author: PRESIDING JUSTICE INGLIS

text:
    MARK G. DALEN, Plaintiff-Appellee, v. OZITE CORPORATION, Defendant-Appellant.
    Second District
    No. 2—91—1018
    Opinion filed June 12,1992.

      Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellant.
    Kenneth T. Kubiesa, of Kubiesa & Power, Ltd., of Westmont (Barbara J. Gosselar, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Ozite Corporation, defendant, appeals after the trial court granted Mark G. Dalen’s, plaintiff’s, motion for summary judgment. Dalen’s complaint sought judgment for payment of principal and interest owed on two 9.25% subordinated notes executed by Ozite Corporation (Ozite) in favor of Dalen. The trial court entered summary judgment in favor of Dalen on June 26, 1992, in the amount of $182,035.54 plus costs of suit.

Ozite raised six errors on appeal, which we consolidate into four issues: (1) whether the trial court erred by not granting Ozite’s motion to dismiss filed pursuant to section 2 — 619(a)(3) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX3)) and by later denying Ozite’s motion to reconsider; (2) whether the trial court erred by denying Ozite’s motion for leave to file a counterclaim and a second affirmative defense; (3) whether the trial court erred by finding that Ozite had waived the attorney-client privilege with respect to a memorandum drafted by Ozite’s attorney and ordering that Ozite produce the memorandum to Dalen; and (4) whether the trial court erred by concluding that the terms of the notes unambiguously supported Dalen’s claim and subsequently entering summary judgment for Dalen. Dalen urges this court to affirm the trial court and argues that none of the errors alleged by Ozite have merit. Dalen has also submitted a motion with this court to strike parts of Ozite’s brief which, along with Ozite’s response, we ordered to be taken with the case. We grant Dalen’s motion and affirm.

On March 2, 1990, Dalen filed a complaint in Du Page County circuit court seeking judgment for payment of principal and interest owed on two 9.25% subordinated notes executed on February 17, 1987, and April 1, 1987, by Ozite in favor of Dalen. Under the terms of the notes, Dalen was to be paid semiannual interest, and payment of the principal and any unpaid interest was due on each note on March 17,1989.

Ozite filed a motion to dismiss pursuant to section 2 — 619(aX3) of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)) on April 17, 1990. Ozite argued that the instant cause should be dismissed because of a similar consolidated cause pending in Cook County. The trial court denied Ozite’s motion to dismiss on June 11, 1990. Ozite also filed a “Motion to Dismiss Complaint for Non-Payment of Note” on July 2, 1990. On August 9, 1990, the trial court denied Ozite’s second motion to dismiss and denied Ozite’s motion to reconsider.

Ozite filed an “Answer to Complaint and Affirmative Defenses” on August 24, 1990, in which Ozite argued that no payment was due on the notes because of the existence of senior indebtedness, to which Dalen's right to payment was subordinate.

On December 12, 1990, Dalen requested production of certain documents by Ozite. On March 5, 1991, after Ozite had not complied with the request, Dalen filed a motion to compel production. Ozite agreed to produce the requested documents within one week, and the trial court so ordered. Ozite then filed objections to Dalen’s requests. On March 13, 1991, the trial court ordered Ozite to produce the requested documents within two weeks. Thereafter on April 15, 1991, Ozite provided Dalen’s attorney with the opportunity to review all of its files at Ozite’s offices in Libertyville. In the course of doing so, Dalen’s attorney was allowed to examine a four-page memorandum dated February 1, 1991, which was written by one of Ozite’s attorneys. The memorandum discussed certain litigation in Maryland which was based on notes similar to those at issue in the instant case. Sometime after Dalen’s attorney had examined the document, Ozite’s attorney objected to his receiving a copy. The memorandum outlined the limitations of Ozite's defenses and the attorney’s opinion as to the proper and likely interpretation of the notes. Following a dispute by the parties as to whether the document was privileged and, if so, whether any privilege had been waived, the trial court held on May 9, 1991, that Ozite had waived the attorney-client privilege as to the document and ordered Ozite to produce the memorandum to Dalen’s attorney.

On March 13, 1991, Ozite filed a “Motion for Leave to File Counterclaim and Second Affirmative Defense.” In that motion, Ozite requested that any amount claimed by Dalen to be owed by Ozite be set off against the amount owed, if any, by Dalen to Ozite. The motion recited the same allegations which Ozite asserted in the Cook County litigation between Ozite and Dalen. On April 25, 1991, the trial court denied Ozite’s motion.

On June 26, 1991, the trial court heard argument on Dalen’s motion for summary judgment and Ozite’s cross-motion for summary judgment. The trial court determined that the provisions of the notes were clear and unambiguous, that it required no extrinsic evidence to construe the intent of the parties, and that the notes required Ozite to pay Dalen unless Ozite was engaged in insolvency proceedings. Judgment in favor of Dalen was entered on June 26, 1991, in the amount of $182,035.54 plus costs of suit. The trial court denied Ozite’s cross-motion for summary judgment. Ozite filed this timely appeal.

DALEN’S MOTION TO STRIKE PARTS OF OZITE’S BRIEF

We first address Dalen’s motion to strike certain sections of Ozite’s brief. Dalen argues that this court lacks jurisdiction to entertain Ozite’s appeal from three of the orders entered by the trial court because Ozite’s notice of appeal refers only to the June 26, 1991, order which granted summary judgment to Dalen. Dalen urges this court to conclude that we have no jurisdiction to review the June 11, 1990, order which denied Ozite’s section 2 — 619(a)(3) motion to dismiss; the August 9, 1990, order which denied Ozite’s motion to reconsider and Ozite’s second motion to dismiss; and the April 25, 1991, order which denied Ozite’s motion for leave to file a counterclaim and a second affirmative defense. Dalen argues that only two orders are reviewable by this court: the June 26, 1991, order which granted summary judgment to Dalen and denied Ozite’s motion for cross-summary judgment and which Ozite specifically noted in its notice of appeal; and the May 9, 1991, order which required Ozite to produce the disputed document to Dalen. Ozite did not note the May 9, 1991, order in its notice of appeal, but Dalen concedes that it is reviewable as a step in the procedural progression leading to the June 26 final judgment.

Ozite responds that an appeal from a final judgment draws into question all prior nonfinal orders which produced the judgment. Ozite also argues that any deficiency in the notice of appeal is one of form and not of substance. Ozite asks this court to allow it to file an amended notice of appeal if we find defects in the original notice of appeal.

We begin by noting that Supreme Court Rule 303(cX2) states:

“(c) Form and Contents of Notice of Appeal
* * *
(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (134 Ill. 2d R. 303(cX2).)

The Illinois Supreme Court held in Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed. (Burtell, 76 Ill. 2d at 434.) “[T]he unspecified judgment is reviewable if it is ‘a step in the procedural progression leading’ to the judgment specified in the notice of appeal.” (Burtell, 76 Ill. 2d at 435, quoting Elfman Motors, Inc. v. Chrysler Corp. (3d Cir. 1977), 567 F.2d 1252, 1254.) In Burtell, the supreme court held that the notice of appeal at issue was sufficient to confer jurisdiction because the earlier order sought to be reviewed, but which was not mentioned in the notice of appeal, was an order for an accounting. The court noted that the notice of appeal referred to the final judgment, which was based on the accounting. Burtell, 76 Ill. 2d at 431-36.

In Village of Lisle v. Village of Woodridge (1989), 192 Ill. App. 3d 568, 572, this court reviewed Burtell and three similar holdings: Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1062 (where notice of appeal was from a summary judgment order as to certain counts and did not refer to an earlier order dismissing other counts, a reviewing court lacks jurisdiction to consider the earlier dismissal order that was not otherwise timely appealed); Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 442 (pursuant to Rule 303(c)(2), a notice of appeal which referred to the dismissal order as to one defendant but not the earlier dismissal order as to another defendant did not bestow jurisdiction on the reviewing court to consider the separate, earlier dismissal order not mentioned in the notice of appeal); and Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 61 (failure to mention an earlier order dismissing a counterclaim in the notice of appeal seeking review of a summary judgment order deprived the reviewing court of jurisdiction to consider the dismissal order). Based on those holdings, we determined in Village of Lisle that we were without jurisdiction to consider any issues raised regarding a September 6, 1988, dismissal order because the notice of appeal referred only to the October 27, 1988, summary judgment order and requested relief from that order only. Village of Lisle, 192 Ill. App. 3d at 572.

