text:
      In re MARRIAGE OF ANNE M. GUSTAVSON, n/k/a Anne M. Veselack, Petitioner-Appellee and WILLIAM D. GUSTAVSON, Respondent-Appellant.
    Fourth District
    No. 4—92—0964
    Opinion filed August 5, 1993.
    William D. Gustavson, of Bloomington, appellant pro se.

      Alan I. Weintraub, of Thomson & Weintraub, of Bloomington, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

The circuit court of McLean County denied William Gustavson’s petition for modification of custody. We affirm.

Anne Gustavson (now known as Anne Veselack) and William Gustavson were married May 12, 1984. They have one child, K.A.G. (born August 30, 1984). On January 15, 1988, Anne filed a petition for dissolution of marriage requesting temporary and permanent custody of the minor child. The court granted temporary custody of K.A.G. and exclusive temporary possession of the marital residence to Anne, and ordered William to vacate the marital residence and pay temporary child support. Anne subsequently filed a petition for preliminary injunction, and the court entered an order enjoining William from following, photographing, or telephoning Anne in a harassing manner. On October 25, 1988, the court entered a judgment of dissolution of marriage, reserving other issues, including permanent child custody.

William filed a pro se motion to vacate dissolution of marriage and a notice of appeal, docketed No. 4 — 88 — 0878. William’s appeal was dismissed by this court for failure to file an appellant’s brief as required by Supreme Court Rules 342 and 343 (134 Ill. 2d Rules 342, 343). (In re Marriage of Gustavson (4th Dist. 1989), No. 4—88—0878 (order of dismissal).) After a hearing on October 4, 1989, the circuit court entered a written order on October 31 regarding all remaining issues, including an award of permanent custody of the minor child to Anne. William filed a pro se motion for reconsideration and a notice of appeal (docketed No. 4—89—0860). This court dismissed William’s appeal on his motion (In re Marriage of Gustavson (4th Dist. 1989), No. 4—89—0860 (order of dismissal)), and the trial court denied his motion for reconsideration.

On July 19, 1991, William filed a petition for change of custody, which was dismissed by the trial court because it was filed within two years of the October 1989 custody determination and did not meet the conditions of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610(a)). On August 19 William filed a motion for leave to file petition for change of custody and an affidavit in support of his motion; the court granted William leave to file. On October 3 William filed a petition for change of custody alleging “significant changes in the circumstances of the parties affecting the best interests of the minor child of the parties which would warrant a change in custody from [Anne] to [William].” He alleged more specifically that (1) Anne “has not provided the child with a proper moral environment,” (2) Anne “has used and continues to use drugs within the home while the minor child is present,” (3) Anne lost her job because “she obtained cocaine from the hospital pharmacist under false pretenses,” (4) Anne “has been charged criminally for possession of cocaine,” (5) Anne “has threatened suicide,” (6) Anne’s husband uses “excessive force in disciplining the child,” and (7) Anne “has failed to adequately supervise the child and he has been injured on several occasions.” William also filed a motion to modify child support alleging in part he had no source of income because he was presently unemployed.

At the hearing Anne presented evidence that despite the court’s order enjoining William from harassing her, he continued to contact her and send notes to her, and he was uncooperative regarding visitation. Anne testified regarding the suicide attempt. On the evening of October 22, 1989, Anne called William to make arrangements for her to pick up K.A.G. after she finished work at Brokaw Hospital. She testified that “he said don’t bother coming to pick him up; we won’t be here, *** you will be lucky to see him in heaven if you even get there.” William testified that he could not remember his exact words, but that he might have said “the next time you see [K.A.G.] may be in heaven.” Anne had just concluded an extended and emotional custody battle with William, and she felt that “nothing had changed” even though she had custody of K.A.G. She “gave up hope” because she believed William was going to take and conceal K.A.G. from her as he had done in the past. Anne procured liquid cocaine from the hospital pharmacy and took it with the intent of committing suicide; she had never attempted to take her life before. Following her suicide attempt Anne was discharged from her position at Brokaw. Although it was not clear from the testimony at trial, Anne indicated in a previous affidavit that based on this incident at Brokaw she had “plead[ed] guilty to theft under $150, a misdemeanor.” Anne retained her nursing license subject to a consent order with the Illinois Department of Education and Regulation; as a condition of the order, Anne is required to submit to unannounced drug tests, all of which have been negative. She has been employed at Lake Forest Hospital as a staff nurse in cardiopulmonary rehabilitation for two years. She works flex-time, which permits her to vary her working hours around K.A.G.’s school and activity schedule.

Anne married Paul Veselack in May 1991 and they had a daughter in the spring of 1992. Paul, who is also employed at Lake Forest Hospital, helps take care of the children and has become actively involved in K.A.G.’s sports, music, and outdoor activities. Anne denied William’s allegations that she uses illegal drugs, and stated that she has never known Paul to use excessive force in disciplining the children. Anne testified about two incidents in which K.A.G. had been injured. In the first incident K.A.G. fell off a rocking chair “because he was goofing around.” In the second incident K.A.G. burned his finger when he touched Paul’s motorcycle; K.A.G. immediately received first aid for the burn and Paul no longer owns a motorcycle. Anne presented evidence showing the amenities at their house and in their neighborhood, and indicated that K.A.G. participates in community activities. Anne has a close family relationship with relatives who live near her home, including parents and siblings. She presented evidence that K.A.G. has attended religious classes through the Catholic church and that she taught religion to a sixth-grade class at the church. She also testified that K.A.G. had made excellent academic progress, and introduced evidence showing the school district he attends has a high rating.

Although William alleged that Anne used illegal drugs at the house, he admitted that he had “no way of knowing” whether Anne had used illegal drugs since the dissolution of marriage. William also failed to present any evidence to show that Anne failed to adequately supervise K.A.G. or that Paul had used excessive force in disciplining K.A.G. At the hearing significant evidence was presented regarding William’s life-style, which we need not go into on this appeal.

On August 24, 1992, the trial court entered an order denying William’s petition for modification of custody. The trial court subsequently denied William’s motion for reconsideration and William filed a timely notice of appeal.

On appeal, William contends the trial court abused its discretion in denying his petition for change of custody. The primary focus of the appeal is not whether a modification of custody is necessary to serve K.A.G.’s best interest. Instead William seems intent on using his modification petition as a vehicle to remedy perceived defects in the original award of custody. William complains that Anne’s testimony at the original hearing was perjured; that Anne attempted suicide October 22, 1989 (a matter considered when William's motion to reconsider was denied April 18, 1991); that Anne was convicted of theft of cocaine from the hospital where she worked, in connection with the suicide attempt; and that it was a travesty of justice for the trial court not to have granted the motion for reconsideration in 1991.

Section 610 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610) governs actions for modifications of child custody judgments. It provides in pertinent part:

“(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).)

This section reflects an underlying policy favoring finality of child custody judgments and creating a presumption in favor of the present custody so as to promote stability and continuity in the child’s custodial and environmental relationships. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 499, 485 N.E.2d 367, 371; In re Marriage of Fuesting (1992), 228 Ill. App. 3d 339, 344, 591 N.E.2d 960, 963.) The focus of a modification proceeding should be the best interests of the minor child. (Ill. Rev. Stat. 1989, ch. 40, par. 610(b); Fuesting, 228 Ill. App. 3d at 344, 591 N.E.2d at 963 (“The paramount issue in all matters concerning custody of a child is his or her welfare”).) Great deference must be accorded the trial court’s custody determination since the trial court is in a superior position to judge the credibility of the witnesses and determine the best interests of the child. (Sussenbach, 108 Ill. 2d at 499, 485 N.E.2d at 371; In re Marriage of Apperson (1991), 215 Ill. App. 3d 378, 383, 574 N.E.2d 1257, 1261.) The trial court’s determination will not be disturbed on appeal unless there is a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence. Sussenbach, 108 Ill. 2d at 499, 485 N.E.2d at 371; Apperson, 215 Ill. App. 3d at 383, 574 N.E.2d at 1260.

Although a custodian’s suicide attempt may present concerns about a child’s welfare, a court may consider the fact the suicide attempt was prompted by the wrongful conduct of the noncustodian. After the trial court awarded permanent custody of K.A.G. to Anne, she had difficulties coping with William’s propensity to expand his visitation rights. Anne attempted suicide, but she has since addressed her problems and continues to participate in a support group. Numerous other allegations about Anne’s behavior were unsubstantiated. The record is devoid of evidence that it would be in the child’s best interest to transfer custody to William. Given the totality of the circumstances, we are not persuaded by William’s argument that the trial court abused its discretion.

It is difficult to believe that William’s petition for modification, this appeal, and much of the other litigation initiated by William have been with the best interests of the child in mind. Instead it appears that William is interested in pursuing his personal vendetta with Anne, and is indifferent to any resulting harm to K.A.G. In that connection we quote the following from William’s brief:

“Because Judge Dearborn believed her perjured testimony and based his decisions upon this perjured testimony, about both the drug usage and the illicit relationship with Paul Veselack during the marriage, Judge Dearborn’s decisions were more than an abuse of discretion; they were injustice and should be reversed with custody of the minor child to be placed with Appellant on a term of years equal but not limited to the length Mrs. Gustavson Veselack has enjoyed this custody gained illegally and deceptively by means of her perjury. Then a new, fair hearing with unperjured testimony should be held.”

This argument proceeds as if all that were involved here were a contest between William and Anne, with K.A.G. just a prize to be won. Nothing could be further from the truth. Whatever Anne’s deficiencies might be, the trial court’s original order awarding her custody became final when William did not pursue that appeal. Even assuming Anne should not initially have been awarded custody, custody should not now be changed unless K.A.G.’s best interests require it. It is in K.A.G.’s best interests that he not be bounced back and forth from one parent to another. William has not come close to establishing by clear and convincing evidence, on the basis of facts which have arisen since the denial of his motion to reconsider, that modification “is necessary to serve the best interest of the child.” Ill. Rev. Stat. 1989, ch. 40, par. 610(b).

