author: JUSTICE BOWMAN

text:
    DIANA M. VIIRRE, Plaintiff-Appellant, v. ZAYRE STORES, INC., n/k/a TJX Companies, Inc., et al., Defendants-Appellees.
    Second District
    No. 2—90—0753
    Opinion filed April 25, 1991.

      James J. Friedman, of Waukegan, for appellant.
    Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan (Michael K. Noonan, of counsel), for appellee Leased Pet Departments, Inc.
    No brief filed for appellee Zayre Stores, Inc.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Diana Viirre, brought an action in negligence against defendants, Zayre Stores, Inc., n/k/a TJX Companies, Inc. (Zayre), and Leased Pet Departments, Inc. (Leased Pet), seeking recovery for injuries allegedly sustained when dog beds in the Zayre pet department fell from a shelf and struck her on the head. Plaintiff appeals from various orders of the circuit court of Lake County dismissing count II of her second amended complaint against defendant Leased Pet and granting partial summary judgment in favor of defendant Zayre on plaintiff’s fourth amended complaint.

Plaintiff purports to raise the following issues on appeal: (1) whether defendant Leased Pet should be equitably estopped from raising the statute of limitations as a defense to plaintiff’s second amended complaint; (2) whether plaintiff’s second amended complaint adding Leased Pet as a defendant after the expiration of the statute of limitations should be deemed to relate back to the date of the filing of plaintiff’s original complaint; (3) whether the trial court’s November 20, 1989, order dismissing defendant Leased Pet constitutes res judicata on the issue of defendant Zayre’s vicarious liability for the alleged negligence of defendant Leased Pet; and (4) whether Supreme Court Rule 273 (134 Ill. 2d R. 273) and section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619) are punitive in nature and violative of the Blinois and United States Constitutions. For reasons which will be made clear later in this opinion, defendant Zayre’s failure to file an appellee’s brief is immaterial. We will proceed under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The following chronology of events is relevant to the issues on appeal. In December 1986, defendant Zayre was a general merchandise, self-service store located in Waukegan, Illinois. Defendant Leased Pet was an Blinois corporation and a wholly owned subsidiary of Brasie Enterprises, Inc. Defendant Leased Pet leases space from discount stores to sell retail pet supplies. The working relationship, obligations and responsibilities between defendants Zayre and Leased Pet are pursuant to a master license agreement.

On December 28, 1986, plaintiff, while shopping in the pet department at defendant Zayre’s store in Waukegan, Blinois, was allegedly struck on the head and injured when metal dog beds fell from a shelf. On January 21, 1987, plaintiff’s attorney sent an explanatory letter and a notice of attorney’s lien to defendant Zayre. On January 28, 1987, plaintiff’s attorney sent a similar letter and notice of attorney’s lien to defendant Leased Pet. On February 13, 1987, defendant Leased Pet’s insurer, American States Insurance Companies, sent a letter to plaintiff’s attorney acknowledging receipt of plaintiff’s claim. On February 20, 1987, defendant Zayre’s insurer, Liberty Mutual Insurance Group, sent a letter to plaintiff’s attorney acknowledging receipt of the attorney’s lien, and indicating that they were handling the claim. On July 8, 1987, Donald Hagen of American States Insurance, on behalf of Brasie Enterprises, informed plaintiff’s attorney by letter that American States had concluded its investigation into plaintiff’s claim and found that, since the insured had no control over the operation of the Zayre store involved, American States would be unable to consider the claim.

On May 4, 1988, plaintiff filed a one-count complaint sounding in negligence against defendant Zayre. Defendant Zayre filed its answer to plaintiff’s complaint on June 30, 1988. On November 9, 1988, plaintiff’s attorney received a letter from Endispute, Inc., an independent arbitration and mediation service, notifying plaintiff that an agent for defendant Zayre requested and Endispute undertake to negotiate or mediate the settlement of plaintiff’s claim. On November 14, 1988, plaintiff’s attorney responded to Endispute’s offer and indicated that plaintiff would be willing to cooperate and participate in any settlement process.

On November 28, 1988, defendant Zayre filed a third-party complaint against defendant Leased Pet. On February 15, 1989, attorneys for defendant Leased Pet filed their appearance. On April 6, 1989, the attorneys for defendant Leased Pet were substituted for the attorneys for defendant Zayre and thereby became the attorneys of record for both defendants.

On June 26, 1989, defendant Zayre filed a motion for summary judgment, arguing that defendant Zayre’s employees did not maintain, control or work in the area under lease to defendant Leased Pet. On July 10, 1989, plaintiff filed her first amended complaint adding Leased Pet as a defendant. On September 6, 1989, plaintiff filed her second amended complaint, pleading separate counts, both sounding in negligence, against defendants Zayre and Leased Pet. On September 18, 1989, defendant Zayre filed its answer to count I of the second amended complaint, and defendant Leased Pet filed a motion to dismiss count II of the second amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). Defendant Leased Pet based its motion on the fact that it was added as a defendant after the expiration of the applicable two-year statute of limitations. On October 2, 1989, plaintiff filed cross-motions to defendant Zayre’s motion for summary judgment and defendant Leased Pet’s motion to dismiss. On November 20, 1989, the trial court granted defendant Leased Pet’s section 2— 619 motion to dismiss and denied both plaintiff’s and defendant Zayre’s motions for summary judgment.

On January 18, 1990, plaintiff filed her third amended complaint against defendant Zayre, its agents, servants, employees, partners and others, including Leased Pet. On January 30, 1990, plaintiff filed her fourth amended complaint, which was later amended on its face to read “Zayre, its agents, servants, employees, partners and including Leased Pet, Inc.” On March 1, 1990, defendant Zayre filed a motion for summary judgment, arguing that, pursuant to Supreme Court Rule 273 (134 Ill. 2d R. 273), the involuntary dismissal of defendant Leased Pet constituted an adjudication upon the merits of plaintiff’s claim against defendant Leased Pet and that therefore the count against defendant Zayre must fail since the alleged negligence of defendant Zayre was predicated upon the actions of defendant Leased Pet. On April 5, 1990, the trial court ruled that the court’s order of November 20, 1989, dismissing defendant Leased Pet was a dismissal with prejudice. In addition, the court granted defendant Zayre a partial summary judgment, holding that aU claims against defendant Zayre predicated upon the acts or omissions of former defendant Leased Pet or its employees were barred.

On June 4, 1990, plaintiff filed her fifth amended complaint alleging that her injuries were caused by the negligence of defendant Zayre, its agents, servants, employees, partners and joint venturers. On July 5, 1990, the trial court, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), ruled that its orders of November 20, 1989, and April 5, 1990, were final and enforceable orders and that there was no just cause or reason for delaying their enforcement or appeal. Pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), the trial court also certified two questions for review regarding piercing the corporate veil of former defendant Leased Pet.

On July 10, 1990, plaintiff filed her notice of appeal pursuant to Supreme Court Rules 304(a) and 308 (134 Ill. 2d Rules 304(a), 308). However, plaintiff failed to file the requisite Rule 308 petition in a timely fashion. Therefore, this court on August 14, 1990, denied plaintiff’s belated Rule 308 application for leave to appeal. On November 16, 1990, defendant Zayre filed a motion to strike portions of plaintiff’s brief pursuant to Supreme Court Rule 375(a) (134 Ill. 2d R. 375(a)). This court, on November 27, 1990, ordered that this motion be taken along with the other issues presented on appeal.

We first address defendant Leased Pet’s motion to strike portions of plaintiff’s brief. On July 5, 1990, the trial court, pursuant to Supreme Court Rule 304(a), ordered that:

“(1). The Court Orders of November 20, 1989 and April 5, 1990 are final Orders since they dispose of one of the Defendants, Leased Pet Depts., Inc. and any claims based on the acts or omissions of Leased Pet Depts., Inc. These Orders and rulings of November 20, 1989 and April 5, 1990 are final and enforceable Orders and there is no just cause or reason for delaying their enforcement or appeal.”

Also on July 5, 1990, the trial court, pursuant to Supreme Court Rule 308, certified two issues for appeal. The questions certified were:

“A. ISSUE: Is The Corporation Whose Veil Is Sought To Be Pierced And/Or Its Dominating And Controlling Corporation Or Individual Necessary Parties Where The Purpose Of Piercing The Corporate Veil Is To Prove The Vicarious Liability Of A Party-Defendant.
B. ISSUE: Will The Remedy Of Piercing The Corporate Veil Be Allowed To Prove That The Dominating And controlling Corporation Or Individual Of The Pierced Corporation Were The Agents, Servants, Partners Or [sic] Of The Remaining Defendant (i.e. Zayre) Thereby Establishing The Vicarious Liability Of The Defendant.”

In its motion, defendant Leased Pet argues that, while the dismissal of defendant Leased Pet falls within the purview of Rule 304, the partial summary judgment in favor of defendant Zayre falls outside that purview. In addition, defendant Leased Pet argues that the arguments contained in the portions of plaintiff’s brief which are the subject matter of the motion to strike are specifically directed to those issues certified pursuant to Rule 308, issues which, since plaintiff’s application was untimely, this court has refused to hear at this time. Specifically, defendant Leased Pet argues that pages 34 through 45 of the argument section of plaintiff’s brief and related portions of plaintiff’s points and authorities and statement of facts do not address the dismissal of defendant Leased Pet, but rather address the granting by the trial court of a partial summary judgment for defendant Zayre. Since the action against defendant Zayre is pending in the trial court, defendant Leased Pet maintains that defendant Zayre is not a proper party to this appeal and that inclusion of this material in plaintiff’s brief is improper.