Similarly here, we agree with Dalen that our jurisdiction is limited to issues raised regarding the June 26, 1991, order which granted summary judgment to Dalen and the earlier May 9, 1991, order concerning the disputed document because Ozite’s notice of appeal only noted the June 26 (incorrectly written in the notice as June 28), 1991, order. We believe that under Burtell and its progeny, the May 9, 1991, order is a step in the procedural progression leading to the June 26, 1991, order and that therefore the May 9, 1991, order is properly before this court. However, the orders of June 11, 1990; August 9, 1990; and April 25, 1991, are not steps in the procedural progression leading to the June 26, 1991, summary judgment order. All three orders focused on matters outside the scope of the cause at issue. Ozite was apparently attempting to either dismiss the instant action because of the pending action in Cook County, or include the separate issues raised there in this action. The June 11, 1990, order denied Ozite’s section 2 — 619(aX3) motion to dismiss (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX3)). The August 9, 1990, order denied Ozite’s subsequent motion to reconsider and denied Ozite’s second motion to dismiss. The April 25, 1991, order denied Ozite’s motion to file a counterclaim and second affirmative defense.

In holding that our jurisdiction is limited to the May 9, 1991, and June 26, 1991, orders, we note that although Ozite could not have appealed the June 11, 1990, August 9, 1990, or April 25, 1991, orders because each lacked the requisite Rule 304(a) (134 Ill. 2d R. 304(a)) language regarding finality and appealability, Ozite could have appealed each order following the June 25, 1991, summary judgment by simply including references to each in its notice of appeal.

Cases cited by Ozite are inapposite to our conclusion. In Burtell, the court considered an accounting order even though the accounting order was not referred to in the notice of appeal because the accounting was a procedural step leading to the final order, which was noted in the notice of appeal. (Burtell, 76 Ill. 2d at 431-36.) In Pickle v. Curns (1982), 106 Ill. App. 3d 734, this court held that we had jurisdiction to consider an order dismissing the complaint with prejudice because the notice of appeal sought review of an order denying reconsideration of that very order. (Pickle, 106 Ill. App. 3d at 737.) Finally, in Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, the court held that it had jurisdiction to consider an order not referred to in the notice of appeal because the actual order appealed was an order denying a motion to vacate the prior order. (Lakeview, 134 Ill. App. 3d at 804-05.) In all three cases cited by Ozite, the court found jurisdiction to consider an order that was not referred to in the notice of appeal because the order was a step in the procedural progression leading to the order referred to in the notice of appeal. Such is simply not the case here.

Lastly, within its response to Dalen’s motion, Ozite made a motion to file an amended notice of appeal. Ozite’s motion is denied as being untimely under Supreme Court Rule 303(cX4) (134 Ill. 2d R. 303(cX4)).

We grant Dalen’s motion to strike. We are therefore precluded from considering the first two issues raised by Ozite and limit our review to issues regarding the memorandum and the grant of summary judgment to Dalen.

THE MEMORANDUM

At issue is whether a four-page memorandum authored by one of Ozite’s attorneys, and discovered by one of Dalen’s attorneys, is protected by the attorney-client privilege or work product doctrine, and, if so, whether Ozite waived the protection by granting Dalen’s attorney the opportunity to review its corporate files.

Before addressing the merits of this issue, we initially agree with Dalen that Ozite was not prejudiced by having to produce the memorandum to Dalen because, although Dalen used it to support his motion for summary judgment, the trial judge did not consider it in deciding the case. When the trial judge granted summary judgment to Dalen at the June 26,1992, hearing, the judge stated:

“First of all, I agree with [Ozite] that there really is no reason for this court to consider Mr. Silverman’s memorandum because of the fact that it’s only used if parol evidence is required, and this court is fully capable of rendering an opinion on what I see as a rather unambiguous note.
The question of whether or not Mr. Silverman’s memorandum is a judicial admission is one that I don’t think has to be resolved at this time because this Court finds that the note is unambiguous.” (Emphasis added.)

This quotation plainly refutes the allegations made by Ozite in its brief that “the mere fact that Judge Thomas read the memorandum has tainted his ability to make an unbiased decision” and “caused irreparable harm” to Ozite.

Even if we were to consider the merits of the issue, we find no reason to reverse the trial court. As a first step in our analysis, we describe the subject memorandum. It is dated February 1, 1991, and is from one of Ozite’s attorneys to five apparent officers of the Ozite Corporation. It concerned pending litigation in Maryland over a similarly written $33,000 note and included certain conclusions by the attorney:

“After we win or lose the motion to dismiss and/or transfer, we could then attempt to defend the note on the basis that there exists substantial senior debt to which the note is subordinate. Accordingly, it can be argued that suit on the note is premature until such time as senior debt is retired. This may be a specious defense insofar as collection could perhaps be frustrated forever by maintaining ‘senior debt.’ My thought is that the Court would interpret the subordination provision to mean that in case of a liquidation, bankruptcy (or other such insolvency proceeding), the note would then be subordinate to senior debt. Those note provisions relate to preference or payment rather than restricting collection of the note.
*** My opinion is the note is not really defendable except to delay via jurisdictional questions.” (Emphasis in original.)

Dalen’s attorney found the subject memorandum while looking through file cabinets of documents at Ozite’s office on April 15, 1991. Apparently, rather than comply with Dalen’s request for certain documents, originally tendered on December 12, 1990, Ozite allowed Dalen the opportunity to review its corporate files. The parties’ dispute over whether the memorandum was privileged was resolved by the trial court on May 9, 1991, when the court found that Ozite had waived the attorney-client privilege as to the document. The court ordered Ozite to produce the document to Dalen.

While both parties and the trial court applied an attorney-client privilege analysis, we believe that a work product analysis applies instead. Illinois and Federal courts recognize Wigmore’s definition of the attorney-client privilege:

“(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.” (Emphasis added.) (People v. Adam (1972), 51 Ill. 2d 46, 48.)

(Cesena v. Du Page County (1990), 201 Ill. App. 3d 96, 103, rev’d (1991), 145 Ill. 2d 32 (reversed appellate court on equitable grounds rather than attorney-client privilege); In re Air Crash Disaster at Sioux City, Iowa, on July 19, 1989 (N.D. Ill. 1990), 133 F.R.D. 515, 518.) Since the memorandum at hand was not written by Ozite, the client, but instead was written for Ozite by one of its attorneys, the attorney-client privilege does not apply. Instead, we believe the work product doctrine, which is “distinct from and broader than the attorney-client privilege,” applies to the subject memorandum. (In re Air Crash, 133 F.R.D. at 519.) The work product doctrine applies to documents prepared by either client or attorney in anticipation of litigation or trial. (In re Air Crash, 133 F.R.D. at 519; see 134 Ill. 2d R. 201(bX2) (under Supreme Court Rule 201(bX2), material prepared by or for a party in preparation for trial is not subject to discovery if it contains or discloses “the theories, mental impressions, or litigation plans of that party’s attorney”).) The memorandum was prepared by Ozite’s attorney in anticipation of litigation, albeit different litigation than this case, and was therefore protected by the work product doctrine. But see B & J Manufacturing Co. v. FMC Corp. (N.D. Ill. 1975), 21 Fed. R. Serv. 2d 1119, 1119-20 (“|p]rotection of the opinions given by attorneys to their clients gives rise to similar benefits [of the attorney-client privilege], and consequently has been treated as part of the privilege”); see In re Consolidated Litigation Concerning International Harvester’s Disposition of Wisconsin Steel (N.D. Ill. 1987), 666 F. Supp. 1148 (International Harvester)-, Mendenhall v. Barber-Greene Co. (N.D. Ill. 1982), 531 F. Supp. 951.

We next consider whether Ozite waived the protection of the work product doctrine by allowing Dalen’s attorney the opportunity to review its corporate files at Ozite’s offices, at which time Dalen’s attorney discovered the memorandum. Both parties invoke Federal case law since Illinois courts have been silent on the issue. Ozite argues on appeal that the disclosure was inadvertent and that therefore a knowing waiver did not occur, citing In re Sealed Case (N.D. Ill. 1988), 120 F.R.D. 66, and Mendenhall (531 F. Supp. 951). Dalen responds that Ozite’s actions in allowing unlimited access to corporate files instead of producing specific files waived whatever protection the memorandum had, citing Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co. (N.D. Ill. 1990), 132 F.R.D. 204, and International Harvester, 666 F. Supp. 1148.

We briefly review the case law cited, all of which refers to waiver of the attorney-client privilege but which we believe applies to waiver of the work product doctrine as well. In Mendenhall, the court held the “mere inadvertent production does not waive the privilege.” (Mendenhall, 531 F. Supp. at 954.) The court reasoned that “if we are serious about the attorney-client privilege and its relation to the client’s welfare, we should require more than *** negligence by counsel before the client can be deemed to have given up the privilege.” (Emphasis in original.) (Mendenhall, 531 F. Supp. at 955.) The In re Sealed Case court invoked the Mendenhall holding that inadvertent production does not waive the privilege. (In re Sealed Case, 120 F.R.D. at 72.) We note that one court has stated that Mendenhall does not represent the majority rule. Hartford Fire Insurance Co. v. Garvey (N.D. Cal. 1985), 109 F.R.D. 323, 329. But see Georgetown Manor, Inc. v. Ethan Allan, Inc. (S.D. Fla. 1991), 753 F. Supp. 936, 938 (“the better reasoned rule is that of Mendenhall").

