author: JUSTICE LINN

text:
    LEE A. COPALMAN et al., Plaintiffs-Appellees, v. THOMAS R. FRAWLEY et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—1585
    Opinion filed April 20, 1989.

      James A. Blazina, Chartered, of Chicago (Nancy Tordai O’Shaughnessy and James A. Blazina, of counsel), for appellants.
    Wolin & Rosen, Ltd., of Chicago (Harold Rosen and Michael E. Pildes, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, Lee and Sheila Copalman, filed a mortgage foreclosure action against defendants Thomas and Mildred Frawley and others. The Frawleys admitted liability as to principal and interest accruing after the default but contested the amount of costs and attorney fees that the Copalmans claimed. On October 7, 1986, four months after the default, the Frawleys tendered a cashier’s check “in satisfaction” of the principal and interest then due. Because the parties could not resolve the dispute over attorney fees, the Copalmans filed suit for the recovery of fees, costs and additional interest. After a trial on those issues, the court awarded the Copalmans an amount that included $5,000 in attorney fees and $3,622.32 in interest due on the principal balance. The Frawleys appeal, contending that the court’s award of interest is erroneous because their tender of the cashier’s check stopped accrual of further interest; that the award of attorney fees is excessive; and that the trial court’s order barring certain evidence involving another matter is reversible error.

We affirm the trial court.

Background

The Copalmans loaned money to the Frawleys and Richard Brandstatter, taking back second mortgages secured by notes on three properties in Northbrook, Illinois. The total amount of the mortgages, dated June 20,1985, was $25,000.

The closing on the properties took place in June 1985 and payment on the mortgages was due on June 20, 1986. No payment was made on that date.

In July 1986, the Copalmans’ attorney Michael Pildes, wrote defendants a letter concerning the default.

In August 1986 Pildes spoke with an attorney from the office of James A. Blazina, Chtd., who represented the defendants. On August 5, 1986, Peter Ross from Blazina’s office wrote a letter asking Pildes to take no further action until Frawley could discuss the matter with Copalman. On August 11 Frawley admitted to Copalman that he owed the $25,000 principal plus interest and that he wanted to resolve the matter without the attorneys because they had a personality clash. He told Copalman that the funds for payment of the principal and interest were readily available. Frawley said he did not want to go through Pildes, however.

On August 15, 1986, James Blazina, Frawley’s attorney, told Pildes that Frawley would pay the principal and interest due but that Frawley preferred discussing the matter directly with Copalman. He suggested that Pildes give Frawley and Copalman time to reach a compromise.

On August 18 Pildes spoke with his clients and they decided that if payment was not forthcoming in a short time, Pildes would go ahead and prepare and file a mortgage foreclosure action.

On August 22, Frawley telephoned Copalman. Copalman told him that Pildes did not feel that he should proceed without legal representation. According to Frawley, however, Copalman said that he would advise Pildes to do nothing. In a letter dated August 26, 1986, Frawley advised Copalman that he had instructed his attorneys to prepare all of the paperwork to document the principal and interest payments and the mortgage releases needed from Copalman. He further requested a copy of all documents that Copalman had recorded on the properties. However, he did not tender the undisputed principal and interest that was due.

On August 27, 1987, Pildes recorded the second mortgages because they had not been recorded at the time of the closing. A day later he prepared a complaint to foreclose the mortgage, which was filed September 2, 1986. He did not place the complaint for service with the sheriff until September 16. Pildes sent a payoff letter to Blazina’s law firm, which reflected a total due of $28,047.36 due for principal, interest, attorney fees, and costs.

After receiving no response by the end of the month, Pildes prepared letters to the tenants of the mortgaged property regarding the assignments of rents that the Frawleys had given to the Copalmans as part of the mortgage documents. He personally delivered the notices to the tenants to instruct them to pay rent to the Copalmans through his law firm. Some of the tenants subsequently told Pildes that they had been instructed by the realty company managing the property to submit the checks to it instead. The realty company’s president and director was James Blazina and a vice-president of the company was Thomas Frawley. According to Pildes, one of the realty company’s agents told him that Blazina personally instructed the agent to tell the tenants to submit the rent checks to the realty company.

The parties and attorneys had additional discussions in October 1986. Blazina sent the Copalmans settlement and release documents on behalf of the Frawleys without notice to Pildes. The Copalmans submitted the documents to Pildes’ firm for review. A short time later, the Copalmans received a cashier’s check for the principal and interest due, with the words “payment in satisfaction” of the mortgages. Blazina’s firm did not notify Pildes’ of this check, either.

Pildes sent Blazina a letter dated October 15, 1986, regarding the document and check and objecting to Blazina’s conduct. Shortly thereafter another attorney, Allen Castator, took over defendants’ representation and he and Pildes started another series of settlement discussions that began at the end of October and continued into November. Believing that all issues were finally settled, the Copalmans’ attorney prepared and sent the paperwork, including stipulations to dismiss, releases of mortgage and the settlement agreement, which the Copalmans had signed. Defendants did not execute the documents, however, and refused to go through with the settlement. Castator asked for itemizations of certain costs but did not tell Pildes that defendants were not going to sign.

Thereafter, the Copalmans proceeded to litigation, noticing a motion of default, summary judgment and judgment of foreclosure because defendants had not answered the complaint. In a subsequent pretrial ruling, the court allowed the cashier’s check to be deposited without prejudice to rights of either party, but no settlement was reached. Accordingly, the parties took discovery and proceeded to trial.

After hearing all of the evidence, the trial court entered judgment in favor of the Copalmans, allowing them to recover interest and certain costs and attorney fees.

Opinion

Defendants do not dispute that as of June 20, 1986, they were indebted to the Copalmans for the full amount of principal and interest due under the mortgage instruments and notes that they executed on June 20, 1985. Defendants also admit their subsequent default and their repeated representations that they would pay the amounts owed. Apparently, defendants had the necessary funds at all times but declined to pay the notes or cure their default thereunder for other reasons.

The testimony and exhibits produced at trial indicate that the Copalmans’ attorney, Michael Pildes, sent a demand letter after the defendants defaulted on the notes; that the defendants never denied their liability (or ability) to pay the principal and interest owed; that the Frawleys and their attorney, Blazina, did not want to deal with Pildes; and that various settlement negotiations fell through. The record also shows that defendants’ cashier’s check for the amount of principal and interest due as of the date of the check was to be “in satisfaction” of the mortgage indebtedness.

I

On appeal, defendants argue that they intended the language on the check to mean “in partial satisfaction,” without prejudice to the rights of the parties to resolve remaining disputed items such as court costs and attorney fees. Hence, the interest should have stopped accruing on the date of the tender, October 13, rather than the day in March 1987 that the court allowed the check to be deposited without prejudice.

We are not persuaded by defendants’ position on appeal. In fact, the Frawleys’ attorney had sent a letter with the check explaining that the release documents sent with the check would “fully satisfy and release” the obligations under the mortgage and notes. Moreover, at the time the Frawleys sent the check they were disputing the Copalmans’ attorney’s right to fees, although the notes clearly provided for fees and court costs to be awarded if legal action was necessary to collect the notes. Finally, the Frawleys and their attorney, Blazina, attempted to deal directly with the Copalmans and refused to send copies of the documents and check to Pildes’ firm or acknowledge his representation.

The tender of principal and interest due generally stops further accrual of interest (Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 202 N.E.2d 512). The real issue the trial court faced, however, was whether defendants actually intended their tender to be in partial satisfaction of their liabilities or whether the Copalmans, in cashing the check, risked the complete discharge of the mortgage indebtedness, including costs and fees. After hearing the evidence and judging the witnesses’ credibility, the trial court determined that “Copalman could not accept Frawley’s check without being in serious jeopardy of waiving all of his rights under the note and mortgages in question. *** The words [“payment in satisfaction”] mean, in my opinion, payment in discharge of the second mortgage obligations; or, to put it another way, payment in discharge of the obligations to pay the principal, the interest, the attorney’s fees and the costs.” The court concluded that it therefore would be unreasonable to stop the running of the interest as of October 13, 1986, the day of the ineffective tender. Instead the court found that interest should be awarded through March 5, 1987, the date on which the court allowed the check to be deposited without prejudice to the rights of the parties.

We do not find that the trial court abused its discretion or misinterpreted the pertinent law. (See Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 526, 202 N.E.2d 512, 516 (tender of less than full amount of judgment and interest in full satisfaction of the judgment, interest, and costs could not be treated as a partial payment “[i]n the light of the conditions attached”).) Nor do we believe that its determination is against the manifest weight of the evidence. Although defendants argued that they tendered the cashier’s check in October in accordance with a settlement reached with Copalman, the evidence supports the trial court’s finding that Copalman had not agreed with the supposed settlement because items of costs and fees remained in dispute. There was no dispute at that time as to the principal and interest owed. Nevertheless, the words typed on the check made it possible — if not probable — that cashing the check would result in a complete satisfaction and discharge of all outstanding liability on the mortgage indebtedness, the costs and attorney fees.

Either side could have sought an earlier order of court regarding the treatment of the tender as partial satisfaction without prejudice to the remaining items in dispute. Since the defendants were the ones in default on their obligation, and since they did not seek a court order that would have stopped further accrual of interest upon deposit of the check, they cannot be heard to complain that it is unfair that they pay the additional interest that accrued. The additional interest is part of the Copalmans’ damages.

