text:
    MINNIE LASSAI, Indiv. and as Special Adm’r of the Estate of Bernell Lassai, Deceased, et al., Plaintiffs-Appellants, v. HOLY CROSS HOSPITAL, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—1354
    Opinion filed December 27, 1991.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellants.
    Hinshaw & Culbertson, of Chicago (Nancy G. Lischer, Diane Cernivivo, and Terrence K. McGrath, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs Minnie Lassai, individually and as special administrator of the estate of Bemell Lassai, deceased, Bemell Lassai, Raphael Las-sai, and Alphonse J. Lassai brought this medical malpractice action against defendant Holy Cross Hospital following the death of Bemell Lassai. Plaintiffs now appeal from an order granting summary judgment in favor of defendant Holy Cross Hospital.

We reverse the judgment of the circuit court of Cook County.

While walking across the street on the evening of June 16, 1984, plaintiffs’ decedent, Bemell Lassai, was hit by a motorcycle. Decedent’s son, Bemell Lassai II (Lassai), was notified of his father’s accident by telephone at approximately 9 p.m. When Lassai arrived, he found that his father had left the accident scene. Since his father claimed that he felt fine and was conscious and seemingly alert, Las-sai took him home.

About 10 p.m., after returning home, Lassai took his father to the emergency room at defendant Holy Cross Hospital (Holy Cross). Decedent was conscious when he arrived at Holy Cross and a skull X ray, among other routine tests, was taken but no CT scan was performed. About 2 a.m., decedent was discharged from Holy Cross and taken home by Lassai.

A few hours later, about 8:30 a.m., decedent was found unconscious on the floor next to his bed. An ambulance took decedent to Little Company of Mary Hospital. Decedent never regained consciousness. On the fourth day of hospitalization, decedent was pronounced brain dead and medical care was terminated.

There is no dispute that the cause of death was a subdural hema-toma and that a CT scan was the only available test to diagnose a subdural hematoma.

Plaintiffs brought an action against numerous defendants for the wrongful death of decedent. At issue in the present appeal are the two counts against Holy Cross in plaintiffs’ second amended complaint. Plaintiffs alleged that Holy Cross was negligent in its treatment of decedent in a wrongful death action (count XII) and that this negligence caused pain and suffering to decedent (count XIII).

Holy Cross filed a motion for summary judgment and attached affidavits from its expert witnesses, Dr. Patrick Sullivan and Dr. Ruth Ramsey. In his affidavit, Dr. Sullivan stated that Holy Cross did not deviate from the standard of care in its treatment of decedent because there were no clinical signs of a subdural hematoma and the X ray reports revealed a normal skull. In her affidavit, Dr. Ramsey stated that she is a radiologist and that no skull fracture is demonstrated in the skull X rays taken at Holy Cross and at Little Company of Mary Hospital. Thus, Dr. Ramsey opined that Holy Cross did not deviate from the standard of care in failing to treat a fractured skull.

Thereafter, Lassai and Dr. Sullivan were deposed. In his deposition, Lassai did not testify that he told any medical personnel at Holy Cross that a witness to his father’s accident had told Lassai his father had been unconscious after being struck by a motorcycle.

In his deposition, Dr. Sullivan testified that failure to perform a CT scan would be a deviation from the standard of care if the personnel at Holy Cross had been informed that decedent was unconscious at the scene of the accident.

Subsequently, Lassai filed an affidavit in which he stated that he was told by an occurrence witness that his father was unconscious following the accident. In turn, Lassai provided this information to a nurse at Holy Cross who questioned Lassai about his father’s condition.

Following a hearing, the trial court granted summary judgment in favor of Holy Cross. Plaintiffs now appeal from that order.

Plaintiffs’ sole theory is that decedent should have had a CT scan at Holy Cross. In turn, the absence of this test resulted in the failure to diagnose the subdural hematoma which caused decedent’s death.

Plaintiffs argue that the trial court reached the wrong conclusion because it improperly disregarded the testimony given by Lassai in his affidavit and by Dr. Sullivan in his deposition. Plaintiffs assert that the disregarded testimony of Lassai and Dr. Sullivan establishes a deviation from the standard of care and thus raises a genuine issue of material fact as to preclude summary judgment. We agree.

Holy Cross responds by arguing that Lassai’s affidavit is inadmissible on the grounds that it is based on hearsay and contradicts his earlier deposition testimony. Holy Cross further contends that plaintiffs never offered any evidence to substantiate their allegations that Holy Cross deviated from the standard of care in not ordering a CT scan and that this deviation was a proximate cause of decedent’s death.

Initially we note that plaintiffs contend that this case is controlled both on the facts and the law by Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586, which was decided after the summary judgment proceedings in the present case. In Gatlin, the supreme court held that the plaintiff had presented enough evidence of the defendant obstetrician’s negligence to succeed in vacating the trial court’s order for summary judgment in the defendant’s favor. The evidence relied upon to vacate the summary judgment was the deposition testimony of a doctor who opined that the injuries complained of could have resulted from the actions of the defendant obstetrician. After his deposition, the deponent doctor submitted an affidavit which stated that his deposition testimony did not indicate that the obstetrician practiced medicine below the standard of care. The supreme court found that the doctor’s subsequent affidavit did not alter his deposition and the trier of fact should merely consider the affidavit with all of the other evidence in the case. A circuit court cannot weigh the deposition against the affidavit because to do so admits an issue of material fact exists and thus precludes summary judgment.

The Gatlin court also reaffirmed the summary judgment standards articulated in the Code of Civil Procedure and in Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

The Code of Civil Procedure provides that summary judgment can only be entered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) The pleadings, depositions and affidavits must be construed most strictly against the moving party and most liberally in favor of the opponent. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.

At the summary judgment stage, a plaintiff is not required to prove its case but rather merely has the duty to present a factual basis which would arguably entitle it to judgment in its favor. (Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 737, 458 N.E.2d 990.) A triable issue exists if fair-minded persons could draw more than one conclusion or inference from the facts, including one unfavorable to the moving party. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793-94, 450 N.E.2d 1286.) To survive a motion for summary judgment, the nonmovant must come forward with evidentiary material that establishes a genuine issue of fact. Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.

Our examination of the record reveals that plaintiffs submitted sufficient evidence to show that issues of material fact remain unresolved. Accordingly, in light of the established principles, we find that summary judgment is inappropriate.

Plaintiffs provided competent evidence that Lassai informed the personnel of Holy Cross of his father’s unconscious state following the accident. In his affidavit, Lassai specifically attested that “I [Lassai] told her [a nurse] that my father was hit by a motorcycle, hit his head and I was told he was unconscious immediately following the accident. The nurse took this information and told us to wait outside.”

We reject the arguments of Holy Cross claiming that this statement included in Lassai’s affidavit is inadmissible hearsay and contradicts Lassai’s deposition testimony. Lassai’s statement to a nurse does not constitute hearsay as to Holy Cross. Clearly, all possible information regarding a patient’s condition should be ascertained by medical personnel to administer proper care. (Becherer v. Best (1966), 74 Ill. App. 2d 174, 182, 219 N.E.2d 371 (a doctor must rely on information obtained from both the patient and outside sources).) Moreover, the testimony does not go to the truth or falsity of whether Lassai’s father was unconscious but rather as to whether or not Lassai told the nurse of this fact. Lassai’s alleged statement was a verbal act and not hearsay. People v. Glover (1988), 173 Ill. App. 3d 678, 527 N.E.2d 968; Perzovsky v. Chicago Transit Authority (1974), 23 Ill. App. 3d 896, 320 N.E.2d 433; Grebe v. Vacek & Co. (1968), 103 Ill. App. 2d 79, 243 N.E.2d 438.

Furthermore, the record reveals that the deposition testimony of Lassai does not contradict the statements of Lassai in his affidavit. Holy Cross maintains that Lassai’s negative responses to broad questions as to whether or not he recalls anything else beyond the answers provided to the deposition questions constitute a judicial admission that he did not tell a Holy Cross nurse that his father had lost consciousness. Holy Cross cites to four instances where Lassai answered “no” to questions like “[a]s you sit here today, do you recall any other conversations or anything else that involved the care and treatment of your father at Holy Cross Hospital?” We find that a simple “no” response by Lassai does not rise to the level of an unequivocal admission so as to constitute a contradiction to his statements in his subsequent affidavit.

