author: JUSTICE McLAREN JUSTICE DOYLE,

text:
    ANTHONY TOPPS, Plaintiff-Appellant, v. PHILLIP FERRARO, Defendant-Appellee.
    Second District
    No. 2—91—1129
    Opinion filed October 8, 1992.
    Rehearing denied November 9, 1992.

      DOYLE, J., dissenting.
    Guyer & Enichen, of Rockford (Brian Dean Shore, of counsel), for appellant.
    Caldwell, Berner & Caldwell, of Woodstock (Michael T. Caldwell, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Anthony Topps, filed a one-count complaint in the circuit court of McHenry County alleging negligence against defendant, Phillip Ferraro. The trial court granted defendant’s motion for summary judgment, and plaintiff filed this timely appeal. The sole issue presented for review is whether the trial court erred in granting summary judgment in favor of defendant. We reverse and remand the cause.

The deposition testimony of the parties reveals the following facts. On June 28, 1987, plaintiff and defendant attended a social gathering at the home of a mutual friend. Shortly after the arrival of defendant and a female companion, defendant encountered plaintiff in the living room of the house and asked plaintiff if he would step outside for a moment to discuss something. Plaintiff, at that moment, did not feel challenged or threatened and agreed to step outside. Once outside, defendant asked plaintiff about earlier statements allegedly made by plaintiff about defendant’s girlfriend. Within a short period of time, the conversation grew heated and argumentative.

In his deposition, plaintiff stated that he informed defendant that he would speak to him later after defendant calmed down. He said that he turned around and felt defendant touch his left shoulder, that the next thing he could recall was waking up one to two minutes later in the bushes with his left eye feeling sore, and that he smelled a strong odor of blood. Plaintiff stated that he could not recall any other details from the moment he turned around until he regained consciousness. He further stated that he did not remember whether he pushed or shoved the defendant.

At his deposition, defendant stated that after the argument became heated plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face, contacting plaintiff’s left eye. Plaintiff then fell to the ground, stating that he required medical assistance. Defendant further testified:

“A. [Defendant]: After talking and turning into an argument he pushed me on the shoulder, and once he hit me — well, pushed me, I hit him in the face.
Q. So you said your reaction was to hit at him?
A. Well, that’s just — I mean it wasn’t something I thought about. Once he pushed me, I hit him, so it wasn’t really any time.
Q. Is it your testimony at the time that you — that he pushed you it was your intent to hit him?
A. What?
Q. At the time—
A. He pushed me.
Q. It was your intent to hit him?
A. It wasn’t a thought out thing. It was just all of a sudden I came up and hit him.
Q. When you made contact with [plaintiff], what was your intention?
A. There was no intention. It was a matter — it was a matter of reflexes. I don’t know what it was because really there was no time to think about it. Once he pushed me, I didn’t think about he pushed me, hit him. It was just a matter of he pushed me and I hit him.
Q. Did you mean to hit him?
A. That was not — it wasn’t my intention to bring him out there to go beat him up.
Q. I am saying at the time you did make contact?
A. Yes. There was no time. I didn’t even think about it or anything. It was a matter of reaction.”

The record does not reflect any additional testimony or factual evidence as to the altercation.

Plaintiff was treated for his eye injury at the Crystal Lake Ambutal and released. Plaintiff testified that after the swelling subsided four days later he observed that the entire white portion of his left eye was red and that a portion of his vision was blocked. Plaintiff sought further treatment from an eye specialist. Plaintiff testified that at the time of his deposition, which was approximately three years after he sustained the injury, his field of vision was still impaired and that his visual acuity had further deteriorated.

In his one-count complaint plaintiff alleged:

“4. *** Defendant, Phillip Ferraro, was guilty of one or more of the following negligent acts:
(a) Extended his arm in a negligent matter [sic] without due regard for the presence of others.
(b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact.
(c) Failed to keep proper lookout for the Plaintiff.
5. That due to the foregoing negligent acts or omissions of the Defendant, Phillip Ferraro, the Plaintiff, Anthony Topps, was injured ***.” (Emphasis added.)

Defendant moved for summary judgment and attached copies of plaintiff’s and defendant’s discovery depositions. Defendant did not file a motion to strike or dismiss, nor did defendant file an affirmative defense in the nature of self-defense. Plaintiff filed no response to defendant’s motion for summary judgment. The trial court granted defendant’s motion, and plaintiff now appeals.

Plaintiff contends that an issue of material fact exists as to the “degree” of defendant’s culpability and that the factual evidence presented in support of defendant’s motion did not establish free and clear from doubt that defendant’s conduct was other than negligent. Plaintiff focuses on defendant’s professed state of mind at the time he struck plaintiff and argues that, because defendant was unable to provide an explanation why he struck plaintiff, a trier of fact could infer that defendant’s conduct was negligent as opposed to intentional. Plaintiff further argues that defendant’s testimony indicates that defendant negligently failed to contemplate the possible or probable consequences of his act in striking plaintiff. Defendant responds that the record clearly and unequivocally establishes that his actions were intentional and, therefore, no issue of material fact exists as to whether his conduct could be characterized as negligent.

Defendant argues that his intentional act precludes a grant of judgment to plaintiff on the issue of negligence by arguing the law relating to an intentional tort. However, defendant does not concede liability for either negligence or intentional tort because he claims self-defense. Defendant has failed to cite any law as to why an treasonable belief in the need for self-defense is neither negligence nor an intentional tort. Defendant’s argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent. Our independent research has disclosed two cases which allow recovery in negligence for such “intentional” acts. Blackburn v. Johnson (1989), 187 Ill. App. 3d 557; Wegman v. Pratt (1991), 219 Ill. App. 3d 883, 894.

In this case, plaintiff’s complaint alleged the following negligent acts by defendant: “(a) Extended his arm in a negligent matter [sic] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contactf, and] (c) Failed to keep a proper lookout for the Plaintiff.” To state a legally sufficient cause of action in either simple or willful and wanton negligence, plaintiff must have alleged sufficient facts to show defendant had a duty to plaintiff, that he breached such duty, and that an injury proximately resulted from that breach. (Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343, 349.) The fact that defendant stated in his deposition that he intended to punch plaintiff neither mystically transmutes the allegations in plaintiff’s complaint to an intentional tort nor precludes recovery in negligence.

The arguments of the parties set forth above are primarily due to the fact that the defendant apparently has insurance where coverage is dependent on the nature of the acts committed by defendant. The plaintiff has attempted to state a cause of action with facts that he believes will enable him to collect any judgment he might obtain. The defendant, on the other hand, has attempted to defend the action in such a way that no conflict of interest would arise between the defendant and his insurer. It is in this context that we consider whether the trial court erred in granting defendant’s motion for summary judgment.

When reviewing the trial court’s grant of summary judgment, the reviewing court must first determine whether the trial court erred in its ruling that no genuine issue of material fact existed. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 248.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508.) If no issue of material fact has been raised, the court must determine whether judgment was correctly entered as a matter of law. (Briarcliffe, 170 Ill. App. 3d at 249.) Thus, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull v. Harrison Township (1992), 223 Ill. App. 3d 819, 824; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 471.

Contrary to a section 2 — 615 motion to dismiss, summary judgment should not be used to determine whether plaintiff’s complaint sets forth a legally sufficient cause of action. Rather, a motion for summary judgment “almost necessarily assumes a cause of action has been stated.” (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406.) If defendant wished to contest the sufficiency of plaintiff’s complaint, he should have first filed a motion to strike and/or dismiss. Only when a legally sufficient cause of action had been stated should defendant have challenged the cause of action by a motion for summary judgment or his affirmative defense of self-defense. Magnuson v. Schaider (1989), 183 Ill. App. 3d 344, 355.

The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 416; Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 470.) At the summary judgment stage, contrary to the dissent contained herein, the plaintiff is not required to establish his case as he would at trial. Instead, the plaintiff must present some factual basis that would arguably entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill. 2d 177, 182.) Plaintiff herein alleged his right to a cause of action based upon a negligence theory of liability and has neither alleged intent nor lack thereof. He is entitled to the benefit of every relevant fact necessary to succeed on the theory he has alleged. We find that the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is a genuine issue of material fact regarding defendant’s negligence regardless of the issue of intent or lack thereof. (Blackburn, 187 Ill. App. 3d at 560; Wegman, 219 Ill. App. 3d at 894.) Accordingly, the trial court erred in ruling that no issue of material fact existed as to the nature of defendant’s conduct as reasonable minds could find that the defendant was negligent in hitting the plaintiff.

For the foregoing reasons, we reverse the order of the circuit court of McHenry County granting judgment in favor of defendant, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, J., concurs.

JUSTICE DOYLE,

dissenting:

I respectfully dissent because I believe that the majority may have been led to an incorrect result through a misunderstanding of defendant’s argument. The majority states that “[d]efendant’s argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent” (emphasis in original) (235 Ill. App. 3d at 47), and that defendant’s admission in his deposition that he intended to punch plaintiff does not transform plaintiff’s allegations into an intentional tort. Additionally, the majority questions why defendant failed to file a motion to strike and/or dismiss and states that a motion for summary judgment should not be used to determine whether plaintiff’s complaint sets forth a cause of action. While I agree with this well-settled rule, it fails to address defendant’s argument here. Defendant has not challenged plaintiff’s complaint for failure to state a cause of action; rather, his focus is upon the failure of the plaintiff to provide evidence which would support the complaint’s specific allegations of negligence. I understand defendant’s position to be that negligence is a theory of action which is separate and distinct from intentional tort and that, although plaintiff has elected to proceed on a specific theory of negligence only, the evidence before the trial court presented no issue of material fact as to whether defendant’s conduct could be characterized as negligent within the allegations of the complaint.

