text:
    MICHAEL GREENBERG et al., on Behalf of Themselves and all Other Persons Similarly Situated, Plaintiffs-Appellants, v. UNITED AIRLINES, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0453
    Opinion filed November 9, 1990.
    Rehearing denied December 12, 1990.

      Larry D. Drury, Ltd., of Chicago, for appellants.
    Kirkland & Ellis, of Chicago (Stephen C. Neal, J. Andrew Langan, and Brian D. Sieve, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs Michael and Iris Greenberg sued United Airlines in 1989 contending that 1988 changes to the company’s Mileage Plus frequent flier program breached a previous contract between the parties. Plaintiffs allege that the previous contract was made in 1981 when plaintiffs first joined the Mileage Plus program and began accruing miles. Plaintiffs sued for breach of contract, anticipatory breach, fraud, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1979, ch. 121½, par. 261 et seq.) and the Illinois Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1979, ch. 121½, par. 311 et seq.), negligent misrepresentation, breach of implied duty of fair dealing, and declaratory judgment contending the 1988 changes limit their rights under the 1981 contract. Plaintiffs sought relief for themselves and for a class of people similarly situated. A trial judge dismissed the amended complaint, never certifying the class, and found plaintiffs had failed to state a cause of action. We affirm the trial court’s decision.

For purposes of this appeal, the parties agree that United and the Greenbergs entered into a contract in 1981. Because this action was dismissed on defendant’s motion to strike the amended complaint and dismiss the cause of action, we consider only the sufficiency of the amended complaint.

The 1981 Mileage Plus rules were encompassed in a brochure mailed to several million existing United Airlines customers. Members of the company’s Red Carpet Club and Executive Air Travel Program were enrolled automatically and simply given cards on which they could record their mileage. The brochure described the method by which a frequent flier could accumulate miles until December 31, 1982, and described the benefits the frequent flier could receive by trading those miles for award certificates for discounted travel and other benefits. The brochure also stated: “Note: *** Award certificates must be requested by March 1, 1983. Mileage Plus discounted and free travel on United must be completed by June 30, 1983.” The promotional brochure contained no other terms or conditions.

In March 1982, United mailed an “Advisory” to Mileage Plus users which said, in pertinent part, “Due to the overwhelmingly positive response, Mileage Plus will continue beyond December 31, 1982, until such time as we may elect to announce a new expiration date.” Plaintiffs do not challenge defendant’s action under the 1982 advisory that extended the deadline and permitted United to administer the Mileage Plus program as it did through June 1988. Plaintiffs joined the program in 1981 and continue to use the program.

A third brochure released in 1988 provided for changes that went into effect July 1, 1988. The 1988 rules include numerous revisions to the Mileage Plus program. The new program provides among other changes that frequent fliers who were members prior to July 1, 1988, would have until December 15, 1994, to use the mileage credit earned prior to July 1, 1989. The mileage redemption procedure in place prior to the 1988 rules changes will apply to those miles. After that time, the 1988 rules state, members can transfer their mileage to the “new program.” Through this item in the brochure, United was exercising its option to set a new expiration date as expressed in the 1982 advisory.

The 1988 brochure includes terms and conditions that state that United has the right to terminate the program, or to change the program rules in whole or part at any time with or without notice, even though changes affect the value of the mileage already accumulated.

The final portion of the 1988 brochure includes the award redemption rules referred to above that provide for both existing Mileage Plus members and for new members. It states: “On or after July 1, 1989, whenever a member’s account balance reaches 20,000 miles, four (4) Award Cheques, valid for three (3) full years will be automatically sent to the member, and 20,000 miles will be deducted from the account.”

Plaintiffs filed suit against United in August 1989 alleging breach of contract, fraud, negligent misrepresentation, breach of an implied duty of fair dealing, declaratory judgment and statutory violations of the Illinois Uniform Deceptive Trade Practices Act and the Consumer Fraud Act. Each count alleged that the 1988 rules interfered with rights already vested under the 1981 rules. The trial judge dismissed the complaint in October 1989 for failure to state a cause of action. Plaintiffs filed an amended complaint in November 1989, adding a count for anticipatory breach of contract. In January 1990, the trial judge dismissed the amended complaint with prejudice for failure to state a cause of action. The trial judge denied a subsequent motion for reconsideration filed by plaintiffs and plaintiffs appealed.

To state a cause of action, a complaint must be both legally and factually sufficient; it must set forth a legally recognized claim as its basis for recovery and must plead facts which bring the claim within the legally recognized cause of action alleged. Failure to meet both requirements mandates dismissal of the complaint. (Sider v. Outboard Marine Corp. (1987), 160 Ill. App. 3d 290, 299, 513 N.E.2d 449, 454.) In evaluating a motion to dismiss, all facts properly pleaded are taken as true (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 148, 503 N.E.2d 246, 247); however, conclusions of law or fact unsupported by allegations of specific fact upon which the conclusions rest are not admitted. Stuart Town Homes Corp. v. Rosewell (1988), 176 Ill. App. 3d 59, 63-64, 530 N.E.2d 1046, 1049.

Plaintiffs’ complaint includes four legal theories that require an allegation of damages — breach of contract, anticipatory breach, fraud and negligent misrepresentation. Sider, 160 Ill. App. 3d 290 (injury is part of breach of contract action); Yale Development Co. v. Aurora Pizza Hut, Inc. (1981), 95 Ill. App. 3d 523, 420 N.E.2d 823 (injury is part of anticipatory breach action); Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599 (injury is part of fraud action); Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409 (injury is part of negligent misrepresentation action).

Defendant argues that the fatal mistake in the allegations in these four counts in plaintiffs’ complaint is a failure to allege an injury. We agree.

Plaintiffs’ complaint seeks recovery in fraud because defendant “would not provide or honor Mileage Plus miles.” Plaintiffs’ complaint seeks recovery for breach of contract because plaintiffs “are not allowed to use or benefit by their earned miles.” Plaintiffs’ complaint seeks recovery for negligent misrepresentation because defendant “induced them to purchase the defendant’s tickets and participate in the Mileage Plus program.” Plaintiffs’ complaint seeks recovery for anticipatory breach because defendant’s acts have “prevented plaintiff and the class from *** receiving accrued mileage from the defendant pursuant to the agreement of May, 1981.” In each count, plaintiffs ask for damages equal to the cash equivalent of miles accrued, though they conceded at oral arguments that plaintiffs received a plane trip in consideration for each cash outlay on a purchased ticket.

Though some of these counts seek specific damages, none allege an injury already suffered. Plaintiffs state that they are ready to use their mileage under the 1981 contract. But plaintiffs have not alleged an intention to use mileage after 1994, the time limit set for them under the 1988 rules. The Greenbergs’ complaint states: “Plaintiffs, and on information and belief, the class, have demanded that United honor the terms of its original contract. However, to date, United has failed to do so.” The Greenbergs do admit they have used accrued miles after July 1, 1988, without any problems from United. To date, plaintiffs have not alleged a present actual loss of rights. Plaintiffs’ argument underscores this by noting that “there was a positive and unequivocal manifestation by Defendant that the Plaintiffs’ vested rights would be terminated by 1994.” (Emphasis added.)

The record shows that at least through the time the case was dismissed, United had honored the Greenbergs’ request to redeem the benefits of their accrued miles and we therefore find the trial court properly dismissed plaintiffs’ charges of fraud, breach of contract, anticipatory breach and negligent misrepresentation for failure to state a cause of action because of plaintiffs’ failure and inability to allege any injury suffered.

The trial court granted defendant’s motion to dismiss plaintiffs’ statutory claims under the Consumer Fraud Act (Ill. Rev. Stat. 1979, ch. 121½, par. 261 et seq.). Plaintiffs’ reliance on the Consumer Fraud Act for injunctive relief is in error. Under the Act the Attorney General is given sole power to obtain an injunction against a person engaged in, engaging in, or who is about to engage in an unlawful practice. Martin v. Eggert (1988), 174 Ill. App. 3d 71, 77, 528 N.E.2d 386, 389.

The Act does permit a cause of action for damages and a violation can be found even if no damages are suffered. “Any person who suffers damage as a result of a violation of Sections 2 through 2N of this Act committed by any other person may bring an action against such person.” (Ill. Rev. Stat. 1979, ch. 121½, par. 270a.) “Unfair methods of competition and unfair or deceptive acts or practices, including *** misrepresentation or the concealment, suppression or omission of such material fact *** in the conduct of any trade or commerce are hereby-declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1979, ch. 121½, par. 262.

Under the Consumer Fraud Act, plaintiffs must show that they suffered damages as result of: (1) a deceptive act or practice, (2) an intent by defendant that he rely on the deception and that (3) the deception occurred in the course of conduct involving a trade or commerce. Ill. Rev. Stat. 1979, ch. 121½, par. 262.

Plaintiffs argue that United fraudulently omitted information in the 1981 contract when it failed to inform plaintiffs that the contract would not be honored at some time in the future and that the Mileage Plus program, and not simply the ability to accrue miles, would end in 1983. Plaintiffs also allege United violated the Consumer Fraud Act by failing to inform plaintiffs in 1981 that (in 1988) their accumulated mileage would be changed so that thereafter this mileage would be used to automatically issue award checks if an individual reached 20,000 miles.