Plaintiffs also established that the failure to perform a CT scan when a patient had been previously unconscious was a deviation from the standard of care. Contrary to the assertion of Holy Cross, Dr. Sullivan expressly testified as to the deviation in his deposition, which states as follows:

“Q. [Plaintiffs’ counsel]: Assume *** that the emergency room personnel were advised that [decedent] was unconscious at the scene of the accident, with all the findings that are stated in the emergency room. Do you have an opinion as to whether or not it then would have been a deviation from the standard of care not to perform a CAT scan?

A. [Dr. Sullivan]: I think at that point it would have been.

Q. [Plaintiffs’ counsel]: A deviation?

A. [Dr. Sullivan]: A deviation.

* * *

Q. [Plaintiffs’ counsel]: Assume also that the medical personnel at Holy Cross Hospital were told that [decedent] lost consciousness at the scene of his accident, although he regained it a couple of minutes after the accident. If that was the case do you have [an] opinion to a reasonable degree of medical certainty as to whether or not the personnel at Holy Cross Hospital deviated from the standard of care in their treatment of [decedent]?

A. [Dr. Sullivan]: [I]f that were the case, that would be a deviation.”

We find that this testimony sufficiently supports plaintiffs’ allegation that Holy Cross deviated from the standard of care so as to survive summary judgment.

Next, Holy Cross claims that plaintiffs failed to present evidence that the alleged deviation from the standard of care was the proximate cause of decedent’s death. In reply, plaintiffs assert that there was no motion or affidavit advancing the absence of proximate cause as a matter of law which would have placed a burden on them to show that a question of fact existed as to the issue of proximate cause.

A party opposing summary judgment may rely upon reasonable inferences drawn from the materials considered on the motion in the determination of whether a genuine issue of material fact exists. (Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099; Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 404 N.E.2d 869.) Summary judgment is a drastic remedy which should only be allowed when the right of the moving party is clear and free from doubt. (Gatlin, 137 Ill. 2d 284, 560 N.E.2d 586; Purtill, 111 Ill. 2d 229, 489 N.E.2d 867.) In addition, proximate cause is ordinarily a jury question. Duffy, 92 Ill. App. 3d 193, 415 N.E.2d 1099.

We believe that proximate cause can be inferred from the facts. The undisputed facts establish that the decedent suffered a head injury. The emergency room personnel at Holy Cross treated decedent but did not perform a CT scan, which was the only available test to diagnose a subdural hematoma. A few hours after his discharge from Holy Cross, the decedent fell into a coma and died from a subdural hematoma. Given these undisputed facts, we find that summary judgment is precluded because a question of fact exists as to the proximate cause of death.

For the foregoing reasons, the trial court’s order granting Holy Cross’ summary judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    MARY PLATACIS, Indiv. and as Special Adm’x of the Estate of Ann Marie Platacis, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF STREAMWOOD et al., Defendants-Appellees (Anthony Scala, Defendant).
    First District (3rd Division)
    No. 1—90—1878
    Opinion filed December 27, 1991.

      Randall E Peters & Associates, of Chicago (James J. Reidy, Randall E Peters, and Richard L. Wattling, of counsel), for appellant.
    Judge & Knight, Ltd., of Park Ridge (Elizabeth A. Knight, Sarah Hansen Sotos, and Colleen H. Considine, of counsel), for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Mary Platacis, individually and as special administratrix of the estate of Ann Marie Platacis, deceased, appeals from the entry of summary judgment in favor of defendants, Village of Streamwood, Village of Streamwood police officer Henry Kownacki (defendants), and Anthony Scala. Plaintiff argues that her complaint alleged a cause of action for negligence in connection with defendants’ search for decedent, who was intoxicated and lost on a winter night.

Plaintiff alleged the following in her amended complaint in count I against the Village and Kownacki. On February 6, 1982, decedent, who was a minor, was escorted to a party by Scala. In the early morning hours of February 7, decedent was a passenger in Scala’s automobile. There was an argument among certain passengers including decedent, and Scala stopped the automobile and allowed decedent and two other passengers to leave the automobile. Kownacki, who was on duty as a Village police officer, arrived and instructed Scala to remove the automobile. Kownaki then drove away. Decedent, who was standing outside the automobile without “outerwear” clothing, had consumed alcoholic beverages and had received physical injuries from fighting. Kownacki knew of decedent’s physical condition and attire, and she walked away to an open field in Kownacki’s presence. Within 45 minutes, decedent was reported missing to the Village. Village police including Kownacki commenced an investigation and a search for decedent. Decedent died on or about February 12, 1982, from hypothermia. Decedent’s body was found in an open field near the industrial park area.

Count I further alleged that it was defendants’ duty, upon undertaking the assumed duty of searching for decedent, to carry out the duty in a nonnegligent manner and to exercise reasonable care. The Village and Kownacki committed one or more of the following careless and negligent acts or omissions: (1) failed to search and patrol on foot an open field directly west of the industrial complex where decedent was last reported; (2) failed to search the field with canine patrol; (3) failed to search the field with snowmobiles and illumination devices; (4) failed to adequately search the area where decedent was last seen when they knew of the emergency created by decedent’s age, clothing, and physical condition, and by the weather; and (5) failed to timely conduct an investigation.

Also relevant here is count IV, which was another wrongful death count against the Village and Kownacki. It alleged that it was the duty of defendants, upon commencing a search for decedent, to carry out the duty it assumed in a nonwilful and nonwanton manner and to exercise reasonable care. The same specific acts and omissions alleged in count I were alleged to have been wilful and wanton acts or omissions.

The following facts from deposition testimony are relevant to the issues on appeal. Christine Joanne De Marco testified at her deposition that Scala drove her home about 12 or 1 a.m. and told De Marco’s parents that decedent was missing. Her parents immediately went out to look for decedent. De Marco was awakened about 3 a.m. by her parents to help in the search.

Scala testified at his deposition that decedent did not have her coat on when she exited the automobile. Scala, after talking to Officer Kownacki, returned to his car and discovered that the decedent, Pla-tacis, had left the area while he was conversing with Officer Kownacki and had not returned. Corpeluski told him that decedent had started to run away and pointed across the street but not towards the open field. Scala searched for her for about V-k hours, and later De Marco’s father and brother helped him to search again. Scala, while searching the area, flagged down Officer Dewberry of the Streamwood police department and told him what had happened. He read in the newspaper that decedent was found behind the field about 300 yards from the industrial area.

Kownacki testified at his deposition that he heard on the police radio about 2:45 a.m. that a girl was missing. He returned about 3 a.m. and searched the whole area on foot and in his patrol car.

Village police officer James Dewberry testified at his deposition that he received notice of the lost girl about 2 a.m. and that the only information was that she had left an automobile in the area of a particular road and parkway. He drove with his “alley” lights illuminating the ditches alongside of the roadway, but he never entered the field. He saw four other Village police officers searching. He searched for about two hours. There were reports that decedent had been seen in a restaurant one mile north. After it was found out that she did not return home, the police returned to the area.

Defendants filed a motion for summary judgment which argued that: (1) a municipality had no tort liability for failing to provide police services or protection; (2) the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 4—102, 4—107) provided statutory immunity from liability for failing to provide police protection or services; (3) plaintiff’s action was barred by the “long-standing ‘no liability’ rule”; and (4) the exception to the general rule was inapplicable.

Defendants’ motion for summary judgment was granted. Plaintiff filed a motion for rehearing which was denied, and the order was made appealable under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) because Scala’s motion for summary judgment had been denied.

Plaintiff argues on appeal that the complaint alleged a good cause of action under Restatement (Second) of Torts §323 (1965), which subjects one who undertook services necessary for the protection of another person to liability if one’s failure to exercise reasonable care increased the risk of physical harm or if the harm was suffered because of the other’s reliance upon the undertaking. Plaintiff also argues that section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.), which provides immunity for failure to provide adequate police protection or service (Ill. Rev. Stat. 1989, ch. 85, par. 4—102), is inapplicable to her cause of action because section 4 — 102 is only concerned with harm resulting from criminal activity and because the Act is in derogation of the common law action against local public entities and must therefore be strictly construed against the local public entity (Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415).