Plaintiff failed to offer any evidence in contradiction of the deposition testimony submitted in support of defendant’s motion for summary judgment. It is well settled that facts contained within affidavits in support of a motion for summary judgment and uncontradicted by other factual evidence are admitted and considered true (Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 92-93) and that discovery depositions may be utilized in support of a summary judgment motion to the same extent as affidavits. 134 Ill. 2d R. 212(a)(4); Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 63.

It is true, however, that if reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358) and that a court must construe the deposition testimony strictly against the defendant-movant and liberally in favor of the plaintiff and enter summary judgment only when the right of the defendant is free and clear from doubt (Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill. 2d 121, 130).

Intent, as defined within the context of tort liability, is not necessarily a hostile intent, or a desire to do any harm; rather, it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 893, citing W. Prosser, Torts §8, at 31 (4th ed. 1971).) Comment b of section 8A of the Restatement (Second) of Torts provides:

“All consequences which the actor desires to bring about are intended ***. *** If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.” (Restatement (Second) of Torts §8A, Comment 6, at 15 (1965).)

The term “intent” is commonly used “to describe the purpose to bring about stated physical consequences" and is concerned with the consequences of the act. (Emphasis in original.) (W. Keeton, Prosser & Keeton on Torts §8, at 35 (5th ed. 1984).) Motive focuses on the subjective rationale that inspires the act and the intent. W. Keeton, Prosser & Keeton on Torts §8, at 35 (5th ed. 1984).

It is recognized that motive and intent are related states of mind and that confusion sometimes exists as to their precise interaction in the context of tort liability. In analyzing the circumstances of the present incident, however, I conclude that defendant’s inability or failure in his deposition to specifically articulate his reason for striking plaintiff does not provide support for any inference that he acted negligently. Plaintiff’s argument confuses motive with intent. Defendant’s deposition testimony does not evidence his lack of intent; rather, it demonstrates his subjective reasoning, or lack thereof, as to why he engaged in an act of striking plaintiff. Although defendant testified that “it wasn’t something he thought about” and that it was a matter of reflexes, he clearly and unequivocally stated that he struck plaintiff. The only reasonable interpretation of the evidence is that defendant struck out intentionally in response to allegedly being pushed by plaintiff.

Additionally, there is no evidence which suggests an alternative inference that defendant did not know or was substantially uncertain of the consequences of his act of striking plaintiff. Plaintiff has failed to respond to the motion for summary judgment by submitting facts which would raise an alternative inference (see Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill. App. 3d 660, 661), and he cannot rely upon mere conjecture or surmise as being sufficient to raise a genuine issue of negligence (see Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101). I conclude that the testimony relating to defendant’s motive is insufficient to raise an issue of material fact as to whether defendant’s conduct was negligent as opposed to intentional.

Plaintiff submits an alternative theory by which a trier of fact might characterize defendant’s conduct as negligence. He argues that the facts might be interpreted as showing that defendant made an unreasonable decision to act intentionally in defense of his person against plaintiff’s advances. A determination of negligence, it is asserted, could be predicated upon the defendant’s faulty decision to act intentionally. Although I agree with the majority that under certain circumstances this has been recognized to be a viable theory of negligence (see Wegman v. Pratt (1992), 219 Ill. App. 3d 883; Blackburn v. Johnson (1989), 187 Ill. App. 3d 557), it has no applicability to assist plaintiff in the present case because his complaint does not allege any such theory of negligence. On the contrary, the complaint describes defendant’s “negligent acts” as follows: ”(a) Extended his arm in a negligent matter [sic] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff.” In contrast, both Wegman and Blackburn, cited by the majority, involved complaints which specifically alleged a theory of negligent decision to use force in defense of person. (Wegman, 219 Ill. App. 3d at 895; Blackburn, 187 Ill. App. 3d at 560.) Considering the plain and ordinary meaning of the present allegations, coupled with plaintiff’s failure to respond to the motion for summary judgment by arguing any alternative theory of interpretation, I conclude that the trial court was correct in its ruling that no issue of material fact existed as to the nature of defendant’s conduct.

Having determined that no issue of material fact exists, the next consideration is whether the trial court, as a matter of law, properly granted summary judgment in favor of defendant. Defendant contends that an uncontroverted showing of intentional conduct entitled him to summary judgment.

Intentional torts and negligence are distinct causes of action. Contrary to plaintiff’s contention, differing theories of tort liability are distinguished, not by their difference in degree of culpability, but, rather, they are distinguished on the basis of their qualitative differences in kind. (See Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 450-52 (qualitative differences between negligence and wilful and wanton conduct preclude their comparison for comparative fault purposes).) Moreover, it is the presence of the recognized elements of negligence and not the absence of intentional or reckless conduct which determines the right to maintain a negligence cause of action. In ruling upon a motion for summary judgment, the court must consider the specific allegations of the complaint. A complaint must contain a plain and concise statement of the plaintiff’s cause of action. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 603(a).) It should sufficiently define the issues and reasonably inform the defendant of the claim which he or she is called upon to meet. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 612.) Plaintiff, as the master of his complaint, was free to choose his theory of action, and a court’s determination of whether plaintiff is entitled to recovery is based upon the evidence adduced in support of his chosen theory.

If, from the evidence before the court, a plaintiff has failed to establish an element of his cause of action as alleged, summary judgment for the defendant is proper. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) Plaintiff alleged his right to a cause of action based upon a specifically identified negligence theory of liability and was entitled to the benefit of every relevant fact necessary to succeed on that theory. His failure to provide sufficient evidence necessary to withstand defendant’s summary judgment motion, however, required the trial court to determine, as a matter of law, that plaintiff was not entitled to maintain his cause of action for negligence.

For the foregoing reasons, I would affirm the circuit court’s order granting summary judgment in favor of defendant.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    La SALLE NATIONAL BANK OF CHICAGO, as Trastee, et al., Plaintiffs-Appellees, v. HARRY AYOADE AKANDE, Defendant-Appellant.
    Second District
    No. 2—91—1167
    Opinion filed September 29, 1992.

      Mel Gaines, Ltd., of Chicago (Mel Gaines, of counsel), for appellant.
    George F. Fitzpatrick, of Wildman, Harrold, Allen & Dixon, of Chicago (Gary E. Dyal, of counsel), for appellees.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Harry Ayoade Akande, appeals from the judgment of the circuit court of Du Page County which denied his motion to quash service of summons and to vacate a default judgment entered against him. Defendant presents six issues for our review, which we consolidate into the following four issues: (1) whether defendant was properly subject to in personam jurisdiction in Illinois; (2) whether the trial court erred in allowing plaintiffs to proceed with discovery directed to the issue of jurisdiction; (3) whether the court erred in concluding that defendant’s failure to properly object to plaintiffs’ request to admit constituted an admission by defendant of the factual matters addressed in the request; and (4) whether the court erred in concluding that substitute service of process upon defendant in London, England, was proper.

This case arose out of a commercial lease guaranty entered into between defendant and plaintiffs, La Salle National Bank of Chicago, as trustee under trust No. 49475, and UIDC Management Company (UIDC). Plaintiff La Salle National Bank is the owner of legal title to retail store No. 238 in the Oak Brook shopping center, and plaintiff UIDC is the managing agent of the store. On July 29, 1981, plaintiff La Salle National Bank entered into a written lease for the rental of the store with Josephine Queen, Inc., an Illinois corporation. Under the lease guaranty, defendant was obligated to pay rent and other monies due under the lease in the event of a default by the tenant. The tenant allegedly defaulted on its lease payments, and on February 5, 1988, plaintiffs filed the instant lawsuit against defendant, seeking to recover the unpaid rent and other charges owing under the lease, plus costs and attorney fees.

On May 17, 1988, plaintiffs served summons and the complaint upon defendant’s sister-in-law, Yeside Sodipe, who resided at property owned by defendant at 17 W 361 Hillside Lane, Hinsdale, Illinois. On June 9, 1988, defendant filed a special and limited appearance and a motion to quash service of summons on the ground that he did not reside at the Hinsdale address. Based on the affidavits of the process server, James E. Liston, and Ms. Sodipe, and the briefs of the parties, the trial court concluded that the defendant lived in either London, England, or Nigeria. The court therefore granted defendant’s motion to quash.

On December 19, 1989, the plaintiffs’ process server, Arthur R. Levin, served the summons and complaint upon defendant’s brother, Joseph Akande, at the premises known as Flat 3, Two Hyde Park Gardens, London, England, where, according to Levin’s affidavit of service, defendant resided. The documents were also mailed to defendant at the London address. On February 15, 1990, the case was called for status. On that date, defendant having failed to appear, the court found defendant to be in default. The case was continued for a prove up of damages, and on May 3, 1990, the court entered judgment against defendant in the amount of $292,657.86 plus costs.

On February 26, 1991, defendant again filed a special and limited appearance and a three-count motion to quash service of summons and vacate the default judgment. Count I contested the court’s personal jurisdiction over defendant. Counts II and III questioned the legal sufficiency of the affidavit of service and challenged the propriety of the service of summons at the London address.

On March 14, 1991, the trial court issued an order denying count I of defendant’s motion to quash. On April 16, 1991, plaintiffs served interrogatories, requests to admit and a request for production of documents on defendant. On May 13, 1991, defendant’s attorney wrote to plaintiffs’ counsel, advising that defendant did not intend to respond to plaintiffs’ discovery requests prior to a determination that the court had jurisdiction over defendant.

