author: JUSTICE MURRAY

text:
    CHERYL C. BURCHETT, Plaintiff-Appellee, v. FRANCIS J. GONCHER, JR., Defendant-Appellant.
    First District (5th Division)
    Nos. 1—90—0509, 1—90—2100, 1—91—1664 cons.
    Opinion filed December 20, 1991.

      Herbert A. Glieberman, of Herbert A. Glieberman & Associates, of Chicago, for appellant.
    Norbert N. Rosenthal, of Norbert N. Rosenthal & Associates, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Cheryl Burchett (Cheryl) brought a civil lawsuit alleging that Francis Goncher, Jr. (Goncher), defendant, was the father of her daughter Christa. The litigation was settled by an agreement of the parties in the form of an agreed order, which agreed order was approved and entered by the trial court. The facts are undisputed. They are as follows.

On March 11, 1988, Cheryl filed a complaint for paternity alleging that Goncher was the biological father of her minor child, Christa Goncher (Christa), born out of wedlock on December 11,1987.

On April 29, 1988, the trial court ordered Goncher to submit to a blood test for the purposes of determining the possibility of his paternity of Christa. Test results indicated that Goncher stood a 99.84% chance of fathering Christa. The results further indicated that 99.77% of all other men could be excluded as Christa’s natural father. Thus, the testers concluded that “paternity is practically proved.”

On November 17, 1989, a pretrial took place with no court reporter present. Both parties had counsel present. After the pretrial conference, the parties negotiated the terms of a final settlement. The terms of the settlement were reduced to the form of an agreed order settling all outstanding issues. The order was approved in writing by each of the parties and was entered by the trial court judge.

By the terms of the November 17, 1989, agreed order, Goncher was to pay Cheryl the aggregate sum of $3,000 per month for the support of Christa and Heather Goncher (Heather) until the youngest child reaches the age of 19V2 or is emancipated, whichever is the first to occur. In addition, Goncher was ordered to pay Cheryl $70,000 in satisfaction of child support arrearages accrued since the birth of Christa for her support, all pre/post natal care for Christa, which approximated $6,000, and he was to be responsible for all extraordinary medical, dental, optical, and psychological expenses of Christa and Heather. The order further provided that Goncher was to be responsible for all college or trade school expenses for the children as well as $20,000 in attorney fees to Cheryl’s attorney.

As of the date of the agreed order Christa was not yet two and no prior support order had been entered. In a previous paternity action, case No. 85 Ml 99911, Goncher was ordered to pay $266.67 per month for the support of Heather. On October 11, 1987, this support for Heather was raised to $310 per month. The record contains no evidence or findings as to Goncher’s income, Cheryl’s income, Christa’s financial needs or Heather’s financial needs.

On November 22, 1989, five days after the entry of the agreed order of November 17, Goncher filed a motion to vacate the November 17, 1989, order. In his motion Goncher contended that he had mistakenly believed that the figure recommended by the trial judge was the statutory amount required for the support of two children. In addition Goncher charged that $3,000 represented 50% of his income, rather than 25% as specified in that statute. The trial court found that there had been a unilateral mistake on Goncher’s part, but there was no newly discovered evidence, fraud, or coercion and denied the motion on January 12, 1990.

On February 5, 1990, following a substitution of attorneys for defendant, Goncher filed an emergency motion to set aside and reconsider the court’s orders of January 12, 1990, and November 17, 1989, pursuant to sections 2 — 1203 and 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1203, 2 — 1401). In the alternative, Goncher requested the trial court to modify the judgment order of November 17, 1989, pursuant to “chapter 40, par. 2516.” This motion was based on the alleged unconscionability of the order; the court’s failure to take evidence or to make findings as to the needs of the children or their parents’ ability to contribute; the failure of the order to allocate the amount between the children; and the provision for arrearages of $70,000 for Christa’s support. Cheryl filed a motion to dismiss the section 2 — 1401 motion. On July 5, 1990, the court denied the section 2 — 1401 motion, ruling that the order of November 17, 1989, was fair and equitable and agreed to by both parties.

Goncher filed two appeals: the first is an appeal from the agreed order of November 17, 1989, and the order of January 12, 1990, denying defendant’s motion to vacate the November 17, 1989, order; the second is an appeal from the order of July 5, 1990, denying the section 2 — 1401 motion. The two appeals were consolidated by this court.

For the following reasons, we affirm the decisions of the trial court.

NOVEMBER 17,1989, ORDER

Goncher argues that his motion to vacate the agreed order should have been granted due to the fact that he agreed to the order because he mistakenly believed the order complied with the guidelines set forth in the Illinois statute relating to child support. (Ill. Rev. Stat. 1987, ch. 40, par. 505.) He further argues that the November 17, 1989, order is unconscionable.

We are first met with a question of the court’s jurisdiction over an agreed order. As a general proposition, a consent decree is not appealable because it does not constitute a resolution of the parties’ rights but is a mere recordation of their private agreement. (People ex rel. Lampkin v. Brown (1980), 81 Ill. App. 3d 869, 401 N.E.2d 1171; see also People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1985), 106 Ill. 2d 1, 476 N.E.2d 409.) Once a consent decree has been entered it is generally considered to be binding on the parties and it cannot be amended or varied without the consent of each party. (Dunaway v. Storm (1975), 30 Ill. App. 3d 880, 334 N.E.2d 825.) However, this is not without exception. A circuit court has potential authority to modify a consent decree if circumstances so warrant. A court of equity does not abdicate its power to revoke or modify its mandate if it is satisfied that what it was doing has been turned through changing circumstances into an instrument of -wrong. (Fahner, 106 Ill. 2d at 9, 476 N.E.2d 409, citing United States v. Swift & Co. (1932), 286 U.S. 106, 114-15, 76 L. Ed. 999, 1006, 52 S. Ct. 460, 462.) A consent decree can be set aside only by agreement of the parties or upon a showing that it resulted from fraudulent misrepresentation, coercion, incompetence of one of the parties, gross disparity in the parties’ bargaining positions, or newly discovered evidence. (Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 54, 547 N.E.2d 496; In re Haber (1981), 99 Ill. App. 3d 306, 425 N.E.2d 1007.) The trial court in the present case potentially had the authority to modify the consent decree, but first it had to determine whether the circumstances warranted the court’s modification of the decree.

For the following reasons, we find that the trial court properly denied Goncher’s motion to vacate the November 17,1989, order.

Goncher argues that the November 17 order is flawed in every respect. He states that in addition to requiring him to pay approximately half his net income to support two children, the order fails to allocate the money between the children; the order fails to provide for abatement of any support upon the older child’s emancipation; the order fails to itemize the financial needs of the children; the order fails to recite the incomes of the parents so that if circumstances change there would be basis for modification; and, finally, the order fails to indicate whether the guidelines were considered or why the support figures deviate substantially from those guidelines.

Goncher argues that section 14 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2514) specifies that in determining the amount of any child support award, the court shall use the guidelines and standards set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act). Goncher correctly asserts that section 505 of the Act allows the court to order either or both parents to pay an amount that is reasonable and necessary for a child’s support. (Ill. Rev. Stat. 1987, ch. 40, par. 505.) The Act specifies that the court shall determine a minimum amount of support by using the guidelines, which call for 25% of the parent’s net income for the support of two children. It states that the guidelines shall be applied unless there is reason to deviate. However, at the time of the entry of the agreed order, the last sentence of section 505 stated: “The guidelines may be exceeded by the court without express findings, or by agreement of the parties.” (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).) In the present case the parties entered an agreed order, the court was not asked to make specific findings, nor under the circumstances was there any reason for the trial court to do so. Goncher had counsel present at the time the order was entered and Goncher’s acquiescence is apparent by his signature on the face of the order.