Plaintiff relies upon Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 569, 363 N.E.2d 87, which held that section 4 — 102 pertained specifically to the police function of enforcing criminal law and making arrests. But Jamison did not hold that the Act exclusively pertained to criminal law, and the statute does not limit itself to the provision of police protection from criminal activity. Section 4 — 102 has been applied to protect municipal defendants from liability for the failure to prevent injuries not inflicted criminally. See, e.g., Dockery v. Village of Steeleville (1990), 200 Ill. App. 3d 926, 929, 558 N.E.2d 449 (village protected from liability under section 4 — 102 in action alleging injuries from fireworks and the police’s negligent crowd control and traffic management during city celebration).

Section 4 — 102 of the Act provides:

“Neither a local public entity nor a public employee is liable *** for failure to provide adequate police protection or service, failure to prevent the commission of crimes, *** and failure to identify or apprehend criminals.” Ill. Rev. Stat. 1987, ch. 85, par. 4—102.

We hold that defendants are immune from liability here by virtue of section 4 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 4—102), which provides for immunity from liability both for ordinary negligence and for wilful and wanton misconduct (see Nieder v. Gacy (1984), 121 Ill. App. 3d 854, 856, 460 N.E.2d 342 (sections 4-102 and 4—107 barred action alleging wilful and wanton acts of the police); Poliny v. Soto (1988), 178 Ill. App. 3d 203, 206-07, 533 N.E.2d 15 (dismissal of negligence action for leaving plaintiff at an arrest scene was upheld where special duty exception to section 4 — 102 was not met)). The Village police officers were engaged in the police service of searching for a missing person; this service is covered by section 4— 102. (See Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 221, 517 N.E.2d 656 (police response to a call of car driven into retention pond and rescue attempt were covered by the Act).) In some situations police do owe a “special duty” to a person. Defendants argue that the special duty exception to the general rule of no liability for failure to provide police services (Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1065, 467 N.E.2d 1153) does not apply here. The following are the requirements for this exception:

“(1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed, (2) there must be allegations of specific acts or omissions on the part of the municipality, (3) the specific acts or omissions must be either affirmative or wilful in nature, and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality.” Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 278, 490 N.E.2d 77.

Plaintiff has not alleged facts satisfying the fourth element of the special duty exception. Decedent could not have been under the control of the police officers when her location was unknown. Summary judgment was therefore proper because the Tort Immunity Act gave immunity to defendants and because the special duty exception to police immunity did not apply.

Defendants also argue that the granting of summary judgment in their favor could be upheld on the basis that their omissions did not proximately cause decedent’s death. We do not need to reach this issue.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI and WHITE, JJ., concur.

      Justice White concurred with this decision prior to his retirement.


author: JUSTICE GREIMAN

text:
    RAJENDRA K. LEEKHA et al., Plaintiffs-Appellants, v. ERNEST C. WENTCHER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—2106
    Opinion filed December 27, 1991.

      Carponelli & Krug, of Chicago (Stephen P. Carponelli, Michael J. Weik, and James V. Noonan, of counsel), for appellants.
    Ancel, Clink, Diamond & Cope, P.C., of Chicago (Ronald S. Cope and Michael W. Tootooian, of counsel), for appellees.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs Rajendra and Saroj Leekha appeal from the circuit court’s dismissal of their complaint which alleged the existence of an enforceable real estate sales agreement allowing them to purchase a parcel of land in a new subdivision.

We affirm the decision of the circuit court.

Plaintiffs sought to purchase a vacant lot in a real estate development called the Heatherfields of Burr Ridge from defendant sellers, Ernest Wentcher and Wentcher & Associates. The other named defendants are not involved in this appeal.

The sequence of events upon which plaintiffs’ cause of action is predicated began on February 14, 1987, when plaintiffs first visited the sales office for the Heatherfields and later executed a document entitled “Property Reservation Receipt” (Reservation Receipt) on February 23, 1987. The Reservation Receipt acknowledged plaintiffs’ payment of $8,400 as an initial deposit on the total purchase price of $84,000. The Reservation Receipt further states in part as follows:

“The initial deposit received herein shall reserve in the name of the Purchaser, the above described lot [lot 42] until the 31st day of May, 1987 or until such time as the parties hereto enter into a Contract of Purchase and Sale, whichever date first occurs. ***
In the event the Seller and Purchaser cannot come to a mutual agreement on the terms and conditions of a Contract of Purchase and Sale by May 31, 1987, this Reservation Agreement shall be terminated and the money deposited with Seller shall be refunded to Purchaser. ***
The purpose of this agreement is to reserve the lot provided for herein solely, and shall not control nor have any effect whatsoever on the Sale and Purchase Agreement which the parties hereto may enter into. Purchaser shall not have any interest in the lot whatsoever unless a contract is subsequently entered into between the parties.”

The Reservation Receipt was signed by plaintiffs and defendant Ernest Wentcher.

On May 31, 1987, Shannon & Associates, Ltd. (Shannon), the real estate broker, sent plaintiffs a copy of a real estate sale contract which specified a closing date of July 10, 1987. This version of the contract was never signed by anyone.

Plaintiffs’ complaint also contains a price list for the lots in the Heatherfields of Burr Ridge. The price list designates lot No. 42 as “sold” and includes the notice that prices are subject to change without notice. Plaintiffs allege that they received this price list on July 6, 1987.

Additionally the record discloses two letters which discuss the relocation of a planned bike path away from lot No. 42. A letter dated August 28, 1987, was sent by Patricia Shannon as a representative of the Heatherfields Community Association to the village manager of Burr Ridge. In this letter Ms. Shannon proposed rerouting a planned bike path away from lot No. 42. Another letter, dated September 18, 1987, was sent from plaintiffs to the village manager of Burr Ridge specifically supporting the proposal made by Ms. Shannon in her August 28 letter. In a blind note to Ms. Shannon, plaintiffs wrote “I thank you for your efforts to resolve this issue.”

A check dated October 14, 1987, for $8,400 was issued by plaintiffs to defendants. Defendants never endorsed this second check and returned it to plaintiffs.

A form real estate sale contract dated November 24, 1987, was tendered by plaintiffs to defendants. This version of the contract is substantially similar to the prior version of May 31, 1987, except for an additional paragraph in the rider which is as follows:

“Purchaser and Seller agree that this contract is contingent upon Seller’s ability to procure a perpetual easement from the owner of the adjacent property for purposes of constructing and maintaining a bike path on said property.”

This November 1987 version of the contract imposing an additional condition was signed by plaintiffs only.

By letter dated January 11, 1988, Shannon notified plaintiffs that defendants refused to accept plaintiffs’ proposed contract. Shannon returned plaintiffs’ offer to purchase and checks totaling $16,800.

By letter dated February 18, 1988, defendants informed plaintiffs that since they were not able to reach mutually acceptable terms for a contract, defendants were free to sell the lot to another party. In this letter defendants stated:

“You [plaintiffs] asked me not to sell Lot 42 to anyone else until you returned from London and met with me. The meeting took place today and the issue remains the same. The original contract [November 1987] that you sent to us with a contingency, as you know, was returned unsigned by me as unacceptable.
We offered to sell the lot to you for $90,000 on our standard contract which you refused. We now consider ourselves free to sell the lot to third parties.”

Checks totaling $16,800 were returned to plaintiffs.

Subsequently plaintiffs filed a complaint for specific performance and monetary damages for alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.).

In count I of their complaint, plaintiffs allege that they are entitled to specific performance because the documents in the record, when taken as a whole, are sufficient evidence of an agreement in writing under the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. I et seq.) or that the acts of plaintiffs constitute partial performance of an oral contract and are enforceable as an exception to the Statute of Frauds.

In count II plaintiffs claim that they incurred a substantial change of position and thus the promissory estoppel doctrine applies which would entitle them to specific performance.

In count III plaintiffs assert that they are entitled to monetary damages under the Consumer Fraud and Deceptive Business Practices Act. Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.

The trial court granted defendants’ motion to dismiss counts I and II under section 2 — 619(7) (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(7)), which allows involuntary dismissal where the claim asserted is unenforceable under the provisions of the Statute of Frauds, and motion to dismiss count III under section 2 — 615, which allows a motion for judgment on the pleadings where the plaintiff has failed to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Plaintiffs now appeal from these orders of the trial court dismissing their complaint.