On June 21, 1991, the court heard argument on the remaining counts in defendant’s motion. On June 27, 1991, the court found that the substituted service of process upon defendant in London was proper. The court concluded that Supreme Court Rule 201(1) (134 Ill. 2d R. 201(1)) allowed limited discovery relating to the question of jurisdiction and that a Rule 216 (134 Ill. 2d R. 216) request to admit was an appropriate discovery tool for that purpose. The court also found that defendant had not properly objected to plaintiffs’ request to admit and that the Rule 216 requests would be deemed admitted. The court therefore denied defendant’s motion to quash service of summons and vacate the default judgment. Defendant’s motion for rehearing and reconsideration was also denied, and defendant filed the instant appeal.

We first address defendant’s claim that the facts of this case are insufficient to subject him to the jurisdiction of the Illinois courts. In this regard, section 2 — 209(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1)), upon which plaintiffs maintain jurisdiction was founded, provides in pertinent part as follows:

“Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1).

An invocation of long-arm jurisdiction must satisfy two criteria: (1) the statutory requirements of section 2 — 209, and if those requirements are met, (2) the constitutional requirements of due process. (Financial Management Services, Inc. v. Sibilsky & Sibilsky, Inc. (1985), 130 Ill. App. 3d 826, 832.) Under section 2 — 209(a)(1) of the Code, even a single act of a defendant may be sufficient to find that business was transacted within this State, so long as the cause of action arises from that act. (Financial Management Services, 130 Ill. App. 3d at 833; People v. Parsons Co. (1984), 122 Ill. App. 3d 590, 597.) We believe the record establishes a transaction of business by defendant in Illinois which is sufficiently connected with the cause of action to render him amenable to suit in Illinois under section 2— 209(a)(1) of the Code.

Here, plaintiffs’ complaint alleged that defendant entered into and signed a lease guaranty with plaintiff La Salle National Bank to insure the payment of rent on commercial property located in Oak Brook, Illinois. The complaint incorporated by reference the lease guaranty and the lease, and the guaranty contained an Illinois notary seal attesting to the fact that defendant executed the document in Illinois. Since under the guaranty the defendant was required, in the event of default by the tenant, an Illinois corporation, to remit all monies due and owing under the lease to the Illinois plaintiffs, it is also reasonable to conclude that the lease and the guaranty were to be performed in Illinois. Plaintiffs' complaint further alleged that, when the tenant defaulted on the lease, defendant failed to pay the monies that then became due and owing. Consequently, we find that the facts of this case sufficiently establish that defendant transacted business within the State of Illinois and that this transaction gave rise to plaintiffs’ claim against him.

Kotlisky v. Kotlisky (1990), 195 Ill. App. 3d 725, cited by defendant for the proposition that the “mere execution of a contract within Illinois is not by itself a sufficient transaction of business to fit within the long-arm statute,” is inapposite. In that case, the plaintiffs were seeking to recover money owed to a decedent’s estate which was being probated in California. In reaching its decision, the court concluded that recovery of a debt owed to an estate being probated in California did not “appear to invoke any special ties to Illinois.” (Kotlisky, 195 Ill. App. 3d at 737.) Clearly, unlike the situation in Kotlisky, the present case does not involve any other State or jurisdiction which may have an interest in or ties to the parties’ transaction.

Having determined that jurisdiction over defendant existed under the long-arm statute, we must next consider whether the assertion of such jurisdiction comported with due process. The due process clause “ ‘requires only that in order to subject a defendant to a judgment in personam, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ” Financial Management Services, 130 Ill. App. 3d at 833-34, quoting International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.

We find sufficient minimum contacts here. While present in Illinois, defendant executed a lease guaranty to ensure the payment to Illinois plaintiffs of rent on property located in Illinois. Thus, defendant took advantage of a business opportunity by entering into a guaranty, the performance of which was related entirely to the lease of real estate and the operation of a business located in this State. In short, defendant purposely availed himself of the privilege of conducting activities within Illinois and should reasonably have anticipated that any lawsuit against him would be filed in Illinois, the situs of the execution of the guaranty and the place where the lease and the guaranty were likely to be performed. See People v. Parsons Co., 122 Ill. App. 3d at 601; see also World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 292, 62 L. Ed. 2d 490, 498,100 S. Ct. 559, 564.

Defendant maintains that it would be “extremely burdensome and inconvenient for [him] to travel from England or Nigeria to defend against the present action.” However, it was not unduly inconvenient for defendant to come to Illinois when he entered into the guaranty with plaintiffs, and it should be no more inconvenient for him to return now to defend in this forum. See Ronco, Inc. v. Plastics, Inc. (N.D. Ill. 1982), 539 F. Supp. 391, 400.

Defendant has raised additional questions, which we also find to be without merit, concerning the validity and propriety of the trial court’s dismissal of count I of his motion to quash. First, defendant contends that the court failed to comply with section 2 — 301 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 301), which provides in pertinent part as follows:

“(a) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. ***
(b) If the reasons for objection are not apparent from the papers on file in the case, the special appearance shall be supported by affidavit setting forth the reasons. In ruling upon the objection, the court shall consider all matters apparent from the papers on file in the case, affidavits submitted by any party, and any evidence adduced upon disputed issues of fact.” Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 301(a), (b).

Specifically, defendant argues that, in ruling on his motion to quash, the trial court failed to take into consideration the affidavits of defendant and Joseph Akande, which, in the absence of counteraffidavits, must be accepted as true. (Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 901; In re Estate of Oelerich (1961), 31 Ill. App. 2d 457, 461.) First, there is nothing in the record to indicate that the trial court in fact failed to consider the affidavits of defendant or his brother. Moreover, we agree with plaintiffs that consideration of these affidavits did not require the trial court to rule in defendant’s favor on the issue of in personam jurisdiction based on the transaction of business in Illinois.

We acknowledge and agree with the statements of law in Sauers and Oelerich. Nevertheless, Supreme Court Rule 191(a) states that “affidavits submitted in connection with a special appearance to contest jurisdiction over the person, as provided by section 2 — 301(b) of the Code *** shall set forth with particularity the facts upon which the claim *** or defense is based; *** [and] shall not consist of conclusions but of facts admissible in evidence.” 134 Ill. 2d R. 191(a).

While containing statements relative to defendant’s place of residence, the affidavit of defendant’s brother did not contain a single statement directed to the question of defendant’s business activities in Illinois. Defendant’s affidavit contains similar statements regarding his residency. As to business activities, defendant states only that “December 19, 1989, [the date of substituted service] prior thereto and presently, Affiant was not engaged in or doing business in the State of Illinois, U.S.A.” We believe this statement constitutes nothing more than a self-serving legal conclusion in contravention of Supreme Court Rule 191(a). (Young v. Chicago Federal Savings & Loan Association (1989), 180 Ill. App. 3d 280, 284.) As such, the Sauers and Oelerich cases do not apply, and plaintiffs’ failure to file counter-affidavits is not fatal to an assertion of personal jurisdiction over defendant. Moreover, since defendant did not and in fact cannot deny that he entered into the lease guaranty in Illinois, his affidavit did not serve to put into evidence any facts which expressly contradicted or contested the prima facie evidence of personal jurisdiction set forth in plaintiffs’ complaint and in the guaranty itself.

Next, defendant contends that the court ruled prematurely on the question of in personam jurisdiction. However, plaintiffs correctly note that, at the March 8, 1991, hearing on count I of defendant’s motion to quash, the defendant did not request that the court order full briefing of the motion or that it otherwise defer its ruling. Instead, as demonstrated by the following colloquy, defendant’s attorney on that date encouraged the court to reach a decision on the jurisdictional issue, did not request that plaintiffs file a written response, and did not object to the court’s stated intention to rule:

“THE COURT: What do you gentlemen want me to do: determine whether I have jurisdiction over him?
MR. GAINES [defendant’s attorney]: I’m all for that.
THE COURT: Okay.
* * *
THE COURT: Let me see if I get my role straight as well as your role.
My role first is to ascertain whether I have jurisdiction over Mr. Akande, is that right, and I go ahead and do that?
MR. DYAL [plaintiffs’ attorney]: Today.
THE COURT: Well-
. MR. DYAL: Based on service or whether — assuming service is correct, whether you can in any event assert jurisdiction.
THE COURT: Yes.
MR. DYAL: I don’t think we have any problem with that.
THE COURT: Okay.”

Based on the above, defendant cannot now complain that the procedure followed in the trial court was somehow improper or irregular.

Finally, defendant contends that the trial court actually avoided or failed to rule on the issue of its personal jurisdiction over defendant. Defendant bases this contention on the language of the court’s March 14, 1991, letter of opinion, which states in part:

“Count I claims that this court lacks personal jurisdiction over the defendant because he does not do business in the State of Illinois[,] has committed no tortuous [s-ic] act in this jurisdiction and is a resident of Nigeria, Africa. From the history of this case of which I am reasonably familiar, the contention of the plaintiff is that Mr. Akande entered into a contract with the plaintiff while in the United States and it is this act that provides jurisdiction over the subject matter of the suit regardless of what his citizenship is or where he resides.”

It is defendant’s position that the only reasonable interpretation of the court’s letter opinion is that the court decided only that it had subject-matter jurisdiction over the case. We disagree and conclude that defendant’s argument in this regard is faulty from both a legal and factual standpoint. The reference to subject matter jurisdiction notwithstanding, we think it is clear that the court’s ruling turned on the fact that defendant entered into the lease guaranty in Illinois and was based, therefore, on the Illinois long-arm statute regarding the transaction of business in this State. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1).) As such, the court did not improperly avoid rendering a decision on the issue of personal jurisdiction.

We next consider defendant’s argument that plaintiffs’ attempt to obtain discovery with respect to defendant’s place of residence, and therefore with respect to the validity of service of process, was improper. Specifically, defendant contends that discovery was not proper and should not have been allowed until after the court determined it had personal jurisdiction over defendant and further that discovery was improper because plaintiffs failed to obtain leave of court prior to initiating discovery. We disagree on both counts.