Defendants’ citation of cases from other jurisdictions does not persuade us that their tender was unconditional and effective as a partial payment. They and their attorney were the ones who caused the confusion over the legal significance of the tender by including the “in satisfaction” language on the check and by stating in Blazina’s letter that the documents he prepared would fully satisfy the indebtedness. Although the Frawleys purported to indemnify the Copalmans for $1,000 in attorney fees, they did so as part of their attempt to block Pildes’ representation of the Copalmans. They did not settle the matter in October when they could have done so for an additional $1,000 in attorney fees. They did not settle after their new attorney and Pildes worked out an agreement in November 1986, which required from them an additional $1,657.63 over the amount tendered. Instead, they went to trial and ended up owing an additional sum in excess of $6,000, plus their own attorney fees.

The facts of this case distinguish it from those in which an unconditional tender of principal and interest results in the cessation of further interest. Accordingly, we affirm the trial court’s ruling on this issue.

II

Defendants next challenge the attorney fee award of $5,000 and costs of $286 as unreasonable and excessive. James Blazina, who had represented defendants, testified as an expert that the actions Pildes took were unreasonable and unnecessary. Defendants cite several instances in which they believe it was unnecessary for Pildes to perform certain services, such as personally delivering tenant notices and assignments of rent.

On the issue of fees the trial court acknowledged that the burden was on the Copalmans to prove that the fees were reasonable and necessary. (E.g., Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 379 N.E.2d 773; In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890.) The court did in fact disallow approximately 11 or 12 hours after going through each item and deciding, for example, that Pildes should not be compensated for personally delivering the assignments of rents to tenants. The court reduced the SVz hours claimed for preparing the mortgage foreclosure complaint by two hours. The court held that 28 hours for the trial of the case, heard over three days, plus the pretrial preparation and depositions, was reasonable. Using the rate or $100 per hour, the court allowed a total of 58 hours, for a total of $5,800. The court then further reduced the award down to $5,000. The court also cut the claimed costs by almost $200.

We find no basis of record to reverse the trial court’s carefully considered award. As the court noted, “In the usual cases, a fee of [$5,800] for a mortgage foreclosure on a $25,000 mortgage would be wholly unreasonable. However, this case is not typical. Here Frawley and his attorney let their dislike and disrespect for Pildes seriously cloud their judgment. Their refusal to acknowledge Pildes’ role as [the] Copalmans’ lawyer in large part [is] the cause of the size of these fees. I regret to say that Frawley and his lawyer have provided justification which otherwise would not exist.”

We agree with the trial court.

Ill

Defendants next argue that the trial court erred in refusing to allow testimony regarding an automobile accident which involved James Blazina, their attorney, and a client of Pildes. According to them, this unrelated legal matter is relevant because it explains the personal animosity between Blazina and Pildes. Such animosity allegedly caused Pildes to perform unnecessary legal work and block a settlement agreement between Frawley and Copalman.

The record reveals that defendants’ attorney referred to this other matter in opening statement and that the Copalmans’ attorney objected and made an oral motion to bar the introduction of evidence relating to the automobile accident as irrelevant. The trial court sustained the objection, stating that the “question of whether the attorney’s fees are necessary to the foreclosure would depend on what was done regardless of the motives for why they were done.”

On appeal, defendants assert that the court thus improperly refused to let them introduce evidence of the attorneys’ personal animosity, yet held at the end of trial that the reason that the award was so high was directly related to Frawley and his attorney’s animosity toward Pildes. Without citation of authority, defendants ask us to reverse the judgment, apparently arguing that they were not given a chance to present their side of the matter.

As an evidentiary ruling, the trial court’s decision was not an abuse of discretion. Testimony regarding an entirely separate legal matter, would not ordinarily have any place in a lawsuit simply to show some animosity that had developed between the attorneys. (See 31A C.J.S. Evidence §178, at 454 (1964) (evidence of a person’s motive is inadmissible where the legal significance of his conduct is not affected by such matter).) Moreover, it is obvious from the exhibits and other matters of record that the court was made aware of the reasons why Blazina harbored resentment toward Pildes. Defendants did not make an offer of proof as to the particulars of the evidence that they would have presented, but the gist of the matter involved Pildes’ representation of a woman who had struck Blazina’s automobile with hers. The estimated damage to Blazina’s car was $186 but Pildes supposedly told his client to offer only $75. Letters in the record indicate that this became a sore spot with Blazina. Blazina supposedly told Pildes that Blazina personally instructed the Frawleys not to pay the Copalmans’ mortgages, despite their ability to do so, as a way to force Pildes’ other client to pay Blazina’s damages in the automobile case. A letter from Blazina states that the charge is “untrue.”

We do not understand how Blazina’s ability to present evidence regarding the automobile damages claim could help his case in any way. He does not so inform us in his brief. Even assuming its relevance to the attorney fee issue in this case, the reason for the lawyers’ animosity and the results of the animosity are separate matters. In the pending case the trial court had to determine whether the fees and costs claimed were reasonably related to the work required for the mortgage foreclosure. The trial court heard the evidence and concluded from it that defendants were attempting to cut Pildes completely out of the case. They openly admitted as much. From the beginning they stated their desire to deal with the Copalmans only. Whether their reason for this was to save money, settle quickly, or just because their attorney did not like Pildes, the fact remains that they could have avoided the whole issue of fees and costs by simply paying the principal and interest when due or shortly thereafter. The Copalmans were not required to forego the services of their attorney of choice simply because the Frawleys did not want to pay his fees. Defendants’ liability for costs and fees did not arise until they failed to cure their default, despite several opportunities to do so. They prolonged the matter and delayed payment at their own risk. If, as the court found, Blazina’s animosity toward Pildes affected his judgment in advising the Frawleys, we fail to see how the reasons for the animosity make a difference. Accordingly, we reject the contention that the trial court committed reversible error in precluding further exploration of the automobile collision case.

IV

As a final matter, the Copalmans move for additional attorney fees to be awarded on appeal, on the ground that the appeal is “frivolous.” They cite no case authority but presumably refer to section 2— 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). In addition, they point to certain instances of allegedly false statements in the defendants’ brief.

We decline to award fees pursuant to section 2 — 611, which requires a factual finding in support that must be made in the trial court, and we need not address the allegedly false statements in the brief. We believe, however, that the Copalmans are entitled to fees on appeal pursuant to the mortgage notes, which provided the basis for the fee award at trial. Since defending the trial court’s judgment on appeal is part of the fees and expenses attendant to collecting the notes, we remand this cause for further proceedings limited to a determination of the Copalmans’ reasonable additional costs and fees resulting from this appeal.

For the foregoing reasons, we affirm the trial court and remand for further proceedings.

Affirmed and remanded.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    MARSHALL TATE, a/k/a Robert Tate, et al., Plaintiffs-Appellants, v. BEVERLY CHRYSLER PLYMOUTH et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2471
    Opinion filed April 24, 1989.

      Dombrowski & Sorensen, of Chicago (Mary T. Fitzmaurice, of counsel), for appellants.
    Ross & Hardies, of Chicago (James K. Toohey and Robert L. Baker, of counsel), for appellees.
   JUSTICE QUINLAN

delivered the opinion of the court:

The plaintiffs, Marshall and Marsha Tate, filed a complaint in the circuit court of Cook County for personal injuries arising out of an accident they had while driving their automobile, a 1979 Audi 5000. Initially, plaintiffs filed suit against Beverly Chrysler Plymouth (Beverly), the car dealer that had sold them the automobile, based upon theories of negligence and strict products liability. Later, the plaintiffs added the manufacturer of the car, Volkswagen of America (VWoA), as a defendant under a theory of strict products liability. VWoA moved to dismiss the cause of action because plaintiffs had added VWoA as a defendant after the statutory limitations period had expired, and the trial court dismissed the plaintiff’s complaint against VWoA. Subsequently, the plaintiffs amended their complaint to include allegations of fraudulent concealment of the cause of action by VWoA, but the trial court, again on VWoA’s motion, dismissed the complaint, ruling that the pleadings of fraudulent concealment were insufficient. Plaintiffs amended their complaint a third time, and the trial court once again dismissed plaintiffs’ complaint on defendant VWoA’s motion because it found the pleadings of fraudulent concealment were insufficient but, this time, the court dismissed plaintiffs’ claim against VWoA with prejudice. Plaintiffs have now appealed the trial court’s dismissal of their claim against VWoA.

On December 24, 1984, plaintiffs were driving their 1979 Audi 5000 automobile when it allegedly skidded out of control and hit another vehicle. On November 26, 1986, plaintiffs filed their original complaint sounding in negligence and strict products liability against Beverly, the car dealer that had sold them the car, asserting that the Audi 5000 had been sold to them with defective, mismatched tires. However, on May 20, 1987, plaintiffs filed their amended complaint to include VWoA as a defendant under a theory of strict products liability, because, plaintiffs alleged, there had been a defect in the transmission of their Audi. On July 1, 1987, VWoA moved to dismiss plaintiffs’ allegations against it, pursuant to section 2 — 619(a)(5) of the Illinois Code of Civil Procedure, and argued that plaintiffs’ cause of action was time barred under sections 13 — 202 and 13 — 213 of the Code of Civil Procedure. (See Ill. Rev. Stat. 1987, ch. 110, pars. 2— 619(a)(5), 13 — 202, 13 — 213.) The trial court, as noted above, granted defendant VWoA’s motion and found that the claim was time barred, but granted plaintiffs leave to amend their complaint to include allegations of fraudulent concealment.

