author: PRESIDING JUSTICE UNVERZAGT

text:
    SPOMENKA M. RYBAK, Plaintiff and Counterdefendant-Appellant and Cross-Appellee, v. DONALD J. PROVENZALE, Defendant and Counterplaintiff-Appellee and Cross-Appellant.
    Second District
    No. 2—88—0170
    Opinion filed April 17, 1989.

      Susan E. Cox, of McDermott, Will & Emery, of Chicago (Douglas C. Tibbie, of counsel), for appellant.
    Thomas W. Fawell, of Thomas W. Fawell & Associates, P.C., and Fatten, Muchin & Zavis, both of Oak Brook (John J. Curry, Jr., of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Spomenka Rybak, a dentist, filed a four-count amended complaint in the circuit court of Du Page County against the defendant, Donald J. Provenzale, also a dentist, for breach of contract, breach of fiduciary duty, punitive damages, and conversion. Pro-venzale counterclaimed for breach of contract and fraud.

Following a bench trial, the court entered judgment in favor of Rybak against the defendant in the amount of $6,631.95 and denied the defendant any relief on his counterclaim. Both parties appeal.

Rybak’s appeal presents these issues: (1) whether a written agreement between herself and the defendant was enforceable; (2) whether she was entitled to credit for funds held by the defendant under the terms of their oral contract; (3) whether the court’s judgment is inconsistent with its findings of fact; and (4) whether compensatory and punitive damages should have been awarded due to the defendant’s breach of his fiduciary duties to her. The defendant’s cross-appeal presents these additional multipart issues: (5) whether the court’s denial of his counterclaim is against the manifest weight of the evidence where (a) exhibit No. 100, a xerographic copy of the alleged written agreement, should not have been admitted, (b) exhibit No. 100 was wholly fraudulent, (c) Rybak’s expert’s testimony regarding exhibit No. 100 should not have been allowed, (d) the court failed to acknowledge Rybak’s lack of credibility, and (e) Rybak breached her associate’s agreement with him and intentionally defrauded him; and (6) whether the court’s judgment was against the manifest weight of the evidence as to (a) its $5,000 award for legal expenses and (b) its $1,631.95 award for unpaid compensation.

From 1975 to July 6, 1982, Rybak worked as a dentist in defendant’s dental office in Downers Grove. Pursuant to an oral agreement which is undisputed by the parties, Rybak received as compensation 50% of the fees received from patients she treated, less laboratory and other expenses attendant to those patients. It was, and is, defendant’s position that this remained the parties’ agreement until Rybak left the office in July 1982 and relocated her practice. Rybak’s contention, however, is that she and Provenzale subsequently orally modified this agreement in late November 1978 and in August 1979 and that the latter modification was memorialized by a written agreement on August 31, 1979. The defendant denies any of these subsequent oral or written modifications occurred or that he ever signed the •written agreement identified at trial as plaintiff’s exhibit No. 100 (PX100).

PX100 provided that all monies paid against the purchase of a partnership interest over and above $2,000 per month (Rybak’s share of the office expenses) would be returned, with interest, to Rybak if she did not purchase a partnership interest in the defendant’s practice. Rybak did not purchase a partnership interest in the defendant’s practice, and she relocated her practice in July 1982. She contends the defendant retained a total of $54,568.17 over and above the $2,000 per month specified in the agreement. Rybak sought to recover this amount plus interest as provided by the parties’ written agreement, or a total of $94,459.14 through January 1, 1988. Rybak also sought to recover $250,000 in punitive damages from the defendant due to his breach of his fiduciary duty to her.

The defendant maintained that he did not sign the August 31, 1979, agreement and that the only agreement which Rybak and he had -with respect to her compensation was that she was to be paid 50% of her net collections (fees earned from her treatment of patients minus laboratory fees and other related expenses). The defendant’s counterclaim sought to recover at least $32,128.10, which amount the parties stipulated Rybak collected and retained directly from patients treated by her after January 1, 1980, rather than processing the receipts through the defendant’s office account. The defendant also sought punitive damages from Rybak in the amount of $250,000.

The trial court found the conduct of the parties showed their original agreement was changed and Rybak’s compensation was no longer limited to 50% of the net funds collected from patients treated by her. Although the court believed the defendant signed the agreement (PX100), it found PX100 was not sufficient to establish a contract between the parties and that it was “an agreement to agree to some other arrangement.” The court also found, however, that PX100 was “sufficient to modify the original agreement, limiting Ms. Rybak’s compensation to only 50% of the funds she earned.” Accordingly, it awarded Rybak $6,631.95 ($5,000 in lab dispute legal fees for which it found the defendant admitted responsibility, and $1,631.95 representing fees, less expenses, collected by the defendant between June 26 and July 6, 1982, for work done by Rybak). It denied the defendant’s counterclaim in its entirety. Neither the court’s oral decision nor written judgment specifically mentioned Rybak’s claim for punitive damages, but in the course of its oral decision, the court stated: “[N]either side wins is what the decision is.”

The defendant has moved this court pursuant to Supreme Court Rule 362 (107 Ill. 2d R. 362) for leave to amend his countercomplaint to include a third count for conversion. The motion was ordered taken with the case, and we now deny it.

The defendant’s motion alleges that the “elucidation of the fact at trial that [Rybak] removed patient charts and ledgers from [his] practice without authorization” formed an integral part of her intentional scheme to wrongfully deprive his practice of fees, services and other assets. Defendant’s motion further alleges that, inasmuch as Rybak’s actions were “implied in and were necessarily related to the claims set forth in the Countercomplaint,” it is necessary to amend the countercomplaint to conform to the evidence and to insure that justice is done between the parties. He alleges Rybak will not be prejudiced by the amendment since (at the time of the filing of the motion) her first brief had not yet been filed and she was advised of the claim for conversion cóntained in the amendment by virtue of the proofs and argument at trial.

Rybak filed her objections to this proposed amendment, asserting the amendment is not necessary in that it will not serve to complete the record, will not conform the pleadings to the proof, or correct any error in the pleadings. Further, it would be prejudicial to her in that it attempts to set up a new cause of action of which she had no prior notice and neither opportunity nor reason to controvert at trial. Lastly, the facts in the record do not support the proposed amendment and proof of numerous elements of the new cause of action would be required if the amendment were allowed.

This court has the authority to permit the amendment requested. (See 107 Ill. 2d Rules 362, 366(aXl); Ill- Rev. Stat. 1987, ch. 110, par. 2 — 616(c).) However, the record does not support Provenzale’s claim of conversion, and additional proof would be required. Provenzale’s proposed amendment, in fact, is insufficient to state a cause of action for conversion in that it fails to allege a demand was made upon Rybak for return of the items. A.T. Kearney, Inc. v. INCA International, Inc. (1985), 132 Ill. App. 3d 655, 664.

The lack of proof in the record on the elements of the claim contained in the proposed amendment belies Provenzale’s assertion that Rybak had notice of the claim by virtue “of the proofs at trial.” Nor did Provenzale’s argument at trial put her on such notice where counsel argued Rybak’s removal of the records from Provenzale’s office was “part and parcel of [his] claim for fraud.” Accordingly, we deny Provenzale’s motion to amend his countercomplaint.

RYBAK’S APPEAL

The court specifically found Provenzale signed the agreement marked PX100, but it refused to enforce its terms on the basis it was “an agreement to agree to some other arrangement.” Rybak contends the agreement is enforceable where the condition precedent to Pro-venzale’s refund of the fees collected from patients treated by her and retained over and above $2,000 per month occurred: that is, she did not purchase a partnership interest in his practice. The defendant contends the court’s refusal to enforce PX100 should be affirmed and argues that PX100 cannot be enforced as a binding contract inasmuch as it lacks certain definite terms with respect to the elements of an agreement to purchase part of the practice, such as specification of purchase price and the method of payment or financing of the purchase or terms of interest.

We are unable to reach the merits of this issue for several reasons. First, it is not clear from the record that PX100 actually was admitted in evidence. Second, assuming, arguendo, it was admitted, we cannot locate it amongst the numerous exhibits submitted with this record, and the facsimile provided in Rybak’s appendix bears no identification number. Third, also assuming, arguendo, PX100 was admitted, we agree with the defendant that its admission was improper.

