author: JUSTICE RAKOWSKI

text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. ALLIANZ UNDERWRITERS INSURANCE COMPANY et al., Defendants (Harbor Insurance Company et al., Defendants-Appellees).
    First District (6th Division)
    No. 1 — 91—3431
    Opinion filed December 11, 1992.

      Sorling, Northrop, Hanna, Cullen & Cochran, of Springfield, Kevin M. Forde, Ltd., of Chicago, and Anderson, Kill, Click & Oshinsky, of New York, New York (Lester 0. Brown, Stephen R. Kaufmann, and Kevin M. Forde, of counsel), for appellant.

      Querrey & Harrow, Ltd. (Ellyn B. Dorf, Victor Piekarski, Michael Re-sis, and Timothy J. Fagan, of counsel), and Haskell & Perrin (Stephen Son-derby, Mary Beth Denefe, and Eileen N. Miller, of counsel), both of Chicago, for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This appeal arises from a declaratory judgment action brought by Central Illinois Public Service Company (CIPS) regarding liability coverage under two excess liability policies issued by Harbor Insurance Company (Harbor) and one policy issued by Columbia Casualty Company (Columbia). Harbor and Columbia filed motions for partial summary judgment which the trial court granted, finding that policies Nos. 126716, 127532, and RDX 1864547 did not provide liability coverage for the investigation, remediation, and prophylactic costs incurred and to be incurred by CIPS as a result of the environmental damage arising from its former gas manufacturing plant in Taylor-ville, Illinois, based upon the pollution exclusion found in these policies. The trial court also ruled that the partial summary judgment order was final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). CIPS has appealed, raising the issue of whether the pollution exclusion provision in Harbor’s and Columbia’s excess liability policies bars coverage to CIPS for damages at the Taylorville site.

The Taylorville facility was purchased by CIPS in 1912. The plant ceased operations in 1930 and was sold in 1961. In October of 1985 the release of water gas tar was discovered at and around the Taylor-ville site. CIPS acknowledged that it was the responsible party pursuant to section 22.2(f)(1) of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. IIIV2, par. 1022.2(f)(1)). Under this provision, a former owner or operator is held strictly liable for the release or threat of release of a hazardous substance such as water gas tar. As a result of this occurrence CIPS was exposed to substantial liability. However, Harbor and Columbia denied coverage. In August 1987 CIPS filed a complaint seeking a judgment declaring, inter alia, the respective rights and obligations of CIPS, Harbor and Columbia regarding the alleged environmental damage at and around the Taylor-ville site. Harbor moved for partial summary judgment, asserting that the policies contained “an absolute pollution exclusion” which barred coverage for any damages arising from pollution. Because Columbia’s policy No. RDX 1864547 provides coverage excess to Harbor’s policy No. 126716 and incorporated its provisions, Columbia joined in Harbor’s motion. In response to the motion, CIPS contended that endorsement 2, which contained the relevant exclusion, was ambiguous and was not intended to exclude coverage for “sudden and accidental” pollution damage like that which occurred at the Taylorville site.

The trial court recognized that the language in endorsement 2 was “clumsy and unnecessarily muddled” but found that it barred coverage for damages due to pollution.

CIPS contends that endorsement 2 is ambiguous and was not intended to preclude coverage for sudden and accidental pollution damage like the damage which occurred at the Taylorville site. The language of endorsement 2, which is identical in both policies at issue, provides:

“It is understood and agreed that except insofar as coverage is available to the assured in the underlying insurances as set out in the schedule of underlying policies, this insurance shall not apply to any loss arising out of the contamination or pollution.
Notwithstanding the foregoing, it is understood and agreed that this insurance does not apply to bodily injury, personal injury, or property damage arising out of the discharge, dispersal, release or escape of:
(1) smoke, vapors, soots, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any watercourse or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.
(2) Oil or other petroleum substance or derivative (including any oil refuse or oil mixed with wastes) into or upon any watercourse or body of water, whether or not such discharge, dispersal, release or escape is sudden and accidental, but the exclusion (2) shall apply with respect to operations described as follows: ***.”

CIPS first argues that the phrase “notwithstanding the foregoing” makes endorsement 2 ambiguous. “Notwithstanding” is defined in the dictionary as “without prevention or obstruction from or by,” “in spite of,” or “nevertheless.” (Webster’s Third New International Dictionary 1545 (1986).) CIPS claims that the first paragraph bars coverage for contamination or pollution unless coverage is available through an underlying insurance policy, but the second paragraph excludes coverage if the discharge of pollutants is not sudden and accidental, or for oil discharges into water arising from one of the operations listed even if the discharge is sudden and accidental. Thus, according to CIPS, the effect of the second paragraph of the endorsement beginning with the language “Notwithstanding the foregoing,” which refers to the exclusion in the first paragraph, is to eliminate the “underlying insurance” requirement and replace it with an exclusion where the occurrence is not sudden and accidental. Harbor’s interpretation of the endorsement is that the “sudden and accidental” requirement is in addition to the “underlying insurance” requirement.

CIPS argues that because the endorsement is subject to two interpretations, the language is, at best, ambiguous. Where an exclusionary clause is ambiguous any reasonable interpretation by the policyholder must be adopted. (J G Industries, Inc. v. National Union Fire Insurance Co. (1991), 218 Ill. App. 3d 1061, 1065, 578 N.E.2d 1259; Simioni v. Continental Insurance Cos. (1985), 135 Ill. App. 3d 916, 918, 482 N.E.2d 434.) However, this principle does not require an unreasonable interpretation which would have the effect of invalidating the contract between the parties. J G Industries, Inc., 218 Ill. App. 3d at 1066.

The question of whether a policy is ambiguous is a matter of law, in which the court makes the determination by examining the language at issue in light of the policy as a whole. Thus, the court must construe the policy in its entirety, giving effect to all parts of the policy as is possible, including endorsements. (Management Support Associates v. Union Indemnity Insurance Co. (1984), 129 Ill. App. 3d 1089, 1092-93, 473 N.E.2d 405.) Where the language of the policy is unambiguous, the policy must be understood according to its plain, ordinary and popular meaning. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495, 475 N.E.2d 872; Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App. 3d 790, 796, 388 N.E.2d 1121.

The language of paragraph one of the endorsement at issue states that coverage for pollution or contamination is excluded unless there is coverage provided by an underlying insurance policy listed in the schedule of underlying policies. Construing the language of paragraph two in light of paragraph one, the exception to the pollution exclusion for the discharge, dispersal, release or escape of the substances in subparagraph (1) which is sudden and accidental is only applicable where there is underlying insurance coverage. Harbor’s interpretation of the endorsement which includes the requirements in both paragraphs is a reasonable one.

Although CIPS’ interpretation is different than that of Harbor, the endorsement is not rendered ambiguous simply because there is disagreement as to its meaning. (Katz v. American Family Insurance Co. (1987), 163 Ill. App. 3d 549, 552, 516 N.E.2d 795.) The alternate interpretation must also be reasonable. Because CIPS’ interpretation of the endorsement is that the exclusion in paragraph two eliminates the exclusion in paragraph one, it is not a reasonable one. Only one which preserves the “underlying insurance” requirement of paragraph one would be in accord with the principle that “meaning and effect, if possible, be given to every part of a contract so that one provision is not construed to annul another.” (St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 216, 370 N.E.2d 1058.) Additionally, “an exception to an exclusion should not be interpreted as providing coverage or providing an additional basis for coverage.” (J G Industries, 218 Ill. App. 3d at 1066. See also Qualls v. Country Mutual Insurance Co. (1984), 123 Ill. App. 3d 831, 834, 462 N.E.2d 1288.) We thus conclude that the language of endorsement 2 was not ambiguous.