The court in Golden Valley Microwave Foods reviewed three general approaches that courts have used to analyze similar questions of waiver of the attorney-client privilege: a subjective analysis, an objective analysis, and a balancing test. (Golden Valley, 132 F.R.D. at 208-09.) Under a subjective analysis, inadvertent disclosure can never result in a true waiver because “there was no intention to waive the privilege, and one cannot waive the privilege without intending to do so.” (Golden Valley, 132 F.R.D. at 208, citing Connecticut Mutual Life Insurance Co. v. Shields (S.D.N.Y. 1955), 18 F.R.D. 448, 451.) Under an objective analysis, the court need only confirm that the document was made available to opposing counsel; “the ‘confidentiality’ of the document has been ‘breached’ by the disclosure, thereby destroying the basis for the continued existence of the privilege.” (Golden Valley, 132 F.R.D. at 208, citing Underwater Storage, Inc. v. United States Rubber Co. (D.D.C. 1970), 314 F. Supp. 546, 548-49.) And lastly, under the balancing test, a court considers five factors to determine if a party waived the attorney-client privilege: “(1) the reasonableness of the precautions taken to prevent the disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness.” (Golden Valley, 132 F.R.D. at 209, citing Bud Antle, Inc. v. Grow-Tech Inc. (N.D. Cal. 1990), 131 F.R.D. 179, 193.) The Golden Valley court then applied the latter two approaches, the objective and balancing approaches, and concluded that the privilege had been waived. The court noted that the “[confidentiality [of the disclosed document] simply has been lost” and that insufficient precautions to protect that confidentiality had been taken. Golden Valley, 132 F.R.D. at 209.

The court in International Harvester found that the attorney-client privilege had been waived since opposing counsel was allowed to examine the document. (International Harvester, 666 F. Supp. at 1155.) The court stated that “[ojrdinarily a party that allows free access to its files cannot later claim that some of the documents they contained were privileged.” (International Harvester, 666 F. Supp. at 1154.) The court concluded that the lax treatment of the documents at issue was “inconsistent with any intention to maintain their confidentiality.” International Harvester, 666 F. Supp. at 1150; see Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp. (N.D. Ill. 1974), 62 F.R.D. 454, 457-48 (while the court found no waiver of the privilege under the facts, the court noted that “when a party’s conduct reaches a certain point of disclosure fairness requires that the privilege should cease whether the party intended that result or not”).

In the instant case, we agree with Dalen that Ozite has waived any privilege regarding the confidentiality of the memorandum. In so deciding, we adopt the “balancing test” set forth in Golden Valley. The two other approaches, the objective and subjective approaches, would appear to result in decisions based on mere mechanical application rather than a judicial reason and fairness. Applying the balancing test here, we note that Ozite allowed Dalen’s attorney free access to its files after Dalen had made numerous requests for documents. At the hearing before the trial judge, Ozite’s counsel argued that he did not have time to purge the files of confidential material before Dalen’s attorney reviewed them and that the disclosure of the memorandum was therefore inadvertent. Under the facts presented here, we find that Ozite’s and Ozite’s counsel's conduct was completely inconsistent with their claim of confidentiality and conclude that Ozite waived the protection of work product doctrine as to the memorandum. The trial court properly ordered Ozite to produce the memorandum to Dalen.

As an observation, we note that the attorney's memorandum “played the bad music” for his client, Ozite, but that Ozite was either not listening or chose not to listen. It is no wonder that court dockets are crowded today when clients continue to marshall their cases through the trial court and up to the appellate court in the face of such clear guidance to the contrary from their attorneys.

SUMMARY JUDGMENT

At issue is whether the trial court erred in granting summary judgment to Dalen and in denying Ozite’s cross-motion for summary judgment. The court determined that the two notes were clear and unambiguous and therefore did not consider the extrinsic evidence offered by Dalen to support his claim. The two notes are identical in substance and were due on March 17, 1989. One note is dated February 17, 1987, and the other April 1, 1987. The court concluded that the notes required payment to Dalen when due unless Ozite was engaged in insolvency proceedings, which the company was not, and awarded Dalen $182,035.54 plus costs of suit.

Ozite argues that the trial court’s construction of the notes was erroneous as a matter of law and that the proper interpretation of the clause is that the notes are subordinate to prior payment in full of all existing senior indebtedness. Both parties agree that senior indebtedness in the amount of approximately $2,500,000 exists. Dalen argues that the trial court properly granted summary judgment to him since the notes are clear and unambiguous. Dalen argues that the trial court properly found that the two notes require payment when due, absent Ozite’s dissolution, liquidation or reorganization. Dalen also raises two additional arguments as to why this court should affirm the trial court, but we need not consider them because we agree that the notes are clear and unambiguous.

Summary judgment is proper where there is no genuine issue of material fact and judgment may be granted as a matter of law. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The trial court must construe all pleadings, depositions, affidavits and admissions strictly against the movant. (Mitchell, 142 Ill. 2d at 165.) Where other facts are not in dispute, construing a contract as a matter of law may be suitable for summary judgment. (National Underground Construction Co. v. E.A. Cox Co. (1991), 216 Ill. App. 3d 130, 134.) To withstand a motion for summary judgment, the nonmoving party must present some factual basis that arguably may entitle him to judgment. (Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869, 872.) “Here, then, our function is to determine whether the trial court correctly found that no genuine issue of material fact existed and also to determine whether judgment was correctly entered for the moving party as a matter of law.” Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

After argument on each party’s motion for summary judgment, the trial judge stated that, without considering the extrinsic evidence offered by Dalen, “this Court finds that the note[s] [are] unambiguous and the subordination clause, the senior indebtedness clause[,] applies to insolvency proceedings.” The court reasoned that “the practicalities of the matter are such that there could always be senior indebtedness to defeat collection.” We agree.

While Ozite relies on the note’s introductory subparagraph of paragraph 1 to argue that the notes precluded any collection until all senior indebtedness was paid, we agree with the trial court that such an interpretation could theoretically allow Ozite to postpone payment on the notes indefinitely. When all of the provisions of paragraph 1 are read together, it is clear that the notes are subordinate to senior debt only in case of Ozite’s insolvency.

Cases cited by Ozite in support of its interpretation of the notes are inapposite to our conclusion. In Federal Deposit Insurance Corp. v. United States National Bank (9th Cir. 1982), 685 F.2d 270 (FDIC), the issue concerned the status of a defrauded subordinate note holder when the borrower bank failed. The court held that the alleged fraud, if proven, would justify rescission of the note and placement of the holder on an equal footing with other general creditors. (FDIC, 685 F.2d at 275-76.) The court’s general discussion of the validity of subordinated notes focused on the language of the particular note at issue, which unambiguously subordinated the holder’s right of payment to senior liabilities in the event of the failure of the borrower bank. (FDIC, 685 F.2d at 273.) Therefore, FDIC is plainly distinguishable from the instant case.

In addition, Ozite cites numerous cases which stand for general contract law principles. We accept this case law but fail to see how it supports Ozite’s position on appeal as none of the cases deal with subordinated notes like the notes at issue. Wishnoff v. Guardian Savings & Loan Association (1975), 34 Ill. App. 3d 107 (construction of certain interest provisions of a note); Shultz v. Delta-Rail Corp. (1987), 156 Ill. App. 3d 1 (construction of a release agreement in conjunction with stock ownership); W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87 (construed the terms of a contract for construction of a sanitary sewer project); Wheeling Trust & Savings Bank v. Citizens National Bank (1986), 142 Ill. App. 3d 333 (construed an interest rate provision in an extension agreement to a promissory note).

In fact, the trial court relied on the very principles of contract law that Ozite argues these cases stand for in construing these particular notes. The court did not rewrite the note (Wishnoff, 34 Ill. App. 3d at 110), nor did it consider extrinsic evidence since it considered the terms of the note to be clear and unambiguous (Shultz, 156 Ill. App. 3d at 10; Wheeling Trust, 142 Ill. App. 3d at 336; W.H. Lyman, 131 Ill. App. 3d at 93).

Finally, Ozite’s reliance on In re Roth (N.D. Ill. 1986), 56 Bankr. 876, and Smith v. Shoreline Printers & Publishers, Inc. (1955), 6 Ill. App. 2d 290, is misplaced as neither case applies to the case at hand. The Roth court construed a loan agreement and a note related to certain construction financing for a development. The issuance of the final construction loan would have triggered the obligation to pay on the note, which was executed to provide a commission for the lender who arranged the preliminary and final construction financing. However, the court in Roth held that the payment on the note was not due, because approval was never granted for final construction financing, and the condition precedent for payment had therefore not occurred. (Roth, 56 Bankr. at 883.) The trial court in the instant case did not construe the right to payment under the notes to be conditional as in Roth. Rather, the court concluded that payment was required on the due date unless Ozite was dissolving, liquidating or reorganizing, in which case the subordination clause would preclude payment until all senior debt was paid. Roth, therefore, does not apply to the instant case.