Supreme Court Rule 201(1) states:

“(1) Discovery Pursuant to Special Appearance. Discovery shall be permitted on the issues raised in a special appearance filed pursuant to section 2 — 301 of the Code of Civil Procedure, provided such discovery is limited to the court’s jurisdiction over the person of the defendant.” (134 Ill. 2d R. 201(1).)

Here, defendant’s appearance was filed pursuant to section 2 — 301 of the Code, and plaintiffs’ request to admit properly sought discovery relative to that appearance. Clearly, defendant’s assertions of error find no support in the language of Rule 201(1).

As to defendant’s argument that discovery was improper because the trial court had not yet determined whether it had jurisdiction over defendant, we have already held that the trial court properly found defendant to be subject to the jurisdiction of the Illinois courts, pursuant to section 2 — 209(a)(1) of the long-arm statute. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(a)(1).) The court’s ruling in this regard was entered on March 14, 1991. Plaintiffs’ request to admit was filed thereafter, on April 16, 1991. Thus, the trial court actually determined, before discovery was initiated by plaintiffs, that it could assert personal jurisdiction over defendant. Defendant’s argument is therefore without factual support in the record. As demonstrated below, it is also without legal support.

In support of his argument that Rule 201(1) discovery may not be permitted until after it has been determined that personal jurisdiction exists, defendant cites Koplin v. Saul Lerner Co. (1964), 52 Ill. App. 2d 97, R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, Longo v. AAA-Michigan (1990), 201 Ill. App. 3d 543, and In re Marriage of Falstad (1987), 152 Ill. App. 3d 648. These cases are either inapposite or actually tend to support plaintiffs’ position that Rule 201(1) discovery was in fact proper in this case.

Defendant cites Koplin and R. W. Sawant for the proposition that any orders entered prior to a determination of personal jurisdiction are null and void. As plaintiffs correctly note, however, Koplin was decided prior to the enactment of Rule 201(1) and is not, therefore, applicable to the present case. In R.W. Sawant, our supreme court stated that “[a] judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.” (Emphasis in original.) (R.W. Sawant, 111 Ill. 2d at 309.) The issue being decided in R.W. Sawant, however, was whether the defendant in that case had used proper procedure in contesting jurisdiction. The case had absolutely nothing to do with Rule 201(1) discovery initiated for the limited purpose of ascertaining the court’s jurisdiction.

Longo simply stands for the proposition that it may not be an abuse of the trial court’s discretion to deny a motion for additional discovery where the court already has before it information relevant to the question of jurisdiction. (Longo, 201 Ill. App. 3d at 553.) In addition, the court in Longo did not address the applicability of Rule 201(1).

Falstad actually contradicts defendant’s position and supports that of plaintiffs. In Falstad, the defendant had filed a special and limited appearance claiming that the court did not have jurisdiction over him because he had not been properly served. The plaintiff sought to establish the validity of service of process by noticing the deposition of the defendant. The trial court ruled that the plaintiff’s attempted discovery was improper and that discovery could not proceed until the court had ruled on the jurisdictional question. The appellate court reversed and held that the trial court had erred in denying the plaintiff the right to conduct discovery on the issue of service of process, the very issue raised by the defendant’s special and limited appearance. Falstad, 152 Ill. App. 3d at 653-54.

With regard to Rule 201(1), the Falstad court stated as follows:

“The rule strikes a balance between *** conflicting interests by allowing the party asserting jurisdiction to avail itself of the tools of discovery while not penalizing the party contesting jurisdiction for complying with discovery. The rule accomplishes that end by limiting discovery solely to the issues raised by the special appearance, thus affording the circuit court a more complete picture of the facts and allowing for a more informed decision in that forum.
* * *
*** To the extent that the circuit court believed that it was required to consider the jurisdictional question before permitting limited discovery, Rule 201(l) is in conflict with that view and controls the issue. ***
* * *
In summation, we hold that where a special and limited appearance has been entered for the purpose of contesting the circuit court’s personal jurisdiction over defendant, and where plaintiff requests discovery on the issues raised in that appearance, the trial court, pursuant to the provisions of Supreme Court Rule 201(l), must allow that inquiry.” 152 Ill. App. 3d at 653-55.

In support of his further argument that discovery was improper because plaintiffs failed to obtain leave of court prior to initiating such discovery, defendant again refers us to the Falstad and Longo cases. In addition, he cites Mueller v. Insurance Benefit Administrators, Inc. (1988), 175 Ill. App. 3d 587. Simply stated, neither Falstad nor Longo says anything about the need to obtain leave of court prior to initiating Rule 201(1) discovery, and defendant’s statements to the contrary are false and misleading. As plaintiffs correctly point out, Mueller, on the other hand, stands only for the proposition that a plaintiff may not initiate discovery without leave of court before all defendants have filed appearances. (Mueller, 175 Ill. App. 3d at 599.) In reaching this conclusion, however, the court in Mueller was not relying on Rule 201(1). Rather, the court was relying on Rule 201(d) (134 Ill. 2d R. 201(d)), which is inapplicable here since plaintiffs’ discovery requests were served well after defendant had filed his special and limited appearance.

Finally, plaintiffs also correctly note that, if defendant felt that the attempted discovery was improper or harassing, he could have filed a motion for a protective order pursuant to Supreme Court Rule 201(c), which provides in part:

“The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” (134 Ill. 2d R. 201(c)(1).)

Defendant did not make such a request, and we conclude that the court’s decision to allow inquiry into the question of defendant’s residency was proper. See Falstad, 152 Ill. App. 3d at 654.

Next, we address defendant’s contention that the trial court erred in finding that defendant failed to properly object to plaintiffs’ request to admit and that the factual matters addressed in the request would therefore be deemed admitted. In ruling on this matter, the trial court in its June 27,1991, letter of opinion stated as follows:

“I agree with the plaintiff that Supreme Court Rule 201(l) allows limited discovery relating to the question of jurisdiction, and that a Rule 216 request is an appropriate discovery tool for this purpose.
In view of the fact that defendant did not file objections to the 216 request, but merely wrote a letter to the plaintiff suggesting that it was an abuse of the discovery process to use a 216 request in this situation, that [sic] these requests are deemed to be admitted. Recent cases have held that in appropriate situations, the court may invoke Rule 183 to extend the time within which to answer the request to admit, if good cause can be shown, however that relief was not sought by the defendant nor does it appear justified.
Based upon the foregoing, I conclude that the plaintiff has established proper substitute service upon the defendant and I deny the defendant’s motion to quash same and to vacate the default judgment previously entered.”

Specifically, defendant argues that his attorney’s letter to plaintiffs’ counsel constituted an “objection” within the meaning of Rule 216 (134 Ill. 2d R. 216) and that it was plaintiffs who failed to comply with Rule 216 by failing to raise the issue of defendant’s objection by motion before the trial court. It is the plaintiffs’ position that defendant improperly failed to file an objection to their' request to admit with the trial court and that defendant’s attorney’s letter was not a sufficient objection, but instead constituted a refusal to respond altogether, thus negating any obligation on plaintiffs’ part to file any motion with the trial court.

Supreme Court Rule 216(c) provides in part as follows:

“(c) Admission in the Absence of Denial. Each of the matters of fact and genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission *** (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.” 134 Ill. 2d R. 216(c).

First, we agree with defendant that his attorney’s letter to plaintiffs’ counsel constituted an objection within the meaning of Rule 216(c). In the letter, which was sent to plaintiffs’ counsel within the 28-day time period set forth in Rule 216(c), defendant’s attorney states, “I am in receipt of your request for production, request to admit and a set of interrogatories. Defendant has no intention of answering either request at this stage.” (Emphasis added.) As was also indicated in the letter, defendant based his objection on the court’s holding in Koplin v. Saul Lerner Co. (1964), 52 Ill. App. 2d 97. Although the merits of defendant’s objection certainly were questionable, as evidenced by our earlier statements regarding the applicability of Koplin to the facts of the instant case, we believe, nevertheless, that the letter constituted a “written objection[ ] on the ground that some or all of the requested admissions [were] *** otherwise improper.” (134 Ill. 2d R. 216(c).) Thus, defendant’s correspondence was not a mere letter suggesting an abuse of the discovery process, as found by the trial court.

We also agree with plaintiffs, on the other hand, that any objection by defendant to the request to admit should have been filed with the trial court. In this regard, plaintiffs refer us to Rule 7.02(a) of the Rules of the Circuit Court of the Eighteenth Judicial Circuit, which provides:

“Restrictive filing. Unless otherwise ordered by the Court, depositions, interrogatories, answers or responses thereto and other discovery documents, shall not be filed with the Clerk of the Court except as necessary to resolve disputed issues of procedure, fact, or substantive law or pursuant to Supreme Court Rule 207. Rule 7.02 shall not apply to requests to admit facts or to the answers or responses thereto.” (Emphasis added.) 18th Jud. Cir. R. 7.02(a) (1991).

Plaintiffs’ position on this point is further supported, in our opinion, by the Historical and Practice Notes to Rule 216, which state:

“Rule 216 does not in terms require that originals or copies of requests to admit or the answers thereto be filed with the court. However, rule 12(a) provides that if service of a paper is required, as it is if the request is to be effective, proof of service shall be filed with the clerk. A copy of the request should be served on the party to whom it is addressed and on each other party and the original should be filed with proof of service with the clerk of court. The same practice should be followed with respect to answers and objections.” (Emphasis added.) Ill. Ann. Stat., ch. 110A, pars. 216(a), (b), (c), Historical & Practice Notes, at 368 (Smith-Hurd 1985).

