source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    UNITED INVESTORS, INC., Plaintiff-Appellee, v. PAUL TSOTSOS, Defendant-Appellant.
    First District (1st Division)
    No. 84—1295
    Opinion filed March 29, 1985.

      Ordower & Ordower, P.C., of Chicago (Lawrence B. Ordower, of counsel), for appellant.
    Kanter & Mattenson, Ltd., of Chicago (David M. Mattenson and Stuart Gordon, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of an action brought by plaintiff United Investors, Inc. to recover a brokerage commission allegedly due under the terms of a real estate listing agreement. Defendant Paul Tsotsos answered, denying plaintiff was entitled to any commission because plaintiff had failed to produce a ready, willing and able purchaser. In a counterclaim which was subsequently dismissed, defendant further alleged that plaintiff improperly disposed of the earnest money deposited by the purchaser. After briefing and argument, the trial court granted plaintiff’s motion for summary judgment, ruling that defendant was liable to plaintiff in the amount of $5,000 under the listing agreement. Defendant appealed. We reverse and remand for further proceedings.

The record reveals that on April 4, 1980, defendant, as seller, entered into an exclusive listing agreement whereby defendant appointed plaintiff as his agent to locate a purchaser for his business. The agreement provided that plaintiff would be paid a commission of 10% of the selling price if plaintiff produced a ready, willing and able buyer. Through plaintiff’s efforts, defendant was put in touch with a prospective purchaser, Don Hageman. Subsequently, Hageman and defendant entered into a contract of sale wherein Hageman agreed to purchase defendant’s business for $50,000. The purchaser deposited $6,000 earnest money with plaintiff and was to pay the balance in cash at the closing set for September 1, 1980. The sales contract also contained the following provision for the disposition of the earnest money upon default by either the purchaser or the seller:

“Seller agrees to pay United Investors, Inc. $6,000.00 of gross selling price as full payment for brokerage services rendered. If the purchaser defaults, earnest money shall be forfeited and applied (1st) to payment of broker’s commission; (2nd) for any expenses incurred for Seller by said broker and the balance paid to Seller. At Seller’s election, such forfeiture may be in full settlement of all damages. If Seller defaults, earnest money, at option of purchaser, shall be refunded to purchaser, but such refunding shall not release Seller from the obligation of this agreement.”

Both parties agree that this transaction was never completed. Defendant stated in his affidavit that “Mr. Hageman never purchased the business, never showed up for a closing and never made any attempts to close or purchase the business.” Plaintiff stated in its affidavit that “because the transaction was never consummated, on September 2, 1980, United Investors, Inc. returned to Don Hageman his $6,000.” Defendant also stated that he never gave plaintiff permission to return the earnest money to the purchaser.

The instant case presents us with essentially two issues for review. First, we must determine whether plaintiff’s right to the commission accrued upon defendant’s acceptance of the purchaser procured by plaintiff as evidenced by the execution of an enforceable contract of sale. Second, if such a right did accrue, we must determine what effect, if any, did plaintiff’s return of the earnest money to the prospective purchaser have on plaintiff’s right to the commission.

With respect to the first issue, we believe the rule of law is quite clear. As our supreme court recognized nearly a century ago in the case of Wilson v. Mason (1895), 158 Ill. 304, 42 N.E. 134:

“The duty of a broker, who is employed to sell real estate, is to find and produce to the vendor a purchaser, who is ready, willing and able to complete the purchase as proposed. This he must do before he is entitled to any commissions. If the vendor rejects the purchaser so produced, the broker is bound to show that such purchaser was willing, ready and able to perform the contract according to the proposed terms. If the principal accepts the purchaser thus presented, either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between them, the commission is earned.” (158 Ill. 304, 309-10.)

The court went on to reiterate:

“*** The true rule is, that the broker is entitled to his commissions, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. If, after the making of such a contract, even though executory in form, the purchaser declines to complete the sale and the seller refuses to compel performance, the broker ought not to be deprived of his commissions.” (158 Ill. 304, 311.)

(See also Fox v. Ryan (1909), 240 Ill. 391, 88 N.E. 974.) Subsequent appellate opinions have acknowledged that a sale need not be consummated for a real estate broker to recover his commission. (Beider v. Eugene Matanky & Associates, Inc. (1977), 55 Ill. App. 3d 354, 371 N.E.2d 29; Ellis Realty v. Chapelski (1975), 28 Ill. App. 3d 1008, 329 N.E.2d 370.) Where a seller of real estate enters into an enforceable contract of sale with a purchaser procured by a broker, the readiness, willingness and ability of the purchaser is no longer open to question and the broker’s right to compensation accrues whether or not the sale is completed. (Western Pride Builders, Inc. v. Zicha (1974), 23 Ill. App. 3d 770, 320 N.E.2d 181; Bernard Klibanow & Co. v. Shafer (1971), 2 Ill. App. 3d 392, 276 N.E.2d 446.) We also note that the views expressed in these Illinois decisions are shared by the overwhelming majority of jurisdictions which have considered the issue. See generally Annot., 74 A.L.R.2d 437 (1960), and cases cited therein.

Defendant contends that mere execution of an enforceable contract of sale is not enough. Citing Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 418 N.E.2d 444, defendant argues there must be some affirmative evidence that the seller investigated the financial ability of the prospective purchaser in order for him to waive the ready, willing and able requirements. We find defendant’s reliance on Telander misplaced.

In Telander, the real estate sales contract was expressly contingent upon the buyer’s obtaining financing. The court held that where the broker acquiesces in such an arrangement and the parties are unable to perform the stipulated contingency after good faith efforts to do so, the broker is not entitled to his commission. (94 Ill. App. 3d 616, 625, 418 N.E.2d 444.) Thus, the court followed the well-recognized principle that where the sales contract is contingent, the broker’s right to his commission is subject to the same contingency. (Nelson v. Bolton (1979), 72 Ill. App. 3d 519, 525, 391 N.E.2d 182.) The court went on to state that even in a contingent contract the seller may waive the ready, willing and able requirement, thereby allowing the broker to recover his commission, if the seller investigated the financial responsibility of the prospective buyer before entering into the contract. (Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 625, 418 N.E.2d 444.) Under these circumstances, the seller accepts the risk that the contingency may not occur by independently investigating and approving the buyer, and the broker is entitled to his commission whether the sale is completed or not.

Such considerations, however, have little relevance where an unconditional, enforceable purchase agreement exists between a buyer and a seller. By entering into such a contract, the seller is precluded from asserting that the buyer was not ready, willing and able to purchase the property, and the broker is entitled to his commission even if the sale is never consummated. (Wilson v. Mason (1895), 158 Ill. 304, 42 N.E. 134; Western Pride Builders, Inc. v. Zicha (1974), 23 Ill. App. 3d 770, 320 N.E.2d 181.) Since the sales contract in the case at bar is clearly not subject to any contingency, Telander is not controlling. Accordingly, plaintiff’s commission accrued when the unconditional contract of sale was executed, and plaintiff had no duty to introduce evidence of an independent financial investigation by the defendant seller in order to recover.

We next consider whether plaintiff’s return of the earnest money to the prospective purchaser had any effect on plaintiff’s right to the agreed upon commission. Our research reveals no reported cases in Illinois specifically addressing this issue. However, it has been held that a broker owes a fiduciary duty of loyalty to the seller he represents. (Rouse v. Brooks (1978), 66 Ill. App. 3d 107, 383 N.E.2d 666.) Embodied in this duty is the requirement that the broker keep his principal fully informed of all pertinent facts and that he act in good faith and promote the best interests of his principal. We believe that where a sales agreement gives the seller the right to declare a forfeiture of the purchaser’s earnest money upon the purchaser’s default, a broker who returns the earnest money to a defaulting purchaser without the seller’s authorization has breached the fiduciary duty of loyalty owed to the principal and is thereby precluded from recovering his commission. Other jurisdictions addressing this issue uniformly approve of this result. (Crabtree v. Board of Trustees (Ky. 1974), 512 S.W.2d 311; Prince George’s Properties, Inc. v. Rogers (1975), 275 Md. 582, 341 A.2d 804; Lake Co. v. Molan (1964), 269 Minn. 490, 131 N.W.2d 734; see generally Annot., 69 A.L.R.2d 1244 (1960), and cases cited therein.) However, it is not a breach of trust for a broker to return earnest money to a purchaser where the sale is not consummated because of the seller’s default. Badeaux v. Rohrer (1913), 182 Ill. App. 114.