First we must address defendants’ assertion that counts I and II should be dismissed on grounds of mootness since the property has been sold to a third party. Defendants argue that plaintiffs failed to perfect a stay according to Supreme Court Rules 305(b)(3) and (i) (134 Ill. 2d Rules 305(b)(3), (i)). We have previously twice denied defendants’ motion to dismiss on these grounds and decline to reconsider our decision.

On appeal, plaintiffs first contend that the various documents, when considered together, evidence an agreement in writing sufficient to satisfy the Statute of Frauds. We disagree.

The Statute of Frauds provides as follows:

“Land — Writing—Signature—Exceptions
§2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” Ill. Rev. Stat. 1987, ch. 59, par. 2.

In Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 560 N.E.2d 942, this court enunciated the following test: “Under the Statute of Frauds, a person cannot enforce a real estate contract unless: (1) there is a written memorandum or note on one or more documents; (2) the documents collectively contain a description of the property and the terms of sale, including price and manner of payment; and (3) the memorandum or note contains the signature of the party to be charged.” (Prodromos, 202 Ill. App. 3d at 1028.) Moreover, the court in Pródromos held that “[i]n a contract for the sale of land, an agent may sign the contract only if the authority to do so is in writing.” Prodromos, 202 Ill. App. 3d at 1029.

In granting defendants’ motions to dismiss plaintiffs’ complaint, the trial court found Flannery v. Marathon Oil Co. (1979), 75 Ill. App. 3d 690, 394 N.E.2d 706, analogous to the present case. The Flannery plaintiff, like the present plaintiffs, brought an action for specific performance to require the purchase of a parcel of real estate. In Flannery, the defendant’s real estate representative sent the plaintiff a letter enclosing a written offer to purchase a parcel of real estate. In turn, the plaintiff signed this offer and mailed it back to defendant’s real estate representative with a $5,000 check as a down payment. In a subsequent letter stating that the defendant had rejected the plaintiff’s proposal, the defendant’s real estate representative returned to the plaintiff the signed offer to purchase and the $5,000 check. In affirming the dismissal of the plaintiff’s complaint, the Flannery court found that the alleged contract was not enforceable because the defendant seller never signed the real estate offer made by the plaintiff purchaser. The court reasoned that “the crucial point here is that the written offer to purchase was never signed by defendant as the party to be charged or by any person lawfully authorized by the defendant. It follows that the contract here involved comes squarely within the prohibition of the statute of frauds ***.” Flannery, 75 Ill. App. 3d at 693, 394 N.E.2d at 709.

Similarly, in the present case, a real estate broker, Shannon, sent a contract to plaintiffs on May 31, 1987, after plaintiffs had issued an $8,400 check as an initial deposit. The May version of the contract was never signed by any party. In October of 1987, plaintiffs executed another check for $8,400, but this check was never endorsed by defendants. The November 24, 1987, version of the contract, which contained the contingency regarding the bike path, was tendered by plaintiffs but was signed only by plaintiffs, not defendants. In January 1988, Shannon returned to plaintiffs their November version of the contract, unsigned by defendants, and checks in the amount of $16,800. On February 18, 1988, defendants wrote a letter to plaintiffs stating that plaintiffs’ November contract was unacceptable and plaintiffs had refused defendant’s subsequent offer to sell the lot to them. Defendants again returned checks totaling $16,800 to plaintiffs.

With the exception of defendants’ February 1988 letter notifying plaintiffs that no mutually acceptable terms had been reached, the only document signed by defendants, i.e., the party to be charged, is the Reservation Receipt, which specifically provided that plaintiffs as the purchasers would not have any interest in the lot “unless a contract is subsequently entered into between the parties.” Plaintiffs also signed the Reservation Receipt. The language of this Reservation Receipt clearly evinces an intent not to be bound until the execution of a subsequent real estate contract. Where the intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery. Intini v. Marino (1983), 112 Ill. App. 3d 252, 254, 445 N.E.2d 460; Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 395, 256 N.E.2d 44 (“[w]here the *** formal execution [of an agreement] is viewed by the parties as a condition precedent to the vesting of rights and duties, there can be no contract until then, even if the actual terms have been agreed upon”).

Plaintiffs primarily rely on Barton Chemical Corp. v. Pennwalt Corp. (1979), 79 Ill. App. 3d 829, 399 N.E.2d 288, as the case most directly on point. The court in Barton held that a 1974 letter from the defendant seller’s regional manager to the plaintiff purchaser’s president satisfied the Statute of Frauds and thus was a binding contract. This letter confirmed certain contract modifications which the parties had negotiated three days earlier. The parties in Barton had negotiated a series of two-year requirements contracts since 1970. The 1974 letter at issue specifically confirmed the negotiations for the 1974-75 contract and stated that “[a]ll other terms and conditions of our current contract remains unchanged.” In addition, the letter stated that an extension through the end of 1976 would be forwarded to the plaintiff purchaser. The written contract anticipated by the 1974 letter was never executed. In 1976 the defendant seller refused to sell its product to the plaintiff purchaser upon the terms established in the 1974 letter.

In finding that a binding contract existed, the Barton court reasoned that the 1974 letter clearly set forth the new price and quantity increases, was comprehensive in nature, and expressly indicated that the modified 1974-75 contract was to be extended through 1976. Moreover, the defendant sellers, who were challenging the validity of the agreement, had already reaped the benefits of the 1974 terms, i.e., increases in both the price paid by the plaintiff purchaser and the quantity sold to them.

We find the Barton case inapposite. Unlike Barton, the parties in the present case had no prior dealings and there is no document signed by the party to be charged which contains the specificity or clarity of the letter relied on in Barton. Moreover, unlike this case, the Barton parties bought and sold products for nearly two years before challenging the validity of a contract. The present defendants, however, reaped no benefit from any alleged agreement with plaintiffs. Defendants held lot 42 aside for plaintiffs at their request until February 1988 even though no mutual agreement had been reached and thereafter returned all of plaintiffs’ money.

A distinction must be drawn between preliminary negotiations toward an agreement and the actual existence of a final contract. Fox v. Lawson (1979), 76 Ill. App. 3d 806, 811, 395 N.E.2d 588.

In determining a motion to dismiss under section 2 — 619, the court must consider whether or not the defendant alleged facts which constitute an affirmative defense that could defeat the plaintiff’s cause of action. (Prodromos, 202 Ill. App. 3d at 1028.) In light of all the documents in the record, we find that the trial court did not err in granting defendants’ motion to dismiss on the grounds that in light of the Statute of Frauds, no enforceable contract existed.

Plaintiffs next contend that a valid oral contract exists based on their partial performance of the agreement. We disagree.

An oral contract to transfer real estate is generally unenforceable under the Statute of Frauds. (Alguire v. Walker (1987), 154 Ill. App. 3d 438, 506 N.E.2d 1334.) However, part performance is an equitable doctrine that can remove an oral contract to convey land from the operation of the Statute of Frauds. Phillips v. Britton (1987), 162 Ill. App. 3d 774, 516 N.E.2d 692.

The test for specific performance of an oral contract is as follows:

“ ‘Before a court may exercise that discretion in favor of granting the remedy in the case of an oral contract which would normally be unenforceable under the Statute of Frauds, the court must find that the terms of the contract are clear, definite, and unequivocal [citations], that the contract has been at least partially performed by the party seeking the remedy [citations] and that the acts allegedly done in performance are positively attributable exclusively to the contract [citations].’ ” Intini v. Marino (1983), 112 Ill. App. 3d 252, 256, 445 N.E.2d 460, quoting Blaise v. Stein (1979), 75 Ill. App. 3d 793, 796, 394 N.E.2d 836.

Plaintiffs claim that they partially performed the agreement because they engaged an architect to prepare building plans, effected the communications with the village concerning the bike path, signed a form real estate contract and made payment of two separate earnest money checks. We find that these actions do not constitute sufficient performance to take the alleged oral contract out of the Statute of Frauds.

First, the hiring of an architect to design a home was not a requirement under the terms of the alleged agreement and thus it cannot be attributable exclusively to the contract. Second, the rerouting of the bike path was the result of negotiations between the developers and the village, not plaintiffs. Third, the November 1987 contract which was signed by plaintiffs was never signed or agreed to by defendants. Fourth, defendants returned plaintiffs’ two checks totaling $16,800, one of the checks having never been cashed.