On December 1, 1987, plaintiffs filed their second amended complaint. Although the plaintiffs admitted in their complaint that they had discovered their possible cause of action on or about March 24, 1986, they claimed that VWoA had actually prevented them from filing their claim within the statutory period by its false assertions concerning the defects in the Audi 5000 automobiles. VWoA again moved to dismiss, and on April 29, 1988, the court granted VWoA’s motion, finding plaintiffs’ allegations of fraudulent concealment to be insufficient, but granting plaintiffs leave to file a third amended complaint.

On July 7, 1988, plaintiffs filed their third amended complaint. In that complaint, the allegations of fraudulent concealment specifically alleged that VWoA was aware, prior to the time of plaintiffs’ accident, that there was a sudden acceleration defect in the cars, but that VWoA failed to warn plaintiffs, as well as the general public, of the defect; that VWoA’s recall of the Audi 5000 automobiles was an attempt to avoid an investigation by the National Highway Traffic Safety Administration (NHTSA) and thus prevented car owners from learning the true nature of the defect; that VWoA concealed the alleged defect by claiming the problems with the cars were due to improper driver usage or driver error; that VWoA concealed the defect by claiming that installation of a shift-lock device would prevent driver error; and that VWoA also denied that any alleged defect existed despite VWoA’s knowledge to the contrary. The defendant VWoA filed a motion to dismiss plaintiffs’ third amended complaint also, and after the trail court held a hearing on defendant VWoA’s motion to dismiss the plaintiffs’ third amended complaint, the court granted VWoA’s motion, ruling that the complaint did not set forth sufficient allegations to establish that VWoA fraudulently concealed the cause of action. In so ruling, the trial court noted that plaintiffs had been obligated to investigate potential causes of action from the time of the accident and that the plaintiffs here should have been acutely aware of their potential claim against VWoA by at least March 1986, when an investigation into the sudden acceleration of the Audi 5000 was nationally publicized. The trial court further observed that the plaintiffs themselves had admitted that they had discovered their cause of action against VWoA nine months before the statutory period ended and did not add VWoA as a party defendant until after the statutory period had expired. The trial court did not find the plaintiff’s failure to file suit to be excused by VWoA’s activities and dismissed the plaintiffs’ claim with prejudice. Plaintiffs have appealed this dismissal of their third amended complaint against VWoA to this court.

On appeal, the plaintiffs argue that the trial court erred when it dismissed their claim against VWoA with prejudice and found that their claim was time barred. The plaintiffs assert that. their complaint set forth sufficient factual allegations to establish that VWoA fraudulently concealed their cause of action. Plaintiffs specifically contend that their allegations that VWoA recalled the Audi 5000 as merely a diversionary measure to avoid an investigation by the NHTSA, that VWoA continually denied that there was a manufacturing defect in the Audi 5000, and that VWoA blamed any alleged problems on driver error were sufficient to establish VWoA’s fraudulent intent to conceal its activities and plaintiffs’ cause of action.

Although the plaintiffs admit that they became aware of the publicized problem with the Audi 5000 on or about March 24, 1986, nine months before the statutory period expired, they contend that this nine-month period was not enough time to conduct a reasonable inquiry, as required by section 2 — 611 of the Code of Civil Procedure. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Moreover, the plaintiffs argue that the question of whether nine months was a reasonable time within which to file their claim against VWoA was a fact question. Because this fact determination was critical to their claim, the plaintiffs submit that the trial court should have held a hearing to examine all of the relevant facts to determine whether the remaining nine months was a reasonable amount of time for them to have filed suit.

In any event, the plaintiffs assert that, regardless of whether there was fraudulent concealment, the discovery rule should have been applied to the facts here. Under the discovery rule, their cause of action did not accrue until they knew or had reason to know of the cause of their injury, and, here, they contend that they did not know or discover their cause of action against VWoA until March 1986. Thus, the plaintiffs argue that the statute of limitations did not begin to run until that time.

The discovery rule, which plaintiffs admit does not generally apply to cases in which there is a sudden, traumatic event, such as here, should nevertheless be applied here, because, they argue, the only information upon which the plaintiffs could base their claim concerning the defect in the Audi 5000 was in the control of VWoA. In such cases where the information concerning the cause of action was solely within the defendant’s control, they assert that our court has applied the discovery rule. Thus, the plaintiffs conclude that the discovery rule should also have been applied here.

Conversely, VWoA argues that plaintiffs’ complaint was properly dismissed as being time barred because the applicable statute of limitations expired two years after the date of the accident and VWoA was added as a defendant subsequent to this time. VWoA asserts that there was no fraudulent concealment here and that, in any event, the plaintiffs’ own allegations clearly established that plaintiffs knew of their cause of action in sufficient time before the statute ran to have timely filed suit. Thus, VWoA claims, even if the court found that there was evidence of fraudulent concealment, the plaintiffs admitted in their complaint that they discovered their cause of action against VWoA nine months before the original two-year limitations period had expired. The law in Illinois is clear, VWoA asserts, that where a defendant’s fraudulent concealment of a cause of action is discovered by the plaintiff before the statutory period expires and there is a reasonable amount of time remaining to file a lawsuit, in such a situation, the plaintiff is bound by the original statutory period. Here, VWoA asserts that the plaintiffs’ discovery of their cause of action nine months prior to the expiration of the original two-year statutory period allowed plaintiffs a reasonable time to file suit against VWoA before the original two-year time period expired. Additionally, VWoA contends that all of the relevant facts were before the trial court, and, therefore, the court properly considered all of those matters when it rendered its decision and, accordingly, its determination should not now be overturned.

Additionally, VWoA argues that the requirement of reasonable investigation in section 2 — 611 did not justify the plaintiffs in not filing their claim within the original two-year time period. In fact, the plaintiffs offered no evidence to show why the nine months that remained after their discovery of their cause of action was an insufficient amount of time for them to reasonably investigate and file their cause of action against VWoA. Finally, the defendant VWoA asserts that Illinois case law is clear that the discovery rule does not apply in cases where there was a sudden, traumatic event or accident, such as here, and the plaintiffs’ cause of action therefore accrued at the time of the car accident and not at the time that plaintiffs allegedly discovered their cause of action against VWoA. Thus, VWoA claims, the trial court’s decision should be affirmed.

Under the Illinois Code of Civil Procedure, the statutes of limitation for personal injury and product liability claims require that such lawsuits generally be commenced within two years of the date on which the cause of action accrued, and, specifically for product liability claims, the lawsuit must be filed within two years after the date plaintiff knew or, through the use of reasonable diligence, should have known of the injury. (Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 202, 13 — 213(d).) An express exception to these statutes of limitation provides that if a defendant has fraudulently concealed the existence of a cause of action, the plaintiff is allowed five years within which to bring suit after he discovers the cause of action. Ill. Rev. Stat. 1987, ch. 110, par. 13 — 215.

Recently, this court, in Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 518 N.E.2d 336, examined in detail Illinois case law involving the fraudulent concealment exception and stated:

“The concealment contemplated in section 13 — 215 must consist of affirmative acts or representations which are calculated to lull or induce a claimant into delaying filing of his claim or to prevent a claimant from discovering his claim. Mere silence on the part of the defendant and failure by the claimant to learn of the cause of action are not enough. (Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 898, 404 N.E.2d 496, 500.) Moreover, fraudulent misrepresentations which constitute the basis of the claim do not amount to fraudulent concealment unless these actions tended to conceal the cause of action. (83 Ill. App. 3d at 898, 404 N.E.2d at 500.) Finally, this exception does not apply when the party affected by the fraud might, with ordinary diligence, have discovered it. (Greenock v. Rush Presbyterian-St. Luke’s Medical Center (1978), 65 Ill. App. 3d 266, 271, 382 N.E.2d 321, 324.) If the claimant discovers the fraudulent concealment, or should have discovered it through ordinary diligence, and a reasonable time remains within the remaining limitations period, section 13 — 215 will not toll the running of the limitations period. (Real v. Kim (1983), 112 Ill. App. 3d 427, 435, 445 N.E.2d 783, 789.) Illinois courts have found that discovery of a claim with as little as bVz months remaining within the statute of limitations period constitutes a reasonable time within which to file a medical malpractice claim under section 13— 215. (See Brown v. Mason (1985), 132 Ill. App. 3d 439, 477 N.E.2d 61.) While reasonableness is generally a fact question, it may be determined by a court, without a hearing on that issue, if no hearing on reasonableness is requested and if it is clear that a reasonable time did in fact remain within the statute of limitations. See Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.” Smith, 164 IE. App. 3d at 862-63, 518 N.E.2d at 340.

Normally, a plaintiff’s own ignorance concerning his cause of action wEl not toll the statute of limitations, but to alleviate the harsh results from this principle, in certain instances, courts have applied the “discovery rule.” (Bates v. Little Co. of Mary Hospital (1982), 108 Ill. App. 3d 137, 139, 438 N.E.2d 1250, 1252.) The application of the discovery rule postpones the running of the period of limitations only until the injured party knows or should have known of his injury. (Bates, 108 Ill. App. 3d at 139, 438 N.E.2d at 1252.) It is well settled in Illinois, however, that the discovery rule does not apply in cases where the personal injuries arise out of a sudden, traumatic event, and in these types of cases, there is no question that the statutory period begins to run when the plaintiff first knew of his right to sue, i.e., the time when the injury occurred. Bates, 108 Ill. App. 3d at 141, 438 N.E.2d at 1254.