In view of the foregoing, we believe the trial court erred in granting plaintiff’s motion for summary judgment. Summary judgment is appropriate if there is no genuine issue of material fact such that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c).) In ruling on a motion for summary judgment, the trial court should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent (Shockley v. Ryder Truck Rental (1979), 74 Ill. App. 3d 89, 93-94, 392 N.E.2d 675) and should grant the motion only where the right of the movant is clear and free from doubt (Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App. 3d 569, 442 N.E.2d 648). Undeniably, defendant’s pleadings could have set forth those issues relating to the return of the earnest money with greater clarity. However, we believe that when defendant’s affidavit and pleadings are read together, there exists a material issue of fact on whether defendant or the purchaser defaulted on the sale and, thus, whether plaintiff’s return of the earnest money to the purchaser was a breach of a fiduciary duty precluding recovery of the commission. We deem it to be the equitable procedure under the circumstances to allow the parties to amend their pleadings on remand to more clearly reflect this defense. Accordingly, the cause is reversed and remanded for further proceedings.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE BILANDIC

text:
    KENT BURGESS, Plaintiff-Appellant, v. CHICAGO SUN-TIMES, a Division of Field Enterprises, Inc., Defendant-Appellee.
    First District (2nd Division)
    Nos. 83—2773, 84—0189 cons.
    Opinion filed March 26, 1985.

      A. Denison Weaver, of Chicago, for appellant.
    Robert S. Soderstrom and James P. DeNardo, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Kent Burgess, instituted the present action alleging retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress on the part of his former employer, defendant Chicago Sun-Times. The trial court dismissed plaintiff’s complaint with prejudice, and subsequently denied his motion for reconsideration and for relief from judgment. Plaintiff now contests the propriety of these orders, seeking reversal only of the dispositions as to the retaliatory discharge and emotional distress claims.

Plaintiff was employed by the defendant as a driver for the purpose of delivering newspapers to retail vendors for sale to the public. The plaintiff and his fellow drivers were covered by a collective bargaining agreement with the defendant. The agreement expressly authorized the defendant to designate the delivery routes of its employees.

On July 6, 1982, plaintiff, during the course of his employment, claimed to have been assaulted by an unknown third party. Plaintiff’s requested reassignment to another route was denied by the defendant.

On July 13, 1982, plaintiff, during the course of his employment, claimed to have been the victim of an armed robbery. Again plaintiff’s requested reassignment to another route was denied by the defendant.

The record reveals that plaintiff did not make any claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) and did not, individually or through his collective bargaining agent, institute any grievance action pursuant to the collective bargaining agreement. Instead, plaintiff chose not to return to work on the same route, claiming he suffered from severe stress and anxiety. When plaintiff persisted in his request for reassignment to another route and refused to return to the route assigned, he was discharged by defendant.

On March 2, 1983, plaintiff filed a three-count complaint against defendant claiming retaliatory discharge, breach of an implied covenant of fair dealing, and intentional infliction of emotional distress. On May 13, 1983, defendant filed a motion to dismiss with prejudice. The trial court ordered briefs to be filed and set the matter for September 15, 1983. Briefs were filed on time by both parties, but plaintiff’s attorney did not appear on September 15, 1983, due to a clerical error of his office in scheduling cases. The court delayed its proceedings for about an hour. Attorneys for the defendant appeared on time and returned an hour later as requested by the court. Although not required to do so, defendant’s attorney did not attempt to reach opposing counsel or his office to notify him of the court’s short delay. The court noted that the hearing date was set by agreement of the parties and proceeded to decide the motion on the written briefs that were on file. An order was entered dismissing plaintiff’s complaint with prejudice.

Following a hearing on October 19, 1983, with both counsel present, the trial court denied plaintiff’s motion to vacate and reconsider. On November 10, 1983, plaintiff filed a motion for relief from judgment pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401.) This motion was denied on December 19, 1983, after which plaintiff filed a timely notice of appeal. Plaintiff does not contest the dismissal of count II dealing with breach of an implied covenant of fair dealing.

I

The first question for resolution is whether count I of plaintiff’s complaint was properly dismissed for failure to state a cause of action for retaliatory discharge.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, our supreme court held that, for the first time in Illinois, a cause of action should exist for employees who were discharged for filing Workers’ Compensation claims. In its analysis, the court determined that the purpose of the Workers’ Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) would be seriously undermined if employers could coerce employees to forego their statutory rights under the Act by threatening to terminate employees who sought compensation for industrial injuries. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172,181-82.

In Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, our supreme court granted leave to appeal in order to determine the “contours” of the tort of retaliatory discharge recognized in Kelsay. The employee in Palmateer was terminated for informing local law-enforcement authorities of suspected criminal activities of his co-employee, and for agreeing to assist in the investigation and trial of the co-employee if requested. In holding that the plaintiff-employee’s complaint had stated a cause of action for retaliatory discharge, the court held: “The foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses.” (85 Ill. 2d 124, 133.) As a result, the Palmateer court concluded that in order to bring a cause of action under Illinois law, “[a]ll that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.” 85 Ill. 2d 124,134.

The grounds on which count I of plaintiff’s complaint was dismissed were: (1) that plaintiff did not exhaust the administrative remedies provided in the collective bargaining agreement between defendant and plaintiff’s union; (2) that there are no allegations that plaintiff was discharged in retaliation for filing a Workers’ Compensation claim; and (3) that no cause of action was stated due to the factual insufficiency of the allegations.

First, as defendant concedes, a cause of action for retaliatory discharge is now recognized in Illinois “independent of any contract remedy the employee may have based on [a] collective-bargaining agreement.” (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 149.) Plaintiff need not even plead the exhaustion of grievance procedures in order to sustain the cause of action. 105 Ill. 2d 143, 152.

Second, there exists no requirement in Illinois that in order to state a viable cause of action for retaliatory discharge, a plaintiff must plead that he was discharged in retaliation for filing a Workers’ Compensation claim. (See Darnall v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 161, 473 N.E.2d 935.) We refuse to impose such a requirement here. As was clearly stated in Palmateer, all that is necessary is that the defendant here discharged plaintiff in retaliation for his “activities,” and that such “discharge be in contravention of a clearly mandated public policy.” Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124,134.

With respect to the third ground for dismissal, i.e., the factual insufficiency of plaintiff’s allegations, we agree that the trial court’s ruling was correct. There is not a single allegation in plaintiff’s complaint that he intended to seek relief under the Workers’ Compensation Act. Plaintiff has alleged no more than that he suffered fear and anxiety, that he contemplated medical attention, and that he was unable to return to work. In addition, there exists no allegation that defendant was informed, or in any way found out, that plaintiff was pursuing any remedy under the Workers’ Compensation Act, and that defendant went ahead and discharged him because of it. As a consequence, it is evident that a “clearly mandated public policy” is not involved in the case at bar.

In Palmateer, the court noted that actions for retaliatory discharge have been denied where it was clear that only private interests were at stake, e.g., where an employee took too much sick leave (Jones v. Keogh (1979), 137 Vt. 562, 409 A.2d 581), or where he disputed his employer’s internal management system (Keneally v. Orgain (1980), 186 Mont. 1, 606 P.2d 127). The present case is not one in which the public policy was clear. Plaintiff was not fired for refusing to evade jury duty, refusing to commit perjury, refusing to violate a consumer credit code, refusing to engage in price fixing, or refusing to violate any statute in general.