We note initially that, while defendant Leased Pet’s motion asks this court to strike those portions of plaintiff’s brief that relate to the granting of partial summary judgment to defendant Zayre, the motion by its nature also raises the question of this court’s jurisdiction to review that order. Even though the parties do not specifically raise the issue, we have a duty to consider our jurisdiction and dismiss an appeal if jurisdiction is wanting. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.

Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) provides, in pertinent part, that in an action involving multiple parties or claims, an appeal may be taken from a final judgment as to one or. more but fewer than all of the parties or claims only if the trial court makes an express finding that there is no just reason for delaying enforcement or appeal. However, the fact that the trial court made a finding pursuant to Rule 304(a) does not necessarily mean that the order was final and appealable if the order was not in fact final. (American Federation of State, County & Municipal Employees v. State of Illinois (1989), 192 Ill. App. 3d 108, 111.) In fact, the committee comments to Rule 304(a) state:

“[I]t is not the court’s finding that makes the judgment final, but it is the court’s finding that makes this kind of a final judgment appealable.” (134 Ill. 2d R. 304(a), Committee Comments, at 245.)

The issue thus becomes whether the order granting defendant Zayre partial summary judgment was final and therefore appealable. An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof. Vijuk Bindery Equipment, Inc. v. Transconex, Inc. (1988), 171 Ill. App. 3d 408, 409-10; Village of Burnham v. Cook (1986), 146 Ill. App. 3d 124, 126.

Here, despite the trial court’s finding of no just reason to delay enforcement or appeal, the order granting defendant Zayre partial summary judgment was not a final judgment as to a separate claim appealable under Rule 304(a). Plaintiff’s single-count, fourth amended complaint did not involve multiple claims, but only a single claim of negligence. Where the bases of recovery for separate counts are different, and where the trial court makes the requisite finding, the dismissal of a count is appealable because it disposes of a distinct cause of action. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 25.) However, it is well settled that the statement of a single claim in several ways does not warrant a separate appeal. Cunningham, 22 Ill. 2d at 25; Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 271; Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733.

In the present case, plaintiff was given leave to file a fifth amended complaint but was precluded by the trial court from basing any of the claims against defendant Zayre on the acts or omissions of former defendant Leased Pet. The allegations subject to the summary judgment order do not constitute a separate claim from that alleged in the fifth amended complaint. Plaintiff’s fourth and fifth amended complaints both advance the same negligence claim, despite the absence of allegations as to defendant Leased Pet in the latter. Accordingly, as the fifth amended complaint is still pending below, we are without jurisdiction to review the nonfinal order granting partial summary judgment to defendant Zayre.

Because we believe this is a situation in which the trial court made an improper finding pursuant to Supreme Court Rule 304(a), and not a case where plaintiff failed to comply with Supreme Court Rule 375 (134 Ill. 2d R. 375), we deny defendant Leased Pet’s motion to strike portions of plaintiff’s brief.' For the reasons set forth above, however, in what amounts to a distinction without a difference, plaintiff’s appeal from the entry of partial summary judgment in favor of defendant Zayre, constituting argument sections D and E at pages 34 through 45 of plaintiff’s brief, is dismissed for lack of jurisdiction.

We next turn to the question of whether defendant Leased Pet is equitably estopped from asserting the statute of limitations as a defense to plaintiff’s second amended complaint. In Vaughn v. Speaker (1988), 126 Ill. 2d 150, the Dlinois Supreme Court set forth the following six elements of equitable estoppel:

“First, there must be words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts. Second, the party against whom the estoppel is alleged must have had knowledge at the time the representations were made that the representations were untrue. *** [Citation.] Third, the truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time that the representations were made and at the time that they were acted on by him. Fourth, the party estopped must intend or reasonably expect that his conduct or representations will be acted upon by the party asserting the estoppel or the public generally; the conduct and representations must be such as would ordinarily lead to the results complained of. [Citations.] Fifth, the party claiming the benefit of the estoppel must have in good faith relied upon the misrepresentation to his detriment. It has been said that this reliance must be reasonable, and that a party claiming estoppel cannot have acted improvidently. [Citation.] *** The sixth requirement is that the party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party is permitted to deny the truth thereof.” Vaughn, 126 Ill. 2d at 162-63.

Having set forth the above elements, we examine the facts which plaintiff asserts give rise to equitable estoppel in the present case. The essence of plaintiff’s argument is that defendants Zayre and Leased Pet induced plaintiff to refrain from joining Leased Pet as a defendant until after the expiration of the statute of limitations. The facts related to this basis for estoppel include plaintiff’s allegations that defendant Zayre and/or its insurance carrier investigated the initial claim; collected plaintiff’s medical bills and records; sent plaintiff a check for some medical services performed; referred the case to Endispute for mediation; hired attorneys to conduct discovery; and failed upon receipt of plaintiff’s initial complaint to immediately file a motion to dismiss or a motion for summary judgment based on the fact that defendant Leased Pet was an independent contractor. As to defendant Leased Pet, plaintiff implies that Leased Pet should have voluntarily stepped forward as the proper party defendant. Plaintiff also argues that a letter from defendant Leased Pet’s insurer to her attorney on July 8, 1987, whereby the insurer stated that its insured “has no control over the operation of the Zayre store involved,” constitutes conduct by Leased Pet that gives rise to estoppel.

We note at the outset that, as defendant Leased Pet points out, the. bulk of plaintiff’s argument on this issue is addressed to the activities of defendant Zayre which allegedly give rise to equitable estoppel. Of course, it is defendant Leased Pet, not defendant Zayre, against whom the estoppel must operate, since it was defendant Leased Pet that asserted the statute of limitations as a defense in the first place. Defendant Zayre cannot be estopped from asserting a defense it never raised. Nevertheless, we do not believe that any conduct of defendant Zayre or its insurer induced the plaintiff to refrain from filing against defendant Leased Pet until after the expiration of the statute of limitations.

Plaintiff’s allegation that defendant Zayre should have immediately filed dismissal or summary judgment motions disclosing the nature of the relationship between Zayre and Leased Pet is without citation to any pertinent authority, and we find it to be without merit. In this respect, it is important to note that defendant Zayre never made a concession of liability. To the contrary, defendant Zayre’s answer to plaintiff’s initial complaint specifically denied any of the acts of negligence enumerated in the complaint. Moreover, the complaint never alleged that defendant Zayre owned or operated the pet department within its store. We will not reward plaintiff for her neglect by faulting defendant Zayre for not correcting plaintiff’s errors. Finally, any doubt is resolved in defendant Zayre’s favor by its filing of a third-party complaint against defendant Leased Pet one month prior to the expiration of the statute of limitations. Plaintiff contends that the third-party complaint was insufficient to prevent application of estoppel, in that the third-party complaint merely alleged that according to the master lease agreement between Zayre and Leased Pet, Leased Pet was to defend the negligence action and indemnify Zayre should plaintiff prevail. Plaintiff’s characterization of the third-party complaint is incorrect. Count I of the third-party complaint alleged that Leased Pet was contractually obligated to maintain and run the pet department and sought statutory contribution. Count II alleged that Leased Pet was obligated to indemnify Zayre for any injuries which occurred in the pet department. Significantly, a copy of the license agreement was attached to the third-party complaint. Paragraph 9(A) of the general provisions of the agreement expressly states that in the operation of the pet department, defendant Leased Pet was considered an independent contractor. Thus, plaintiff was clearly put on notice of the possibility that Leased Pet was a proper party defendant.

As to defendant Zayre’s insurer, while it is true that the conduct of a defendant’s insurer which induces a plaintiff to reasonably believe that a claim will be settled may estop that defendant from relying on the statute of limitations as a defense (AXIA, Inc. v. Harbour Construction Co. (1986), 150 Ill. App. 3d 645, 655), it is also true that the mere pendency of negotiations conducted in good faith is insufficient to give rise to estoppel. (AXIA, 150 Ill. App. 3d at 655.) We cannot infer from the facts relating to settlement and negotiation of plaintiff’s claim that the conduct of defendant Zayre’s insurer was in any way calculated to lull plaintiff into a reasonable belief that the claim would be settled without suit.

As to defendant Leased Pet, plaintiff argues that the July 8, 1987, letter from defendant Leased Pet’s insurer to plaintiff’s attorney gives rise to equitable estoppel. We disagree. Plaintiff’s characterization of the letter is taken out of context and fails to tell the entire story. On January 28, 1987, plaintiff’s attorney sent Leased Pet a notice of attorney’s lien. The letter accompanying the notice stated that the attorney had been retained by plaintiff to represent her in a claim for damages as a consequence of an automobile accident. On February 13, 1987, Leased Pet’s insurer notified plaintiff’s attorney that they had received the notice of attorney’s lien, and that they were handling the claim. On July 8, 1987, Leased Pet’s insurer sent the above referenced letter to plaintiff’s attorney. In the letter, the insurer states that it has concluded its investigation into plaintiff's claim. The following paragraph from the letter is significant:

“We note that the date of the accident is on a Sunday, and our drivers do not make deliveries on Sundays. Moreover, a careful polling of the five drivers who might have made those deliveries previous to the date of loss has revealed that the practice was to simply deliver boxes of supplies to the' areas indicated in the Zayre store involved.”

The letter concludes by stating that unless plaintiff’s attorney possessed additional information which would alter the investigation, the insurer was unable to consider the claim.