Courts which have granted specific performance based on a party’s partial performance have required far more significant action on the part of the party seeking to enforce an oral contract outside the Statute of Frauds than the present plaintiffs even allege. A binding contract has been found where the purchaser had paid full consideration for the property and also took possession (Thomas v. Moore (1977), 55 Ill. App. 3d 907, 370 N.E.2d 809; Anastaplo v. Radford (1958), 14 Ill. 2d 526, 153 N.E.2d 37; David v. Schiltz (1953), 415 Ill. 545, 114 N.E.2d 691); where the purchaser made a down payment and five monthly payments towards the purchase price, took possession of the property, and made improvements to the property (Pendleton v. King (1977), 55 Ill. App. 3d 1, 370 N.E.2d 590; see also Heitz v. Circle Four Realty Co. (1989), 191 Ill. App. 3d 727, 548 N.E.2d 11); and where the party seeking relief has fully performed the agreement (Lund v. E.D. Etnyre & Co. (1968), 103 Ill. App. 2d 158, 242 N.E.2d 611).

Actions taken by a party in anticipation of a contract are not sufficient to warrant the application of the doctrine of part performance. The court in Intini rejected the purchasers’ allegations of part performance where they sold their current residence, retained professional movers, and contracted for furniture for their new home before the real estate contract had been resolved. (Intini, 112 Ill. App. 3d 252, 445 N.E.2d 460.) The Intini court reasoned that “[w]hile arguably contingent upon a successful resolution of a real estate sales contract between the parties, none of these actions were required by the actual offer to purchase the real estate itself.” Intini, 112 Ill. App. 3d at 256.

We find that plaintiffs have failed to establish any performance sufficient to take the alleged oral contract out of the Statute of Frauds.

Plaintiffs next assert that they incurred a substantial change of position and thus the trial court erred in dismissing count II, which sought specific performance based on promissory estoppel. Again we find no error.

The Illinois Supreme Court has held that “[t]o establish a claim based on promissory estoppel, plaintiff must allege and prove that (1) defendants made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff’s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment. [Citations.] Plaintiff’s reliance must be reasonable and justifiable. [Citations.] Plaintiff may recover on a theory of promissory estoppel despite the absence of a contract.” Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 309-10, 565 N.E.2d 990.

Plaintiffs allege that they have incurred a substantial change of position because they expended money ($16,800), time and effort to close the transaction.

The question of change in position and the corresponding invocation of the doctrine of estoppel must be decided by the court on the basis of the totality of the circumstances. Foster & Kleiser v. City of Chicago (1986), 146 Ill. App. 3d 928, 497 N.E.2d 459; Leisuretime Recreation Center VI, Inc. v. Byrne (1981), 93 Ill. App. 3d 489, 417 N.E.2d 658.

A cause of action based on promissory estoppel was allowed where the plaintiffs were prospective purchasers of a grocery business being sold by the defendant sellers because the plaintiffs had quit their previous jobs and lost substantial amounts of income and benefits in reliance on the defendants’ clear promises. (Gold v. Dubish (1989), 193 Ill. App. 3d 339, 549 N.E.2d 660.) In contrast, the present plaintiffs took no such significant actions so as to invoke the promissory estoppel doctrine. As previously noted, defendants returned the full $16,800 to plaintiffs. Moreover, defendants’ “promises” were clearly conditional in nature. Ten months after the execution of the Reservation Receipt, plaintiffs were making counteroffers with new conditions.

Accordingly, we find that the trial court’s dismissal of count II was proper because plaintiffs’ acts were not sufficient to support a claim under a promissory estoppel theory.

Lastly, plaintiffs contend that the trial court erred in dismissing count III, based on the Consumer Fraud and Deceptive Business Practices Act (Act).

In their complaint plaintiffs allege that defendants violated section 2 of the Act, which provides that

“unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact *** are hereby declared unlawful.” Ill. Rev. Stat. 1987, ch. 121½, par. 262.

Plaintiffs base their statutory claim on the following allegedly deceptive actions: (1) defendants executed the Property Reservation Receipt; (2) defendants accepted two checks from plaintiffs; (3) defendants induced plaintiffs to hire an architect and to execute various documents, such as the real estate contract; and (4) defendants misrepresented their intention to sell the property at the price stated in the Property Reservation Receipt ($84,000).

In ruling on a motion to dismiss, all well-pleaded facts must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Stefani v. Baird & Warner, Inc. (1987), 157 Ill. App. 3d 167, 510 N.E.2d 65.) However, a trial court is not required to reach unreasonable and unwarranted conclusions or to draw unreasonable and unwarranted inferences in order to sustain the sufficiency of a complaint (Carlson v. Moline Board of Education, School District No. 40 (1984), 124 Ill. App. 3d 967, 464 N.E.2d 1239), and a defendant is not required to go to trial on a complaint that does not allege facts sufficient to support a cause of action (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E.2d 1022).

Based on our examination of the record and application of the standards for ruling on a motion to dismiss, we find that the dismissal of plaintiffs’ statutory count was proper. As we have previously found, neither a written nor an oral contract existed. The facts, construed most favorably in plaintiffs’ favor, nevertheless reveal that the parties were still in the negotiating phase of the transaction and that various contingencies were discussed and considered. The Act is not intended to be used as a vehicle for transforming nondeceptive and nonfraudulent statements into actionable ones. (IK Corp. v. One Financial Place Partnership (1990), 200 Ill. App. 3d 802, 817, 558 N.E.2d 161; Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E.2d 1259.) Since none of the acts or practices of defendants fall within the statutory definition of the Act, we find that plaintiffs’ complaint failed to constitute a sufficient basis for a cause of action under the Act.

Judgment affirmed.

CERDA, P.J., and TULLY, J., concur.


text:
    DENNIS MAYE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    First District (3rd Division)
    No. 1—90—2259
    Opinion filed December 27, 1991.

      Rick Allan White, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.

      Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Gloria M. Pórtela and Jeri A. Lindahl, of counsel), for respondent Allstate Insurance Company.
   JUSTICE GREIMAN

delivered the opinion of the court:

Appellant Dennis Maye appeals from an order of the Illinois Human Rights Commission (Commission) which dismissed his complaint against appellee Allstate Insurance Company (Allstate) because the Commission determined that his discharge by Allstate was not based on retaliation in violation of section 6 — 101(A) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 6—101(A)).

We reverse the decision of the Commission.

There is no dispute as to the underlying facts of this case. Maye was hired by Allstate as a unit supervisor trainee in November 1982, promoted to a unit supervisor in April 1983, and discharged in May 1986.

In January 1986 a division manager for Allstate, H.H. Metzinger, told Maye that he was not promotable above the position which he was currently holding, i.e., unit supervisor, but that he could remain with Allstate. Employees with less seniority than Maye had received supervisory promotions.

From Monday February 3, 1986, through Monday February 10, 1986, Maye was absent from work, claiming that he was on funeral leave out of State the entire time. Maye returned to work on Tuesday, February 11,1986.

In fact, Maye was out of State attending his great aunt’s funeral from Monday February 3 until Friday February 7 when he returned to Chicago. On February 7 Maye filed a race discrimination charge against Allstate for failing to promote him.

On Monday February 10, Maye called Deborah Felice, his supervisor at work, and explained that he had returned to Chicago but he had trouble with his brother’s car coming back from the funeral and so would not be at work that day. Felice responded that Maye’s absence for that day would not be excused for the funeral and he should be at work. According to Allstate’s policy handbook, an employee is entitled to only one day to attend the funeral of a relative who is not in the employee’s immediate family and the definition of immediate family did not include great aunts.

When Maye returned to work on Tuesday, February 11, Felice prepared a time card for Maye which reflected that Maye would receive funeral leave pay for February 3 through 7 but would not be paid for his absence on February 10. Maye complained that he should be paid funeral leave for six days and that he would appeal Felice’s decision to Jan Mack, Felice’s supervisor. Mack advised Felice that management employees like Maye could not be docked for one day’s pay. Accordingly, Mack had Felice prepare a time card for Maye to reflect that Maye was on funeral leave from February 3 through 7, 1986, and was not at work on February 10, 1986. Although dissatisfied with the result, Felice considered the issue of Maye’s absence in February resolved on this day, February 11.

On April 15, 1986, Brian Fitzpatrick, the human resources department manager for Allstate, mailed a written response to the Illinois Department of Human Resources answering each allegation in Maye’s discrimination charge which had been filed on February 7, 1986. Jean Eiden, a unit manager in the human resources department, helped Fitzpatrick prepare the response.