In this case, plaintiff was not asked to do anything illegal or improper. He was not asked to engage in any activities that were in contravention of a clearly mandated public policy. Defendant requested that plaintiff perform work which it had the right to assign to him under its collective bargaining agreement. Plaintiff’s discharge resulted from his unilateral choice not to return to work for an alleged fear of a risk which he, as well as each of his fellow drivers, knowingly undertook. Plaintiff sought to have defendant assign a fellow employee, covered by the same collective bargaining agreement, to the route which he refused.

Plaintiff had the right to bring a grievance; defendant, however, retained the right to discharge him for just cause. “Generally, if a union employee’s grievance goes to arbitration and the arbitrator does not find just cause for the employee’s discharge, the remedy will be simply job reinstatement and full back pay.” Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, citing Silzer, Workers’ Compensation: Retaliatory Discharge of Employees Covered by a Collective Bargaining Agreement, 70 Ill. B.J. 164, 166 (1981).

Because the factual allegations in plaintiff’s complaint are insufficient for recovery under the theory of retaliatory discharge, we hold that the trial court’s dismissal of count I was proper.

II

Next, it is plaintiff’s contention that count III of his complaint was erroneously dismissed for failure to state a cause of action for intentional infliction of emotional distress. We disagree.

In order to state a cause of action for this tort, facts must be alleged which establish: “(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) that defendant’s conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result.” Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765; Heying v. Simonaitis (1984), 126 Ill. App. 3d 157, 165, 466 N.E.2d 1137.

Regarding the nature of defendant’s conduct, liability exists only where such conduct has been “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’” (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 745-46, 431 N.E.2d 1175, quoting Restatement (Second) of Torts sec. 46, comment d (1965).) With respect to the severity of plaintiff’s distress, “ ‘[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.’ ” Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, quoting Restatement (Second) of Torts sec. 46, comment j (1965).

In order to determine whether a plaintiff has stated a cause of action for intentional infliction of emotional distress, a reviewing court must “accept as true the allegations contained in the plaintiff’s complaint.” Witkowski v. St. Anne’s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 752, 447 N.E.2d 1016, appeal denied (1983), 96 Ill. 2d 552.

Whether specific conduct can be characterized as extreme and outrageous depends, of course, on the facts in each case. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) “A mere statement that an act was done with a certain purpose or intent, without a statement of facts showing such purpose or intent, is a conclusion of law.” Tolbolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 63, 393 N.E.2d 1171, appeal denied (1979), 79 Ill. 2d 624.

Regarding the present action, it is claimed that defendant “engaged in a course of conduct toward the plaintiff which included harassment, threats and eventually unjust termination of his employment, with conscious disregard for the safety and well-being of the plaintiff.” This allegation of tortious conduct is insufficient in law because it merely characterized defendant’s purported behavior in conclusory language. Indeed, no specific facts are set forth in the complaint indicating what harassment or threats plaintiff was subject to, much less by whom or when they were carried out.

Stripped of conclusions, the conduct about which plaintiff complains consisted of his reassignment, despite objection, to the same delivery route on which he claims to have been assaulted and robbed in July 1982. Count III additionally alleged that defendant demanded that he take financial responsibility for the goods claimed to have been stolen from him on July 13, 1982. By virtue of this purported abuse by defendant of its position of authority over plaintiff, it is claimed that plaintiff now “suffers from acute post-traumatic stress and other psychotherapeutic disorders and has been unable to rejoin the work force.” Whatever the claimed motives for the obstinacy, threats or harassment alleged in the complaint, the question we must determine is “whether it could reasonably be considered extremely outrageous for an employer to intentionally subject an employee to such conduct.” Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 79, 427 N.E.2d 829.

Accepting as true the allegations set forth in plaintiff’s complaint, it is clear that defendant’s employment policy with respect to drivers cannot be characterized as so outrageous, so atrocious and so utterly intolerable that a person of ordinary sensibilities could not reasonably be expected to endure it. In support of a contrary conclusion, plaintiff cites and strongly relies on Milton. Such reliance, however, is misplaced. In Milton, the appellate court held that a complaint adequately stated a claim for intentional infliction of emotional distress where the plaintiff alleged, inter alia, that defendant employer ordered him to falsify certain work reports and, when plaintiff consistently refused, defendant retaliated against him by coercion and harassment. The Milton court premised its holding on the fact that by demanding plaintiff to falsify his work reports, defendant, as a public utility, was attempting to coerce plaintiff to engage in illegal conduct. (Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 80-81.) Plainly, the situation at bar cannot be viewed as parallel to Milton, for the complaint now before us is absolutely devoid of any suggestion that defendant attempted to coerce plaintiff into illegal activity. Rather, defendant merely insisted that plaintiff perform the duties he undertook as an employee-truck driver of the Chicago Sun-Times.

In essence, defendant’s actions did not reach that extreme level of outrageousness and severity “beyond all possible bounds of decency” so as to give rise to a cause of action for intentional infliction of emotional distress. “[T]his cause of action is reserved for especially abusive and atrocious transgressions, and [the, appellate court] will not expand upon the supreme court’s definition to cover such allegations as the instant plaintiff’s, as heartless and callous as those allegations may first appear.” Witkowski v. St. Anne’s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 754.

It is our conclusion, therefore, that count III of plaintiff’s complaint was properly dismissed.

Ill

The final issue for resolution concerns the propriety of the trial court’s decision to dismiss plaintiff’s complaint in the absence of his attorney, and then to subsequently deny his motions for reconsideration and relief from judgment.

First, plaintiff incorrectly refers to the dismissal order as having been entered ex parte. “An ex parte order, which is clearly within the power of the court to enter, is by definition an order originally granted at the insistence and for the benefit of one party, without notice to or contestation by any person adversely interested.” (American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 325-26, 391 N.E.2d 532, citing Kimbrough v. Parker (1948), 336 Ill. App. 124, 83 N.E.2d 42.) Without question, plaintiff here was provided with notice of the September 15, 1983, hearing on defendant’s motion to dismiss. Indeed, the order setting this hearing date specifically recited that, “due notice having been given, all parties agreeing thereto.” Further, the proof is in the record that plaintiff contested defendant’s motion by filing a nine-page memorandum in opposition on August 17, 1983. And it is reasonable to infer that due consideration was given to this document in view of the following language contained in the trial court’s order of dismissal: “[T]he Court being fully advised in the premises, the Court having read the briefs filed by all parties herein ***.” Since it is clear that the dispositive order in question was not entered ex parte, we must disagree with plaintiff’s argument for reversal on this ground.

Second, it is our opinion that the denial of plaintiff’s motions for reconsideration and relief from judgment was proper. Neither motion advanced a substantive basis upon which vacation of the dismissal order would have been warranted. The motion to vacate merely cited secretarial error as grounds for reconsideration. Again, the fact that counsel for plaintiff failed to appear at the time the dismissal order was entered had absolutely no bearing on the validity of such an order.

Moreover, we note that any additional motion filed by plaintiff had to conform to the requirements of section 2 — 1401 of the Illinois Code of Civil Procedure. (Ill. Rev.. Stat. 1983, ch. 110, par. 2 — 1401.) Section 2 — 1401 allows a litigant to petition the trial court to reconsider a final judgment if the following requisites are satisfied: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting the claim or defense in the original action; (3) lack of fraud or negligence in failing to present an error of fact or a valid claim or defense to the trial court at the time the original order was entered; and (4) due diligence in filing the petition under section 2 — 1401. (Halas v. Executor of Estate of Halas (1983), 112 Ill. App. 3d 940, 948, 445 N.E.2d 1264.) “[N]ew matters to be brought to the court’s attention in a section 2 — 1401 petition are those facts not appearing on the record which, if known to the court at the time the judgment was entered, would have prevented its rendition.” In re Marriage of Ohlson (1984), 126 Ill. App. 3d 374, 381, 466 N.E.2d 1280.