Here, plaintiffs’ allegations were insufficient to demonstrate that VWoA fraudulently concealed their cause of action. Actually, as plaintiffs themselves allege, there was a public recall of the Audi 5000 by VWoA and a great deal of national publicity concerning the sudden acceleration problems with the Audi 5000 cars. This information certainly would have put a party on notice that there was a potential cause of action for problems involving sudden acceleration of the Audi 5000 automobiles. There was no evidence here that the recall was a fraudulent attempt by VWoA to conceal potential claims and avoid a national investigation, and, in any event, we do not agree with the plaintiffs that VWoA fraudulently concealed their cause of action when VWoA denied there was a defect in the Audi 5000 and asserted that the problem was caused by driver error. Mere denials of liability and claims of innocence by a defendant are insufficient to establish fraudulent concealment. We find that these actions by VWoA here would not reasonably induce a plaintiff into not filing a claim, but would have had the opposite effect of alerting an individual that there was a potential problem or claim against VWoA based on the recall. Thus, we agree with the defendant’s contention that the plaintiffs’ allegations of fraudulent concealment were insufficient to justify plaintiffs’ failure to file suit within the statutory period.

We also find that even if the plaintiffs’ allegations did constitute a basis for an assertion of fraudulent concealment here, the plaintiffs admitted in their complaint that they had discovered their cause of action against VWoA with nine months remaining in the original two-year statutory period. Our courts have found that when a plaintiff discovers fraudulent concealment by a defendant with less than nine months remaining in the original statutory period, the plaintiff had a reasonable time within which to file suit, and that, in such a situation, the defendant’s fraudulent concealment would not excuse the plaintiff from compliance with the original limitation period. (See Smith, 164 Ill. App. 3d 857, 518 N.E.2d 336 (six months); Brown v. Mason (1985), 132 Ill. App. 3d 439, 477 N.E.2d 61 (5½ months).) The plaintiffs have not asserted any basis whatsoever for their contention that nine months was not enough time to do a reasonable investigation into the facts and file suit. Furthermore, plaintiffs here had already filed their claim against the car dealer and discovery concerning the accident on those counts had begun.

Alternatively, the plaintiffs assert that if we find, as we have found, that they discovered their cause of action before the statute had run, the case should be remanded for a hearing on the issue of reasonableness. However, we note that the plaintiffs did not request a hearing in the trial court, and that under the Illinois Supreme Court’s ruling in Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, where a plaintiff does not specifically request a hearing, the trial court may properly make such a determination without a hearing. Moreover, the plaintiffs have not suggested what information not previously before the trial court, if any, on the issue of reasonableness might be considered at such a hearing. The plaintiffs’ only claim is that somehow they could not comply with the requirement of section 2 — 611 and make a reasonable inquiry before filing the complaint.

Consequently, as noted above, we disagree with the plaintiffs’ contention that the discovery rule should be applied to the facts presented here. The plaintiffs’ allegations that VWoA fraudulently concealed their cause of action were insufficient here, and the plaintiffs’ argument that they did not have a reasonable time within which to file their claim against VWoA is without support.

Thus, for all of the above reasons, the judgment of the circuit court of Cook County which dismissed the plaintiffs’ cause of action against VWoA with prejudice is affirmed.

Judgment affirmed.

BUCKLEY and CAMPBELL, JJ., concur.

       Justice Quinlan participated in this decision prior to his assignment to the sixth division.


text:
    GOLD STANDARD ENTERPRISES, INC., Plaintiff-Appellee, v. UNITED INVESTORS MANAGEMENT COMPANY, a division of United Investors, Inc., Defendant-Appellant.
    First District (4th Division)
    No. 1—88—1075
    Opinion filed April 20, 1989.

      Alexander G. Poulakidas, of Chicago, for appellant.
    Jack J. Herman, P.C., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Gold Standard Enterprises, Inc., is the lessee under a lease with defendant, the United Investors Management Company, the lessor. Plaintiff brought an action in the circuit court of Cook County against defendant. Plaintiff sought the specific performance of a lease provision that granted it the option to extend the lease. The trial court granted plaintiff’s motion for summary judgment and denied that of defendant, defendant appeals, contending that the trial court erred in granting summary judgment for plaintiff.

We affirm the judgment of the trial court.

Background

A

The record contains the following undisputed facts. On January 26, 1976, plaintiff entered into a lease agreement with the J.M.B. Property Management Corporation. Plaintiff rented space to operate a retail store in the Hubbard Woods Shopping Center, located at 7l Linden Aveliue, in Glencoe, Illinois. The lease had a term of 10 years, from August 1, 1976, to July 31, 1986. The lease prescribed a fixed monthly rent increasing annually, from $800 in the first year to $1,250 in the tenth year, plus an additional amount based on a percentage of plaintiff’s gross sales, which also increased annually.

The lease granted plaintiff an option to extend, which provided in pertinent part:

“Section 26.14. Option to Extend
If the Lease is otherwise then in effect and if Lessee is not in default thereunder, Tenant shall have and is hereby given the option to renew this Lease for two (2) five (5) year terms. If Tenant desires to exercise this option. Tenant shall give written notice of such exercise to Landlord not later than ninety (90) days prior to said term’s commencement date.”

The lease additionally prescribed the means of giving notice:

“Section 26.06. Notices
Any notice, demand, request or other instrument which may be or are required to be given under this lease shall be delivered in person or sent by United States certified mail postage prepaid and shall be addressed (a) if to Owner at the address first hereinabove given or at such other address as Owner may designate by written notice and (b) if to Tenant at the leased premises or at such other address as Tenant may designate by written notice.”

Defendant, the United Investors Management Company, is a division of United Investors, Inc. Alexis Giannoulias is the president and sole stockholder of defendant. The J.M.B. Property Management Corporation subsequently sold the shopping center, and assigned the lease, to defendant. Defendant thereby became plaintiff’s lessor.

B

As stated earlier, the lease was due to expire on July 31, 1986. The extended lease term was due to begin on August 1. Therefore, as provided by the lease, plaintiff’s option to extend expired 90 days earlier, on May 2. Harold Einstein, president of plaintiff, instructed his attorney, Herbert De Young, to send the requisite notice to defendant extending the lease. On April 21, De Young and Joyce Hegner, his secretary, prepared the notice. Hegner addressed an envelope, prepared a certified mail return receipt card, and affixed to the envelope $1.67 in postage.

On April 22, a United States Postal Service letter carrier delivered the certified letter containing plaintiff’s notice to defendant. Someone at the post office had already stamped and written on the letter “POSTAGE DUE 20$.” Defendant’s receptionist was alone in the company’s office. The receptionist looked at the envelope and told the letter carrier that she had no money. Additionally, defendant kept no money in its office. The letter carrier prepared a notice (“pink slip”), which informed defendant to pick up the letter at the post office. He attached half of the notice to the letter and he left the other half with the receptionist. The letter carrier returned the letter to the post office.

It is also undisputed that defendant never attempted to collect the letter. Defendant received its first notice on April 22, 1986. Defendant received a second notice on April 28. The option to extend expired on May 2. The post office returned the letter to plaintiff on May 7.

On May 14, 1986, Giannoulias wrote to Einstein to inform him that the option to extend the lease had expired. Defendant’s letter had $1.67 in postage affixed, as did plaintiff’s April 21 letter. The post office, however, delivered defendant’s letter without postage due. De Young wrote to Giannoulias on May 22, stating that he sent a notice to extend the lease on April 21; he enclosed a copy of the notice with the letter. Giannoulias replied by letter that no copy of the notice was enclosed with De Young’s May 22 letter. De Young wrote to Giannoulias again on May 27, stating that he personally enclosed a copy of the notice with his previous letter, but he also enclosed another copy of the notice with this last letter. Giannoulias subsequently offered plaintiff a new lease at a rent significantly higher than the rate prescribed by the existing lease.

C

Plaintiff brought this action for specific performance on June 5, 1986. Plaintiff subsequently tendered to defendant an amount representing the August 1986 rent under the lease’s extended term. Defendant rejected the tender and brought a forcible entry and detainer action against plaintiff on August 19, 1986. On September 9, plaintiff moved for a preliminary injunction, to prevent defendant from proceeding with its forcible entry and detainer action, or attempting in any other way to obtain possession of or interfere with plaintiff’s use of the premises. The trial court continued the forcible entry and detainer action until after the hearing on the preliminary injunction motion, and also ordered plaintiff to continue paying the prescribed rent to defendant.

On the day of the preliminary injunction hearing, the trial court granted defendant leave to file a motion for summary judgment on plaintiff’s action for specific performance, granted plaintiff leave to file a cross-motion for summary judgment, and continued the forcible entry and detainer suit until after the disposition of the summary judgment motions. On March 11, 1987, the trial court granted plaintiff’s motion for summary judgment and denied that of defendant. Defendant appeals.

Opinion

In reviewing a trial court’s order of summary judgment, the only issue on appeal is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Summary judgment is the proper remedy where only the construction and legal effect of a lease are at issue. Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 261, 343 N.E.2d 544, 549.