At the hearing on the motion to vacate, Goncher’s counsel stated that the fraudulent misrepresentation, incompetency and gross disparity in positions were not present in this case. Goncher’s counsel went on to state: “[H]owever, I did allude to the fact that this particular set of facts may come under the coercion and/or newly discovered facts; tests that are set forth in Haber.” Goncher’s counsel argued:

“Basically what I had said in my brief, I am sure the Court had reviewed that, that the defendant, Francis Goncher, Jr. at the time that he entered into the agreement was again mistakenly under the assumption that the Court’s recommendation as based on what the Court perceived as twenty-five percent of his net income and Mr. Goncher knowing what the court’s guidelines are and what the statute specifically stated, that he would be responsible for twenty-five percent for two children, he therefore, agreed to it.”

Goncher’s counsel also argued that if the court felt that the requirements set forth in In re Haber (1981), 99 Ill. App. 3d 306, 425 N.E.2d 1007, had not been met by the facts in the present case, the fact that there was a mistake by one of the parties (namely Mr. Goncher) was an important fact, and as a result of his mistake, there was no meeting of the minds as to that contract and, therefore, there was no contract.

The trial court made the following findings: that it was clear that this was an attempt to vacate what was clearly an agreed order; that for the court to step in and intervene on an agreed order would require something extraordinary, specifically as is set forth in the case of In re Haber (1981), 99 Ill. App. 3d 306, 425 N.E.2d 1007; that it was clear from the facts that there was no fraudulent misrepresentation; that “given the financial disparity between the parties here, it would be extremely difficult[ ] to even make a thin argument with respect to coercion”; and that “if there would be an argument on the gross disparity between the capacities of the parties, *** would not serve the moving party in this case”; and regarding newly discovered evidence “[t]he Court finds, its [sic] impossible to find that there wasn’t anything previously discovered or gone over or threshed out competently by both sides here, so there wasn’t even a hint of any such problem.”

The court further stated:

“So we are then left with the one material issue and that is the issue of a unilateral mistake of material fact that was made by Mr. Goncher. The Court in following general principles of contract law; again is that is a unilateral mistake or misconception on his part. And there is an issue whether or not it is a mistake of fact, a mistake of opinion, but does rise to — nor can it be said under any circumstances to rise to fraud.”

The trial court concluded by stating that it was compelled to follow the Haber case.

Evidence that an agreement was entered into because of coercion, fraud or duress must be clear and convincing in order for courts to set aside the agreement. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930, 428 N.E.2d 1005; see also In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 414 N.E.2d 1188.) Goncher alleged coercion not based on physical threat, but the coercion present and resulting from a combination of mistake of fact and stress of avoidance of a prolonged and emotional trial. We find no merit to this argument. The mistake Goncher alleges was his own. Furthermore, Goncher’s desire to avoid a trial was a matter of his own choosing, not the type of coercion that would allow a court to set aside an agreement. We also find that Goncher’s argument as to newly discovered evidence lacks merit. We agree with the trial court’s analysis that “there wasn’t even a hint of any such problem.”

Goncher maintains that he agreed to the November 17 order only because he erroneously believed that the amount of support was required by law. To entitle one to equitable relief for one’s unilateral mistake of law, the mistaken party must show, in addition to his mistake as to his or her legal rights or responsibilities prior to entering a transaction, some wrongful conduct by the nonmistaken party that induced the mistaken party to act in favor of the nonmistaken party. (Herget National Bank v. Theede (1989), 181 Ill. App. 3d 1053, 1057-58, 537 N.E.2d 1109, 1112, citing Bayne v. Cinak (1925), 320 Ill. 23, 28, 150 N.E. 344, 346.) Goncher, the mistaken party, made no showing in the trial court or in this court that Cheryl, the nonmistaken party, committed any wrongful conduct that induced Goncher to sign the agreed order. Goncher is not entitled to have the November 17 order vacated due to his unilateral mistake.

The parties in this case entered an agreed order. At the time, Goncher had the benefit of counsel. Furthermore, Goncher signed the order. We find no evidence of fraud, coercion or unconscionability. Accordingly, we find that the trial court properly denied Goncher’s motion to vacate the November 17,1989, order.

SECTION 2-1401 MOTION

A section 2 — 1401 motion is a statutory procedure by which judgments may be vacated after 30 days but not later than two years after the entry thereof. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) The trial judge concluded that the section 2 — 1401 petition in this case was insufficient to satisfy relief.

For the following reasons, we agree with the decision and reasoning of the trial court.

A section 2 — 1401 petition arises out of the same proceeding in which the order or judgment that it is directed to was entered, but it is a collateral attack on such judgment. (City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 442, 292 N.E.2d 154, 157.) The purpose of a former section 72 motion (now section 2 — 1401 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401)) is to bring before the trial court facts not appearing in the record which if known to the court at the time judgment was entered would have prevented its entry. Lacey v. Lacey (1974), 24 Ill. App. 3d 776, 778, 321 N.E.2d 524.

The courts in Illinois have repeatedly held that eligibility for relief under section 72 (now section 2 — 1401) rests solidly upon the requirement that petitioner act with due diligence so that his failure to avail himself of the remedy resulted from no fault or negligence of his own. Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 310, 357 N.E.2d 518; People ex rel. Lampkin v. Brown (1980), 81 Ill. App. 3d 869, 401 N.E.2d 1171.

A legally sufficient section 2 — 1401 petition must affirmatively set forth specific factual allegations supporting each of the following elements: (1) a meritorious claim or defense; (2) due diligence in presenting the claim in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Thompson v. I F A, Inc. (1989), 181 Ill. App. 3d 293, 298-99, 536 N.E.2d 969; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381.) The petitioner must also show by a preponderance of the evidence that through no fault or negligence of his own an error of fact or a valid defénse or claim was not made to appear to the trial court at the time the challenged judgment order or decree was entered. In re Estate of Nakaerts (1984), 125 Ill. App. 3d 862, 466 N.E.2d 1325.

This section does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistakes or of the negligence of his trial counsel. (Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 360 N.E.2d 1355.) A party must follow his case, and section 2 — 1401 will not save a party from his or his lawyer’s fault or negligence. Sidenstricker v. Dobbs (1982), 110 Ill. App. 3d 620, 442 N.E.2d 924.

Goncher states that: “Equity is offended by the terms of the November 17th order.” We disagree. In 1986, in an earlier paternity action (85 Ml 99911) brought by Cheryl on behalf of Heather, Goncher had been ordered to pay $266.67 per month as support and in 1987 that sum had been increased to $310 per month. Goncher argues that this was substantial evidence that the November 17 award of $3,000-per-month support for Heather and Christa was excessive as well as being in excess of the guidelines. We reject Goncher’s argument.

A review of the record discloses that the 1986 order in the previous case was an agreed settlement order, settling the rights arising between Goncher and Nicholas Joseph D’Andrea, Steven Mitchell D’Andrea, Heather Graziani (Goncher), and Cheryl. That order provided for a cash settlement in excess of $100,000 and for payment of $266.67 in child support per child until each child reached the age of majority. The order further provided that upon termination of any support obligations for Steven Mitchell D’Andrea, child support for Heather would then be raised to $300 per month. The previous support order is not substantial evidence that the November 17 award was excessive as well as in excess of the guidelines. The 1986 order was an agreed order and this court is not aware of the circumstances surrounding the entry of the 1987 order. This court cannot determine from the previous orders whether or not $3,000 per month for the support of Christa and Heather is in excess of the guidelines. Furthermore, whether or not the amount exceeds the guidelines is not relevant in this case since the November 17 order was an agreed order. As stated numerous times in this opinion, both parties were present at the pretrial when the settlement agreement was reached, each party had the benefit of counsel and each party signed the agreed order prior to its entry. The only matter that we find the previous child support order to be substantial evidence of is the fact that Goncher was not a novice to actions involving child support.

Goncher maintains that it is undisputed that the sum awarded as support is approximately 50% of his net income. In his affidavit Goncher states: “That the figure $3000.00 as and for monthly child support represents a figure of approximately 50% of his net monthly income ***.” We find nothing in the record or Goncher’s brief to substantiate his actual income. Moreover, even if $3,000 was approximately 50% of Goncher’s net income at the time the order was entered, Goncher has not shown that this would have prevented the entry of the agreed order.