Under plaintiffs’ scenario, United would have had to plan the 1988 changes before the 1981 rules were instituted. Plaintiffs, fail to allege any facts to support a finding of such pre-planning on the part of United. Plaintiffs’ charge of such calculated planning by United is supported only by allegations that United remained silent back in 1981. The Consumer Fraud Act is not intended to transform nondeceptive and nonfraudulent statements or omissions into actionable ones. (Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 678, 548 N.E.2d 1151, 1160.) The trial court properly dismissed plaintiffs’ Consumer Fraud Act count.

Plaintiffs contend defendant also violated the Illinois Uniform Deceptive Trade Practices Act. The Act states, in pertinent part: “A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he: *** (12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.” Ill. Rev. Stat. 1979, ch. 12 1/2, par. 312.

The Act does not provide a cause of action for damages (Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 253, 483 N.E.2d 1263, 1267), but it does permit private suits for injunctive relief and has generally been held to apply to situations where one competitor is harmed or may .be harmed by the unfair trade practices of another. (Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 274, 361 N.E.2d 815, 821.) Although the Act was intended to protect business, people, a consumer action is permissible if the consumer can allege facts which would indicate he is “likely to be damaged” in the future. Brooks, 47 Ill. App. 3d at 275.

The Greenbergs plead for injunctive relief to prevent irreparable injury they contend they will suffer by having to use their accrued miles by 1994. Irreparable injury includes an injury “which, *** because no certain pecuniary standard exists for the measurement of damages, cannot receive reasonable redress in a court of law. Wrongs *** which occasion damages that are estimated only by conjecture *** are included.” Black’s Law Dictionary 706-07 (5th ed. 1979).

If plaintiffs could be compensated with a cash recovery, their harm is not irreparable. (Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 141-42, 423 N.E.2d 1253, 1257.) A trial court can grant injunctive relief, however, if there is a threat that the harm is likely to occur in the future. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 633, 435 N.E.2d 1297, 1302.) Plaintiffs argue just such a harm here and ask that the 1988 rules be stricken and the 1981 rules be continued indefinitely.

To state a cause of action for injunctive relief, a plaintiff must minimally allege that he is likely to be damaged by another's deceptive trade practice. (Baughman v. Martindale-Hubbell, Inc. (1984), 129 Ill. App. 3d 506, 510, 472 N.E.2d 582, 585.) Plaintiffs allege they will be damaged in the future because defendant’s “promoting and advertising of their Mileage Plus program is conduct which creates a likelihood of confusion or misunderstanding between the parties.”

We find plaintiffs’ complaint alleges only the language of the statute itself. Plaintiffs do not allege how or why a likelihood of confusion in the Mileage Plus program would occur in the future. Plaintiffs now know what the 1988 rules require. The rules are explicit. We see no allegation of confusion in the future nor can we conceive of any situation in which such confusion would arise. The trial judge properly dismissed plaintiffs’ count for failure to state a cause of action under the Illinois Uniform Deceptive Trade Practices Act.

Plaintiffs’ complaint alleges that United breached its implied duty to deal in good faith by “refusing to honor all earned ‘Mileage Plus’ miles.” Plaintiffs call this conduct of United’s “outrageous dealings.”

Every contract implies good faith and fair dealing between parties. (Dykstra v. Crestwood Bank (1983), 117 Ill. App. 3d 821, 826, 454 N.E.2d 51, 55.) The trial court granted defendant’s motion to dismiss plaintiffs’ charge of breach of an implied duty of good faith.

We note again that plaintiffs have failed to allege how or when United has refused to honor earned miles. At the time of oral arguments, plaintiffs’ attorney did not dispute the United contention that the Greenbergs used accrued miles after July 1, 1988. The trial court’s decision to dismiss this count was not in error.

The trial judge granted defendant’s motion to dismiss plaintiffs’ declaratory judgment count. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination of the construction of any contract and a declaration of the rights of the parties interested. Ill. Rev. Stat. 1989, ch. 110, par. 2—701(a).

An actual controversy exists if there is a legitimate dispute admitting of an immediate and definite determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof. (Kerr Steamship Co. v. Chicago Title & Trust Co. (1983), 120 Ill. App. 3d 998, 1003, 458 N. E. 2d 1009, 1013.) The condition of justiciability is satisfied where the mere existence of a challenge to the plaintiffs’ legal interests casts doubt, insecurity and uncertainty upon the plaintiffs’ rights or status. Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 214, 475 N.E.2d 223, 227.

Defendant argues that no controversy exists, that rules are clear, and declaratory relief is unnecessary. Defendant also cites another case which holds a declaratory judgment action is derivative and cannot stand without an existing claim based on a particular substantive legal theory. Mack v. Plaza DeWitt Limited Partnership (1985), 137 Ill. App. 3d 343, 349, 484 N.E.2d 900, 905.

Plaintiffs’ complaint states only that “an actual controversy exists between the parties concerning their rights under the rules of the Mileage Plus program, whereby the plaintiffs request that the court make a binding determination and judgment concerning the parties’ rights with respect thereto.”

Plaintiffs contend in their brief in opposition to the motion to dismiss before the trial court that a present controversy exists over whether United can change the 1981 Mileage Plus agreement. Plaintiffs state that even though their complaint alleges they have already suffered injury because of the controversy, they also argue that no party need be injured to sustain an action. Stone, 131 Ill. App. 3d at 214.

Plaintiffs’ reliance on Stone is ill-advised since Stone is factually distinguishable from our case. In Stone, a cable company, nearly two years before plaintiff’s suit was filed, had installed a television cable underground on plaintiff’s property. Plaintiff sought declaratory judgment, alleging a continuing trespass and seeking an interpretation of a State statute.

We see no present harm alleged here that will continue without the court’s intrusion. Plaintiffs acknowledge that they were willing to accept the existing Mileage Plus rules up to and including June 1988. They now allege a harm could occur in the future.

The court will not render a judgment based on mere abstract propositions of law, render an advisory opinion or give legal guidance regarding future events. (Stone, 131 Ill. App. 3d at 214.) The court in Stone stated that a declaratory judgment action required that plaintiff plead a demonstrable protected interest and that his or her rights will be affected adversely by defendant’s actions. (Stone, 131 Ill. App. 3d at 214.) Though plaintiffs may have a protectable interest in miles accrued, they have failed to plead any adverse effect they will suffer under the 1988 rules charges.

The decision to grant or deny a request for declaratory judgment is a question that rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (Stone, 131 Ill. App. 3d at 215.) We find no abuse of discretion and hold that the trial judge properly granted defendant’s motion to dismiss the action for declaratory judgment.

The trial judge granted defendant’s motion to dismiss plaintiffs’ request for punitive damages. Plaintiffs’ complaint asks for $1 million in punitive damages for the “willful, and malicious acts of the defendant.” However, on appeal plaintiffs do not raise as an issue the question of whether the trial judge properly dismissed the punitive damage portion of the complaint. Therefore, it is deemed waived. Anderson v. Smith (1980), 91 Ill. App. 3d 938, 415 N.E.2d 643.

For the foregoing reasons, we find the trial court properly dismissed plaintiffs’ amended complaint. We affirm the decision of the trial court.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE FREEMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN McCARTNEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3361
    Opinion filed November 14, 1990.

      Sheldon L. Banks, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gale O’Brien, and LaTisha Martin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, John McCartney, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)) and sentenced to 30 years’ imprisonment in the Illinois Department of Corrections. Defendant appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erroneously permitted impeachment of his alibi witnesses; (3) the trial court abused its discretion in denying his motion for a new trial; and (4) the trial court abused its discretion in imposing the sentence. We affirm.

T.O., the seven-year-old complainant, testified as follows: On April 8, 1988, he and his playmate were riding their bicycles down Washtenaw and Taiman Avenues. T.O. saw a yellow truck parked on Thorndale. A white male, dressed in a pink and white striped sweat shirt and blue jeans, got out of the truck. T.O. described the man as tall and about as big as his dad and that he had a scratch over his right eye on his forehead. T.O. and the man walked into a gangway together.

After they went into the gangway the man pulled down his pants and began shaking his “ding dong.” T.O. indicated on his body that the man’s “ding dong” was located between his legs. The man then pulled down T.O.’s pants and licked his “ding dong.” When the man finished, he said good-bye to T.O. and told him not to tell his mother. T.O. pulled up his pants, went home, put away his bicycle, and immediately told his mother what had happened.

A few days after the incident T.O., accompanied by his father, went to the police department to look at a photo array. He testified that when he first saw defendant’s photograph at the police department he initially said to his dad, and then to the police, “that’s him.”

A few days afterwards, T.O., again accompanied by his father, returned to the police station to view a lineup. He identified defendant as his assailant.

On cross-examination T.O. testified that his playmate was not with him at the time of the assault, but had returned to T.O.’s house. Further, in response to defense counsel’s question that T.O. had not told his mother immediately, but had waited a couple of hours instead, T.O. responded, “Yes.” T.O. also testified that there was something different about the hair and muscles of the man in the photograph.

T.O’s mother, A.O., testified. Her testimony essentially corroborated T.O.’s, except she stated that on the morning of the 8th, T.O. returned home from riding his bicycle at about 10 a.m. He told her about the incident almost immediately upon his arrival. However, they had not called the police until about V-k hours later. T.O. was crying and upset, and he told her that “some man licked [his] ding dong.” T.O. was six years old when the incident occurred.