In order to lay a foundation for the admission of a copy of an original writing, the proponent must prove the prior existence of the original, its loss, destruction, or unavailability, the authenticity of the substitute, and the proponent’s own diligence in attempting to procure the original. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, aff'd (1987), 118 Ill. 2d 23; Electric Supply Corp. v. Osher (1982), 105 Ill. App. 3d 46.) “When an original is traced to the possession of a third party, it must be shown that the third party cannot be subpoenaed to produce the original at trial or at a deposition and that no other judicial procedure compelling production is available.” E. Cleary & M. Graham, Handbook of Illinois Evidence §1004.4, at 670 (4th Ed. 1984).

Rybak testified she gave the original agreement to Orrin Dressier so he could make copies of it for her. The original was never returned to her, although she testified she asked Dressier for it. Ry-bak offered no evidence to show that the original was lost, destroyed, or that Dressier was not subject to the subpoena power of the court. Rybak’s argument, in fact, acknowledges Dressler’s presence in the courtroom during trial, and the court commented that “only [Mr. Dressier] is aware as to what happened to and where the original which [Dr.] Provenzale signed disappeared to.” Inasmuch as PX100 was inadmissible, we find no error in the court’s refusal to enforce its terms.

Rybak next contends that even if the court did not err in finding that PX100 was not an enforceable contract, it erred by not finding the existence of an oral agreement between herself and the defendant after 1978 which obligated him to either credit her with $54,568.17 toward the purchase of a partnership interest or to return that amount to her with interest when she decided not to purchase a partnership interest.

In order for an oral contract to be binding and enforceable, its terms must be definite and certain (Harmon v. Dawson (1988), 175 Ill. App. 3d 846; Lai v. Naffah (1986), 149 Ill. App. 3d 245; Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787), and there must be a meeting of the minds (Richton v. Farina (1973), 14 Ill. App. 3d 697). The party who asserts the existence of an oral agreement has the burden of proving its terms. (In re Estate of Kern (1986), 142 Ill. App. 3d 506.) “[W]hether an oral contract exists, its terms and conditions and intent of the parties are questions of fact. A reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn” (Kern, 142 Ill. App. 3d at 514), but may reverse if the court’s judgment is contrary to the manifest weight of the evidence (People v. Boyt (1984), 129 Ill. App. 3d 1, aff'd (1985), 109 Ill. 2d 403; Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App. 3d 391). For a judgment to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evident. First Security Bank v. Bawoll (1983), 120 Ill. App. 3d 787, 794.

The trial court found the original agreement between the parties “changed” and that Rybak’s compensation was no longer limited to 50% of the funds earned for her treatment of patients. It also specifically found the defendant signed the August 31, 1979, agreement. It refused to find the agreement enforceable, however, and found Ry-bak had not established what portion of the funds retained she was entitled to recover.

The evidence supports a finding that the parties orally modified their original agreement in November 1978 to provide for a “cap” on the amount of funds the defendant would retain from the fees paid by patients treated by Rybak. Although the defendant did not want to simply lease Rybak space in his office because he expected her earnings to increase and, thus, his to increase also, he admitted he was interested in her becoming a partner and discussed the possibility of having an evaluation done of the practice. Rybak was dissatisfied with her position as an associate, recognized leasing space was less expensive than maintaining her own office, but lacked the funds to buy into the partnership. Thus, the proposed “cap” was beneficial to each parties’ interest in eventually forming a partnership. Rybak testified it was determined at year’s end that Provenzale’s usual 50% share of the net fees earned from her treatment of patients was $2,000 and that amount was agreed upon as the cap.

Despite his admitted interest in Rybak’s eventual partnership with him and knowledge that Rybak lacked the means to buy into the practice, Provenzale denied he agreed to the cap arrangement. However, an office employee, Loma Konicki, testified the defendant told her when she began working in the office in 1979 that he and Rybak each had their own practice and that Dr. Rybak paid $2,000 toward expenses.

Rybak testified that on August 30, 1979, the defendant’s 50% share of fees earned by her treatment of patients already exceeded the $24,000 yearly cap and she told him she wanted to draw on that excess amount. She testified the defendant told her, however, that he was “in the red.” He proposed they continue the same split of funds collected and stated he would credit funds retained over the $24,000 toward her purchase of a partnership interest. Rybak liked the idea, but she wanted an agreement, and Provenzale told her to draft something. At home that evening, she typed a one-page, two-part agreement (identified at trial as discussed above as PX100). The top portion set forth her obligation to pay Provenzale $2,000 per month toward office expenses, and the bottom portion set forth, inter alia, Proven-zale’s agreement to refund to her with interest “all monies paid against partnership purchase (over and above $2,000 a month pro shared office expenses).” Such refund was to be made “[i]n case that Spomenka Rybak, D.D.S. for any reson [sic] will decide not to finalize the purchase of the partnership.”

Notwithstanding the inadmissibility and, thus, unenforceability of PX100, other secondary evidence of the terms and existence of an agreement between the parties which was admitted at trial supports a conclusion that Rybak and Provenzale mutually agreed to the terms testified to by Rybak. In addition to her testimony concerning the terms of the agreement, Rybak testified she presented the defendant with the agreement the next day, August 31, about noon. Her testimony that the defendant signed the agreement was corroborated by the testimony of several other witnesses.

Alice Kohlin, the defendant’s dental assistant, was called into the meeting between the parties on August 31 and asked by the defendant to tabulate the amounts owed to Rybak at that time. The net fees owed Rybak as of August 30 were $3,564.14.

The evidence showed the defendant’s checking account balance as of August 31, 1979, was only $1,888.50, and that Rybak received a check from him dated September 1, 1979, in the amount of $1,000. Although the defendant sought to explain this underpayment of money owed to Rybak by stating that he could have transferred funds from his savings account into his checking account and that he may not have made full payment to Rybak at that time because there were some unexplained missing checks, the evidence shows outstanding amounts were still owed to Rybak in mid-September 1979. This evidence supports Rybak’s testimony that the defendant told her he was “in the red.” Thus, it is likely he was highly motivated to propose the terms of the agreement alleged by Rybak. Alice Kohlin testified that she saw the defendant tear off the bottom portion of the agreement and sign it.

Lorna Konicki also corroborated the existence of the signed, half-page agreement. She testified Rybak and the defendant were having a “tense” discussion in the office in March 1980 when the defendant asked Konicki to make a copy of the agreement. She testified Rybak took the agreement, which was not full-sized, out of a wallet. She recognized Provenzale’s signature on the paper. Konicki testified a picture of Rybak’s son fell to the floor at the same time Rybak took out the agreement. It was Rybak’s testimony that she kept the agreement, folded, in a wallet along with her passport and a picture of her son.

Judy Littleton, Rybak’s dental assistant from 1981 to 1984, testified she was present at a meeting in September or October 1981 between Rybak and Provenzale at which they discussed which doctor’s name should be on the insurance forms. At that time, Rybak was “really mad and she was waving around some paper stating that she had some agreement and she can do what she wants regarding — with me in doing her insurance forms.” Littleton described the paper Rybak was waving around as a small piece of paper which was folded or ripped. Littleton further testified that in July 1982 Rybak showed her the original agreement which Littleton described as “a shorter piece of paper *** [not] full length *** [titled] Agreement *** signed by Dr. Provenzale” in blue ink. Rybak also testified Provenzale signed the agreement in blue ink. Littleton corroborated Rybak’s testimony that she gave this original agreement to Orrin Dressier on that date in July for him to make copies.

Despite the inadmissibility of PX100, the foregoing evidence and the court’s finding that Provenzale signed the agreement establishes the defendant’s assent to its terms. This evidence distinguishes the instant cause from Lal v. Naffah (1986), 149 Ill. App. 3d 245, relied on by the defendant. In Lai, the plaintiff unsuccessfully claimed he had an oral agreement with the defendant fixing his compensation at a percentage of the profits. The contract first signed by the plaintiff in that case did not include a provision that his salary would be tied to the profits of the practice. When that contract expired, the plaintiff once again asked to share in the profits of the practice but was tendered a written employment contract which provided that future compensation would be tied to the defendant’s salary and not the profits of the practice. The plaintiff did not sign the agreement, but he continued to work for the defendant for the next five years, accepting without protest 117 semimonthly checks drawn on the defendant corporation’s account. The court found there was no enforceable oral contract where the evidence showed there was no mutual assent by the parties to the terms alleged by the plaintiff.