CIPS also argues that the term “underlying insurance” in the endorsement is ambiguous and that its self-insured retention (SIR), which provides pollution coverage, operates as underlying insurance. CIPS supports this argument with reference to the “Advice of Insurance” document and a memorandum by Harbor’s underwriter, Hall Wilson. However, because we conclude that there is no ambiguity in the policy at issue, any evidence beyond the four comers of the policy should not be considered. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203; Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 470, 452 N.E.2d 49.) What is controlling is the insurance listed in the “Schedule of Underlying Policies” as stated in the first paragraph of the endorsement. CIPS’ self-insurance is not among the policies listed in this document.

CIPS next contends that Harbor never interpreted endorsement 2 as an absolute pollution exclusion and failed to alert CIPS to the fact that the scope of coverage for pollution was reduced. CIPS relies on such evidence as a memo from Mr. Wilson and Ms. Cromer as well as the deposition testimony of Mr. Wilson as evidence that the reduction in coverage was never communicated. However, its argument fails for two reasons. First, CIPS has provided no authority to support its position that Harbor had any duty to alert CIPS to the change other than the language of the endorsement. (See Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 308, 393 N.E.2d 1223.) The second flaw in CIPS’ argument is that it is supported with extrinsic evidence which is not applicable where the language of the policy is not ambiguous. See Cincinnati Insurance Co. v. Miller (1989), 190 Ill. App. 3d 240, 244, 546 N.E.2d 700; Price, 116 Ill. App. 3d at 470.

CIPS further contends that under “industry-drafted” absolute pollution exclusions, it would not be excluded from coverage at the Taylorville site. CIPS argues that because other decisions have considered the contemporaneous statements of the insurance industry in determining that the exclusion for “sudden and accidental” pollution should be construed to provide coverage for long-term unintentional pollution, this court should also do so. According to CIPS’ argument, if we were to consider this evidence, CIPS would not be barred from coverage by endorsement 2. However, CIPS’ argument and its citation of authority are misplaced. CIPS is not precluded from coverage because the pollution at the Taylorville site was not sudden or accidental but because CIPS did not meet the underlying insurance requirement of the endorsement.

CIPS’ final contention is that, even if endorsement 2 is construed as not providing coverage, CIPS has coverage under exclusion (h) of policy No. 127532. Although CIPS argues that exclusion (h) overrides endorsement 2, Illinois law holds to the contrary that where the provisions of a policy and an attached endorsement conflict, the terms and conditions of the endorsement control and supersede the policy provisions. G.E. Mathis Co. v. Centennial Insurance Co. (1980), 80 Ill. App. 3d 610, 615, 400 N.E.2d 621; Metro Inter-Insurance Exchange v. Anthony (1971), 1 Ill. App. 3d 612, 616, 275 N.E.2d 296.

Accordingly, for the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    ARTHUR B. MENDELSON, Plaintiff-Appellant and Cross-Appellee, v. BEN A. BORENSTEIN AND COMPANY, Defendant-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 1 — 91—0645
    Opinion filed December 14, 1992.

      Katz, Randall & Weinberg, of Chicago (Jeffrey H. Bunn, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Arthur B. Mendelson filed this suit to recover damages against defendant Ben A. Borenstein & Company based on defendant’s alleged breach of the parties’ construction contract. The circuit court of Cook County entered summary judgment against plaintiff and simultaneously denied plaintiff leave of court to file a third-amended complaint. Plaintiff filed a motion for reconsideration which the circuit court denied. Defendant thereafter filed a petition for sanctions against plaintiff pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). Defendant’s petition was denied. Plaintiff appeals from the award of summary judgment and the court’s refusal to permit plaintiff to file a third-amended complaint. Defendant cross-appeals from the denial of his petition for sanctions. We affirm.

On March 20, 1989, plaintiff filed his initial breach of contract action against defendant relating to defendant’s construction of a strip shopping center at the corner of Madison Street and Central Avenue in Chicago. After the grant of various motions to dismiss, plaintiff filed a second-amended complaint on November 3,1989.

Plaintiff’s second-amended complaint alleges that in 1982, the property in question was improved with a building which was destroyed by fire. After the fire, the debris from the destroyed building was dropped into the previous structure’s basement. It is undisputed that both parties knew of the rubbled condition of the property.

On September 17, 1984, plaintiff entered an oral contract with defendant for the construction of a strip shopping center on the property. The parties thereafter drafted a written contract confirming the material terms of their oral agreement. The parties never signed the contract but have, according to plaintiff, governed themselves in accordance with its specifications and requirements.

Section 12.1.1 of the agreement defined a “Change Order” as “a written order to the Contractor signed by the Owner and the Architect, issued after execution of the Contract, authorizing a change in the Work or an adjustment in the Contract Sum or Contract Time.” “Work” to be performed by the contractor was defined as “the completed construction required by the Contract Documents,” which in turn consisted of, among other matters, the architect’s plans and specifications.

The specific paragraphs of plaintiff’s second-amended complaint relevant to this appeal are the following:

“6. At all times relevant ***, it was a material express term of the parties’ contract, that [defendant] would use its best skill and judgment in following the plans and specifications drawn for the project, and would cooperate with the architect in furthering the interests of [plaintiff] throughout the course of completion of the project.
7. Notwithstanding [defendant’s] express duties described above, [defendant] did materially breach such duties in unilaterally deviating from [the] Project’s] plans and specifications, as they pertained to footing and foundation excavation, without the approval of the architect as required under Paragraph *** of the General Conditions of the Contract.
8. More specifically, upon discovering the nature and extent of the poor soil conditions at the Project, [defendant] unilaterally abandoned the Project plans and specifications which *** originally specified that footings would be set at a depth of one foot, eight inches *** and instead, excavated a trench, refilled it with recycled concrete and set the Project footings upon such refilled trench.”

Discovery between the parties included the deposition of Sherwin Braun, the project’s architect, the affidavit of Alvin Frishman, defendant’s project manager, and documents identified by Braun and Frishman. These materials formed the basis of defendant’s summary judgment motion.

Braun testified that he and defendant were familiar with one another from other projects and that defendant introduced his firm to plaintiff. Braun learned that plaintiff and defendant were also very familiar with one another.

Braun testified that his firm entered a contract with plaintiff fdr Braun’s firm to perform architectural services. These services included developing specifications for the building, for which Braun hired a structural engineering firm, creating contract documents for construction, and observing the construction process, during which Braun was to advise and consult with plaintiff and served as his representative. Plaintiff never complained about the specifications as originally drawn.

All parties knew of the rubbled condition of the property. Prior to construction, the parties contemplated that the footings may have to be changed because the extent of the rubble was unknown. The construction plans were drawn with the footings at a standard four feet below “zero zero.” During the construction process, it became clear to all parties that the footings could not be placed as specified in the initial plans. A meeting was accordingly held at defendant’s offices. Plaintiff, Braun, defendant and a soil engineer attended the meeting. The parties discussed various options, including removing the rubble, compacting all the rubble, lowering the footings to virgin soil, and installing compacted fill where the footings were to be placed. All of these options, however, were determined to be prohibitively expensive.

The soil engineer recommended excavating a five-foot trench down to virgin soil, filling it with recycled concrete, and placing the footings on the concrete. Braun contacted his structural engineer, who approved the solution. Braun considered this option to be the appropriate solution and would have recommended another course of action if he thought otherwise. Defendant proceeded with the placement of the footings in accordance with the meeting.