In Welfelt v. Schultz Transit Co. (1986), 144 Ill. App. 3d 767, 494 N.E.2d 699, the court held that the plaintiff who was present at the settlement conference and initially approved settlement amounts, but later changed his mind, was not entitled to petition for relief from the judgment as a remedy for his belated change of mind. The court in Lofendo v. Ozog (1983), 118 Ill. App. 3d 237, 454 N.E.2d 806, found that the grounds asserted in the petition to vacate the judgment of dismissal, i.e., that plaintiff, after discussing the case with various members of her family, decided that the amount offered in settlement was unacceptable, were not sufficient to justify vacation of such judgment more than 30 days after its entry.

Relief can be granted with respect to consent orders under section 2 — 1401 and “ ‘must be judged by the broad equitable considerations which govern all Section 72 [now 2 — 1401] petitions.’ ” (Lubowsky v. Skokie Valley Community Hospital (1979), 79 Ill. App. 3d 909, 914, 398 N.E.2d 1037, quoting City of Des Plaines, 9 Ill. App. 3d at 443.) In denying Goncher’s section 2 — 1401 petition, the court found

“that at entry of 11/17/89 order both sides were adequately represented by able and competent counsel; that before court entered the widest latitude of discovery was allowed for both sides; that order entered was with the direct consent of both parties, both parties being present during the day long negotiations and both parties signing the order prior to its entry; that the order was fair and equitable being a complete adjudication of all issues; that the court considers and rejects the legal and equitable arguments raised by respondent’s [Goncher’s] counsel; that the order was agreed to by both parties.”

A decision involving a petition to vacate filed under section 2 — 1401 of the Code of Civil Procedure will not be disturbed on appeal absent an abuse of sound legal discretion by the trial court. (Thompson v. I F A, Inc. (1989), 181 Ill. App. 3d 293, 296, 536 N.E.2d 969; Lubuowsky v. Skokie Valley Community Hospital (1979), 79 Ill. App. 3d 909, 916, 398 N.E.2d 1037; City of Des Plaines v. Scientific Machinery Movers, Inc. (1972), 9 Ill. App. 3d 438, 443-44, 292 N.E.2d 154.) After a careful review of the record, we find that the trial judge properly reviewed the section 2 — 1401 petition and considered all relevant criteria. We do not find an abuse of discretion on the part of the trial judge.

Accordingly, for all the reasons set forth above we affirm the decision of the trial court.

Judgment affirmed.

LORENZ, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCARIANO

license: Public Domain

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY, Plaintiff-Appel-lee and Cross-Appellant, v. LESTER STEINER, Defendant (Paul Skulsky, Defendant-Appellant and Cross-Appellee).
    First District (2nd Division)
    No. 1—90—1254
    Opinion filed December 24, 1991.

      Robert A. Holstein, John M. Mack, and Aron D. Robinson, all of Holstein, Mack & Klein, of Chicago, for appellant.
    Gerald G. Saltarelli, Michael A. Stick, and Mary L. Hayes, all of Butler, Rubin, Newcomer, Saltarelli, Boyd & Krasnow, of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court;

On May 20,. 1982, in exchange for a $1.2 million loan obtained from plaintiff American National Bank and Trust Company (Bank), defendant Lester Steiner gave his two promissory notes, on which defendant Paul Skulsky agreed to be guarantor. Each of Skulsky’s guaranties contained provisions which gave the Bank the right to recover costs and attorney fees “paid or . incurred by the Bank in endeavoring to collect the indebtedness, *** or in enforcing this guaranty.”

At the same time, Skulsky executed another agreement with the Bank in which he pledged several notes issued by Tele-Communica-tions, Inc. (TCI), as collateral on his guaranties. The pledge contained its own attorney fees provision which stated, “[u]pon non-payment when due of any of the Obligations, *** the Bank may apply the net proceeds, after deducting all costs, expenses and attorneys’ fees incurred at any time in the collection, protection and sale of the collateral and the Obligations.” When Steiner defaulted on March 3, 1983, the Bank brought suit in the circuit court against Steiner and Skulsky to recover on the notes and the guaranties. In his answer, Skulsky admitted that he had executed the guaranties but raised several affirmative defenses.

After the default, the Bank notified TCI that it had acquired a security interest in the notes which Skulsky had pledged as collateral for his guaranties of Steiner’s obligations, and although the Bank requested TCI to take no action adverse to the Bank, it nevertheless made some payments on the notes to Skulsky. As a result, on February 27, 1984, the Bank filed suit against TCI in Colorado, TCI’s principal place of business, and joined Skulsky as a party. The Bank’s complaint sought a declaration as to its rights in the notes and judgment for the balance due thereon, plus the Bank’s “costs in this action and *** costs of collection including its attorney’s fees.” In his answer, Skulsky again admitted that he had executed the guaranties, but raised the same affirmative defenses, among others, that he had asserted in the Illinois action.

On August 13, 1985, the Bank was awarded summary judgment in the Illinois action. While defendant’s appeal was pending in this court, the Bank filed supplemental proceedings to domesticate the Illinois judgment in Florida, where Steiner and Skulsky resided or had assets, and in New Jersey, where Skulsky also had a residence and owned property.

On October 25, 1985, the Colorado trial court issued a ruling in favor of the Bank, giving full faith and credit to the judgment rendered against Skulsky by the Illinois circuit court. On July 22, 1986, this court, in an unpublished order rendered under Supreme Court Rule 23, reversed and remanded the judgment of the circuit court, holding that there were genuine issues of material fact to be tried regarding Skulsky’s affirmative defenses. Thereupon, the Bank dismissed its New Jersey action but was granted leave to refile the case at a later date, and it “terminated” the Florida proceeding.

After Skulsky appealed the Colorado judgment, the court of appeals of that State remanded the case to the trial court for further consideration, giving full faith and credit to this court’s reversal of the circuit court’s ruling. When, however, in January of 1988, the trial court in Colorado conducted proceedings on Skulsky’s affirmative defenses, it rejected all of them, including those he had raised in the Illinois action, and entered an order granting declaratory relief in favor of the Bank, all of which was upheld by the Colorado Appellate Court. Neither fees nor costs were litigated in Colorado, New Jersey, or Florida.

On December 9, 1988, after this court had remanded the case, the circuit court awarded summary judgment in favor of the Bank, and on January 6, 1989, the Bank filed its petition for the attorney fees and court costs it had expended in all four of its actions. On March 12, 1990, the circuit court granted the petition except for those fees and costs related to the Florida and New Jersey actions, stating:

“I will grant this motion with the exception of what’s claimed for the work in New Jersey and Florida. The Colorado case and in this case, it seems to be involved with the same issues. I’m not sure what Florida involved.”

On April 6, 1990, the court entered final judgment in the Bank’s favor, awarding the Bank $769,449.01 as principal and $482,393.76 as accrued interest on the notes, plus $287,055.05 in fees and costs. Skulsky appeals the court’s award of attorney fees and costs to the Bank in the Colorado action, as well as the award of certain fees in the Hlinois action, and the Bank cross-appeals the court’s denial of attorney fees and costs in the Florida and New Jersey proceedings.

THE COLORADO CLAIM

Skulsky contends that the Bank is not entitled to attorney fees relating to the Colorado action because “[a]ny claim arising from the action is now barred” by the defense of res judicata. Citing In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 891, Skulsky maintains that since the Bank had the opportunity to litigate fees in the Colorado court, “[r]es judicata will bar relitigation of any issue or claim that was raised or could have been raised in the previous case.” (Accord Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52.) The Bank responds that its “rights to such fees under the Guaranties was [sic] not and could not have been litigated in Colorado” because the purpose of the Colorado case was to enforce its rights in the TCI notes, and was not to enforce Skulsky’s guaranties. The Bank further argues that “[h]ad the Bank attempted to collect attorney fees in Colorado, *** Skulsky would have been confronted with clearly duplicative litigation” because “the issue of Skulsky’s liability for legal expense under the Guaranties was already before the court in Illinois.”

