamp. Finally, Colantoni stated that William Marzano, the chief clerk of the law division of the county department of the circuit court, informed him that if the computerized docket employed by the clerk’s office showed a particular document as being filed with the clerk on a particular date, the document would have been so filed, despite the absence of a copy of the document bearing a “filed” stamp.

The problem with plaintiffs’ argument is their reliance on the affidavit of Colantoni, which does not meet the requirements of Supreme Court Rule 191 (107 Ill. 2d R. 191). That rule requires that affidavits relating to a section 2—619 motion either be made on the personal knowledge of the affiant or, absent that, name the persons with such knowledge, state why their affidavits cannot be obtained and what the affiant believes such persons would testify to if sworn. (107 Ill. 2d Rules 191(a), (b).) Apparently recognizing the incompetency of Colantoni’s affidavit as proof of the facts related therein, plaintiffs characterize the evidence in opposition to appellees’ motion as being in the nature of an offer of proof. However, they did not so characterize Colantoni’s affidavit at the hearing on their motion for reconsideration. More importantly, there is no provision in Rule 191 for such use of an affidavit. The affidavit is inadequate to reveal error in the dismissal of their amended complaint.

Plaintiffs next cite In re Estate of Davison (1981), 102 Ill. App. 3d 644, 430 N.E.2d 222, and Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1, in support of their position that the absence of a time or “filed” stamp is not fatal to the filing of a pleading or document. In deciding whether the renunciation of a codicil by a testator’s spouse, which renunciation was in the court file but did not bear the correct “filed” stamp, had been filed within the time provided by statute, the Davison court stated:

“A document is legally filed when it is delivered to the proper officer and receives proper endorsement; the person filing has the duty of delivery of the paper and the officer has the duty of making the appropriate endorsement on the paper. [Citation.] Delivery alone has been held to constitute filing since the person filing has no control over the officer who receives documents. [Citation.] Subsequent ministerial tasks of the clerk evidence the filing of a document but are not essential to its perfection.” Davison, 102 Ill. App. 3d at 645.

Plaintiffs assert that Inman’s delivery of the amended complaint to Judge Sodaro’s deputy clerk constituted an adequate filing under Davison because at that point he had done everything that he could “relative to a proper filing.”

Notwithstanding Davison and Sherman, plaintiffs have not convinced us that Inman’s delivery of the amended complaint merely to the deputy clerk of the circuit court in Judge Sodaro’s courtroom, even if true, constituted delivery to the “proper officer.” Section 13 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1987, ch. 25, par. 1 et seq.) provides that clerks of the circuit courts shall, inter alia, preserve all the files and papers of their courts and perform all other duties pertaining to their offices, as may be required by law or the rules and orders of their courts (Ill. Rev. Stat. 1987, ch. 25, par. 13). General Order 1.4 of the General Orders of the circuit court of Cook County provides:

“Actions commenced on and after September 4, 1984 in the several departments, divisions, and districts of the Circuit Court of Cook County shall be filed in the following offices of the Clerk of the Court:
COUNTY DEPARTMENT
Law Division, Room 801, Richard J. Daley Center, Chicago];.]”

Thus, General Order 1.4 requires the clerk of the circuit court to accept actions for filing submitted in Room 801 of the Daley Center. Concomitantly, it requires plaintiffs to submit actions for filing to that room as well. No provision is made for filing actions, whether original or amended, in the individual courtrooms of the Daley Center. Thus, while, under Davison, delivery alone may constitute sufficient filing and ministerial tasks such as stamping a pleading “Filed” are unnecessary to perfect a filing (see McGregor v. Village of Lovington (1892), 48 Ill. App. 202, 207), Inman’s delivery of the amended complaint to the deputy circuit court clerk in Judge Sodaro’s courtroom did not constitute a sufficient filing of the amended complaint.

In addition, plaintiffs assert that the record otherwise clearly reveals that the amended complaint was filed February 17, 1988. Citing the computerized docket entry to that effect, plaintiffs first argue that a presumption attaches that entries made in a docket mandated by the act previously cited were done properly. Citing Department of Conservation v. First National Bank (1976), 36 Ill. App. 3d 495, 344 N.E.2d 11, they further assert that such entries, being part of public records, are competent evidence of the facts contained therein.