Frishman’s affidavit corroborates Braun’s testimony in all material respects. All parties knew that the rubbled condition would have to be treated during the construction process. At the meeting held to address the problem, options were discussed, and one was selected: A five-foot-wide trench would be dug to virgin soil, with the trench being filled with recycled concrete. The footings would be placed on the concrete. Plaintiff, Braun and the structural engineer specifically approved this method.

On October 11, 1984, Frishman sent a letter to plaintiff confirming this agreement, and he sent a copy of the letter to the architect. Defendant then carried out the agreed solution. Plaintiff and his architect observed the work in progress. The architect issued a “Certificate of Substantial Completion” on January 16, 1986.

In response to defendant’s motion, plaintiff submitted his own affidavit wherein he states that he was familiar with defendant from prior dealings and introduced to the architect by defendant. During the construction process, plaintiff learned from defendant that the foundations could not be set as originally specified in the written contract. Based on defendant’s advice that a soil engineer would assist in deciding the best method of setting the foundations, plaintiff authorized defendant to obtain the services of a soil engineer.

In October 1984, a meeting was held between plaintiff, defendant and the soil engineer; the architect may not have been present. At the meeting, plaintiff was advised that the most cost effective way of dealing with the problem would be to excavate a trench and fill it with concrete. Plaintiff relied on this advice and had insufficient knowledge himself to know the propriety of the proposed solution. Plaintiff never sought the advice of his architect. As with the problem associated with the footings, plaintiff relied principally on defendant and not his architect when other problems arose.

At the October 24, 1990, hearing on defendant’s summary judgment motion, defendant argued that plaintiff consented to any deviation from the contract’s plans and specifications as well as the procedure for effecting such deviations. Thus, plaintiff’s allegation that defendant “unilaterally” deviated or abandoned the specifications was without merit. Independently, defendant argued that res judicata barred plaintiff’s action. On this matter, defendant argued that plaintiff’s consent to a judgment in an action by defendant on a promissory note representing the unpaid contract price amounted to res judicata on the issue of defendant’s performance.

The circuit court granted defendant’s motion for summary judgment. The court found that no written contract existed and that plaintiff agreed to the manner in which defendant handled the rubbled condition. After the court orally indicated how it would rule, plaintiff orally moved for leave of court to file a third-amended complaint alleging defendant’s failure to perform in a workmanlike manner. The court, although recognizing its discretion to allow the amendment, found no evidence to support plaintiff’s position. Leave of court, therefore, was denied. Plaintiff never tendered an amended complaint to the court, and no such complaint is in the record.

On November 21, 1990, plaintiff filed a motion for reconsideration, which provided in its entirety:

“MOTION FOR RECONSIDERATION Now comes the plaintiff *** and moves this Honorable Court to reconsider its Order of October 24, 1990, granting the defendant’s motion for summary judgment and further, moves this Honorable Court for leave to file a memorandum in support therefor, within fourteen (II) days of the hearing of the instant motion.’’ (Emphasis added.)

On November 28, 1990, defendant objected to the jurisdiction of the court to hear plaintiff’s motion. Defendant asserted that the motion did not qualify as a “post-trial” motion and, therefore, the court lost jurisdiction 30 days following the grant of summary judgment. On December 4, 1990, the court ordered that plaintiff be allowed to file a reply to defendant’s objection. The matter was continued until January 11,1991.

On January 11, 1991, the circuit court overruled defendant’s objection to jurisdiction, set a hearing on plaintiff’s motion to reconsider and ordered that no further briefs be filed. The transcript of this hearing is not in the record.

On February 5, 1991, the court denied plaintiff’s motion for reconsideration. Plaintiff filed his notice of appeal on February 19, 1991.

On February 28, 1991, defendant filed a petition for sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137). Defendant based his petition on plaintiff’s failure to investigate his claim that defendant’s deviation from the written contract was “unilateral.” Defendant contended that an investigation would have revealed to plaintiff that, contrary to his complaint, both he and his architect approved of defendant’s deviation from the plans. The circuit court denied defendant’s petition for fees on April 19, 1991. Defendant has pursued a cross-appeal from this denial.

Before addressing the merits of plaintiff’s appeal, we must address defendant’s argument that we lack appellate jurisdiction. In support of its argument, defendant contends that plaintiff’s motion for reconsideration is, as a matter of law, fatally deficient under section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). Defendant particularizes this deficiency by noting that the motion, while entitled “Motion for Reconsideration” and requesting such relief, fails to articulate any grounds to warrant the grant of such relief. Relying on Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 549 N.E.2d 1262, and Beck v. Stepp (1991), 144 Ill. 2d 232, 579 N.E.2d 824, defendant argues that this defect denies “post-judgment” motion status to plaintiff’s motion. Defendant accordingly contends that, as the motion did not extend the 30-day time limit in which to file a notice of appeal from a final judgment of the circuit court (see 134 Ill. 2d R. 303(a)), plaintiff’s present appeal is untimely. We disagree.

Section 2 — 1203 of the Code of Civil Procedure governs post-judgment motions in nonjury cases:

“§2 — 1203. Motions after judgment in non-jury cases (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment ***, file a motion for a rehearing, or a retrial, or modification of the judgment, or to vacate the judgment or for other relief.
(b) A motion filed in apt time stays enforcement of the judgment.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203(a).
Rule 303(a) governs when the notice of appeal must be filed:
“(1) Except as [not relevant here], the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.” 134 Ill. 2d R. 303(a)(1).

Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 549 N.E.2d 1262, and Beck v. Stepp (1991), 144 Ill. 2d 232, 579 N.E.2d 824, are the two most recent supreme court opinions interpreting what constitutes a post-judgment motion for purposes of section 2— 1203 and Rule 303(a)(1). In Andersen, plaintiff’s second-amended complaint was dismissed on March 28, 1985. On April 26, 1985, plaintiff filed in the circuit court a notice of appeal seeking reversal of the circuit court’s order of dismissal and reinstatement of his second-amended complaint. Later that same day, plaintiff filed a motion for leave to file a third-amended complaint. In his motion, plaintiff stated his intention to plead “further allegations, new and distinct from the prior allegations,” which would “state a theory substantively different from the prior allegations” and “cure any defect in the Second Amended Complaint.” The motion alleged that the facts underlying the “new and distinct” allegations were previously “unknown to plaintiff’s attorney.” Andersen, 133 Ill. 2d at 344, 549 N.E.2d at 1263.

Plaintiff subsequently moved to dismiss his appeal, claiming that his motion was “in the nature of a post-trial motion.” The circuit court granted dismissal of the appeal on July 23, 1985. On October 8, 1985, the circuit court denied plaintiff’s motion. On November 6, 1985, plaintiff appealed the circuit court’s March 28 and October 8 orders to the appellate court. Andersen, 133 Ill. 2d at 344, 549 N.E.2d at 1263-64.

On appeal, the appellate court addressed whether plaintiff’s motion to file a third-amended complaint could be considered a valid post-trial motion. The appellate court ruled that it was and that plaintiff’s motion tolled the time in which he was required to file a notice of appeal under Rule 303(aXl). Andersen, 133 Ill. 2d at 344, 549 N.E.2d at 1264.