In the case at bar, plaintiff conceded that it did not strictly follow the lease. Paragraph 26.06 of the lease required notices by the parties to “be delivered in person, or sent by United States certified mail postage prepaid.” It is undisputed that plaintiff’s April 21, 1986, letter, containing the notice to extend, had insufficient postage affixed. Thus, plaintiff did not prepay the postage and thereby violated the lease provision. It is farther undisputed that defendant did not formally receive the notice to extend until after the prescribed time expired.

Generally, an option to renew or extend a lease must be exercised in accordance with the agreement of the parties. Where the only condition of such a right to extend is that it be exercised within the time specified by the parties, a court will strictly construe the time requirement and enforce the agreement of the parties. La Salle National Bank v. Graham (1983), 119 Ill. App. 3d 85, 86, 456 N.E.2d 323, 324.

This general rule was set down in Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 56 N.E. 864. The supreme court stated:

“The contract sought to be enforced gave an option or privilege to the lessee to extend the lease for a new term of ten years by giving notice of an election to do so twenty days before the termination of the lease. This was the sole condition upon which the option rested, and it was not complied with through the negligence of the lessee. The question here is, whether a court of equity can relieve against the consequences of such negligence. In a court of law the time for the performance of an act is as essential as any other part of the contract. *** Equity maintains a somewhat different rule, — that time is not necessarily of the essence of a contract; and if it is not of the essence of an agreement, and a party has acted in good faith in a meritorious cause, equity may grant relief. Parties have a right, however, to make their own contracts, and if they intend that time shall be of the essence of the contract, either by the express form of their agreement or because the subject matter makes it so, a court of equity will treat it as of the essence and hold the parties to their agreement. A court of equity is bound by a contract as the parties have made it, and has no authority to substitute for it another and different agreement, and particular language is not necessary to make the time of performance essential, if right and justice in the individual case demand it. An agreement must be complied with as made unless some stipulation is waived or there is a just excuse for non-compliance. (Emphasis added.) (184 Ill. at 550-51, 56 N.E. at 865.)

The supreme court denied the tenants specific performance of the option to renew their lease. The court reasoned that equity could not excuse their failure to give the agreed notice due to their own carelessness.

Plaintiff acknowledges a violation of the lease. However, plaintiff invokes a well-established equitable principle to justify specific performance of the lease’s option to extend. The principle is that equity will relieve against the unjust consequences of accident. Indeed, accident is one of the most ancient bases of equity jurisdiction. The rationale of the rule is that, in good conscience, plaintiff should be restored to a right lost, or relieved from a liability incurred, by reason of an event that the parties did not contemplate and not due to plaintiff’s negligence or fault. (30 C.J.S. Equity §46 (1965); 3 J. Pomeroy, Equity Jurisprudence §§823, 824 (5th ed 1941).) Illinois courts recognize this general principle. 7 Ill. L. & Prac. Chancery §55 (1954).

Where a tenant is given a right to renew a lease upon notice to the landlord, and where the tenant fails to give the required notice, equity will relieve the tenant from the consequences of his failure if accident, fraud, surprise, mistake, or other source of equitable jurisdiction is present. (2 J. Pomeroy, Equity Jurisprudence §453b (5th ed. 1941).) Even in Dikeman v. Sunday Creek Coal Co., our supreme court recognized that equity may grant relief where “there is a just excuse for non-compliance.” (Dikeman, 184 Ill. at 551, 56 N.E. at 865.) We expressly relied on this exception to grant specific performance to a tenant in similar circumstances in Providence Insurance Co. v. LaSalle National Bank (1983), 118 Ill. App. 3d 720, 455 N.E.2d 238. Additionally, we agree with the New York Court of Appeals that, absent negligence by the sender, if reliance on the mails could possibly be characterized as fault, then it is an excusable fault. Sy Jack Realty Co. v. Pergament Syosset Corp. (1971), 27 N.Y.2d 449, 453, 318 N.E.2d 720, 722, 267 N.Y.S.2d 462, 464.

Applying these principles to the case at bar, we conclude that the trial court properly granted specific performance for plaintiff. Indeed, this is a classic case for equitable relief. The undisputed facts are that the deadline for renewing the lease was May 2, 1986. De Young mailed plaintiff’s April 21 letter, containing the notice to renew, in ample time to effectuate the renewal. Further, the letter reached defendant’s office the next day. However, defendant did not formally receive the letter because 20$ postage was due. There is no doubt that this uncontemplated event was an accident. The record contains uncontradicted evidence that the post office delivered De Young’s previous letters affixed with $1.67 in postage. Additionally, the post office delivered Giannoulias’ May 14 letter to De Young, which was affixed with $1.67 in postage.

True, the record shows that the rental value of the leased premises has appreciated in today’s market. Defendant could charge a higher rent under a new lease. However, the record contains no evidence that the actual delay in receiving the notice, by itself, harmed defendant. Based on these uncontradicted facts, in addition to justice and fairness, we hold that plaintiff was entitled to specific performance.

Defendants attempt to manufacture genuine issues of material fact from the evidence and contradictory inferences arising from the evidence to defeat a summary judgment. These issues include: whose fault was it that the April 21 letter had 20$ postage due; whether defendant’s receptionist saw plaintiff’s name on the envelope; whether defendant received the second notice from the post office to pick up plaintiff’s letter; and the amount of potential rent that defendant lost due to the lease extension.

Although a trial court should construe the facts liberally in favor of the nonmovant in considering a motion for summary judgment, the court need not strain to adduce some remote factual possibility that will defeat the motion. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031, 1033.) As noted above, the pertinent facts are undisputed. Based on these facts, plaintiff is entitled to a judgment as a matter of law. Accordingly, we uphold the trial court’s grant of summary judgment for plaintiffs.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE LORENZ

text:
      In re ESTATE OF ALICE M. SHAW, Deceased (Ralph W. Cummings et al., Petitioners-Appellants, v. Harris Trust and Savings Bank, as Adm’r of the Estate of Alice M. Shaw, Deceased, et al., Respondents-Appellees).
    First District (5th Division)
    No. 1—88—0484
    Opinion filed April 21, 1989.

      Richard S. Spector, of Richard S. Spector, Ltd., of Chicago (David A. Novoselsky, of David A. Novoselsky & Associates, of counsel), for appellants.
    James J. Carroll, of Chicago (Sidley & Austin, of counsel), for appellee University of Michigan.
    Thomas J. McCarthy, of Jenner & Block, of Chicago, for appellee Monmouth College.
   JUSTICE LORENZ

delivered the opinion of the court:

Petitioners filed this action for construction of a will and appeal from the trial court’s entry of judgment on the pleadings in respondents’ favor. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615(e).) On appeal, we address the issue of whether the language of the will was unambiguous, justifying entry of judgment on the pleadings. We reverse and remand with directions.

Testator, Alice M. Shaw, died on April 21, 1986, leaving a will which in relevant part stated as follows:

“LAST WILL AND TESTAMENT
I, Alice M. Shaw, do hereby declare that I reside in and own Apartment 1504 in the Illini Apartments located at 545 South Atlantic Blvd. in Fort Lauderdale, Florida 33316 and that this Instrument is my Last Will and Testament directing the disposition and distribution of the proceeds and sale of said apartment and it’s [sic] contents if I shall continue to be the owner thereof at the time of my death.
* * *
THIRD
I designate as my residuary beneficiaries Monmouth College, of Monmouth, Illinois 61462; and the University of Michigan of Ann Arbor, Michigan 48103 who shall share equally in the residue of the estate after all expenses and deductions.”

The will contained only a preamble and four clauses. The three paragraphs not quoted above directed testator’s personal representative to sell the Florida apartment and its contents, directed that the proceeds from the sale should be used to pay her debts and other specified expenses, and appointed testator’s personal representative.

At the time of her death, testator owned real and personal property in both Florida and Illinois. The trial court found that petitioners Ralph W. Cummings, Clayton S. Cummings, and Mary M. Delatora were testator’s heirs. The will was admitted to probate in Illinois and the administrator construed the will as devising testator’s entire estate to respondents, the University of Michigan and Monmouth College, through the residuary clause.

Petitioners filed a complaint to construe the will alleging that the will merely devised the proceeds from the sale of the Florida property to respondents and that the remaining property in Illinois should pass to petitioners as intestate property. Both respondents answered the complaint, denying that petitioners were entitled to a construction allowing for partial intestacy.

Subsequently, the trial court granted respondents’ motion for judgment on the pleadings, finding that when the will was construed as a whole, the language was unambiguous and testator did not limit the residuary legatees to the proceeds from the sale of the Florida property. Because the trial court found the language was not ambiguous, it denied petitioners’ request for an evidentiary hearing. Petitioners filed a timely notice of appeal.

Opinion

The entry of judgment on the pleadings is proper when after reviewing the pleadings, the issues raised present only questions of law. (Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 501 N.E.2d 315.) In the present case, the trial court determined the language of the will was unambiguous and the construction could be resolved as a matter of law.

The fundamental rule of will construction is to determine the testator’s intent from the language of the will. (Larison v. Record, (1987), 117 Ill. 2d 444, 512 N.E.2d 1251.) The question on appeal is whether the trial court’s construction of the will gave effect to testator’s intent. King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.