Viewed in this light, it seems clear that, based on the January 28, 1987, letter from plaintiff’s attorney, defendant Leased Pet’s insurer conducted an investigation into an automobile accident at the Zayre store. After interviews with Leased Pet’s drivers provided no insight into the claim, the insurer concluded that consideration of the claim was unwarranted. We note that nothing in the record indicates that plaintiff’s attorney made any attempt to clear up any confusion or provide the insurer with further information regarding the claim. In fact, nothing in the record indicates any further contact between plaintiff and defendant Leased Pet or its insurer until after the third-party complaint against Leased Pet was filed. We do not view the letter of July 8, 1987, as conduct giving rise to equitable estoppel. Rather, we agree with defendant that plaintiff has failed to demonstrate activity by defendant Leased Pet, the party against whom the estoppel is to operate, which would give rise to equitable estoppel.

In the context of the facts presented here, we conclude that neither the conduct of defendant Zayre nor that of defendant Leased Pet was sufficient to establish an estoppel to prevent defendant Leased Pet from raising the defense of the statute of limitations.

Next, plaintiff contends that her first amended complaint adding Leased Pet as a defendant should be deemed to relate back to the date of the filing of her original complaint. To reiterate, the following dates are relevant to our treatment of this issue. On December 28, 1986, plaintiff was allegedly injured in defendant Zayre’s store. On May 4, 1988, plaintiff filed her initial single-count complaint against defendant Zayre. On December 28, 1988, the two-year statute of limitations expired. On July 10, 1989, plaintiff filed her first amended complaint, consisting of a single negligence count, adding Leased Pet as a defendant. On September 6, 1989, defendant filed her second amended complaint alleging separate counts of negligence against defendants Zayre and Leased Pet. On November 20, 1989, the trial court granted defendant Leased Pet’s section 2 — 619 motion to dismiss for failure to comply with the statute of limitations. For the following reasons, we conclude that plaintiff’s amended complaint cannot relate back to her original complaint against defendant Zayre.

Section 2 — 616(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(d)), which governs the addition of parties after the statute of limitations has run, provides in pertinent part:

“(d) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought ***, if all the following *** conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another ***; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1987, ch. 110, par. 2—616(d).

The parties appear to be in agreement that conditions (1), (4), and (5) above have been met. Plaintiff contends that all of the conditions have been met, while defendant Leased Pet argues that plaintiff has failed to meet conditions (2) and (3). However, if any one of the conditions of section 2 — 616(d) is not satisfied, then plaintiff cannot avail herself of the relation back doctrine. Thomson v. McDonald’s, Inc. (1989), 180 Ill. App. 3d 984, 987.

We first address the second condition of the statute, inadvertence. In support of her position that failure to join Leased Pet as a defendant was inadvertent, plaintiff simply refers us back to her statement of facts and equitable estoppel argument. It has been said that the word “inadvertence” means excusable ignorance, not excusable failure to act after the true facts are discovered. (Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 588.) Indeed, a plaintiff must act with reasonable diligence to add the proper parties after their identity becomes known. Campbell, 140 Ill. App. 3d at 588.

As noted previously, within one month of the occurrence at defendant Zayre’s store, plaintiff served defendant Leased Pet with a notice of attorney’s lien. In addition, 30 days prior to the expiration of the statute of limitations, defendant Zayre filed a third-party complaint against Leased Pet alleging that responsibility for plaintiff’s injuries, if any, lay with Leased Pet. Attached to the third-party complaint was the master license agreement between Zayre and Leased Pet, wherein defendant Leased Pet was described as an independent contractor in its relationship with defendant Zayre. Thus, the identity of defendant Leased Pet was clearly known to plaintiff within one month of the accident and the allegations in the third-party complaint were of record one month prior to the expiration of the statute of limitations. These facts tend to dissuade us from a finding that plaintiff was merely inadvertent.

Moreover, defendant Leased Pet argues that, from the date of filing her initial complaint on May 4, 1988, through the expiration of the statute of limitations on December 28, 1988, plaintiff failed to initiate any discovery. Plaintiff replies that the deposition of Zayre store manager Lee Suter was in fact taken. However, the record reveals that the deposition of Lee Suter was not taken until May 15, 1990, over two years after the expiration of the statute of limitations. The deposition of William S. Brasie of Brasie Enterprises, Inc., of which Leased Pet is a wholly owned subsidiary, was not taken until February 2, 1990. Defendant Leased Pet is correct in its assertion that the record demonstrates the absence of discovery by plaintiff prior to the expiration of the statute of limitations.

In light of the foregoing, we conclude that the inadvertence requirement of section 2 — 616(d) was not satisfied. As a result, there is no need to discuss plaintiff’s argument concerning the third condition of the statute, service on the correct party but in the wrong capacity. Therefore, the trial court did not err in dismissing count II of the second amended complaint on the ground that it was barred by the statute of limitations.

The plaintiff’s appeal from the trial court’s order granting summary judgment to defendant Zayre is dismissed. The court’s dismissal of defendant Leased Pet is affirmed.

Appeal dismissed in part; affirmed in part.

REINHARD, P.J., and McLAREN, J., concur..


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELMER RIVERA, Defendant-Appellant.
    Second District
    Nos. 2—89—0194 through 2—89—0200 cons.
    Opinion filed April 25, 1991.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Elmer Rivera, entered a plea of guilty to six counts of burglary and one count of escape in the circuit court of Lake County. He received a term of probation but subsequently violated it. Following a sentencing hearing after revocation of defendant’s probation, the trial court divided the burglary convictions into three groups and imposed concurrent four-year terms of imprisonment for each conviction in each group. It also imposed a four-year term for the escape conviction. All four four-year terms of imprisonment were to run consecutively to one another for a total of 16 years’ imprisonment. After a motion to reconsider the sentences was heard, the trial court divided the burglary convictions into two groups and imposed six-year concurrent terms for each conviction in each group. A four-year sentence for the escape conviction remained, and all three groups of sentences were to run consecutively to one another for a total of 16 years’ imprisonment. Defendant appeals and claims that the sentences are excessive.

On April 20, 1988, indictments were returned against defendant which charged him with 10 counts of burglary, one count of attempt (burglary), and one count of escape. At a hearing on June 2, 1988, the State informed the court of its plea negotiations with defendant. Pursuant to negotiations, defendant agreed to plead guilty to six counts of burglary and one count of escape; the remaining counts would be nol-prossed. In exchange the State would not recommend anything more than eight years in the Department of Corrections in total for all seven convictions, including a mandatory consecutive sentence required for escape.

The court advised defendant pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402) and then heard the factual basis for each count. In each burglary charge, a business establishment was involved, and almost all involved entry through the rooftop. The offenses occurred within a few weeks of one another. The factual basis for the escape count showed that on April 12, 1988, Waukegan police detective Richard Davis was remanding defendant to the Lake County jail when defendant broke free and ran away. Defendant was chased and caught by Davis. Defendant stipulated to the facts, and the trial court conditionally accepted defendant’s plea.

A sentencing hearing was held on July 6, 1988. Defendant and the State entered a stipulation regarding the factual basis of the counts which were nol-prossed by the State following defendant’s guilty plea. The State called Detective Davis to testify in aggravation. He spoke to defendant’s mother on April 11, 1988, following defendant’s arrest. She indicated that defendant had returned to Illinois from New York in February or March 1988, because he was in some type of trouble in New York. Davis also spoke to defendant’s stepfather. He told Davis that he would not allow defendant to live in the house because defendant had been in trouble since returning to Illinois. He did not want defendant to influence defendant’s younger sister who lived at home. He also told Davis that defendant had asked for money for a plane ticket to New York prior to defendant’s arrest.

Davis described defendant’s escape from Davis’ custody in April 1988. While chasing defendant, Davis fractured his foot and could not perform his normal duties as a police officer for about two months. Defendant told Davis that he learned how to break into business places from his uncle while defendant lived in New York. Davis also testified that there was an outstanding juvenile warrant for fourth-degree arson against defendant in New York since an arrest in December 1984.

Defendant testified in his own behalf. He was 17 years old. He had not seen his father for about seven years. Defendant said that he was beaten by his father and that he observed his father beat his mother and threaten her life. His father had a drug problem.

After defendant’s mother began living with her boyfriend, defendant did not get along with him. Defendant was sent to live in Puerto Rico when he was 13 years old. Defendant returned to Illinois but again was sent away to live in New York with his grandmother. His uncles in New York were drug dealers, and one of them committed burglaries.

Defendant said that he received his G.E.D. while he was in the Lake County jail. He told the court he would follow the rules of intensive probation because he had learned a lesson and wanted to improve his life. Defendant read a letter that he wrote to the trial judge the day before the hearing. In the letter defendant asked the court for mercy and admitted having made mistakes.

During cross-examination defendant admitted being arrested as a juvenile for arson in New York and not appearing for court. He denied beating his mother. He claimed his mother wanted him to return home despite a contrary indication in the presentence report. Defendant admitted being fired for “stealing” from Zayre Department store about a year ago.

Following arguments by counsel, the court sentenced defendant to 48 months of intensive probation on each of the seven counts to run concurrently. He was sentenced to an 18-month term of periodic imprisonment, but upon availability of a bed in the halfway house, defendant was to be moved there. Defendant was ordered to perform 250 hours of public service, to pay court costs and restitution.