The supreme court on review vacated the judgment of the appellate court, holding that plaintiff’s motion for leave to amend was not a valid post-judgment motion. To support its holding, the court reasoned:

“In Fultz v. Haugan (1971), 49 Ill. 2d 131, 135-36, this court held a motion for leave to amend a complaint, after dismissal with prejudice, does not extend the time for appeal or the time for filing other motions [citation], because such a motion is not ‘directed against the judgment’ within the meaning of Rule 303(aXl), nor is it encompassed within the relief provided for by section 68.3(1) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 68.3(1) (now Ill. Rev. Stat. 1987, ch. 110, par. 2— 1203(a))), which specifies rehearing, retrial, modification or vacation of judgment, or ‘other relief.’ Fultz, 49 Ill. 2d at 135-36.
The purpose of a post-judgment motion is, after all, to allow the circuit court to review its decisions and, to that end, specificity is required. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 349-50.) Plaintiff’s motion neither requests modification or vacation of the judgment, nor offers any points warranting such. Hence, it is not a valid post-judgment motion.
Even if we were to disregard Fultz, which appears to be controlling authority, our examination of plaintiff’s motion reveals that it is nothing more than a title and an ambiguous prayer for relief with absolutely no substance in between. To call such a document a ‘post-judgment motion’ would be to blindly adhere to nomenclature at the expense of reality. This we refuse to do.” (Emphasis in original.) Andersen, 133 Ill. 2d at 347, 549 N.E.2d at 1264-65.

In Beck v. Stepp (1991), 144 Ill. 2d 232, 579 N.E.2d 824, plaintiff filed a personal injury action arising from an automobile accident against Stepp and Bob Brockland Pontiac GMC, Inc. Brockland filed for summary judgment, which the circuit court granted on April 6, 1988. On April 15, the court received a letter from plaintiff’s counsel:

“On Wednesday, April 6, the Court held a conference call with counsel for the parties pertaining to Brockland’s Motion for Summary Judgment. I understood the Court to announce that it was denying the Motion, but the Order states that the Motion was allowed.
Thank you for your attention to this matter.”

Counsel sent a copy of the letter to both defense attorneys. Beck, 144 Ill. 2d at 236, 579 N.E.2d at 826.

On June 2, 1988, Brockland filed a special and limited appearance contesting the circuit court’s jurisdiction over it and asking the court to decline to take any further action with respect to plaintiff’s claim. The court subsequently entered a nunc pro tunc order amending the April 6 order to reflect that summary judgment was denied, not allowed. Beck, 144 Ill. 2d at 236-37, 579 N.E.2d at 826.

Brockland appealed, and the appellate court dismissed the appeal. On further review, the supreme court addressed the issue of whether plaintiff’s April 14 letter was in substance a post-judgment motion which permitted the court to alter its April 6 order granting Brock-land summary judgment. In holding the letter did not so qualify, the court stated the requirements of a section 2 — 1203 post-judgment motion as follows:

“A post-judgment motion must include a request for at least one of the forms of relief specified in section 2 — 1203. [Citations.] In addition, a post-judgment motion must allege grounds that would warrant the granting of the relief requested. (Andersen v. Resource Economics Corp. (1990), 133 Ill. 2d 342, 347.) Finally, a post-judgment motion must be filed with the clerk of the court, and copies of the motion must be served upon all parties. (134 Ill. 2d R. 104(b).)” Beck, 144 Ill. 2d at 240, 579 N.E.2d at 828.

Despite the absence of language in section 2 — 1203 requiring specificity in post-judgment motions filed thereunder, Andersen and Beck have clearly grafted such a requirement onto section 2 — 1203. We are without authority to deviate from the court’s pronouncements. Nevertheless, we distinguish Andersen and Beck from the instant case. Andersen and Beck were faced with documents which could not reasonably be deemed post-judgment motions. In Andersen, the document in question was a motion for leave to file an amended complaint, while in Beck it was a personal letter to the court. Neither document requested the types of relief contemplated by either Rule 303(aXl) or section 2 — 1203. Consequently, neither document could advance a ground to support relief which was not requested.

In this case, plaintiff’s motion for reconsideration was entitled “motion for reconsideration” and requested such relief. Thus, plaintiff’s motion was the specie of document contemplated by Rule 303(aXl) and section 2 — 1203.

More importantly, plaintiff’s motion requested leave of court to file a supporting memorandum within 14 days of the hearing of the motion. While we know of no reason why plaintiff could not have included his grounds within the motion itself, we believe plaintiff satisfied Andersen’s and Beck’s requirement that specific grounds be alleged in post-judgment motions filed under section 2 — 1203. Plaintiff directly requested leave of court to supply such grounds. Yet, subsequent to plaintiff’s motion, the parties focused on the court’s jurisdiction to hear plaintiff’s motion, not the merits of the motion. This was in response to defendant’s motion challenging such jurisdiction. When defendant’s challenge came up for hearing on January 11, 1991, the court overruled defendant’s objection, set a hearing date on the motion to reconsider and ordered that no further briefs be filed. The transcript of this hearing is not in the record. Thus, we do not know whether plaintiff then informed the court of the grounds supporting his motion. Plaintiff’s motion for rehearing was subsequently denied.

We believe the above record serves to distinguish this case from Andersen and Beck on the matter of specificity. A substantial reason for the court in those cases to find the lack of a valid post-judgment motion was the moving party’s failure to include any specificity in their respective “motions.” Here, plaintiff’s motion requested leave of court to supply such grounds. Subsequently, the court ordered that no further briefs be filed. When plaintiff’s motion came up on the merits, relief was denied. Upon this record, we believe plaintiff satisfied the specificity requirement of Andersen and Beck. We accordingly find that plaintiff’s motion for rehearing constituted a valid post-judgment motion, thereby tolling the time in which his notice of appeal was required to be filed under Rule 303(aXl). Having found jurisdiction, we turn now to plaintiff’s argument that summary judgment was erroneously entered.

Summary judgment shall be entered when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) While the use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.

In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Reviewing courts apply a de novo standard of review when determining the propriety of summary judgment. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 585 N.E.2d 1164; Briggs Manufacturing Co. v. Industrial Comm’n (1989), 212 Ill. App. 3d 318, 570 N.E.2d 1152; Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 567 N.E.2d 1083; General Motors Corp. v. Douglass (1990), 206 Ill. App. 3d 881, 565 N.E.2d 93.

Plaintiff raises three arguments on appeal to advance his claim that summary judgment was improperly granted. First, while no party ever executed the written construction contract, the circuit court erred in finding that defendant was not bound by its terms where such contract reflects the parties’ oral agreement. Second, defendant failed to comply with the written contract’s technical requirements regarding performance and deviations therefrom. Third, a genuine issue of material fact exists on whether plaintiff and the architect “approved defendant’s disputed extracontractual undertakings.”

On appeal, plaintiff makes much of the parties’ alleged written contract. We assume for purposes of this appeal that the parties conformed their conduct to the written contract. We believe, however, this is of no aid to plaintiff.

It has long been Illinois law that strict adherence to a contract’s technical requirements may be waived. (E.g., Chicago & Eastern Illinois R.R. Co. v. Moran (1900), 187 Ill. 316, 58 N.E. 355.) With regard to waiver, we stated in Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991, 994, the following:

“Parties to a contract have the power to waive provisions placed in the contract for their benefit and such a waiver may be established by conduct indicating that strict compliance with the contractual provisions will not be required. [Citation.] An implied waiver of a legal right may arise when conduct of the person against whom waiver is asserted is inconsistent with any other intention than to waive it. [Citation.]
Waiver is either an express or implied voluntary and intentional relinquishment of a known and existing right. [Citation.] The determination as to what facts are sufficient to constitute waiver is a question of law. [Citation.] An analysis of whether there was in fact a waiver of contractual provisions focuses on the intent of the nonbreaching party. If he has intentionally relinquished a known right, either expressly or by conduct inconsistent with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement.”