We do not believe, however, that defendant’s failure to file his objection with the trial court should be fatal to his position or determinative of the question of whether the facts set forth in the request to admit were properly deemed admitted. This is so because we also agree with defendant that plaintiffs had a concomitant duty to raise the issue of the objection in a motion before the trial court pursuant to the provision of Rule 216(c) that provides, “[a]ny objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.” (Emphasis added.) 134 Ill. 2d R. 216(c).

We also believe, plaintiffs’ argument to the contrary notwithstanding, that defendant did not refuse to respond to the discovery request altogether, thus negating plaintiffs’ obligation to file the appropriate motion. This is demonstrated by the statement in defendant’s attorneys’ letter that he did not intend to respond “at this stage,” thus evincing a willingness to respond once the objection was addressed and resolved. (Emphasis added.)

Although, as plaintiffs correctly note, the matter of the request to admit was to some extent discussed at the hearing on defendant’s motion to quash, the posture of the case at that point, absent a specific motion by plaintiffs raising the issue, was simply not such that defendant was on sufficient notice that the court was prepared to issue a final ruling that the facts referenced in the request to admit would be deemed admitted. We believe it is far more likely that defendant was under the impression that the court would first rule on the threshold question of whether his objection to discovery, based on the Koplin case, had any merit. Instead, the court ruled that discovery was permissible and proceeded to deem the facts admitted. Since this ruling was handed down not in open court, but in a letter opinion sent to the attorneys, defendant did not at that time have the opportunity to voice further objection or request time to file specific admissions or denials.

Under these circumstances, we think the better practice would have been for the trial court to have allowed defendant such an opportunity. Thus, while a request to admit is a discovery procedure over which the trial court has broad discretion (Homer G. Dickson & Co. v. Barraza (1983), 115 Ill. App. 3d 5, 7), it is also true that Rule 216(c) is not to be applied automatically, and courts may allow late filings in order to prevent injustice (Sims v. City of Alton (1988), 172 Ill. App. 3d 694, 698). It has also been stated that, where the request to admit concerns the central issue in the case and the requesting party cannot show prejudice from a late filing, the trial court may allow a late response. Thomas v. Village of Westchester (1985), 132 Ill. App. 3d 190, 194.

Here, while the specific question of a late response is not at issue, the sufficiency and even the very existence of a valid objection has been contested, and we believe similar relief was warranted. It is important to note that these proceedings took place after a default judgment had been entered against defendant and that the court’s ruling on the request to admit was crucial to the jurisdietional/service of process issue then pending before the court. Since plaintiffs have not demonstrated how they would have been prejudiced by allowing defendant to provide specific responses to the request to admit, and in order to prevent possible injustice, we conclude that the trial court abused its discretion when it deemed the facts referenced in plaintiffs request to be admitted.

Defendant’s final contention is that the trial court erred when it determined that defendant was properly served by substitute service of process in London, England. It is defendant’s position in this regard that the court’s decision was based not on the facts of the case, but rather on the fact that, in the court’s opinion, defendant failed to properly object to plaintiffs’ request to admit. The trial court’s June 27, 1991, letter opinion supports this interpretation. After finding that defendant failed to properly object and that plaintiffs’ requests were to be deemed admitted, the court stated, “[b]ased upon the foregoing, I conclude that the plaintiff has established proper substitute service upon the defendant and I deny the defendant’s motion to quash same and to vacate the default judgment previously entered.” (Emphasis added.) In addition, plaintiffs expressly admit as much in their brief, when they state, “the trial court properly relied on that discovery to determine the validity of service on the defendant at his London residence.” (Emphasis added.) That being the case, and since we have concluded that the trial court erred in ruling as it did on plaintiffs’ request to admit, we find that it would be both unnecessary and premature to address the issue of the validity of service of summons at this time.

For all of the foregoing reasons, the March 14, 1991, letter opinion and order of the circuit court of Du Page County, finding that the court had personal jurisdiction over defendant based on the long-arm statute and denying count I of defendant’s motion to quash, is affirmed. The portion of the June 27, 1991, opinion and order finding that Supreme Court Rule 201(1) allowed limited discovery on the issue of jurisdiction and that a Rule 216 request to admit was an appropriate method to conduct such discovery is also affirmed. That portion of the court’s June 27, 1991, opinion and order finding that defendant failed to properly object to plaintiffs’ request to admit and deeming the facts referenced therein admitted and finding that proper substitute service on defendant had therefore been established, however, is reversed, and the cause is remanded with instructions to allow defendant the opportunity to further respond to plaintiffs’ request to admit.

Affirmed in part; reversed in part and remanded.

NICKELS and DOYLE, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    EUGENIA ROCHE, Plaintiff-Appellee, v. FIRESIDE CHRYSLER-PLYMOUTH, MAZDA, INC., et al., Defendants-Appellants.
    Second District
    No. 2—91—0141
    Opinion filed September 24, 1992.

      Robert E. Gordon and Lisa Thaviu, both of Gordon & Gordon, Ltd., of Chicago, for appellants.
    Maureen Flaherty and Norman H. Lehrer, both of Lehrer, Flaherty & Canavan, P.C., of Wheaton, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Eugenia Roche, filed a complaint in the circuit court of Du Page County against defendants, Fireside Chrysler-Plymouth, Mazda, Inc. (Fireside), Allen Gaines, Rick Weissberg, Roy Jacobsen and Jack Carroll. Plaintiff sought actual and punitive damages based on defendants’ conversion of plaintiff’s property. Additionally, plaintiff sought actual and punitive damages as well as reasonable attorney fees and costs based on defendants’ violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act). (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.) A jury rendered a verdict in favor of plaintiff and against defendant Fireside on the conversion count, awarding plaintiff $1,155 in compensatory damages and $1,250 in punitive damages. The court heard arguments on the statutory fraud count, finding Fireside had willfully violated sections 2 and 2C of the Consumer Fraud Act. (Ill. Rev. Stat. 1989, ch. 121½, pars. 262, 262C.) The court awarded plaintiff $750 in damages, $2,175.30 in costs, and $31,368.75 in attorney fees. Additionally, the court awarded plaintiff $350.93 in interest on the amount awarded by the jury.

Fireside appeals, contending: (1) that the trial court erred in finding that Fireside violated the Consumer Fraud Act, and (2) that the trial court abused its discretion in awarding plaintiff attorney fees under the Act.

The record in the instant case is large, comprising over 2,000 pages. A recitation of all of the testimony presented would serve only to unduly lengthen this opinion. Therefore, testimony will be recounted only insofar as it is necessary to our disposition of the instant issues.

On Friday, July 12, 1985, plaintiff, accompanied by her husband, went to Fireside to purchase a Chrysler Laser. At the time, plaintiff owned a 1983 Buick Regal which she planned to use as a trade-in on a new Laser. At Fireside plaintiff spoke with Mike Nicolosi, a salesman, who showed her new Lasers. Plaintiff testified that after finding a car she liked, she and Nicolosi agreed on a price for it. Later, Nicolosi would testify that a document, listing the agreed price and signed by plaintiff and him, was a worksheet and not a binding agreement. According to Nicolosi, the final contract to purchase a car was completed in the finance department.

After reaching an agreement regarding the price of the new Laser, plaintiff spoke with defendant Roy Jacobsen, who introduced himself as a finance manager with Fireside. While talking with Jacobsen, plaintiff expressed an interest in obtaining her own financing because she thought Fireside’s finance rates were too high. Plaintiff said that Jacobsen had “no problem” with this decision, telling plaintiff that she had the option of finding her own financing or financing the Laser through Fireside. Jacobsen had plaintiff sign a promissory note, stating that she had seven days in which to obtain her own financing.

According to plaintiff, she signed a contract on July 12 for the purchase of the Laser. As set forth in the agreement, the trade-in value of plaintiff’s Buick Regal was $7,865, and the balance still owed was $6,755.13, leaving a net equity in the Regal of $1,109.87. Plaintiff acknowledged signing other documents on July 12, a buyer’s order and invoice form reflecting a cash deal rather than a finance transaction, an extended warranty in the amount of $399, and a delivery receipt. Jacobsen’s signature or initials appeared on each of these documents. Additionally, plaintiff filled out a credit application while in Jacobsen’s office. Eventually, plaintiff left Fireside with the Laser; she left her 1983 Buick Regal at Fireside.

On the following Monday after failing to obtain financing at three different banks, plaintiff returned to Fireside. At that time she told Jacobsen that she wanted to finance the Laser through Fireside. Plaintiff testified that Jacobsen told her to come back tomorrow because he was “too busy.” The next day, Tuesday, plaintiff returned to Fireside. According to plaintiff, Jacobsen again told her he was too busy; he asked plaintiff to phone him on Wednesday. Plaintiff stated that when she telephoned Jacobsen on Wednesday, he told her that he would have “everything ready” on Friday evening. It was plaintiff’s testimony that when she met with Jacobsen on Friday, he announced that he had made a “mistake” and had to increase the price of the Laser by $1,000.

Plaintiff related that she told Jacobsen that she did not have the $1,000. He stated that she would have to buy a cheaper or used car. Plaintiff said that she told Jacobsen, “No, I would rather have my used car back” and that Jacobsen replied, “Well, I’m sorry. You’re going to have to buy another car.”

Plaintiff recalled that a salesman showed her husband and her other cars on Fireside’s lot, but she did not see anything she liked. The salesman offered to show her the cars in Fireside’s used car lot. Plaintiff testified that she told the salesman, “I don’t want a used car. I would rather have my used car back.” According to plaintiff, the salesman replied, “It’s gone.” Finding no other car she wanted to buy, plaintiff made arrangements with the salesman to return on Monday morning to look at the used cars Fireside would obtain on the weekend.