The section 2 — 1401 petition did not bring to the trial court’s attention any new facts not already of record. This second post-judgment motion simply expanded the arguments made in plaintiff’s motion to vacate, as well as in his memorandum of law filed in opposition to defendant’s motion to dismiss. Plaintiff’s section 2 — 1401 petition raised nothing new; it consisted of nothing but reargument. Because a petition brought under section 2 — 1401 cannot be used to relitigate questions previously adjudicated (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615), the court below did not err in denying plaintiff’s second post-judgment motion.

It is not until plaintiff’s reply brief in this court that he questions the propriety of the trial judge’s refusal to allow him the opportunity to amend his complaint. Because this issue was not properly raised in plaintiffs opening brief, we consider the merits or ramifications of such an argument as having been waived for purposes of appellate review. Unger v. Continental Assurance Co. (1984), 122 Ill. App. 3d 376, 380, 461 N.E.2d 531.

We noted above that on September 15, 1983, plaintiffs attorney did not appear at the scheduled hearing on defendant’s motion to dismiss. The trial court delayed the hearing for an hour. During the interim, the attorney for the defendant did not attempt to reach opposing counsel. Fortunately, the matter was properly disposed of on the briefs before the court with no undue advantage. It would have been better had counsel for defendant followed Justice Burke’s advice: “The court recognizes that telephones are available and that courtesy among lawyers is and should be the rule rather than the exception.” Stidham v. Pappas (1966), 78 Ill. App. 2d 402, 407, 223 N.E.2d 318, appeal denied (1967), 35 Ill. 2d 632.

For the reasons set out herein, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

STAMOS, P.J., and BERLIN, J., concur.


author: JUSTICE RIZZI

text:
    R. H. THOMAS et al., Plaintiffs-Appellees, v. THE VILLAGE OF WESTCHESTER et al., Defendants-Appellants.
    First District (3rd Division)
    No. 83—0297
    Opinion filed March 29, 1985.

      E. F. McDonnell, Jr., Bruno W. Tabis, Jr., and Diane M. Curtis, all of Chicago, for appellants.
    Morton Abt, Bertram D. Meyers, and C. Gus Kages, all of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, R. H. Thomas, Edward Twarog, Steven Dorner, Henry Cipriani and Richard R. Davis, obtained, on their motion for summary judgment, a writ of mandamus ordering defendants, the village of Westchester (the village) and the board of local improvements of the village, “to proceed to take all necessary steps for carrying into effect a special assessment for the installation ***” of various improvements to plaintiffs’ property. Defendants appeal the court’s October 14, 1982, order striking their answer, striking their answer to plaintiffs’ request to admit and granting plaintiffs’ motion for summary judgment, and the court’s subsequent order denying their motion to vacate the October 14,1982, order. We reverse and remand.

According to the allegations of the complaint, in July 1976 plaintiffs and others totalling about 70% of the owners of property located in the approximately 600-lot basically undeveloped and unimproved Wolf Road subdivision in Westchester filed petitions with the village requesting a special assessment for the construction of streets, curbs, sidewalks, sewers, water lines, street lights and fire hydrants. On November 10, 1981, after more than five years of alleged inaction by defendants, plaintiffs filed their amended complaint for a writ of mandamus ordering defendant to proceed in the preparation of plans, specifications, cost estimates and an ordinance for the improvements. On November 30, 1981, plaintiffs filed a request to admit pursuant to Supreme Court Rule 216. On February 5, 1982, plaintiffs moved for summary judgment on the ground that defendants did not respond to the amended complaint or the request to admit, that certain facts therefore stood admitted and no question of fact remained.

On February 19, 1982, defendants answered the amended complaint and pleaded as their affirmative defenses to the mandamus action that the relief requested “would be injurious to third parties, impossible to grant, or a useless act” essentially because the improvements would be cost-prohibitive and would result in nonpayment of the assessments. On March 5, 1982, defendants answered plaintiffs’ request to admit and responded to plaintiffs’ motion for summary judgment. Defendants asserted that they received leave to file their verified answer, which includes affirmative defenses which raise substantial issues of fact, that plaintiffs filed no affidavits in support of their motion for summary judgment and that all but one paragraph in the amended complaint are unverified. Defendants also asserted that the request to admit should not be considered admitted for failure to answer because (1) defendants never received the request to admit, (2) plaintiffs failed to make a personal consultation or reasonable attempt to resolve differences and their motion fails to contain a statement to that effect as required by Supreme Court Rule 201(k), (3) defendants have filed their answers to the request, which contain some admissions, but also assert an inability to admit certain facts that are in dispute, and (4) the request to admit is overly broad.

Plaintiffs moved to strike defendants’ answer; specifically, the affirmative defenses and defendants’ answer to plaintiffs’ request to admit. From February to October 1982, the court held many hearings regarding the case, encouraged the parties to settle and ordered continuances while the village considered the cost of conducting and then later conducted a feasibility study. The parties’ engineers disagreed on methodology, and the cost basis developed by plaintiffs’ engineers was 50% of what the village’s feasibility study showed. On October 14, 1982, the court granted both plaintiffs’ motions to strike and their motion for summary judgment.

Defendants filed a motion for rehearing and to vacate judgment. The motion was supported by affidavits indicating that the cost of improvements would be $23,000 per lot, that the value of a fully improved vacant lot would not exceed $30,000, and that the special assessment bonds would cost between $125,000 and $225,000 to put out and would not be saleable. Plaintiffs responded to defendants’ motion for rehearing and to vacate judgment with affidavits indicating that the cost of the improvements would be $15,000 per lot and that the value of a fully improved vacant lot would be at least $35,000. The court denied defendants’ motion to vacate the judgment of October 14, 1982, and the court subsequently stayed enforcement of the judgment pending appeal.

Defendants argue that the court erred in striking their answer, in striking their answer to plaintiffs’ request to admit and in granting summary judgment in favor of plaintiffs. Defendants’ contention that the court erred in striking their response to plaintiffs’ request to admit underlies their contention that summary judgment was erroneous since the summary judgment was based upon facts deemed admitted by virtue of defendants’ failure to respond in time. Thus, we first consider whether the court erred in striking defendants’ response to plaintiffs’ request to admit.

Defendants advance several arguments in support of their contention that the court erred in striking their response to plaintiffs’ request to admit. Some of the arguments go to the propriety of the request to admit itself. Since defendants filed a response to the request to admit which, if it had not been stricken, arguably raises a question of fact as to plaintiffs’ right to mandamus, we will not consider those arguments which go to the propriety of the request to admit, but rather, only those arguments which go to the propriety of accepting defendants’ late response.

Supreme Court Rule 216 provides that facts requested to be admitted are admitted unless the party responds within 28 days after service of the request to admit. (87 Ill. 2d R. 216.) However, the application of Rule 216 is not automatic. The trial court has wide discretion with regard to requests to admit and may allow a late filing in order to prevent injustice'. (See Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 677-78, 430 N.E.2d 580, 585.) Thus, late responses to requests to admit may be allowed where the failure to respond within the time provided is the result of circumstances beyond the control of the litigant, such as the death or severe disability of counsel (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 678, 382 N.E.2d 95, 102), or where the facts sought to be admitted concern the central issue of the case and the requesting party is unable to show prejudice as the result of the late filing (see Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 677-78, 430 N.E.2d 580, 584-85). In Daleanes v. Board of Education (1983), 120 Ill. App. 3d 505, 457 N.E.2d 1382, the court upheld the trial court’s allowance of the filing of a late response where the party requested to admit facts was in the process of changing attorneys when the request was filed, the most significant requested admission involved a fact question central to the dispute and the requesting party failed to demonstrate significant prejudice resulting from the delay.