On August 2, 1988, the State filed a petition for revocation of defendant’s probation. It was alleged that defendant was placed on intensive probation on July 6, 1988, and that he violated it when he left the Young Men’s Fellowship Halfway House on July 30, 1988, without permission and did not return. Defendant subsequently admitted to the allegations in the petition, and the matter proceeded to a sentencing hearing.

At the sentencing hearing on February 15, 1989, defendant submitted several letters from individuals who were in contact with defendant when he was incarcerated at Rikers Island in New York. When defendant left the halfway house, he travelled to New York. He was arrested in New York and spent a few months in jail there before being returned to Illinois. These letters were written by a clergyman (Brother), psychiatrist, social worker, an adult detainee/ law clerk, and defendant.

Defendant was called to testify on his own behalf. He said that he left the halfway house because there were too many gang members in the house as well as in the surrounding neighborhood. Defendant said he was not a member of a gang, but was asked constantly if he was. He was threatened to join a gang. Defendant did not talk to a counselor, the probation department or his attorney about his problem but decided not to stay at the halfway house. His mother would not let him stay with her so defendant went to New York to stay with his grandmother.

During cross-examination defendant was asked about his presentence investigation report wherein his counselor stated that defendant wore gang-related clothing. Defendant said that he did not know that certain colors meant gang affiliation because he was not a gang member. He said that he was always on time in returning to the halfway house. Defendant was only in the halfway house nine days when he left. He did not perform other conditions of his sentence such as public service, payment of costs, or restitution.

The trial court noted the seriousness of the number of burglaries as well as defendant’s escape conviction. It cited defendant’s violation of probation and that defendant posed a threat to society. The court imposed a sentence of four years’ imprisonment on each of the seven convictions. It then ordered some of the terms to run concurrently but that each sentence or group of concurrent sentences run consecutively to one another. In other words, defendant was sentenced to four consecutive sentences of four years each for a total of 16 years’ imprisonment.

Another hearing was held on February 23, 1989, pursuant to defendant’s motion to reconsider sentence. Defendant cited section 5 — 8—4(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(c)(2)) in arguing that the aggregate of consecutive sentences shall not exceed the maximum term for the two most serious felonies involved. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(c)(2).) The court then divided the six burglaries into two groups of three each. It imposed a six-year term of imprisonment on each conviction, each term to run concurrently with the terms in that group. The two groups were to run consecutively to each other, and a consecutive term of four years’ imprisonment for escape was ordered. In total defendant was ordered to serve 16 years in the penitentiary.

On appeal defendant contends that the trial court abused its discretion in sentencing him to consecutive terms of imprisonment on the burglary convictions. He also claims that it was an abuse of discretion to sentence him to more than the minimum term on the burglary convictions. Defendant points to his age, lack of a prior criminal record, the nonviolent nature of his crimes, his unstable family background, and his rehabilitative potential as factors which show an abuse of discretion in the sentences imposed. Defendant requests that the sentences for the burglary convictions be modified to run concurrently and that terms of imprisonment be reduced to three years for each burglary conviction.

Although defendant has not raised an issue with respect to the sentence imposed pursuant to his motion to reconsider sentence, we are concerned about the manner in which the trial court modified defendant’s sentences for the burglary convictions at the February 23, 1989, hearing. Defendant did raise the issue before the trial court. At the hearing to reconsider sentence, the trial court changed the groupings of burglaries from three groups to two groups. Each group was composed of three burglary convictions with the sentences on each to run concurrently to one another within the group and then the sentences for each group were to run consecutively to one another. This regrouping was done based upon the State’s request. The sentences on the burglary convictions are before this court in two consecutive groupings.

In regrouping the burglary sentences, the trial court changed the sentence on each burglary conviction from four to six years and ran each six-year term concurrently to those sentences in the group. The two groups were to run consecutively to one another. When defendant objected to this “increase,” the trial court found that defendant’s motion to reconsider brought the entire matter back before the court for resentencing. It . also noted that the total of the sentences was not increased but remained the same, i.e., 12 years.

Defendant’s motion to reconsider requested a reduction in defendant’s sentence, and the trial court had the power to reduce the sentence under section 5 — 8—1(c) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c)). However, the section expressly proscribes an increase in sentence after it is imposed. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c); People v. Hills (1980), 78 Ill. 2d 500.) In order to achieve a total of 12 years’ imprisonment, the trial court increased each burglary sentence from four years to six years in the two groups and then ran the groups consecutively to one another.

The trial court apparently believed that the entire matter of re-sentencing was before it based upon defendant’s motion, similar to a remand of resentencing under section 5—5—4. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—4; People v. Giller (1989), 191 Ill. App. 3d 710.) However, under section 5 — 8—1(c) a sentence may not be increased when a motion to reduce is made. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).) Although the total number of years for all of the sentences remained the same, the sentences for each group ordered to be served consecutively are not one sentence. (See generally People v. Cunitz (1978), 59 Ill. App. 3d 701, 705.) The fact that the total number of years remained the same due to the consecutive nature of the sentences does not change the fact that each individual sentence was increased. In this appeal, for example, should this court determine that consecutive sentences were not required, defendant would be faced with concurrent terms of six years’ imprisonment rather than four years’ imprisonment on each burglary conviction. The trial court improperly increased the individual sentences on the six burglary convictions, and we direct that the sentence for each burglary conviction be reduced from a six-year term of imprisonment to a four-year term of imprisonment. The remaining aspects of the sentences for the burglary convictions remain the same, i.e., two groups of burglary convictions; those sentences of four years’ imprisonment for convictions in the group to run concurrently; and the sentences for each group are to run consecutively to one another for a total of eight years’ imprisonment.

Defendant contends that the trial court abused its discretion in sentencing defendant to consecutive sentences for the burglary convictions although the trial court specifically found consecutive sentences were necessary to protect the public (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b)). He argues that consideration of the nature and circumstances of the offense and the history and character of defendant militate toward minimum concurrent sentences. He relies on his family history, age, lack of significant criminal record, and the nonviolent nature of the crimes to justify concurrent, minimum prison sentences. In addition, defendant asserts that the length of the terms of imprisonment does not reflect his potential for rehabilitation.

The imposition of a sentence is a matter of judicial discretion, and the standard of review to determine whether a sentence is excessive is whether a trial court abused that discretion. (People v. O’Neal (1988), 125 Ill. 2d 291; People v. Powell (1987), 159 Ill. App. 3d 1005.) In appropriate circumstances, Illinois appellate courts have reduced a defendant’s sentence from consecutive terms to concurrent terms. (People v. Griffin (1982), 113 Ill. App. 3d 184.) Consecutive sentences should be imposed sparingly. (Powell, 159 Ill. App. 3d at 1012.) The record must show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public. O’Neal, 125 Ill. 2d at 299; People v. Pittman (1982), 93 Ill. 2d 169.

The record supports the court’s finding that consecutive sentences were necessary to protect the public from further criminal conduct by defendant. The trial court considered the seriousness of the burglary offenses and the fact that defendant had committed the six offenses in a short span of time. Although defendant urges the nonviolent nature of the crimes, a crime need not be one of violence to be considered serious. (People v. Waud (1977), 69 Ill. 2d 588.) Consecutive sentences can properly be imposed for nonviolent crimes. (See People v. Hoyt (1984), 129 Ill. App. 3d 331.) A propensity toward criminal conduct may be considered in sentencing. (Hoyt, 129 Ill. App. 3d at 334; People v. Edmondson (1982), 106 Ill. App. 3d 716.) Defendant also had committed the offense of escape, a Class 2 felony.

The presentence report indicated that defendant’s criminal background consisted only of convictions of resisting/obstructing a peace officer and theft under $300. He was placed on six months’ conditional discharge and ordered to pay a fine, costs and fees for both. His troubled family history was also provided to the trial court in the presentence report and testimony at the hearing. Where mitigating evidence is before the court, it is presumed that the trial court considered it absent some indication, other than the sentence, to the contrary. (See People v. Abrego (1986), 142 Ill. App. 3d 973.) The court herein noted that it could have imposed a greater penalty.

Defendant’s age is of little consequence when a trial court determines that a lengthy term is warranted. (People v. Castro (1983), 114 Ill. App. 3d 984.) Herein, the trial court found that consecutive terms were necessary to protect the public after considering the nature and circumstances of the offenses and defendant’s history and character. Defendant relies on People v. Carini (1986), 151 Ill. App. 3d 264, and People v. Gray (1984), 121 Ill. App. 3d 867, where consecutive sentences were vacated because defendants were young and had had either no criminal record or only a misdemeanor conviction. However, in both cases consecutive terms were imposed for concealment of a homicidal death. Defendant’s offenses in the instant case involve numerous burglaries to businesses in a short span of time until he was arrested. The record supports a need to protect the public from further criminal conduct by defendant. Defendant’s troubled family history and lack of a significant criminal record need not outweigh the seriousness of the offenses or other aggravating factors. (See People v. Brajcki (1986), 150 Ill. App. 3d 506.) The imposition of consecutive sentences for the burglary convictions is supported by the record, and we find no abuse of discretion.

Defendant also contends that his rehabilitative potential is not reflected in the sentences. He refers to the letters submitted in mitigation and the fact that he pleaded guilty to the offenses and the probation violation. (People v. Bergman (1984), 121 Ill. App. 3d 100.) Although he acknowledges that he failed at his first opportunity at rehabilitation, he claims that it was unrefuted that he left the halfway house out of fear for his life from gangs. We note that the presentence report showed that defendant was confronted several times by the halfway house for wearing gang-related clothing and items. Also, defendant never sought any assistance from counselors or others regarding this problem but merely left the facility. He also travelled to New York.