M.O., T.O.’s father, also testified. He was with T.O. when he looked at the photo array. When T.O. identified defendant in the photograph book, M.O. summoned Detective Carey Orr, who was conducting the photo identification. According to M.O., Detective Orr asked T.O. why he thought the man in the photo he had chosen was his assailant. T.O. responded because it looked like him, that he had the same color hair, even though it was a little different, and that he had big muscles. At Detective Orr’s instruction, T.O. looked through the rest of the photo array; however, he made no other identifications. Detective Orr’s testimony concerning the photo identification essentially corroborated that of M.O.

M.O. further testified that when he and T.O. went into the police station for the lineup, after the blinds to the viewing window were opened, T.O. immediately identified defendant and stated, “There he is, dad. There he is.” On redirect examination, M.O. stated that neither he nor anyone else had suggested to T.O. who to pick out in either the photo array or the lineup. Detective Warren Gavin, the officer who conducted the lineup, corroborated M.O.’s testimony.

Officer Barbara Bereckis, a Chicago police officer, testified that on April 8, at about 11:58 a.m., she interviewed T.O. at his home. According to her, T.O. identified his assailant as a white male, approximately 30 years old, dark brown hair, with a scratch on the right side of his face, on his forehead.

On cross-examination, Officer Bereckis stated that she heard T.O.’s parents tell another officer that T.O. had not told them about the incident until a few hours after he had arrived home. When questioned about T.O.’s description of defendant’s truck, Bereckis initially stated that the “[cjlosest we could come was yellow.” She then stated that T.O. had told her yellow.

Recitation of the testimony of other State witnesses, which was largely corroborative, would only be cumulative. Therefore, their testimony will only be stated where required to adequately address defendant’s arguments.

Jean Gibson, defendant’s mother, testified on defendant’s behalf. On April 8, 1988, she was at home. According to her, at 9:30 a.m., defendant, her daughter, Gina McCartney, and their friend, Terry Dean, came into the house. Defendant was dressed in a suit at the time. Defendant slept there with his girlfriend, Tracy Walsh, the rest of the day. At 6 p.m. that evening defendant and Walsh left the home. Walsh corroborated Jean’s testimony concerning defendant’s presence in the home on April 8.

Eunice Mosco, a friend of Jean’s, also testified on defendant’s behalf. She stated that on Friday, April 8, 1988, at about 9:15 a.m., she saw defendant and his sister in a red car at a local gas station located at “Devon and Bell.” Mosco went to the passenger side of the car, stuck her head inside and said hello. When asked whether she saw the scratch on defendant’s face, she responded that she was not looking at him in that way.

Patricia Boyd, Mosco’s sister, essentially corroborated Mosco’s testimony, with the exception of the fact that Boyd stated that she usually works on Saturdays and that it was a Saturday when she and Mosco had seen defendant at the station.

Gina McCartney also testified. She stated that on the evening of April 7, defendant and a friend, Terry Dean, came into the bar where she works and stayed until the 2 a.m. closing. Afterwards, she, defendant, and Dean went to a couple of other bars. On the morning of April 8, at about 8:30 a.m., the three headed for home. On the way, they stopped at a gas station on “Devon and Belmont.” When she got out of the car to get cigarettes, she saw Eunice go over to the car and speak to defendant. Gina returned to the car and the three then went to her mother’s home. According to Gina, they arrived home at about 9:10 a.m. William Dean corroborated Gina’s testimony.

Defendant’s first contention raises a question of sufficiency of the evidence at trial. He maintains that he was not proved guilty beyond a reasonable doubt, and he urges several points in support of reversal. We disagree.

“Allegations of sexual misconduct are easily made, hard to prove, and harder to defend.” (People v. Douglas (1989), 183 Ill. App. 3d 241, 251, 538 N.E.2d 1335, citing People v. Nunes (1964), 30 Ill. 2d 143, 195 N.E.2d 706.) Accordingly, in order to sustain a conviction for aggravated criminal sexual assault where the defendant denies the chárge, the testimony of the complainant must be either clear and convincing or corroborated by other evidence. People v. Cregar (1988), 172 Ill. App. 3d 807, 819, 526 N.E.2d 1376; People v. Server (1986), 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88,108 S. Ct. 131.

There is no requirement that testimony be crystal clear and perfect in order to qualify as clear and convincing. (People v. Born (1987), 156 Ill. App. 3d 584, 590, 509 N.E.2d 125; Server, 148 Ill. App. 3d 888, 499 N.E.2d 1019.) Minor variances affect only credibility (Cregar, 172 Ill. App. 3d at 820, citing People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958), a factor properly left for resolution by the trier of fact (Cregar, 172 Ill. App. 3d at 820). As long as any discrepancies do not detract from the reasonableness of the complainant’s testimony, it may be held to be clear and convincing. (Redman, 141 Ill. App. 3d at 703.) Needless to say, our review of the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s guilt. People v. Johnson (1986), 114 Ill. 2d 170, 190, 499 N.E.2d 1355, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Defendant first argues that T.O.’s testimony concerning his height and weight was unclear. He points to testimony that T.O. told one police officer that his assailant was about 30 years old while he told another that he was between 30 and 40. Additionally, defendant points to a police officer’s testimony that T.O. had not been clear about defendant’s height, while he told another officer that defendant was six feet tall.

We notice no unclarity in this testimony. Further, we decline to consider the officer’s testimony concerning T.O.’s lack of clarity in description as impeachment testimony. T.O.’s identification of defendant in the photo array, the lineup, as well as in court, was immediate and certain. Moreover, the presence of discrepancies or omissions in a witness’ description of the accused do not, in and of themselves, give rise to a reasonable doubt as long as a positive identification has been made. People v. Slim (1989), 127 Ill. 2d 302, 309, 537 N.E.2d 317; People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915.

Defendant has raised a few other points regarding matters of fact and issues of credibility concerning T.O.’s identification of him as the offender. We have considered these issues, and we believe them to have been properly resolved by the trial court. Additional recitation and analysis of these issues would serve no purpose and we therefore decline to consider them further.

Defendant next argues that the lineup identification is not reliable because of M.O.’s suggestive comment to T.O. prior to his viewing the lineup. Specifically, defendant asserts that when T.O. went to the police station to view the lineup, his father told him that there was going to “be a man that looked like the picture” that T.O. had earlier identified.

Our review of the record reveals that on cross-examination of T.O., the following colloquy occurred:

“MR. BANKS [Defense Counsel]: [T.O.], when you went with your dad to the line-up, do you remember?
WITNESS: Yes.
MR. BANKS: Okay. And before you went to the line-up, your dad said there was going to be a man who looked like the picture that you picked out was going to be in the line-up, is that correct?
WITNESS: Yes.”

Cross-examination is a legal tool, which, when skillfully applied, may involve the use of many subtleties in questioning designed to elicit the truth. A witness, such as T.O., of tender years, who is otherwise oblivious to the techniques applied in the art of advocacy, may be incapable of distinguishing such nuances and to adequately avoid the traps set thereby. We decline to credit T.O. with defense counsel’s artfully designed question. Moreover, T.O.’s father testified that he had not made such a statement prior to T.O. viewing the lineup.

Defendant next argues that T.O.’s identification of defendant’s truck was uncertain. He points to the following facts: (1) T.O. testified that he had told the policemen that the truck was yellow, (2) T.O. described to a police officer that the truck was a yellow pick-up, and (3) the McCartney truck was a dump truck which was described by various witnesses as green, gray and yellow; green and gold; and gray and green.

Officer Carl Kurth testified that he had taken a photograph of defendant’s father’s truck. On the day following the lineup, he showed that picture, along with four others, to T.O. for identification. T.O. chose the photograph of the McCartney truck and was asked to write his name on it.

On direct examination T.0 stated that when he was shown the photographs of the trucks, he recognized the truck that had been parked on the street on the date of the incident. He stated, “That’s it,” and wrote his name on the picture. On cross-examination T.O. stated that in the initial interview with the police he told them that the truck was yellow. While testifying, when shown a photograph of the truck which he had previously identified and asked to describe its color, T.O. replied, “all sorts of colors. Blue. White. Any color.” Then, when asked whether the truck contained any yellow, T.O. replied that he did not see any, but identified some yellow on the license plate.

Detective Anthony Villardita testified that T.O. had initially described the truck as a type of a pick-up truck, but that the back was different; it was open similar to a pick-up truck. On cross-examination, Villardita testified that T.O. never used the words pick-up truck, but from his description, that’s how Villardita would describe it. Villardita put in his police report that defendant was in a yellow pick-up truck.

Even though T.O.’s identification of the color of the truck is less than perfect, his identification of the McCartney truck in the photograph was clear. We do not believe that minor discrepancies concerning the color of the truck detract from the reasonableness of TO.’s testimony. This is particularly so in light of the fact that even defendant’s own witness described the truck as having some yellow on it.