Accordingly, we affirm the decision of the circuit court of McLean County denying William’s petition for change of custody.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LYTTON

license: Public Domain

text:
      In re B.C. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Cheryl C., Respondent-Appellant).
    Third District
    No. 3—92—0816
    Opinion filed May 27, 1993.
    Modified on denial of rehearing July 26, 1993.
    Phillip Pollock, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

The trial court found the respondent mother, Cheryl C., to be an unfit parent (750 ILCS 50/l(D)(i) (West 1992)). Thereafter, the court terminated her parental rights to W.C. and B.C. She appeals, and we affirm in part and reverse in part.

The record shows that on November 8, 1991, the State filed a petition for adjudication of wardship alleging that the two children were dependent due to the respondent’s incarceration. On that date, the trial court ordered the children to be placed in the temporary custody of the Department of Children and Family Services (DCFS).

Thereafter, the State filed a petition alleging that the respondent was an unfit parent because she was a depraved person. The basis for this allegation was that in 1983 the respondent had been convicted of one count of felony residential burglary and two counts of theft. In addition, she had two misdemeanor prostitution convictions in 1990 and a felony prostitution conviction in 1991. The petition also alleged that the respondent had pled guilty to attempted transmission of HIV in 1991, and had used heroin and cocaine from 1978 to 1990.

At the adjudication hearing, the respondent admitted committing several of the above crimes but denied that she had attempted to transmit HIV. She also denied that she had used drugs from 1978 to 1990. The respondent testified that after she had been in a drug rehabilitation program in 1983 or 1984, she stopped using drugs for a long time. She had a brief relapse when her mother died and then used drugs only about four to five times a year from 1986 to August of 1990. She stated that she has not used any drugs since August of 1990 even though they were available to her in prison.

Regarding her conviction for attempted transmission of HIV, the respondent testified that she only pled guilty as part of a plea bargain. She noted that she had tested positive for HIV in October of 1990, but tested negative for HIV in January of 1991, and at the time of her plea she had not yet received the results of a third test. The record shows that the trial court believed her testimony on this point and found that the State had failed to prove that the respondent agreed to engage in sexual activity for cash knowing that she had tested positive for HIV. However, based on the other evidence, the court found that there was sufficient evidence to support a finding that the respondent was a depraved person.

On appeal, the respondent first argues that the trial court erred in finding her to be an unfit person. We disagree.

It is well settled that a finding of unfitness will not be reversed unless it is against the manifest weight of the evidence. (In re J.R. (1985), 130 Ill. App. 3d 6, 473 N.E.2d 1009.) The trial judge’s findings of unfitness should be given great deference, since the judge’s opportunity to view and evaluate the parties and their testimony is superior to that of a reviewing court. (In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.) Depravity of a parent may be shown by a series of acts or a course of conduct that indicates a moral deficiency and an inability or unwillingness to conform to accepted morality. (In re J.A. (1986), 145 Ill. App. 3d 816, 495 N.E.2d 1340.) Although a single felony conviction is not sufficient in and of itself to establish the depravity of a parent, a number of convictions can be sufficient since they can establish a pattern of criminal activity. In re M.B.C. (1984), 125 Ill. App. 3d 512, 466 N.E.2d 273.

Here, the record shows that the respondent has a number of convictions which support the trial court’s finding that the respondent is unable to conform to acceptable standards of morality. As such, since the evidence supports the trial court’s finding, we cannot say that the court’s finding of unfitness was against the manifest weight of the evidence.

The respondent’s next issue concerns the dispositional hearing. The record from that hearing shows that W.C.’s foster mother, Kathy Jo Buehrer, testified that W.C. did not want to be adopted “if his mom can be his mom.” She stated that 10-year-old W.C. loves his mother and wants to continue seeing her. In addition, she admitted that she would not want to tell W.C. that he could not see his mother because of the emotional problems it could create for W.C.

Buehrer also testified that W.C. loves her and her husband. She stated that they would adopt him if that was what he wanted. She also noted that even if they never adopted him, he could live with them for as long as he desired.

Helen Edwards, a DCFS worker assigned to W.C.’s case, testified that it was not in W.C.’s best interest to be adopted. She stated that W.C. loves his mother very much and has a strong desire to be with her. Finally, she stated that W.C. would suffer emotional trauma if his mother’s parental rights were terminated.

The respondent testified that she has taken advantage of various programs for her rehabilitation since being incarcerated in 1991. She noted that she has taken classes in building maintenance and technical math, and has participated in a religions program. In addition, she has enrolled in a pre-start program which is aimed at helping her reestablish herself in society. Finally, she noted that she now goes to church and participates in group therapy.

She testified that as a result of her participation in these activities, she has gained new insights into the cause of her problems and is determined to “turn her life around.” She spoke about her plans for the future, which included continuing drug counseling, continuing her education, and encouraging her children to value family, religion, and education.

The record also shows that she knew that even if the court did not terminate her parental rights, she would not get her children back immediately. She understood that in order to do so, she had to get a job and show that she had improved her circumstances.

Based on the above evidence, the trial court found that it was in the children’s best interest to terminate the respondent’s parental rights.

On appeal, the respondent argues that the trial court erred in terminating her parental rights. We agree.

In Santosky v. Kramer (1982), 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388, the United States Supreme Court stated that the interest of natural parents in the care, custody, and management of their children is a fundamental liberty interest protected under the fourteenth amendment, and that when a State seeks to terminate the rights of parents in their natural child, the State must provide the parents with procedural protections meeting the requisites of the due process clause. That is, “[bjefore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” (Santosky, 455 U.S. at 747-48, 71 L. Ed. 2d at 603, 102 S. Ct. at 1391-92.) The Illinois Supreme Court adopted this analysis in In re Enis (1988), 121 Ill. 2d 124, 520 N.E.2d 362. See also In re Paul (1982), 101 Ill. 2d 345, 461 N.E.2d 983 (stating that parental rights and responsibilities are of deep human importance and will not be lightly terminated).

Although a parent may be unfit to have custody of his or her children, it does not follow that the parent cannot remain the children’s legal parent with the attendant rights and privileges. (Lael v. Warga (1987), 155 Ill. App. 3d 1005, 508 N.E.2d 1095.) However, once evidence of parental unfitness has been found, all of the parent’s rights must yield to the best interest of the child. In re T.G. (1986), 147 Ill. App. 3d 484, 498 N.E.2d 370.

In the case at hand, we find that the State failed to prove by clear and convincing evidence that it was in the children’s best interest to sever the respondent’s parental rights. We initially note that the respondent’s parental rights were apparently terminated solely for the fact that she was found to be a depraved person. As the record from the termination hearing shows, no evidence was presented regarding the termination other than the finding of unfitness. We find this to be insufficient evidence to support a termination order. We note that when the State relies solely upon a finding of depravity to support the termination of parental rights, it must establish some connection between the depraved conduct and the alleged need to terminate parental rights. See generally Lael v. Warga (1987), 155 Ill. App. 3d 1005, 1011, 508 N.E.2d 1095, 1099-1100.

The trial court erred in terminating the respondent’s parental rights because all of the evidence presented showed that such a finding was not in the best interest of the children. The record clearly showed that W.C. loved his mother and that she loved him. In addition, as the foster mother implied, and the social worker stated directly, it was not in W.C.’s best interest to terminate his mother’s parental rights.

Ample evidence was presented showing that the respondent had rehabilitative potential and was trying to better herself. She was taking classes and receiving counseling to make a better life for herself and her children. Since the evidence in this case was not clear and convincing, we find that the trial court erred in terminating the respondent’s parental rights.

Accordingly, the judgment of the circuit court of Peoria County is affirmed as to its finding of unfitness and reversed as as to its termination of the respondent’s parental rights.

Affirmed in part and reversed in part.

McCUSKEY, P.J., and STOUDER, J., concur.


text:
    LARA HOSSELTON, Guardian of the Estate of Edward Niggeman, a Disabled Person, Plaintiff-Appellant, v. K’S MERCHANDISE MART, INC., Defendant-Appellee.
    Third District
    No. 3—92—0739
    Opinion filed July 28, 1993.
    Edward G. Vogt, of Kankakee, for appellant.
    Thomas E. Griffith and Frederick P. Erickson, both of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

The plaintiff, Lara Hosselton, as guardian of the estate of Edward Niggeman, brought suit to recover damages arising out of payments from the estate to the defendant, K’s Merchandise Mart, Inc. The plaintiff claimed that the defendant accepted the payments in violation of section 5 of the Fiduciary Obligations Act (760 ILCS 65/5 (West 1992)). The trial court granted the defendant’s motion for summary judgment. The plaintiff appeals, and we affirm.

The record shows that Lois J. Herbert, the former guardian of the estate of Edward Niggeman, spent estate funds at the defendant’s place of business to purchase various items of jewelry for herself and not for the benefit of the estate. The plaintiff asserts that the checks, 17 in all, totalled $15,461.76. The defendant asserts that the total of the checks amounted to $11,654.86. The first check was delivered to the defendant on November 8, 1987, and the last was delivered on September 2,1988.

The purchases were paid for by checks made payable to the defendant. On their face, the checks clearly stated: “Lois Herbert, Guardian for Edward J. Niggeman.” Herbert endorsed the checks.

At her deposition, Herbert stated that she purchased all the jewelry at the defendant’s stores in Normal and Bradley, Illinois. She further stated that she believed she did not deal with the same salesperson for all of the purchases. She was not personally familiar with any of the salespeople, nor did she believe that they knew her. Herbert never told any of the sales personnel that she was making the purchases for herself, nor did they indicate to her that they knew that she was making the purchases for herself. None of defendant’s employees questioned Herbert about why she was purchasing jewelry with guardianship checks. Herbert stated that she believed the ward, Edward Niggeman, would have approved of her making the jewelry purchases.

Both parties filed motions for summary judgment. The trial court found that the defendant did not accept the checks with actual knowledge of Herbert’s breach of her fiduciary duties, or with sufficient knowledge that would have amounted to bad faith. The court then granted the defendant’s motion.

On appeal, the plaintiff argues that the defendant was chargeable with knowledge that estate funds were being used for purchases for the personal benefit of the guardian in violation of section 5 of the Fiduciary Obligations Act (Act). The plaintiff asserts that the word “guardian” on the face of the checks constituted adequate notice to the defendant under the Act.