In the present case, the preamble of testator’s will specifically states that the will directs the “disposition and distribution” of the Florida apartment and its contents if testator owned the property at her death. Petitioners seize onto this language and argue it limits the property to be distributed under the will to only testator’s Florida property. Consequently, petitioners urge that this court find that testator’s Illinois property passes to them as intestate property under the rules of descent and distribution of the Probate Act of 1975. See Ill. Rev. Stat. 1985, ch. 111½, par. 2 — 1.

On the other hand, the third clause of the will designates respondents as “residuary beneficiaries” who will “share equally in the residue of the estate.” Respondents cling to this language and argue that the testator’s use of those terms, without limitation to the Florida apartment, establishes she intended to devise her entire estate to respondents.

We believe the will is ambiguous due to the conflicting language used in the preamble and the residuary clause. The preamble limits the property to be distributed to only the Florida property, but the third clause devises the residue of her estate to respondents. A general residuary clause is presumed to include all testator’s property not otherwise distributed in the will unless there is a contrary intention. (Hainer v. Rhodes (1947), 331 Ill. App. 174, 72 N.E.2d 634 (abstract of opinion).) It is unclear, therefore, whether testator intended that her property in Illinois should pass through the will. Accordingly, testator’s intent cannot be determined from the language used in the will and the trial court erred when it granted judgment on the pleadings in respondents’ favor.

When the language of a will does not clearly establish testator’s intent, the court must use rules of construction to determine its meaning. (Warren-Boynton State Bank v. Wallbaum (1988), 123 Ill. 2d 429, 528 N.E.2d 640.) It is presumed, especially where a residuary clause is included in the will, that the testator intended to dispose of his entire estate by will rather than by intestacy laws. (In re Estate of Brack (1986), 147 Ill. App. 3d 819, 498 N.E.2d 661.) A will is to be liberally interpreted to avoid intestacy unless it is clear that the testator intended to die intestate. (Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251.) Additionally, it is presumed that the testator did not intend to disinherit heirs unless that intention is made clear either by express words or by necessary implication. Shea v. Lyons (1964), 47 Ill. App. 2d 187, 198 N.E.2d 151.

In addition to rules of construction, the court may consider extrinsic evidence of a testator’s intent to resolve an ambiguity in a will. (Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251.) The trial court denied petitioners' request for an evidentiary hearing because it did not find the will was ambiguous. We are reluctant to apply the above-mentioned presumptions to resolve the ambiguity when the parties have not been given an opportunity to present evidence of testator’s intent. (See In re Estate of Gibson (1974), 19 Ill. App. 3d 550, 312 N.E.2d 1.) Accordingly, we reverse the judgment of the trial court and remand with directions for the trial court to consider extrinsic evidence, if any, of testator’s intent.

Reversed and remanded with directions.

MURRAY, P.J., and COCCIA, J., concur.


author: JUSTICE BUCKLEY

text:
    RETINA SERVICES, LTD., Plaintiff-Appellant, v. IRA GAROON, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—1038
    Opinion filed April 24, 1989.

      Adams, Fox, Adelstein & Rosen and O’Keefe, Ashenden, Lyons & Ward, both of Chicago (Michael E. Fox, Peter V. Baugher, Norman Rifkind, and J. Michael Heaton, of counsel), for appellant.
    Timothy R. Conway and Brad L. Jansen, both of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Retina Services, Ltd. (plaintiff), brought this interlocutory appeal from the circuit court’s denial of its motion for a preliminary injunction to enjoin Ira Garoon, M.D. (defendant), from providing medical services at five hospitals for a two-year period in contravention of a restrictive covenant not to compete in defendant’s employment contract. The sole issue presented for our review is whether the circuit court erred in finding the covenant unenforceable. We reverse.

Plaintiff is an Illinois medical corporation. Its shareholders and professional employees, Joel Kaplan, M.D., and Frank P. La Franco, M.D., are ophthalmologists who subspecialize in retinal surgery. Plaintiff’s practice is centered in the Chicago metropolitan area at eight hospitals which possess the equipment necessary for its subspecialty. Its patients consist mainly of referrals from other ophthalmologists.

Kaplan began marketing his subspecialty in 1966 by establishing contacts with ophthalmologists through speaking engagements and various other means. La Franco joined the practice in 1977. Either Kaplan or La Franco serves on the staff of five of the eight hospitals where they practice. In addition, of these five hospitals, they have founded eye centers at three hospitals and have nonexclusive contracts to perform retinal services with four hospitals.

Defendant began employment with plaintiff in 1982 after completing his fellowship in Massachusetts. At that time, defendant, who was represented by counsel, entered into a one-year contract with plaintiff for a $70,000 annual salary plus benefits. The contract contained various covenants not to compete after termination of his employment. Thereafter, upon Kaplan’s and La Franco’s sponsorship and letters of recommendation, defendant received staff appointments at five of the hospitals Kaplan and La Franco were affiliated with and thereby gained access to their referring sources.

Defendant, again represented by counsel, entered into two subsequent employment agreements with plaintiff, extending the term of his employment at substantial increases in his salary with less restrictive covenants not to compete. Before signing the 1987 contract in issue here, defendant contacted an attorney for the American Medical Association who, he understood, was an expert on noncompetition agreements. Under this contract, defendant received cash compensation in excess of $300,000 along with approximately $50,000 in fringe benefits.

After Kaplan and La Franco decided not to renew defendant’s contract at the expiration of the 1987 contract, defendant continued to practice at the five hospitals in contravention of the covenants. Plaintiff then filed an action to enforce the restrictive covenants. In its motion for preliminary injunction, plaintiff sought only to enforce that portion of the restrictive covenant which prohibited defendant from performing medical services at or serving on the staff of the five named hospitals and did not choose to enforce that portion which prohibited defendant from “tak[ing] any action [which may] disturb the existing *** relationship of the Corporation with any referral source or any patient of Corporation” or from soliciting business from either.

In finding the covenant unenforceable, the circuit court found that plaintiff did not prove the existence of a protectable interest in its customer relationships because it did not establish a “near-permanent relationship” and “unlikely employee contact save for the employment.” It also voiced concern over whether the geographic scope of the covenant was overly broad and necessary to protect plaintiff’s interest.

It is established that a party who seeks a preliminary injunction must demonstrate by a preponderance of the evidence that (1) a certain and clearly ascertained right needs protection, (2) irreparable injury will occur without the injunction, (3) no adequate remedy at law exists, and (4) there is probability of success on the merits of the case. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45; McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.) The determination of whether to grant or deny an injunction rests within the discretion of the trial court, and a reviewing court’s role is limited to determining whether the trial court’s findings are against the manifest weight of the evidence. McRand, 138 Ill. App. 3d at 1050-51, 486 N.E.2d at 1311; A.B. Dick Co., 159 Ill. App. 3d at 791, 514 N.E.2d at 48; Hydroaire, 98 Ill. App. 3d at 761, 424 N.E.2d at 722.

Whether injunctive relief should issue to enforce restrictive covenants not to compete in employment contracts depends upon the validity of the covenant, the determination of which is a question of law. (McRand, 138 Ill. App. 3d at 1051, 486 N.E.2d at 1311; Tower Oil & Technology Co. v. Buckley (1981), 99 Ill. App. 3d 637, 642, 425 N.E.2d 1060, 1065; Image Supplies, Inc. v. Hilmert (1979), 71 Ill. App. 3d 710, 712, 390 N.E.2d 68, 70.) Illinois courts carefully scrutinize the validity of these covenants that restrain trade (Akhter v. Shah (1983), 119 Ill. App. 3d 131, 456 N.E.2d 232), and their enforceability is dependent upon the reasonableness of the restraint. Hydroaire, 98 Ill. App. 3d at 764, 424 N.E.2d at 724; House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 37, 225 N.E.2d 21, 24.

In judging the reasonableness of covenants not to compete in a variety of employment settings, Illinois lower courts have focused on a number of different factors. Among these factors are whether the contract is supported by valuable consideration, whether the restraint is greater than necessary to protect the promisee, whether enforcement of the contract would be injurious to the public, whether enforcement would cause undue hardship to the promisor, whether the durational and geographic scope of the covenant is reasonable, and whether the employer has a protectable business interest. (See, e.g., Akhter, 119 Ill. App. 3d 131, 456 N.E.2d 232; Hydroaire, 98 Ill. App. 3d 758, 424 N.E.2d 719; A.B. Dick Co., 159 Ill. App. 3d 786, 514 N.E.2d 45.) Those courts which have examined whether a protectable business interest exists have applied a two-part test to reach its determination — the employer must have a near-permanent relationship with its customers and the employee would not have had contact with the customers but for the employment. McRand, 138 Ill. App. 3d at 1051; 486 N.E.2d at 1311; A.B. Dick Co., 159 Ill. App. 3d at 793, 514 N.E.2d at 49.

The parties on appeal dispute what plaintiff is required to show to enforce a restrictive covenant not to compete among doctors under Illinois law. Specifically, defendant asserts that plaintiff must show that it had a protectable business interest in the five hospitals under the two-part test cited above, while plaintiff argues that Illinois courts recognize the goodwill inherent in a medical practice to be a protectable interest in consistently enforcing such covenants.

The Illinois Supreme Court has repeatedly upheld covenants not to compete in medical practice cases without making a specific inquiry into whether the plaintiff has demonstrated a protectable business interest. Notwithstanding the appellate court decisions which have carefully scrutinized whether the plaintiff has shown a protectable interest in cases outside the medical practice area, the Illinois supreme court’s consistent enforcement of such covenants in the medical professional field, where the durational and geographic scope is reasonable, demonstrates its recognition that a professional’s medical practice is a protectable business interest.