Other evidence that the parties here reached an agreement is that Rybak began accepting payments directly from patients and their insurers rather than funneling all collections through the defendant’s books and accounts. Rybak, Littleton, and Konicki each testified the defendant observed Rybak directly taking checks. Rybak also began paying some of her laboratory fees directly, and she assumed responsibility for the defense of a lawsuit for'unpaid laboratory invoices. The defendant admitted he had ready access to the office day sheets, deposit records, patient files and patient ledger cards, all of which disclosed Rybak’s practice after January 1980 of accepting some payments directly from patients.

The court’s finding that Rybak “failed to establish what portion, if any, other than the $1,631.91 *** she might be entitled to as to those funds that had been retained” contains an inherent contradiction inasmuch as its award of $1,631.91 represents 100% of the fees stipulated by the parties to have been collected from patients treated by Rybak between June 26 and July 6, 1982. The court specifically found the parties’ original oral agreement was changed and that her compensation was no longer limited to 50%. No percentages or splits other than 50% as originally agreed or 100% less $2,000-per-month office expenses have ever been in issue, and plaintiff’s exhibit No. 19 admitted at trial showed $51,139.72 retained by Provenzale pver and above Rybak’s net collections for the years 1978-82 less office expenses and amounts received from Provenzale.

We conclude the court’s judgment was against the manifest weight of the evidence and must be reversed insofar as it did not award Rybak all the funds retained by the defendant over and above the $2,000-per-month office expenses she agreed to pay, plus interest. Because we have so concluded, we need not address Rybak’s further contention the court’s judgment bears no relation to the evidence presented at trial.

Rybak next contends the court erred in not granting her claim for $94,459.14 in compensatory damages and $250,000 in punitive damages against the defendant for breach of his fiduciary duties to her. In violation of supreme court rules, however, she cites no relevant authority in support of her contention, and we consider the issue waived. 107 Ill. 2d R. 341(e)(7); Button v. Elmhurst National Bank (1988), 169 Ill. App. 3d 28, 38; In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 688-89.

DEFENDANT’S CROSS-APPEAL

The court denied all relief to the defendant under his two-count countercomplaint for breach of contract and fraud. He contends the court’s judgment was against the manifest weight of the evidence.

The defendant first argues it was reversible error for the court to find that he signed the original of PX100 where the evidence disclosed it was a wholly fraudulent document. The opinion of the defendant’s expert witness, Charles Scott, was that PX100 was a photocopy of a constructed or fabricated document. This opinion was based primarily on the fact the typewritten signature line and letters were slightly larger than the typewritten text of the body of the agreement, and the signature line was out of vertical alignment with the body of the text above. The defendant contends Scott’s testimony clearly and convincingly outweighed the testimony of the eyewitnesses to the purported original of the agreement, who he argues were biased in the first instance.

Experts’ opinions are only as valid as bases or reasons for them (In re T.D.W. (1982), 109 Ill. App. 3d 852); the trier of fact is not bound to accept the opinion of an expert (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449), and the weight to be accorded expert testimony is for the trier of fact to decide (Rosos Litho Supply Corp. v. Hansen (1984), 123 Ill. App. 3d 290). Expert testimony augmented by other circumstances may overcome the testimony of attesting witnesses (In re Estate of Ragen (1981), 96 Ill. App. 3d 1035, 1043-45); however, the testimony of an expert is judged by the same rules of weight and credibility which are applied to other witnesses (Presswood v. Morris (1979), 70 Ill. App. 3d 513).

It was properly within the province of the court here as the trier of fact to reject Scott’s testimony that PX100 was a constructed document in light of the testimony of the eyewitnesses who saw the defendant sign the original and those who later saw the original document. Moreover, Scott admitted in his testimony that he had not examined the typewriter used to create the agreement, did not know its condition of repair, and did not know if it was a manual. He did not know the type of machine the agreement was copied on, by whom, when, or how it was done. He admitted that photocopy machines cause letter size distortion, and he could not tell how many copy generations old the agreement was, or whether other factors could have contributed to distortion. Moreover, in addition to the eyewitnesses to the agreement, Rybak presented her own expert, Dr. Iain McIntyre, who testified to an experiment he performed wherein he drew lines on paper, made a xerographic copy, and measured the expansion difference of the lines at the top, middle, and bottom of the page compared with the original. Lines at the top of the page showed a .15% expansion; middle lines were within the experimental error factor of .05% and the expansion of the lines at the bottom was .31%.

The defendant next argues it was reversible error to admit the testimony of Dr. Iain McIntyre as a rebuttal expert witness in the face of his objection based on Supreme Court Rule 220 (107 Ill. 2d R. 220) and to qualify McIntyre as an expert witness. Defendant complains that McIntyre was not disclosed as a witness until the day of his testimony, at which time his counsel was allowed to depose him for one hour.

Assuming arguendo it was error for the court to allow McIntyre to testify despite Rybak’s noncomplianee with Supreme Court Rule 220, consistent with cases which have required strict compliance with the Rule (Jarmon v. Jinks (1987), 165 Ill. App. 3d 855; Phelps v. O’Malley (1987), 159 Ill. App. 3d 214; McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902), and error for the court to qualify McIntyre as an expert witness — a matter within its sound discretion (People v. Jennings (1911), 252 Ill. 534, 550) subject to reversal only if it constitutes a gross abuse of discretion (People v. Free (1983), 94 Ill. 2d 378, 410) — the defendant’s assertion McIntyre’s testimony was “of no value in weighing or contradicting testimony of [expert witness] Charles Scott” defeats his claim that such error was reversible. It is axiomatic that a reviewing court will not find error to be reversible unless it is demonstrated that the error was substantially prejudicial and affected the outcome of the trial. See, e.g., Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 414.

The defendant next contends the trial court’s failure to acknowledge what he asserts are Dr. Rybak’s substantial credibility problems “merits reversal of the court’s ruling on exhibit No. 100 and its denial of Dr. Provenzale’s counterclaims as well as a denial of Dr. Rybak’s appeal.”

It is the trial court’s function to determine the credibility of witnesses (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656) and to resolve inconsistencies in testimony (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App. 3d 327), and this court cannot substitute its opinion for the finding of the trier of fact unless its holding is against the manifest weight of the evidence (Scheduling Corp. of America v. Massello (1987), 151 Ill. App. 3d 565).

For the reasons discussed above, we have found PX100 was inadmissible and that the court’s judgment awarding Rybak $6,631.95 was against the manifest weight of the evidence. We do not find the court’s judgment denying the defendant’s counterclaim was against the manifest weight of the evidence, however, as discussed below.

The defendant contends the court’s judgment denying him relief on his countercomplaint for breach of contract, fraud, and conversion was against the manifest weight of the evidence. As discussed previously, his motion to add a count at this time for conversion is denied, and his argument relating to conversion will not be addressed.

As to breach of contract, the defendant’s complaint alleged Rybak at all times was an associate employed by his dental practice pursuant to the terms of their oral agreement whereby all funds collected from patients treated by her were turned over to him in return for which he provided her office space and dental equipment and paid her 50% of all funds collected for dental work done by Rybak less 50% of all dental lab bills incurred by Rybak. Notwithstanding that relationship, it was alleged that Rybak actively concealed her failure to turn over and give to him all fees collected by her and that in the exercise of all due diligence he was unable to discover Rybak’s breach until Rybak filed her action agpinst him. In his claim for fraud, he alleged that Ry-bak represented to him that she was disclosing and turning over to him all fees collected for her work in her capacity as a dentist, but that such representations were false, were known by Rybak to be false and that Rybak performed her services as a dentist “with deceit and surreption [sic — presumably subreption]” and did not disclose or turn over all fees collected by her. He claimed further that his belief in and reliance on her representations induced him to maintain the employment relation with her and to pay her 50% of the limited fees which she chose to disclose, that she actively concealed her failure to turn over all fees to him and that in the exercise of all due diligence he was unable to discover her breach until she filed her action against him.