In any event, the trial court was fully aware that defendant had pleaded guilty to the offenses and the probation violation. While defendant may not be sentenced on revocation of probation for the conduct constituting the probation violation, a trial court can properly consider defendant’s conduct while on probation to assess “rehabilitative potential.” (People v. Vilces (1989), 186 Ill. App. 3d 983, 986.) And, while rehabilitative potential must be considered, such consideration does not outweigh the seriousness of the offense or other aggravating factors. (Brajcki, 150 Ill. App. 3d at 515.) The imposition of four-year terms of imprisonment for each burglary conviction is not an abuse of discretion.

Although defendant has not raised an issue with respect to the four-year consecutive term of imprisonment for the escape conviction, we have determined from the record that the trial court improperly imposed a consecutive term of imprisonment for escape. Defendant was indicted for the offense of escape (Ill. Rev. Stat. 1987, ch. 38, par. 31—6(a)), on April 20, 1988, and subsequently pleaded guilty to that offense on June 2, 1988. Following a revocation of probation, defendant was sentenced on the escape offense to a four-year term of imprisonment to run consecutively to the sentences for the burglary convictions. It is apparent from the record of the February 23, 1989, hearing (as well as an indication at the February 15, 1989, hearing) that the trial court was operating under the belief that a consecutive term of imprisonment was mandatory for the escape conviction herein.

There are two separate escape provisions: section 31 — 6 of the Criminal Code of 1961 and section 3 — 6—4 of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, pars. 31—6, 1003—6—4.) There is no inconsistency between the two provisions and no reason to read either as creating any exception to the other. (People v. Simmons (1981), 88 Ill. 2d 270, 275.) The provisions simply express different, but harmonious, legislative concerns. (Simmons, 88 Ill. 2d at 275. ) It has been determined that the State is free to prosecute under whichever carries the greater penalty. Simmons, 88 Ill. 2d at 276.

Under section 5 — 8—4(g) of the Unified Code of Corrections, a sentence under section 3 — 6—4 for escape or attempted escape shall be served consecutively to the terms under which the defendant is held by the Department of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(g).) The statute mandates a consecutive sentence for this particular offense of escape, and a trial court would have no discretion to impose a concurrent sentence. (People v. Racinowski (1979), 78 Ill. App. 3d 954, 964.) Section 31 — 6 does not carry a mandatory consecutive sentence, although a consecutive sentence is permissible should one be required under the provisions of section 5 — 8— 4(b) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b)). See People v. Nelson (1975), 26 Ill. App. 3d 227; People v. Piper (1974), 20 Ill. App. 3d 94; People v. Gardner (1973), 15 Ill. App. 3d 255; see generally People v. Marble (1982), 91 Ill. 2d 242.

The record of the February 23, 1989, hearing shows that the parties debated whether defendant’s escape on April 12, 1988, after being remanded to the Lake County jail was an escape from a “penal institution.” Similar arguments have been raised by defendants over the issue of which provision of escape, section 31 — 6 or section 3 — 6— 4, should be applied to their offense for prosecution purposes. (E.g., Marble, 91 Ill. 2d 242; Simmons, 88 Ill. 2d 270.) However, we fail to see how this matter was relevant in determining whether a consecutive sentence was mandated herein. Defendant was indicted and pleaded guilty to escape as provided under section 31 — 6(a) (which in part concerns escape from a penal institution). (Ill. Rev. Stat. 1989, ch. 38, par. 31—6(a).) Section 31—6 does not require a mandatory consecutive sentence. The trial court failed to exercise its discretion in imposing a consecutive sentence for escape under the belief that such sentence was mandatory. See People v. Talley (1981), 97 Ill. App. 3d 439.

We ordinarily would remand the cause to the trial court for re-sentencing on the escape conviction to determine whether the sentence should run concurrently with a burglary conviction or consecutively to any of the burglary convictions. We are aware, however, that the trial judge has retired, and the imposition of a consecutive, four-year term of imprisonment for the escape conviction is not supported by the record. While there is a sufficient basis in the record to support two consecutive groupings of four-year sentences for the burglary convictions, totalling eight years of imprisonment, a second consecutive four-year term for escape is not justified on the basis of the record. The four-year term of imprisonment for escape is directed to run concurrently with the sentence in the burglary conviction in No. 88 — CF—589.

Based upon the foregoing, the judgment of the circuit court is affirmed, and the sentences are modified as follows: four years’ imprisonment for burglary convictions in Nos. 88 — CF—589, 88 — CF—590, and 88 — CF—625, each term to run concurrently with each other; four years’ imprisonment for burglary convictions in Nos. 88 — CF— 591, 88 — CF—592, and 88 — CF—593, each term to run concurrently with each other; the terms of imprisonment for Nos. 88 — CF—591, 88 — CF—592, and 88 — CF—593 to run consecutively to the terms of imprisonment in Nos. 88 — CF—589, 88 — CF—590, and 88 — CF—625; and a four-year term of imprisonment for No. 88 — CF—596 to be served concurrently with the term of imprisonment imposed in No. 88 — CF—589. Credit for time served as previously provided in the mittimuses remains in place and is not affected by this modification.

Affirmed in part; modified in part.

WOODWARD and INGLIS, JJ., concur.


author: JUSTICE WELCH

text:
    ROBERT STOFER et al., Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF EFFINGHAM et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0626
    Opinion filed April 11, 1991.
    Rehearing denied May 28, 1991.

      McGaughey & McGaughey, of Lawrenceville, and Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Guy E. McGaughey, Jr., and Timothy S. Richards, of counsel), for appellants.
    Wildman, Harrold, Allen & Dixon, of Chicago (Richard P. Glovka, Thomas E. Patterson, and Robert T. Gruenberg, of counsel), for appellees Bernard 0. Nelson, Jack W. Graham, and Paul Stockman.

      Mitchell K. Shick, of Harlen Heller, Ltd., of Mattoon, for appellees First National Bank of Effingham, Eugene E. Gibson, George G. Banks, Leonard H. Dust, Max H. James, James R. McDaniel, Frank H. Schniederjon, Paul F. Taylor, and Lowell D. Samuel.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, Robert and Marcia Stofer, appeal from summary judgment entered by the circuit court of Effingham County on August 14, 1989, in favor of defendants, First National Bank of Effingham, Bernard 0. Nelson, Sam P. Sgro, Jack W. Graham, Eugene E. Gibson, George G. Danks, Leonard H. Dust, Max H. James, James R. McDaniel, Frank H. Schniederjon, Paul F. Taylor, Lowell D. Samuel, Norbert R. Pudenz, and Paul Stockman. The court entered summary judgment in favor of all defendants although only Nelson, Graham and Stockman had filed a motion for summary judgment. The remaining defendants except Sgro had filed a motion to dismiss plaintiffs’ second amended complaint. The complaint as amended alleged in its five counts the following causes of action: intentional interference with the right to dispose of one’s property, tortious interference with a business expectancy of economic gain with plaintiffs’ dealership customers, tortious interference with franchise contracts between plaintiffs and General Motors (GM), conspiracy, and tortious interference with plaintiffs’ contractual relationship and business expectancy with their two corporations. The bases for summary judgment which Nelson, Graham, and Stockman argued and with which the court below agreed, were collateral estoppel as a result of and judicial admissions of plaintiffs in United States v. Bob Stofer Oldsmobile-Cadillac, Inc. (S.D. Ill. Oct. 8, 1987), No. 83—4086, one of the many cases which this unfortunate set of facts has engendered. Because resolution of the issues plaintiffs raise on appeal turn upon the Federal courts’ opinions in United States v. Bob Stofer Oldsmobile-Cadillac, Inc. (S.D. Ill. Oct. 8, 1987), No. 83—4086, aff'd (7th Cir. 1988), 853 F.2d 1392, our recitation of facts shall be based on transcripts of testimony therefrom and the findings of fact in the judgment orders therein, both of which have been made part of the appellate record in the instant case.

Plaintiffs operated an automobile dealership known as Bob Stofer Oldsmobile-Cadillac, Inc., and an automobile leasing company known as ROLA, Inc., in Effingham, Illinois, for a number of years. Plaintiffs were the sole shareholders in each corporation. Plaintiffs individually owned the business real estate which they in tarn leased to the corporations. Their personal residence and the business property were mortgaged to the Small Business Administration to secure a $667,000 mortgage note. The First National Bank of Effingham as well as the Effingham State Bank held used- and leased-car inventory of the two corporations as security for other loans to plaintiffs. In May 1982, after agents of First National Bank of Effingham had come to the dealership to check coUateral, plaintiffs admitted to the bank’s president, Eugene Gibson, that they had sold certain vehicles which were part of the banks’ security without turning over the proceeds thereof to reduce their debt with the banks.