As authority for the asserted presumption of the propriety of entries made in circuit court dockets, plaintiffs apparently rely on the observation in First National Bank that public officers are presumed to have performed their duties properly since they have no motive to suppress or distort the truth or to manufacture evidence. (First National Bank, 36 Ill. App. 3d at 504.) The propriety of that presumption and the validity of the general rule of the evidentiary competency of public records notwithstanding, we find that Illinois case law required the establishment of a proper foundation for the computerized docket entry before it could be considered competent evidence of the facts reflected therein.

Such a foundation for computer-generated records is established when it is shown that the equipment which produced the record is recognized as standard, the entries were made in the regular course of business at or reasonably near the happening of the event recorded and the sources of information, method and time of preparation were such as to indicate their trustworthiness and to justify their admission. (Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238; Eastman v. Department of Public Aid (1989), 178 Ill. App. 3d 993, 998, 534 N.E.2d 458; Department of Mental Health v. Beil (1976), 44 Ill. App. 3d 402, 409, 357 N.E.2d 875.) None of the foundational requirements was met here. The computerized docket entry was thus not competent evidence that the amended complaint was filed on February 17, 1988, or, contrary to the trial court’s belief, February 19; 1988.

Plaintiffs further assert that, against all of the evidence tending to show that the amended complaint was filed on February 17, 1988, the copy of the amended complaint stamped “filed” on February 19, 1988, reveals only that it was filed a second time, as asserted in Isenberger’s affidavit.

Given the inadequacy and incompetency of the other evidence assertedly showing that the amended complaint was timely filed, it is the Isenberger affidavit which stands alone against the copy of the amended complaint stamped “filed” on February 19, 1988. The “filed” stamp on that copy of the amended complaint was prima facie evidence that the complaint was delivered to the proper officer for filing on the date indicated thereon. (Ayala v. Goad (1988), 176 Ill. App. 3d 1091, 1094, 531 N.E.2d 1040.) As such we find that the Isenberger affidavit merely contradicted that prima facie evidence but did not, alone, conclusively prove that the amended complaint was timely filed. Plaintiffs have failed to show that the trial court erred in concluding that they had not proved that the amended complaint was timely filed.

Alternatively, plaintiffs contend that, even if they did not conclusively prove that fact, the record reveals a material and genuine disputed question of fact as to the filing date of the amended complaint. In view of the fact that they had timely filed a jury demand, they assert, the existence of that question of fact precluded dismissal of their amended complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(c).) In support, plaintiffs cite Stevens v. O’Bryant (1979), 74 Ill. App. 3d 239, 392 N.E.2d 935.

Stevens held that, where affidavits and counteraffidavits submitted in support of and opposition to a motion to dismiss established a genuine issue of material. fact as to the date a cause of action accrued, the trial court erred in resolving the issue against plaintiffs solely upon the affidavits and denying them an evidentiary hearing on the merits of the motion. In so doing, Stevens noted that the purpose of a now section 2—619 is to dispose of issues of law or.easily proved issues of fact and that, if it cannot be determined with reasonable certainty from the record that the alleged defense exists, a motion to dismiss thereunder should be denied. Stevens, 74 Ill. App. 3d at 241-42, quoting Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 667, 373 N.E.2d 645, 649.

We do not find a genuine and material issue of fact in the record in this case. Specifically, we find that the Isenberger affidavit, which was plaintiffs’ only adequate and competent evidence of a proper February 17, 1988, filing of the amended complaint, created a mere evidentiary inconsistency or contradiction in the record. This inconsistency or contradiction in the record was wholly inadequate to raise a genuine dispute as to the filing date of the amended complaint. (See Komel v. Commonwealth Edison Co. (1977), 56 Ill. App. 3d 967, 973, 372 N.E.2d 842.) Moreover, in accordance with Stevens, we believe that the filing date of the amended complaint was an easily proved factual issue and that the existence of the defense asserted by appellees was determinable with more than reasonable certainty from the competent evidence here. There was no genuine and material question of fact which precluded the grant of the motion to dismiss without an evidentiary hearing.

For all of the foregoing reasons, we affirm the order granting appellees’ motion to dismiss the amended complaint.

Affirmed.

CERDA, RJ., and WHITE, J., concur.