The parties stipulated that prior to July 6, 1982, Rybak collected directly from.patients at least $32,128.10 in fees which were not recorded in the office day sheets, nor deposited in the office bank account, and which were shown on Rybak’s Federal income tax returns for the years 1980,1981 and 1982.

The defendant’s contention here is that the evidence shows Rybak was moonlighting without authority and that these activities constituted a breach of their contract and fraud. Consequently, he asserts, the court’s judgment denying his countercomplaint was against the manifest weight of the evidence.

Contrary to the defendant’s argument, the fact the court found that the original oral agreement between the parties “was changed” and it no longer limited Rybak to 50% of the funds earned is sufficient to defeat the defendant’s cause of action for breach of contract.

Defendant argues “the court did not specifically find that Dr. Ry-bak’s position as an associate was extinguished at any time or that her overall duties as an associate had been terminated.” The court did specifically find, however, that the conduct of the parties established “the 50 percent limitation was no longer the limit on [Dr.] Rybak’s basis for compensation.” It further found:

“[T]he taking of funds by [Dr.] Rybak was openly and honestly done and [Dr.] Provenzale was aware that she was not only taking these funds, he was not only aware that she was paying her lab bills and insurance billings, as manifested by the evidence, including some of the split payments of lab bills, et cetera, I think [Dr.] Provenzale was aware of how the money came in and went out.”

It was the defendant’s burden as plaintiff in the countercomplaint to prove every material term of the contract. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787.) As the court found and as Rybak argues, the evidence showed he was aware of her practice of taking checks directly from patients and the fact she paid some of the lab bills herself. The defendant’s assertion that Loma Konicki, who observed Rybak take checks and testified that the defendant saw Rybak do this as well, only worked at the practice between 1979 and 1980, misstates the record. Konicki testified she left the office in April 1980 and, thus, the defendant’s conclusion Rybak must also have been taking checks directly from patients prior to 1980 is without basis. The defendant’s argument also ignores the testimony of Judy Littleton, who testified that the defendant was present on occasions when Rybak would take checks at the front desk and put them in her pocket, and that after Rybak and the defendant had a discussion in which Rybak waved a paper which was not a full sheet in front of the defendant (presumably the parties’ original written agreement), Littleton was instructed to do only Rybak’s insurance and put her name on the forms. We conclude the court’s judgment denying this aspect of defendant’s counterclaim was not against the manifest weight of the evidence.

Our conclusion is the same with regard to the defendant’s claim of fraud. The defendant initially presented a two-paragraph argument on this issue which was greatly expanded upon in his reply brief and in which he contends for the first time that he presented a prima facie case of fraud which Rybak bore the burden of overcoming. Defendant’s argument made for the first time in his reply is a violation of Supreme Court Rule 341 (107 Ill. 2d R. 341(e)(7)) and is waived.

Addressing his initial argument, however, we find no error in the court’s judgment. Fraud encompasses anything calculated to deceive, as in acts, omissions and concealment including breach of legal or equitable duty, trust or confidence, resulting in damage to another, and encompasses silence if accompanied by deceptive conduct or suppression of material facts constituting an act of concealment. (Grane v. Grane (1985), 130 Ill. App. 3d 332, 344.) A prima facie claim of fraud is established by allegations that the wrongdoer knowingly misrepresented material fact for the purpose of inducing the claimant to act, that the claimant reasonably believed the misrepresentation to be true and that he detrimentally relied upon it. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712.) The evidence at bar fails to show any deceptive conduct on Rybak’s part. Rather, as the court specifically found, her conduct was “open and obvious,” and several witnesses testified they observed Rybak take checks in Provenzale’s presence. This, and evidence that all payments received were recorded on ledger cards kept at the front desk available at all times for Provenzale’s inspection, supports the court’s judgment to deny the defendant any relief on this count of his counter-complaint.

The defendant’s final contentions are that the court’s awards of $5,000 to cover legal expenses paid by Rybak in connection with a dispute with a lab or labs concerning work done and for $1,631.95 as unpaid compensation for the period June 26 to July 6, 1982, are against the manifest weight of the evidence.

We agree with the defendant that the court’s $5,000 award for legal expenses incurred by Rybak is against the manifest weight of the evidence. Rybak made no claim for reimbursement of these expenses, and the defendant’s testimony at trial cannot reasonably be construed as an admission that he owed her reimbursement for same. We agree with the defendant that the thrust of his response to counsel’s cross-examination was that he, in effect, actually had assumed liability for these expenses in that Rybak testified she agreed to barter her dentistry services to the attorney in exchange for the legal services provided by him. Although Rybak does not admit to this barter of services, she nonetheless testified at trial that there was an understanding the legal fees related to her practice and that she had to pay them.

As a general rule, the relief awarded a party should conform to that sought by the pleadings (Luciani v. Bestor (1982), 106 Ill. App. 3d 878), although a court has the power to grant any relief within the issues formed by the pleadings and justified by the evidence, regardless of the specific relief demanded (Hare v. Canvassing Board (1986), 146 Ill. App. 3d 88). The court’s $5,000 award falls neither within the issues framed by the pleadings nor the proof adduced at trial and must be reversed.

As to the $1,631.95 of unpaid compensation, the defendant argues he properly retained this amount to mitigate the damages he sustained by virtue of Rybak’s moonlighting activities, which the parties stipulated amounted to $32,128.10 in fees. Since this court finds no error in the trial court’s denial of the defendant’s counterclaim against Rybak for her moonlighting because such activities were openly and obviously conducted and, therefore, did not constitute evidence of a breach of her contract with defendant, we find that this amount was properly awarded Rybak.

Rybak’s contention that she should also have been awarded $1,796.75 representing the amount of fees collected after July 6, 1982, from patients treated by her before that date is raised for the first time in her reply brief in violation of Supreme Court Rule 341 (107 Ill. 2d R. 341(e)(7)) and is waived.

The judgment of the circuit court of Du Page County denying the defendant’s countercomplaint is affirmed.

The court’s judgment awarding Rybak $5,000 in legal expenses is reversed.

The court’s judgment awarding Rybak $1,631.95 is affirmed, and the cause is remanded for entry of an increased judgment in favor of Rybak under the terms of her oral agreement with the defendant consistent with this opinion.

Affirmed in part; reversed in part and remanded.

INGLIS and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER JUSTICE BARRY,

license: Public Domain

text:
    DAVID O’BRIEN, Plaintiff-Appellee, v. THOMAS STEEL CORPORATION, Defendant-Appellant.
    Third District
    No. 3—88—0215
    Opinion filed April 5, 1989.
    — Rehearing denied May 10, 1989.

      Block, Krockey, Cernugel & Cowgill, of Joliet (Thomas E. Cowgill, of counsel), for appellant.
    Garrison, Fabrizio & Hanson, Ltd., of Joliet (James Garrison, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff David J. O’Brien filed suit against defendant, Thomas Steel Corporation (Thomas), seeking damages as a result of an injury suffered by O’Brien when he was struck by a forklift operated by a Thomas employee. The jury returned a verdict in favor of O’Brien, finding Thomas negligent.

On appeal, Thomas argues the trial court erred in (1) excluding testimony concerning O’Brien’s prior back injury, (2) excluding statements made by O’Brien concerning the nature and extent of his injury, (3) allowing O’Brien to argue that his wages were low in the early 1980’s because of economic conditions, and (4) allowing expert testimony as to the necessity and cause of future medical treatment. Thomas also argues the jury’s findings are contrary to the manifest weight of the. evidence. However, in light of the view we take with regard to Thomas’ first four arguments it is unnecessary to discuss defendant’s manifest weight argument.

O’Brien was an ironworker employed by Tonn & Blank. Tonn & Blank was engaged by Thomas to perform structural steel erection for a Thomas construction project. At the construction site, Tonn & Blank was allocated a construction storage area for the various pieces of steel needed for its part of the project. Thomas stored a number of its component parts in the same general area as the Tonn & Blank storage area. A number of these component parts were used in the defendant’s day-to-day operations and were moved by use of forklifts.