In the last week of April 1986, Felice distributed timekeeping audits to the supervisors under her supervision, including Maye. These audits listed the number of “occurrences” or absences attributed to the individual employee for a given period of time. An “occurrence” denoted an absence for a particular reason, whether lasting one day or continuous days. Under Allstate’s policy, Maye was allowed six occurrences.

Within an hour of receiving his timekeeping audit, Maye told Felice that he was upset over the number of occurrences listed. The audit showed that Felice had listed Maye’s absence for foot surgery as two occurrences. Maye contended that his absence for foot surgery in December 1985 and January 1986 was continuous and thus should count for only one occurrence.

On April 30, 1986, Maye requested and received a computer timekeeping record called a TK400 from a clerical employee in Allstate’s human resource department. This computer record, which listed all Maye’s absences, showed that his supervisor had listed Maye as having been absent for foot surgery from December 18, 1985. to January 4, 1986, and again from January 7 through January 10, 1986. However, Maye had actually been absent continuously from December 18, 1985, to January 10,1986, due to foot surgery.

On May 5, 1986, Maye submitted to Felice a note from his doctor dated December 1985 which maintained that Maye was continuously absent from December 1985 to January 1986. Felice refused to change Maye’s record to reflect one occurrence.

Later that same day, May 5, Maye requested his personnel file from Eiden in the human resources department because he wished to determine if his file contained a document he had previously given to Mack, and expressed his concern about the number of occurrences listed for him. Eiden informed Maye that his personnel file had been checked out and thus was not available. Maye did not request a timekeeping record (TK400) since he already had obtained a copy from a clerical employee on April 30.

Eiden was aware of Maye’s discrimination charge having gathered documents for Allstate’s response to his charge and having worked with Fitzpatrick on the response. When Maye left the human resources department, Eiden advised Fitzpatrick that Maye requested to see his personnel file because he was concerned about the number of occurrences. Fitzpatrick had Maye’s personnel file since he had required it to respond to Maye’s discrimination charge. Fitzpatrick had retained Maye’s personnel file although he had answered the discrimination complaint three weeks earlier and his normal practice was to return such files after his response had been filed. Fitzpatrick then asked Eiden to run an attendance printout, i.e., a TK400, on Maye.

On May 6, 1986, Fitzpatrick received and reviewed the attendance printout for Maye. By examining Maye’s attendance printout, Fitzpatrick circumvented normal procedures at Allstate because it was neither his nor Eiden’s function to resolve disputes about occurrences or absences. Instead, the unit manager was expected to resolve such problems with a supervisor such as Maye.

As he examined the printout, Fitzpatrick was aware Maye’s dispute concerned his absence for a foot injury around December 1985. Nevertheless, after his examination of the listed occurrences, Fitzpatrick noticed the February dates marked for paid funeral leave at the bottom of the document even though paid funeral days do not constitute an occurrence and were not then the subject of any dispute. Fitzpatrick removed Maye’s discrimination complaint from his desk drawer, observed that Maye’s charge had been filed on February 7, and also noted that Maye’s printout revealed that Maye was paid by Allstate for funeral leave on February 7.

On that same day, May 6, Fitzpatrick informed his immediate supervisor, Cathy Bruñe, of the apparent discrepancy in Maye’s whereabouts on February 7. Bruñe directed Fitzpatrick to find out what happened on February 7. Fitzpatrick then told Jim Douglas, who supervised Felice, about the February 7 discrepancy. In turn, Douglas asked Felice to prepare a memorandum detailing what had occurred during Maye’s funeral leave and Felice did so.

On May 7, 1986, Fitzpatrick met with Maye and told Maye that his days of absence due to foot surgery would be treated as one occurrence. Then Fitzpatrick asked Maye to reconstruct the events of his funeral leave in February. Maye told Fitzpatrick that he was in Alabama on February 7, did not leave for Chicago until Sunday February 9, and had car trouble on the trip so could not return to work on Monday February 10. Immediately following this meeting, Maye met with Douglas and reiterated the same explanation to Douglas. Later on May 7, a third meeting was held with Fitzpatrick, Douglas and Maye. Fitzpatrick and Douglas presented Maye with a copy of the discrimination charge dated February 7 and asked Maye to explain how he could be both in Chicago and out of State on the same day. Maye was advised to obtain some documentation of his whereabouts on February 7.

The next day, May 8, 1986, Maye again met with Fitzpatrick and Douglas and gave them a copy of his great aunt’s funeral notice dated Tuesday February 4, 1986. However, Maye did not explain how he could be in two places at the same time on February 7.

Effective May 26, 1986, Allstate discharged Maye on the grounds that it lost confidence in Maye’s ability to be an effective supervisor. Allstate’s policy manual specifies that loss of confidence is a reason for immediate discharge.

Following his termination, Maye filed a complaint alleging that Allstate terminated his employment in retaliation for his having filed a race discrimination charge against Allstate, a violation of section 6 — 101(A) of the Act.

The administrative law judge (ALJ), in her “Conclusions of Law,” found that Allstate had violated section 6 — 101(A). The ALJ reasoned that the investigation of Maye’s attendance record by Allstate’s human resources department in May 1986 was initiated because Maye had filed a discrimination charge three months earlier in February 1986. Regarding a remedy, the ALJ found that Maye was entitled to monetary relief but not reinstatement in his former job because he had made misrepresentations as to his whereabouts on February 7 and 10,1986.

The Commission adopted the factual findings of the ALJ but dismissed Maye’s complaint “on the grounds that he failed to show that his discharge by Allstate Insurance Company was based on retaliation in violation of Section 6 — 101(A) of the Human Rights Act.” The Commission reasoned that Allstate did not commit an adverse act against Maye.

Furthermore, the Commission, in its decision, agreed with Maye that the focus in this case is the process which led to his termination and not the termination itself. (Crawford v. Roadway Express, Inc. (W.D. La. 1980), 485 F. Supp. 914 (a campaign of harassment undertaken with retaliatory motives constitutes “retaliation” within the Act).) However, the Commission found that “it is the fact that Mr. Fitspatrick [sic] looked at the bottom of the sheet of paper [Maye’s attendance printout] which is the alleged act of discrimination.” The Commission concluded that Fitzpatrick’s “glance at the bottom of the printout” did not constitute an “adverse act” and thus a finding of retaliation was not warranted.

Maye now appeals from the Commission’s decision and contends that: (1) he sufficiently established his claim of retaliatory discharge; and (2) the Commission exceeded its authority by implicitly overturning the ALJ’s findings of fact. Additionally, Maye requests reinstatement to his former position.

Maye argues that Fitzpatrick reviewed Maye’s attendance printout in retaliation for his filing of a discrimination charge. Fitzpatrick’s allegedly illegal review led to the discovery of the discrepancy in Maye’s funeral leave dates. Then, Allstate’s representatives held Maye responsible for his misrepresentation of his absence from work which was ultimately the cause of his discharge. The key, according to Maye, is that the chain of events which resulted in his termination began with Fitzpatrick’s illegally motivated investigation of Maye’s file.

In their responses, the Commission and Allstate assert that Fitzpatrick’s review of Maye’s attendance printout was initiated by Maye himself when he made inquiries about the number of occurrences constituting his absences from work and Allstate’s inadvertent discovery of Maye’s deception regarding funeral leave did not establish a prima facie case of retaliation under the Act. In addition, the Commission and Allstate contend that the reason articulated for firing Maye, i.e., loss of confidence in Maye’s ability to be an effective supervisor, was a legitimate business reason, not a pretext for discrimination.

The scope of our review of the Commission’s decision is limited by section 8 — 111(AX2) of the Act, which mandates that “[i]n any proceeding brought for judicial review, the Commission’s findings of fact shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1989, ch. 68, par. 8—111(A)(2).) Accordingly, the function of the reviewing court is restricted to ascertaining whether the final decision of the Commission is against the manifest weight of the evidence. Shah v. Human Rights Comm’n (1989), 192 Ill. App. 3d 263, 272, 548 N.E.2d 695; Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 180, 496 N.E.2d 1138.

The dispute in the present case focuses on whether the facts establish a violation of section 6 — 101(A) of the Act, which provides in relevant part as follows:

“It is a civil rights violation for a person, or for two or more persons to conspire, to:
*** [Retaliate against a person *** because he or she has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act.” Ill. Rev. Stat. 1989, ch. 68, par. 6—101(A).