The Act reads as follows:

“If a check or other bill of exchange is drawn by a fiduciary as such, or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, the payee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in drawing or delivering the instrument, and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. If, however, such instrument is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of or as security for a personal debt of the fiduciary to the actual knowledge of the creditor, or is drawn and delivered in any transaction known by the payee to be for the personal benefit of the fiduciary, the creditor or other payee is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the instrument.” 760 ILCS 65/5 (West 1992).

The purpose of the Act is to facilitate banking and financial transactions and to cover situations which arise when one person honestly deals with another person whom he knows to be a fiduciary. Mere suspicious circumstances are not enough to require a creditor to inquire about the fiduciary’s actions. Johnson v. Citizens National Bank (1975), 30 Ill. App. 3d 1066, 334 N.E.2d 295.

Although, in some circumstances, knowledge of a fiduciary’s breach will be imputed to the creditor, in this case, we cannot charge the defendant with knowledge of the fiduciary’s breach. Herbert, the fiduciary, testified that she spent the sums with the defendant at two different locations over a period of about 10 months. She did not deal with the same clerk on each occasion. Herbert did not know the salesclerks and she did not think that they knew her. She never told them that she was making the purchases for herself and they never inquired whether she was doing so. Based on the foregoing, we find that there simply was not enough evidence from which it could be inferred that the defendant had knowledge of the fiduciary’s breach.

The judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

BRESLIN and SLATER, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    GUADALUPE ALVAREZ, Plaintiff-Appellee, v. FRED HINTZE CONSTRUCTION et al., Defendants (Pleasant Knoll, Third-Party Plaintiff-Appellant; J.S. Alberico, Third-Party Defendant-Appellee).—GUADALUPE ALVAREZ, Plaintiff, v. FRED HINTZE CONSTRUCTION, Defendant and Third-Party Plaintiff-Appellant (J.S. Alberico, Third-Party Defendant-Appellee).
    Third District
    Nos. 3—92—0866, 3—92—0905 cons.
    Opinion filed July 26, 1993.

      Michael C. O’Neill, of Law Offices of John R. Wienold, Ltd., of Aurora (John R. Wienold, of counsel), for appellant Pleasant Knoll.
    Edward W. Moltzen, of Bresler, Brenner & Moltzen, of Chicago (Frederick C. Schaefer, of counsel), for appellant Fred Hintze Construction.
    Lyle F. Koester, of Kiesler & Berman, of Chicago (Jeffrey S. Pavlovich, of counsel), for appellee J.S. Alberico.
    Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Richard L. Rumsey, of counsel), for appellee Guadalupe Alvarez.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendants, Fred Hintze Construction (Hintze) and Pleasant Knoll, joint venture (Pleasant Knoll), appeal from an order of the circuit court of Will County. The trial court found a settlement agreement between the plaintiff, Guadalupe Alvarez, and the plaintiff’s employer, J.S. Alberico (Alberico), was made in good faith pursuant to the Joint Tortfeasor Contribution Act (Contribution Act) (Ill. Rev. Stat. 1991, ch. 70, par. 300 et seq.). Consequently, the trial court dismissed with prejudice the defendants’ third-party contribution actions against Alberico.

The sole issue raised on appeal is whether the trial court erred in dismissing the defendants’ third-party complaints for contribution against Alberico. After reviewing well-established Illinois law concerning the issue of good-faith settlements under the Contribution Act, we affirm.

The plaintiff filed a complaint against the defendants claiming he was injured at a construction work site on April 20, 1988. The plaintiff alleged that Hintze was the general contractor at the work site. He further alleged that Pleasant Knoll was the owner, general contractor and project manager of the work site. The plaintiff claimed that his injuries were the result of the defendants’ negligence and violations of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 30, par. 60 et seq.). Both of the defendants filed third-party complaints for contribution against Alberico.

Alberico subsequently filed motions to strike the ad damnum clauses of the third-party complaints. The trial court denied the motions. This cause was then consolidated with eight similar cases on appeal. In Kocik v. Commonwealth Edison Co. (1993), 242 Ill. App. 3d 679, 610 N.E.2d 766, we held that our supreme court’s decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, applied retroactively to pending causes of action where trial had not commenced prior to April 18, 1991. We therefore remanded the nine cases to the circuit court of Will County with directions that the ad damnum clauses of the third-party complaints be stricken “so that the third-party defendants’ contribution liability will be limited to an amount not greater than the third-party defendants’ workers’ compensation liability.” Kocik, 242 Ill. App. 3d at 684, 610 N.E.2d at 769.

On July 23, 1992, while Kocik was pending in this court, Alberico filed a motion in the trial court for a good-faith finding and a stipulation for dismissal. Alberico sought dismissal of the third-party complaints based upon its settlement with the plaintiff for $220,000 plus a waiver of its workers’ compensation lien of $184,223.60. The defendants filed objections. Subsequently, on October 13, 1992, a pretrial memorandum was filed which stated that the plaintiff was alleging damages for past medical expenses and lost wages in the amount of $1,128,351.99.

A hearing on the motion for a good-faith finding was held on October 28, 1992. At the hearing, counsel for the plaintiff informed the trial court that the plaintiff was 34 years old, married with two children, and receiving weekly workers’ compensation payments of $456. The plaintiff had suffered a severe, disabling knee injury. However, plaintiff’s counsel advised the court that the plaintiff may eventually be able to work at a desk job. Also, plaintiff’s counsel indicated that the workers’ compensation carrier was questioning whether plaintiff’s back injury was work related. Additionally, plaintiff’s counsel informed the court that his law firm specialized in the area of workers’ compensation. Based upon the opinion of the attorneys in his office, plaintiff’s counsel told the court that the settlement was a good workers’ compensation settlement based upon all the circumstances known in the case.

At the hearing, Pleasant Knoll presented the affidavit of Kim E. Presbrey, an attorney who specialized in the area of trying and settling workers’ compensation cases. Presbrey’s affidavit stated that the reasonable range of the present value of plaintiff’s workers’ compensation claim, exclusive of any future medical expenses, was from $352,028.35 to $533,342.16.

Following the hearing, the trial court entered an order finding that the settlement was “a fair, reasonable and good faith settlement considering the obvious hazards, uncertainties and costs of litigation, conflicts in evidence revealed through discovery and difficulties in evaluating and determining relative degrees of fault among the alleged tort feasors.” As a result of its finding, the trial court dismissed the third-party complaints with prejudice. The order stated that there was no just cause to delay enforcement or appeal. Each defendant filed a notice of appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and we consolidated the two appeals.

On appeal, both defendants argue that the trial court did not make adequate inquiry into the totality of the circumstances in determining whether the settlement was made in good faith. The defendants contend that an adequate inquiry by the trial court would show that the settlement amount was too low considering the plaintiff’s claimed damages and Alberico’s culpability. In essence, the defendants argue that it was unfair for the trial court to allow Alberico, the employer, to obtain a dismissal of the defendants’ third-party actions by settling with its employee for the sum of $220,000 plus a waiver of a workers’ compensation lien in excess of $184,000. We disagree with the defendants’ argument.

Initially, we note that the Contribution Act allows a tortfeasor, who settles with a claimant in good faith, to be discharged from liability for contribution to any other tortfeasors. (Ill. Rev. Stat. 1991, ch. 70, pars. 302(c), (d); Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 114, 601 N.E.2d 704, 706.) It has been uniformly held in Illinois that an employer from whom contribution is sought can make a good-faith settlement of a workers’ compensation claim with its employee and thus be discharged from contribution liability to nonsettling defendants. Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 318-19, 546 N.E.2d 524, 529; Higginbottom v. Pillsbury Co. (1992), 232 Ill. App. 3d 240, 247, 596 N.E.2d at 843, 848; Stacy v. Ametek, Inc. (1990), 205 Ill. App. 3d 58, 60-61, 562 N.E.2d 1180, 1182; Banks v. R.D. Werner Co. (1990), 201 Ill. App. 3d 762, 559 N.E.2d 217.

Accordingly, we find that the dismissal of the defendants’ third-party complaints against Alberico was perfectly permissible under the Contribution Act so long as the settlement was made in good faith. Based upon our review of the record and applicable case law, we find meritless the defendants’ argument that the settlement here was not made in good faith.

“The policy of the Contribution Act is to encourage compromise and settlement in the absence of bad faith, fraud or collusion.” (Mallaney v. Dunaway (1988), 178 Ill. App. 3d 827, 833, 533 N.E.2d 1114, 1117.) This policy is promoted by the approval of settlements which represent a fair compromise of the parties’ interests, even though the dollar amount of the settlement does not accurately represent all of the injured party’s damages. (Mallaney, 178 Ill. App. 3d at 833, 533 N.E.2d at 1117.) In order for a settlement to be in good faith, however, the plaintiff must receive some net consideration for the agreement. Higginbottom, 232 Ill. App. 3d at 257, 596 N.E.2d at 854.

Thus, under the Contribution Act, a settlement is considered prima facie in good faith when the settling party shows that the settlement is supported by consideration. (McDermott v. Metropolitan Sanitary District (1992), 240 Ill. App. 3d 1, 44, 607 N.E.2d 1271, 1297.) Once this preliminary showing of a good-faith settlement has been made, the burden then shifts to the party challenging the settlement to establish that it was not made in good faith. (Wilson, 131 Ill. 2d at 318-19, 546 N.E.2d at 529.) The party opposing the settlement must prove by clear and convincing evidence that the settlement is invalid. (Higginbottom, 232 Ill. App. 3d at 249, 596 N.E.2d at 849.) “Lack of good faith has been generally considered to be tortious or wrongful conduct on the part of the settling party that amounts to fraud or collusion.” (McDermott, 240 Ill. App. 3d at 44, 607 N.E.2d at 1297.) Further, a settlement agreement is not considered to have been made in bad faith where the settlement was made to avoid third-party liability for contribution. McDermott, 240 Ill. App. 3d at 47, 607 N.E.2d at 1299; Jessee v. Amoco Oil Co. (1992), 230 Ill. App. 3d 337, 347, 594 N.E.2d 1210, 1217.