Here, the facts sought to be admitted were central to the lawsuit. Plaintiffs acknowledge that the facts which were admitted as a result of defendants’ failure to respond in time were the basis for the summary judgment in favor of plaintiffs. It was only on the basis of the facts so admitted, in particular, that 70% of the total landowners in the subdivision had petitioned the village for the special assessment, that plaintiffs were able to establish their clear legal right to mandamus. In addition, we do not believe that plaintiffs demonstrated significant prejudice resulting from the delay. Most important, defendants assert that they did not receive plaintiffs’ request to admit until they received plaintiffs’ motion for summary judgment to which the request was attached. While defendants’ assertion is not supported by affidavit, it is supported by the fact, as indicated by names and addresses appearing on papers in the record, that the firm name and address of defendants’ attorneys changed during the course of the litigation and the fact that there is no proper proof that the request to admit was served on defendants’ attorneys. Supreme Court Rule 12(b)(3) provides that service by mail is proved by “*** certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail, stating the time and place of mailing, the complete address which appeared on the envelope, and the fact that proper postage was prepaid.” (87 Ill. 2d R. 12(bX3).) While slight defects in the proof of service which result in its nonconformance with Supreme Court Rule 12(b)(3) seldom constitute reversible error (see Curtis v. Pekin Insurance Co. (1982), 105 Ill. App. 3d 561, 566, 434 N.E.2d 555, 559), they may be viewed as factors in a case (Kimbrough v. Sullivan (1971), 131 Ill. App. 2d 313, 317, 266 N.E.2d 717, 720). Here, the proof of service attached to plaintiffs’ request to admit indicates that the affiant mailed the request to defendants’ attorneys, but does not indicate the complete address which appeared on the envelope. Under the circumstances, we conclude that the court erred in striking defendants’ answer to plaintiffs’ request to admit.

Having concluded that the court erred in striking defendants’ answer to plaintiffs’ request to admit, the facts deemed admitted by defendants’ failure to respond in time are no longer deemed admitted. Under the circumstances, we can only conclude that the court erred in granting summary judgment in favor of plaintiffs.

The statute under which plaintiffs seek mandamus requires that the board of local improvements act “[wjhenever the owners of one-half of the property abutting on any street, alley, park, or public place, or portion thereof, petition for any local improvement thereon ***.” (See Ill. Rev. Stat. 1975, ch. 24, par. 9 — 2—40.) In their request to admit, plaintiffs stated that 70% of the total landowners in the subdivision had filed their petitions with the village. In their answer to plaintiffs’ request to admit, defendants admitted that petitions were filed but stated that they have no independent knowledge of who holds title to the real estate and therefore could neither admit nor deny that the petitions were filed by 70% of the landowners. Plaintiffs did not verify their allegations as to ownership or support their allegations with affidavits. Thus, we believe that defendants’ response to the request sets forth a genuine issue as to the material fact of the requisite petitions, thereby rendering summary judgment inappropriate.

Defendants also argue that the court erred in granting plaintiffs’ motion to strike their answer, thereby denying defendants an opportunity to prove their affirmative defenses. We agree.

Mandamus is an extraordinary remedy which is appropriate only where there is a clear right to the requested relief, a clear duty on the part of the defendant to act and clear authority in the defendant to comply with the terms of the writ. (See In re Claudia K. (1982), 91 Ill. 2d 469, 476, 440 N.E.2d 78, 81.) In mandamus cases, the burden is on the plaintiff to show that he has a clear legal right to the writ. (People ex rel. Sanitary District v. Schlaeger (1945), 391 Ill. 314, 331, 63 N.E.2d 382, 391.) A complaint for a writ of mandamus must set forth every material fact necessary to demonstrate the plaintiff’s clear right to the writ. (See Anderson v. Board of Education (1945), 390 Ill. 412, 435, 61 N.E.2d 562, 572.) However, the presence of the legal right to a writ of mandamus does not necessarily furnish a basis for its issuance. (See People ex rel. Harrison v. Kelly (1945), 391 Ill. 136, 138, 62 N.E.2d 705, 706.) In addition, while mandamus is an action at law, courts apply equitable principles in deciding whether a plaintiff has shown a clear right to such an extraordinary remedy (People ex rel. Harty v. Gulley (1954), 2 Ill. App. 2d 321, 329, 119 N.E.2d 540, 544), and issue writs of mandamus within their discretion according to what seems necessary and proper to achieve a just result (Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 504, 516, 455 N.E.2d 153, 162, affd (1984), 104 Ill. 2d 169, 470 N.E.2d 1029). In the exercise of its discretion, the court looks to existing facts and views the whole case with due regard to the consequences of its action. (People ex rel. Harrison v. Kelly (1945), 391 Ill. 136, 138, 62 N.E.2d 705, 706.) Thus, a court may refuse the writ of mandamus because of serious or unfavorable consequences which may result from issuing it. Raclin v. Village of Winnetka (1938), 369 Ill. 532, 537, 17 N.E.2d 324, 326; Kunin v. Forman Realty Corp. (1959), 17 Ill. 2d 543, 546, 162 N.E.2d 401, 403.

Here, plaintiffs sought village action with regard to a special assessment for local improvements pursuant to section 9 — 2—40 of the Illinois Municipal Code. (Ill. Rev. Stat. 1975, ch. 24, par. 9 — 2— 40.) In their complaint, plaintiffs alleged that they had complied with all the necessary provisions of all pertinent ordinances. Assuming this bare allegation was sufficient to establish plaintiffs’ clear legal right to the requested relief, defendants should have been given the opportunity to demonstrate the consequences of issuing the writ of mandamus so that the court could exercise its discretion in light of the existing facts, with a view of the whole case. We believe that by striking defendants’ answer, the court denied defendants the opportunity to demonstrate the consequences of issuing the writ of mandamus. Therefore, we conclude that the court erred in striking defendants’ answer.

Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

WHITE, P.J., and McNAMARA, J., concur.

       In their amended complaint, plaintiffs set forth pertinent language from section 9 — 3—3 of the Illinois Municipal Code and alleged that they had complied with “all the necessary provisions of all pertinent statutes ***.” Defendants subsequently pointed out that section 9 — 2—40, not section 9 — 3—3, applies to municipalities such as Westchester which have created a board of local improvements. The trial court’s order stated that “[plaintiffs have met all conditions precedent to entitlement to relief under section 9-2-40 ***.”


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY SHELLY, Defendant-Appellant.
    First District (3rd Division)
    No. 84—1438
    Opinion filed March 29, 1985.
    James J. Doherty, Public Defender, of Chicago (Margaret M. Drewko and Frank P. Madea, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat and Maureen A. Hartón, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

Defendant, Anthony Shelly, was charged with burglary. After a jury found him guilty of that crime, the trial court sentenced him to an extended term of 14 years. On appeal defendant contends that the trial court committed reversible error in restricting his cross-examination of the arresting officer.

On October 28, 1983, at 1 a.m., Patricia Johnson heard her dog barking and looked out the rear window of her home. She saw a light in her neighbor’s garage and noticed that the garage door was open. When she saw someone, not her neighbor, walking around inside the garage, she telephoned the police. By the time she returned to the window, the police had arrived.

Officer Kupetis and his partner were in the area when the call was received, and they arrived on the scene immediately. The officers proceeded down the alley and noticed defendant standing in an alcove between two garages. Defendant was stooping over some objects at his feet. These objects had been stolen from the garage in question and were later identified by the owner of the objects.

On appeal defendant contends that the trial court committed reversible error in restricting his cross-examination of Officer Kupetis.

During direct examination of Kupetis, the prosecutor asked what defendant did when he stood up in the alcove. Kupetis replied that defendant said, “I didn’t do anything. What are you doing here?” On cross-examination, defense counsel attempted to elicit the balance of defendant’s statement wherein he also said he was urinating. The trial court sustained the State’s objection to the question.