In this case, the facts are undisputed that the rubbled condition of the property was a known fact by both parties. Rather than address the problem initially, the parties agreed to address it later in the project when the true extent of the problem was discovered. A meeting was subsequently held to address the problem, and a solution was chosen. Defendant implemented the solution, and plaintiff and his architect watched as defendant worked. Upon completion of the project, plaintiff’s architect issued a certificate of substantial completion.

We believe the above facts preclude plaintiff from now claiming that the changes required by the property’s rubbled condition must have been in writing. Clearly, if plaintiff wished for the contract’s technical requirements to have been met, it was incumbent upon plaintiff to demand them prior to defendant’s commencement of the foundation work. Failing defendant’s compliance with such demand, plaintiff could stop the project. Plaintiff’s failure to undertake such conduct constitutes a waiver of the contract’s formal requirements. See also Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867, 381 N.E.2d 1023; Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App. 3d 73, 365 N.E.2d 360; W.H. Stubbings Co. v. World’s Columbian Exposition Co. (1903), 110 Ill. App. 210.

We next address plaintiff’s argument that a triable issue exists as to whether he and his architect approved defendant’s handling of the excavation problem. We find plaintiff’s argument unpersuasive.

Plaintiff’s architect testified in his deposition that he attended the meeting at which options were discussed relative to handling the rub-bled condition of the property. Plaintiff also attended. While plaintiff asserts in his affidavit that his architect did not attend, he qualifies this assertion by stating that such nonattendance was only “to the best of his recollection.” In any event, defendant sent a letter to plaintiff and his architect dated October 11, 1984, which memorialized the agreement. Plaintiff’s architect testified that if a better solution existed to treat the rubbled condition, he would have recommended it.

The undisputed facts show that plaintiff and his architect approved defendant’s handling of the rubbled condition of the property. While plaintiff states in his affidavit that he relied on defendant to make the decision in question and that he has no expertise in such areas, plaintiff and his architect nevertheless allowed defendant to proceed with construction. Again, had plaintiff sought technical compliance with the contract, he should have asked. We do not believe plaintiff can recover damages against defendant where defendant did exactly what plaintiff and his architect approved him to do.

For the above reasons, summary judgment in favor of defendant was proper. Given the result we reach on this issue, we decline to address defendant’s res judicata argument.

We next address plaintiff’s argument that the circuit court erred in denying him leave of court to file a third-amended complaint. After the court orally indicated it would grant summary judgment to defendant, plaintiff orally moved to amend his complaint to assert that defendant failed to perform the excavation work in a workmanlike manner. In denying plaintiff leave to amend, the court recognized that it had authority to permit the amendment pursuant to section 2— 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(g)), but because no testimony supported plaintiff’s new theory, it would decline plaintiff’s request. When plaintiff moved for reconsideration, he limited his motion to the court’s grant of summary judgment. The denial of leave to amend was not addressed. The hearing on plaintiff’s motion for reconsideration was similarly limited to the summary judgment grant. Plaintiff at no time ever submitted a third-amended complaint to the circuit court, and no such complaint is in the record.

Regardless of whether we treat plaintiff’s attempt to amend as brought pursuant to section 2 — 616(a) of the Code of Civil Procedure, which permits amendments “[a]t any time before final judgment *** on just and reasonable terms” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 616(a)), or under section 2 — 1005(g), which permits amendments “[b]e-fore or after the entry of a summary judgment *** upon just and reasonable terms” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(g)), our inquiry is the same: whether the circuit court abused its discretion in denying leave to amend. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211.) This determination requires us to evaluate the following four factors established to address this issue in Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, and adopted by our supreme court (see Loyola Academy, 146 Ill. 2d at 273, 586 N.E.2d at 1215-16): (1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified.

Under the first element, plaintiff’s failure to tender his third-amended complaint or include it in the appellate record significantly diminishes our ability to determine whether the proposed amendment would provide plaintiff with a viable theory against defendant. Indeed, as defendant argues, plaintiff’s omissions constitute a waiver in this court of plaintiff’s right to have the denial of leave to amend reviewed. (Enblom v. Milwaukee Golf Development (1992), 227 Ill. App. 3d 623, 592 N.E.2d 190.) Aside from waiver, on appeal, plaintiff alleges that, “since the defendant’s work was completed, the plaintiff has suffered ongoing, unnatural settlement and subsidence problems in certain areas of his shopping center.” From this fact, plaintiff asserts that a fair inference exists that defendant failed to perform its contractual obligations in a workmanlike manner.

We will not speculate as to whether defendant satisfactorily performed its contractual obligations. It was incumbent upon plaintiff to file with the circuit court the amended complaint containing facts supporting his new theory of recovery. The mere fact of subsidence is neutral in this case in light of the rubbled condition of the property when the construction began. Without supporting facts, plaintiff’s theory of recovery is nothing more than that, a theory. Plaintiff has accordingly failed to show that an amendment to the pleadings would cure the defect in his case. See Regas v. Associated Radiologists, Ltd. (1992), 230 Ill. App. 3d 959, 595 N.E.2d 1223; In re Estate of Hopkins (1991), 214 Ill. App. 3d 427, 574 N.E.2d 230; Wingate v. Camelot Swim Club, Inc. (1990), 193 Ill. App. 3d 963, 550 N.E.2d 665 (all refusing to allow amendment where it would not cure pleading defect).

We consider the second and third elements together. Plaintiff commenced this action on March 20, 1989. Plaintiff filed an initial complaint and two amended complaints. None of these complaints pursued a misperformance theory; however, plaintiff did assert a negligence theory which was subsequently dismissed. Discovery then ensued, including the deposition of plaintiff’s architect. Following this deposition, defendant wrote plaintiff seeking to obtain a voluntary dismissal based on the architect’s testimony. Plaintiff declined and filed no amended complaint. On October 24, 1990, the court awarded summary judgment to defendant, some 18 months after this action was initiated.

It is clear that plaintiff had ample opportunity to change theories, yet chose otherwise. Defendant undertook discovery and defended against plaintiff’s action under one theory. To now allow plaintiff to haul defendant into court again under a different theory would prejudice defendant. This case is beyond the pleading stages. We distinguish on this ground the cases which have permitted amendment under section 2 — 1005(g) because the amendment was sought in the pleading stages. See Loyola Academy, 146 Ill. 2d 263, 586 N.E.2d 1211; Giacalone v. Chicago Park District (1992), 231 Ill. App. 3d 639, 596 N.E.2d 731; Evans v. United Bank (1992), 226 Ill. App. 3d 526, 589 N.E.2d 933.

Regarding timing, while 17 months from when a suit is filed has been held to be a reasonable time in which to seek an amendment (Loyola Academy, 146 Ill. 2d 263, 586 N.E.2d 1211), and while plaintiff's proposed amendment here occurred at 18 months, it again must be noted that this case is beyond the pleading stages. Also, plaintiff has offered no explanation for his failure to include a claim for misperformance. Plaintiff’s failure is particularly significant here because the subsidence problems are not latent. When plaintiff’s negligence count was dismissed previously, plaintiff could have easily amended his complaint to pursue a contract theory alleging unworkmanlike performance. Plaintiff did not do so.

The final element is whether plaintiff ever attempted his amendment previously. As noted, plaintiff has already amended his complaint twice before. Thus, he has had opportunity to add the proposed amendment. (Compare Loyola Academy, 146 Ill. 2d 263, 586 N.E.2d 1211; Giacalone, 231 Ill. App. 3d 639, 596 N.E.2d 731; Evans, 226 Ill. App. 3d 526, 589 N.E.2d 933 (proposed amendment was first real opportunity to amend), with Pegas, 230 Ill. App. 3d 959, 595 N.E.2d 1223 (plaintiff had amended two times before).) For these reasons, we affirm the circuit court’s denial of plaintiff’s motion to amend his complaint.