Here, the defendants have presented no evidence of bad faith, fraud or collusion, or any wrongful conduct on the part of the settling party. Nevertheless, the defendants argue that they have met their burden of establishing bad faith because the amount of the settlement was inadequate. Defendants contend that Alberico was present at the work site and was the most culpable for the plaintiff’s injuries. They also note that the plaintiff claimed in his pretrial memorandum damages exceeding $1 million. Citing Mallaney, the defendants point out that the difference between the settlement amount and the value of the plaintiff’s claimed damages may be “substantial enough to smack of ‘bad faith,’ collusion or fraud.” (Mallaney, 178 Ill. App. 3d at 833, 533 N.E.2d at 1117.) Again, we disagree.

The courts in this State have consistently found settlements in good faith where, as here, the plaintiff received a lump sum amount and a waiver of a workers’ compensation lien. (See, e.g., Wilson, 131 Ill. 2d at 319, 546 N.E.2d at 529; Stacy, 205 Ill. App. 3d at 60-61, 562 N.E.2d at 1182; Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 968-70, 556 N.E.2d 682, 684-85.) The mere fact that the plaintiff’s actual damages exceed the amount of the settlement does not prove that the settlement was unreasonable. (Mallaney, 178 Ill. App. 3d at 833, 533 N.E.2d at 1117.) Also, Illinois’ courts have consistently rejected challenges to good-faith settlements based upon alleged disparities between the value of the settlement and the settling tortfeasor’s relative culpability for the plaintiff’s damages. (Smith v. Texaco, Inc. (1992), 232 Ill. App. 3d 463, 469, 597 N.E.2d 750, 755.) Our courts have “recognized that settlements may be substantially different from the results of litigation because damages are often speculative and the probability of liability uncertain.” Smith, 232 Ill. App. 3d at 469, 597 N.E.2d at 755, citing O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 916, 501 N.E.2d 263, 267.

Furthermore, we find no evidence in the record to support defendants’ assertion that the trial court did not conduct a sufficient inquiry into whether the settlement was made in good faith. Illinois courts have not required trial courts to conduct a separate evidentiary hearing in order to make a determination regarding good faith. (Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47, 52, 571 N.E.2d 1131, 1134; Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 832, 537 N.E.2d 871, 874.) The trial court has discretion to determine what type of hearing is necessary to decide the issue of good faith. (Lewis v. Illinois Central R.R. Co. (1992), 234 Ill. App. 3d 669, 682-83, 600 N.E.2d 504, 513.) In fact, the trial court can decide the issue of good faith solely on the basis of the arguments of trial counsel. McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 526, 515 N.E.2d 157,163.

Here, the trial court was informed concerning plaintiff’s circumstances and determined that a settlement of $220,000 plus a waiver of a workers’ compensation lien of $184,223.60 was reasonable and in good faith. While the trial court should not be a “rubber stamp” in determining good faith (Smith, 232 Ill. App. 3d at 470, 597 N.E.2d at 756), this determination is largely left to the discretion of the trial court (Higginbottom, 232 Ill. App. 3d at 249, 596 N.E.2d at 849).

In the case at hand, the amount of the settlement was substantial and there was no evidence presented by the defendants to show either bad faith, fraud or collusion. Therefore, we conclude that the defendants failed to meet their burden of proving by clear and convincing evidence that the settlement was invalid. Accordingly, the trial court did not abuse its discretion in determining that the settlement was made in good faith.

Hintze argues that section 2 — 1117 of the Code of Civil Procedure requires a different result. This section provides that a defendant is only severally liable, and not jointly liable, for damages other than the plaintiff’s medical expenses if its level of fault “is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1117.) Based upon this statute, Hintze contends that allowing Alberico’s settlement with the plaintiff will preclude the jury from apportioning any fault to Alberico due to its absence from the litigation. Thus, Hintze argues that it will be “denied its right to obtain an apportionment of fault of 25% or less and thus become only severally liable.” We disagree.

We conclude that section 2 — 1117 cannot be read to preclude a finding that a settlement has been made in good faith under the Contribution Act even where a nonsettling defendant claims to be less than 25% at fault. This conclusion does not necessarily deny a non-settling defendant the potential benefit provided by section 2 — 1117, however. It has been suggested that the rights of a nonsettling defendant under section 2 — 1117 “cannot be negated simply because another tortfeasor has settled with the plaintiff.” (Walsh & Doherty, Section 2—1117: Several Liability’s Effect on Settlement and Contribution, 79 Ill. B.J. 122, 125 (1991).) Walsh and Doherty posit that even where one tortfeasor has settled with the plaintiff, “[t]he jury should still be able to assess the defendant’s relative culpability, and if the defendant’s level of fault falls below the 25 percent threshold, its liability is several only and is not affected by the plaintiff’s settlement with the other tortfeasor.” Walsh & Doherty, 79 Ill. B.J. at 125.

The defendants have also argued that a different result is required based upon our supreme court’s decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023. We disagree. In Kotecki, the court reconciled potentially conflicting sections of the Workers’ Compensation Act and the Contribution Act. The court thus clarified the law and held that an employer’s contribution liability is limited to the amount of the employer’s workers’ compensation liability. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1027-28; see also Kocik v. Commonwealth Edison Co. (1993), 242 Ill. App. 3d 679, 682, 610 N.E.2d 766, 768.

The defendants contend that Kotecki, which never discussed the issue of good-faith settlements, somehow reversed well-established law in Illinois regarding good-faith settlements under the Contribution Act. We find no merit to this argument. The defendants argue that, based upon Kotecki, they are now entitled to contribution from Alberico in the full amount of Alberico’s workers’ compensation liability. Furthermore, they contend that a settlement by Alberico cannot be in good faith unless it is found by the trial court to be equal to Alberico’s workers’ compensation liability. We find no language in Kotecki which supports this contention. Also, we note that the defendants in this appeal have cited no Illinois cases which support their arguments.

For the reasons indicated, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BRESLIN and LYTTON, JJ., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF ALEX J. SARRON, Plaintiff-Appellant, and ALINA E. LYONS, Defendant-Appellee.
    Third District
    No. 3-92-0733
    Opinion filed July 22, 1993.
    Rehearing denied August 30, 1993.
    Frederick A. Bernardi, of Pekin, for appellant.
    Reardon, Orr & Dvorak, Ltd., of East Peoria (Carl F. Reardon, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

In this post-divorce custody dispute, plaintiff Alex Sarron appeals from a judgment order entered in the circuit court of Peoria County incorporating an oral settlement agreement between Sarron and defendant Alina Lyons which included provisions for custody and visitation. Plaintiff also appeals from the denial of his motion to vacate the judgment without an evidentiary hearing.

Sarron and Lyons were married in 1987, and a daughter, Valerie, was born on September 6, 1988. In February of 1989 Sarron filed a petition for dissolution of the marriage, and the dissolution order was entered in September of 1989. The record is replete with motions, petitions, and responsive pleadings relating to issues of support, custody and visitation and indicating that the parties hotly contested each issue. The custody and visitation issues were complicated by the fact that Sarron, a semi-retired dentist, resides in Peoria while Lyons is an Air Force dentist stationed in New Jersey.

On September 19, 1991, all remaining issues were set for hearing. At that time the parties and their attorneys appeared and announced that they had reached agreement on 11 issues but could not agree concerning some of the costs connected with visitation. Lyon’s counsel stated the parties’ agreement before the court, indicating that custody would be with Lyons and that Sarron would have liberal visitation; that Sarron’s arrearages of court-ordered child support, temporary maintenance, and attorney fees in the sum of $8,000 would be written off, and in exchange, Sarron would assume all travel expenses connected with visitation; that Sarron’s future child support would be limited to the minor’s benefit under the Social Security Act (now approximately $300 per month); that each party would keep his or her own personal property and would be responsible for his or her own debts and attorney fees; that Sarron would have full access to Valerie’s school records and medical records; and that each would keep the other advised concerning any hospitalizations of themselves and reasons therefore.

From the report of proceedings, it is obvious that the trial judge, with the consent of the parties, had consulted a child psychologist about appropriate visitation for a three-year-old child who had had almost no prior contact with her father. The judge advised the parties that Sarron could have four days overnight visitation with Valerie each month, alternating monthly between Peoria and New Jersey, with the first visitation in Peoria to occur at the end of the trial.

The only exception to the overnight visitation was for the initial visitation, for which the court stated that Valerie should stay with her mother at night and the mother should be able to call the child once each day. In addition, Valerie was to be seen by a counsellor at the beginning and end of each visitation. The court stated that the counselling requirement was not negotiated but rather reflected the court’s concern for the best interest of the child. The counsellor’s cost is to be shared equally by the parents.

The parties and their attorneys retired to discuss unsettled issues during that day and then returned to open court to report that they had agreed upon a counsellor in Peoria, had agreed that Sarron would pick up and return the child for all visitation, that Sarron’s 16-year-old son would not babysit Valerie, and that the child could talk with her mother once each day by telephone while visiting the father. The final issue in dispute concerned Sarron’s desire to have custody in the event that Lyons had to be out of the country or away from home for seven days or more. After considerable discussion, the parties agreed that, if Lyons must leave Valerie with someone other than her maternal grandparents during the first year, Lyons would obtain prior court approval. It was disclosed that the maternal grandparents live next door to Lyons and Valerie and assist with Valerie’s care on a regular basis. The judge stated that the court would continue to have jurisdiction of the custody issue and would review the visitation arrangements at the end of one year upon the request of either party.

At the conclusion of the discussion of this last issue, the parties reported the name of the counsellor they had agreed upon, and then Sarron’s attorney said:

“I think we have it, Judge, and I’m going to prepare a proposed judgment on all remaining issues, get it to Mr. Reardon, and we will try to work out the language.”

After the details of the immediate week’s visitation were stated for the record, the court said, “We have got a final order. I approve the terms of that.” Sarron’s counsel then asked, “Even though we don’t do a written order, this will be considered an order?” The court responded, “Right.”