Finally, defendant maintains that T.O.’s testimony was dubious and uncertain in contrast to the uncontradicted testimony of his six alibi witnesses and that the trial court erred in rejecting it. He relies on People v. Jefferson (1962), 24 Ill. 2d 398, 182 N.E.2d 1, for the proposition that where there is uncontradicted alibi testimony, uncertain identification testimony is insufficient to support a conviction. We agree, however, as we have already discussed, T.O.’s identification testimony was not uncertain. Furthermore, the weight afforded alibi testimony is a question of credibility for the trial court (People v. Calhoun (1984), 126 Ill. App. 3d 727, 738, 467 N.E.2d 1037; People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847), and there is no requirement that it accept alibi testimony over positive identification of an accused. Slim, 127 Ill. 2d at 315; People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649.

Furthermore, we find defendant’s reliance on Jefferson to be of no benefit to him. We note that in Jefferson, while one of the alibi witnesses was the defendant’s aunt, the other was a disinterested person who also claimed to have committed the offense for which the defendant was charged. Additionally, the complainant in Jefferson was unable to identify the defendant as the offender even though he had the best opportunity to observe him. Here, the defendant’s alibi witnesses were, for the most part, either relatives or friends of the family. Additionally, here, unlike Jefferson, the complainant was able to identity defendant as his assailant.

After reviewing all of the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of aggravated criminal sexual assault beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, cert. denied (1990), _U.S__, 111 L. Ed. 2d 798, 110 S. Ct. 3290; Collins, 106 Ill. 2d 237.) T.O.’s testimony concerning the assault was clear and convincing. The guilty verdict is amply supported by the evidence and must stand.

Defendant’s second contention, raised in his supplemental brief, is that reversal is required because the trial court erroneously relied on People v. James (1988), 123 Ill. 2d 523, 528 N.E.2d 723, to permit impeachment of his alibi witnesses.

At trial, after the defense had presented several alibi witnesses, and over defendant’s objection, the State presented rebuttal testimony of two police officers. Officers Gavin and Kurth testified that following the lineup, defendant asked them what happened. The officers replied that defendant had been identified. Defendant then responded that it could not have been him because he was working with his father at the time of the incident. We note, without need of detailed analysis, that defendant’s response to the police officers, which was freely and voluntarily given, was legally obtained evidence.

John McCartney, defendant’s father, testified that defendant occasionally works for him in his construction business. On surrebuttal, John testified that defendant worked four days of the week beginning April 4, but that he did not work on April 8.

McCartney also testified that on the morning of the 8th, at about 8:30 a.m. he and another employee went in John’s station wagon to a jobsite. His truck, which he described as green and gold, was left parked on Leavitt. After going to the jobsite, he checked back at about 10 a.m. and found that the truck was still parked there. John further testified that defendant used to have a key to the truck, but, sometime prior to April 8, John had taken the key from him.

In James, our supreme court held that illegally obtained evidence could be used to impeach, not only the defendant’s testimony, but testimony of his witnesses. The U.S. Supreme Court reversed, holding that expansion of the exception “to encompass the testimony of all defense witnesses would not further the truthseeking value with equal force but would appreciably undermine the deterrent effect of the exclusionary rule.” James v. Illinois (1990), 493 U.S. 307, 320, 107 L. Ed. 2d 676, 688,110 S. Ct. 648, 656.

Defendant relies on the latter holding to support his argument of impropriety of the rebuttal testimony. James is of no avail to defendant. The narrow holding of James is that illegally obtained evidence cannot be used to impeach the defendant’s witnesses. The rebuttal evidence in this case was legally obtained. Further, even though defendant chose not to testify, the rebuttal evidence was properly admitted to contradict the defense witnesses on defendant’s alibi defense and reflected adversely upon the credibility of those witnesses. See People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634, cert. denied (1983), 464 U.S. 934, 78 L. Ed. 2d 308, 104 S. Ct. 340; People v. Harvey (1980), 92 Ill. App. 3d 465, 415 N.E.2d 1161; People v. Green (1975), 26 Ill. App. 3d 662, 325 N.E.2d 316, affd in part, rev’d in part on other grounds (1975), 62 Ill. 2d 146, 340 N.E.2d 9, cert. denied (1976), 426 U.S. 925, 49 L. Ed. 2d 379, 96 S. Ct. 2635.

To the extent that the trial court relied on James as the basis for its allowance of the rebuttal testimony, it was in error. That notwithstanding, “ ‘the question before a reviewing court is the correctness of the result reached by the trial court, and not the correctness of the reasoning upon which that result was reached.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 428, 521 N.E.2d 38, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187, quoting People v. York (1963), 29 Ill. 2d 68, 71, 193 N.E.2d 773; People v. Romero (1975), 31 Ill. App. 3d 704, 334 N.E.2d 305, affd (1977), 66 Ill. 2d 325, 362 N.E.2d 288.) The testimony was properly allowed; we find no abuse of discretion.

Defendant’s third contention is that the trial court abused its discretion when it denied his motion for a new trial. Prior to sentencing, defendant filed and argued a motion for a new trial based on newly discovered evidence. The claimed new evidence was a letter which, subsequent to the jury’s verdict, had been mailed to the Lerner Newspaper. In the letter the writer, who described himself as a “child molester [who] needs to be stopped,” stated that he had sexually assaulted T.O. and that “[defendant] didn’t do it.” After hearing defendant’s argument, the trial court denied the motion for a new trial.

Motions for a new trial based on newly discovered evidence are left to the sound discretion of the trial court, and absent an abuse of discretion, its decision will not be disturbed. (People v. Miller (1980), 79 Ill. 2d 454, 464, 404 N.E.2d 199, citing People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1; People v. Johnson (1986), 148 Ill. App. 3d 163, 498 N.E.2d 816.) Since newly discovered evidence is regarded with suspicion, applications for new trials on that basis are likewise looked upon with distrust and must be granted with great caution. (Miller, 79 Ill. 2d at 465.) However, a new trial will be granted more readily where the verdict appears to be against the weight of the evidence or where it is quite doubtful under the evidence. 66 C.J.S. New Trial §110 (1950).

In order for newly discovered evidence to warrant a new trial, the new evidence must meet three requirements. It must (1) be of such conclusive character that it will probably change the result on retrial, (2) have been discovered since the trial, and (3) be of such character that it could not have been discovered prior to trial by the exercise of due diligence. People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398; Baker, 16 Ill. 2d 364, 158 N.E.2d 1.

The State concedes, and we agree, that defendant’s claimed new evidence satisfies the second and third requirements for a new trial. The more difficult question is whether the letter would probably result in acquittal in the event of a new trial. In the letter, which was dated four days after the jury’s verdict, the writer states that he wants to be caught, yet, he includes neither a legible name nor an address. However, he then goes on to include a physical description of himself, viz., that he had a scar on his forehead, that his hair is blondish brown and that he drives a “yellow pick-up truck.” We are wary of the writer’s choice of facts which, coincidentally, attempt to mirror T.O.’s identification testimony. The timing of this letter, in addition to the writer’s choice of facts, which incidentally go to the contested issue of identification, tend, to us, to cloak the letter in a veil of suspicion.

Our resolution of this issue involved consideration of the letter itself as well as our determination that the verdict here was amply supported by the evidence. We are not persuaded that this letter, which could easily have been contrived by defendant, would have resulted in a different result upon retrial. Therefore, we find no abuse of discretion in the trial court’s denial of defendant’s motion for a new trial.

Defendant’s final contention is that the trial court abused its discretion in sentencing him to a term of 30 years’ imprisonment. He argues that the trial court failed to consider his potential for rehabilitation. He maintains that even though the trial court stated that it was aware of the court’s obligation to consider the likelihood of rehabilitation, it made only findings in aggravation.

We have reviewed that portion of the record wherein the court pronounced sentence. The court, contrary to defendant’s characterization, expressly stated:

“This court has had the opportunity to listen to the arguments in aggravation and mitigation. I have considered those, each of those factors as I felt were applicable, as well I recall the facts of this case very, very well. I have again had the benefit of arguments of both very able counsel. I have read the presentence investigation as well as the victim-impact statement that’s incorporated therein.
*** I’m certainly conversant with our 1970 Illinois Constitution particularly article 1, [s]ection 11 that essentially indicates all penalties should be determined both according to the seriousness of the offense and with the objective to restore the offender to useful citizenship.”

The court’s express statements belie any argument that it failed to give consideration to the appropriate sentencing factors. Moreover, the sentencing judge need not recite every factor he considered in determining defendant’s sentence. People v. Plantinga (1985), 132 Ill. App. 3d 512, 522-23, 477 N.E.2d 1299; People v. Davis (1984), 124 Ill. App. 3d 813, 464 N.E.2d 1150.

We also note that aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), punishable by a term of imprisonment of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3)). Thus, defendant’s sentence was within the statutory limits.