A statement made by a defendant in custody after his arrest which is offered in his favor is not an admission but is inadmissible hearsay. (People v. Garth (1975), 31 Ill. App. 3d 716, 334 N.E.2d 359.) However, where a witness testifies to a part of the conversation, the opposing party has a right to bring out all of the conversation. People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255; People v. Nakutin (1936), 364 Ill. 563, 5 N.E.2d 78.

The State maintains that this evidentiary rule is inapplicable because Kupetis’ response as to what defendant said was unresponsive to the prosecutor’s question and was not specifically elicited. Furthermore, according to the State, any error in refusing to admit the rest of the statement was harmless because the jury heard the most exculpatory portion of the statement.

We would agree with the State’s position that the inadvertent response did not prejudice defendant if the State had not argued the opposite in its closing argument to the jury. The prosecutor argued:

“But I think his words gave him away. What did he say? He says he asked the police ‘What are you doing here? I didn’t do nothing,’ to use his words. Are those the words of an innocent man?
When you see the police, do you ask the police, ‘What are you doing here?’ Do, all of a sudden, the first words out of your mouth, you tell the police, if you’re an innocent man, ‘I’m not doing nothing.’ No ladies and gentlemen. Those words out of the mouth of Mr. Shelly, I think, establishes his guilt, as well as all of the other evidence.”

And later the prosecutor again referred to defendant’s partial statement as proof that defendant was shocked to be caught so quickly by the police.

We hold that the trial court erred in restricting defendant’s cross-examination of Kupetis. Because the State vigorously argued that the statements affirmatively indicated defendant’s consciousness of his guilt, we cannot say that the error was harmless.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES DAVIS, Defendant-Appellant.
    First District (1st Division)
    No. 84—0299
    Opinion filed March 29, 1985.

      Cheryl Berdell and Steven Clark, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Mary Ellen Dienes, and Daniel R. Carter, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, the defendant was convicted of theft (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(a)(1)), and he was sentenced to a term of five years. He appeals, contending that the evidence was not sufficient to convict him of a felony theft because of failure to establish the fair cash market value of the stolen property, and that his conviction should be reversed because it was based solely on the implausible and inconsistent testimony of one witness who participated in the offense.

Defendant was charged with the residential burglary and theft at the Oakton Street, Evanston, home of Suhail and Elizabeth Miari. Mr. and Mrs. Miari testified that they each left their home between 4 and 4:30 p.m. on June 29, 1983, at which time their home was in order and secure. They returned at approximately 10:30 p.m. and observed that the lights were on, the screen was off the open kitchen window and the dining room doors were open. Major items that were missing included a small and a large television set, a stereo, a camera, binoculars and two boxes of jewelry. They recovered the small television, one box of jewelry, a camera cover case and a quilted bedspread. They testified further that they received an insurance settlement check for the items not recovered in the sum of “around $1500.”

Susan Johnson, who lived in the vicinity of the burglarized premises, testified that around 10:30 p.m. on the above date she heard a car stop across the street from her home. She looked out the window and saw one man standing by the trunk of a beige and brown older model Pontiac Grand Prix. Another man, who made three trips “back and forth across the street from the alley to the car,” was carrying large objects which he put in the car trunk. She called the police and accompanied them to the alley, where she saw a bed sheet and a quilt in some bushes.

Lenny Sudduth testified he was driving the car Mrs. Johnson saw in the area of the burglary when he stopped as defendant, whom he knew, whistled to him. Defendant asked for help because his “woman” had ejected him from their residence, and his property was out in the rain. When Sudduth refused, defendant offered to give him a black and white television. Sudduth then agreed, and defendant directed him to drive to Oakton and South Boulevard, where he parked. Sudduth turned off his headlights, but left the parking lights on. Defendant got out, crossed the street to the alley and disappeared for a few seconds. When he returned carrying a 19-inch television, Sudduth opened the car trunk and defendant placed the television inside. Defendant then went back to the alley, leaving Sudduth at the car. He reappeared carrying a stereo and a small radio which he also placed in the trunk. On the third trip from the alley, defendant brought a small black and white television and a camera. Defendant then directed him to a basement apartment on the north side of Chicago, where he helped defendant take all of the property except the black and white television. The property was left with a man and woman, and defendant told them he would pick the items up later. Sudduth then drove defendant to an elevated station because defendant said he had to go to work. Defendant told him he appreciated what had been done for him and told him to use the small television. Sudduth then went home.

On July 4, 1983, police officer Wilbur came to his house and questioned him as to whether he had let anyone use his car. Sudduth replied he had not, but when the officer asked if anyone had used it on the night of the burglary, Sudduth told him in detail about helping the defendant. Sudduth then gave the officer the television set, and on the following day he went to the police station, where he identified the defendant from photographs.

Police officer Chris Wilbur testified he investigated the case. When he went to talk to Sudduth he had considered him to be a suspect, but after talking with him, he did not think Sudduth was involved in the crime.

Based on the evidence, the trial court found defendant guilty of theft.

Defendant first contends the State’s evidence failed to establish that the fair cash market value of the stolen property was in excess of $300, and therefore he asserts that he could only be convicted of misdemeanor theft.

The particular value of the property taken in a theft determines only whether the crime will be punished as a felony or misdemeanor. (People v. Jackson (1984), 99 Ill. 2d 476, 459 N.E.2d 1362.) The standard for determining the value of property at the time and place of the theft is the property’s fair cash market value. (People v. Cobetto (1977), 66 Ill. 2d 488, 363 N.E.2d 854.) Evidence presented may be sufficient, however, to support a conviction for the felony amount, though the testimony of witnesses was not addressed precisely to the “fair cash market value.” People v. Harden (1969), 42 Ill. 2d 301, 47 N.E.2d 404.

We note that the statute related to theft parallels the statute defining criminal damage to property wherein only one offense is defined, but the amount of damage determines whether the offense shall be punished as a felony or misdemeanor. (See People v. Grass (1984), 126 Ill. App. 3d 540, 543, 467 N.E.2d 383, 395.) In relation to the latter offense, it has been held that cost of repairs is an accurate indication of the damages suffered and is therefore a proper method by which to determine the damage for which a defendant is criminally responsible. (People v. Carraro (1979), 77 Ill. 2d 75, 80, 394 N.E.2d 1194, 1196.) While the State need not prove the exact amount of damages in a criminal damage to property case, it does have to prove the minimum amount necessary to justify a felony conviction. People v. Carraro (1979), 77 Ill. 2d 75, 394 N.E.2d 1194; People v. Holder (1983), 119 Ill. App. 3d 366, 373, 456 N.E.2d 628, 633.

Similarly, we.find that the State need not prove the exact dollar value of the property taken in a theft, but need only establish that the fair cash market value of the property at the time of the theft exceeds the sum of $300 in order to sustain a conviction of a felony theft. In United States v. Ricketson (7th Cir. 1974), 498 E2d 367, cert, denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 227, the trial court admitted into evidence the deposition of a theft victim who had stated under oath that the stolen jewelry was worth $200,000, and that the value was set by her insurer. The defendant argued that such expression of opinion was inadmissible hearsay. The United States Court of Appeals for the Seventh Circuit stated:

“***[H]er testimony was not based on any idle expression of opinion by an insurance agent. Rather, it was based on an actual transaction: the amount the insurer paid for her jewelry. [Citation.] Of course, the transaction was not between a willing buyer and a willing seller, so that it might be argued that the insurer’s conduct in paying for the jewelry is offered as evidence of its belief as to market value and is therefore an implied hearsay assertion. The trend of modern rules and decisions is to admit assertive conduct as outside the hearsay rule. [Citation.] We agree with this trend and hold that an insurance loss payment is admissible to prove market value of stolen goods.” 498 F.2d 367, 373.