Regarding defendant’s cross-appeal, we affirm the denial of sanctions. Plaintiff’s theory of recovery was defective from the start. All the parties knew of the rubbled condition of the property and delayed addressing the foundational problems caused thereby until a clearer picture of the problem existed. When that time came, a meeting was held at which the owner was presented with various alternatives. The one selected and approved by the owner allowed the project to proceed without excessive cost or delay.

On appeal, plaintiff asserts that his approval was not a knowing approval; he lacked construction expertise. Thus, he relied on defendant’s expertise and recommendations in approving the foundation work. Plaintiff’s theory of recovery in this case posits that the traditional roles of an architect, owner and general contractor in the typical construction setting were eroded. Plaintiff theorizes that while normally, a general contractor will not be liable for properly performing the contract in accordance with the architect’s specifications, the contractor is liable where it assumes the role of both architect and contractor. Where following such an assumption of duty construction defects occur, the contractor is liable for such defects even where the contractor performs in a workmanlike manner.

Our review of plaintiff’s briefs reveals no authority to support his theory or recovery. Even the facts weigh heavily against plaintiff. The undisputed record shows approval of defendant’s conduct by both plaintiff and his architect. While plaintiff asserts such approvals were not informed, they occurred nonetheless.

Notwithstanding the above discussion, we must affirm the denial of sanctions. The circuit court was presented with plaintiff’s theory and the facts he marshalled to support it. The court exercised its discretion in denying sanctions, and we defer to its ruling. This case was not brought in bad faith as plaintiff apparently has suffered and will continue to suffer unnatural settling. A cause of action may have existed against someone; however, it is not against defendant under the theory presented. We defer to the circuit court’s determination that sanctions are unwarranted in this case.

For the foregoing reasons, the judgments of the circuit court of Cook County granting summary judgment and denying sanctions are affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    CALVIN BOENDER, Plaintiff and Counterdefendant-Appellee, v. CHICAGO NORTH CLUBHOUSE ASSOCIATION, INC., Defendant and Counterplaintiff-Appellant.
    First District (2nd Division)
    No. 1 — 92—0738
    Opinion filed December 15, 1992.

      Mack P. Manning, of Chicago, for appellant.
    Barnett, Bornstein & Blazer, Ltd., of Chicago (Michael S. Blazer, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Counterplaintiff, Chicago North Clubhouse Association, Inc. (Clubhouse), an Illinois not-for-profit corporation, appeals the dismissal of its second amended counterclaim, which alleges that counterdefendant, Calvin Boender (Boender), violated section 9 — 504 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504 (section 9 — 504)) by selling collateral in a commercially unreasonable manner. No other cause of action remains between the parties. The issues raised on appeal include whether (1) the dismissal was procedurally and substantively proper; and (2) a secured creditor is liable to the debtor for the surplus after the sale of property under the facts of this case.

Clubhouse, in its second amended counterclaim count II (second amended counterclaim), pleaded that Boender, a commercial land developer, as purchaser, and Clubhouse, as seller, executed a real estate sale contract for the property located at 1925 West Thome Avenue in Chicago, at a price of $550,000. The parties never closed the deal, however, because of a contract dispute. Nevertheless, Boender assumed exclusive physical possession of the property before September of 1988 without Clubhouse’s permission. On October 10, 1988, Boender allegedly executed a second real estate sale contract, agreeing to sell the property to Unity Church of Chicago (Unity Church) for $950,000.

Boender sued Clubhouse for specific performance of their contract on December 22, 1988. While Boender’s suit was still pending, he acquired a collateral security interest in the property: For payment of $144,039.51, Uptown National Bank of Chicago assigned to Boender the collateral of 100% beneficial interest in a land trust and two notes evidencing Clubhouse’s debt to the bank. The land trust corpus consisted of the clubhouse and realty on Thome.

Boender demanded payment of the notes from Clubhouse in a letter dated April 17, 1989. After Clubhouse failed to pay the $151,960.07, including interest, due under the notes, Boender mailed Clubhouse and its attorney a “Notice of Public Sale of Collateral Under the Uniform Commercial Code,” dated April 25, 1989. Boender scheduled the sale for 10 a.m. on May 8, 1989, at his attorney’s law office in Chicago.

Boender set the following terms of public sale: (1) public bidding, oral or written; (2) each bidder must have deposited a $50,000 cashier’s check with Boender prior to bidding; (3) Boender, as seller, exempted himself from the $50,000 deposit requirement; and (4) the successful bidder must pay the balance of the sale price within 24 hours. Boender published a notice.to this effect in the Chicago Daily Law Bulletin, which ran on April 27 and 28, and from May 1 through May 5.

On May 5, 1989, Clubhouse moved for a temporary restraining order to enjoin Boender from proceeding with the sale because it would violate section 9 — 504. The circuit court denied the motion without prejudice to Clubhouse’s right to challenge the commercial reasonableness of the sale.

At the public sale on May 8, 1989, Boender bid the debt owed him and took title to the property. Clubhouse did not appear at the sale because it did not have $50,000 to deposit prior to bidding. The day after he purchased the property at the UCC sale, Boender caused a trustee’s deed to be delivered to Unity Church. Boender made approximately $800,000 in profit on the transaction.

Clubhouse filed an amended counterclaim against Boender charging a violation of section 9 — 504. Boender’s motion to strike and dismiss the amended counterclaim was granted, but Clubhouse was given 28 days to refile.

Clubhouse filed its second amended counterclaim with leave of court on January 10, 1991. The second amended counterclaim, in addition to pleading the facts first noted, added the following allegations. First, the property involved was unique realty without a known market, and therefore the public notice that Boender provided of its sale was insufficient and violative of his fiduciary duties as a Clubhouse secured creditor. Second, the Chicago Daily Law Bulletin is circulated mainly to lawyers and does not have a known circulation among realtors, brokers or real estate investors; consequently, Boender was obligated to advertise the public sale more widely. Third, notice to a bona fide audience “might well have evoked” interest in the property because the beginning bid of $155,000 was so low. Fourth, because of Boender’s real estate sale contract with Unity Church, he was unable to sell the property to a third party at the public sale without incurring a liability to Unity Church; therefore, Boender was unable to conform the public sale with the requirements of section 9 — 504. Fifth, Boender intentionally used the $50,000 deposit requirement to exclude Clubhouse (which he knew did not have $50,000), from attending the public sale “even as an observer.”

Boender’s motion to dismiss the second amended counterclaim was granted with prejudice, the court finding that Boender’s subsequent sale of the property to Unity Church was separate from the UCC sale.

Clubhouse motioned for a rehearing, which was denied, the court finding the following: (1) Clubhouse could have requested a waiver of the $50,000 deposit requirement at the hearing on the motion for the temporary restraining order, but failed to do so; (2) the notice in the Chicago Daily Law Bulletin was adequate and published; (3) Boender’s subsequent sale of the property was separate from the UCC sale; and (4) a low price obtained at the UCC sale does not in itself establish that the sale was commercially unreasonable.

Clubhouse appeals from the dismissal with prejudice of its second amended counterclaim and the order denying its motion for a rehearing.

I

Clubhouse initially argues that Boender’s motion to dismiss does not identify its procedural basis; however, section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) is referenced in the motion, which Boender acknowledges in his brief. There was no error.