It is well settled that matters of sentencing rest within the sound discretion of the trial court and, absent a finding of abuse, this court will not substitute its judgment. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541; People v. Griffin (1988), 175 Ill. App. 3d Ill, 529 N.E.2d 727.) In reviewing sentencing issues, we are mindful that it is not our function to serve as a sentencing court. (People v. Sheppard, (1990), 193 Ill. App. 3d 401, 405, 549 N.E.2d 971; People v. Holloway (1983), 119 Ill. App. 3d 1014, 457 N.E.2d 466.) Therefore, that we, as a reviewing court, might have imposed a lesser punishment for an offense is not cause for reduction of a. statutorily permissible sentence. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

Here, the trial court had before it defendant’s past criminal record, which not only included a 1982 conviction and four-year prison sentence for aggravated kidnapping of a child, but chronicled a history of deviant sexual and antisocial behavior. The court also had the opportunity to consider defendant’s age, past military service, character and demeanor, as well as the victim impact statement. We have reviewed the factors presented to the trial court and have given much consideration to the nature and circumstances of this offense. Additionally, we have given attention to the proximity in time between defendant’s 1982 conviction and this offense. We agree with the court’s assessment of defendant as a “threat to children.” Therefore, in light of all of these factors and in deference to those settled principles of law which we have recited above, we can find no abuse of discretion. Defendant’s sentence was proper.

For the foregoing reasons, we affirm the judgment and sentence of the trial court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      WiIliam Dean is referred to in Jean Gibson’s and Gina McCartney’s testimony as Terry Dean.

      Defendant refers to the officers’ testimony as impeachment evidence. Impeachment evidence is a prior contradictory statement of the witness. Since the statement here was not that of the officers, but rather of defendant, we believe that the testimony, correctly characterized, was rebuttal evidence, substantive evidence introduced to contradict a specific point in the defendant’s case. See People v. James, 123 Ill. 2d at 548-50 (Clark, J., dissenting, joined by Stamos, J.).


author: PRESIDING JUSTICE McMORROW

text:
    WATER PIPE EXTENSION, Bureau of Engineering, Laborers Local 1092, Petitioners, v. THE CITY OF CHICAGO et al., Respondents.
    First District (4th Division)
    No. 1—88—3312
    Opinion filed November 15, 1990.

      Joseph T. Moriarty, of Erbacci, Syracuse & Cerone, Ltd., of Chicago, for petitioners.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Mardell Nereim, Assistant Corporation Counsel, of counsel), for respondent City of Chicago.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Water Pipe Extension, Bureau of Engineering, Laborers Local 1092 (the Union), seeks review of the order of the Illinois Local Labor Relations Board (the Board) that dismissed the Union’s charge that the City of Chicago (the City) committed an unfair labor practice in violation of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1601 el seq.). The Union alleged that the City committed an unfair labor practice when the City unilaterally reclassified, pursuant to a new City personnel rule, certain members of the Union.

The Board dismissed the Union’s unfair labor practice charge because the Board determined that it should defer to an arbitral award wherein it was decided that the City's conduct did not violate the parties’ collective bargaining agreement. The Board also determined that dismissal of the Union’s unfair labor practice charge was appropriate because the matter was time barred.

We conclude that the Board’s deferral to the arbitrator’s decision was an abuse of discretion. The Board’s decision to defer to the arbitrator’s award in the case at bar served to deprive the Union of a hearing on the specific merits and underlying facts of the Union’s unfair labor practice claim. We further determine that the Union’s unfair labor practice charge was not time barred. Accordingly, we reverse and remand for further proceedings before the Board.

The Union’s unfair labor practice claim alleged that the City erroneously led the Union to believe that the City had not applied and would not apply a City personnel rule to the Union's members. This rule, adopted by the City in June 1985 and entitled Rule 26, allows the City to change an employee’s job classification without prior notice to or intervention by the Union or the employee, if the City determines that the employee “is not performing a sufficient portion of the duties of [his] class or position and is properly classified in another position.” Rule 26 reclassification causes a change in the employee’s job title, and results in a loss of wage rates, seniority, membership with a particular union, and related benefits.

The Union alleged that it had been misled by certain representations regarding Rule 26 made by the City during the course of negotiations that culminated in the parties’ February 1986 collective bargaining agreement. Specifically, these representations were (1) the City’s notification to the Union in July 1985 that Rule 26 would “have no current impact on members of your bargaining unit,” and (2) the City’s representation to the Union at the bargaining table in January 1986 that the reclassification of material inspectors (hereinafter the material inspector reclassification) had not been undertaken pursuant to Rule 26. The evidence in the record is conflicting with respect to whether the City based the material inspector reclassification on Rule 26. The parties’ collective bargaining agreement, executed in February 1986, contains no provision regarding Rule 26’s applicability to the Union’s members.

The Union filed its unfair labor practice claim in December 1986, after the City notified the Union that certain other members of the Union, holding the position of laborer or laborer foreman, had been reclassified pursuant to Rule 26 (hereinafter the laborer reclassification). The Union also filed a grievance alleging that the City’s Rule 26 laborer reclassification violated the parties’ collective bargaining agreement.

After the Board filed its unfair labor practice charge, the Board entered an order that postponed its hearing thereon pending arbitration of the Union’s contractual grievance (hereinafter the prearbitral deferral order). The Board’s prearbitral deferral order specifically required that the arbitrator consider the Union’s unfair labor practice claim, and directed that any material departure would warrant resumption of Board proceedings. Following an evidentiary hearing, the arbitrator concluded that the City’s actions did not violate the parties’ collective bargaining agreement. The arbitrator declined to render a decision regarding the Union’s unfair labor practice charge.

Upon resumption of the Union’s unfair labor practice claim before the Board, the Board chose to defer to the arbitrator’s disposition of the Union’s grievance under the collective bargaining agreement. In its decision to defer to the arbitrator’s award, the Board adopted the post-arbitral deferral standards enunciated by the National Labor Relations Board in Olin Corp. (1984), 268 N.L.R.B. 573. The Board also determined that the Union’s unfair labor practice claim was barred by the six-month limitation stated in the Act. (See Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).) Based upon these determinations, the Board dismissed the Union’s unfair labor practice charge. The Union now seeks appellate review of the Board’s decision.

On appeal, the parties focus much of their argument upon the propriety of the Board’s adoption of the post-arbitral deferral standard set forth by the National Labor Relations Board in Olin Corp. (1984), 268 N.L.R.B. 573. Under Olin, the Board may, in its discretion, defer to the award of an arbitrator where the arbitrator has adequately considered the unfair labor practice charge and the arbitral award is not clearly repugnant to the purposes of the Act. An arbitrator is deemed to have adequately considered the unfair labor practice charge if (1) the contractual issue decided by the arbitrator is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice charge.

The Union contends that the Board’s adoption of Olin was an abuse of discretion because the principles of Olin conflicted with the Board’s prearbitral deferral order and deprived the Union of a hearing on the specific merits and underlying facts of its unfair labor practice claim. We agree.

Generally, an administrative agency is empowered to adopt rules and regulations that carry out the goals of the agency’s enabling statute. However, the agency’s adoption of such rules requires a consistent adherence thereto, and an agency may not apply a modified rule to a party who has had no prior notice thereof and who has detrimentally relied upon the agency’s prior rule. See, e.g., Holland v. Quinn (1978), 67 Ill. App. 3d 571, 385 N.E.2d 92.

The Board’s adoption of Olin under the facts of this case constituted a deviation from and modification of the Board’s prearbitral deferral order. The record shows that the Board's prearbitral deferral order made no reference to the Board’s adoption of the post-arbitral deferral standard of Olin. In addition, the prearbitral order was inconsistent with the Board’s subsequent adoption of Olin. The Board’s prearbitral order specifically required the arbitrator’s consideration of the merits of the Union’s unfair labor practice charge as a condition to deferral to the arbitrator’s decision. In contrast, Olin does not require an arbitrator’s resolution of the merits of an unfair practice claim in order to justify deferral to the arbitrator’s award. By adopting the standards of Olin in its post-arbitral decision, the Board applied a modified deferral standard with no prior notice to the Union that the Olin standard would be applicable to the cause.

The record also shows that the Union detrimentally relied upon the Board’s prearbitral deferral order and the deferral standard set forth therein. The record indicates that the Union agreed to the terms of the Board’s prearbitral deferral order because the Union believed that its terms would ensure the Union a full hearing, before either the arbitrator or the Board, with respect to the specific merits of the Board’s unfair labor practice charge. The Union objected to the Board’s post-arbitral deferral to the arbitrator’s award based upon Olin, claiming that adoption of Olin would deprive the Union of the full hearing it had anticipated. By deferring to the arbitrator’s award in the instant cause based upon the guidelines of Olin, the Board deprived the Union of a hearing on the specific merits of its unfair labor practice claim.

The Board’s decision to defer to the arbitrator’s award under the principles of Olin also deprived the Union of a hearing with respect to the underlying facts of the Union’s unfair labor practice claim. It has been held that post-arbitral deferral under the Olin standard is improper when the arbitrator’s award has not made a factual finding with regard to a crucial allegation of the Union’s unfair labor practice charge. See Harberson v. NLRB (10th Cir. 1987), 810 F.2d 977; see also Nevins v. NLRB (2d Cir. 1986), 796 F.2d 14; cf. Westinghouse Electric Corp. v. NLRB (7th Cir. 1987), 809 F.2d 419 (NLRB’s adoption of ALJ’s decision amounted to abuse of discretion where neither ALJ nor Board considered crucial evidence); Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 505-06, 524 N.E.2d 561 (administrative agency’s decision is an abuse of discretion when agency “entirely fails to consider an important aspect of the problem”).