In the instant case, the complainant, Mrs. Miari, testified to the value of the property stolen from her home as follows:

“[Assistant State’s Attorney]: All right. Did you, since that date, have a settlement with an insurance company or have items replaced?
A. Yes, we do.
Q. Was that to the tune of over three hundred dollars?
MR. ROY: Objection.
MR. KLAPMAN: I want to know if it was over three hundred dollars.
MR. ROY: All right.
THE COURT: Is there an objection?
MR. ROY: No.
MR. KLAPMAN: Was this over three hundred dollars?
THE WITNESS: Yes, it was.
Q. In fact, did you receive a check?
A. Yes.
Q. How much was the check for?
MR. ROY: Objection.
THE COURT: She may answer.
THE WITNESS: For around fifteen hundred dollars.”

We find that the above testimony is admissible evidence of the insurer’s belief as to the market value of the property taken in the theft, and that it is sufficient to establish that the value of the stolen property is in excess of $300. We therefore hold that the defendant was properly convicted of felony theft.

Defendant next contends that his conviction should be reversed because it was based solely on the implausible and inconsistent testimony of an accomplice in the crime. He points out that Sudduth at first denied that his car had been in the vicinity of the crime while talking with Officer Wilbur, but admitted helping a man he knew to move some property when he became aware that his car had been seen on “a rainy night” in that area; that it was then Sudduth gave the officer the television; that Sudduth admitted he turned off his headlights upon parking his car and watched beside the trunk while his friend, who had been evicted by “his woman,” made several trips carrying only electrical equipment and a camera which he testified were then taken to the friend’s “woman”; and that Sudduth gave conflicting statements as to whether his “friend” had facial hair.

A court of review may not substitute its judgment for that of the trier of fact as to questions involving the weight of the evidence or the credibility of the witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) The credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence are matters to be determined by the trier of fact. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) Discrepancies or inconsistencies in testimony affect only the weight to be given the testimony. (People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260.) The testimony of an accomplice, even uncorroborated, is sufficient to sustain a conviction if it satisfies the trier of fact beyond a reasonable doubt. People v. Nathaniel (1981), 103 Ill. App. 3d 610, 614, 431 N.E.2d 1080.

Here, the trial court specifically stated that it plainly and unequivocally believed Lenny Sudduth, and noted that Sudduth and Mrs. Johnson both stated that he stood by the trunk of the car while the other man came and went. The court also noted that Sudduth is not “your usual accomplice,” that he was never charged and that he was not given immunity. The evidence that Sudduth stopped to help someone who turned out to be a criminal offender was a matter for determination by the trial court. Further, the testimony of a single witness is sufficient to convict where the witness is credible and he viewed the offender under such circumstances as would permit a positive identification to be made. (People v. Yarbrough (1977), 67 Ill. 2d 222, 267 N.E.2d 666.) The testimony of an identification witness will be strengthened to the extent of his prior acquaintance with the accused. (People v. Lumpkin (1975), 28 Ill. App. 3d 710, 329 N.E.2d 262.) We do not find that the evidentiary determination of the trial court is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s guilt.

The judgment of the circuit court of Cook County is therefore affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 as costs for the State’s defending this appeal, and incorporate it as part of our judgment.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE JOHNSON

text:
    AMERICAN WHEEL & ENGINEERING COMPANY, INC., et al., Plaintiffs and Counterdefendants-Appellants, v. DANA MOLDED PRODUCTS, INC., et al., Defendants and Counterplaintiffs-Appellees.
    First District (4th Division)
    No. 84—340
    Opinion filed March 28, 1985.

      John M. Bowlus and Philip N. Hablutzel, both of Chicago, for appellants.
    Geoffrey G. Gilbert and Malcolm H. Brooks, both of McBride, Baker & Coles, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, American Wheel & Engineering Company, Inc. (American Wheel), and Richard Brodner, its president, appeal from a judgment of the circuit court of Cook County in favor of defendants. Plaintiffs contend the following findings of the trial court were contrary to the manifest weight of the evidence: (1) that plaintiffs did not possess a trade secret in either a plastic formula or certain customer information; (2) that defendants did not participate in any deceptive business practices in competing against plaintiffs; and (3) that defendants did not use fraud in obtaining a series of promissory notes from plaintiff.

We affirm.

Testimony at trial established that American Wheel, an Illinois corporation, sells plastic caster wheels. Dana Molded Products, Inc. (Dana), defendant, is an Illinois corporation in the business of plastic injection molding, a process whereby molten plastic is injected into a metal mold of a desired part and chilled until solidification. Janbar Wheel Corporation (Janbar), defendant, is an Illinois corporation that sells plastic caster wheels, and Daniel Bidding, defendant, is the president of Dana and Janbar.

In 1975, plaintiff Brodner organized American Wheel and asked Dana to be its molder. Dana bought raw materials directly from suppliers, provided all of the equipment to operate the molds, and provided the labor necessary to make the wheels. Dana designed the molds, but American Wheel owned them. When American Wheel made a sale, Dana would mold the product and ship it directly to American Wheel’s customer. Dana billed American Wheel and American Wheel billed the customer; the customer paid American Wheel directly and American Wheel paid Dana.

This relationship began to deteriorate sometime in 1978. Late in that year, Bidding decided to market caster wheels himself and established Janbar Corporation for that purpose. On or before January 17, 1979, Bidding informed Brodner that he would sell wheels as a competitor of American Wheel and, therefore, American Wheel should remove its caster wheel mold from Dana to another molder.

During this time, American Wheel’s account with Dana fell into arrears, but Dana continued to mold for American Wheel. Brodner and Bidding negotiated to resolve their financial differences. Sometime in February 1979, American Wheel executed six promissory notes, personally guaranteed by Brodner, to cover all past due invoices over 30 days, payable over four months and bearing interest after maturity. Dana continued to mold wheels for American Wheel’s customers until plaintiffs filed this lawsuit.

In plaintiffs’ complaint, filed February 23, 1979, they claimed that defendants (1) misappropriated an alleged trade secret (the formula for the plastic compound from which the wheels were manufactured) and information on plaintiffs’ customers, (2) participated in deceptive trade practices, and (3) fraudulently induced plaintiffs to execute the promissory notes. Plaintiffs sought damages on their trade secrets and deceptive business practices claims, and rescission of the notes based on the fraud claim. On January 10, 1984, the court, in a bench trial, rendered judgment for defendants on all issues, specifically finding that no trade secret existed in the plastic formula, that plaintiffs made no effort to protect the secrecy of any customer list, and that defendants did not use fraud in obtaining the promissory notes from plaintiffs. Plaintiffs appeal.

I. Trade Secrets Issue

A. THE FORMULA

Plaintiffs claim that the trial court erred in finding no trade secret in the formula for the plastic compound from which the caster wheels were manufactured.

Testimony established that plaintiffs employed Complas Industries, Inc., a custom compounder, and Keystone Testing Laboratories, a product testing company, to develop a type of plastic that reached specified levels of durability, impact load, and temperature. Complas experimented with Complas PP6200, a generic compound of rubber and polypropolene materials having similar minimum physical property characteristics, commonly and widely used in manufacturing caster wheels. The record shows that Complas’ experiments entailed varying the combinations of the “ingredients” to PP6200 to obtain a particular “recipe” that yielded a plastic possessing the specifications that plaintiffs desired. Plaintiffs claim that this recipe of PP6200 is their trade secret and that defendants misappropriated it when they began selling caster wheels made of the same recipe.

A trade secret is generally described as “a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393, 395.) An exact definition of a trade secret is impossible because it includes a wide spectrum of categories subject to variations depending upon the facts of a particular case. (ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393, 395.) Some factors that a court may consider in determining whether particular information is a person’s trade secret include “ ‘(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.’ ” ILG Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93, 273 N.E.2d 393.

The trial court was not in error in finding that plaintiffs do not have a trade secret in the contested recipe of PP6200. Although plaintiffs fulfill the fifth factor (an investment of approximately $37,482 into the development of the recipe), they fail to meet all of the remaining factors.