Similarly, Smith v. Shoreline does not apply to this case because the court there did not even construe the subordination clause in the note at issue. The only issue in Smith was whether the party who executed the note had authority to enter into such an agreement at all. Smith, 6 Ill. App. 2d at 294-95.

We conclude that the trial court properly granted Dalen’s motion for summary judgment.

For the above reasons, we therefore affirm the judgment of the circuit court of Du Page County.

Affirmed.

NICKELS and BOWMAN, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THECKLA NEUMAN, Plaintiff-Appellant, v. SCOTT BURSTEIN et al., Defendants-Appellees.
    Second District
    No. 2—91—0903
    Opinion filed June 24,1992.

      Corboy & Demetrio, P.C., of Chicago (Susan J. Schwartz, of counsel), for appellant.
    Lenard C. Swanson, Robert A. Strelecky, and Bruce S. Terlep, all of Wildman, Harrold, Allen & Dixon, of Wheaton, D. Kendall Griffith and Adam S. Kreuzer, both of Hinshaw & Culbertson, of Chicago, and Robert G. Black, of Hinshaw & Culbertson, of Lisle, for appellee Evangelical Hospital Corporation.
    Thomas H. Fegan and Dean M. Athans, both of Johnson & Bell, Ltd., of Chicago, for appellee John Dongas.
    John J. Mangan, of Rooks, Pitts & Poust, and Thomas H. Ryerson, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., both of Wheaton, and James T. Ferrini, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for other appellees.
   JUSTICE DUNN

delivered the opinion of the court:

On March 7, 1991, plaintiff, Theckla Neuman, filed a five-count medical malpractice complaint against defendants, Scott Burstein, M.D.; Du Page Radiologists, Inc.; Rosemary M. DeLeon, M.D.; Raj B. Lai, M.D., S.C., individually and doing business as Raj B. Lai, M.D.; John Dongas, M.D.; and Evangelical Hospital Corp., doing business as Good Samaritan Hospital, after taking a voluntary dismissal of that action pursuant to section 2 — 1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), on March 12, 1990. The trial court dismissed the complaint with prejudice for failure to file an affidavit and health professional’s report as required by section 2-622 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2-622). We reverse and remand.

Plaintiff initially filed this action on August 7, 1989, seeking damages for medical negligence on the part of each defendant arising both during and after an aortogram and arteriogram performed on plaintiff on August 6, 1987. The complaint contained the affidavit of plaintiff’s attorney stating that she was unable to obtain a medical review of the plaintiff’s claim pursuant to section 2 — 622 before the statute of limitations period on the claim expired.

By statute, plaintiff was permitted an additional 90 days to furnish the certificate and written report by a health professional stating he or she believes plaintiff has a reasonable and meritorious claim. Plaintiff failed to file that report within the 90-day extension period. On February 20, 1990, more than 190 days after the filing of her claim, plaintiff received an additional 21 days to file the certificate and report over the objection of defendants. On March 12, 1990, prior to a hearing on defendants’ motion to dismiss, plaintiff voluntarily dismissed the action.

Pursuant to section 13 — 217 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217), plaintiff refiled her action on March 7, 1991. The complaint set forth the same five counts contained in the original complaint. Attached to the complaint was another affidavit signed by plaintiff’s attorney stating that she was unable to obtain the necessary medical review of plaintiff’s claim pursuant to section 2 — 622 prior to the expiration of the statute of limitations for refiling the lawsuit.

On April 11, 1991, defendants filed a motion to dismiss based on plaintiff’s failure to comply with section 2 — 622. Defendants argued section 2 — 622 does not afford plaintiff another 90-day extension for filing the requisite reports with the new action. At the same hearing, plaintiff sought leave to amend her complaint instanter to supply the certificate of merit and report. Defendants objected to plaintiff’s request to amend. After taking the matter under advisement, on April 29, 1991, the trial court dismissed the complaint with prejudice for failure to comply with section 2 — 622. On May 29, 1991, plaintiff filed a motion for rehearing requesting the trial court vacate its dismissal orders. Again, plaintiff sought leave to amend her complaint to include the requisite report and certificate. After a hearing on the matter, the trial court again denied plaintiff’s request to file an amended complaint and denied her request to vacate the dismissal orders. Plaintiff timely appeals.

The issue on appeal is whether, after taking a voluntary dismissal in a malpractice action, a plaintiff is entitled to the 90-day extension provided by section 2 — 622 upon the refiling of the lawsuit.

The clear purpose of section 2 — 622 is to deter the filing of frivolous malpractice lawsuits. (Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685, 689; Cato v. Attar (1991), 210 Ill. App. 3d 996, 998.) Section 2 — 622 requires a plaintiff to attach an affidavit of merit and a written report from a health professional to any complaint for medical malpractice. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(1).) Section 2 — 622 also provides that if a plaintiff is unable to obtain such a consultation because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations, the plaintiff is permitted to file the certificate and the report within 90 days of the filing of the complaint, provided the plaintiff’s attorney files an affidavit to that effect along with the complaint. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(2).

Because the plaintiff’s attorney filed an affidavit pursuant to section 2 — 622(a)(2) in the original action, defendants argue plaintiff is prohibited from receiving another 90-day extension in the refiled action. Plaintiff argues the refiled lawsuit is a “new action” making whatever transpired in the original action irrelevant. The trial court, considering what it deemed plaintiff’s lack of diligence in filing the certificate and report, dismissed the action. The trial court employed a similar reasoning to that used under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)).

Section 13 — 217 of the Code of Civil Procedure provides that after a voluntary dismissal the plaintiff may file a “new action” within a year or the remaining period of limitation. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 217.) Thus, plaintiff is correct that under the language of section 13 — 217 the complaint before us constitutes a new action. (See Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 656.) Although the trial court recognized the complaint as a new action, it found that, based on the delay in filing the certificate in the previous action, plaintiff was not entitled to another 90-day extension and dismissed the action. The court reasoned that because the trial judge had the discretion to deny the plaintiff’s motion for nonsuit in the previous action and hear the defendant’s motion to dismiss, the trial court in the present action “may look at the time lapse between the original affidavit and the current one as it relates to the merits of the request to extend the time for compliance with 2 — 622.” (Emphasis added.) We do not agree.

Defendants argue the issue before us involves a conflict between the plaintiff’s right to voluntary dismissal and the requirements of section 2 — 622. However, a close reading of section 2 — 622 reveals the present situation does not raise the potential conflict argued by defendants. When interpreting a disputed provision, courts should ascertain and give effect to the true intent and meaning of the legislature, considering first the statutory language. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 455.) Unambiguous terms must be given their plain and ordinary meaning. (Hayes, 136 Ill. 2d at 455.) The language of section 2 — 622 provides for an automatic 90-day extension to one who files an attorney affidavit with his complaint stating he is unable to obtain the requisite certificate and report before the expiration of a statute of limitations which would impair the action. Thus, it is only after the expiration of the 90-day extension period that the trial court has the discretion to dismiss the action for failure to file the certificate and report as required by section 2 — 622. See Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945.

In Wasielewski, the plaintiff filed a malpractice action against the defendants in Cook County on January 30, 1987. Due to his inability to obtain a medical expert, plaintiff voluntarily dismissed the action on May 8, 1987. (189 Ill. App. 3d at 946.) On April 28, 1988, plaintiff refiled his action against the defendants in Du Page County. An affidavit was attached to his complaint which stated the statute of limitations was about to expire and plaintiff could not obtain the requisite medical consultation. The defendants filed motions to dismiss based upon the plaintiff’s failure to comply with section 2 — 622(a)(1). (189 Ill. App. 3d at 946-47.) On September 1, 1988, the trial court dismissed the complaint with prejudice for failure to comply with the documentation requirements and time limits established by section 2 — 622. (189 Ill. App. 3d at 947.) This court held the trial court properly exercised its discretion in dismissing the action. 189 Ill. App. 3d at 952.

Although the issue as to whether a plaintiff should receive a second 90-day extension period upon the refiling of his or her action was not explicitly raised by the defendants in Wasielewski, the right to receive the second extension was implicitly recognized. We stated, “[pjlaintiff filed malpractice actions in two different circuit courts approximately 15 months apart, each time receiving the statutory 90-day extension to file the certificate of merit. Plaintiff failed to file a certificate of merit within either 90-day period. The trial court was not required to exercise its discretion in favor of plaintiff given the numerous opportunities plaintiff had to comply with section 2 — 622 of the Code.” Wasielewski, 189 Ill. App. 3d at 952.