Neither the Board nor the arbitrator made a factual finding with respect to the Union’s allegation that the City concealed from the Union, at the bargaining table in January 1986, that the material inspector reclassification had been undertaken by the City pursuant to its Rule 26. The Union argued that this conduct by the City amounted to an unfair labor practice. (See Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4); see also Water Pipe Extension v. City of Chicago (1990), 195 Ill. App. 3d 50, 59, 551 N.E.2d 1324, citing NLRB v. Truitt Manufacturing Co. (1956), 351 U.S. 149, 100 L. Ed. 1027, 76 S. Ct. 753 (“employer’s failure to furnish relevant information to unions during contract negotiations may constitute an unfair labor practice”); Vienna School District No. 55 v. Illinois Educational Labor Relations Board (1987), 162 Ill. App. 3d 503, 515 N.E.2d 476 (employer’s unilateral action during collective bargaining with respect to mandatory bargaining subject is unfair labor practice).) The Union’s allegation was a material factor in its unfair labor practice claim and should have been addressed by the Board.

Given these circumstances, we conclude that it was reversible error for the Board to defer to the arbitrator’s award. As a result, we reverse the Board’s decision and remand the matter for further proceedings consistent herewith.

Because of the absence of any factual finding with respect to the Union’s allegation that the City misrepresented to the Union, during collective bargaining in January 1986, that the material inspector reclassification had not been undertaken pursuant to Rule 26, we do not address the Union’s argument that the City’s conduct was, in fact, an unfair labor practice. In light of our disposition, we also do not consider the Union’s claim that the Board’s adoption of Olin should be held per se arbitrary and capricious in all cases. See Taylor v. NLRB (11th Cir. 1986), 786 F.2d 1516 (finding Olin standard for post-arbitral deferral arbitrary and capricious); see generally Comment, Further Convolutions in a Convoluted Policy: Olin, Taylor, and NLRB Deferral to Arbitral Decisions, 82 Nw. U.L. Rev. 443 (1988).

We also note that the Union’s unfair labor practice charge was not time barred. It has been held that the time for filing an unfair labor practice charge begins to run when the aggrieved party becomes aware, or should become aware, of a change in personnel policy that is “unambiguously announced.” (Wapella Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988), 177 Ill. App. 3d 153, 168, 531 N.E.2d 1371.) The Union alleged that it did not receive unambiguous notice of the applicability of Rule 26 to its members until December 1986, when the Union was advised that the laborer reclassification had been instituted pursuant to Rule 26. Consequently, the Union’s filing of its unfair labor practice charge in May 1987 was timely and was not barred by the Act’s six-month statute of limitations. See Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).

For these reasons, the Board’s decision is reversed and the matter remanded for further proceedings.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE MeMORROW

text:
    HAZEL CREST FEDERATION OF TEACHERS, LOCAL 2077, IFT, AFT, AFL-CIO, et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF SCHOOL DISTRICT 152½, Cook County, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—1331
    Opinion filed November 15, 1990.

      Gilbert Feldman, of Cornfield" & Feldman, of Chicago, for appellants.
    Walter D. Cummings, of Walter D. Cummings, Ltd., of Homewood, for appellee.
   PRESIDING JUSTICE MeMORROW

delivered the opinion of the court:

This is an appeal from an order awarding attorney fees and costs pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). The sole issue presented is the propriety of that order.

On November 12, 1986, the Hazel Crest Federation of Teachers, Local 2077 (Union), and four individual members of the Union, Eudell Black, Jacqueline Davis, Ceopal Porter and Velma Webb (plaintiffs) filed a two-count complaint against the Board of Education of School District 1521/2 (the Board), alleging breach of the collective bargaining agreement in effect in May 1985. The facts giving rise to this action were presented through testimony, at the arbitration hearing as related in the arbitrator’s decision and through testimony given at trial.

In 1985, the individual plaintiffs were all employed as teachers in the school district. Porter and Webb were assigned exclusively to the Warren Palm (Palm) elementary school, while Black and Davis were specialty teachers (physical education and special education, respectively) who taught at different schools in the district on different days of the week.

Sometime in spring 1985, a representative of Great America Amusement Park contacted the principal of Palm, Predonna Roberts, regarding a school trip to the park on Friday, May 24, 1985. Roberts contacted the PTA, which agreed to sponsor the trip by paying for the buses. On April 23, Roberts held a meeting with the teachers to discuss the proposed outing and learn their feelings about it before making a commitment to Great America. She explained that unlike prior trips involving only the eighth-graders, this outing would involve the entire student body of almost 200 children and that, therefore, the cooperation of the teachers was necessary. It is undisputed that the overall response of the teachers in attendance that day was favorable. On April 24, flyers were distributed to the children stating that the buses would depart at 8:15 a.m. and return at approximately 6 p.m., 3V2 hours beyond the normal school day.

Porter testified that the teachers met a few days later to discuss the trip among themselves. She and several others had not initially realized that May 24 was the Friday before the Memorial Day weekend, and that they had previously made plans for that Friday evening. On April 26, two teachers wrote a note to Roberts requesting a meeting with her regarding numerous questions they had about the trip, one of which was whether all teachers would be required to attend. On April 30, another faculty meeting was held at which all the teachers, except the specialty teachers, were present. According to Roberts, she advised them that their attendance on the trip was required. Porter and Webb testified that Roberts did not say that attendance was mandatory. Porter testified that she told Roberts at that meeting that she could not go because she had committed herself to picking up relatives at O’Hare airport after regular school hours that day, but Roberts said she was not interested in her reasons for not going. Roberts denied that Porter told her then or at any time prior to the day of the trip that she could not attend.

On May 1, a questionnaire prepared by the PTA was distributed to all the teachers. It read:

“In order to know definitely that the staff will attend the Great America trip planned for May 24, 1985, we ask that each teacher sign his or her name and indicate a yes or no answer by Thursday, May 2. The trip will be cancelled if we do not have adequate staff participation. Parents will be notified of the decision no later than May 3,1985.”

Of the 16 teachers, eight responded to the questionnaire, five saying that they would attend and three saying they would not. One of those answering “no” was Davis, who wrote that she would be at another school on that day. The PTA then distributed another flyer to the children requesting parent-chaperones. It was the plaintiffs’ position that the phrasing of the poll and flyer implied that attendance was optional.

A regular faculty meeting was held on May 14. Porter testified that prior to the meeting she approached Roberts to repeat that she was unable to go on the trip. Roberts responded that she did not wish to hear Porter’s explanation because the meeting was not held to discuss the trip. It appears that the only issue raised concerning the field trip was who would pay for the teachers' admission to the park. Nothing was said at the meeting about mandatory attendance.

At a Board meeting on May 20, the PTA president advised the Board that several of the teachers indicated they would not be attending. Superintendent Dorothy Boyd, as well as Roberts, testified that Boyd directed Roberts to make it clear that all teachers were expected to attend the outing.

Three days later, May 23, Roberts held another meeting at which she read the following prepared statement,

“In a discussion at Monday Night’s School Board Meeting relative to the question if all teachers are required to go on the school field trip sponsored by the PTA to Great America on Friday, May 24th, since this is a school-wide function, all teachers who normally teach at Warren Palm on that day are required to attend and supervise on Friday, May 24th.”

Roberts testified that someone asked if all teachers had to attend the outing whereupon she reread the above statement. Porter testified that she did not fully understand the statement and asked Roberts to give her a copy, but Roberts refused.

On the morning of May 24, approximately 160 students from the school boarded buses for the field trip. One teacher who had been excused from the trip was assigned to remain at the school to supervise the children who did not go. Two other specialty teachers assigned to Palm on Friday afternoons were also excused and assigned tasks at the school. Another teacher called in sick and subsequently produced a medical statement confirming her illness. Altogether, six teachers attended the outing.

Porter testified that she was summoned to Roberts’ office at about 8 a.m. Roberts asked her if she was refusing to go on the field trip. Porter stated that she had explained some time ago her reasons for not being able to go. Roberts asked whether Porter was refusing an assigned task, to which Porter responded that her understanding was that her task was to be at school supervising those of her students not attending the trip. Porter remained at school for the day, grading papers. Porter stated that she had personally planned and taken her own students on two prior trips to Great America and repeated that her only reason for not going was because the trip extended into the evening for which she had prior commitments. She also maintained that she had not been directly told that she was obligated to go on the trip until her conversation with Roberts that morning.

According to the arbitrator’s decision, Davis, one of the specialty teachers, testified at the arbitration hearing that she was assigned to Palm only on Friday mornings and that she had assignments at other schools on Friday afternoons. She also testified that she did not attend any of the faculty meetings prior to the one held on May 23. She was, however, aware of the trip, but was one of the teachers who responded on the PTA questionnaire that she would not be attending the outing. On May 21, when Roberts asked Davis if she was going to Great America, Davis advised Roberts that she had scheduled meetings and therefore would not be available. On May 22, Roberts met with Davis and the principal of the other school and advised the principal that Davis did not have her permission to be away from Palm that day. Davis stated that she had not needed permission to schedule meetings at other schools in the past, that she had never been required to attend an outing with the students in the 13 years of her employment in the district, and that she had advised Roberts at the meeting that she was not going on the trip. Davis further testified that prior to May 22, she was never told that her attendance was mandatory and that she was unable to attend because she had to pick up her child from her babysitter immediately after regular school hours. Roberts testified that when she asked Davis if she was refusing to go on the trip, Davis responded affirmatively.