Gibson called a meeting between plaintiffs and representatives of the two banks. Gibson and Banks represented First National, and Jack Graham and Frank Kabas represented Effingham State Bank. Plaintiffs confessed to the bank representatives that the amount of collateral sold “out of trust” was approximately $200,000 but that they had found it necessary to apply the collateral proceeds to other expenses in order to keep the two corporations afloat. The parties concluded at the end of this meeting that it was in their respective best interests to keep the businesses viable for the time being, but the banks would require plaintiffs to agree to certain supervision and to put up substitute collateral. The dealership operations would be supervised by Graham, who had formerly operated a Chrysler franchise, and his assistant Paul Stockman, and Graham’s name was to be added as a required signature to the corporate checking accounts. Plaintiffs were also required to place both the business property and their personal residence in a land trust with the First National Bank as trustee and holder of the beneficial interest. Plaintiffs testified at the Federal trial and allege in the instant complaint that they only agreed to the banks’ demands because they were threatened with involuntary bankruptcy, with the bringing of criminal charges, and that they could have their children taken from them. The Federal court found that at this point in time it was clear that the Stofers were in the midst of a serious financial crisis, that the banks were exerting a fair amount of pressure on them to come up with a method of insuring solvency or finding someone willing to support or buy the business, that the seriousness of the actions of selling off secured automobiles without paying off the obligations was driven home hard to the Stofers by bank representatives, and that the banks were concerned that a sizable investment was about to go under and were searching for a method to save it.

Robert Stofer contacted Sam Sgro, an acquaintance from Springfield, Illinois, in the automobile business, to see if he would be interested in investing in the dealership. Although Sgro decided not to invest in the corporation, he was interested in purchasing it. In this regard, he and Bernard Nelson, another automobile dealer, met with Stofer to discuss a sale of the business to them. The negotiations involved a sale of the corporate stock and contemplated transfer of all assets, including the business property, in return for assumption of all liabilities. When negotiations broke down during the first week of July 1982, Eugene Gibson of the First National Bank served as an intermediary among the parties. Gibson arranged for the bank’s attorneys to prepare the purchase contracts and reassured the attorney drafting the agreements that Stofer had agreed to cooperate in gaining an award of the General Motors franchise to the buyers. Plaintiffs’ franchise agreement disallowed an outright transfer of the franchise and provided that if there was a transfer of ownership the franchise agreement would terminate.

Plaintiffs were represented in the negotiations after July 4, 1982, by their present attorney, Mr. McGaughey. The banks were putting considerable pressure on the Stofers to sell the business, and McGaughey was brought in to counter the pressure. McGaughey kept in very close contact with the Stofers during the negotiations. He was successful in obtaining a cash payment of $20,000 for the Stofers as part of the final agreement, which was executed on July 8, 1982. In this agreement, plaintiffs deeded their interest in three parcels of real estate described in the agreement and transferred the stock of both corporations in exchange for the cash payment of $20,000 and an assumption and indemnification agreement by Sgro and Nelson for all liabilities, including the Small Business Administration mortgage.

Sgro became disenchanted with the agreement shortly after its execution because he felt Stofer had misrepresented the amounts of certain business liabilities. In order to prevent a collapse of the deal, Gibson was successful in convincing Jack Graham to step in. Sgro and Nelson assigned all their interest as buyers in the July 8, 1982, agreement to Graham, with Nelson agreeing to operate the dealership in exchange for an opportunity to purchase stock from generated profits.

Although Bob Stofer initially cooperated with Sgro and Nelson in their application to obtain a transfer of the General Motors franchise, his attitude abruptly changed in late July 1982. This change of attitude coincided with his discovery that Sgro and Nelson transferred their interest to Graham and that the legal description on the deed did not include the description for the business property. The misdescription was initially made on the land trust deed, and the attorney drafting the purchase and sale documents was told to use the same description. Stofer told GM representatives that he was forced into transferring the business under threats of going to jail. Attorney McGaughey wrote to General Motors and threatened suit if a franchise was granted to Graham and Nelson. General Motors in turn rejected Graham and Nelson’s franchise application, and in February 1983 they decided to wind down the business.

McGaughey also demanded rent for use of the business property and eventually filed suit on behalf of the Stofers to evict Graham and Nelson. Graham and Nelson in turn sued to reform the contract because of a mutual mistake as to the failure to include the legal description of the business property on the deed and for interference with their application for the General Motors franchise. Because of the confusion over the transfer of the business real estate, Graham and Nelson refused to make the mortgage payments to the Small Business Administration, which sued to foreclose the mortgage and for a resulting deficiency judgment against the Stofers in United States v. Bob Stofer Oldsmobile-Cadillac, Inc. (S.D. Ill. Oct. 8, 1987), No. 83—4086. The Stofers cross-claimed against Graham and Nelson seeking indemnification against the deficiency judgment in the foreclosure suit pursuant to the July 8,1982, agreement.

After a five-day bench trial in Federal district court, the court ruled that the Stofers could not in equity be granted specific enforcement of the indemnification provision of the agreement because of the equitable doctrine of unclean hands. The court found that the conduct of Bob Stofer and his attorney in preventing the award of the GM franchise to Graham and Nelson, effectively making certain that the business could not be operated successfully, was outrageous. It also found incredible plaintiffs’ testimony that the business property was never intended to be deeded by the agreement and held that there was a mutual mistake of fact as to this point. However, because the parties could not be placed in the status quo, it further held that rescission was an inappropriate remedy. The Federal court noted that in the instant State court case plaintiffs were pleading that the agreement was unenforceable because it was signed under duress and threats and commented, “the evidence is clear that in regards to the contract the Stofers have taken positions on whichever side of the fence they viewed as most advantageous at the time.” Moreover, on the eve of trial plaintiffs had moved to amend the cross-claim to add a count for breach of contract, which motion the court denied in the judgment order.

Plaintiffs- appealed this decision to the Seventh Circuit Court of Appeals, arguing that the district court’s finding of a mutual mistake of fact was not supported by the evidence, that they never intended to transfer the business real estate and so Nelson and Graham were operating under a unilateral mistake of fact, which could not serve as a basis to rescind the contract. They further argued that there was no evidence that they came to equity with unclean hands because there was nothing in the agreement requiring them to assist Graham and Nelson in obtaining the franchise and that as the alleged mutual mistake was unrelated to their conduct involving the franchise, the unclean' hands doctrine could not serve to bar their right to specific performance of the indemnification provision. The seventh circuit disagreed, however, and affirmed the decision of the district court, holding that the evidence supported a finding of mutual mistake as -to the business real estate and that rescission was inappropriate. It also agreed that specific performance could not be granted because of plaintiffs’ unclean hands, although for what it found to be a more compelling reason than the interference with the attempt to obtain the GM franchise:

“The Stofers attempted to take advantage of what they must have known was a mutual mistake in the contract. Realizing that they still held title to the commercial real estate, the Stofers charged Graham rent for its use rather than pointing out the error in the legal description. The Stofers’ attempt, to collect rent was nothing less than disingenuous in light of the • fact that Graham was to pay the mortgage on the real estate. In fact, in a move, which can only be characterized as brazen, the Stofers threatened to file an action for eviction. *** .
For reasons which were primarily based on personal animosity, Mr. Stofer determined that he simply did not want Mr. Graham to have his old business.” United States v. Bob Stofer Oldsmobile-Cadillac, Inc. (7th Cir. 1988), 853 F.2d 1392, 1398.

We note at this point that the instant case was filed by plaintiffs in March 1984. After a pretrial conference in August 1986, the court ordered the cause transferred to the inactive docket due to the pendency of the above-named Federal case “with same parties and issues.” Defendants Graham, Nelson, and Stockman filed their motion for summary judgment following the seventh circuit’s affirmance of the district court, attaching copies of both the district court’s and appellate court’s opinions to the memorandum in support thereof and noting that the Stofers took no further appeal of the decision. They also attached, as an exhibit, portions of the transcript of Mr. and Mrs. Stofers’ testimony from the trial. The Stofers filed a memorandum in response to the motion, also attaching portions of their testimony in Federal court.

Graham, Nelson and Stockman argued in their motion that because plaintiffs voluntarily sold their dealership on July 8, 1982, they had no basis for a claim of tortious interference with business expectancies or any contracts arising from the dealership, and as they had no claim for tortious interference, they could not have a claim for conspiracy based on tortious interference. Therefore, these defendants argued, there was no genuine issue of material fact and they were entitled to judgment as a matter of law. They further argued in their memorandum of law that plaintiffs’ Federal court testimony constituted an admission that they signed the July 8, 1982, agreement voluntarily, with the advice of counsel and without duress, and that the Federal court implicitly found that the contract was valid in reaching the decision that the plaintiffs would be denied specific performance of one of the contract terms because of their unclean hands. They argued that summary judgment was proper either because the independent testimony of the Stofers demonstrated that they had entered the contract voluntarily or because the factual issue critical to this case was resolved in the Federal litigation. The court below agreed:

“A final judgment was rendered in the federal case, finding the contract of July 8, 1982, to be voluntarily and knowingly entered into by the parties thereto, that a valid contract existed as of July 8, 1982, but incorporating a ‘mutual mistake’ as to the description of the real estate to be conveyed. The Stofers cannot now be heard to claim the contract of July 8, 1982 is not valid, based on their claims of duress preceding the consummation of the agreement and which duress compelled and coerced them into entering into the contract. The Stofers are collaterally estopped by the final judgment of the Federal Courts from claiming that contract to be invalid — or that the contract was not voluntary on their part.”

The court found that there was no genuine issue of fact presented in any of the counts giving rise to any possible claim of tortious interference or conspiracy to commit tortious interference and, based on collateral estoppel of the above issue, entered summary judgment for defendants on all five counts of the second amended complaint.