On April 29, 1985, the plaintiff and co-workers were in the Tonn & Blank storage area. A Thomas employee had driven a forklift into the area to pick up a load of materials. After procuring his load, the driver backed up across an aisle and struck the plaintiff, or a checker plate the plaintiff was standing on, or near, causing O’Brien to be thrown through the air, resulting in O’Brien injuring his back. The forklift was equipped with an audible alarm system that would normally activate when the forklift was being operated in reverse; however, the alarm was not in operation at the time of the plaintiff’s injury-

The plaintiff was seen by various emergency room and company doctors and was last treated by Dr. Curtis Rentschler. O’Brien was diagnosed as having a herniation of the nucleus pulposus at two levels, L-4 and L-5. Following treatment, Dr. Rentschler indicated that the plaintiff should prepare for an alternative line of work. The doctor also stated that the plaintiff may need to have surgery in the future, but that at minimum, O’Brien would be required to visit an orthopedic surgeon at least once every six months. The plaintiff filed suit against Thomas claiming negligence. A jury returned a verdict finding Thomas negligent, assessing O’Brien’s damages in the amount of $125,000, finding O’Brien to be 20% contributorily negligent, and reducing his damages accordingly to $100,000.

On appeal Thomas contends the trial court erred in excluding testimony concerning O’Brien’s prior back injury. The parties disagree as to the severity of the plaintiff’s prior injury; however, the plaintiff admits suffering a back injury in 1978. Evidence of a prior injury is admissible where the injury involves the same area of the body. (Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 216 N.E.2d 682; Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App. 3d 381, 422 N.E.2d 1040.) The Palsir and Elberts decisions do not require that a causal connection between injuries be established in order for evidence of the prior injury to be admitted. In addition, Vandermyde v. Chicago Transit Authority (1979), 73 Ill. App. 3d 984, 392 N.E.2d 48, stands for the proposition that no medical evidence of any kind is needed to introduce the existence of a prior injury where the prior and current injuries are in the same area of the body. The Vandermyde case has been followed by Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498, which involved an injury to the plaintiff’s head. In Falkenthal, plaintiff’s expert testified that a blow had caused a condition of narcolepsy in the plaintiff. The defendant’s expert testified that narcolepsy could not have been caused by a trauma to the head. Defendant was allowed to introduce evidence of two prior accidents that had also caused injuries to her head. There was no testimony from any expert that the two prior injuries caused plaintiff’s narcolepsy. The court found that the two prior injuries were admissible because they were to the same area of the body. Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498.

In this case the defendant states that Dr. Greenwald, the plaintiff’s treating doctor in 1978, will testify that he diagnosed plaintiff’s 1978 injury as L-5 disc syndrome, supported by a myelogram taken on January 25, 1979. The plaintiff’s present injury was diagnosed as a herniation of two spinal discs, one at L-4 back level, and the other at L-5. Certainly the two injuries are located in a similar area of the plaintiff’s body. Consequently, the injuries fall within the guidelines set forth in Palsir and Elberts and do not require the defendant to establish a causal connection between the plaintiff’s present injury and the 1978 injury.

The plaintiff attempts to distinguish the Palsir and Elberts decisions, relying on Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 446 N.E.2d 1271. In Tisoncik, the plaintiff suffered a knee injury in an auto accident in 1979. Ten years prior to this accident, plaintiff had injured the same knee. The plaintiff filed suit against defendant, and the defendant sought to introduce evidence of plaintiff’s prior injury. The appellate court found that the striking of the evidence did not result in prejudice to defendant’s theory of aggravation of a preexisting condition. The court noted that the injury took place 10 years before the current incident. Further, the court found that there was no evidence in the record as to the nature, extent, duration or treatment of the first accident. In the present case the defendant attempted to offer substantial evidence as to the plaintiff’s prior injury and the treatment he received.

The failure to allow the defendant to introduce evidence of the plaintiff’s prior back injury is sufficient grounds to order a new trial. The remaining issues raised by the defendant will be addressed in the interest of judicial economy.

The defendant’s second contention is that the trial court erred in failing to allow the introduction of statements O’Brien allegedly made to a third party concerning his previous back injury and its affect on his ability to perform as an ironworker. Evidence of an injured person’s general health and physical condition, both before and after the injury, is admissible to show the extent, nature and probable effect of the injury and the cause of the subsequent physical condition. (Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.) Such evidence, however, must be connected with the injury to be material to the issue of damages. Reynolds v. Alton & Southern Ry. Co. (1983), 115 Ill. App. 3d 88, 450 N.E.2d 402.

According to Thomas, the plaintiff, while speaking to vocational rehabilitation counselor Grace Gianforte in the year following his 1978 injury, told Gianforte that he had suffered a previous back injury. O’Brien allegedly stated he could not trust his back to allow him to do the heavy lifting which is required for ironworking. Gian-forte also stated O’Brien had explored other possible sources of employment which were less physically demanding. The statements made by O’Brien concern his general health and physical condition after the 1978 injury but before the current injury. The area Gianforte speaks of is located in the same area of the back the plaintiff has injured in this action. Consequently, the statements made by O’Brien to Gian-forte were connected with O’Brien’s injury and should have been admitted.

The defendant’s next contention is that the trial court erred in allowing the plaintiff to argue during closing arguments that economic conditions were terrible during the early 1980s. Thomas contends the plaintiff’s earning record during the early 1980s implies that the plaintiff was unwilling or unable to work because of his 1978 back injury. According to the defendant, the plaintiff's statements concerning economic conditions during a specific period erroneously allows O’Brien to rebut Thomas’ prior injury contentions without providing any evidence supporting plaintiff’s economic claims.

In support of its position, defendant cites Prendergast v. Cox (1984), 128 Ill. App. 3d 84, 470 N.E.2d 34, in which the court sustained a defendant’s objection to plaintiff’s rebuttal argument urging jurors to take inflation into account in measuring damages. The court sustained the objection on the basis that there was no evidence presented as to inflation.

During closing arguments an attorney is confined to matters that are in evidence or admitted and uncontroverted. (Ryan v. Blakey (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604.) The plaintiff has failed to present any evidence as to the economic conditions in Joliet during the period in question. Consequently, the plaintiff’s remarks concerning Joliet’s economic condition prejudiced the defendant and should not have been permitted.

With regard to the defendant’s final contention concerning the admission of testimony of the plaintiff’s doctor, we decline to discuss this argument. Any issue concerning this testimony is unlikely to arise on retrial, or if it does, it will arise in a different context.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and remanded with directions to proceed with the views expressed within this decision.

Reversed and remanded.

JUSTICE BARRY,

specially concurring:

I concur with my colleague’s conclusion that reversible error was committed in the trial of this case and that it must be remanded for a new trial; however, I cannot agree that Thomas’ fourth issue should be ignored. Thomas contends that the trial court erred in allowing, over defendant’s objection, expert testimony as to the necessity and cost of future medical treatment. Contrary to the majority, I see no reason to anticipate that the witness and his testimony would not be tendered on retrial. In my opinion the issue must be addressed.

Plaintiff’s expert, Dr. Rentschler, testified that “the surgeon who did Joe Montana only operates on about ten percent of those cases that come in through his doors on the average. And I think this would be *** a reasonable percentage.” With respect to plaintiff, the doctor stated, “His disk did improve. It improved satisfactorily to the extent that when I last saw him, I did not feel that surgery should be done at that time. I explained to him that it still could come to surgery if this thing ruptured a little further. But in view of the improvement, that if he continued with the plan of doing the exercises and if he didn’t get worse, that I didn’t think he was going to come to surgery.” He also testified that plaintiff “is a candidate for possible future surgery.” Later, after discussing the cost of hospitalization and follow-up procedure for such surgery, the doctor explained that, of the patients who have this type of surgery, about 25% do well, 50% still have symptoms, and the remaining 25% do poorly. Thomas argues that this testimony was highly prejudicial and irrelevant because Rent-schler could not establish that plaintiff would in fact need the surgical procedure.

In Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App. 3d 435, 333 N.E.2d 716, testimony of plaintiff’s doctor concerning the cost of future medical services was excluded at trial on defendants’ motion. On appeal, this court determined that the trial court’s evidentiary ruling was error. As a foundation for the future costs evidence in Biehler, the doctor had “testified that in his opinion Mr. Biehler would need surgery to fuse the subastragalar joint and adjacent joints to reduce the pain and motion while walking. The doctor also stated, ‘[I]f he can continue at a sedentary job he may get along without surgery, but I have a feeling that he will elect surgery.’ ” (30 Ill. App. 3d at 445, 333 N.E.2d at 724.) We held that this testimony posed a question of fact as to “whether the plaintiff was reasonably certain to have future surgery ***, and if so, what the reasonable value of future medical services would be.” 30 Ill. App. 3d at 445-46.