Black, the other specialty teacher, testified at the arbitration hearing that he was never informed that attendance was mandatory until the meeting of May 23 and that even then he was not sure he was required to go because he had never before attended a field trip with the students. Roberts testified that when she asked him if he was refusing to go, Black stated, “I guess so.”

Webb likewise testified at the hearing that she did not realize that attendance was mandatory and that she had stated at two prior faculty meetings that she could not go and that she also indicated on the PTA questionnaire that she would not be able to attend.

Roberts telephoned Superintendent Boyd to inform her of the plaintiffs’ refusals to go on the field trip. Boyd questioned each one and asked if he/she realized that their pay would be docked and each responded that he/she understood. Boyd testified that she neither requested nor received any explanations from any of the plaintiffs regarding their reasons for not attending.

On May 28, Boyd instructed the district’s payroll clerk to deduct one day’s pay from each of the plaintiffs’ salaries for their unexcused absence from their duties on May 24. On June 7, plaintiffs Black, Davis and Porter filed grievances on forms supplied by the Union, of which Porter was president. They alleged a violation of the labor agreement by Roberts and sought both back pay for May 24 and a clarification of the policy which authorized their being required to perform extra-duty assignments such as the Great America trip. On June 12, Webb sent a letter to the superintendent grieving the docking of her pay. On June 20, she submitted a second grievance and requested that it be placed on the agenda of the Board’s regular monthly meeting.

On June 17, the Board approved Boyd’s decision to dock plaintiffs’ pay, and on June 24 the Board also voted to issue formal notices of remediation to plaintiffs for improper conduct in refusing to attend the outing. The Board advised them that it considered their conduct insubordination and that a failure to remedy could result in dismissal. On June 25, Boyd responded to the grievances of Davis, Black and Porter stating that the agreement provision which they claimed had been violated merely provided for extra compensation for special assignments, and that since none of them had attended the trip, it was inapplicable. On July 1, Boyd sent Webb a similar memo regarding her grievance.

On July 9, plaintiffs and the Union agent met with the Board, and on August 19 the Board voted to deny the grievances. The grievances were then appealed to advisory arbitration.

In a lengthy written decision, the arbitrator agreed with the Board that a teacher does not have the right to refuse to follow a directive of a supervisor. However, he disagreed with the Board’s argument that this matter was a simple case of insubordination. After reviewing all the testimony and evidence presented at the arbitration hearing, he concluded that the teachers were not given clear instructions that their attendance was mandatory until the day before the-outing. He stated that a clear written direction should have been given because there had never before been a school-wide trip like this and that an event involving almost 200 children required careful planning and teamwork. He also stated that because the event was scheduled for the day before a holiday weekend, the Board should have expected that some teachers would make plans on the assumption that the school day would end at its normal time and, therefore, the Board should have made it clear well in advance that they would be required to participate in an event that went beyond the normal school day. He found that written instructions were particularly important in the cases of Davis and Black, the two specialty teachers, who were not permanently assigned to the school, who had not attended any faculty meetings prior to May 23, and who had never previously been required to attend a school field trip.

The arbitrator noted the testimonial contradictions on whether the teachers had been advised they were required to attend the event. He found that despite being aware several weeks before the trip that many of the teachers did not want to go, Roberts nevertheless did not make it clear that they were required to attend, and that she further waited three days after being directed by the Board to do so to convene the meeting at which she read the prepared statement. He further found that it was reasonable for plaintiffs to infer, from the questionnaire distributed to the teachers by the PTA and the flyers sent home with the children requesting parents to volunteer to be chaperones, that attendance was optional.

The arbitrator did not, however, agree with the teachers’ position that their actions were justified. He found that had adequate notice been given, none of the four had a reason sufficient to justify his or her not going. He stated that even though they were not given reasonable notice, they were aware of the trip and knew that teachers were wanted to accompany their students, yet they made no effort to seek clarification of whether attendance was mandatory or optional. He further found that once it was made clear that they were required to attend, they did not, as they should have, performed the assignment given to them and filed a grievance afterward; rather, they resorted to self-help and simply refused to obey the directive.

The arbitrator concluded that under all the circumstances, the Board violated the labor agreement by failing to give adequate notice to the teachers, but that the plaintiffs wrongfully defied authority. Based on these findings, he concluded that some discipline of the plaintiffs was appropriate, but that it should not extend to the loss of a day’s pay. Instead, he determined that sanction be limited to a formal letter of warning, which had already been sent to them and placed in their personnel files.

On April 26, 1986, the Board adopted a resolution accepting that portion of the award finding that discipline of the plaintiffs was appropriate, but rejected those portions that found the Board to have violated the labor agreement and the recommendation that the discipline be limited to the letter of warning previously received by them.

Plaintiffs filed their two-count complaint on November 12, 1986. Count I alleged that although the labor agreement then in effect provided that arbitration was advisory rather than binding, the Board had failed to comply with the contractual requirement that “[t]he parties agree to give good faith consideration to the decision of the arbitrator.” Count II sought reversal of the Board’s rejection of the arbitrator’s decision and enforcement of his award on the ground that his findings and interpretation of the agreement were correct.

The Board moved to strike and dismiss both counts of the complaint, arguing that count I was wholly conclusionary and that because the arbitration was advisory only, the court did not have jurisdiction to reverse the Board’s resolution rejecting it.

The trial court denied the motion to dismiss count I but dismissed count II with leave to amend. Plaintiffs filed an amended complaint expanding on the arguments raised in opposition to the Board’s motion to dismiss. The Board filed its answer and affirmative defenses.

Plaintiffs then filed a motion for summary judgment on count I. The Board filed a memorandum in opposition and affidavits from the members of the Board stating that he or she had given good-faith consideration to the arbitrator’s decision. Plaintiffs’ motion for summary judgment was denied.

At the close of plaintiffs’ case, the trial court granted the Board’s motion for a directed verdict against Porter on count I for failing to present any evidence in support of the claim of a lack of good-faith consideration by the Board. Judgment was also entered against plaintiffs Webb and Black on both counts for failing, by their absence from trial, to present any evidence in support of either count. Following the defense case, the court granted the Board’s motion to dismiss count II, finding that Porter improperly refused to perform an assigned function on a regular school day with no- prior notice to the school that she would not attend the outing.

Following trial, the court granted the Board leave to file a petition for fees and costs. In that petition, filed August 18, 1988, the Board alleged that, without reasonable cause, plaintiffs had pleaded allegations which were found to be untrue by the court. Specifically, the Board first asserted that plaintiffs untruthfully alleged in their amended complaint that the Board stated in its resolution that it had no obligation to provide reasonable notice and that the Board was guilty of failing to give good-faith consideration to the arbitrator’s decision merely by adopting its resolution. The Board also asserted that plaintiffs’ allegation that the teachers had not been told prior to the day before the outing that their attendance was mandatory was proved to be untrue by the testimony of the principal and the PTA president, who both testified that the teachers were so informed at faculty meetings held several weeks before the trip. Attached to the motion was a five-page exhibit setting out the legal services performed and costs expended in defending this litigation which totalled $10,000, plus $999.00 in costs..

On May 1, 1989, the court granted the Board’s petition and ordered that, plaintiffs were jointly and severally liable to pay the amounts requested by the Board for fees and costs. This appeal followed.

Opinion-

Because this appeal does not challenge the judgment in the underlying action, our review does not reach the correctness of the arbitrator’s decision or of the trial' court’s rulings on the merits. Rather, it is limited to the propriety of the order imposing sanctions.

Prior to its amendment, section 2 — 611 provided:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” Ill. Rev. Stat. 1985, ch. 110, par. 2—611.

Effective November 25, 1986, section 2 — 611 was amended to be more extensive in scope than the former version. It requires that every pleading, motion or other paper filed with the court be signed by the party’s attorney or, if not represented by counsel, by the party himself. As amended, section 2 — 611 further provides in relevant part:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

The purpose of both versions of section 2—611 is to penalize litigants and, now, their attorneys, who plead false or frivolous matters or bring suit lacking factual or legal foundation. In re Estate of Wernick (1989), 127 Ill. 2d 61; Acerra v. Gershinzon (1990), 200 Ill. App. 3d 327; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.

In this appeal, the Board has abandoned, or at least significantly altered, the argument made in its petition which was based on the former version of section 2—611, that plaintiffs pleaded untrue allegations without reasonable cause. The Board now argues that sanctions were appropriate because plaintiffs’ pleadings were not well grounded in fact or warranted by existing law and were interposed for improper purposes, as must be shown under amended section 2—611. Notwithstanding its reliance on the prior version of the statute in the trial court, the Board, quoting language in the historical and practice notes to amended section 2 — 611 argues that the amended statute departs so substantially from its predecessor that the preamendment cases cited by plaintiffs in that portion of their brief regarding the standard of review “now have only a general continuing relevance.” The Board asserts that under amended section 2 — 611 the standard of review is simply whether the trial court abused its discretion.