In the early case of Bauer v. Sawyer (1956), 8 Ill. 2d 351, 134 N.E.2d 329, the supreme court noted that while contracts in general restraint of trade are generally held to be illegal, an exception exists in contracts where doctors in a medical partnership seek to prohibit a retiring partner from practicing medicine in the same city through a reasonable restraint. In House of Vision (37 Ill. 2d 32, 225 N.E.2d 21), the sole case where the court found a medical practice covenant not to compete to be unenforceable, the court weighed the employer’s interests in protecting its customers of contact lenses with the hardships of the unlimited time period and the large geographic area of the covenant on the employee and concluded it was unreasonable.

Additionally, the court broadly stated in Canfield v. Spear (1969), 44 Ill. 2d 49, 254 N.E.2d 433, where the doctor specializing in dermatology became known in the city through opportunities provided by his association with the clinic, that where the limitation as to time and territory is not unreasonable, agreements in cases like the one before it are valid and enforceable and relief by injunction customary and proper. Similar to defendant’s arguments in the instant case, the supreme court in Canfield found no merit to defendant’s arguments that plaintiff had no protectable interest, that the public welfare would be injured, and that enforcing the agreement would be an undue hardship on defendant. (Canfield, 44 Ill. 2d at 50, 254 N.E.2d at 434.) In the most recent medical practice case considered by the supreme court, Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648, the court again restated the rule that covenants involving performances of professional services have been held valid and enforceable when the limitations as to time and territory are not unreasonable.

Defendant argues that contrary to these supreme court cases, plaintiff’s protectable interest is not evident here because the covenant restricts practice at hospitals, as opposed to patients, and because plaintiff here does not have an exclusive interest in the named hospital facilities. None of the supreme court cases, however, has so limited its holding or has suggested such a narrow interpretation. In fact, the employers in the above supreme court cases did not have any exclusive interest or right to practice in the cities or areas defined in those covenants or in the potential patients of those areas. Moreover, the restrictions not to practice medicine in a defined area in those cases necessarily included practice at hospitals. The circuit court, therefore, improperly denied the injunction on grounds that plaintiff did not have a protectable interest in its medical practice.

The circuit court’s belief that the covenant’s geographic scope was overly broad and not reasonably necessary to protect plaintiff’s interests is also not consistent with the supreme court case law. A review of the trial court’s findings reveals, first, that the trial court apparently believed that the five-hospital limitation was too broad in geographic scope because it required defendant to practice only at Michael Reese Hospital, Holy Cross Hospital, and hospitals in the suburban areas in the south and west sides of metropolitan Chicago.

The supreme court has found to be reasonable geographic limitations in medical practice cases which were far broader in scope than the five-hospital limitation here. (Canfield, 44 Ill. 2d 49, 254 N.E.2d 433 (three-year prohibition from practicing all medicine within the City of Rockford and surrounding radius of 25 miles); Cockerill, 51 Ill. 2d 179, 281 N.E .2d 648 (five-year prohibition of practicing medicine in a 20-mile area); Bauer, 8 Ill. 2d 351, 134 N.E .2d 329 (five-year prohibition on practicing medicine within a 25-mile radius of Kankakee); Storer v. Brock (1933), 351 Ill. 643, 184 N.E. 868 (unlimited time prohibition from practicing medicine in the entire City of Chicago).) The supreme court has reasoned in these cases that no special hardship exists because the defendant could practice elsewhere or resume practicing in the area after the restricted period has ended. (See Bauer, 8 Ill. 2d at 355, 134 N.E.2d at 331; Canfield, 44 Ill. 2d at 51, 254 N.E .2d at 434.) The sole covenant not to compete in medical practice cases found by the supreme court to be unreasonable involved a covenant far broader in scope than the one in the case at bar. In House of Vision (37 Ill. 2d 32, 225 N.E.2d 21), the court found to be unreasonable an unlimited time prohibition from practicing medicine within 30 miles from any of plaintiff’s offices, which included a Highland Park office 23 miles north of Chicago and a Waukegan office 35 miles north of Chicago.

Second, the trial court apparently found that the five-hospital restriction was not necessary to protect plaintiff’s interests. The supreme court has repeatedly found restrictive covenants protecting a professional’s medical practice to be necessary. In Cockerill (51 Ill. 2d 179, 281 N.E.2d 648), the supreme court reversed the appellate court’s finding that a 20-mile restriction was not necessary to protect the plaintiff’s interest. The court stated that in determining the reasonableness of the restriction, the injurious effect upon the general public must be considered as well as any undue hardship upon the employee and the need for the protection of the limitation by the employer. (Cockerill, 51 Ill. 2d at 184, 281 N.E.2d at 651.) In finding that the restriction on practicing all veterinary medicine in that area was necessary to afford the plaintiff the protection in his clients, the court noted that by bringing the defendant into the association, the plaintiff was bringing him into contact with a clientele which plaintiff had established over a period of years.

Likewise, plaintiff here introduced defendant to its contacts with the hospitals and referring ophthalmologists, which it had spent 11 years developing. The five hospitals account for 85% of plaintiff’s business and 170 referring physicians on the staffs of these hospitals account for 65% of its business. Because the equipment at the hospitals is necessary for treatment in plaintiff’s subspecialty and because referring ophthalmologists consider patient proximity to a hospital in making referrals, the enforcement of the five-hospital restriction would protect plaintiff’s interests in the referring ophthalmologists. In line with the supreme court case law, we find that the five-hospital limitation is necessary for plaintiff’s protection of its interests.

Third, the court voiced concern over the fact that the restraint prohibits hospital staff privileges not only for referring patients but also for defendant’s own patients. This restraint is not a sufficient basis for finding the covenant overly broad. The restrictions in all the supreme court cases upholding covenants in this area have barred the physician from practicing all medicine in the particular area, not only the treatment of previous or future patients of the medical practice.

Based upon the supreme court case law, we find that the terms of the covenant in the case at bar are reasonable and that the trial court’s findings to the contrary are against the manifest weight of the evidence.

Accordingly, we hold that the circuit court erred in finding the restrictive covenant unenforceable because plaintiff did not prove a protectable business interest and hold that the trial court’s findings as to the reasonableness of the covenant to be against the manifest weight of the evidence. Thus, we reverse the circuit court’s order denying plaintiff’s motion for a preliminary injunction and remand this case with directions to the circuit court to grant plaintiff injunctive relief.

Reversed and remanded with directions.

MANNING, P.J., and CAMPBELL, J., concur.

       While these contracts are nonexclusive, plaintiff has exclusive use of the hospital facilities as a matter of practice.

      The covenant’s five-hospital limitation in the case at bar not only defines the limitations on defendant’s ability to practice but defines the geographic area where he is limited, as the equipment at the hospitals is necessary for defendant’s practice and patient referrals depend on patient proximity to a hospital.


author: JUSTICE RIZZI

text:
    JOSEPH E. SIEGEL, Plaintiff and Counterdefendant-Appellee, v. THE LEVY ORGANIZATION DEVELOPMENT COMPANY, INC., et al., Defendants (Newcastle Properties, Inc., Counterplaintiff-Appellant).
    First District (3rd Division)
    No. 1—87—1684
    Opinion filed April 26, 1989.
    Rehearing denied May 24, 1989.

      Schiff, Hardin & Waite, of Chicago (Roger Pascal, Paul E. Dengel, and Kevin D. Evans, of counsel), for appellant.
    Braun & Rivkin, Ltd., of Chicago (Bernard L. Rivkin, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Counterplaintiff-appellant, Newcastle Properties, Inc. (Newcastle), appeals from a judgment of the circuit court of Cook County dismissing its counterclaim filed against counterdefendant-appellee, Joseph Siegel. On appeal, Newcastle argues that the trial court erred in finding that a paragraph in the purchase agreement was a stipulated damages provision and therefore an enforceable liquidated damages clause. We affirm.

On January 26, 1981, Siegel entered into a purchase agreement (Agreement) with The Levy Organization Development Company, Inc. (Levy), whereby he agreed to purchase a condominium apartment (condo) located in the 950 North Michigan Avenue building. The agreed purchase price was $1.6 million. As an earnest deposit, Siegel delivered to Levy an unconditional and irrevocable letter of credit in the amount of $320,000. Siegel later delivered another letter of credit for $41,751 to cover certain extras, that is, changes to the original specifications of the condo. This agreement was entered into prior to the completion of the condo.

Siegel viewed the condo in the summer of 1983. On October 21, 1983, he informed Levy that he was terminating the Agreement to purchase the condo. Levy then drew upon the letters of credit and retained $386,594. Levy further assigned to Newcastle all rights, titles, powers, privileges and beneficial interest to the condominium portion of the 950 North Michigan Avenue building. Siegel thereafter filed suit naming Newcastle as an additional party. Newcastle thereafter filed a verified counterclaim alleging that Siegel’s termination of the Agreement was a breach thereof and that Newcastle sustained a loss of $405,157 when it had to resell the unit to another purchaser for $850,000.

Siegel filed a motion to dismiss Newcastle’s counterclaim alleging that paragraph 12 of the Agreement contained a liquidated damages clause thereby precluding Newcastle from seeking any additional amounts from Siegel regardless of who defaulted under the agreement. The circuit court granted Siegel’s motion to dismiss. This appeal followed.