On Monday morning plaintiff telephoned her lawyer, James Guthrie, to seek his advice regarding the car purchase. According to plaintiff, Guthrie advised her to proceed to Fireside and to let him know what happened. Upon her arrival at Fireside, plaintiff recalled that she met with Jacobsen, who told her that if she could not supply the extra $1,000 needed for the purchase of the Laser, he could add it into the financing of the car. Jacobsen produced a retail installment contract and said, according to plaintiff, “Now, Goddam it, sign it.” Plaintiff recalled that she told Jacobsen she wanted her lawyer to look over the agreement whereupon Jacobsen picked up the contract, tore it up, and threw it in the garbage. Later in the trial, Fireside would enter into evidence a document which it alleged was the contract Ja-cobsen had asked plaintiff to sign.

Plaintiff said she asked Jacobsen if she could use his telephone; he refused. Plaintiff used the public telephone in the service area to try to phone Guthrie. When she could not reach him, she called a friend, Nick Consold, a sales manager at McGrath Buick, who advised her to leave Fireside. Plaintiff stated that she walked outside to the place where she had parked the Laser and found it blocked in by two other cars. According to plaintiff, five salesmen were standing around the car, laughing. She returned to the showroom, observing Jacobsen in the front window laughing at her. Plaintiff recalled that she handed Jacobsen the keys to the Laser and then walked home from the dealership, a distance of approximately 10 miles.

Plaintiff testified that she never saw her 1983 Buick Regal again nor the 1985 Laser. Also, Fireside never sent her $1,100, the difference between the price of the trade-in on the Buick and the amount remaining to be paid off on that car. Plaintiff subsequently contacted her lawyer, Guthrie, who wrote Fireside a letter, demanding $1,100. According to plaintiff, Fireside never responded to Guthrie’s letter.

A few days after plaintiff left the Laser car keys with Jacobsen she purchased a car from McGrath Buick. Her friend Nick Consold set up the deal for her. Plaintiff had to borrow money from her parents to put down on the car. Plaintiff denied telling Jacobsen that she did not want the Laser because she could obtain a better deal from Con-sold.

Roy Jacobsen testified that he worked for Fireside from 1982 to 1985, first as a salesman, then as a used car manager, and finally in the finance office as a biller. Jacobsen stated that he never worked for Fireside as a finance manager and never told customers that he was a finance manager. Later, Jacobsen recanted this testimony, stating that on occasions he used the term “finance manager” and that occasionally he was introduced to customers as a finance manager. He admitted that no one at Fireside authorized him to use this title.

Jacobsen related that as a biller he prepared the documents necessary for delivery of an automobile to a customer, such as rust proofing and warranty contracts, license and title papers for the Secretary of State, and financing contracts. Jacobsen stated that he was authorized to sign these documents for Fireside. Jacobsen recalled that Jack Carroll, vice-president of finance, looked over all the documents after Jacobsen prepared them to make certain that the paper work was correct and accurate. Jacobsen stated that he knew he was preparing contracts and that it was important to be honest with the public. According to Jacobsen it was the policy of Fireside to treat its customers honestly, courteously, and kindly.

Jacobsen remembered his meeting with plaintiff regarding the purchase of the 1985 Laser. When plaintiff met with Jacobsen, the price of the car had already been established by the salesman with whom she had dealt. Jacobsen said the document prepared by the salesman was a buyer’s order and invoice from the sales department and did not constitute a contract even though the document set forth the names of the purchaser and seller, the sale price of the car, the description of the trade-in vehicle, the net equity on the trade-in vehicle, and the VIN number of the new automobile. Jacobsen was asked to read the print above the signature of the salesman, Mike Nicolosi, which stated that the order comprised the “entire agreement” affecting the purchase of the automobile. Jacobsen acknowledged that this statement meant that the document constituted the agreement between the parties and that no other agreement would be accepted.

Jacobsen recalled that he sold plaintiff an extended warranty on the Laser. Jacobsen acknowledged that this warranty was in effect at the same time as the standard new car warranty on the car. It was Jacobsen’s testimony that the extended warranty provided more coverage than the standard warranty. Jacobsen admitted that Fireside made a profit from the sale of extended warranties.

Jacobsen testified that plaintiff and he discussed financing the Laser. Since Fireside was a Chrysler agency, it offered financing through Chrysler Credit Corporation (CCC). Plaintiff and Jacobsen discussed payments and conditions under this plan. Jacobsen said that plaintiff did not like the interest rates offered by CCC and decided to obtain financing, elsewhere. Consequently, the purchase of the car became a cash transaction, and Jacobsen gave plaintiff the paper work needed for her to obtain financing from a lending institution. Jacob-sen stated that he told plaintiff she had the alternative of obtaining financing through CCC if she wanted. Jacobsen agreed that whether plaintiff obtained financing through CCC or elsewhere, the agreed purchase price of the Laser would remain the same and not change from one contract to another. Additionally, the price offered for her trade-in vehicle was set and would not change.

Jacobsen related that plaintiff left the Buick Regal at the dealership on July 12, the night she agreed to purchase the Laser. Documents entered into evidence showed that plaintiff’s Regal was sold the very next day, July 13.

Jacobsen acknowledged that on July 12 plaintiff signed many documents; some had to be signed in four or five places. Jacobsen said he explained each paper to plaintiff and gave her the opportunity to read each one. Jacobsen identified the promissory note which he prepared for plaintiff’s signature. He recalled that plaintiff read the note to herself and that he also read the note to her, showing her the balance due on the note before she signed. According to the note, plaintiff had seven days to obtain financing.

Jacobsen did not recall speaking with plaintiff on the telephone during the seven-day period, nor did he recall plaintiff returning to Fireside within two or three days to seek financing with CCC. Jacob-sen did not remember twice telling plaintiff she was to come back the next day because he was too busy. Later, Jacobsen would testify that he must have had a conversation with plaintiff sometime within the seven-day period because he tried to get financing for her during that time. Jacobsen recalled talking with Carroll about contacting CCC to see what it would require to finance the Laser. It was Jacobsen’s testimony that after Carroll contacted CCC, he told Jacobsen a total down payment of $2,000 was required.

When plaintiff returned to Fireside after the seven-day period had expired, she was, by Jacobsen’s testimony, “sort of mad” because she could not obtain her own financing and knew that her payments would be higher through Fireside. It was Jacobsen’s testimony that plaintiff told him she did not want the Laser because the payments were too high. Plaintiff told Jacobsen she wanted her own car back. Jacobsen told her it had been sold. According to Jacobsen, plaintiff became mad, dropped the Laser keys on his desk, and left the dealership. Jacobsen denied that the Laser was blocked in by other cars and that he laughed at plaintiff. Jacobsen said that plaintiff’s leaving was not a funny matter, as it cost him a commission.

After plaintiff left Fireside, Jacobsen said he discussed plaintiff’s unhappy state with Carroll, who told Jacobsen that he would telephone plaintiff and try to work the matter out. Jacobsen did not know whether Carroll spoke with plaintiff.

It was Jacobsen’s testimony that he did not do anything wrong in his transaction with plaintiff. According to him, he never told plaintiff that she had to pay more money for the Laser when she returned to Fireside to obtain financing. WMe Jacobsen acknowledged that the figures on the original agreement prepared by salesman Nicolosi, pertaining to the cash price of the Laser and the amount allowed for the trade-in vehicle, differed from the figures on the retail installment contract prepared by Jacobsen when plaintiff returned to Fireside, Ja-cobsen maintained that the unpaid balance on both documents remained the same. Jacobsen related that because plaintiff could not afford $1,000 more down on the Laser, Fireside raised the trade-in allowance for her car by $1,000 to compensate. The list price then also had to be raised $1,000, but the cost of the car, according to Ja-cobsen, was the same. Jacobsen testified that when plaintiff came into Fireside on July 22 to discuss the financing of the car, she told Jacob-sen to keep the car. Jacobsen denied swearing at plaintiff and telling her to sign the retail installment contract when he presented it to her.

Jack Carroll testified that he worked at Fireside from September 1980 to about July 1987, first as a biller and then as head of the finance department. Carroll admitted that he created the title of “vice president of finance,” which appeared on his business cards, and that no one at Fireside authorized him to use the title. Carroll related that the billers in his department referred to themselves as finance managers.

Carroll stated that Jacobsen had been authorized to sign contracts on Fireside’s behalf and that, under Carroll’s supervision, Jacobsen was authorized to use the title “manager” when he was signing documents. According to Carroll, Jacobsen was a satisfactory employee, who conducted himself properly in dealing with customers and, to Carroll’s knowledge, had never done anything dishonest during the time he worked under Carroll’s supervision. Carroll admitted that he knew there had been allegations of Jacobsen’s dishonesty in the instant case and in other cases by individuals represented by plaintiff’s lawyer.

Carroll recalled that Fireside had received a letter from the Attorney General’s office regarding a complaint it had received from plaintiff. Rick Weissberg, one of Fireside’s owners, told Carroll to investigate the complaint. Carroll identified a letter dated January 29, 1986, which he sent to the Attorney General’s office in response to its letter. It was Carroll’s testimony that his letter was prepared by Fireside’s manager of customer relations. Carroll acknowledged that he had read the letter to make sure the contents were correct. Carroll admitted that the fourth paragraph of the letter, stating that plaintiff had not divulged to Fireside on July 12, 1985, that a large sum was still owed on her trade-in vehicle, was not true. According to Carroll, he never sent another letter to the Attorney General’s office to correct the mistake because he did not realize the error until he reread the letter prior to his testifying at trial.