In the present action, the trial court operated under the mistaken belief that it had the discretion to determine whether plaintiff should receive a second 90-day extension to file the requisite certificate and report in the refiled action. In its written opinion, the trial court cited Premo v. Falcone (1990), 197 Ill. App. 3d 625, 630, to support its determination that plaintiff failed to provide good cause for her delay in filing the certificate of merit.

In Premo, this court held that the trial court did not abuse its discretion when it dismissed the plaintiff’s complaint with prejudice absent a showing of good cause for the plaintiff’s delay in filing under section 2 — 622. (Premo, 197 Ill. App. 3d 625.) We stated:

“The 90-day time limit expresses the legislative intent that the required consultation and filing of the necessary documents be achieved expeditiously, even if this exception to the general rule is applicable. Allowing trial courts to consider whether good cause exists for noncompliance with the deadlines for filing the required documentation in section 2 — 622 is consistent with the objectives of that statute ***.” Premo, 197 Ill. App. 3d at 631.

In the present case, the trial court drew an analogy between good cause under section 2 — 622 and due diligence under Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). Under Rule 103(b), if a plaintiff fails to exercise reasonable diligence to obtain service after the expiration of the applicable statute of limitations, the action may be dismissed and that dismissal shall be with prejudice. (134 Ill. 2d R. 103(b).) Our supreme court has held that when a plaintiff refiles an action after using voluntary dismissal to avoid the consequences of a Rule 103(b) motion, the trial court may consider the circumstances surrounding the plaintiff’s service of process on his or her original as well as refiled complaint in ruling on a pending Rule 103(b) motion. O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283.

In this case, the trial court concluded it could look to plaintiff’s failure to comply with section 2 — 622 in the original action in determining whether she had good cause for the delay in the present action. We cannot say the trial court’s reasoning would be incorrect assuming plaintiff failed to comply with the time limits established by the statute. However, plaintiff has not yet failed to comply with the requirements of section 2 — 622. That section does not require a showing of good cause before a plaintiff is eligible for the 90-day extension. Filing the attorney affidavit along with the complaint is sufficient to obtain an extension. To hold otherwise would be to ignore the clear language of section 2 — 622.

Defendants also argue on appeal that even if plaintiff’s certificate was timely, the trial court was correct in finding it was insufficient under section 2 — 622. We disagree.

First, we note the circumstances of this case are unusual in that defendants’ motion to dismiss was filed before the expiration of the 90-day extension period. In the face of defendants’ motion to dismiss, plaintiff attempted to amend her complaint to include the certificate of merit on April 19, 1991, 43 days after the filing of her complaint and well within the 90-day extension period. In the usual proceeding, plaintiff would simply file the certificate within 90 days rather than request permission to amend her complaint. In a written order dated June 18, 1991, the trial court denied plaintiff’s request to reconsider the dismissal of her complaint as untimely. The court also found the proposed amendment was insufficient under section 2 — 622 in that each defendant was not addressed in a separate report, but rather lumped together in the same report. The court also found the report failed to set forth the facts upon which the author relied to conclude each defendant failed to meet his or her standard of care.

Section 2 — 622(b) provides:

“Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(b).)

If a single medical report in a medical malpractice case against multiple defendants is sufficiently broad to cover each defendant, adequately discusses deficiencies in the medical care given by defendants, and establishes that a reasonable and meritorious cause exists for filing the action, the report can be considered sufficient to comply with section 2 — 622(b). Premo v. Falcone, 197 Ill. App. 3d at 632; see also Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1040; Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 374.

In Premo, this court stated the purpose of section 2 — 622(b) is to ensure that in cases involving multiple defendants plaintiff certifies that there is a reasonable and meritorious cause for filing the action against each defendant. (Premo, 197 Ill. App. 3d at 632.) Accordingly, in cases where this purpose is achieved by a single written report, the report should be held to be sufficient. Premo, 197 Ill. App. 3d at 632.

We find the medical report in the present case meets the objectives of section 2 — 622. In the report, the author clearly specifies he or she believes there is reasonable and meritorious cause to file an action against all named defendants. The report sets forth the medical records reviewed by the author and states which actions he or she felt were inappropriate or unnecessary. The author concludes by stating in his or her opinion which defendants were negligent and why.

The trial court stated the report was inadequate because it failed to explain what care defendants failed to provide to the plaintiff that they should have provided. However, section 2 — 622 does not require a certificate and report to state what care should have been provided that was not. Rather, section 2 — 622 merely requires the report contain the deficiencies in the medical care given by defendants.

Here, the reviewing health care professional’s report is sufficiently broad to cover each defendant. Thus, we conclude the medical report is minimally sufficient to satisfy the requirements of section 2 — 622. We note again that the Healing Art Malpractice Act was enacted to deter nonmeritorious litigation. As the court stated in Ha-good, “[i]t should not be so strictly construed that exquisite and fine technicalities can be used as a means of stripping plaintiffs of their substantive rights and their day in court.” Hagood, 165 Ill. App. 3d at 374.

Accordingly, the judgment of the circuit court of Du Page County is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    RAY DANCER, INC., Plaintiff-Appellant and Counterdefendant, v. D M C CORPORATION, Defendant-Appellee (Leisure Arts, Inc., Defendant and Counterplaintiff).
    Second District
    No. 2—91—0552
    Opinion filed June 5,1992.

      Stanley A. Walton III and Bart A. Lazar, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, and Randall J. Yorke, of Naperville, for appellant.
    Blake L. Harrop, of Sonnensehein, Carlin, Nath & Rosenthal, of Chicago, and Helene D. Jaffe, of Weil, Gotshal & Manges, of New York, New York, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal by the plaintiff, Ray Dancer, Inc. (Dancer), from the circuit court of Du Page County’s denial of leave to file a second amended complaint as to counts I, II, III and IV after dismissal with prejudice of those counts against the defendant, The D M C Corporation (DMC), alleging tortious interference with Dancer’s business and contractual relationships with Leisure Arts, Inc. (Leisure), and from summary judgment entered on counts V, VI and VII of its second amended complaint alleging antitrust violations against DMC (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005). The tort counts were dismissed in 1987 but were not final and appealable until the recent disposition of the antitrust counts. Dancer voluntarily dismissed counts VIII and IX of its second amended complaint concerning packaging of its embroidery floss alleging estoppel due to detrimental reliance and waiver. Dancer previously unsuccessfully appealed in this court the dismissal of counts X, XI and XII of its complaint alleging breach of contract, misrepresentation and misrepresentation with malice. (Ray Dancer, Inc. v. DMC Corp. (1988), 175 Ill. App. 3d 997.) A counterclaim filed against DMC by Leisure was also voluntarily dismissed by Leisure. Accordingly, jurisdiction in this court is evident.

The primary issues are whether the court erred in denying amendment of the tort counts and granting summary judgment as to the antitrust counts.

Dancer, an importer of various home sewing and handicraft products, was seeking a national distributor to handle a line of embroidery floss (thread) for its West German manufacturer, Madeira Garn Fabrik K.G. (Madeira). To that end, Dancer contracted with Leisure to be the exclusive distributor of the Madeira line of embroidery floss.

At that time, Leisure was a principal distributor of another line of embroidery floss imported by DMC and manufactured by DMC’s French parent corporation. DMC is an acknowledged giant in the embroidery floss market in the United States. Leisure’s stated motivation in taking on the Madeira line of floss was to provide an alternative line of high-quality embroidery floss at a lower cost to its home-craft shop customers which could then compete more effectively with the chain discount and retail stores. Leisure planned to market the Madeira floss in a full color range using DMC’s numerical color identification code system with the addition of an “LA” prefix on its own labels. Leisure believed the DMC color code numbering system to be the standard in the market; DMC color numbers were widely referenced in craft pattern chart books.

Upon learning of Leisure’s plan with regard to the Madeira floss, DMC registered its objection with Leisure concerning Leisure’s intention to market the Madeira floss, to use DMC’s color numbers and trade dress (referring to the two black-and-gold paper bands wrapped around each end of the skein of embroidery floss) on the Madeira floss, and to permit display in some instances of the Madeira floss in DMC’s own retail display cabinets. DMC charged that Leisure’s marketing plan would be unfair competition. DMC indicated to Leisure that if it proceeded with such plans, DMC would terminate its business relationship with Leisure. Leisure responded that it would proceed and that if DMC ceased its business relationship with it, Leisure would sue DMC.

DMC’s subsequent termination in September 1985 of business relations with Leisure as to all of its products, not just its embroidery floss, was followed, in chronological order, by DMC's prefiling notice to Leisure on October 30 of its intent to seek a temporary restraining order in Federal district court in New York to prevent Leisure’s use of DMC’s color numbers or trade dress, Leisure's immediate filing that same day of its own suit against DMC in Federal district court in Little Rock, Arkansas, for antitrust violations, and the filing on October 31 of DMC’s previously noticed complaint in New York alleging trademark infringement and unfair competition under Federal and State laws, and seeking emergency and permanent injunctive relief. The New York district court issued a temporary restraining order prohibiting Leisure from selling any embroidery floss bearing the DMC trade dress or color numbers and set a November 7 preliminary injunction hearing date.