II

Clubhouse next asserts that Boender’s use of a motion to strike followed by a motion to dismiss is a hybrid motion, relying upon Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605, Bejda v. S G L Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464, Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888, and Premier Electric Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360. These cases do not support Clubhouse’s contention. The section 2 — 615 motion, although entitled a motion to dismiss, in reality contained both a motion to strike the pleading and a motion to dismiss, which section 2 — 615 contemplates within its terms, and was considered in two stages. (See 3 R. Michael, Illinois Practice §27.2, at 493 (1989).) The section 2 — 615 motion to dismiss was not an improper hybrid motion.

Ill

The heart of Clubhouse’s contentions is that the second amended counterclaim sufficiently states a cause of action for Boender’s violation of section 9 — 504 of the UCC. The standard of review on appeal from a motion to dismiss a complaint is whether the complaint sufficiently states a cause of action; the merits of the case are not at issue. McCormick v. Kruk (1991), 220 Ill. App. 3d 449, 451, 581 N.E.2d 73.

Clubhouse correctly notes that a section 2 — 615 motion to dismiss admits as true all well-pleaded facts (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 1100, 582 N.E.2d 1362; Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 260, 484 N.E.2d 823) and inferences that reasonably could be drawn therefrom. (Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 190, 478 N.E.2d 603.) Boender responds that a pleading is subject to dismissal if the underlying allegations are insufficient. It is true that a section 2 — 615 motion to dismiss does not admit conclusions of law or fact which are unsupported by allegations of specific facts warranting such conclusions (Groenings v. City of St. Charles (1991), 215 Ill. App. 3d 295, 299, 574 N.E.2d 1316); however, each separate paragraph of a count need not state a cause of action. Only where the entire count fails to state a cause of action should it be dismissed pursuant to section 2 — 615. Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 103, 405 N.E.2d 1256.

Section 9 — 504 provides the secured party the right to sell collateral after default. It imposes two requirements upon the selling secured party: first, “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable”; and second, “reasonable notification” must be sent to the debtor. (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504(3). See 2 J. White & R. Summers, Uniform Commercial Code §25 — 9, at 1214 (3d ed. 1988).) In Illinois, the secured creditor, here Boender, has the burden of proving commercial reasonableness. (Commercial Discount Corp. v. Bayer (1978), 57 Ill. App. 3d 295, 301, 372 N.E.2d 926; General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147, 153, 349 N.E.2d 573.) Commercial reasonableness is normally an issue of fact (Pioneer Bank & Trust Co. v. Mitchell (1984), 126 Ill. App. 3d 870, 873-74, 467 N.E.2d 1011), ill-suited to disposition by dismissal. Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 263, 484 N.E.2d 823.

In the case sub judiee, Clubhouse has adequately pleaded facts underlying its claim against Boender for a violation of section 9 — 504 by selling collateral in a commercially unreasonable manner, and the circuit court’s decision to the contrary was error. Clubhouse claims that Boender conducted a UCC sale in which he sold Clubhouse’s collateral consisting of a beneficial interest in a land trust. Before the UCC sale, Boender had executed a contract to resell Clubhouse’s collateral to a third party, Unity Church, for $950,000. Yet, Boender purchased the collateral at the UCC sale for less than $155,000. The next day he fulfilled his contract with Unity Church, thereby earning a profit of approximately $800,000. Further, Clubhouse claims that the notice of public sale published in the Chicago Daily Law Bulletin was inadequate because it failed to attract potential bidders. For the purpose of the motion, these facts are pleaded sufficiently to be accepted as true. The claim advanced by Clubhouse is that the collateral here was uniquely improved realty and the market solicited (through the Chicago Daily Law Bulletin) was not recognized for such property; that the price secured at the UCC sale demonstrably was not current in the market, witness the real estate contract executed for six times the bid-in price by the secured party, who was both the seller under that contract and the sole bidder at the sale; and that the sale, therefore, was not commercially reasonable.

The mere fact that a better price could have been secured at a sale conducted at a different time or utilizing a different method from that pursued by a secured party is not of itself sufficient to demonstrate that a sale was not made in a commercially reasonable manner, and “[i]f the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his "sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.” (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 507(2).) Nevertheless, where the secured party purchases the collateral at the sale for a price well below the fair market value, a court must closely scrutinize the circumstances surrounding the sale to determine if it was commercially reasonable and not the result of self-dealing. Leasing Service Corp. v. Broetje (S.D.N.Y. 1982), 545 F. Supp. 362, 368; Associates Capital Services Corp. v. Riccardi (D.R.I. 1978), 454 F. Supp. 832, 834; Kobuk Engineering & Contracting Services, Inc. v. Superior Tank & Construction Co-Alaska, Inc. (Alaska 1977), 568 P.2d 1007,1011.

It is well established that the secured party is required to exercise due diligence to sell the collateral for the best price obtainable and to have a reasonable regard for the debtor’s interest. (Dynalectron Corp. v. Jack Richards Aircraft Co. (W.D. Okla. 1972), 337 F. Supp. 659, 663; Savage Construction, Inc. v. Challenge-Cook Brothers, Inc. (1986), 102 Nev. 34, 714 P.2d 573, 574-75; Foster v. Knutson (1974), 84 Wash. 2d 538, 548, 527 P.2d 1108, 1115; Morris Plan Co. v. Johnson (1971), 133 Ill. App. 2d 717, 721, 271 N.E.2d 404.) The court may consider the knowledge or capability of the secured party in examining the circumstances of the sale. (Connex Press, Inc. v. International Airmotive, Inc. (D.D.C. 1977), 436 F. Supp. 51, 56-57, aff’d without op. (1978), 574 F.2d 636; see Associates Capital Services Corp., 454 F. Supp. at 834 (no utilization of industry contracts or use of mailing lists).) Specifically, if potential buyers are identified and not advised of the auction, then there is a breach of duty by the secured party. Savage Construction, Inc., 102 Nev. at 39, 714 P.2d at 576.

In this case, Boender purchased the collateral at the UCC sale for approximately $155,000 when he knew he had an executed contract for sale of that collateral for a price six times the amount that he, the secured creditor and sole bidder, bid in. Indeed, based upon this contract, Boender is alleged to have resold the property the next day for $950,000 thereby receiving nearly $800,000 in profit for himself. We note that if these alleged facts are proven at trial, Boender clearly violated the UCC requirement of commercial reasonableness. This conduct obviously constitutes self-dealing, which is prohibited. Boender, under these alleged facts, was unable to actually sell the collateral to any third party at the public sale without incurring liability to Unity Church on their contract; therefore, he had a vested interest in preventing the sale of the collateral to a third party. It is difficult to imagine a factual situation where self-dealing by the secured creditor is more apparent.

Indeed, most cases in which a sale has been held commercially unreasonable have less egregious facts than those alleged here. For example, in Savage Construction, Inc. (102 Nev. 34, 714 R2d 573), a sale was held commercially unreasonable because the secured creditor had negotiated with a potential purchaser for the sale of its debtor’s collateral before the public sale, but failed to notify that same party of the public sale so that it could bid. The secured creditor purchased its debtor’s collateral at the public sale for $158,000 and subsequently resold it a few weeks later for $193,000 thereby receiving a $35,000 profit. See Savage Construction, Inc., 102 Nev. at 38, 714 P.2d at 574.

Boender’s argument, with which the circuit court agreed, that his UCC sale of collateral was separate and distinct from the subsequent sale, ignores Clubhouse’s claim that the UCC sale, in and of itself, lacked commercial reasonableness by virtue of the fact that the value of the property already had been established by the sales contract in Boender’s possession, revealing the unconscionable disparity between Boender’s knowledge of the property’s market value and his bid.