In analyzing employment discrimination actions brought under the Act, the Illinois Supreme Court adopted the same three-part test enunciated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.

The three-step analysis as stated in Zaderaka provides:

“[1] First, plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against plaintiff. [2] Second, to rebut the presumption, the employer must articulate, not prove [citation], a legitimate, nondiscriminatory reason for its decision.
Finally, if the employer carries its burden of production, the presumption of unlawful discrimination falls and plaintiff must then prove by a preponderance of the evidence that the employer’s articulated reason was not its true reason, but instead a pretext for unlawful discrimination. This merges with plaintiff’s ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against plaintiff. [Citation.] This ultimate burden remains at all times with plaintiff.” Zaderaka, 131 Ill. 2d at 178-79, 545 N.E.2d 684.

To establish a prima facie case of retaliation under the Act, as required in the first step of the Zaderaka test, a plaintiff employee must show that: (1) he engaged in a protected activity; (2) the employer committed an adverse act against him; and (3) a causal nexus existed between the protected activity and the adverse act. Burton & Illinois Bell Telephone Co. (1985), 17 Ill. HRC Rep. 21, 29.

In the present case, the first prong of establishing a prima facie case is satisfied because filing a race discrimination charge, as Maye did, is indisputably a protected activity.

According to the Commission’s decision, Maye failed to satisfy the second prong of establishing a prima facie case, i.e., an adverse act committed by Allstate. The Commission specifically stated as follows:

“In order to prove a case of retaliation the complainant must prove that after he engaged in protected activity, an ‘adverse act’ was taken against him. [Citation.] It cannot be said that Mr. Fitspatrick’s [sic] glance at the bottom of the printout was an ‘adverse act’ within the meaning of our precedent. The glance did not inflict injury, and it was not the proximate cause of injury. The proximate cause of Maye’s termination was his own misrepresentation.”

We believe that the manifest weight of the evidence does not support the Commission’s decision that the action taken by Fitzpatrick did not constitute retaliation within the meaning of the Act.

The facts reveal that Fitzpatrick reviewed Maye’s attendance records only because Maye had filed a discrimination charge. First, the job duties of Fitzpatrick as the human resources department manager did not include resolving controversies over the number of occurrences listed for a unit supervisor such as Maye. Thus Fitzpatrick went outside the established chain of command to address a dispute concerning an employee who had filed a discrimination charge.

Second, on May 5, 1986, Maye only requested his personnel file from Eiden, whose job it was to make personnel records available. Maye neither requested an attendance printout since he already had it nor any intervention in his dispute over the number of occurrences listed on the printout. Maye’s sole purpose in going to the human resources department was to obtain his personnel file to see if it contained a letter from his doctor about his absence from work for foot surgery.

Third, in May 1986, Maye was only concerned with the number of occurrences attributed to him due to his absence for foot surgery in December of 1985 and January of 1986. Not only was the issue of Maye’s absence from work for funeral leave already resolved when he returned to work on February 11, 1986, but also funeral leave was not considered an occurrence by Allstate.

Fourth, instead of returning Maye’s personnel file when Eiden informed him of Maye’s request, Fitzpatrick kept the file and had Eiden generate Maye’s attendance printout. Fitzpatrick had already responded to Maye’s discrimination charge three weeks earlier and under normal business practice would have returned the file to its regular location.

Fifth, the scope of Fitzpatrick’s review of Maye’s attendance printout exceeded the types of absences characterized as occurrences. Fitzpatrick examined the days listed for Maye’s absence due to foot surgery, other absences defined as occurrences, and funeral leave days which are not considered occurrences.

Sixth, Fitzpatrick misrepresented the origin of his investigation to his superiors by stating that Maye had requested a review of his attendance records to consider two occurrences, absence for foot surgery and funeral leave. Maye had not made any inquiry of Eiden, let alone Fitzpatrick, concerning his absences.

Moreover, Fitzpatrick’s review of Maye’s attendance record occurred only three months after Maye filed a discrimination charge. A prima facie case of retaliatory discharge can be established by showing a short span between the time a competent employee filed a discrimination charge and the time of the employer’s adverse action. (State v. Human Rights Comm’n (1989), 178 Ill. App. 3d 1033, 534 N.E.2d 161 (16 days after the employee filed a discrimination charge she was forced to take administrative leave and was ultimately discharged); Heeren Co. v. Human Rights Comm’n (1986), 150 Ill. App. 3d 234, 502 N.E.2d 17 (one week after the employer received notice of the discrimination charge, the complaining employee was fired); Loyola University v. Human Rights Comm’n (1986), 149 Ill. App. 3d 8, 500 N.E.2d 639 (only 37 days elapsed between the filed charge and the employer’s decision to fire the complaining employee); Alexander v. Illinois Fair Employment Practices Comm’n (1980), 83 Ill. App. 3d 388, 403 N.E.2d 1271 (less than two months passed between the filing of a complaint and the employee’s termination); Washington & Groen Division/Dover Co. (1985), 19 Ill. HRC Rep. 106, 119 (a 4½ month period was deemed sufficient to establish a causal connection).) Thus, in the present case, the three-month time period between the filing of Maye’s discrimination charge and Fitzpatrick’s review of Maye’s attendance record is sufficiently suspect to establish a prima facie case of retaliatory discrimination when reviewed in the context of all the facts of this case.

Absent the adverse act of Fitzpatrick’s initiation of an investigation into Maye’s attendance record, the issue of Maye’s whereabouts on February 7 would never have been raised. Indisputably, his absence in February was the cause of his discharge. Accordingly, Maye established a prima facie case of retaliation under the Zaderaka test.

Once a prima facie case of retaliation has been established, the employer must articulate a legitimate, nondiscriminatory reason for its decision to discharge the employee. (Zaderaka, 131 Ill. 2d at 178-79.) Allstate maintains that it discharged Maye because it had lost confidence in Maye’s ability to be a supervisor since Maye misrepresented or was unable to explain his whereabouts on February 7 and 10. Allstate’s reason does not rebut Maye’s case because it does not address the adverse act, i.e., Fitzpatrick’s initiation of an investigation into Maye’s attendance record prompted by Maye’s filing of a discrimination charge.

To allow an unlawful initiation of an investigation to justify the use of negative information obtained from the investigation virtually invalidates the statutory prohibition against retaliation. The protections afforded by the Human Rights Act cannot be compromised. To condone discrimination clearly contravenes the public policy expressly declared in the Act. (Ill. Rev. Stat. 1989, ch. 68, par. 1—102.) The mission of the Act is to prevent and eliminate discriminatory practices. The Act specifically declares that it is the State’s public policy to secure freedom from discrimination for all individuals. (Ill. Rev. Stat. 1989, ch. 68, par. 1—102(A).) Retaliatory discharges discourage employees from asserting their rights under the Act. Such action by an employer has a chilling effect on the stated goals and policies of the Act.

After a careful examination of the facts in this case, we find that the Commission’s decision was against the manifest weight of the evidence. In light of our decision, we need not reach the second issue raised by Maye as to whether or not the Commission’s decision improperly invaded the province of the ALJ.

Accordingly, we reverse the order of the Commission and remand for further proceedings consistent with our opinion.

Reversed and remanded.

CERDA, P.J., and RIZZI, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME WILSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—2332
    Opinion filed December 27, 1991.
    Randolph N: Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.

      John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Carrie Weiner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a bench trial, defendant, Jerome Wilson, was convicted of attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4, 9—1), armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2), attempted armed robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4, 18—2), and forcible detention (Ill. Rev. Stat. 1989, ch. 38, par. 10—4). Defendant was sentenced to life in prison. We affirm in part, reverse in part, and vacate in part.

The following issues are before this court for review: (1) whether the State proved beyond a reasonable doubt that defendant had the specific intent to kill the victim; and (2) whether defendant’s convictions for attempted armed robbery and three counts of armed robbery must be reversed and his sentences vacated.

Gus Siaphares, Arthur Wagg, Roger Mattioli, Douglas Jensen, Dorine Chraca, and a man named George were in Gus’ Lounge bar located at 7000 West Diversey in Chicago, Illinois, on September 7, 1989, during the early morning hours. Siaphares was the bartender and owner. Wagg, Mattioli, Jensen, Chraca, and George were all patrons.