Thereafter, Sarron’s counsel prepared a draft of the judgment order which was signed by Sarron and by his attorney. Lyons, however, refused to sign because she objected to the phrase “liberal visitation.” After agreeing to the words “liberal, regular, and reasonable visitation” as worked out by the attorneys and the court during a telephone conference call, Lyons subsequently filed a petition to enforce the settlement agreement. By then, Sarron had changed his position and opposed the settlement, claiming that Lyons was mentally unstable and should not have custody. The trial court entered a written judgment order on December 10, 1991, incorporating all the provisions of the oral agreement. Two additional provisions in the December 10 order, not mentioned in the record on September 19, required Lyons to maintain medical insurance on Valerie and allowed Lyons to take her as an income tax exemption.

On December 17, 1991, the trial court entered an additional order disposing of all pending petitions and motions in which the court stated that, with one exception, the judgment order of December 10 contained no substantial changes from the order executed by Sarron on September 21 after the hearing. The only change of substance was to delete a paragraph concerning the retention of jurisdiction by the trial court of all matters related to the child since that was not part of the agreement presented by the parties to the court.

On January 8, 1992, Sarron filed a motion to vacate the orders of December 10 and 17, asserting that no binding agreement was ever reached between the parties, that awarding custody to Lyons was not in the best interest of the child due to Lyons’ history of mental instability, and that even if an agreement had been reached, it was unconscionable. As grounds for his unconscionable claim, Sarron alleges, first, that the cost of visitation is so great that he will not be able to afford to visit and, second, that the child psychologist who advised the trial court has changed his mind about requiring one-half the visits to be in New Jersey since being informed of Lyons’ mental history. The trial court denied the motion to vacate judgment without hearing evidence. The denial order contained specific findings that an agreement had been reached between the parties, that the agreement was not unconscionable, and that both parties had the mental capacity to enter into the agreement at the time it was entered. This appeal followed.

Section 502 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 502 (now 750 ILCS 5/502 (West 1992))) provides for the parties to a dissolution of marriage to enter into either written or oral agreements to dispose of issues relating to property, maintenance, support, custody and visitation. The statute further provides that the terms of the agreement will be binding on the court, except as to support, custody, and visitation of children, unless the court finds the agreement to be unconscionable.

In this case, it is clear from the record that the court was very much involved with the parties in working out the details of the agreement relating to support, custody and visitation. Sarron contends that the court’s finding that an agreement had been reached was against the manifest weight of the evidence. Sarron relies upon In re Marriage of Chaltin (1987), 153 Ill. App. 3d 810, 506 N.E.2d 338, a case involving a disputed property settlement agreement, where the court ruled that the party asserting the agreement has the burden to establish its existence by clear and convincing evidence.

Reviewing the report of proceedings before the trial court on September 19, 1991, we find that the parties undeniably placed before the court their oral agreement settling their differences as to property, debts, maintenance, support, custody, and visitation and that the court approved the terms of the agreement relating to support, custody and visitation. The record simply does not support Sarron’s argument.

Sarron also argues that the parties intended the execution of a written agreement to be a condition precedent to a binding contract here and that the court should have heard evidence relating to the parties’ intentions before denying the motion to vacate the judgment. (See In re Marriage of Chaltin, 153 Ill. App. 3d 810, 506 N.E.2d 338.) Again, the record clearly indicates the contrary to be true. At the conclusion of the presentation to the court, Sarron’s attorney requested and received a ruling that the terms agreed to orally would be binding even if not reduced to writing. The fact that the parties expected that a formal agreement eventually would be executed does not invalidate the oral agreement where the terms of the agreement were set forth orally and in great detail before the court. (In re Marriage of Lorton (1990), 203 Ill. App. 3d 823, 561 N.E.2d 156.) Here, as in Lorton, “The agreement was clear, certain, and definite in its material provisions, and by its very nature of being presented to the court, enforceable.” 203 Ill. App. 3d at 827, 561 N.E.2d at 159.

Sarron also contends that the trial court abused its discretion in denying its motion to vacate the judgment without hearing evidence as to the issue of unconscionability of the agreement. Sarron does not claim to have any evidence that was not available to him previously. He rests his claim upon two points: (1) that this agreement constitutes a violation of public policy in that he cannot afford visitation on the terms established and (2) that Lyons is unfit to have custody of Valerie because she is mentally unstable.

A motion to vacate is addressed to the trial court’s discretion, and its purpose is to alert the trial court to errors it has committed and to afford an opportunity for their correction. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115.) Here, Sarron seeks to repudiate his oral agreement made and approved in the circuit court. The cost of visitation and Lyons’ alleged suicide attempts prior to Valerie’s birth were matters he knew or could have known prior to September 19, 1991.

By law, Sarron is bound by his oral agreement in the absence of any claim of fraud. The court did not abuse its discretion in refusing to vacate the judgment previously entered and in refusing to hear evidence in support of his motion. (See Filko v. Filko (1970), 127 Ill. App. 2d 10, 262 N.E.2d 88.) As previously indicated, the oral agreement was presented to the trial court and approved by the court on September 19. The court did not err in entering the judgment orders of December 10 and December 17, and in refusing to vacate these orders when asked to do so.

Future difficulties in implementation of the agreement can be the subject of petitions to modify. We note that an order modifying the visitation arrangements was entered in the trial court prior to this appeal. We believe the trial court here has diligently exercised its discretion in the best interest of the child. We affirm the judgment entered in the circuit court of Peoria County.

Affirmed.

McCUSKEY, P.J., and BRESLIN, J., concur.


author: JUSTICE KNECHT

text:
    SAMUEL THOMAS ADCOCK, Ex’r of the Estate of Hubert Adcock Jr., Deceased, Plaintiff-Appellee, v. BRAKEGATE, LTD., et al., Defendants (Owens-Corning Fiberglas Corporation, Defendant-Appellant).
    Fourth District
    No. 4—92—0856
    Argued May 11, 1993.
    Opinion filed July 30, 1993.

      John Dames, of Kelly, Drye & Warren, of Chicago (Carolyn Quinn (argued) and Stephen A. Wood, of counsel), for appellant.

      James R. Wylder (argued), of James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff, Samuel Thomas Adcock, as executor of the estate of Hubert Adcock, Jr. (Hubert), brought a wrongful death action against, among other companies, Owens-Corning Fiberglas Corporation (hereinafter OCF). The action sought damages allegedly arising from the decedent’s exposure to asbestos in his work environment. In two counts of plaintiff’s third-amended complaint, he sought recovery under a theory of civil conspiracy. OCF’s motion to dismiss these claims was denied.

At trial, the judge entered a default judgment against OCF on the issue of liability for its failure to produce corporate witnesses pursuant to Supreme Court Rule 237. (134 Ill. 2d R. 237.) After a trial on damages only, a jury returned a verdict against OCF. On appeal, OCF contends the trial judge erred by denying its motion to dismiss Ad-cock’s claim for failure to state a cause of action because civil conspiracy is not actionable absent underlying intentional, tortious conduct. It also contends the trial judge abused his discretion by entering the default judgment. We affirm.

I. FACTS

On April 15, 1970, OCF purchased the asbestos plant located at 1111 West Perry Street, Bloomington, Illinois. The deceased had been employed at the plant by Unarco Industries, Inc., from 1954 to 1970. According to Adcock, when OCF purchased the facility in April 1970, the deceased continued to work until the end of 1970 in Unarco’s sink department within the plant. Unarco sold the asbestos operations to OCF, but retained ownership of the sink department.

Within the first two weeks after OCF bought the Bloomington plant, Dr. Jon Konzen, OCF’s medical director, reviewed the potential health hazards which existed within the plant with the plant manager. Konzen arranged for an industrial hygiene survey of the manufacturing operations conducted by OCF within the building.

By July 14, 1970, Konzen had received preliminary results of the survey. In an internal OCF memorandum, Konzen stated:

“This study demonstrates immediate need for in-plant environmental control of asbestos so our employees do not continue to be severely exposed to airborne asbestos fiber.
Such ventilation as is currently operating at the plant is totally inadequate. It is suggested, to limit both the occupational health hazards and the legal liability, steps be undertaken ***.”

In fall of 1970, Konzen continued his review of the health hazards within the Bloomington plant. He issued requirements for a new medical program for OCF employees within the plant.

In April 1971, Konzen met with W.W. Boeschenstein, president of OCF and son of former president, Harold Boeschenstein, to discuss the “Bloomington asbestos exposure.” In a memorandum dated April 16, 1971, Konzen reviewed OCF’s actions resulting from the hygiene survey. Four employees were already laid off because the company knew they had asbestosis. A listing of additional employees who had changes appearing on their chest X rays, according to Konzen, would be sent only to Dr. McNeely and the personnel manager, Mr. Janecek.

Konzen also suggested to OCF superiors that labeling should be done on asbestos products. In response, he received a memorandum dated September 21, 1970, from OCF employee J.P. Kern, which stated:

“Reference is made to your memo of September 15 regarding the warning label that should appear on Kaylo.
Are you saying that we have to do this now? I naturally would like to delay this requirement as long as possible.” (Emphasis in original.)

Konzen knew, as early as April 1968, OCF’s policy regarding release of information on asbestos hazards. He received a copy of an intracompany correspondence in which the OCF author questioned whether it would be wise from a “liability protection point of view” to indicate there might be hazards. The author stated, “[o]ur approach has been to indicate that ‘all medical research to date indicates no hazards to health.’ ”

In 1972, the plant manager at Granville, Ohio, requested information to transmit to Japan on asbestos. The OCF response was to tell the manager:

“You are probing into a very sensitive area when you request information for transmittal to Japan on asbestos ***.
I’m not sure how much information OCF wants to release on the subject ***. In any event, it should come from our Corporate Medical and/or Law Departments. I am, therefore, forwarding your letter to Dr. Konzen and Tom Schuman for reply.”

Hubert died in July 1987 from a self-inflicted gunshot wound to the chest. He had previously been diagnosed in 1984 with pulmonary asbestosis. Because he had difficulty urinating, Hubert had visited his physician, Dr. Robert Conklin, in January 1987. Hubert had been overweight, weighing between 220 and 230 pounds. However, in February and early March 1987, he suddenly gained weight. By March 13, he weighed 2481/2 pounds. Conklin testified he suspected in March 1987 that Adcock had “mesothelioma,” a cancer caused by exposure to asbestos. Hubert’s autopsy report indicated the deceased’s entire gastrointestinal space was consumed by mesothelioma. In the six-month span between Hubert’s initial visit to Conklin and the autopsy, Hubert’s weight had dropped from 248 pounds to 130 pounds.