Plaintiffs fail to meet the fourth factor because the plastic formula for their wheels has little value, per se, to either them or their competitors. Testimony adduced at trial reveals that the relationship between sellers and custom compounders is one of ends and not means. Plaintiffs approached Complas and asked for a plastic compound that met certain specifications. Complas did not tell plaintiffs, and would not tell any other seller, the formula to the plastic compound. In fact, Complas considered such formulae to be its property. The record also shows that more than one recipe of PP6200 could produce a compound with the desired properties. Plaintiffs’ goal of a plastic compound meeting certain specifications of durability, impact load, and temperature, therefore, could have been met by more than one recipe of PP6200. Lastly, the record is unclear whether defendants actually used the contested recipe of PP6200 or another recipe.

The remaining factors may be briefly addressed. The record shows that plaintiffs did nothing to guard the secrecy of the source or nature of the plastic compound, other sellers could easily acquire a plastic with the same specifications by merely requesting Complas to produce it, and none of the plaintiffs or their employees knew what the recipe was. We hold that the trial court’s finding that no trade secret existed in the plastic compound formula for plaintiffs’ caster wheels was not contrary to the manifest weight of the evidence.

B. CUSTOMER INFORMATION

Plaintiffs also contend that the trial court erred by finding no trade secret in their customer information. Plaintiffs claim that defendants obtained as customers the same persons who were plaintiffs’ customers.

A customer list or other customer information constitutes a trade secret in which an employer holds a protectable interest where the employer developed the information over a number of years, at great expense, and kept the information under lock and key. The same type of information is not a trade secret where the employer had not treated the information as confidential and secret, where those in the field commonly knew the information or could have easily duplicated it, and where the employer’s competitors knew the employer’s customers. Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358, 425 N.E.2d 1034, 1038.

The record reveals no evidence of a confidential list that plaintiffs developed over a number of years, nor that plaintiffs were the only persons in the field who knew the information, nor that plaintiffs kept the information under lock and key. Plaintiffs’ actions demonstrated a lack of security measures and confidential treatment of customer names and requirements. We hold that the finding of the trial court that no trade secret existed in either the plastic formula or the customer information was not contrary to the manifest weight of the evidence.

II. Deceptive Business Practices Issues

Plaintiffs claim that Janbar passed off its caster wheels as being the same as theirs by using plaintiffs’ trade names for the plastic material in soliciting customers and by representing that its wheels were made from the same material as plaintiffs’ wheels. Plaintiffs contend further that Janbar both passed off its wheels as being the same as theirs and disparaged their wheels by misstating the relationship between it and plaintiffs.

Plaintiffs base their deceptive practices claims on the Uniform Deceptive Trade Practices Act (Uniform Act) (Ill. Rev. Stat. 1981, ch. 121V2, par. 311 et seq.) and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1981, ch. 121 Va, par. 261 et seq.). The Uniform Act provides injunctive relief as its exclusive remedy (Ill. Rev. Stat. 1981, ch. 121V2, par. 313), while the Consumer Fraud Act allows actions for damages (Ill. Rev. Stat. 1981, ch. I2IV2, par. 270a). Section 2 of the Consumer Fraud Act, however, incorporates section 2 of the Uniform Act (Ill. Rev. Stat. 1981, ch. I2IV2, par. 262). Through the incorporation, the General Assembly “intended to provide consumers with broader protection than initially provided under either act individually and to allow consumers to seek remedies for deceptive practices under the uniform act.” Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, 408, 466 N.E.2d 1151, 1156.

“Passing off” refers to the deception of consumers as to the source of a product. (Clairol, Inc. v. Andrea Dumon, Inc. (1973), 14 Ill. App. 3d 641, 650, 303 N.E.2d 177, 184.) The Uniform Act describes this, in part, as a deceptive trade practice that a person commits when, in the course of business, he (1) passes off goods or services as those of another; (2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or of certification of goods or services; or (3) causes likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another. Ill. Rev. Stat. 1981, ch. 121V2, par. 312(1)(2)(3).

“Trade disparagement” refers to remarks that disparage the quality of one’s goods or services. Section 2(8) of the Uniform Act substantially embodies the common law tort of commercial disparagement. (Crinkley v. Dow Jones & Co. (1979), 67 Ill. App. 3d 869, 876, 385 N.E.2d 714, 719.) A person engages in a deceptive trade practice also when he “(8) disparages the goods, services or business of another by false or misleading representation of fact.” Ill. Rev. Stat. 1981, ch. 121V2, par. 312(8).

The record does not support plaintiff’s passing off and trade disparagement claims. Although Bidding mailed to prospective customers a list of its products using plaintiffs’ trade names for the plastic materials, he identified Janbar as the seller, the use of the trade names lasted only for a short period of time (February 20 to March 19, 1979), and plaintiffs can attribute no sales to Janbar’s use of the names. There is no passing off where a seller ensures that buyers are not under the impression that his goods are the products of his competitor. (Duo-Tint Bulb & Battery Co. v. Moline Supply Co. (1977), 46 Ill. App. 3d 145, 153, 360 N.E.2d 798, 804.) Janbar’s representation that its wheels were made from the same material as those of plaintiffs was not passing off, because the record shows that both sets of wheels were made from PP6200 and possessed the same specifications.

We hold that Janbar did not misstate its relationship to plaintiffs, thereby passing off their wheels and disparaging those of plaintiffs. Plaintiffs object to defendants referring to them as “brokers” or a “sales organization.” The record shows that plaintiffs sold wheels while defendants made them. We hold that the trial court’s judgment for defendants on the issues of passing off and trade disparagement was not contrary to the manifest weight of the evidence.

Lastly, plaintiffs contend that the trial court abused its discretion by failing to decide their claims made under the deceptive business practices acts. Rather than make any specific findings on these claims, the trial court ruled:

“[Tjhat the plaintiffs American Wheel and Engineering Co., and Richard Brodner shall recover nothing against the defendants Dana Molded Products Inc., Daniel P. Bidding and Janbar Wheel Corporation on the various claims asserted in their complaint as amended, all issues being resolved in favor of the defendants herein.”

In a nonjury civil case, an order of the circuit court is not required to contain findings of fact or conclusions of law. The appealing party bears the burden of overcoming the presumption that the trial court’s judgment is correct. The reviewing court will neither presume that error occurred in the trial court nor assume that the trial court misunderstood the applicable law, but will extend all reasonable presumptions in favor of the judgment or order from which the appeal is taken. (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 345, 459 N.E.2d 651, 654.) We hold that the trial court did not abuse its discretion in its disposition of plaintiffs’ claims under the deceptive business practices acts.

III. Fraud

Plaintiffs lastly contend that the trial court erred in finding that Bidding did not fraudulently induce them to execute the six promissory notes totaling approximately $203,000. Plaintiffs claim that Bidding did not inform them of his intentions to compete against them. They argue that Bidding should have so informed them because a confidential relationship existed between themselves and Bidding that obligated Bidding to tell them of his plans, and that they, or any rational business person, would not have executed promissory notes under such circumstances.

In addition to the misrepresentation of a material fact, fraud may also consist of the omission or concealment of a material fact, with the intent to deceive, under circumstances creating an opportunity and duty to speak. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 195, 380 N.E.2d 1040,1044.

We agree with the trial court’s finding that no confidential relationship existed between plaintiffs and defendants. Testimony adduced at trial shows that Kidding informed Brodner of his plans to compete with Brodner on or before January 17, 1979, before Brodner executed the notes. Kidding thereby ended their prior relationship. Contrary to plaintiffs’ arguments as to what a rational business person would have done under these circumstances, we agree with the trial court’s finding that plaintiffs executed the notes in settlement of their debt to defendants, so that defendants would continue to mold for them without interruption. We hold that the trial court’s finding that no fraud existed in the execution of the promissory notes was not contrary to the manifest weight of the evidence.

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

Affirmed.

JIGANTI, P.J., and ROMITI, J., concur.