In my opinion, the foundation testimony presented by Dr. Rentschler in this case is sufficiently akin to that approved by this court in Biehler to support the admission of possible future medical costs evidence. Based on the totality of the evidence presented at trial, the jury was free to weigh Rentschler’s testimony, to determine whether plaintiff was reasonably certain to undergo surgery in the future or not, and thereafter to reject or include the reasonable value of such services in determining damages.

JUSTICE HEIPLE joins in this special concurrence.


author: JUSTICE WHITE JUSTICE McNAMARA,

text:
    QUAKE CONSTRUCTION, INC., Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—88—0043
    Opinion filed March 29, 1989.

      Bruce W. Plattenberger, of Chicago, for appellant.
    Fatten, Muchin & Zavis, of Chicago (Peter Petrakis and Barbara J. Steutzer, of counsel), for appellee American Airlines, Inc.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Quake Construction, Inc., appeals from an order of the circuit court of Cook County dismissing its third amended complaint with prejudice. We affirm in part, reverse in part and remand for further proceedings.

The facts alleged in the third amended complaint follow. In count I, plaintiff seeks damages for breach of contract. Plaintiff alleged that defendant American Airlines, Inc., hired defendant Jones Brothers Construction Corp. to prepare bid specifications, accept bids, and award contracts for American’s employee facilities and auto shop expansion project at O’Hare Airport (hereinafter the Project). By letter dated March 19, 1985, Jones Brothers solicited bids for the Project. On or about April 1985, plaintiff submitted its bid for the Project. Thereafter, Jones Brothers notified plaintiff orally that it had been awarded the contract for the Project. Jones Brothers requested that plaintiff provide license numbers for the subcontractors that it would use on the Project. Plaintiff advised Jones Brothers that its subcontractors would not allow it to use their license numbers until they received a signed subcontractors agreement. Jones Brothers informed plaintiff that it would prepare a written contract for the Project in the form set forth in the bid solicitation materials. On April 18, 1985, Jones Brothers sent a “Letter of Intent” to plaintiff in which it advised plaintiff that it had elected to award plaintiff the contract for the Project. Sometime in April 1985, plaintiff and Jones Brothers reviewed a contract for the Project and agreed upon certain changes in the form contract. Jones Brothers then told plaintiff that it would prepare a written contract and submit it to plaintiff for signature. Plaintiff secured all subcontractors necessary to perform the work required for the Project. On April 25, 1985, plaintiff and its subcontractors attended a preconstruction meeting for the Project. At the meeting, Jones Brothers announced that plaintiff was the general contractor for the Project. Immediately after the meeting, however, Jones Brothers advised plaintiff that it was terminating plaintiff’s involvement with the Project. Plaintiff alleged that it was damaged by the breach of the contract because it had expended substantial funds in procuring the contract and in preparing to perform under the contract. Plaintiff also alléged that it lost its profit under the contract.

Count II of the third amended complaint is based upon the theory of promissory estoppel. In count II, plaintiff alleged that Jones Brothers orally notified plaintiff that it had elected to award plaintiff the contract for the Project. Jones Brothers then sent the “Letter of Intent” (described above) to plaintiff. Plaintiff alleged that, both before and after the date of the “Letter of Intent,” Jones Brothers informed plaintiff that: (1) a written agreement in addition to the “Letter of Intent,” was not necessary for plaintiff to begin work on the Project; (2) a written agreement was being prepared by Jones Brothers and would be given to plaintiff for its signature; (3) execution of the written agreement was a mere formality; (4) the “Letter of Intent” was a binding contract; and (5) performance of the contract was required immediately. Plaintiff also alleged that Jones Brothers demanded that it: (1) expand its office space; (2) hire a Project manager; (3) secure all subcontractors necessary for the Project; (4) provide Jones Brothers with the license numbers of the plumber and mason who were to act as subcontractors on the Project; and (5) prepare itself to perform under the contract. Plaintiff acceded to Jones Brothers’ demands and incurred substantial expenses to comply with these demands. Plaintiff alleged that Jones Brothers knew that compliance with its demands would require a substantial expenditure of time and money. Plaintiff then alleged that, on April 25, 1985, Jones Brothers terminated plaintiff’s involvement with the project. Plaintiff was damaged because it had expended substantial funds in procuring the contract and in preparing to perform under the contract. In addition, plaintiff lost its profit under the contract.

Count III of the third amended complaint is based upon breach of contract and waiver of condition precedent. In count III, plaintiff restated the allegations in count II. In addition, plaintiff alleged that, along with its subcontractors, it attended a preconstruction meeting for the Project. At the meeting, Jones Brothers announced that plaintiff was the general contractor for the Project. However, immediately after the meeting, Jones Brothers terminated plaintiff’s involvement with the Project. Plaintiff also alleged that Jones Brothers used the license numbers of plaintiff’s subcontractors to obtain a construction permit from the City of Chicago. Plaintiff then claimed that it was damaged by the termination of the contract.

Count IV of the third amended complaint is denominated “Breach of Contract/Impossibility of Contract.” We will not set forth the allegations in count IV. Plaintiff has not raised the issue of impossibility of performance on appeal and that issue has thus been waived. 107 Ill. 2d R. 341(e)(7).

Prior to discussing the sufficiency of the remaining counts of plaintiff’s third amended complaint, it will be helpful to discuss the principles that apply to a motion to dismiss. Plaintiff’s third amended complaint was dismissed pursuant to a motion filed under section 2— 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Such a motion admits all well-pleaded facts in the complaint, and they must be taken as true. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273, 504 N.E.2d 193; Perlin v. Board of Education (1980), 86 Ill. App. 3d 108, 111, 407 N.E.2d 792.) Any reasonable inferences that can be drawn from those facts must also be taken as true. (Bolden v. General Accident, Fire & Life Assurance Corp. (1983), 119 Ill. App. 3d 263, 266, 456 N.E.2d 306; Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1097, 407 N.E.2d 615.) Conclusions of law or conclusions of fact unsupported by allegations of specific fact are not admitted. (Payne, 152 Ill. App. 3d at 273; Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 751, 484 N.E.2d 873.) The complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle the plaintiff to relief. (Yardley, 137 Ill. App. 3d at 752; Perlin, 86 Ill. App. 3d at 111.) On review, the allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. (Perlin, 86 Ill. App. 3d at 111; Interway, 85 Ill. App. 3d at 1097.) With these principles in mind, we turn to the substantive issues raised by the parties.

Count I of the third amended complaint purports to state a cause of action for breach of contract. A complaint for breach of contract must allege the existence of a contract between plaintiff and defendant, performance by plaintiff of the conditions imposed on him or her by the contract, breach of the contract by defendant, and the existence of damages as a result of the breach. (Payne, 152 Ill. App. 3d at 273.) The existence of a contract must be shown by facts indicating an offer, acceptance, and consideration. Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943, 946, 428 N.E.2d 1028.

In count I of the third amended complaint, plaintiff alleged that it submitted a bid for the Project, in response to Jones Brothers’ invitation to bid. Jones Brothers then sent a “Letter of Intent” to plaintiff in which it advised plaintiff that it had elected to award plaintiff the Project contract. Plaintiff secured all subcontractors necessary for the Project and attended a preconstruction meeting for the Project. Immediately after the meeting, Jones Brothers terminated plaintiff’s involvement with the Project. Plaintiff alleged that it expended substantial funds in procuring the contract and preparing to perform under the contract and that it was damaged by Jones Brothers’ breach of the contract. Plaintiff maintains that these allegations are sufficient to state a cause of action for breach of contract.

Jones Brothers contends, however, that the “Letter of Intent” is not a valid contract because it contains a condition precedent which prevented the formation of a contract. In the “Letter of Intent,” Jones Brothers stated: “Jones Brothers Construction Corporation reserves the right to cancel this letter of intent if the parties cannot agree on a fully executed subcontract agreement.” Since a subcontract agreement was never executed by the parties, Jones Brothers argues that the condition precedent to the formation of a contract failed and the “Letter of Intent” cannot provide the basis for an action by plaintiff.