Siaphares and Mattioli testified that a man, whom they later identified as defendant, entered the bar armed with a gun at 1:30 a.m. and said, “[T]his is a stick-up.” The witnesses testified that defendant then grabbed Mattioli and placed a gun to his head. Siaphares and Mattioli further testified that Siaphares told defendant to take all the money he wanted but to leave his customers alone. The witnesses stated that defendant then released Mattioli, fired his gun in the direction of the bar, jumped on top of the bar, and asked Siaphares where was his gun. Wagg and Jensen testified that defendant then told the patrons, “take off your jewelry, take out your money, [and] put it on the floor.” Mattioli escaped while defendant was standing on the bar, and he subsequently informed the police of the incident. Mat-tioli left before defendant robbed him of any property.

After Mattioli escaped from Gus’ Lounge, defendant collected property belonging to Siaphares and the bar patrons. Siaphares testified that defendant took his wallet, which contained $120, his wrist watch, and $200 from the bar cash register. Siaphares also testified that he saw defendant take money from Chraca and Jensen. Jensen testified that defendant also took a ring and a wrist watch from him. Chraca testified that defendant robbed her of two rings. In addition, Wagg testified that defendant stole $20 from him. Wagg and Jensen testified that they saw defendant take money from George. George did not testify about the robbery.

Siaphares testified that defendant approached the front door of the tavern after he robbed the patrons and that the police told him to drop his gun. Siaphares further stated that defendant reentered the bar and tried to escape from the back door, which was locked. Chraca and Siaphares testified that defendant then grabbed Chraca’s hair and that defendant pulled Chraca through the front door by her hair and announced, “I have a hostage with me.” Siaphares and Chraca testified that they heard gunfire after defendant and Chraca moved outside.

Police officer Mark Sanders testified that he followed defendant and Chraca after they exited the tavern. Officer Sanders maintained that he was about 15 feet away from defendant when defendant “reached around his body *** in front of the hostage, *** aimed the revolver in my direction, *** and fired a shot.” Officer Sanders was shot in his right foot. Several police officers then fired their guns at defendant. Defendant was shot at that time. Officer Sanders then approached defendant, handcuffed him, and arrested him.

After closing arguments, the trial court found defendant guilty of the attempted murder of Officer Sanders, all counts of armed robbery, the attempted armed robbery of Mattioli, and the forcible detention of Chraca.

At the sentencing hearing, defendant was found to be an habitual offender (Ill. Rev. Stat. 1989, ch. 38, par. 33B—1(a)), and sentenced to life imprisonment for the offense of attempted murder, six concurrent life imprisonment terms for each count of armed robbery, 15 years concurrent for attempted armed robbery, and seven years concurrent for forcible detention.

Defendant first contends that the State failed to prove beyond a reasonable doubt that he had the specific intent to kill Officer Sanders. The People maintain that the requisite mental state has been proven because defendant fired a gun at Officer Sanders and Officer Sanders was hit by a bullet from the same gun.

A criminal conviction will not be reversed unless the evidence is so improbable or unconvincing that it creates a reasonable doubt of the defendant’s guilt. (People v. Trimble (1991), 220 Ill. App. 3d 338, 350; People v. Schorle (1990), 206 Ill. App. 3d 748, 758, 565 N.E.2d 84, 90.) When a conviction is challenged based upon the sufficiency of the evidence, the relevant question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Trimble, 220 Ill. App. 3d at 350; Schorle, 206 Ill. App. 3d at 759, 565 N.E.2d at 91.

A defendant must have the specific intent to commit murder in order to be found guilty of attempted murder. (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4, 9—1; People v. Mitchell (1981), 98 Ill. App. 3d 398, 402, 424 N.E.2d 658, 661.) Intent is a state of mind which, if not admitted, may be established by proof of the surrounding circumstances including the nature of the assault, and the use of a deadly weapon. (People v. Winters (1986), 151 Ill. App. 3d 402, 405, 502 N.E.2d 841, 843.) The fact that a defendant fires a gun at a person supports the conclusion that said defendant did so with the intent to kill. People v. Thorns (1978), 62 Ill. App. 3d 1028, 1031, 379 N.E.2d 641, 643.

Upon viewing the evidence in the light most favorable to the State, we find that the trier of fact could have found beyond a reasonable doubt that defendant had the requisite specific intent to kill Officer Sanders. Officer Sanders testified that defendant “reached around his body and in front of the hostage, *** aimed the revolver in my direction, at me, and fired a shot.” The fact that defendant fired the gun at Officer Sanders evinces defendant’s intent to kill him.

Defendant next contends that his convictions for attempted armed robbery and three counts of armed robbery must be reversed and his sentence vacated because multiple convictions may not be based upon the same physical act, and because the State failed to prove the elements of one of the counts. A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1989, ch. 38, par. 8—4.) The record shows that defendant entered the bar, announced “[T]his is a stick-up,” and grabbed Mattioli and held a gun to his head. Mattioli later fled the bar before defendant could rob him. In the present case, the steps taken in furtherance of the attempted armed robbery of Mattioli were the same steps defendant took in furtherance of the armed robberies of the other patrons. “[W]e cannot use the same act to carve out separate convictions.” (People v. Triplett (1985), 138 Ill. App. 3d 1070, 1074, 487 N.E.2d 39, 42.) Accordingly, we cannot sustain defendant’s conviction and sentence for attempted armed robbery.

In addition, defendant’s conviction and sentence on count VI for armed robbery cannot be sustained. Defendant was convicted of counts IV and VI for armed robbery. Count IV alleged that defendant committed the offense of armed robbery when he “took watch, wallet, and United States currency from the person and presence of Gus Siaphares.” Count VI alleged that defendant committed armed robbery when he “took United States Currency from the presence of Gus Siaphares.”

A person commits armed robbery when he takes property from the person or presence of another by force, or by threatening the imminent use of force while he is armed with a dangerous weapon. (Ill. Rev. Stat. 1989, ch. 38, par. 18—2.) In People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, however, we ruled that a defendant may not be convicted and sentenced on two counts of armed robbery where the defendant entered a restaurant, robbed the complainant of his wallet and removed money from the restaurant safe. The Velleff court, in vacating one count of armed robbery, held that “the act of taking the wallet and the contents of the safe occurred simultaneously and in the same room and therefore fall within the prohibition that multiple convictions and concurrent sentences are not permissible when more than one offense is carved from the same physical act.” Velleff, 94 Ill. App. 3d at 826, 419 N.E.2d at 93-94.

The facts in Velleff are analogous to the facts in the present case. In the instant case, defendant took money, a wallet and a watch from Siaphares as well as $200 from the bar cash register simultaneously and in the same room. Therefore, the trial court erred when it convicted and sentenced defendant on two counts of armed robbery. Accordingly, defendant’s conviction on count VI must be reversed and his sentence vacated.

Finally, defendant’s conviction and sentence for armed robbery based on count IX must be reversed and his sentence vacated. Count IX alleged that defendant committed the offense of armed robbery when he “took United States currency from the person and presence of George Flashing.” “In a criminal trial, it is the burden of the prosecution to prove beyond a reasonable doubt all material facts of the offense as charged by the indictment.” (People v. Daniels (1979), 75 Ill. App. 3d 35, 40, 393 N.E.2d 667, 672.) In the present case, the State failed to introduce proof of the material facts alleged in the indictment. Two witnesses testified that defendant robbed a man named George. None of the witnesses, however, ever revealed George’s last name. In addition, George himself did not testify about the incident. We therefore hold that the State failed to prove beyond a reasonable doubt that the “George” whom defendant robbed was in fact George Flashing. Accordingly, defendant’s conviction and sentence as to count EX cannot be sustained.

Although defendant’s convictions for attempted armed robbery and three counts of armed robbery are reversed, there is no reason to remand this case for resentencing because we affirm the remaining convictions and sentencing. Accordingly, we do not remand. We affirm defendant’s conviction for three counts of armed robbery and his sentence of life imprisonment as to each count. In addition, we affirm defendant’s conviction and seven-year term of incarceration for forcible detention.

For the aforementioned reasons, we affirm in part, reverse in part, and vacate in part.

Affirmed in part; reversed in part and vacated in part.

CERDA, P.J., and GREIMAN, J., concur.