In December 1987, Adcock filed his complaint against OCF. He sought recovery under two counts, one grounded in the Survival Act (see Ill. Rev. Stat. 1991, ch. 1101/2, par. 27—6) and a second in the Wrongful Death Act (see Ill. Rev. Stat. 1991, ch. 70, pars. 0.01 through 2.2). Both counts asserted that OCF, with other companies not involved in this appeal, agreed to suppress information about the harmful effects of asbestos and affirmatively misstated the safety of working with asbestos. Adcock alleged specific acts were committed in furtherance of the conspiracy and the agreement and these acts were the proximate cause of decedent’s death. OCF’s motion to dismiss the initial complaint was granted. The trial judge concluded although civil conspiracy is a recognized tort cause of action, Adcock’s pleadings were deficient, noting four factual deficiencies in Adcock’s initial complaint.

In February 1989, Adcock filed his third amendment to his complaint against OCF. The amendment again stated two counts sounding in the wrongful death and survival acts and was again based on a civil conspiracy theory. It corrected the four factual deficiencies noted by the trial judge in his order dismissing the complaint.

Count XXI of Adcock’s amended pleadings included the following allegations:

“12. Hubert Adcock, Jr., contracted asbestosis and mesothelioma as a result of his exposure to asbestos.
* * *
15. Before Decedent worked at the Bloomington Plant, each of the Defendants *** knew that exposure to asbestos caused serious disease and death.
* * *
23. Defendants *** knowingly conspired and agreed among themselves to, among others [sic]:
a) positively assert in a manner not warranted by the information possessed by the conspirators, that which was and is not true, to wit, that it was safe for people to work with and in close proximity to asbestos and asbestos containing materials;
b) suppress information about the harmful effects of asbestos, including medical and scientific data, causing asbestos workers to be and to remain ignorant of that information;
24. One or more of the Defendants *** performed the following acts in furtherance of the conspiracy:
a) sold asbestos without warning of the hazards known to them;
b) refused to warn their own employees about the hazards known to them;
* * *
d) agreed in writing not to disclose the results of research on the effects of asbestos upon health unless the results suited their interests;
* * *
i) Johns-Manville and one or more of the Defendants sold asbestos to the plant at 1111 West Perry Street to which Decedent was exposed without warning of the hazards known to Johns-Manville and one or more of the Defendants.
j) Unarco employed Decedent at the plant *** without warning Decedent about the hazards of exposure to asbestos known to Unarco.
25. The agreement *** and the acts done in furtherance of the agreement *** were proximate causes of the death of decedent.”

Count XXII contained similar allegations.

OCF sought dismissal of Adcock’s amended pleadings. OCF contended Adcock’s counts XXI and XXII of his pleadings failed to state a cognizable cause of action under Illinois law because the pleadings failed to assert the acts allegedly committed in furtherance of the conspiracy were a proximate cause of the injuries. This motion was denied in April 1991. The trial judge concluded counts XXI and XXII alleged a conspiracy which resulted in injury to the decedent and a conspiracy cause of action, as an actionable tort was sufficiently stated in these counts. The judge’s order relied on People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.

Before trial, Adcock sought, pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)), the production of four OCF employees: three weeks before trial he sought production of Jerry Hesler, advanced technologist for OCF, and Louis Saxby, a former OCF employee; on June 24, 1992, 12 days before trial, he sought production of Dr. Konzen and W.W. Boeschenstein. Because the trial judge’s entry of a default judgment against OCF was based on its willful refusal to produce the latter two persons, the facts are limited to those which are relevant to the absence of these witnesses.

OCF filed an emergency motion to quash the request to produce. With regard to Konzen and Boeschenstein, OCF argued Rule 237(b) could be applied only subject to the restraints of the State and Federal constitutions. The witnesses’ due process protections would be violated if they were compelled to testify because they were residents of Ohio and had no contact with Illinois. In the alternative, OCF argued Adcock had not shown good cause as to why these witnesses were necessary and had not indicated how these witnesses’ testimony would evidence a conspiracy. OCF also contended Adcock had ample opportunity to depose these witnesses to learn what their testimony would be.

Adcock initially requested the witnesses be produced outside the presence of a jury so a reasonable basis for calling them could be conducted in the preferred method, question and answer sessions with the witnesses. Adcock’s counsel then provided oral argument, supported by documentation, showing the relationship of Konzen and Boeschenstein to the issues in dispute. When ordered to produce Konzen and Boeschenstein, OCF refused to do so.

Adcock requested OCF be sanctioned for refusing to compel the appearance of these witnesses. Adcock argued OCF’s pleadings be stricken and a default judgment entered on the issue of liability. OCF responded that no sanction was warranted because its reluctance to compel the appearance of its employees at trial was not a willful attempt to conceal evidence. OCF noted Adcock previously had the opportunity to cure any potential prejudice caused by the witnesses’ absence by deposing them.

Although the trial judge was reluctant to grant the default judgment, he concluded the witnesses’ testimony was relevant and they should have been produced. The judge then noted OCF had the burden to show the witnesses’ testimony was not relevant and it had not done so. Adcock’s motion for a default judgment against OCF on the issue of liability was granted. The jury questions were limited to damages.

At the close of the evidence regarding damages, OCF renewed its earlier motion for judgment on the pleadings and for the trial judge to reconsider his ruling striking OCF’s answer. OCF also moved for a ruling there was insufficient evidence of pecuniary loss under plaintiff’s Survival Act count. The jury returned a $213,811.79 verdict in Adcock’s favor. The trial judge denied OCF’s various motions and entered judgment on the verdict. This appeal followed.

II. Sufficiency Of The Pleadings To State A Cause Of Action

OCF argues the trial judge erred by denying its motion to dismiss (Ill. Rev. Stat. 1991, ch. 110, par. 2—615) Adcock’s third amendment to his complaint. According to OCF, the complaint failed to state a cognizable cause of action because civil conspiracy alone cannot be a basis for liability; rather, liability must be based on intentional tortious conduct which brought about the injury. In the alternative, OCF contends even if this court concludes civil conspiracy alone is a basis for a cause of action, Adcock failed to properly plead his claim. OCF further argues he has not properly pleaded the elements of a cause in theories of fraudulent misrepresentation or fraudulent concealment, nor does he advance a products liability claim against it, so dismissal of the action is mandated.

Adcock contends no error occurred because civil conspiracy has been recognized as an independent cause of action for 100 years and his complaint properly pleaded such a claim.

A. Civil Conspiracy: to be Actionable at Law, it need not be Premised on an Underlying Act Which Itself Constitutes Wrongful or Tortious Conduct

In ruling on a motion to dismiss a complaint for failure to state a cause of action, the trial judge presumes the alleged facts are true and must assume the truth of all reasonable inferences from those facts. (Kennedy v. First National Bank (1990), 194 Ill. App. 3d 1004, 1009, 551 N.E.2d 1002, 1005; Loftus v. Mingo (1987), 158 Ill. App. 3d 733, 737, 511 N.E.2d 203, 205.) On appeal, a reviewing court must determine whether the allegations of the complaint, viewed in the light most favorable to plaintiff, are sufficient to set forth a cause of action on which relief may be granted. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505, 565 N.E.2d 654, 657.) In this context, the challenge to the sufficiency of the complaint raises a question of law; and the trial court’s ruling may be sustained on any ground justified by the record irrespective of whether we agree with its reasoning (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12).

A conspiracy is “an agreement or combination of two or more people to do an unlawful act or do a lawful act by unlawful means.” (Kennedy, 194 Ill. App. 3d at 1010, 551 N.E.2d at 1006.) The trial judge relied on Fahner (88 Ill. 2d 300, 430 N.E.2d 1005) for his conclusion civil conspiracy is actionable under Illinois common law. However, Fahner does not represent that conclusion because it involved a statutory enforcement action brought by the Illinois Attorney General pursuant to the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60-7(4)). (Fahner, 88 Ill. 2d at 305-06, 430 N.E.2d at 1007-08.) Similarly, Adcock’s reliance on People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 143, 435 N.E.2d 463, 465, is not persuasive because that case also involved a statutory enforcement action filed pursuant to the Illinois Antitrust Act.

Adcock directs this court to a previous ruling of this district in Alm v. General Telephone Co. (1975), 27 Ill. App. 3d 876, 327 N.E.2d 523. There, the plaintiff sued his former employer alleging the employer had convinced other local companies not to hire plaintiff because he allegedly had sexually assaulted a minor. Adcock directs us to the statement in Alm (27 Ill. App. 3d at 880, 327 N.E.2d at 526), “[a] conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means.” Although definitive of the term “conspiracy,” this observation does not answer the question raised.

This district, the Illinois Supreme Court, and numerous other jurisdictions have observed that in a civil conspiracy action, the wrongful act alleged to have been done in pursuance of the conspiracy, or the damage sustained from the act — and not the conspiracy itself — is the gist of the action. Seefeldt v. Millikin National Bank (1987), 154 Ill. App. 3d 715, 719, 506 N.E.2d 1052, 1055 (act is the basis of the claim); Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, C.I.O. (1948), 400 Ill. 38, 52, 79 N.E.2d 46, 53 (damage is the gist of the claim); Langer v. Becker (1988), 176 Ill. App. 3d 745, 754-55, 531 N.E.2d 830, 836 (act is basis for claim); Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 807, 277 N.E.2d 748, 751 (acts done and damages caused are the basis for the claim); Maimon v. Sisters of the Third Order of St. Francis (1986), 142 Ill. App. 3d 306, 311, 491 N.E.2d 779, 784 (act done is the basis for the claim).

However, the mere fact a civil conspiracy claim must be based on a particular unlawful act or a lawful act performed in an unlawful manner does not call for a conclusion the act must represent independent, tortious conduct. OCF directs this court to the principle stated in Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456, 465, 181 N.E.2d 601, 605, that a charge of conspiracy is merely an aggravation of the alleged wrongful act. The Ammons court also observed the wrongful acts alleged to have been perpetrated by defendants are the gist of an action based on a civil conspiracy theory. (Ammons, 34 Ill. App. 2d at 465, 181 N.E.2d at 605.) This ruling also does not answer the question raised.