Whether a writing that contains all the essential terms of a contract but contemplates a later execution of a formal agreement is itself a contract or merely negotiation depends on the intent of the parties. (Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 185, 437 N.E.2d 658; Interway, 85 Ill. App. 3d at 1098.) If the parties to the writing intended that it be contractually binding, that intention would not be defeated by the mere recitation in the writing that a more formal agreement was yet to be drawn. (Interway, 85 Ill. App. 3d at 1098.) However, if the parties intended that the execution of a formal agreement be a condition precedent, then no contract arises unless and until that formal agreement is executed. Intini v. Marino (1983), 112 Ill. App. 3d 252, 254, 445 N.E.2d 460; Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 69, 415 N.E.2d 668; Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 742, 365 N.E.2d 1028.

The determination of the intent of the parties may be a question of law or a question of fact, depending on the language of the writing. (Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974, 418 N.E.2d 59.) If the language of the writing is unambiguous, the construction of the writing is a question of law, and the intention of the parties must be determined solely from the language used. (Chicago Investment Corp., 93 Ill. App. 3d at 974; Terracom, 50 Ill. App. 3d at 744.) However, if the language is ambiguous, the construction of the writing is a question of fact, and parol evidence is admissible to explain and ascertain what the parties intended. Borg-Warner Corp. v. Anchor Coupling Co. (1958), 16 Ill. 2d 234, 241, 156 N.E.2d 513; Inland, 107 Ill. App. 3d at 185; Interway, 85 Ill. App. 3d at 1098.

Turning to the facts of our case, we are of the opinion that the “Letter of Intent” is ambiguous. In the “Letter of Intent,” Jones Brothers stated that it had “elected to award the contract for the subject project to [plaintiff’s] firm.” Jones Brothers then described the scope of work required of plaintiff as the general contractor for the Project. Jones Brothers gave the location of the Project and the time schedule for the Project. Jones Brothers also stated that “this notice of award authorizes the work set forth in the following documents at a lump sum price of $1,060,568.00.” (The list of documents is omitted.) Jones Brothers also stated that plaintiff “shall provide evidence of liability insurance” and certificates of commitment from MBE firms designated in plaintiff’s proposal modification of April 13, 1985. These statements evince the intent of the parties to be bound by the “Letter of Intent.” (See Chicago Investment Corp., 93 Ill. App. 3d at 975 (court held that letter of intent did not “unambiguously demonstrate that the parties to it did not intend to be bound thereby.” The letter contained a description of the properties, the total price, the earnest money amount and certain other terms.)) The schedule for completion of the Project supports this construction of the “Letter of Intent.” The “Letter of Intent” is dated April 18, 1985. However, Jones Brothers stated in the “Letter of Intent” that work was to begin “the week of April 22, 1985, and must be completed by August 15, 1985.” A reasonable inference from these facts is that the parties intended that work on the Project would begin prior to execution of a formal contract and would be governed by the terms of the “Letter of Intent.”

On the other hand, Jones Brothers stated in the “Letter of Intent” that a “contract agreement outlining the detailed terms and conditions is being prepared and will be available for [plaintiff’s] signature shortly.” Jones Brothers also stated that the contract “shall include MBE, WBE and EEO goals as established by [plaintiff’s] bid proposal.” These statements support the construction that the parties did not intend to be bound by the “Letter of Intent.”

The “Letter of Intent” then concludes with the statement that “Jones Brothers Construction Corporation reserves the right to cancel this letter of intent if the parties cannot agree on a fully executed subcontract agreement.” This statement is itself ambiguous and supports both constructions of the “Letter of Intent.” The statement may be construed as a condition precedent which would prevent formation of a contract if the parties could not agree on the terms of the contract. However, there would be little need to provide for cancellation of the “Letter of Intent” if the parties did not intend to be bound by it. Further, the statement implies that the parties could be bound by the “Letter of Intent” in the absence of a fully executed subcontract agreement.

The circuit court was of the opinion that the “Letter of Intent” is unambiguous and contains a condition precedent that the parties would not be bound until they entered into a formal contract. However, a question of fact existed as to the parties’ intent. We are of the opinion that a determination of the parties’ , intent could not have been made solely on the basis of the “Letter of Intent.” The circuit court should have considered parol evidence in making its determination. We conclude that the motion to dismiss count I was improperly granted.

Count II of the third amended complaint is based upon the theory of promissory estoppel. An action in promissory estoppel must assert the following elements: (1) an unambiguous promise is made by a party; (2) the party to whom the promise is made relies upon it; (3) the reliance is expected and foreseeable by the party making the promise; and (4) the party to whom the promise is made in fact relies upon it to his or her injury. Yardley, 137 Ill. App. 3d at 754; Bolden, 119 Ill. App. 3d at 266; Berlin, 86 Ill. App. 3d at 114; St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America (1979), 73 Ill. App. 3d 935, 942, 393 N.E.2d 611.

The circuit court determined that the “Letter of Intent” contains a condition precedent that the parties would not be bound until they entered into a formal contract. The circuit court also found that plaintiff could not have relied on any promises made by Jones Brothers in light of the “condition precedent” in the “Letter of Intent.” Consequently, the circuit court dismissed count II as a matter of law. We have held above that whether or not the parties intended to be bound by the “Letter of Intent” is a question of fact to be determined by the circuit court. We have instructed the circuit court to consider pa-rol evidence in making its determination. It follows that the circuit court should not have determined, as a matter of law, that the “Letter of Intent” contains a condition precedent and that plaintiffs reliance on the “Letter of Intent” was unjustified.

The dismissal of count II should be affirmed, however, if plaintiff has failed to plead any other element of promissory estoppel. In count II, plaintiff alleged that Jones Brothers orally notified plaintiff that it had elected to award the contract for the Project to plaintiff. This allegation is supported by the “Letter of Intent,” in which Jones Brothers stated that it had “elected to award the contract for the subject project to [plaintiff’s] firm as we discussed on April 15, 1985.” Plaintiff also alleged that it expanded its office space; hired a Project manager; secured subcontractors for the Project; provided license numbers of certain contractors to Jones Brothers; and prepared itself to perform the work required for the Project. Plaintiff claimed that it incurred these expenses at the request of Jones Brothers. We believe that the allegations in count II include the other elements of promissory estoppel.

In count III of the third amended complaint, plaintiff assumed that the “Letter of Intent” contains a condition precedent to formation of a contract. Plaintiff then alleged that Jones Brothers waived the condition precedent by informing plaintiff that the “Letter of Intent” is a binding contract and that performance of the work was required immediately. Plaintiff correctly notes that a party may waive a condition precedent to the formation of a contract. (Swerdlow v. Mal lin (1985), 131 Ill. App. 3d 900, 904, 476 N.E.2d 464; Grill v. Adams (1984), 123 Ill. App. 3d 913, 918, 463 N.E.2d 896; Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 52-53, 360 N.E.2d 551.) When a condition precedent is waived by a party, performance of the duty that was originally subject to the occurrence of the condition then becomes due. Grill, 123 Ill. App. 3d at 918.

We need not decide, however, whether Jones Brothers waived the alleged condition precedent. In light of our holding that the “Letter of Intent” is ambiguous and that the circuit court must determine whether it contains a condition precedent, we believe that the dismissal of count III was premature. Accordingly, we reverse and remand.

For the aforesaid reasons, we affirm the dismissal of count IV and reverse the dismissal of counts I, II and III. We remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

FREEMAN, P.J., concurs.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent from the majority holding reversing the trial court’s dismissal of this action and finding the letter of intent to be ambiguous. I would affirm the dismissal on the basis that the letter of intent unambiguously demonstrates the parties’ intent to make the execution of a formal agreement a condition precedent to a binding contract.

It has long been established in Illinois that parties may expressly provide that negotiations are not binding until a formal agreement is reduced to writing and executed. (Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 481 N.E.2d 712; Baltimore & Ohio Southwestern R.R. Co. v. People ex rel. Allen (1902), 195 Ill. 423, 63 N.E. 262.) The determination of whether such a provision is ambiguous is initially a question of law. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 365 N.E.2d 1028.) An ambiguous contract is one capable of being understood in more senses than one. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co., 50 Ill. App. 3d 739, 365 N.E.2d 1028.) The parties are entitled to shape a letter of intent as they wish. Feldman v. Allegheny International, Inc. (7th Cir. 1988), 850 F.2d 1217, 1221, citing Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 247 N.E.2d 886.