Before that hearing date arrived, Leisure and DMC reached a settlement which was approved by the court on November 6, 1985. By the terms of the settlement agreement, Leisure and DMC each agreed to dismiss its action against the other with prejudice simultaneously upon execution of the agreement. Inter alia, Leisure agreed to refrain from distributing embroidery floss in packaging bearing trade dress which was confusingly similar to DMC’s or using the DMC color numbers. The agreement expressly provided:

“Nothing contained herein prevents Leisure Arts from selling, consigning or otherwise returning products to [Madeira], Ray Dancer or any other person or party to whom either Madeira or Ray Dancer assign their respective rights to receive such goods. It is further agreed that nothing herein prohibits Leisure Arts from distributing or selling such products as long as they do not bear the DMC trade dress and/or DMC color numbers.” (Emphasis added.)

DMC agreed to reinstate Leisure as a distributor of DMC products effective January 1, 1986, on the same terms and conditions and in the same manner as existed for any DMC distributor prior to Leisure’s termination in September 1985.

After the settlement was reached, Leisure ceased further purchases of the Madeira embroidery floss from Dancer. Leisure’s stated reasons for ceasing such purchase was (1) that neither it nor Dancer, upon request, was willing to spend the money to relabel the Madeira floss already ordered; (2) the Madeira product would be more difficult to market without the use of DMC’s distinctive color numbers; and (3) initial sales of the Madeira line of floss met with an unexpected degree of resistance and sales were disappointing.

In discussions subsequent to the DMC/Leisure settlement with Leisure’s president, Steve Patterson, Dancer — under the impression that Leisure was ordered as a result of the New York court proceedings not to buy floss from Dancer and relying strictly on Patterson’s statements and without having seen any of the court documents — did not further promote the sale of Madeira floss in the United States until it later learned that there was no court ruling prohibiting its sale of the Madeira floss as it was then banded and boxed. As alleged by Dancer, Leisure’s cessation of business with Dancer caused a negative cash-flow chain reaction in Dancer’s business and, ultimately, Dancer dissolved in 1986. Dancer became suspicious about what really occurred in the New York lawsuit when it began to notice that Leisure was not pursuing its previously conceived plan to develop its own private label line of floss. After reading a summary of the New York court proceedings, Dancer concluded that some “backroom” deal had been struck between Leisure and DMC since, Dancer opined, Leisure would have had nothing to lose by proceeding with the injunction hearing, that is, Leisure would either be in exactly the same position it then was due to the temporary restraining order or the court would rule that Leisure could market the Madeira floss as planned. After consulting with counsel, Dancer filed the instant cause against DMC and Leisure.

Tort Counts

We first consider whether the trial court erred in denying Dancer leave to file its second amended tort counts I, II, III and IV. On June 3, 1987, the trial court granted DMC’s motion to dismiss with prejudice the tortious interference counts of Dancer’s first amended complaint for failure to state a claim upon which relief could be granted. The court denied Dancer’s motions for clarification and reconsideration and to file second amended tort counts. The trial court’s order was not final and appealable until now, after final disposition of the remaining counts and Leisure’s voluntary dismissal of its counterclaim against Dancer.

In both the first and second amended complaints, count I alleged that DMC’s conduct constituted an intentional and unjustifiable interference in the pending, and future, business relationship between Dancer and Leisure. Count II alleged DMC’s conduct constituted an intentional and improper interference by DMC with the performance of the contract between Dancer and Leisure by inducing, influencing, or otherwise causing Leisure not to perform the Dancer/Leisure contract. Counts III and IV charged the conduct in counts I and II, respectively, was done with malice. Dancer states the second amended complaint “additions” to the general allegations of the complaint were that (1) the settlement agreement between DMC and Leisure included “an understanding between DMC and Leisure that Leisure not carry or use or deal in Dancer floss”; (2) that DMC’S New York suit against Leisure was “a sham and in bad faith”; and (3) that the tort counts are based on “the conduct of DMC taken in the totality.”

Dancer asserts that, whether or not its prior pleading stated tort counts causes of action, it believes its second amended complaint does and the court improperly refused to allow it to pursue those second amended counts. It argues that, notwithstanding Illinois’ policy of liberal allowance of amendment to pleadings and the fact that its second amended complaint was only the first time the tort counts had been amended, the court’s dismissal of the tort counts was not based on any failure of the counts to state a cause of action but, rather, on the court’s erroneous belief that Havoco of America, Ltd. v. Hollowbow (7th Cir. 1983), 702 F.2d 643, warranted that result.

Havoco adhered to the holding of Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, wherein the court rejected an effort to extend the tort liability for the wrongful filing of a lawsuit beyond the ambit of an action for malicious prosecution or abuse of process into a cause of action for tortious interference with business opportunity. “ ‘Free access to the courts as a means of settling private claims or disputes is a fundamental component of our judicial system, and “courts should be open to litigants for the settlement of their rights without fear of prosecution for calling upon the courts to determine such rights.” (Schwartz v. Schwartz (1937), 366 Ill. 247, 250[, 8 N.E.2d 668].)’ ” Havoco, 702 F.2d at 647, quoting Lyddon v. Shaw, 56 Ill. App. 3d at 821-22.

Dancer argues the New York lawsuit was only part of the totality of DMC’s conduct which culminated in the settlement agreement to “destroy” Dancer and, at the very least, its allegation of malice in second amended counts II and IV is sufficient to place the counts within the exception to the concept of “privileged interference” discussed in Hamel Construction, Inc. v. Wehde & Southwick, Inc. (1985), 130 Ill. App. 3d 196, 202.

The question of whether to grant or deny leave to amend a complaint is within the trial court’s discretion, and the court’s decision will not be reversed absent an abuse of that discretion. (People ex rel. Hartigan v. E & E Hauling, Inc. (1991), 218 Ill. App. 3d 28, 49; Trans World Airlines, Inc. v. Martin Automatic, Inc. (1991), 215 Ill. App. 3d 622, 627.) The test to be applied in determining whether the trial court’s discretion was properly exercised is whether allowance of the amendment furthers the ends of justice. (E & E Hauling, 218 Ill. App. 3d at 49; Trans World Airlines, 215 Ill. App. 3d at 627.) Ordinarily, amendment should not be allowed where the matters asserted were known by the moving party at the time the original pleading was drafted and for which no excuse is offered in explanation of the initial failure. Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 723.

We see no abuse of the court’s discretion in not allowing Dancer to pursue its second amended tort counts where Dancer’s additions added no new facts to the complaint, only conclusions unsupported by specific facts.

In order to state a cause of action for tortious interference with contract, it must be alleged that (1) there was a valid, enforceable contract between the plaintiff and another; (2) the defendant was aware of this contractual relationship; (3) the defendant intentionally and unjustifiably induced a breach of contract; (4) a breach of the contract occurred as a result of the defendant’s wrongful acts; and (5) damage to the plaintiff. (Trans World Airlines, 215 Ill. App. 3d at 626; Madonna v. Giacobbe (1989), 190 Ill. App. 3d 859, 867-68.) A cause of action for tortious interference with a business expectancy requires allegations that (1) plaintiff had a valid business expectancy; (2) defendant had knowledge of the expectancy; (3) the defendant intentionally interfered with the prospective business relationship and prevented its realization; and (4) resultant damage to the plaintiff. (Madonna, 190 Ill. App. 3d at 867; see also Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 511.) Factual allegations supporting every fact that must be proved in order for plaintiff to be entitled to a judgment in his or her favor must be contained in the complaint, or it will fail to state a cause of action. Madonna, 190 Ill. App. 3d at 865.

In intentional interference with contract cases, a defendant is “privileged” to cause a breach of another’s contract if his acts in doing so were lawful, not unreasonable under the circumstances, and if he acts to preserve a conflicting interest which the law deems to be of equal or greater value than the contractual rights at issue. (Hanzel Construction, Inc. v. Wehde & Southwick, Inc. (1985), 130 Ill. App. 3d 196, 202.) For instance, a privilege exists in favor of corporate officers and directors to use their best business judgment and discretion on behalf of their corporations. (Swager v. Couri (1979), 77 Ill. 2d 173, 190-91.) The privilege does not obtain, however, if the defendant acted with malice in interfering with the contractual relation. (Hanzel, 130 Ill. App. 3d at 202.) An allegation of malice to overcome a defendant’s privilege to interfere must convey that there was more than ill will. The facts alleged must show that there was “ ‘a desire to harm, which is independent of and unrelated to a desire to protect the acting party’s rights and which is not reasonably related to the defense of a recognized property or social interest.’ ” Havoco, 702 F.2d at 649, quoting Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 551; Hanzel, 130 Ill. App. 3d at 202.