We conclude that the doctrine of res judicata precludes the Bank from recovering in Illinois the fees and costs incurred in the Colorado action, a conclusion fully consistent with the principles followed by our courts. “A decree operates as res judicata of the claim presented in a later action when the facts and relief sought in both actions ‘are substantially the same.’ ” Housing Authority, 101 Ill. 2d at 254, quoting Midlinsky v. Rubin (1930), 341 Ill. 378, 385.

“To determine whether causes of action are the same for res judicata purposes, two tests have been employed. [Citation.] The first is a ‘same evidence’ test, under which the court inquires whether the same facts are essential to the maintenance of both cases or whether the evidence needed to sustain the second action would have sustained the first. [Citations.] Where the same factual allegations form the basis for the two allegedly different causes of action, the fact that a party proceeds on different theories or seeks different relief does not prevent the operation of res judicata. [Citation.] ***
* * *
[More recently,] Illinois courts[, as well as those of many other States,] have also used a ‘transactional’ approach to determine whether causes of action are identical for res judicata purposes, stating that ‘the assertion of different kinds or theories of relief still constitutes a single cause of action if a single group of operative facts give [sic] rise to the assertion of relief.’ [Citations.]” Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 652, 654.

Whether the “same evidence” test or the “transactional” approach is applied, we hold that under the facts of this case the doctrine of res judicata governs as to the Colorado litigation, for both the Illinois and Colorado cases arose out of the underlying contractual relationship between the parties; the complaints in both alleged that Steiner defaulted on his obligations, both alleged that upon notice to Skulsky he failed to abide by the terms of his guaranties; the Bank pleaded its attorney fees and costs in both complaints; and Skulsky’s defenses were the same in both cases. As the Bank concedes, “the issues litigated in Colorado were exactly the same as those raised by Skulsky in the trial court here.” The trial judge recognized as much in her statement: “The Colorado case and in this case, it seems to be involved with the same issues.” Therefore, since the facts, pleadings, issues, applicable law, and the relief sought in both cases were nearly identical, res judicata applies.

The Bank’s thesis that the purpose of the Colorado action was to enforce the pledge agreement and not the guaranties is no acceptable answer to the issue of whether it could have petitioned for attorney fees at the conclusion of the Colorado case pursuant to the provisions of the pledge agreement and in accordance with the prayer of its complaint; under the principles applicable to res judicata, we fail to perceive any valid reason why the Bank could not have pursued the issue there. Skulsky went guarantor on Steiner’s notes and at the same time he pledged the TCI notes as collateral on his guaranties. Both his guaranties and the pledge contained provisions regarding attorney fees and costs in the event the Bank had to resort to enforcement of any of his commitments. This was not a series of unrelated or disconnected events; there was no fire wall between them; they formed a unitary transaction among the parties, demonstrating quite clearly that there would have been no loan to Steiner without Skulsky’s subscribing concomitantly to all of the security devices the Bank required of him. Moreover, there is much to be said for the requirement that the parties litigate these cognate matters where the services are rendered and the expenses incurred, and where the courts and the resident lawyers and expert witnesses are thoroughly familiar with the type, quality, and quantity of the services performed in the case and the reasonableness of the charges therefor. Furthermore, if the Bank had pursued attorney fees in the Colorado action there, the result could not have led to any duplication of effort because of the certainty that Bli-nois would not have reheard the case:

“An Illinois court will not rehear a case on the merits because under principles of res judicata the nature and amount of the judgment, together with all defenses which could have been raised, are foreclosed. Full faith and credit demands this approach. A collateral attack upon a foreign judgment may not be made except for the defenses of fraud in its procurement (extrinsic fraud) or lack of jurisdiction in the foreign court. [Citations.].” (Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 537.)

(Accord Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, 654.) Accordingly, we hold that the circuit court erred in not applying the doctrine of res judicata to the issue of whether the Bank was entitled to recover the attorney fees and court costs it incurred in the Colorado action.

Skulsky argues as to the Illinois action that “the circuit court abused its discretion in awarding the Bank attorney fees incurred prior to December 20, 1985 for the reason that the Bank, in fact, incurred no legal expense prior to that date, [Victor] Sayyeh [having] voluntarily assumed the role of paying all attorney fees and costs on behalf of the Bank.” Although the record supports Skulsky’s contention that Sayyeh paid the fees, there is nothing in this case that corroborates his assertion that the Bank never incurred them. One incurs expenses when one becomes liable for them (see Hall v. County of Cook (1935), 359 Ill. 528, 545-46; Greenspan v. Travelers Insurance Co. (1979), 98 Misc. 2d 43, _, 412 N.Y.S.2d 1009, 1011), and whether Sayyeh paid the Bank’s fees after it incurred them is irrelevant to whether it incurred them in the first place. Nor does Skulsky furnish any authority for the proposition that Sayyeh’s paying the Bank’s fees inures to his benefit.

Skulsky also contends that certain attorney fees that the trial court awarded to the Bank were not detailed enough on its counsel’s bills to enable one to determine if they were reasonable. Although Skulsky’s brief contains a table summarizing the expenses the Bank incurred, he does not refer to any part of the record to support his claim, and we have no obligation to search the record for him, which in this case happens to be quite voluminous. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 451.) Further, although Skulsky asserts that he “was never given the opportunity to depose each attorney who submitted billing statements to determine the nature of each of the figures, despite [his] requests,” he has cited nothing in the record which would indicate that he sought to compel the taking of any such depositions, nor does the record contain any orders adverse to him on this point. Consequently, we sustain the circuit court’s award of fees to the Bank as to the Illinois phase of this case.

THE FLORIDA AND NEW JERSEY CLAIMS

The Bank’s Florida and New Jersey actions sought costs and fees, as provided in the guaranties, “paid [by the Bank] to collect the indebtedness *** or in enforcing this guaranty.” We cannot agree, therefore, with Skulsky’s contention that this “language of the provision authorizing the Bank to recover attorney fees and costs is not specific enough and cannot be reasonably construed to require Skulsky to pay the Bank’s fees and costs.”

Skulsky contends that “[t]he Bank is estopped by principles of res judicata and collateral estoppel from seeking fees it requested or should have requested at the conclusion of both the New Jersey and Florida actions,” citing In re Marriage of Firestone (1987), 158 Ill. App. 3d 887. However, Firestone clearly upholds the universal rule that res judicata applies only after there has been “a final judgment on the merits rendered by a court of competent jurisdiction *** on matters found to be part of the same cause of action before the same or a different tribunal. [Citation.]” (Emphasis added.) 158 Ill. App. 3d at 891. See also Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, citing People v. Kidd (1947), 398 Ill. 405.

As noted above, the Florida and New Jersey suits were filed to domesticate the 1985 judgment of the Hlinois circuit court, but when this court reversed that judgment, there was patently nothing before the foreign tribunals to act upon; accordingly, those actions were properly withdrawn. Upon dismissal of its New Jersey action, the Bank was granted leave to refile, which would indicate that the dismissal was without prejudice and also that it did not result in a termination on the merits. Skulsky does not dispute the Bank’s assertion that it “terminated” the Florida proceeding, which would indicate that this, too, was a voluntary dismissal and not an adjudication on the merits. Nor does Skulsky suggest the existence of any New Jersey or Florida statutes or rules of court which would show that the voluntary dismissal of a suit operates as an adjudication on the merits. On the contrary, there appears to be a well-established and well-defined general tradition that voluntary dismissals do not preclude a second action. (See, e.g., United States v. One Clipper Bow Ketch Nisku (1st Cir. 1977), 548 F.2d 8, 10 n. 2; Markham v. Anderson (E.D. Mich. 1979), 465 F. Supp. 541, 543 (withdrawal of a prior petition for habeas corpus did not preclude a later petition, in light of the general rule “that neither res judicata nor collateral estoppel is *** applicable to a voluntary dismissal”) (emphasis added).) We therefore hold the doctrine of res judicata to be inapplicable to either the New Jersey or Florida aspects of this case.