Carroll recounted that, prior to the letter from the Attorney General, Fireside had received a letter from plaintiff’s lawyer, James Guthrie. It was Carroll’s testimony that he telephoned Guthrie and explained that it was impossible to return plaintiff’s Regal since it had been sold but that Fireside would pay plaintiff $1,100, the difference between the trade-in allowance on the Regal and the amount owed on the vehicle. Carroll said he told Guthrie that, in return, he wanted a release from plaintiff as to any future claims. According to Carroll, Guthrie responded that he did not know whether Carroll’s proposition was satisfactory. Guthrie would later testify that he never received any response, written or oral, to his letter to Fireside, that he never spoke with Carroll, and that no one from Fireside made an offer to him to pay plaintiff $1,100.

Carroll acknowledged that it was a common practice among car dealers to sell trade-in vehicles before the dealers acquired titles to the vehicles. Carroll also acknowledged that it was a common practice in the auto industry for an agent of a dealership to sign title papers when it possessed power of attorney for a customer. Earlier, plaintiff had admitted signing a document entitled “POWER OF ATTORNEY” on July 12 but stated that she had not read the document and that no one had explained to her that it gave Fireside the right to sign her name on the title.

Carroll also testified that in the auto industry the prices on trade-in vehicles were often inflated to show equity where it did not really exist.

Allen Gaines, one of the owners of Fireside, testified that Jacob-sen worked in the finance and insurance department as a biller. According to Gaines, Jacobsen never was a finance manager and if he used that term on any paper work, it was misleading.

Gaines stated that he knew it was not true that plaintiff was asked to pay an additional $1,000 for the purchase of the Laser. Gaines explained that although the terms of a sale might be changed, the price of a car was never raised after Fireside sold a car. Gaines believed that Fireside had done nothing wrong in dealing with plaintiff. He acknowledged that if his employees kept the Laser and made plaintiff walk home, that conduct would have been improper. Gaines did not think that this occurrence had happened although he admitted that he was not present when plaintiff returned the Laser and did not know who was present.

Gaines stated that he never saw the letter James Guthrie sent to Fireside. Gaines never made an investigation into plaintiff’s treatment by Fireside. Gaines was told about the problem by Carroll and by the witness’ son, Warren Elisco. According to Gaines, if plaintiff had contacted the dealership management regarding her problem, Gaines, Weissberg, or Elisco would have straightened out the problem.

Gaines was shown Carroll’s letter to the Attorney General’s office and acknowledged that Carroll was not vice-president of finance as stated in the letter. Gaines testified that the fourth paragraph, referring to plaintiff’s failure to divulge to Fireside that she owed money on her trade-in vehicle, was “totally erroneous.” According to Gaines, Fireside knew that plaintiff owed money on the car. Gaines stated that he had never seen Carroll’s letter before trial.

Gaines testified that it was an accepted practice in the auto industry to inflate the price of a trade-in vehicle in order to show a customer had equity in the vehicle when he really did not. Gaines said that dealers do this so the customer can obtain financing. Gaines disclosed that lending institutions are aware of this procedure. Gaines insisted that, despite any increase in the trade-in allowance or selling price of a car, the amount to be financed or paid on a car, as agreed to by a customer, never changed.

Gaines, who had been seriously ill and often absent from the dealership during the time of the incident involving plaintiff, was later dismissed from the lawsuit on his motion for a directed finding.

Rick Weissberg, the other owner of Fireside, testified that he acted as vice-president of Fireside, overseeing the sales and service departments, purchasing cars, and running the day-to-day business of the dealership. Weissberg stated that he first became aware of the situation with plaintiff when she filed her lawsuit. At that time Weiss-berg conducted his own investigation of plaintiff’s transaction; he recalled that he spoke with Carroll, Jacobsen, and Elisco. Weissberg could not specifically remember what each told him. Basically, they all related that plaintiff purchased an automobile and decided that she could get better financing of the car on her own rather than through Fireside. As a result, Fireside billed the purchase as a cash transaction. According to Weissberg, plaintiff returned to Fireside about a week later saying that she did not want the car. Plaintiff returned the keys and left the dealership.

Weissberg testified that he never spoke with plaintiff. It was his belief that plaintiff was dishonest with Fireside because she did not keep her end of the bargain. Weissberg pointed out that, by plaintiff’s own admission, she did not seek out either Gaines or himself or another person in charge to solve the problem she had with her transaction with Fireside. Weissberg opined that plaintiff did not really want to solve her problem.

When asked if anyone at Fireside did anything wrong, Weissberg replied that Carroll made a mistake in the letter he wrote to the Attorney General’s office. Additionally, Weissberg said that his employees made a mistake by not bringing plaintiff’s problem to the attention of Gaines or of himself. But, Weissberg said, plaintiff also made mistakes.

Weissberg testified that the original document filled out by salesman Mike Nicolosi and signed by Nicolosi and plaintiff was in the nature of a work order. It represented the basic agreement that the customer and salesman reached. A second document entitled “Buyer’s Order and Invoice” and signed by plaintiff and Jacobsen was prepared when plaintiff elected to do a cash transaction for the purchase of the Laser. Weissberg stated that a third document, a retail installment contract which was unsigned and dated July 22, 1985, reflected a raise in the amount of money allowed on plaintiff’s trade-in vehicle so that she would be able to obtain financing from CCC. Weissberg pointed out that the most important item on all three documents was the money to be paid for the Laser and that that amount remained the same even though the other figures on the documents changed. Weissberg stressed that plaintiff was not asked to pay more money for the car.

Erwin Sirovy, branch manager of CCC, testified that the financing CCC provided for an individual purchasing a car was based on the creditworthiness of the individual applying for credit and/or the amount of money requested. Sirovy stated that CCC and not a dealership decided who would receive a loan.

Sirovy also testified that it was customary in the automobile industry for a dealer to raise the value of a trade-in vehicle when a finance company, such as CCC, determined that a purchaser needed a larger down payment.

At the conclusion of the trial, the jury returned a verdict in plaintiff’s favor and against Fireside on the conversion count in the amount of $1,155 in compensatory damages and $1,250 in punitive damages. The jury found in favor of the individual defendants, Jacob-sen, Carroll, and Weissberg.

Subsequently, the court conducted a hearing on the consumer fraud count. The court found that Fireside had violated section 2C of the Consumer Fraud Act. Also, the court found that the elements of section 2 pertaining to unlawful practices were present in two specific instances in the instant case: the sale of an extended warranty on the Laser and the failure of Fireside to return plaintiff’s used car or the equity in the car. On this latter point, the court specifically commented that it found unbelievable Carroll’s testimony that Fireside offered to return the equity in the car to plaintiff. The court awarded plaintiff $750 for aggravation and inconvenience.

On January 9, 1991, the court conducted a hearing on plaintiff’s petition for attorney fees. At the conclusion of the hearing, the court found that, due to its determination that there had been a willful violation of the Consumer Fraud Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 262C), plaintiff was entitled to reasonable attorney fees in the amount of $31,368.75 and costs in the amount of $1,284.

This appeal ensued.

Fireside first contends that the trial court erred in finding that it violated the Consumer Fraud Act. The trial court specifically found that a direct violation of section 2C of the Consumer Fraud Act occurred. (Ill. Rev. Stat. 1989, ch. 121½, par. 262C.) Section 2C provides:

“If the furnishing of merchandise, whether under purchase order or a contract of sale, is conditioned on the consumer’s providing credit references or having a credit rating acceptable to the seller and the seller rejects the credit application of that consumer, the seller must return to the consumer any down payment, whether such down payment is in the form of money, goods, chattels or otherwise, made under that purchase order or contract and may not retain any part thereof. The retention by the seller of part or all of the down payment, whether such down payment is in the form of money, goods, chattels or otherwise, under those circumstances as a fee for investigating the credit of the consumer or as liquidated damages to cover depreciation of the merchandise which was the subject of the purchase order or contract or for any other purpose is an unlawful practice within the meaning of this Act, whether that fee or those charges are claimed from the down payment, whether such down payment is in the form of money, goods, chattels or otherwise, or made as a separate charge to the consumer.” Ill. Rev. Stat. 1989, ch. 121½, par. 262C.

Fireside claims this section is inapplicable to the instant case because CCC and not Fireside provided financing for automobiles purchased through Fireside and, therefore, it was not Fireside as the “seller” who rejected plaintiff’s credit application but CCC, which was a separate entity. Fireside ignores several important facts. First, the credit application filled out by plaintiff on July 12, 1985, the date of her original transaction with Jacobsen clearly states, “The undersigned hereby authorizes selling dealer or Chrysler Credit Corporation to initiate a credit investigation based upon the above information.” (Emphasis added.) Second, the retail installment contract prepared by Jacobsen, allegedly, on July 22, 1985, designates the “Creditor” as Fireside. Third, both Jacobsen himself and plaintiff testified that Jacobsen told plaintiff she had the option of obtaining financing for the Laser through Fireside if she was unable to obtain her own financing as she originally planned. These facts imply that Fireside was involved in the rejection or acceptance of plaintiff’s credit application, even if only indirectly.

When plaintiff was unable to obtain her own financing, she returned to Fireside and told Jacobsen she wished to finance through the dealership. Twice, on July 15 and on July 16, Jacobsen told plaintiff he was “too busy” and to return the next day. On July 17, plaintiff telephoned Jacobsen regarding the financing. At that time he told her to come into Fireside on Friday, July 19, and that he would have “everything ready” on that evening. At first, Jacobsen testified that he did not recall any conversation with plaintiff during this period of time. Later, he admitted that he must have had a conversation at some point during this seven-day period because he knew he tried to get financing for plaintiff.