Contrary to OCF’s contention, a claim of civil conspiracy must be based on an independent actionable tort, this court agrees with the third district ruling in Vance v. Chandler (1992), 231 Ill. App. 3d 747, 750, 597 N.E.2d 233, 236, which rejected that reasoning. Vance relied on a previous third district ruling in Illinois Traffic Court Driver Improvement Educational Foundation v. Peoria Journal Star, Inc. (1986), 144 Ill. App. 3d 555, 494 N.E.2d 939, in which the court observed that in a civil action based on a conspiracy, no cause of action can exist in the absence of an overt, tortious, or unlawful act committed in furtherance of the conspiracy. (Vance, 231 Ill. App. 3d at 750, 597 N.E.2d at 236.) The Vance court concluded this observation supported its holding the alleged overt or unlawful act need not be tortious or otherwise actionable in tort to permit a civil conspiracy cause of action to proceed. Vance, 231 Ill. App. 3d at 750-51, 597 N.E.2d at 236.

The requisite elements for a civil conspiracy claim are: (1) an agreement between two or more persons (2) to participate in an unlawful act or a lawful act in an unlawful manner; (3) an injury caused by defendants; and (4) the overt act was done in furtherance of the common scheme. (Wolf v. Liberis (1987), 153 Ill. App. 3d 488, 496, 505 N.E.2d 1202, 1208.) OCF argues, as the defendants in Vance did, that the unlawful act must be independent tortious conduct. However, as noted in Vance (231 Ill. App. 3d at 750, 597 N.E.2d at 236) no cause of action for- a civil conspiracy can lie in the absence of an overt, tortious, or unlawful act committed in furtherance of the conspiracy. The conjunctive “or” indicates alternatives for concluding a conspiracy existed and not cumulative requirements for finding a conspiracy existed.

A civil conspiracy, if properly pleaded, is actionable. The existence of a conspiracy can be inferred if defendants pursue the same objective by common means with one party performing one part and another performing another part. (Forkin v. Cole (1989), 192 Ill. App. 3d 409, 427, 548 N.E.2d 795, 807.) Adcock properly alleged a claim of civil conspiracy against OCF.

B. Fraudulent Misrepresentation or Fraudulent Concealment

OCF argues even if a claim based on civil conspiracy is actionable, Adcock failed to properly plead any cause of action. In this case Ad-cock’s pleadings alleged defendant Unarco Industries, Inc., employed the deceased without warning him of the risks associated with exposure to asbestos and defendant Johns Manville, Incorporated, sold asbestos without warning of the dangers associated with asbestos. These actions represent wrongful acts in furtherance of the conspiracy in which OCF allegedly participated. OCF finally contends that while Adcock’s complaint appears grounded in fraudulent misrepresentation or concealment, the allegations are insufficient.

1. Waiver

Adcock concedes a party which has a default judgment entered against it can still appeal based on the alleged insufficiency of the pleadings. (Dillman v. Dillman (1951), 409 Ill. 494, 499, 100 N.E.2d 567, 570.) He nevertheless argues OCF should not be permitted to challenge the sufficiency of the pleadings because the trial judge entered the default judgment against it for its willful failure to obey a court order.

We reject this contention. (In re Tally (1991), 215 Ill. App. 3d 385, 390-91, 574 N.E.2d 1262, 1265.) At the trial level, OCF argued the pleadings were insufficient. After Adcock amended his pleadings, the trial judge rejected OCF’s further objections. OCF has not waived review of this issue. Moreover, a plaintiff’s failure to plead a legally cognizable cause of action is a grave error and can be raised for the first time on appeal. See Swager v. Couri (1979), 77 Ill. 2d 173, 185, 395 N.E.2d 921, 925; Krachock v. Department of Revenue (1949), 403 Ill. 148, 153, 85 N.E.2d 682, 685.

2. Merits

OCF contends Adcock’s pleadings do not sufficiently set out the allegedly wrongful acts upon which the conspiracy allegation must rely, so the complaint should not have been permitted to stand. It directs us to Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580, arguing Adcock failed to properly allege a claim for fraudulent misrepresentation. We conclude, as an alternative to finding Adcock’s pleading sufficiently set out underlying wrongful conduct to support a civil conspiracy claim, the pleadings also could be viewed as sufficiently outlining a claim based on fraudulent misrepresentation as the underlying tortious conduct of the civil conspiracy claim.

The elements of fraudulent misrepresentation are (1) a false statement of a material fact; (2) knowledge or belief by the party making the statement that it is false; (3) intention to induce the other party to act; (4) the other party acts in reliance on the truth of the statements; and (5) the other party incurs damage as a result of its reliance on the statements. Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601; Board of Education, 131 Ill. 2d at 452, 546 N.E.2d at 591.

Adcock alleged the various defendants (1) positively asserted it was safe for people to work with, and in close proximity to, asbestos; (2) suppressed information about the harmful effects of asbestos; and (3) caused the workers to remain ignorant of the harmful effects of asbestos. Adcock also alleged the various defendants’ acts were the proximate cause of decedent’s death.

OCF correctly notes when fraudulent misrepresentation is alleged, the pleadings must contain specific allegations of fact from which fraud is the necessary or probable inference. (Board of Education, 131 Ill. 2d at 457, 546 N.E.2d at 593.) However, contrary to OCF’s contention, Adcock’s allegations sufficiently informed it of the allegations against which it had to defend.

In Board of Education (131 Ill. 2d at 436, 546 N.E.2d at 583-84), the plaintiffs, 34 school districts, sought recovery from manufacturers of asbestos-containing materials for the costs of removing the materials from their school buildings. Some plaintiffs alleged defendants fraudulently misrepresented the dangerous nature of their products.

The Illinois Supreme Court concluded plaintiffs did not allege sufficient facts to support the fraud claims. The complaint failed to indicate who was involved in the fraud, what specific representations were made, to whom they were made, and how these representations induced plaintiffs to act. In addition, the allegations were also weak respecting the timing of the alleged events. Board of Education, 131 Ill. 2d at 457-58, 546 N.E.2d at 594.

OCF claims Adcock’s pleadings suffer the same deficiencies, so the cause of action should have been dismissed. OCF specifically alleges Adcock’s pleadings do not (1) identify what representations were made by whom, or (2) state when the misrepresentations were made by each defendant.

Contrary to OCF’s view, it was sufficiently informed Adcock alleged a conspiracy on the part of the various defendants to misrepresent the fact that working with asbestos was unsafe by (1) failing to inform the workers of the known dangers and (2) affirmatively representing such work posed no health risks. The allegations sufficiently informed OCF this claim was being raised.

OCF next argues Adcock did not sufficiently outline when the actions for which it was allegedly liable occurred. We disagree. OCF was on sufficient notice. The activities for which it could have been liable were limited to the time period before the deceased stopped working at the Bloomington plant. Adcock’s pleadings alleged (1) before decedent worked at the Bloomington plant, “[defendants *** knew that exposure to asbestos caused serious disease and death”; (2) defendants knowingly conspired to assert it was safe for people to work with, and in close proximity to, asbestos; (3) defendants suppressed information about the harmful effects of asbestos; (4) one or more of the defendants refused to warn their employees about the hazards of asbestos; and (5) agreed in writing not to disclose the results of research regarding effects of exposure to asbestos unless the results suited their interests.

Board of Education (131 Ill. 2d at 459, 546 N.E.2d at 594) is distinguishable because the court there noted plaintiffs had raised a conspiracy separate from the fraud count. In addition, plaintiffs had not challenged the propriety of dismissing that count on appeal. The court noted to properly plead a claim for fraudulent misrepresentation, a plaintiff must at least plead with sufficient particularity facts establishing the elements of fraud, including “what misrepresentations were made, when they were made, who made the misrepresentations and to whom they were made.” (Board of Education, 131 Ill. 2d at 457, 546 N.E.2d at 594.) The pleading was insufficient because it attributed the alleged unlawful acts to numberless and nameless agents, servants and employees of unspecified defendants. (Board of Education, 131 Ill. 2d at 458, 546 N.E.2d at 594.) In this case, the unlawful acts allegedly committed by defendants and included in Adcock’s pleadings adequately stated a cause of action for fraudulent misrepresentation.

Fahner (88 Ill. 2d at 310, 430 N.E.2d at 1009) provides guidance on evaluating the sufficiency of pleadings when the cause of action is based on a conspiracy claim, albeit in a case alleging conspiracy to fix prices in violation of the State anti-trust statute. The Illinois Supreme Court recognized the difficulty in requiring too much specificity in pleading such a claim. It stated, “evidence need not be laid out in the complaint, only the ultimate fact that the defendants agreed.” (Fahner, 88 Ill. 2d at 310, 430 N.E.2d at 1009.) The Fahner court concluded the trial, not the pleadings, was the proper place to introduce evidence of how and why the illegal agreement was made.

The Illinois Supreme Court has also indicated “[t]he exact role of a particular defendant cannot always be spelled out in the complaint,” and often circumstantial evidence developed at trial is the only mechanism for establishing the conspiracy. (Scott, 91 Ill. 2d at 146, 435 N.E.2d at 467.) The Scott court noted, “[conspiracies by their very nature do not permit plaintiffs to allege all the details of the defendants’ conduct. Such actions are often purposefully shrouded in mystery.” Scott, 91 Ill. 2d at 145-46, 435 N.E.2d at 467; see also Young v. Hansen (1969), 118 Ill. App. 2d 1, 7, 249 N.E.2d 300, 303.

The complaint sufficiently informed OCF of the acts amounting to fraudulent misrepresentation which it allegedly committed in pursuance of the conspiracy.

C. No Products Liability Allegations

OCF also contends Adcock’s pleadings did not state a products liability cause of action against it because there was no allegation that deceased was exposed to products it was involved in manufacturing. (See Kozak v. Armstrong World Industries, Inc. (1991), 213 Ill. App. 3d 1061, 1065-66, 572 N.E.2d 279, 281-82.) We agree Adcock did not raise such a claim.