Considering the “totality” of DMC’s conduct as alleged in Dancer’s second amended complaint (including DMC’s “threat” to discontinue doing business with Leisure, its discontinuance of the sale of any of its products to Leisure, its New York lawsuit, and the “understanding” included in its settlement agreement with Leisure), there is nevertheless an absence of facts which show a desire to harm Dancer which was unrelated to DMC’s desire to protect its right to its own color-code numbering system and trade dress by discontinuing its own business relationship with Leisure and seeking to enjoin Leisure’s use of such color-code system and trade dress in marketing a competitor’s floss. Cf. Philip I. Mappa Interests, Ltd. v. Kendle (1990), 196 Ill. App. 3d 703 (plaintiff’s amended complaint alleging tortious interference with contractual relationship and prospective economic advantage properly dismissed for failure to state a cause of action where facts alleged indicated that actions taken by defendants were directly related to their effort to protect their real estate property interest).

Inasmuch as Dancer’s proposed second amended complaint did not obviate the defects of its prior complaint, we conclude the court did not abuse its discretion in denying it leave to file the second amended tort counts.

Summary Judgment

We next consider Dancer’s contention that the court erred in granting DMC’s renewed motion for summary judgment as to Dancer’s counts V, VI and VII alleging antitrust violations. Preliminarily, we note that because the subsections of the Illinois statute upon which these counts are based, section 3 of the Illinois Antitrust Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, pars. 60 — 3(3), (4)), are analogous, respectively, to section 2 of the Sherman Act (15 U.S.C. §2 (1988)) and section 3 of the Clayton Act (15 U.S.C. §14 (1988)), it is appropriate to construe them in accord with Federal law and precedents. (State of Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co. (7th Cir. 1991), 935 F.2d 1469; Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1973), 14 Ill. App. 3d 141.) Also, the usual summary judgment standard of review applies: the motion shall be granted where the pleadings, depositions, admissions and exhibits reveal that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376.

Contrary to Dancer’s argument, there is no heightened standard for summary judgment in antitrust cases. (See Lupia v. Stella D’Oro Biscuit Co. (7th Cir. 1978), 586 F.2d 1163, 1167.) Although the usual caveat to use summary judgment sparingly in cases where questions of motive and intent are foremost remains valid (Lupia, 586 F.2d at 1166), summary judgment is still appropriate when it is clear that the plaintiff will be unable to establish an element of a claim and, thus, a trial would serve no useful purpose. (Magid Manufacturing Co. v. U.S.D. Corp. (N.D. Ill. 1987), 654 F. Supp. 325, 327-28; Solomon v. Houston Corrugated Box Co. (5th Cir. 1976), 526 F.2d 389, 393-94.) The trial court’s summary judgment may be affirmed on any basis appearing in the record whether or not the court relied on that basis or its reasoning was correct. Schaumburg State Bank v. Bank of Wheaton (1990), 197 Ill. App. 3d 713; Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408.

Dancer does not dispute the additional rule pointed out by DMC that a plaintiff seeking to establish the existence of an alleged antitrust conspiracy solely through circumstantial evidence, as here, would have to satisfy the high “clear and convincing” standard of proof at a trial on the merits (Bosak v. McDonough (1989), 192 Ill. App. 3d 799, 804), which standard is necessarily implicated when the court rules on a motion for directed verdict or summary judgment (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 255, 91 L. Ed. 2d 202, 216, 106 S. Ct. 2505, 2514; Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 512). That is, in determining whether a “genuine” issue of material fact exists in the instant cause, we must consider whether a fact finder applying the “clear and convincing” evidentiary standard as to the conspiracy count or the “preponderance of the evidence” standard as to the monopoly counts (State of Illinois ex rel. Hartigan v. Panhandle Eastern Pipe Line Co. (C.D. Ill. 1990), 730 F. Supp. 826, 925) could reasonably find for either Dancer or DMC as opposed to finding that the evidence is so one-sided that one of those two must prevail as a matter of law (Anderson, 477 U.S. at 252, 255, 91 L. Ed. 2d at 214, 216,106 S. Ct. at 2512, 2513-14).

The elements Dancer needed to prove in order to establish a violation of subsection 3(4) of the Act (count V — exclusive dealing) were: (1) that DMC and Leisure entered into an express or implied agreement that Leisure would not carry a line of floss competitive with DMC's and (2) that such an agreement was likely to have a substantial anticompetitive effect on the market. (Roland Machinery Co. v. Dresser Industries, Inc. (7th Cir. 1984), 749 F.2d 380, 392.) “The objection to exclusive-dealing agreements is that they deny outlets to a competitor during the term of the agreement.” Roland Machinery Co., 749 F.2d at 393.

Clearly, the settlement agreement entered into between DMC and Leisure in the New York litigation is not itself an exclusive-dealing agreement. The settlement agreement expressly provides that Leisure may distribute other brands of floss, including Madeira, so long as such floss does not bear the DMC trade dress or color numbers. Dancer relies, therefore, on the “understanding” it says arose from language in a letter from DMC'S president to Leisure’s president welcoming Leisure back as a DMC distributor shortly after their settlement agreement had been reached. The “best efforts” language which Dancer asserts raised the understanding of an exclusive-dealing agreement was as follows:

“You have requested that we provide you with some assurance of supply of DMC products in the future. As we explained to you, we do not have contracts with our distributors and naturally would not want to vary this practice for one distributor.
However, in consideration of our resolution of the litigation, we want you to know that we will supply you with DMC products, as we have in the past, on our standard terms and conditions, for a period of no less than one year. This willingness on our part to supply you is, of course, conditioned on our normal relationship with distributors, which assumes normal terms of dealing, including full payment of all appropriate invoices in a timely manner, purchases within normal credit limitations, and exercising your best efforts in the purchase, inventorying, distribution, promotion and selling of DMC produets.” (Emphasis added.)

Dancer’s argument that this language implies an exclusive-dealing agreement between DMC and Leisure not only is contrary to the express terms of the settlement agreement reached in the New York litigation, but also is refuted by evidence that a number of DMC’s 20 or so distributors do carry other lines of embroidery floss and by evidence that Leisure itself ultimately also carried another line of embroidery floss from Coates & Clark after the settlement agreement was reached.

Dancer argues that the mere fact that Leisure stopped purchasing floss from Dancer when it resumed dealing with DMC is sufficient circumstantial evidence from which an exclusive-dealing agreement may be inferred. In order to withstand a motion for summary judgment, however, an antitrust plaintiff relying on circumstantial evidence must present evidence from which an inference of conspiracy is more probable than an inference of independent action. (First National Bank v. Cities Service Co. (1968), 391 U.S. 253, 277-80, 20 L. Ed. 2d 569, 585-87, 88 S. Ct. 1575, 1586-88; see also Trowbridge Farm Supply Co. v. W.R. Grace & Co. (1980), 82 Ill. App. 3d 1140, 1144, quoting Tribune Co. v. Thompson (1930), 342 Ill. 503, 529 (“ ‘[I]f the facts and circumstances relied upon [to prove an antitrust conspiracy] are as consistent with innocence as with guilt it is the duty of the court to find that the conspiracy has not been proved’ ”).) Where the moving party has filed a properly supported motion for summary judgment, the nonmoving party must come forward with direct or circumstantial evidence which reasonably tends to prove that the parties had a “conscious commitment to a common scheme designed to achieve an unlawful objective.” (Edward J. Sweeney & Sons, Inc. v. Texaco, Inc. (3d Cir. 1980), 637 E2d 105, Ill.) “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial. [Citation.]’ ” Matsushita Electrical Industrial Co. v. Zenith Radio Corp. (1986), 475 U.S. 574, 587, 89 L. Ed. 2d 538, 552, 106 S. Ct. 1348, 1356.

Leisure’s president testified unequivocally that Leisure made an independent decision to stop marketing Madeira floss. A primary reason for the decision was that Leisure was foreclosed by its settlement agreement with DMC from using DMC’s color numbers; the use of DMC’s numbers was to be a major component of Leisure’s hopefully successful marketing plan for the Madeira floss. Another reason was that Leisure did not want to spend the money to relabel the Madeira floss it already had ordered, and Dancer was not willing to undertake relabeling, either. Leisure’s third reason for discontinuing Madeira was the unexpected sales resistance it encountered to the Madeira floss, due partly to the more subdued sheen of the Madeira floss compared with DMC’s. A termination of business relations is insufficient to support an inference of antitrust conspiracy, and summary judgment is properly granted where the nonmoving party’s evidence either does not exclude, or is equally as consistent with, independent action as opposed to conspiracy. See Dunnivant v. Bi-State Auto Parts (11th Cir. 1988), 851 F.2d 1575; Valley Liquors, Inc. v. Renfield Importers, Ltd. (7th Cir. 1987), 822 F.2d 656, 660-65.