Finally, we are obliged to conclude that Skulsky has waived the issue of collateral estoppel as to the Florida and New Jersey cases inasmuch as he fails to explain its applicability to this case, and fails as well to cite any authority in support of his contention. (134 Ill. 2d 341(e)(7).) However, even if we were to consider the issue, we would still be constrained to hold, on the authority of that line of cases exemplified by Markham, that collateral estoppel is not applicable to a voluntary dismissal. We hold, therefore, that the circuit court erred in ruling that the Bank was not entitled to its fees and costs related to the Florida and New Jersey actions.

For the foregoing reasons, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE GORDON

text:
      In re ESTATE OF THORNTON R.L. SEWART, Deceased (Irene B. Popham, Indiv. and as Independent Adm’r of the Estate of Edward J. Popham, Deceased, Plaintiffs-Appellants, v. Virginia Taff et al., Defendants-Appellees).
    First District (5th Division)
    No. 1—89—1946
    Opinion filed December 27, 1991.
    Rehearing denied January 29, 1992.

      Bruce C. Davidson, of Chicago, for appellant.
    Henry Thrush Synek, of Chicago, and Stephen B. Engelman and Mark S. Smith, both of Skokie, for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, Irene Popham, individually and as administrator of the estate of her late husband, Edward Popham, filed a two-count complaint for declaratory relief, naming as defendants Virginia Taff, the administrator of the estate of Thornton R.L. Sewart, the beneficiaries under Sewart’s will, and several other relatives of Sewart. Both parties filed motions for summary judgment, although plaintiff withdrew her motion. Defendants’ motion was granted as to both counts of the complaint, and plaintiff now appeals. For the reasons set forth below; we reverse the grant of summary judgment as to count I, and affirm as to count II.

The testator, Thornton R.L. Sewart, was hospitalized in late April 1985 and pronounced dead in a death certificate on May 6, 1985. As discussed below, the exact date of Sewart’s death is disputed by the parties. Edward Popham died on May 4, 1985. Sewart left a will which provided for $1,000 bequests to three specified charities. He also left $1 each to his sister and brother. The remainder of his estate was left to “my good friend, EDVARD J. POPHAM.” There was no provision in Sewart’s will for the disposition of his residuary estate should Edward Popham predecease Sewart.

Plaintiff in this action is the widow of Edward Popham. Defendants are the administrator of Sewart’s will, the named beneficiaries under the will (excluding Mr. Popham) and Sewart’s heirs at law.

In count I of the complaint, plaintiff alleged that she and her husband rendered various services for the testator, Thornton Sewart, after Sewart became unable to fully care for himself. In return, Sewart orally agreed that he would devise and give his property to Edward Popham. As a result, plaintiff contended, there was a valid contract between plaintiff, her husband and Sewart, which has been fully performed by the Pophams. Accordingly, she sought a declaration that a valid contract existed between plaintiff, her husband, and Sewart, and that she and her husband’s estate are entitled to all of the property owned by Sewart at the time of his death, and that the defendant, the administrator of Sewart’s estate, is holding that property as trustee for plaintiff and her husband’s estate.

Count II sought a declaration that Sewart predeceased Edward Popham. Plaintiff alleged that Sewart fell and sustained a fatal head injury on April 29, 1985. Sewart was in a coma when he was taken to St. Elizabeth’s Hospital and placed on life support systems. Plaintiff alleged upon information and belief that although a mechanical life support system was able to cause a heartbeat in Sewart, he in fact suffered a total and irreversible cessation of all functions of his brain and was legally dead prior to May 6, 1985.

Plaintiff filed a motion for summary judgment on count II, in support of which she submitted her own affidavit. In that affidavit, plaintiff stated that she had discussed Sewart’s condition with Dr. Leslie Schaffer; Sewart’s treating physician, and that on May 3, 1985, Dr. Schaffer told her that he thought a test for brain activity, scheduled for May 6, would probably show no such activity.

Plaintiff also submitted the deposition testimony of Dr. Schaffer. In that deposition, plaintiff’s attorney stated for the record that Dr. Schaffer was not being deposed by the plaintiff as an expert, but as an occurrence witness.

Briefly summarizing the relevant portions of that deposition, Dr. Schaffer testified that when first seen by him on April 29, 1985, Se-wart was deeply comatose. Schaffer performed a craniotomy and “removed a hemorrage” from Sewart’s head. Following the surgery, Se-wart’s vital signs were stable, and he was placed on a mechanical ventilator.

Referring to his physician’s progress notes to refresh his recollection, Schaffer testified that as shown in his notes, on May 1, Sewart responded to painful stimuli. On May 2, his response to painful stimuli was decreased, and on May 4, Sewart was “unresponsive.” There was no notation for May 3. According to his records, the last indicated response of Sewart’s pupils to light stimulus was on April 30. When asked Sewart’s condition on May 6, Schaffer replied “he died on May 6.”

On May 4, an electroencephalogram (EEG) was ordered, to be performed on May 6. The test was never performed, however, since Sewart was pronounced dead on the 6th.

When questioned by defense counsel, Schaffer said that based on the entire hospital record, he could not tell whether Sewart’s brain stem was dead (at any time prior to May 6).

Defendants filed a response to plaintiff’s motion for summary judgment. Included with that response were the affidavit and medical report of Dr. Michael J. Caron, a neurosurgeon at Loyola University Medical Center, retained by defendants as an expert for purposes of the litigation to review the medical records of Sewart, “specifically to delineate evidence which would indicate brain death prior to his demise on May 6,1985.” In his report, Dr. Caron stated:

“In summary, there is no evidence of a physical examination of Mr. Sewart, by a physician, which unquestionably establishes the presence of brain death.”

Caron went on to discuss the elements of brain death, using the criteria established by the ad hoc committee of the Harvard Medical School, with specific references to Sewart’s medical records including the records of his treating physician, Dr. Schaffer. He concluded that only one element, unresponsive coma, was clearly evident in the Se-wart case. The second element, apnea, or the absence of spontaneous breathing, was inconclusive. Sewart was on a ventilator which would have suppressed the stimulus for spontaneous breathing. No test for apnea was made.

In regard to the third element, the absence of cephalic reflexes, Caron noted that the only cephalic reflex mentioned in Sewart’s record was the lack of pupillary reaction to light. Other cranial nerves which would indicate brain activity may have been functional.

Absence of spinal reflexes is the fourth criterion, and is tested by movement of the extremities in response to pain. Although Dr. Schaffer noted that there was no response on May 4, a nursing note the same day indicated occasional movement of arms, legs, and the body. Thus, Caron concluded, it was unclear when spinal cord activity was truly lost.

The fifth requirement is an isoelectric EEC. This test was never performed.

Absence of drug intoxication and hypothermia is the sixth criterion. Sewart was in a state of persistent hypothermia, and was also on the drug phenytoin, a nervous system depressant used to prevent seizures. Caron stated that in seriously ill patients phenytoin may build to levels which will confuse a determination of brain death. No tests were made to determine the level of this drug in Sewart. In addition, an EEC to determine brain death done while a patient was on phenytoin would be invalid.

The final Harvard criterion is persistence of these conditions for at least 24 hours. Caron stated that “conditions unquestionably consistent with brain death were never really established in the record.”

Dr. Caron concluded that “it is impossible from the medical record to establish the unquestionable presence of brain death prior to his death from cardiopulmonary arrest, secondary to pneumonia, on May 6, 1985.”

Plaintiff later withdrew her motion for summary judgment on count II. Defendants then submitted their motion, later amended, for summary judgment on both counts. In regard to count I, defendants submitted excerpts from a deposition they had taken of the plaintiff. By her statements, defendants contended, plaintiff conceded that there was no agreement between Sewart and the Pophams, but rather mere declarations of testamentary intent based on affection.

As to count II, defendants relied on the affidavit and medical report of their expert, Dr. Caron, originally submitted in response to plaintiff’s summary judgment motion.