We will first address the issue of whether the court below factually and legally misapplied the doctrine of collateral estoppel. Plaintiffs contend that the Federal district court did not find that the July 8, 1982, agreement was valid and enforceable or even address the issue of whether the Stofers executed the agreement as a result of pressure put upon them by the defendants. Instead, plaintiffs argue, the issues addressed were contract rescission based on mutual mistake and whether they were guilty of unclean hands such that the indemnification provision of the contract would not be specifically enforced. Moreover, they contend that as not all defendants were parties to the Federal action, collateral estoppel based thereon could not stand. As to this last proposition, only the party against whom collateral estoppel is asserted must have been a party or a privy of a party in the prior proceeding. (Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 1013, 464 N.E.2d 1125, 1132.) We therefore find that collateral estoppel was not misapplied by the court below on that basis.

“The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Emphasis in original.) (Housing Authority v. Young Men’s Christian Association (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.) The adjudication of the fact or question in the first cause will, if properly presented, be conclusive of the same question in the later suit, but the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. (Housing Authority, 101 Ill. 2d at 252, 461 N.E.2d at 962.) However, when an issue for which preclusion is sought through collateral estoppel is the only rational determination the fact finder could have made on record, then that issue is considered “determined” by the fact finder for the purpose of applying collateral estoppel, even if no explicit finding on the issue has been made. Tamari v. Bache & Co. (N.D. Ill. 1986), 637 F. Supp. 1333, 1336-37.

In the Federal trial, the Stofers sought specific performance of the indemnification provision in the July 8, 1982, agreement. A plaintiff must allege the existence of a valid and enforceable written or oral contract before the remedy of specific enforcement may be granted. (Intini v. Marino (1983), 112 Ill. App. 3d 252, 254, 445 N.E.2d 460, 463.) Moreover, specific performance of a contract is not granted as an absolute right, and it will be denied where the contract was entered into because of fraud, oppression, or misrepresentation or in a case in which it would be inequitable to enforce the terms of the contract. (Mansell v. Lord Lumber & Fuel Co. (1932), 348 Ill. 140, 151-52, 180 N.E. 774, 778.) In reaching the determination of whether to enforce the indemnification provision in this agreement, the Federal court necessarily had to recognize the validity of the agreement after determining whether the prima facie case for enforcement had been proved. Only then was proof of the defense of unclean hands evaluated. Therefore, plaintiffs could not take the inconsistent position at trial that the contract was induced by duress and maintain the action for specific performance.

A party cannot create a factual dispute, for purposes of a summary judgment motion, by contradicting a previously made judicial admission. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 303-04.) A judicial admission is a deliberate, clear, unequivocal statement of a party about a. concrete fact within that party’s peculiar knowledge. (Hansen, 155 Ill. App. 3d at 480, 508 N.E.2d at 303.) Marcia Stofer gave the following testimony about the July 8, 1982, agreement at the Federal trial:

“Q. Joint exhibit No.3. Is that your signature on page 2?
A. Yes it is.
Q. Did you sign that document?
A. Yes I did.
Q. Did you read it?
A. Yes.
Q. Beforehand?
A. Yes.
Q. Do you find any items in either joint exhibit No. 1 or joint exhibit No. 2 that you did not understand at the time that you entered into these documents?
A. No, sir.
Q. Did you sign them voluntarily?
A. Yes I did.”

In addition, Mrs. Stofer agreed that she and her husband had input leading up to the execution of the agreement by way of their attorney, who “went over the documents before we signed them very carefully.” She also admitted that they accepted the agreement:

“Q. And you were satisfied, were you not?
A. Like I told you, we decided we would take this. I can’t tell you I was happy after walking away 17 years [sic] of my life but we accepted it.”

Robert Stofer was asked about his position on the agreement for purposes of the specific performance action:

“Q. Your position in this Court, in this lawsuit, is that these two contracts, joint exhibits 1 and 2, were executed and delivered for fair and valuable consideration?
A. I guess that would be correct.
Q. And you’re asking Judge Foreman to enforce joint exhibits 1 and 2, are you not?
A. Yes I believe that is correct.”

When asked about the allegations in the instant case that the defendants wrongfully determined the terms and parties to the agreement and hired attorneys to draft said agreement all without the input, advice, or consent of the Stofers and that the agreement was entered into against their free will and judgment because of duress, but that this was not what he was asking the court to believe in the Federal trial, Mr. Stofer replied:

“A. It would appear not *** I signed them, but I didn’t like to sign them. I didn’t want to sign them, but I didn’t see an alternative from the things they were using to threaten me.”

Moreover, the Federal court order illustrates to us that the issue of coercion or duress practiced upon plaintiffs as alleged in the instant complaint was fully litigated in that trial. Judge Foreman’s order recited, “[testimony at trial centered on the negotiations leading up to the agreement and the conduct of the parties both during negotiations and after the agreement was signed.” Our independent review of the trial transcript from the Federal case, included by both plaintiffs and defendants as part of this record, indicates that the Stofers were given the opportunity to testify as to the alleged coercion or duress during the contract negotiation period. The doctrine of collateral estoppel generally precludes parties and their privies from relitigating facts in a subsequent action which were specifically litigated and determined in a prior action. (Oberman v. Byrne (1983), 112 Ill. App. 3d 155, 160, 445 N.E.2d 374, 378.) We also note that under the doctrine of election of remedies a vendor may not invoke a remedy based on affirmance of a contract and also invoke a remedy that is based on disaffirmance. (Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 506, 464 N.E.2d 292, 297.) The remedy plaintiffs seek in the instant case is pursuant to theory inconsistent with the specific performance or breach of contract remedy sought by plaintiffs in the Federal case, and the Federal courts made note of that in their respective opinions as well:

“[The] evidence is clear that in regards to the contract the Stofers have taken positions on whichever side of the fence they viewed as most advantageous at the time” (United States v. Bob Stofer Oldsmobile-Cadillac, Inc., No. 83—4086 at 17); “in an abrupt turn-about, Mr. Stofer went from the position that though unpleasant, the sale of his business was necessary — to the position that the sale was the result of duress and coercion” (United States v. Bob Stofer Oldsmobile-Cadillac, Inc., 853 F.2d at 1398).

The circuit court offered the following comment concerning the duress and coercion issue by footnote:

“There can be no doubt that the bank strongly urged Mr. Stofer to place his residential and commercial real estate into trust once it became apparent he was selling cars without applying the proceeds to his loan. Moreover, we appreciate the fact that — in the district judge’s words — the bank, which had been less than rigid in enforcing the floor plan procedures, suddenly ‘found religion’ and decided to play it by the book. On the other hand, the bank and later, Sgro, Nelson, and Graham were willing to bail Mr. Stofer out of a bad situation and it can hardly be said that their actions were coercive.” (United States v. Bob Stofer Oldsmobile-Cadillac, Inc., 853 F.2d at 1398 n.2.)

We therefore find no legal or factual error on the part of the court below in determining that plaintiffs were collateraUy estopped from maintaining that the July 8, 1982, agreement was invalid based on duress or not entered into voluntarily on their part.

The next issue raised by plaintiffs on review which we shafl address is whether the court below erred in finding that no material issues of fact remained. The Blinois Code of Civil Procedure provides that summary judgment is only appropriate where “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.) A trial court’s grant of summary judgment wiU not be reversed absent a showing of abuse of discretion such that plaintiffs’ right to fundamental justice is violated. Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 5, 475 N.E.2d 549, 553.

The court below found that ~there~were no material issues of fact remaining because plaintiffs were collaterally estopped from maintaining that they did not freely, and without duress enter into the agreement to sell their business, which agreement effectively eliminated the contractual relationships and expectancies with which plaintiffs alleged interference on the part of the defendants. Plaintiffs maintain on appeal, however, that the appropriate time for the court to have assessed the interference was the time period beginning with the bank conference, leading up to the execution of the agreement, where they were threatened, not the date of the execution of the agreement, which is the time when the contract defense of duress is measured. While they may not have signed the contract under duress, plaintiffs argue that the conduct alleged in their complaint during the preceding period stated a cause of action for tortious interference, to wit:

(a) called the Stofers into a series of meetings, and without reasonable or justifiable cause threatened and intimidated the Stofers with criminal prosecution, jail, economic ruin, involuntary bankruptcy, and the prospect of their children being placed in the custody of the State of Illinois, all on account of debt owed by the Stofers and their corporations to defendant bank;
(b) threatened and intimidated the Stofers, causing the stock of the Stofers’ corporations to be wrongfully and physically taken from the Stofers, held by the defendant bank, and later delivered to defendant, Jack Graham;
(c) wrongfully forced the Stofers to sign a blank note running in favor of the defendant bank;
(d) wrongfully forced the Stofers to deliver keys to the automobile business to Jack Graham;
(e) wrongfully appointed Jack Graham and Paul Stockman to “oversee” the operation of the Stofers’ corporations;
(f) wrongfully forced the Stofers to consent to the execution of a signature card which prevented the Stofers from writing checks on their corporate checking accounts with defendant bank without the co-signature of defendant Jack Graham or his authorized agent, defendant Paul Stockman, thereby wrongfully preventing the Stofers from operating their automobile business on a day-by-day basis;
(g) wrongfully accelerated the maturity dates of certain promissory notes of the Stofers’ corporations and demanded immediate payment thereon from the Stofers;
(h) under an alleged right of “set-off” wrongfully wiped out personal and corporate accounts which the Stofers maintained with defendant bank;
(i) wrongfully negotiated and arranged the execution of the so-called agreement of July 8, 1982, whereby all the Stofers’ interests were transferred to Sam Sgro and Bernard Nelson, said agreement being the result of defendants’ threats and exploitation of the uneven bargaining positions.