Newcastle argues that paragraph 12 of the Agreement is not a liquidated damages clause because it does not stipulate an amount of damages. Thus, Newcastle concludes that paragraph 12 is nothing more than a penalty and is therefore unenforceable. We disagree.

In general, a party is only entitled to recover damages to the extent of his injury. (J.F. Equipment, Inc. v. Owatonna Manufacturing Co. (1986), 143 Ill. App. 3d 208, 217, 494 N.E.2d 516, 522.) Parties may specify a particular sum as liquidated damages in instances where damages are difficult to ascertain. Liquidated damages clauses do not limit a nondefaulting parties’ remedies, but instead provide an agreed upon measure of damages. If the party who is not in default wishes not to demand the amount or remedy set forth in the liquidated damages clause, that party will not be forced to do so. Failure to demand a contractual right, however, does not create rights greater than those bargained for. If the nondefaulting party chooses to reject the liquidated damages clause, he does not have the right to seek a greater measure of damages than the amount bargained for. See Northern Illinois Gas Co. v. Energy Cooperative, Inc. (1984), 122 Ill. App. 3d 940, 947, 461 N.E.2d 1049,1055.

Liquidated damages clauses are often entered into to avoid the difficulty of ascertaining and proving damages by such methods as market value, resale value or otherwise. Such agreements are binding. However, when the sole purpose of the clause fixing damages is to secure performance of the contract, the clause will be deemed a penalty provision and therefore unenforceable. Stride v. 120 West Madison Building Corp. (1985), 132 Ill. App. 3d 601, 605, 477 N.E.2d 1318, 1321.

To ascertain whether a liquidated damages provision is merely a penalty and therefore void, it must be determined whether (1) the amount established is reasonable in light of the anticipated or actual loss caused by the breach and (2) a level of difficulty exists in proving that a loss has occurred, or in establishing the amount of the loss with reasonable certainty. Pav-Saver Corp. v. Vasso Corp. (1986), 143 Ill. App. 3d 1013, 1019, 493 N.E.2d 423, 427.

In the instant case, paragraph 12 provides as follows:

“12. Performance. *** If purchaser defaults on any of Purchaser’s covenants or obligations hereunder, then all sums theretofore paid to Seller (including without limitation earnest money and payments for Extras) by Purchaser shall be forfeited as liquidated damages and shall be retained by Seller.”

We do not find, as Newcastle argues, that this provision does not stipulate an amount of damages. The agreement unequivocally states that “all sums theretofore paid” will be retained as liquidated damages. When this agreement was entered into, Levy and Siegel not only bargained for, but believed that the earnest money would be adequate to cover any potential losses, and that the provision was valid and enforceable. Otherwise, the provision would reasonably not have been included in the agreement. The mere fact that the sum is not now what Newcastle claims to be its damages is not determinative. As the trial court correctly stated:

“We have a contract that sets forth a specific amount as earnest money deposit, three hundred odd thousand dollars. Paragraph 12 specifically refers to that earnest money. Now certainly it says including without limitation, but it does refer to the earnest money deposit, so it’s not only just saying all sums but it seems to me that the parties are specifically focusing in on at least the earnest money which is set forth in the contract and that is clear ***.”

Thus, we conclude that the liquidated damages clause at issue does stipulate an amount of damages.

We also find that the liquidated damages clause is not a penalty provision. The record evinces that the earnest money as representing “all sums” paid is reasonable in light of any losses that could have been anticipated at the time of the contract. The record further evinces that it is reasonable to conclude that at the time of the contract, a liquidated damages clause was included to avoid the difficulty of ascertaining any losses in the event of a breach.

We therefore conclude that Newcastle’s argument that the liquidated damages clause does not state a “sum certain” and that the provision is void as a penalty must fail. Accordingly, we affirm the decision of the trial court.

Affirmed.

FREEMAN, P.J., and WHITE, J., concur.


text:
    AETNA INSURANCE COMPANY, as Subrogee of Frankenthal International, Ltd., Plaintiff-Appellant, v. AMELIO BROTHERS MEAT COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—0520
    Opinion filed April 26, 1989.

      Garretson & Santora, of Chicago (Keil M. Larson, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Aetna Insurance Company (Aetna), appeals from a judgment of the circuit court of Cook County entered in favor of defendant-appellee Amelio Brothers Meat Company (Amelio Bros.). On appeal, plaintiff argues that the trial court’s finding that defendant was not liable under either negligence, strict liability, or Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.) theories is against the manifest weight of the evidence. We affirm.

On March 3, 1982, Aetna’s insured, Frankenthal International, Ltd. (Frankenthal), a meat brokerage company, contracted with Amelio Bros, for the purchase of 40,000 pounds of 90% lean, fresh frozen, boneless pork. The purchase order specified that the product was to be packed in “poly-free, staple-free cartons,” which means that the boxes were to be wax lined and sealed without staples. The order further stated that the “seller warrants that the product will be merchantable, [and] *** free from all defects of material and workmanship.”

On March 4, 1982, Frankenthal contracted with Gerber Food Prod-nets Company (Gerber), for the resale of Amelio Bros.’ frozen pork. On March 25, 1982, Gerber accepted delivery of Amelio Bros.’ pork. The frozen pork was stored in Gerber’s freezer. On April 21, 1982, Gerber removed the pork from the freezer and began to process it for inclusion in toddler sticks, a finished baby food product. Later that day, Gerber inspectors discovered corrugated cardboard protruding from the ends of the toddler sticks. The laboratory service manager investigated the problem and discovered that some of the boxes of frozen pork purchased from Amelio Bros, had corrugated cardboard imbedded in the bottom. Gerber notified Frankenthal on April 22, 1982, and Frankenthal informed Amelio Bros.

Gerber destroyed 986 cases of contaminated toddler sticks and submitted a claim to Frankenthal for their costs of $7,321.05. Frankenthal sought payment from Amelio Bros., but payment was refused. Thereafter, Aetna, on behalf of its insured, Frankenthal, paid Gerber $7,321.05 in satisfaction of its claim. Aetna then filed a complaint against Amelio Bros., alleging that the pork sold to Gerber was unwholesome, poisonous, unfit for human food, and tainted by cardboard fiber. Aetna’s complaint seeks reimbursement of damages paid to Gerber. Following a bench trial, the court entered judgment in favor of Amelio Bros, and against Aetna and its insured, Frankenthal. This appeal followed.

In a bench trial, the trial judge, as the trier of fact, is in a superior position to determine the credibility of the witnesses and the weight to be given their testimony. (Magnone v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 170, 176, 466 N.E.2d 1261, 1266.) A reviewing court will not substitute its judgment unless an opposite conclusion is clearly evident. (Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 962, 466 N.E.2d 977, 994.) Further, a decision is not against the manifest weight of the evidence where the court’s decision is supported by the evidence. Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 803, 449 N.E.2d 1358, 1365.

The three theories under which the plaintiff in the instant case attempted to recover are (1) negligence; (2) products liability; and (3) breach of warranty. In a negligence action, the plaintiff must establish that defendant had a duty to conform to a certain standard of conduct established by law, that defendant failed to meet that standard by a negligent act and that its failure was the cause of plaintiff’s injuries. (Moore v. Hill (1987), 155 Ill. App. 3d 1, 4, 507 N.E.2d 1314, 1316.) In a products liability matter, the plaintiff must demonstrate that (1) he was injured; (2) the injury resulted from a condition of the product; (3) the condition was an unreasonably dangerous one; and (4) the condition existed at the time the product left the defendant’s control. Finally, in order to prevail under the theories of breach of an implied or express warranty of merchantability, the plaintiff must show that the condition of the product, when it left the manufacturer’s control, was the same as immediately prior to its use. Warren v. Coca-Cola Bottling Co. (1988), 166 Ill. App. 3d 566, 572, 519 N.E.2d 1197,1202.

In the present case, the plaintiff presented no evidence to conclusively demonstrate that Amelio Bros, was responsible for the alleged presence of cardboard in the boxes of pork. Plaintiff’s witness Dean Koopman, laboratory food supervisor for Gerber, testified that he assumed that the cardboard fragments were in the box when the meat was packaged. However, Nick Amelio, president of Amelio Bros, testified that the cardboard could have become attached to the meat during the thawing process after it left his place of business. While Koopman stated that Gerber processed the meat by removing and grinding it while frozen, Amelio testified that removing the meat from the box in a frozen state could cause the corrugation to stick to the meat. In short, the evidence indicates that there are numerous ways by which the corrugation could have become imbedded in the pork. Plaintiff’s own speculation is insufficient to establish the necessary inference of causation in order to provide a basis for recovery. (Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 101, 468 N.E.2d 477, 482.) Therefore, because plaintiff has failed to provide any evidence by which the court could find that the cardboard was imbedded in the pork when it left the control of defendant, plaintiff has failed to establish a right to recover under either a theory of negligence, strict liability, or breach of implied or express warranties.

Moreover, where a product fails to meet the buyer’s expectations and purely economic damages are suffered, the buyer must seek his remedy under the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.), rather than under tort theories of negligence or products liability. See Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 434 N.E.2d 1132.

We therefore conclude that the trial court’s judgment was not against the manifest weight of the evidence and that the judgment must be affirmed.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

FREEMAN, P.J., and WHITE, J., concur.