Plaintiff testified that when she returned to Fireside on Friday, July 19, Jacobsen told her he had made a “mistake” and that the total price of the car was $1,000 more. Thus, she needed to put $1,000 more down on the financing. It was plaintiff’s testimony that when she indicated she did not have the $1,000, Jacobsen told her that she would have to buy a cheaper or used car. By this statement, Jacobsen indicated that unless plaintiff could give Fireside an additional $1,000 it was rejecting her application for credit. At that point, Fireside, under the terms of section 2C of the Consumer Fraud Act, was required to return plaintiff’s down payment, i.e., her used car. However, when plaintiff expressed a desire to have her used vehicle returned, that desire was refused by Jacobsen. Fireside’s failure to return plaintiff’s car, or to return the equity in the car, constituted a violation under section 2C.

Moreover, Jacobsen’s attempt to change the terms of Fireside’s original agreement with plaintiff constituted a violation of section 2 of the Consumer Fraud Act, which prohibits any deception, false promise, or misrepresentation made in the course of conduct involving a trade or commerce. (Ill. Rev. Stat. 1989, ch. 121½, par. 262.) A violation of section 2 is established if a plaintiff shows that a defendant is engaged in a trade or commerce and has committed acts or engaged in practices which are either unfair or deceptive. Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 239.

Jacobsen maintained that the document prepared by salesman Ni-colosi did not constitute a contract, implying thereby that the figures could be changed. However, pursuant to the terminology on the document stating that the order comprised the “entire agreement” affecting the purchase of the automobile, Jacobsen was forced to acknowledge that the document constituted the agreement between plaintiff and Fireside and that no other agreement would be accepted. Additionally, although Jacobsen testified that the agreed purchase price of the Laser would remain the same and not change from one contract to another, he had, by plaintiff’s testimony, changed that price when she returned on July 19. Also, despite Jacobsen’s claim that the price offered for plaintiff’s trade-in vehicle would not change once it was written into the agreement, the price set forth in the retail installment agreement differed by $1,000 from that quoted in the original agreement prepared by Nicolosi.

The testimony presented by plaintiff and Jacobsen was clearly contradictory. Where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to this court of review to determine the credibility of the witnesses, to weigh the evidence, and to determine the preponderance thereof. In re Marriage of Frederick (1991), 218 Ill. App. 3d 533, 537.

Here, the trial judge’s decision to believe plaintiff rather than Ja-cobsen was justified. Jacobsen’s testimony showed he was an individual given to misrepresentations, beginning with his misstatement to plaintiff that he was a finance manager for Fireside. At trial Jacobsen stated he never worked for Fireside as a finance manager and never told customers he was a finance manager. Later, he recanted that testimony, admitting that he had used the title of finance manager on certain occasions and had occasionally been introduced to customers as a finance manager. Jacobsen’s testimony and that of Allen Gaines, one of Fireside’s owners, showed that Jacobsen was never authorized by Fireside to represent himself as a finance manager. By Jacobsen’s own admission, he referred to himself in this manner because it was the position he wanted.

Presenting himself as a finance manager, however, created an impression with a customer that Jacobsen was directly involved in the financing process and lent credence to Jacobsen’s representation that Fireside would be able to obtain financing for the customer based on the agreement made with that customer. Even if Jacobsen did not intend to deceive plaintiff by his misrepresentations, that intent is not necessary to create a violation under the Consumer Fraud Act. Warren v. LeMay (1986), 142 Ill. App. 3d 550, 574.

We have recently articulated that the elements of a statutory fraud claim are (1) a statement by the seller; (2) of an existing or future material fact; (3) that was untrue, without regard to defendant’s knowledge or lack thereof of such untruth; (4) made for the purpose of inducing reliance; (5) on which the victim relies; and (6) which re-suited in damages to the victim. (Duran v. Leslie Oldsmobile, Inc. (1992), 229 Ill. App. 3d 1032.) The standard of proof required is lenient (Eshaghi v. Hanley Dawson Cadillac Co. (1991), 214 Ill. App. 3d 995, 1002), and a single transaction is sufficient to establish a claim under the Consumer Fraud Act (Warren, 142 Ill. App. 3d at 568).

Here, plaintiff relied on the representations by Nicolosi and Jacobsen regarding the price of the new Laser and that her trade-in vehicle was sufficient as a down payment. She left her used car at Fireside on July 12 and took possession of the Laser believing that the Laser was hers, that the terms of her purchase agreement were set, and that if she needed to finance through Fireside it would be on the basis of the terms of the agreement as quoted by Nicolosi. That was not true as plaintiff learned when she returned to Fireside on July 19 to arrange for financing. Based on Fireside’s deceptive statement of a material fact, i.e., that the parties had a contract and that Fireside could obtain financing for that contract, and plaintiff’s reliance thereon, she was damaged. Plaintiff had given her used car as down payment; that car, in turn, had been sold on July 13, the day following plaintiff’s original transaction with Fireside, and could not be returned to her.

Despite Jack Carroll’s testimony that Fireside had attempted to return to plaintiff the equity in her car, since it could not return the car itself, plaintiff testified that Fireside never sent her the money. Additionally, James Guthrie, plaintiff’s attorney, testified that he received no oral or written response from anyone at Fireside when he sent Fireside a letter demanding the return of plaintiff’s car.

Carroll’s credibility was doubtful. For example, testimony indicated Carroll represented himself as Fireside’s vice-president of finance and that he even had business cards with this title printed on them. Yet, the evidence showed that Carroll was not authorized by the owners of Fireside to use such title. In fact, Carroll admitted making up the title. Additionally, testimony and evidence showed that, in responding to a letter from the Attorney General’s office regarding a complaint from plaintiff, Carroll deliberately lied about Fireside’s transaction with plaintiff.

Based on the testimony of Jacobsen and Carroll, we do not believe the trial court erred in finding that Fireside violated the Consumer Fraud Act.

The trial court also found that Fireside’s act of selling plaintiff an extended warranty on the brand new Laser constituted a violation under the Consumer Fraud Act. Jacobsen acknowledged that the Borg Warner extended warranty, which was part of Fireside’s original agreement with plaintiff, covered the same period covered by the standard new car warranty, which came with the Laser. Jacobsen maintained that the extended warranty complemented Chrysler’s standard new car warranty but also admitted that Fireside made a profit by selling the extended warranties.

Fireside contends that since plaintiff never signed the revised purchase agreement, she never bought the extended warranty and, therefore, plaintiff failed to prove she was damaged by this allegedly deceptive act. We agree. Under the Consumer Fraud Act, plaintiff was required to show she suffered damages as a result of Fireside’s act of selling her the extended warranty. (Greenberg v. United Airlines (1990), 206 Ill. App. 3d 40, 46.) Here, where plaintiff never paid for the extended warranty she failed to prove she was actually harmed.

Nevertheless, as mentioned above, a single transaction is sufficient to establish a claim under the Consumer Fraud Act. (Warren, 142 Ill. App. 3d at 568.) Here, plaintiff was misled by Fireside into believing that her trade-in vehicle was ample down payment for the new Laser and that Fireside could arrange financing for her if she needed it. When this representation proved to be untrue and Fireside failed to sell plaintiff the new Laser based on the terms of the original agreement or to return her used car or the equity in it, a direct violation of the Consumer Fraud Act occurred and resulted in damage to plaintiff. Accordingly, the trial court did not err in awarding plaintiff damages under the Consumer Fraud Act in the amount of $750 for aggravation and inconvenience.

Fireside next contends that the trial court abused its discretion in its award of attorney fees to plaintiff. Section 10a(c) of the Consumer Fraud Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(c)) provides that the court may award attorney fees to the prevailing party. The decision whether fees should be awarded under the Consumer Fraud Act and in what amount rests within the sound discretion of the trial court. Ekl v. Knecht (1991), 223 Ill. App. 3d 234, 245; Warren, 142 Ill. App. 3d at 582.

Fireside relies on this court's ruling in Chesrow v. Du Page Auto Brokers (1990), 200 Ill. App. 3d 72, to argue that when the basis of a petition for attorney fees is the Consumer Fraud Act, an award can only be made for the fees incurred pursuant to the count filed under the Consumer Fraud Act. (200 Ill. App. 3d at 77-78.) Plaintiff maintains that the issue of her attorney’s failure to distinguish the time spent on each count of the complaint has been raised by Fireside for the first time on appeal and is, therefore, waived. However, the rule of waiver is a limitation on the parties and not on the courts, and a reviewing court may ignore the waiver rule in order to achieve a just result or maintain a uniform body of precedent. (In re Marriage of Bennett (1985), 131 Ill. App. 3d 1050, 1055; Diversified Computer Services, Inc. v. Town of York (1982), 104 Ill. App. 3d 852, 853.) As our finding in Chesrow has precedential value here, we elect to consider Fireside’s argument based on differentiation of fees.

In the instant case, plaintiff filed an action under both common-law conversion and the Consumer Fraud Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.). Plaintiff’s petition for fees and the accompanying time slips as well as the testimony presented by plaintiff’s attorney at the hearing on the petition failed to differentiate what part of plaintiff’s attorney’s work was spent on the statutory fraud issue. We note that plaintiff’s attorney, here, was one of plaintiff’s attorneys in the Chesrow case and, therefore, had been previously informed by this court that time spent on a consumer fraud count must be specifically delineated where a prevailing party petitions for attorney fees under the Consumer Fraud Act.

We, therefore, reverse the award of attorney fees and remand this matter for a new hearing on the issue of fees to allow the trial court the opportunity to consider the evidence, if any, of what portion of plaintiff’s attorney’s work corresponded to plaintiff’s claim of consumer fraud. The other arguments which Fireside raises regarding attorney fees were properly considered and rejected by the trial court and, thus, should not be considered on rehearing.

For the reasons stated above, the judgment of the circuit court of Du Page County is affirmed on the issue of consumer fraud and reversed on the issue of attorney fees, and the cause is remanded for further proceedings consistent with the views expressed herein.

Affirmed in part; reversed in part and remanded.

GEIGER and NICKELS, JJ., concur.