D. Conclusion

A civil conspiracy claim need not be based on an independent claim of tortious conduct. Adcock’s pleadings properly alleged wrongful conduct by OCF and a conspiracy between OCF and additional defendants to fraudulently misrepresent known facts related to health risks associated with working with asbestos. The trial judge properly denied OCF’s motion to dismiss the counts based on civil conspiracy.

III. Propriety Of Default Judgment

OCF finally contends the trial judge abused his discretion by entering the default order against it on the issue of liability and leaving damages as the only issue remaining for the jury. OCF advances two arguments on this point: (1) Adcock did not establish the requested witnesses possessed firsthand knowledge about whether a conspiracy existed; and (2) imposing a default judgment exceeded the proper sanction for its failure to produce the witnesses.

A. Did Plaintiff Demonstrate the Witnesses Sought Could Provide Relevant Testimony?

Application of Rule 237(b) is under the control of the trial court, and the rule is appropriately employed where there was sufficient evidence to establish its use was intended to elicit probative testimony, rather than for harassment. (Johnson v. Owens-Corning Fiberglas Corp. (1992), 233 Ill. App. 3d 425, 434, 599 N.E.2d 129, 135.) We agree with the trial judge’s conclusion the presence of these witnesses was essential to Adcock’s ability to prove his claim.

Adcock contends the documents he produced, and his counsel’s offer of proof on what Konzen’s and Boeschenstein’s testimony would be, showed these witnesses were essential to permit him to establish a conspiracy in which OCF participated.

Adcock’s offer of proof and documents submitted as evidence indicated Konzen was present at the Bloomington plant during the period while Unarco employed the deceased. Konzen reviewed the asbestos operation immediately after OCF purchased the plant. The results he received from the survey indicated an “immediate need” for environmental control of asbestos within the plant and a “severe exposure to asbestos fiber” within the plant.

Konzen’s knowledge of what the Unarco employees (such as the deceased) and OCF employees were told regarding the health risks their employment posed was relevant to the conspiracy allegation. Konzen was OCF’s medical director. His knowledge of whether any protections were implemented within the plant was also relevant to Adcock’s allegations.

Adcock directs us to a memorandum Konzen wrote in 1978 as evidence of contact between OCF and additional defendants. The memorandum was written after the Secretary of the Department of Health, Education, and Welfare publicly announced the risks associated with asbestos. Konzen’s internal memorandum discussed how much information should be provided to past and current employees. It indicated he had contacted eight other asbestos suppliers to learn what action they had taken or planned to take.

OCF correctly notes the trial judge ruled, and Adcock’s counsel conceded, that evidence of contact between asbestos suppliers was limited to contact which occurred before the deceased left his employment with Unarco in late 1970. A conspiracy would have had to have existed before this time to be actionable.

However, additional evidence supports the trial judge’s conclusion Konzen was a relevant and necessary witness. There was evidence he participated in the conspiracy of silence regarding the health hazards imposed on workers exposed to asbestos. On April 22, 1968, Konzen received an internal memorandum from John Vyverberg which asked Konzen’s view about whether it would be “wise from a liability protection point of view to indicate that there might be ‘potential hazards.’ ” It proceeded to indicate the company’s approach to date had been to indicate that “ ‘all medical research to date indicates no hazard to health.’ ”

On March 25, 1970, shortly before OCF bought the Bloomington plant, Konzen responded to an inquiry of another OCF employee who was considering attending an asbestosis school. Konzen wrote to the employee it would be unwise for an OCF employee to attend the school because attendance might give “tacit approval” to the physician who was attempting to publicize the health effects of asbestos. Konzen’s testimony would also have been relevant to describe any interaction OCF’s medical department had with other asbestos suppliers’ medical departments.

Adcock relies on a document which indicates Konzen knew the deceased had been exposed to asbestos during the period OCF operated the plant. Adcock filed a memorandum which Konzen had received which discussed the number of people who were exposed at the plant. The author noted, “there are probably another 109 people who were involved with the stainless steel sink operation which was in the same building and would have had general exposure to asbestos in the air.” However, this document indicates it was received May 1, 1978, eight years after the deceased’s employment at the plant ended. Hence, it could not have been viewed as evidencing what OCF knew in 1970.

Additional documents, however, support Adcock’s contention. Konzen received a memorandum from OCF employee Kern in September 1970 indicating it was preferable the company not start using warning labels on products affected by asbestos. Kern noted he would like to delay such a procedure. This document, too, indicates company representatives were not forthright about information they possessed regarding the dangers of asbestos, and were callously indifferent to the health risk posed to employees. Konzen knew this was the attitude of management representatives within OCF.

Adcock also contends Boeschenstein’s testimony was essential to its case. Boeschenstein was formerly chairman of the board, president, senior vice-president, salesman, and the son of the former president of OCF. He was in a unique position to testify about OCF’s activities during his tenure with the company over four decades. Adcock also contends he could have authenticated documents signed by the senior Boeschenstein.

Adcock directs us to an observation made about the senior Boeschenstein in a ruling by the Virginia Supreme Court which affirmed a punitive damages award against OCF. In Owens-Corning Fiberglas Corp. v. Watson (1992), 243 Va. 128, 146, 413 S.E.2d 630, 641, the court stated:

“The evidence shows that since 1942, long before Watson handled Kaylo, Harold Boeschenstein, the president of Owens-Coming during the time period relevant to this case, knew the health hazards associated with the inhalation of asbestos fibers; that he embarked upon a strategy to use this information to benefit Owens-Corning during negotiations with its labor unions; and that, when necessary, he concealed this information to promote the sales of the Kaylo product.”

Adcock also contends Boeschenstein would have testified concerning the interaction between OCF and Unarco when OCF assumed Unarco’s asbestos operations at the plant. Adcock further maintains he was prevented from presenting the best evidence of what the testimony of these witnesses would have been because OCF refused to produce them.

Boeschenstein served in several executive capacities for OCF during his tenure. He would have known whether OCF and other asbestos companies communicated, either in writing or verbally, about asbestos and its harmful effects. His presence, and testimony, at trial, would likely have either supported Adcock’s claim or defeated it.

OCF contends requiring the presence of these witnesses poses a “deleterious effect *** crippling [its business].” It relies on Soto v. E. W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 889, 452 N.E.2d 572, 579, for its contention the trial judge erred because Adcock did not establish a reasonable relationship between the information allegedly withheld and the pleadings. However, this court indicated in a previous ruling that “[n]either plaintiff nor the trial court was required to accept defendant’s denials that Konzen and Boeschenstein knew anything.” Johnson, 233 Ill. App. 3d at 435, 599 N.E.2d at 136.

OCF contends no evidence was presented which indicated it agreed with other asbestos companies to conceal information or to mislead the employees. It argues no evidence of meetings with representatives of other companies to discuss dangers of asbestos, no evidence of telephone calls, and no letters from OCF officials were presented to support Adcock’s conspiracy claim. Soto provides no basis for concluding the default judgment was error. As outlined by Soto, the documents filed by Adcock, combined with counsel’s offer of proof regarding Adcock’s reasons for seeking testimony by Konzen and Boeschenstein, indicated testimony by these witnesses was essential to Adcock’s ability to present evidence of the alleged conspiracy.

Conspiracies by their nature do not permit plaintiffs to allege all the details of the defendants’ conduct, and must often be proved from inferences drawn from circumstantial evidence. (Scott, 91 Ill. 2d at 145-46, 435 N.E.2d at 467; see Young, 118 Ill. App. 2d at 7, 249 N.E.2d at 303.) Adcock presented a sufficient basis for the trial judge’s conclusion Konzen and Boeschenstein could provide pertinent information related to Adcock’s cause of action.

B. Was Sanction Excessive?

Imposing sanctions pursuant to Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) is within the trial judge’s discretion and such a ruling will not be disturbed absent an abuse of that discretion. Johnson, 233 Ill. App. 3d at 434, 599 N.E.2d at 135.

OCF directs us to the supreme court’s ruling in People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 196-97, 226 N.E.2d 6, 16, for its contention the sanction imposed was excessive. Unlike Bua, Adcock was seeking the testimony of two employees of OCF. In Bua (37 Ill. 2d at 193-94, 226 N.E.2d at 14), plaintiff sought the production of voluminous records which would require substantial expense to produce. This production would be both financially expensive and would be labor-intensive.

OCF failed to show how requiring the presence of these witnesses would pose an enormous detriment to the company. We also reject its argument the trial judge erred by noting it had the burden to show the witnesses were not necessary. Although not a formal burden, OCF provided no reasonable basis for the trial judge to conclude the presence of Konzen and Boeschenstein was not necessary for Adcock to establish his claim, or that their presence would cause a deleterious effect on the operation of OCF.

Moreover, the trial judge did not make a hasty default ruling against OCF. The judge heard arguments and initiated questions to both parties. He then recessed for lunch and asked OCF to reconsider its refusal to produce Konzen and Boeschenstein. When court reconvened, the trial judge’s first inquiry was whether OCF was adhering to its position of refusing to produce the witnesses. When OCF indicated it was, the trial judge stated:

“I’m really reluctant to do this because I think cases ought to be resolved [on their] merits, but I think that the rule is clear in that it requires the production of these witnesses, and I think there’s been a showing their testimony is relevant.”

This observation does not represent a ruling made absent serious, prior consideration. The trial judge did not abuse his discretion by entering the default judgment against OCF regarding liability. OCF consciously chose to disobey the trial judge’s ruling, and suffered an appropriate consequence.

IV. Conclusion

Adcock’s pleadings were sufficient to permit his cause of action for civil conspiracy to proceed. The pleadings sufficiently outlined the ■wrongful conduct underlying the civil conspiracy claim. In the alternative, Adcock’s allegations sufficiently outlined a claim for civil conspiracy based on fraudulent misrepresentation by OCF and additional defendants. Finally, the trial judge did not abuse his discretion in ordering OCF to produce two witnesses pertinent to the alleged conspiracy, or by imposing a default judgment against OCF for its refusal to produce the witnesses.

Affirmed.

COOK and LUND, JJ., concur.