The key language in the letter of intent in the present case is as follows:

“A contract agreement outlining the detailed terms and conditions is being prepared and will be available for your signature shortly. *** [Defendant] reserves the right to cancel this letter of intent if the parties cannot agree on a fully executed subcontract agreement.”

I find that the foregoing language is incapable of being understood in more senses than one. We have repeatedly held such language to be unambiguous, permitting the court to discern the parties’ intent from the writing itself as a matter of law (see Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615; Nitrin, Inc. v. Bethlehem Steel Corp. (1976), 35 Ill. App. 3d 577, 342 N.E.2d 65), and absent ambiguity, the parties’ intent cannot be discerned from parol evidence beyond the four comers of the writing. See, e.g., Feldman v. Allegheny International, Inc., 850 F.2d at 1221 (no contract exists where unambiguous statement requires execution: “ ‘shall be set forth in the definitive agreement executed by the parties’ ”); Interway, Inc. v. Alagna, 85 Ill. App. 3d at 1101 (no contract exists where unambiguous letter of intent states “our purchase is subject to a definitive Purchase and Sale Contract to be executed by the parties”); Terracom Development Group, Inc. v. Coleman Cable & Wire Co., 50 Ill. App. 3d at 744-45 (no contract exists where unambiguous letter of intent states counsel would “prepare a draft of the definitive agreement”; a “standard form contract [was being] drawn up”; they intended “to enter into a definitive written agreement”; the letter was “expressly conditioned upon our entering into a mutually satisfactory definitive written agreement”; and “no contractual relationship shall exist between the parties unless and until the definitive agreement shall have been executed in writing”); S.N. Nielsen Co. v. National Heat & Power Co. (1975), 32 Ill. App. 3d 941, 943, 337 N.E.2d 387 (no contract exists where letter of intent states a “formal contract will be issued in the very near future”); Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 393-94, 256 N.E.2d 44 (no contract exists where writings repeatedly referred to preparation of a formal contract as a condition precedent; required “acceptance by your Board of execution of Articles of Agreement”; and was “[s]ubject to the drafting of an acceptable contract”). See also Chicago Title & Trust Co. v. Ceco Corp. (1980), 92 Ill. App. 3d 58, 415 N.E.2d 668; Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1984), 130 Ill. App. 3d 798, 474 N.E.2d 1245, aff'd (1986), 114 Ill. 2d 133, 500 N.E.2d 1.

I believe that to hold the language here to be ambiguous would ignore these cases and would deprive negotiating parties of all precedence and guidance in how best to draft a letter of intent so as to avoid a contractually binding effect.

The majority reasons that an ambiguity arises when the quoted statements are considered with the letter’s inclusion of a description of the scope of work, project location and time schedule. These items, however, would typically be included in any initial request for bids. The majority also points to the letter’s reference to a lump sum price. The letter, however, never goes beyond the bid price. (See A/S Apothekernes Laboratorium for Specialpraeparater v. I.M.C. Chemical Group, Inc. (N.D. Ill. 1988), 678 F. Supp. 193, 196, citing S.N. Nielsen Co. v. National Heat & Power Co., 32 Ill. App. 3d 941, 337 N.E.2d 387 (letter of intent never negotiated beyond bid price and retained power to reject).) Even the most preliminary discussion of a major project such as this, to expand an airline’s employee and auto shop facilities, would be meaningless without reference to such basic information.

Moreover, in many cases we have held language requiring a written, executed contract to be unambiguous where the letters of intent included more detailed information as to the terms. See e.g., Interway, Inc. v. Alagna, 85 Ill. App. 3d 1094, 407 N.E.2d 615 (where letter of intent referred to bonuses, brokerage fees, warranties, insurance, noncompetition restrictions and discharge of a note, court found the terms lacked specificity and would require clarification before they would acquire contractual finality); Terracom Development Group, Inc. v. Coleman Cable & Wire Co., 50 Ill. App. 3d 739, 365 N.E.2d 1028 (letter of intent details price terms, net lease, mortgage provisions, broker’s commission and closing costs; court finds no intent to be bound by writings); Brunette v. Vulcan Materials Co., 119 Ill. App. 2d at 396 (writings include terms regarding description of land, survey results, exact acreage, method of payment, interest rates for installments, other price terms, payment of taxes; court finds writings are an “agreement only as to possible terms” in a “typical negotiation process”).

I would conclude that the terms touched on in the letter of intent reveal nothing more than the tentative, inconclusive nature of the agreement. They are far from reflecting contractual finality. The letter on its face gives rise to no ambiguity. The parties evidenced an intention to reduce an agreement to writing and to execute that agreement as conditions precedent to a binding contract. Thus, there can be no contract until then, even if any actual terms might have been agreed upon by the parties. See Baltimore & Ohio Southwestern R.R. Co. v. People ex rel. Allen, 195 Ill. 423, 63 N.E. 262; Brunette v. Vulcan Materials Co., 119 Ill. App. 2d 390, 256 N.E.2d 44.

Furthermore, I disagree with the majority’s finding of a “reasonable inference” that the parties “intended that work *** began prior to the execution of a formal contract and would be governed by the terms of the ‘Letter of Intent.’ ” (181 Ill. App. 3d at 914.) The majority relies on the letter’s date of April 18 and the indication that work was initially to begin in the week of April 22 (later pushed forward by defendant). The letter also states, however, that the formal contract was “being prepared and will be available for your signature shortly.” Moreover, a letter of intent may authorize subcontractors to proceed without waiving the express conditions precedent to a binding contract. S.N. Nielsen Co. v. National Heat & Power Co., 32 Ill. App. 3d 941, 337 N.E.2d 387.

The majority also points to the language that defendant “reserves the right to cancel this letter of intent if the parties cannot agree on a fully executed subcontract agreement.” The majority reasons that “there would be little need to provide for cancellation of the ‘Letter of Intent’ if the parties did not intend to be bound by it.” (181 Ill. App. 3d at 914.) This reasoning ignores the many functions of a letter of intent, including the underlying axiom that parties may agree to the course of, and discontinuance of, their own negotiations. (See Feldman v. Allegheny International, Inc., 850 F.2d 1217.) Moreover, the majority’s reasoning that this language “implies that the parties could be bound by the ‘Letter of Intent’ in the absence of a fully executed subcontract agreement,” (181 Ill. App. 3d at 914), weakly asserts, with circular reasoning, that the letter is a binding document because one party can require the other to be bound by it.

A careful examination of Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 437 N.E.2d 658, shows that it differs from the present case in a significant respect. The letter of intent in Inland expressly declared an intent to be presently bound, prior to any execution of a formal contract. That binding effect was to become null and void, but not until the time at which the final contracts themselves became binding: “The contracts alone shall be the binding documents. (At which time this letter shall be null and void.)’’ (Emphasis added.) Inland, 107 Ill. App. 3d at 185-86.

In contrast, the present case involves language which never indicates an intent to be presently bound. Instead, it merely recites that at some point, “if the parties cannot agree” on a contract, the letter of intent will cease to function as a precursor to the final executed contract. See Feldman v. Allegheny International, Inc., 850 F.2d 1217.

I would conclude that the letter of intent here is not a contract, but instead is some lesser undertaking by the parties and a precursor to a valid and enforceable agreement.

I would affirm the trial court’s dismissal of this action.

      American Airlines, Inc., admits that it hired Jones Brothers Construction Corp. to direct the Terminal Expansion Project. We will, therefore, refer to American Airlines, Inc., and Jones Brothers Construction Corp. as “Jones Brothers.”

      See Inland (107 Ill. App. 3d at 185-86), wherein a letter of intent provided “[t]he contracts alone shall be the binding documents. (At which time this letter shall be null and void.)” The Illinois Appellate Court found that an ambiguity existed in the letter of intent. The court reasoned that the provision in the letter of intent evinced “the intent to be then bound, for [the court] fail[s] to see the necessity for a provision nullifying or voiding a writing in the future if the parties never intended for that writing to be binding from its inception.”