In plaintiff’s response to defendants’ summary judgment motion on count I, she submitted additional excerpts from her deposition, arguing that defendants had taken her statements out of context. Regarding count II, plaintiff argued that the deposition of Dr. Schaffer, submitted earlier in connection with plaintiff’s summary judgment motion, provided substantial support to the allegation that Sewart suffered brain death prior to May 4.

In addition, plaintiff submitted the discovery deposition of defendants’ expert, Dr. Caron. In that deposition, taken by plaintiff’s attorney, Dr. Caron was presented with the following hypothetical question:

“You have evidence on Friday from all of your observations of pain tests, all the standard things that you can do without a more sophisticated test and you conclude on a Friday there is probably no brain activity here and you order these tests to be done on Monday.
Now, Monday, you have the test done and everything is negative; there is no evidence whatsoever, or perhaps, over the weekend, he terminates himself, just all functions fail, regardless.
Now, what I am saying is: isn’t it possible that on Friday when you made the observations, that he was in fact dead?”

Dr. Caron responded that it might be possible, but such a determination would have to be made on a case-by-case basis. Until confirmatory tests are made, however, all the doctors would have is a clinical suspicion, and the patient is not considered dead.

Dr. Caron reemphasized the statement he had made in his affidavit that, from the entire hospital record, in his opinion it was impossible to know when brain death occurred in Sewart, or in fact if brain death occurred prior to May 6 when Sewart was removed from mechanical life support systems following his cardiac arrest. Based on the record, Dr. Caron said that he could not have pronounced Sewart dead prior to May 6 when he suffered cardiac arrest.

Counsel for the plaintiff later asked Dr. Caron whether he could “testify, to a reasonable degree of medical certainty, that this patient was not dead until the death certificate was issued, not brain dead? Is there a way to tell that he was not brain dead?” The doctor responded that the documentation was not there to make such a determination, and went on to note several entries in the medical records which suggested that Sewart in fact was not brain dead. On May 3, the anesthesiologist saw one of his pupils react to light. On May 4, a nursing note indicated “occasional movements of arms and legs and body.” On May 5, nurses saw his arms and legs move. On May 5, the entry said “neuro status unchanged,” which Dr. Caron interpreted as meaning that his arms were seen to move. Also on the 5th, the notes included “body movement noted” and “comatose with jerky movement of left leg, when stimulated.” Regarding the “jerky movement” of Sewart’s leg, Dr. Caron conceded that such movement could be caused by spinal cord reflexes rather than brain activity, although it was impossible to tell which caused the movement.

The trial court, after consideration of the parties’ memoranda, the depositions and affidavits of the doctors and oral argument, found that there were no genuine issues of material fact, and therefore granted defendants’ motion. Plaintiff now appeals.

Opinion

Section 2 — 1005(c) of the Code of Civil Procedure provides that summary judgment “shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In determining the existence of a genuine issue of material fact, courts must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 467.) A genuine issue of material fact exists if, where the facts are undisputed, “a fair-minded person may draw different inferences from those undisputed facts.” (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 33, 468 N.E.2d 422.) The inference drawn must be a reasonable one, and the amount of evidence required to draw such an inference “will depend entirely upon the nature of the evidence offered in the case at hand.” (Consolino, 127 Ill. App. 3d at 33.) The primary issue on appeal from a summary judgment is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the moving party is entitled to a judgment as a matter of law.” West v. Kirkham (1991), 207 Ill. App. 3d 954, 957, 566 N.E.2d 523.

The party seeking summary judgment may meet its initial burden of persuasion by presenting facts which, if uncontradicted, would entitle it to judgment as a matter of law. (Venus v. O’Hara (1984), 127 Ill. App. 3d 19, 468 N.E.2d 405.) Once the party seeking the summary judgment produces such evidence, the burden of production shifts to the party opposing the motion, who may not rely solely on allegations in the complaint, but is required to come forth with some facts which create a material issue of fact. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) Although a plaintiff opposing a motion for summary judgment need not prove her case at this point, she must provide some factual basis which would arguably entitle her to a judgment under the applicable law. (Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328; Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197.) If the respondent fails to produce such evidence, summary judgment is properly granted. Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 416 N.E.2d 328.

' As to count I, defendants contend that there was no evidence of a contract to make a will between Sewart and Mr. Popham, and that if such a contract existed, it was satisfied when Sewart named Edward Popham as beneficiary in his will. They contend that the testator, Se-wart, said only that, due to friendship and gratitude, he would’name Mr. Popham the beneficiary under his will, and that such statements are insufficient to create an enforceable oral contract to make a will. In support of this argument, defendants quote portions of Mrs. Pop-ham’s deposition:

“Q. So, as far as you know, there was no agreement that he would get anything out of Thornton’s property if he helped Thornton out?
A. That wasn’t the agreement. There was no agreement, no, sir.
Q. I see. It was just expressions by Mr. Thornton Sewart?
A. Right, gratitude.
Q. That is what he’s going to do out of gratitude; is that correct?
A. Yes, and friendship.”

Accordingly, defendants argue, plaintiff herself admitted that there was no contract and therefore there are no genuine issues of material fact as to count I, and they were properly granted summary judgment on that count.

Plaintiff responds that the quoted portion of her deposition was taken out of context, and must be read in conjunction with her testimony immediately preceeding the excerpt submitted by defendants. Plaintiff submitted the following additional excerpt from her testimony:

“Q. Okay. Now, in your Answers to Interrogatories that were given to you and that were actually frame worked, based on your complaint, you have made certain answers concerning this agreement that you talked about; and you said that for all of the services rendered to Thor[n]ton and duly rendered to him, Thor[n]ton had orally agreed that he would devise and give his property to Edward Popham except certain small bequests.
Now, when did he orally agree to do this, Thor[n]ton, when did he orally agree?
A. I don’t remember.
Q. You don’t remember. Obviously it was before his death?
A. Yes, sir.
Q. Was it before 1976?
A. Oh, yes, sir.
* * *
Q. And you weren’t there when it was made?
A. When what was made?
Q. The oral agreement that you referred to in Paragraph three?
A. It wasn’t just the one time.
* * *
Q. He was talking about it, right?
A. Oh, yes, sir.
Q. Thor[n]ton was talking about it?
A. Yes.
Q. But your husband wasn’t talking about it?
A. Talking about what?
Q. The agreement that he’s going to get everything?
A. I can’t answer with a yes or no because Edward was not that kind of a man. He wouldn’t do it so he would be in on an—
Q. So as far as you know, there was no agreement that he would get anything out of Thor[n]ton’s property if he helped Thornton out?
A. That wasn’t the agreement. There was no agreement, no, sir.”

According to plaintiff, this line of questioning assumed the existence of an agreement, and the questions and answers quoted by defendants in their excerpt pertained to evidence of the agreement. Therefore, plaintiff urges, her testimony when taken as a whole does not negate the existence of a contract despite her apparent disclaimer of an agreement when she said “There was no agreement, no sir.”

As noted earlier, summary judgment should be granted only when there is no issue of material fact and the facts before the court are capable of only one reasonable interpretation. Viewing Mrs. Pop-ham’s statements and the other material before the court liberally in her favor as we must, we find that the trial court erred in granting defendants’ motion. While Mrs. Popham’s statement “There was no agreement, no sir” may be read as an admission that there was no express agreement between her husband and Sewart, her statements do not appear to be a total abandonment of her position that there was an agreement between Sewart and the Pophams, particularly when defendants’ excerpt and plaintiff’s excerpt of the colloquy are read together as the testimony was given. See In re Estate of Mallas (1968), 100 Ill. App. 2d 88, 241 N.E.2d 482 (discussed below).

In response to a question about when the alleged agreement was made, her inability to give a specific date does not necessarily imply that there was no agreement. She did say that the agreement was made before 1976 (the year Sewart’s will was executed). (See In re Estate of Niehaus (1950), 341 Ill. App. 454, 460, 94 N.E.2d 525 (when an agreement exists and is reaffirmed several times over a period of years, the exact date of its origin is not material).) She also testified that the alleged agreement was made on more than one occasion, and that Sewart was talking about the agreement, statements which all affirm rather than recant her contention that there was an agreement. Her statement that “there was no agreement” was in response to a specific question. When read in context with the rest of her testimony, it can be viewed as a disclaimer by a layperson without demonstrated legal sophistication that there was a business-like agreement in which the quid pro quo was fully expressed and articulated, and not as a negation of her previous statements that there was an understanding reached with the testator.