Initially, we note that the comment in the historical and practice notes quoted by the Board relates to the substantive changes in amended section 2 — 611, not to the standard of review. The commentators remarked that because the first paragraph was completely rewritten and greatly expanded, “cases interpreting the first paragraph of the [former version] now have only a general continuing relevance.” (Ill. Ann. Stat., ch. 110, par. 2—611, Historical and Practice Notes, at 23 (Smith-Hurd Supp. 1990).) Further, the Board is correct, insofar as it states that the standard of review of a decision to grant or deny fees is whether the decision constituted an abuse of discretion. However, to the extent that the Board suggests that this is a different standard than that which was applied in cases under former section 2 — 611, it is incorrect.

This court has had several occasions to review orders granting or denying sanctions entered under amended section 2 — 611. In determining whether there was an abuse of discretion, the courts have consistently held, as they did under the former version, that because the statute is penal in nature, it must be strictly construed and may be applied only when the party seeking the sanctions has sustained his burden of proving that each of its requirements has been met. If the party petitioning for sanctions fails to meet its burden, the imposition of such sanctions constitutes an abuse of discretion. Acerra v. Gershinzon (1990), 200 Ill. App. 3d 327; Harris v. Harris (1990), 196 Ill. App. 3d 815; Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872; Dunaway v. Ashland Oil, Inc. (1989), 189 Ill. App. 3d 106, 544 N.E.2d 1322; People ex rel. West v. Herrendorf (1989), 187 Ill. App. 3d 777, 543 N.E.2d 824; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595; Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 531 N.E.2d 941; Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995.

The Board contends that count I, which alleged that the Board failed to give good-faith consideration to the arbitrator’s decision, was well-grounded in neither fact nor law. The Board first argues that plaintiffs’ complaint misrepresents its position by incorrectly paraphrasing the language in the resolution concerning the obligation to give reasonable notice of a change of assignment.

Initially, we note that the resolution was attached to the complaint as an exhibit. Facts in an exhibit attached to a complaint are considered the same as having been alleged in the complaint; and where there is a conflict between the exhibit and the pleading, the exhibit controls over the pleading. (Ford v. University of Illinois Board of Trustees (1977), 55 Ill. App. 3d 744, 371 N.E.2d 173.) Here, the resolution was attached to and thereby made part of plaintiffs’ complaint. Thus any misstatements in the complaint were negated by the resolution itself.

We do not see a material misrepresentation of the resolution in the complaint. The arbitrator found from the evidence presented at the hearing that it had not been made clear to plaintiffs that their attendance was mandatory until the day before the trip. The arbitrator found that one day’s notice did not constitute adequate notice. In light of the Board’s statements in its resolution that it was not obligated to give even the one day’s notice, we do not view plaintiffs’ allegation that the Board found it had no obligation to provide reasonable notice to constitute a “false” allegation as the Board asserted in its petition for sanctions.

The Board also argued in its petition that sanctions were appropriate because plaintiffs presented nothing to support their claim that the Board failed to give good-faith consideration to the arbitrator’s decision. A review of the record reveals that plaintiffs argued in opposition to the Board’s motion to dismiss and, later, in support of their motion for summary judgment and at the close of plaintiffs’ case that the Board’s authority to reject the arbitrator’s decision was limited by the contractual precondition of good-faith consideration. Citing several cases dealing with contract law, plaintiffs argued, inter alia, that where there is a covenant of good faith, the burden is on the party claiming it acted in good faith to substantiate that claim. Plaintiffs asserted that a public body speaks only through its documents and noted that the resolution merely recited that it had given the arbitrator’s decision good-faith consideration but did not specify any reasons for rejecting the award except that it strongly disagreed with those portions finding misconduct by the Board. It was plaintiffs’ position that the resolution itself, by its summary rejection of the arbitrator’s decision without explanation therefor, established, as a matter of law, that the Board did not give good-faith consideration to the arbitrator’s decision. Plaintiffs also maintained that the factual allegations in count I were admitted by virtue of the Board’s motion to dismiss and noted that the motion had been denied.

The trial court rejected plaintiffs’ arguments and held that whether the Board acted in good faith in rejecting the arbitrator’s decision was, as indicated by the court’s denial of plaintiffs’ motion for summary judgment, a question of fact. The court further held that because plaintiffs presented no evidence of a lack of good faith, the Board was entitled to judgment on count I. The court also specified plaintiffs’ failure to present evidence in support of count I as one of the bases for the imposition of sanctions.

In ruling on a petition for sanctions, the operative event activating section 2 — 611 is the conduct giving rise to possible liability for fees and costs. (Berkin v. Orland Park Plaza Bank (1989), 191 Ill. App. 3d 1056, 548 N.E.2d 534.) In reviewing an award of sanctions, the mere fact that plaintiffs did not prevail is insufficient to establish that the complaint was without foundation in law. (Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) The question is whether the party petitioning for sanctions proved that at the time the challenged pleading was filed, it violated the requirements of amended section 2 — 611. (Model Industries, Inc. v. Walsh Press & Die Co. (1982), 111 Ill. App. 3d 572, 444 N.E.2d 639.) To sustain that burden the petitioner must show that the pleading was filed without reasonable information or belief after reasonable inquiry by the pleading party, or that it was not well grounded in fact or warranted by existing law or a good-faith argument for the modification, extension or reversal of existing law.

Plaintiff argued that count I and the attached resolution raised a legal question which needed to be determined as a matter of law. The trial court disagreed with plaintiffs’ arguments and held that it was plaintiffs’ burden to present factual evidence of bad faith by the Board. Plaintiffs argued that because the Board claimed it had acted in good faith, the burden was on the Board to produce evidence to prove that claim. To support this legal argument, plaintiffs relied upon several cases pertaining to contract law. We cannot conclude that plaintiffs’ argument was wholly without support under existing law or that it was not a good-faith argument for the extension, modification or reversal of existing law as is contemplated by the provisions of amended section 2 — 611. See Chapraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872.

In its brief, the Board also argued that count II contained untrue factual allegations which were made without reasonable cause. On appeal, the Board asserts that there was no factual basis for plaintiffs' allegations (1) that the first notice they received that they were required to attend the outing was the day before the trip; and (2) that the Board violated the implied contractual condition to give reasonable notice of an assignment extending beyond normal school hours. We disagree.

In entering judgment for the Board at the conclusion of trial, the court made findings that May 24, 1985, was a regular school day, that the trip was a school-sponsored event which could not go ahead without the teachers’ cooperation, and that in fact there had been a consensus among the teachers to go ahead with the trip. The court further found that Porter had given no prior notice to the school that she would not be going on the trip and simply refused on the day it took place to participate. In its order awarding sanctions, the court stated that Porter had presented no evidence that she had not been given previous notice that she was required to participate in the outing.

At the arbitration hearing, the arbitrator heard the testimony of all four plaintiffs, each of whom denied that he or she had been advised that attendance was mandatory, as well as the contradictory testimony of Roberts that she had so advised them. The arbitrator found the testimony of the plaintiff teachers to be more credible, noting that there had been no written directive that attendance was mandatory. The arbitrator also found that it was not unreasonable for the teachers to infer from the PTA questionnaire asking the teachers if they would be attending and the flyer asking for parent-chaperones that attendance was optional. The arbitrator noted that while Roberts may have intended to make it clear that all teachers were required to attend, “her efforts were insufficient,” particularly in the cases of the two specialty teachers who were not present at the faculty meetings at which the trip was discussed.

As stated at the outset of our opinion, our holding is not to be construed as a determination on the credibility of the witnesses. Nor is our ruling to be construed as review of the credibility findings of the arbitrator and trial court. As noted, however, the issue in reviewing sanction awards under section 2 — 611 is not whether plaintiffs prevailed but whether the challenged pleading or paper was devoid of factual foundation at the time it was filed. (Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872; Berkin v. Orland Park Plaza Bank (1989), 191 Ill. App. 3d 1056, 548 N.E.2d 534.) To support its entitlement to sanctions, the Board was required to prove that the allegations in count II lacked any factual foundation and that plaintiffs knew or should have known there was no basis for them at the time they filed the complaint. At the time plaintiffs filed the complaint, they possessed, and attached, the decision of the arbitrator finding their testimony and evidence on the issue of notice to be credible. It is our view that the Board failed to sustain its burden of proving that the allegations of count II lacked any factual foundation. Consequently, we find that the imposition of sanctions on the ground that Porter “presented no evidence to support her claims that she had not been given previous notice” that she was required to attend the outing constituted an abuse of discretion.

We do not, however, agree "with plaintiffs that they are entitled to fees and costs on the ground that the Board’s petition for sanctions itself violated section 2 — 611. Further, in light of our reversal of the order awarding the Board fees and costs incurred in defending the allegations in plaintiffs’ complaint, we need not address the arguments relating to the reasonableness of the amount of that award.

For the reasons stated, the order of the trial court is reversed.

Reversed.

JOHNSON and LINN, JJ., concur.

        The record does not contain a transcript of the arbitration hearing, but the parties do not dispute the arbitrator’s summary of the testimony and evidence presented at the hearing.

      Davis was subsequently promoted to principal of another school. As such she was no longer a member of the bargaining unit and did not pursue her claim. The Board moved for her dismissal, and by agreed order, she was dismissed as a plaintiff.

      Black did not appear at trial. No reason was given for his failure to attend and testify.

      Counsel for plaintiffs presented an affidavit from Webb requesting postponement of trial because Webb and her family had previously scheduled a vacation for the week of trial. The trial court denied the motion. Webb did not appear at trial.