Thus plaintiffs argue questions of fact remained as to whether the conduct alleged during this period preceding the July 8, 1982, agreement constituted tortious interference with their contractual relationships or business expectancies and conspiracy.

Plaintiffs further maintain that elements of an intentional interference claim do not include proof that the defendants’ conduct rose to the level of duress that would void an otherwise valid contract. They argue that the court below erred in reading into the elements of the tortious interference claim a requirement that defendants’ conduct must equal such duress as would make the contract voidable. The elements of a tortious interference claim are: (1) that the plaintiffs have a valid business relationship expectancy; or contract with a third party; (2) that the defendants know of that expectancy, relationship, or contract; (3) that the defendants have intentionally interfered with that expectancy, relationship, or contract inducing or causing a breach or termination of the expectancy, relationship, or contract; and (4) that the interference has caused damage to the plaintiff. (Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 895, 531 N.E.2d 941, 947 (business expectancy); R.J.N. Corp. v. Connelly Food Products, Inc. (1988), 175 Ill. App. 3d 655, 664-65, 529 N.E.2d 1184, 1190 (contractual relation).) In addition, lack of legal justification for inducing the breach is an essential element in stating a cause of action for tortious interference with contractual relations. R.J.N. Corp., 175 Ill. App. 3d at 664, 529 N.E.2d at 1190.

As Nelson, Graham, and Stockman note in their brief to this court, the cornerstone of each of the five counts making up the second amended complaint is the allegation that the July 8, 1982, agreement to sell the corporations was obtained through coercion and that plaintiffs would not have entered into the agreement but for the duress under which they were placed by the bank. Indeed, in plaintiffs’ response to defendants’ motion for summary judgment, they recite that the amended complaint alleges that Graham, Nelson, and Stock-man intentionally and maliciously conspired with the bank to exert economic duress and intimidation resulting in the Stofers’ entering into an agreement whereby they sold their dealership corporations to defendants Nelson and Sgro and that the entire scheme was calculated to deprive the Stofers of their property and automobile franchise. We are therefore unconvinced by plaintiffs’ argument as to time period of the conduct that the economic duress or intimidation alleged by plaintiffs as the interference conduct is any different from the definition of the contract doctrine of duress. Duress is a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive one of the exercise of free will; wrongfulness is not limited to acts that are criminal, tortious, or in violation of a contractual duty but extends to acts that are wrongful in the moral sense. (Enslen v. Village of Lombard (1984), 128 Ill. App. 3d 531, 533, 470 N.E.2d 1188, 1190.) That they involuntarily sold the businesses because of defendants’ threats is precisely what plaintiffs alleged and precisely what they testified to in the Federal case: “I signed them, but I didn’t see an alternative from the things they were using to threaten me.” Accordingly, we do not believe the trial court was reading into the elements of the torts alleged that defendants’ conduct had to constitute duress, but was merely making a conclusion that a finding of duress was inconsistent with the proof at the Federal trial because plaintiffs voluntarily entered into the contract.

Plaintiffs, however, contend that the tort claims may stand even if the alleged duress was insufficient to void the contract because the exertion of superior economic position to bring about modifications and changes in contractual relationships is actionable, citing Hannigan v. Sears, Roebuck & Co. (7th Cir. 1969), 410 F.2d 285, and Stevens v. Tillman (N.D. Ill. 1983), 568 F. Supp. 289, in support of this proposition. Plaintiffs’ reliance on these two cases for said proposition is misplaced. In Hannigan, the individual and corporate plaintiffs alleged that Sears wrongfully and intentionally interfered with their contract with a third party by inducing the third party to amend its contract with the individual plaintiff, coercing him into involuntarily agreeing to such amendment. The Federal court found that there was sufficient evidence that Sears intentionally interfered with plaintiffs’ contractual rights even though the contract was not breached with the third party but merely modified to plaintiffs’ detriment. (Hannigan, 410 F.2d at 290-91.) In Stevens, a white school principal charged members of a black parents’ group from her assigned school with tortious interference when their boycott and demonstrations at the school and complaints to the school board resulted in a medical condition of high blood pressure, forcing her to take a leave of absence and ultimately to accept a reassignment by the board to another school. (Stevens, 568 F. Supp. at 291.) We note that in both cases the issue was not whether the plaintiffs voluntarily determined to terminate or modify their contracts in spite of the pressure placed upon them by the defendants, but whether defendants caused a breach of plaintiffs’ contracts with third parties, one of the elements of the tortious interference claim. In fact, the court in Hannigan found plaintiffs to be in an extremely involuntary position because if plaintiff had refused to assent to the contract modification proposed by the third party, the third party would have lost all of Sears’ business and would have been forced out of business with the result that plaintiffs would have had no manufacturer for their product. (Hannigan, 410 F.2d at 291.) Moreover, as defendants note in their brief, although the district court originally held in the Stevens case that plaintiff stated a cause of action for tortious interference with a contractual relationship for purposes of a motion to dismiss, a directed verdict in favor of defendants was upheld on subsequent appeal, plaintiff having failed to establish that there was a breach of a contract with a third party because the superintendent and school board had an absolute statutory right to transfer the principal to another school. Stevens v. Tillman (N.D. Ill. 1986), 661 F. Supp. 702, 712, aff’d (7th Cir. 1988), 855 F.2d 394.

Summary judgment should be rendered with great caution; however, where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits filed, summary judgment for the defendant is proper. (Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 641, 428 N.E.2d 662, 664.) We must conclude that plaintiffs failed to establish interference on the part of defendants equal to duress as would render the July 8, 1982, agreement invalid, because plaintiffs admitted that the contract was entered into voluntarily and because plaintiffs were collaterally estopped from maintaining in this action that the agreement was the result of duress practiced upon them by defendants. Plaintiffs have alleged in count I that defendants intentionally interfered with their operation, ownership, and right to dispose of their automobile dealership and leasing company. To the extent that this is a separate tort from tortious interference with a contractual relationship or business expectancy, we also hold that defendants’ interference with plaintiffs’ right to deal with the dealership and leasing company was not proved because plaintiffs are collaterally estopped from denying that the companies were voluntarily transferred.

We also note as alternate grounds for upholding the decision of the court below that plaintiffs failed to allege that defendants’ conduct caused a third party to breach a contractual relationship or abandon a business expectancy with plaintiffs. Plaintiffs’ complaint alleged that defendants’ conduct caused them to execute the July 8, 1982, agreement which terminated contractual relationships, their franchise with General Motors and their interest in the two corporations as well as the prospective economic advantage with loyal automobile customers. The torts of interference with contractual relations and interference with prospective business advantages both require action toward a third party which results in interference with said contract or prospective relationship. (Laser Industries, Ltd. v. Eder Instrument Co. (N.D. Ill. 1983), 573 F. Supp. 987, 994; accord Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 480 N.E.2d 1176 (tort of interference with prospective economic advantage requires action by interferer directed towards a third party).) This argument was made by defendants in their reply to plaintiffs’ response to the motion for summary judgment, and although not relied on by the court below in reaching its decision to grant summary judgment for defendants, the reviewing court may sustain a decision of the trial court on any grounds appearing of record in the court below. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) While plaintiffs in their brief cite the Stevens v. Tillman case for the proposition that the interference need induce either a third party or plaintiff to breach their contract, we do not read Stevens that broadly. In fact, the alleged interference in that case was directed at a third party, the school board, which, although it could not legally breach the contract by directing a transfer to a different school, obviously was the party which took action to modify the plaintiff’s employment as a result of the defendants’ conduct, and the court so noted: “[Plaintiff] must establish a number of elements, including that the defendants’ wrongful conduct caused the Board to breach its contract with the plaintiff.” (Stevens, 661 F. Supp. at 712.) As this element of the counts sounding in interference with the contractual relationship and business expectancy in the instant case was neither alleged nor supported by any testimony that defendants’ conduct induced a third party to breach the relationship or expectancy, summary judgment was additionally proper as to those counts. Moreover, as a conspiracy to commit an act is not actionable at law unless the underlying act itself constitutes wrongful or tortious conduct (Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 606, 480 N.E.2d 1176, 1179), the conspiracy count must similarly fail.

Finally, we decide whether the trial court erred in granting summary judgment in favor of the defendants, other than Nelson, Graham, and Stockman, who did not move for summary judgment. We find that the court below, having concluded that plaintiffs had no contractual or business rights or expectancies entitled to protection after July 8, 1982, because plaintiffs were collaterally estopped by the Federal judgment from maintaining that the agreement was induced by duress, could reasonably and without error have concluded that plaintiffs would also be collaterally estopped from maintaining its action against the remaining defendants. For purposes of judicial economy, it would have made no sense for the court to have required a separate written motion for summary judgment for these defendants, which its conclusion in the summary judgment order for Nelson, Graham, and Stockman would necessarily have controlled. Moreover, these defendants noted at the hearing on their motion to dismiss that if the court granted Nelson, Graham, and Stockman’s motion for summary judgment, then their motion to dismiss would be moot. Where, as here, whatever error the court made, in granting summary judgment for the defendants who had no written motion on file requesting same, could be cured by having these same defendants amend the pleadings to file this motion, we also believe it would be a waste of judicial time to reverse and remand the case based on summary judgment for those defendants. For the foregoing reasons, the order of the circuit court of Effingham County, Illinois, is affirmed.

Affirmed.

HOWERTON and GOLDENHERSH, JJ., concur.