In In re Estate of Mallas (1968), 100 Ill. App. 2d 88, 241 N.E.2d 482, a contract was found on facts almost identical to those in this case. There, Celia Stolpe performed services for the decedent and his wife. Stolpe was not related to the decedent. The decedent had expressed his appreciation, gratitude and intention to pay Stolpe for her efforts. A will was prepared leaving decedent’s home to Stolpe, but it was never executed. Stolpe testified that the decedent never offered or promised to pay for the services she rendered and that he never told her he would reimburse her. Moreover, she never asked for payment.

The trial court denied her claim, finding that there was no express contract, and that “the presumption of an implied contract (to pay for services where there is no relationship between the parties) would not arise because there was ‘positive testimony by the claimant herself, that there never was, at any time, any ... agreement to pay.’ ” (Mallas, 100 Ill. App. 2d at 91-92.) Upon claimant’s motion to vacate the order, the court refused to do so on the grounds that “the presumption of an implied contract had been overcome by the claimant’s own testimony that Mallas had not promised or offered to pay or reimburse her and that she had not asked him for payment or told him of her expectation of payment.” Mallas, 100 Ill. App. 2d at 92.

The appellate court reversed, finding that claimant had established an implied contract. “Her testimony that she had no definite understanding with the decedent did not negate her contention that an agreement was implied by their acts, expressions and conduct. Second, her testimony did not destroy the presumption arising from the acceptance of her services.” (Mallas, 100 Ill. App. 2d at 92.) The court went on to set forth the conditions under which a contract will be implied:

“ ‘Where no kin or family relationship exists between the parties, and one accepts and retains the beneficial results of another’s services, which were rendered at his own insistence and request and which he had no reason to suppose were gratuitous, the law will imply liability for such services in such an amount as they are reasonably worth.’ Floyd v. Smith’s Estate, 320 Ill. App. 171, 50 N.E.2d 254 (1943), cited in In re Estate of McWain, 77 Ill. App. 2d 359, 222 N.E.2d 576 (1966) and In re Estate of Brumshagen, 27 Ill. App. 2d 14, 169 N.E.2d 112 (1960).” Mallas, 100 Ill. App. 2d at 92.

See also In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075 (when services rendered by one person for another, and are knowingly and voluntarily accepted, law presumes such services were given and received in expectation of payment); Frey v. Belleville News-Democrat, Inc. (1978), 64 Ill. App. 3d 495, 381 N.E.2d 705 (implied in fact contract inferred from circumstances, conduct and acts of parties showing an intention to be bound); In re Estate of Pomeroy (1974), 21 Ill. App. 3d 648, 316 N.E.2d 231 (where no family relationship exists between the parties and one accepts the services of another with no reason to suppose the services to be gratuitous, law implies a contract for those services in the amount they are reasonably worth).

Applying these principles to the instant case, we find that plaintiff has produced sufficient evidence to create an inference of an implied contract. The Pophams are not related to Sewart. They performed services for him, which he accepted, thus raising the presumption of an agreement to pay for those services. The decedent expressed his gratitude and appreciation for their services, which although not sufficient by itself to prove an oral contract, does not negate the presumption that a contract existed. Although Mrs. Popham disclaimed that there was a specific agreement regarding payment, this should not suffice upon a motion for summary judgment to negate the inference that an agreement was implied by their conduct, acts and expressions.

Accordingly, we find that sufficient facts have been presented to create an inference that an implied contract existed. It was not necessary for plaintiff to prove her case by a preponderance of the evidence at this stage of the proceedings. Summary judgment may only be granted where the facts are capable of only one reasonable inference, which is not the case here. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.

Defendants also contend that if there was a contract, it was satisfied when the testator named Edward Popham as a beneficiary under his will. Plaintiff, however, in sworn response to interrogatoriés filed with the- court and referred to in her deposition, stated that both she and her husband rendered services to Sewart. (See Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 541 N.E.2d 805 (responses to interrogatories may be considered in summary judgment determination). See also Supreme Court Rule 213 (134 Ill. 2d R. 213 (answers to interrogatories may be used in evidence to the same extent as discovery depositions).) She said that in the fall or winter of 1975, Sewart became unable to fully care for himself, was unable to do any physical work, and Edward and Irene Popham rendered various services for Sewart, including cleaning house, making repairs to Sewart’s home, shovelling snow, cutting grass and taking Sewart out for rides. As both Irene and Edward Popham performed these services for Sewart, an inference may be raised that the implied agreement between Sewart and the Pophams was to provide for both Edward and Irene Popham. The naming of Edward Popham alone as beneficiary, without some provision for the benefit of Irene Popham, would not satisfy such an agreement if those were its terms.

Under defendants’ argument that the agreement was simply to name Edward Popham in the will and was therefore satisfied, we would reach the incongruous result wherein plaintiff would have been in a better position had her husband been omitted from the will entirely. Had that been the situation, she would have had a claim for damages for breach of contract, instead of a completed contract to make a will under which no property in fact passed. See In re Estate of Johnson (1945), 389 Ill. 425, 429, 59 N.E.2d 825 (“Where there is a breach of the contract to make the bequest, the remedy is a claim against the estate in the nature of a claim for damages for such breach”). See also In re Estate of Greiner (1952), 412 Ill. 591, 107 N.E.2d 836; In re Guest’s Estate (1962), 35 Ill. App. 2d 434, 183 N.E.2d 194.

Moreover, the deposition excerpt submitted by defendants as their sole support for summary judgment on count I does not suffice to establish the specific terms of any implied in fact agreement that may by inference be deemed to exist between the testator and the Pophams. If anything it is merely sufficient to establish a disclaimer by Mrs. Popham of an express agreement. As previously noted, the movant for summary judgment has the initial burden of persuasion to present facts which, if uncontradicted, would entitle it to a judgment as a matter of law. (Venus v. O’Hara (1984), 127 Ill. App. 3d 19, 468 N.E.2d 405.) Here defendants’ submissions fail to meet their initial burden of persuasion to establish that the terms of the implied agreement merely require the mechanical designation of Edward Popham in the will as a beneficiary under the will without providing for the contingency of his predeceasing the testator so as to assure an actual transfer of his property to Edward Popham and his wife Irene.

Only if the movants meet their initial burden does the respondent have a burden to make counter submissions. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107, 469 N.E.2d 1379 (only where party seeking summary judgment had made an evidentiary showing which refutes the allegations in the complaint must the party opposing the motion make counter submissions).) As defendants have not met their initial burden, the issue pertaining to the terms of the implied agreement is still controlled by count I of the pleadings, pursuant to which a viable contract claim, albeit under an implied contract theory, cannot be foreclosed.

Accordingly, for all the foregoing reasons, the grant of summary judgment as to count I is reversed.

As to count II, defendants rely upon the death certificate as evidence that Sewart died on May 6, 1985. A death certificate is prima facie evidence of the facts contained therein. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 73 — 25(6).) They contend, therefore, that they have met their burden as movants for summary judgment, and it was incumbent upon the plaintiff to provide expert medical testimony to raise an inference that Sewart predeceased Mr. Popham.

Plaintiff’s opposition to defendants’ summary judgment motion is primarily predicated on Dr. Schaffer’s factual testimony in his deposition. Conceding that Dr. Schaffer was “highly averse” to concluding that Sewart died before May 6, plaintiff nevertheless contends that there is sufficient evidence in his deposition to support plaintiff’s position that Sewart died before he was pronounced dead on May 6, and to raise the inference that Sewart predeceased Mr. Popham, notwithstanding the fact that Dr. Schaffer offered no such opinion.