In addition, Clubhouse alleged that the notice published in the Chicago Daily Law Bulletin was inadequate because the collateral involved was uniquely improved realty and such notice did not reach its market. Where by failing to advertise in a manner that will engender competitive bidding the secured party insures an opportunity for self-dealing, a court must scrutinize the sale closely. (Kobuk Engineering & Contracting Services, Inc., 568 P.2d at 1011; Savage Construction, Inc., 102 Nev. at 36, 714 P.2d at 575.) The ads should be reasonably directed to potential bidders in order to encourage interest. (Foster, 84 Wash. 2d at 549, 527 P.2d at 1114; Leasing Service Corp., 545 F. Supp. at 368; Connex Press, Inc., 436 F. Supp. at 55.) Where no one attends the public auction except the secured creditor, improper notice of the public auction may be inferred. Savage Construction, Inc., 102 Nev. at 38, 714 P.2d at 575.

In the present case, the quality of the advertisement is questionable given the alleged surrounding circumstances. This case is closely analogous to Kobuk Engineering & Contracting Services, Inc. (568 P.2d 1007). In that case, the court held a sale commercially unreasonable where the secured party, which was the sole bidder at public auction, purchased equipment for $10,000 and then resold it six weeks later for $25,000. The secured party had posted notices of the sale in public offices. The court closely scrutinized the sale because the secured party there had the opportunity for self-dealing. The court also held that the limited scope of notice of the public sale was of particular importance because the secured party itself purchased the collateral at the UCC sale. Kobuk Engineering & Contracting Services, Inc., 568 P.2d at 1011.

Boender maintains that the sale factually was commercially reasonable. Whether a sale was commercially reasonable ordinarily is a question of fact. The reasonableness at issue here was decided on the pleadings. The appropriate standard of review in this case is whether Clubhouse’s claim sufficiently states a cause of action. Boender’s argument goes beyond the scope of our review.

Clubhouse also contends that its second amended counterclaim states a cause of action under section 9 — 504 for Boender’s violation of the reasonable notification requirement (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504(3)). This is so, it asserts, because of the requirement in the notice that “[p]rior to the bidding, each bidder shall submit a Cashier’s Check for $50,000 *** payable to Seller.” Section 9— 504(3) provides that the secured party shall give “reasonable notification of the time and place of any public sale” to the debtor. In Wilmington Trust Co. v. Conner (Del. 1980), 415 A.2d 773, 776, the court noted:

“The purpose of the requirement of ‘reasonable notification’ is threefold: (1) it gives the debtor the opportunity to exercise his redemption rights under §9 — 506 [citation]; (2) it affords the debtor an opportunity to seek out buyers for the collateral [citation]; and (3) it allows the debtor to oversee every aspect of the disposition, thus maximizing the probability that a fair sale price will be obtained [citation]. Any aspect of the notice that is contrary to these purposes necessarily prevents it from being ‘reasonable notification.’ ”

(See also Korogluyan v. Chicago Title & Trust Co. (1991), 213 Ill. App. 3d 622, 631, 572 N.E.2d 1154.) The reasonableness of notice is usually a question of fact. (See Baber v. Williams Ford Co. (1965), 239 Ark. 1054, 1056, 396 S.W.2d 302, 304-05; Bondurant v. Beard Equipment Co. (Fla. Dist. Ct. App. 1977), 345 So. 2d 806, 809.) Whether Boender’s requirement that all prospective bidders submit cashier’s checks in advance of the bidding denied Clubhouse the fulfillment of any of the purposes set forth in Conner, particularly points (2) and (3) in the quoted portion of the opinion, apparently was decided as a matter of law by the circuit court. This was error.

For the foregoing reasons, the dismissal of the second amended counterclaim was error which requires reversal.

IV

Clubhouse claims that a secured creditor, who purchases his debtor’s collateral at a commercially unreasonable UCC sale and then subsequently resells the collateral, is liable to the debtor for the surplus under UCC section 9 — 504(2).

Section 9 — 504(2) provides in part: “If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for the deficiency.” (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504(2).) In support of its position, Clubhouse cites A to Z Rental, Inc. v. Wilson (10th Cir. 1969), 413 F.2d 899, Vic Hansen & Sons, Inc. v. Crowley (1973), 57 Wis. 2d 106, 203 N.W.2d 728, General Foods Corp. v. Hall (1976), 39 Ill. App. 3d 147, 349 N.E.2d 573, and Morris Plan Co. v. Johnson (1971), 133 Ill. App. 2d 717, 271 N.E.2d 404. Each of these cases is distinguishable from the case at hand, however, because they are actions for claimed deficiencies, which section 9 — 504(2) is meant to address. (See First Galesburg National Bank & Trust Co. v. Joannides (1984), 103 Ill. 2d 294, 469 N.E.2d 180.) Clubhouse’s second amended counterclaim fails to request damages correctly, and the circuit court’s decision must be affirmed in that regard.

Nevertheless, Clubhouse otherwise may rely upon part 5 of article 9 of the UCC, which provides for recovery of damages. The Official Code Comment observes that the purpose of section 9 — 507(1) is to provide remedies to the debtor when the secured creditor proceeds with the sale of collateral in a commercially unreasonable manner. (See 9 R. Anderson, Uniform Commercial Code §9 — 507(1), at 823 (3d ed. 1985).) The debtor has the right under section 9 — 507(1) to recover for “any loss caused by a failure to comply” with section 9 — 504’s requirement that the disposition of the collateral be made in a commercially reasonable manner. (United States v. Conrad Publishing Co. (8th Cir. 1978), 589 F.2d 949, 955; Sheffield Progressive, Inc. v. Kingston Tool Co. (Mass. Ct. App. 1980), 405 N.E.2d 985, 988.) The debtor may recover monetary damages. See Transport Equipment Co. v. Guaranty State Bank (10th Cir. 1975), 518 F.2d 377 (court assessed monetary damages against secured party for conducting a sale in a commercially unreasonable manner).

Although the secured creditor has the burden of proving commercial reasonableness, where the debtor is proceeding against the secured party under section 9 — 507(1) for failure to conduct a commercially reasonable sale, the debtor must carry the burden of proving the amount of that loss. (Transport Equipment Co., 518 F.2d at 384.) The price received at a subsequent sale to a third party is an indicator of fair market value. (Liberty National Bank & Trust Co. v. Acme Tool Division of the Rucker Co. (10th Cir. 1976), 540 F.2d 1375, 1381; Savage Construction, Inc., 102 Nev. at 38, 714 P.2d at 575; see also Connex Press, Inc., 436 F. Supp. at 58; Spiller v. First National Bank (1982), 109 Ill. App. 3d 1100, 1104, 441 N.E.2d 872.) We note that an executed contract held on the date of the UCC sale is also representative of the fair market value.

Affirmed in part; reversed in part and remanded.

McCORMICK and DiVITO, JJ., concur.

       A collateral assignment of a beneficial interest in a land trust, as here, creates a security interest in personal property which is amenable to a UCC foreclosure sale. Commercial National Bank v. Hazel Manor Condominiums, Inc. (1985), 139 Ill. App. 3d 644, 646-48, 487 N.E.2d 1145; Slovick v. All American Bank (1987), 163 Ill. App. 3d 741, 744, 516 N.E.2d 947.

       Clubhouse refers in its brief to section 9 — 504(e), not section 9 — 504(2). The UCC does not contain a section 9 — 504(e). It appears from Clubhouse’s argument that it meant to refer to section 9 — 504(2).