Based on the evidence, we conclude there is no genuine issue of material fact concerning the existence of an exclusive-dealing agreement between DMC and Leisure and find that the trial court did not err in entering summary judgment on count V. In light of our finding, it is unnecessary for us to consider the second required element of proof of exclusive-dealing, that is, whether the alleged agreement was likely to have a substantial anticompetitive effect on the market. Accordingly, we proceed to consider whether the summary judgment was proper as to counts VI and VII.

Counts VI (actual monopoly) and VII (attempted monopoly) claim violations of subsection 3(3) of the Act, which subsection is analogous to section 2 of the Sherman Act (15 U.S.C. §2 (1988)). Subsection 3(3) prohibits establishing, maintaining, using, or attempting to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition or of controlling, fixing, or maintaining prices in such trade or commerce. (Ill. Rev. Stat. 1989, ch. 38, par. 60 — 3(3).) A claim of monopolization (count VI) is shown by establishing by a preponderance of the evidence (State of Illinois ex rel. Hartigan v. Panhandle Eastern Pipe Line Co. (C.D. Ill. 1990), 730 F. Supp. 826, 925) (1) that the defendant possesses “monopoly power” (i.e., the power to control output and prices) in a relevant market, and (2) that the defendant has engaged in improper conduct designed to acquire or maintain that power (Olympia Equipment Leasing Co. v. Western Union Telegraph Co. (7th Cir. 1986), 797 F.2d 370, 373) as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident (United States v. Grinnell Corp. (1966), 384 U.S. 563, 570-71, 16 L. Ed. 2d 778, 786, 86 S. Ct. 1698, 1703-04). A claim of attempted monopolization (count VII) is shown by establishing by a preponderance of the evidence that (1) the defendant had a specific intent to monopolize; (2) the defendant engaged in predatory or anticompetitive conduct directed at accomplishing the unlawful purpose; and (3) a dangerous probability of success. Lektro-Vend Corp. v. Vendo Co. (7th Cir. 1981), 660 F.2d 255, 269-70.

The intent to achieve or maintain a monopoly is no more unlawful than the mere possession of a monopoly; the intent relevant to a monopoly claim under the Sherman Act is intent to maintain or achieve monopoly power by anticompetitive means. (State of Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co. (7th Cir. 1991), 935 F.2d 1469; Olympia Equipment Leasing Co., 797 F.2d at 374.) “[T]he defendant must be shown to have utilized its dominant position in [the] market to control prices, exclude competition, or engage in other methods of unfair competition.” Ill. Ann. Stat., ch. 38, par. 60 — 3, Historical & Practice Notes, at 463 (Smith-Hurd 1977).

We find no merit in Dancer’s position that it need only show the existence of DMC’s monopoly power and that the burden then shifts to DMC to prove that its power derives solely from a superior product, business skill, natural advantages, economic efficiency, technological efficiency, or historic accident. Dancer’s burden-shifting concept emanates from the now-discredited Alcoa line of cases which no longer represents the current state of Federal antitrust law. (Olympia Equipment Leasing Co., 797 F.2d at 375, referring to United States v. Aluminum Co. of America (2d Cir. 1945), 148 F.2d 416.) A company with lawful monopoly power need not exercise special restraint in order to encourage new entrants; rather, it may defend its monopoly power by legitimate tactics and has no general duty to help its competitors. (Olympia Equipment Leasing Co., 797 F.2d at 375.) Thus, when DMC filed its properly supported motion for summary judgment, Dancer bore the burden of coming forward with evidence that DMC abused its monopoly power as prohibited in section 3(3) of the Act.

Assuming, arguendo, as did the trial court below, that DMC’s monopoly power may be inferred from its share of the embroidery floss market, the conduct which Dancer relies upon in both counts VI and VII to show DMC’s abuse of its monopoly power is, once again, the New York litigation.

There is a doctrine known as the Noerr-Pennington doctrine which was drawn from Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523, and United Mine Workers of America v. Pennington (1965), 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585. That doctrine holds that bona fide attempts to influence the actions of a legislative body are immune from antitrust scrutiny regardless of any anticompetitive motives behind those attempts. Noerr-Pennington immunity has been extended to include good-faith attempts to secure legitimate goals through the use of the courts. See California Motor Transport v. Trucking Unlimited (1972), 404 U.S. 508, 30 L. Ed. 2d 642, 92 S. Ct. 609.

A very narrow “sham” exception to the Noerr-Pennington doctrine provides that the bringing of a lawsuit may be the predicate for antitrust liability when it can be shown, by clear and convincing evidence, that the purpose of the suit is to harm a competitor, not by the results sought, but by the very process of the litigation itself. (Winterland Concessions Co. v. Trela (7th Cir. 1984), 735 F.2d 257, 263-64; Grip-Pak, Inc. v. Illinois Tool Works, Inc. (7th Cir. 1982), 694 F.2d 466, 472; City of Gainesville v. Florida Power & Light Co. (S.D. Fla. 1980), 488 F. Supp. 1258, 1265-66.) For example, in Winterland, the court found Trela’s counterclaim stated a cause of action against Winterland under the sham exception. Winterland manufactured, distributed and retailed T-shirts bearing the names, likenesses, and logos of individual performers and musical groups with whom it had exclusive licensing arrangements. Most of its sales were made at concerts given by its licensors. Trela similarly designed and sold specialty T-shirts of various of Winterland’s licensors but without authorization. Winterland’s complaint against such “bootleggers,” including Trela, was countered by Trela’s claim that Winterland’s use of the courts violated antitrust law in that Winterland repeatedly sought and obtained “John Doe” ex parte restraining orders intended to restrain Trela’s T-shirt operation even though it knew Trela’s identity. Further, Winterland purposely delayed filing actions until the day before a licensor’s performance and repeatedly dismissed such actions against Trela after the concert was over and his T-shirts had little market value. Trela alleged that by these means, Winterland was able to avoid adjudication of the merits of its property rights while at the same time eliminating him as a competitor during performances. Winterland, 735 F.2d at 263.

Admittedly, litigation which has a colorable basis can nonetheless violate antitrust law; “[t]he line is crossed when [the] purpose is not to win a favorable judgment against a competitor but to harass him, and deter others, by the process itself — regardless of outcome — of litigating.” Grip-Pak, Inc., 694 F.2d at 472.

Although technically there was no adjudication on the merits of DMC’s injunctive suit against Leisure, the court-approved settlement wherein DMC basically achieved the injunctive relief it sought in its suit — while expressly leaving Leisure free to deal with Dancer — militates against a finding that DMC’s suit was merely a “sham.” (Cf. Original Appalachian Artworks, Inc. v. McCall Pattern Co. (N.D. Ga. 1985), 1986-1 Trade Cas. (CCH) par. 67,014, at 62,236-38 (summary judgment appropriate where counterplaintiff’s attempted monopolization claim against counterdefendant was based on one prior lawsuit by counterdefendant against counterplaintiff which rendered a result entirely favorable to counterdefendant where the court granted it a preliminary injunction against counterplaintiff, counterplaintiff paid $200,000 in settlement to counterdefendant, and court issued permanent injunction against counterplaintiff).) Further, contrary to Dancer’s assertion, the deposition excerpts and documents in the record do not show that DMC’s main concern was solely with the fact that Leisure intended to market Madeira’s competing floss. Rather, DMC’s letter in August to Leisure warning of its intent to terminate relations with Leisure was founded on its belief that:

“Leisure Arts will [not] be able to fairly or adequately represent DMC products while at the same time carrying a line of product which attempts to trade on our goodwill by utilizing our color codes and imitating our marketing system and presentation.” (Emphasis added.)

Leisure Arts executive Barnett stated in his deposition that DMC president Wallaert “was upset that we were marketing the [Madeira] floss, [but he] was more upset that we were marketing a floss with his numbers on it and he was equally upset about the use of his cabinets for that floss.” (Emphasis added.) In fact, the parties’ settlement agreement expressly allowing Leisure to sell a competitive line of floss is qualified by certain restrictions on banding and colors. For instance, black-and-gold wrappers were not to be used on a skein of embroidery floss unless the wrapper set forth a trade name that was not confusingly similar to DMC, the trade name was the most prominent feature on the wrapper and the DMC color numbers did not appear on the wrapper.

Viewing the record as a whole, we conclude a fact finder could not reasonably find there is clear and convincing evidence that DMC’s injunction suit against Leisure fell within the sham exception to the Noerr-Pennington doctrine. Consequently, Dancer would be unable to establish at trial the element of its monopoly and attempted monopolization claims that DMC’s conduct was improper under the Act. Accordingly, summary judgment was properly granted by the circuit court of Du Page County. Magid Manufacturing Co. v. U.S.D. Corp. (N.D. Ill. 1987), 654 F. Supp. 325, 327-28.

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

Affirmed.

GEIGER and NICKELS, JJ., concur.