Specifically, plaintiff relies on the fact that Dr. Schaffer stated that no EEG was taken, although one had been ordered on May 4, to be performed on May 6. This, plaintiff contends, supports her position that Schaffer thought, or at least suspected, that Sewart was brain dead prior to May 6, and ordered the test to confirm his suspicion. Moreover, plaintiff points to Dr. Schaffer’s testimony regarding Se-wart’s response to painful stimuli. Sewart responded to such stimuli on May 1, had a decreased response on May 2, and was “unresponsive” on May 4, with no indication in the records on May 3. In addition, the last response of the pupils to light stimuli was on April 30.

It is plaintiff’s position that these facts in Dr. Schaffer’s deposition are sufficient to raise an inference that Sewart suffered brain death prior to Popham’s death on May 4, and thereby create a genuine issue of material fact sufficient to withstand a motion for summary judgment, without submitting an evaluation by an expert who is qualified to render an opinion as to the time of Sewart’s brain death. Plaintiff contends that expert opinion on this point is not necessary, arguing that laymen should be deemed capable of drawing their own inference on this issue.

There are dual standards in this State for determining death. “[A] person is legally dead if he or she had sustained either (1) irreversible cessation of total brain function[s], according to usual and customary standards of medical practice, or (2) irreversible cessation of circulatory and respiratory functions according to usual and customary standards of medical practice.” (In re Haymer (1983), 115 Ill. App. 3d 349, 355, 450 N.E.2d 940, 954.) When circulatory and respiratory functions are mechanically maintained, the “irreversible cessation of total brain function[s]” or brain death standard may be used. (Janus v. Tarasewicz (1985), 135 Ill. App. 3d 936, 940, 482 N.E.2d 418.) Although the courts have refused to establish specific criteria for a diagnosis of brain death due to the changing nature of new technologies which could render any such criteria outdated, they have required that a diagnosis of brain death be made in accordance with the “usual and customary standards of medical practice.” (Janus, 135 Ill. App. 3d at 941, citing Haymer, 115 Ill. App. 3d at 354 n.9.) In Janus, the court considered the criteria established by the ad hoe committee of the Harvard Medical School, the same criteria discussed by Dr. Caron in his affidavit and deposition.

In this case, the controlling question was whether Sewart suffered brain death prior to his cardiac arrest on May 6. The issue before this court, therefore, is whether expert opinion is necessary for a trier of fact, under the facts of this case, to form an opinion that Sewart died prior to Mr. Popham’s death. If an expert opinion is necessary, then summary judgment in favor of defendants was proper as plaintiff has not come forth with an expert opinion in support of her position. (Kosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 478 N.E.2d 464; Stevenson v. Naughton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53; Sanders v. Frost (1969), 112 Ill. App. 2d 234, 251 N.E.2d 105.) Although neither party has cited any cases which specifically answer the question of whether expert medical opinion is necessary to a determination of brain death, our analysis of the case law regarding the necessity of expert testimony in other cases convinces us that it is required here.

Expert opinion testimony is required where more than common knowledge and experience are needed to understand the issues and to form an opinion. (Stevenson v. Naughton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53. See, e.g., Pacific Employers Insurance Co. v. Industrial Accident Comm’n (1941), 47 Cal. App. 2d 494, 118 P.2d 334 (pathological cause of physical condition (ulcer) is scientific question which requires expert testimony); Lincoln Income Life Insurance Co. v. Mann (1944), 297 Ky. 681, 180 S.W.2d 877 (expert testimony required to establish existence of heart disease).) Moreover, expert testimony is generally needed to establish the benchmark standard of care because jurors are unskilled in the practice of medicine and would be unable without medical evidence to determine any lack of necessary scientific skill. See, e.g., Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867 (negligent diagnosis and treatment of rectovaginal fistulae); Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279 (failure to identify left recurrent laryngeal nerve during surgery); Thompson v. Webb (1985), 138 Ill. App. 3d 629, 486 N.E.2d 326 (negligent diagnosis of cancer).

Expert testimony is not required when a layman will have no difficulty appraising the situation. (Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 196 N.E.2d 355.) “ ‘The rule is that expert testimony is not required if the negligence is so grossly apparent or the treatment is of such a common occurrence that a layman would have no difficulty appraising it. [Citations.] The rule has been applied to cases involving anesthesia, tonsillectomy, X rays and in some cases injections.’ ” Sanders v. Frost (1969), 112 Ill. App. 2d 234, 240, 251 N.E.2d 105, quoting Graham v. St. Luke’s Hospital (1964), 46 Ill. App. 2d 147, 158, 196 N.E.2d 355.

A diagnosis of brain death requires that several factors be evaluated, as discussed by Dr. Caron in his affidavit and by the courts in Janus and Haymer. These include unresponsive coma, apnea, absence of cephalic reflexes, absence of spinal reflexes, isoelectric EEC and absence of drug intoxication, factors which are clearly beyond the scope of the lay person’s knowledge. How can a lay person, whether judge or juror, be expected to reach a cogent and reliable conclusion from technically complex symptoms such as these without the assistance of an expert’s knowledge of the brain’s function and pathology? Clearly, more than common knowledge and experience is necessary to form a correct judgment on the question of brain death. See generally M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §702 (5th ed. 1990).

Our conclusion here that expert testimony is required to establish a diagnosis of brain death is further supported by Janus and Haymer. In Haymer, the court held that a determination of irreversible cessation of total brain function is to be made “according to usual and customary standards of medical practice.” (Haymer, 115 Ill. App. 3d at 355.) As previously noted, expert testimony is necessary to establish such standards since they are beyond the ken of the average layman. (Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867; Walski v. Tiesinga, 72 Ill. 2d 249, 381 N.E.2d 279.) In Janus, the court said that “where the death process is monitored by medical professionals, their testimony as to the ‘usual and customary standards of medical practice’ will be highly relevant when considering what constitutes a positive sign of life and what constitutes a criteria for determining death.” (Janus, 135 Ill. App. 3d at 942, citing Haymer, 115 Ill. App. 3d 349, 450 N.E.2d 940.) The fact that a determination of brain death is to be made according to the standards of medical practice, and that testimony from medical professionals regarding those standards is highly relevant in that determination, further supports our conclusion that expert testimony is required in a case such as this.

It is true that lay testimony may meet a party’s burden of proving survivorship by showing “evidence of a positive sign of life in one body and the absence of any such sign in the other.” (Janus, 135 Ill. App. 3d at 942, citing In re Estate of Lowrance (1978), 66 Ill. App. 3d 159, 383 N.E.2d 703.) Where such lay testimony is presented, it would logically follow that a jury could determine when death occurred without the assistance of expert testimony. However, there is no evidence in this case which would indicate that there were no positive signs of life in Sewart prior to the death of Mr. Popham on May 4. Had there been no positive signs of life in Sewart prior to May 4, we would not be concerned with the question of brain death, since the alternative standard of establishing death, the cessation of circulatory and respiratory function, would be satisfied. Sewart still had circulatory and respiratory function. Although these functions were artificially maintained, there is no evidence that he lacked these functions. Moreover, Dr. Caron stated that on May 4, nursing notes indicate that arm and leg movements were observed. On May 5, the entry was “neuro status unchanged,” which Dr. Caron interpreted to mean further arm movement. Also on the 5th, body movement was noted, as well as jerky movement of the leg when stimulated. Accordingly, there was no lay testimony here which would enable a trier of fact to determine that Sewart had died prior to Mr. Popham, without the benefit of an expert opinion to that effect.

Plaintiff has had the opportunity to obtain an expert to support her position, and was apparently unable to do so, and relies on the position that an expert is not required. As discussed above, we disagree, and find that the facts relied on by plaintiff are insufficient to create a reasonable inference that Sewart predeceased Edward Popham without an expert opinion to that effect. Accordingly, since the movants for summary judgment have presented evidence that Sewart died on May 6, 1985, by presenting the death certificate, and plaintiff has offered no competent evidence to raise a reasonable inference to the contrary, we affirm the grant of summary judgment in favor of defendants as to count II.

Affirmed in part; reversed in part and remanded.

MURRAY and McNULTY, JJ., concur.