2023 IL App (1st) 220490-U
THIRD DIVISION
September 20, 2023
No. 1-22-0490
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
GAS DEPOT, INC. d/b/a Gas Depot Oil Company, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 2016 L 1494
)
AHMAD ZAHDAN; AZ SPE, LLC; MID-WEST )
OIL COMPANY, INC.; SWIFT FUEL )
TRANSPORT, INC.; EID I. AYESH; )
BRIDGEVIEW MART, INC.; NABEELAH )
AYESH; AJ GAS & MINI MART, INC.; )
)
Defendants-Appellees )
)
(Ifran Bhagat; Mohammed Ahmed; Mazhar Bhatti; )
First Choice Gas, Inc.; Harjinder Singh; Sandhu ) Honorable Daniel J. Kubasiak,
Petroleum, Inc.; Defendants). ) Judge, presiding.
JUSTICE DEBRA B. WALKER delivered the judgment of the court.
Justice Lampkin and Justice R. Van Tine concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in imposing sanctions on plaintiff for
discovery violations. The trial court did not err in granting defendants’ motion for
partial summary judgment. Affirmed.
¶2 Plaintiff Gas Depot, Inc. d/b/a Gas Depot Oil Company (Gas Depot) filed a multi-count
complaint alleging, inter alia, breach of contract against Ahmad Zahdan; AZ SPE, LLC (AZ);
No. 1-22-0490
Mid-West Oil Company, Inc. (Mid-West); Ifran Bhagat; Mohammed Ahmed; Swift Fuel
Transport, Inc. (Swift); Eid I. Ayesh (Eid); Bridgeview Mart, Inc. (Bridgeview); Mazhar Bhatti;
First Choice Gas, Inc. (First Choice); Harjinder Singh; Sandhu Petroleum, Inc. (Sandhu), Nabeelah
Ayesh (Nabeelah); and AJ Gas & Mini Mart, Inc. (AJ Gas). During discovery, the trial court
entered an order imposing sanctions against plaintiff for its failure to comply with the court’s prior
orders to disclose certain information to various defendants. Defendants Eid and Bridgeview
(hereinafter the Bridgeview defendants) subsequently filed a motion for partial summary judgment
pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West
2018)). Although the trial court initially denied the motion, it granted their motion to reconsider
that denial and then entered summary judgment in their favor. On appeal, plaintiff contends that
the court erred in (1) granting summary judgment in favor of the Bridgeview defendants, and
(2) imposing sanctions against it for various alleged discovery violations. We affirm. 1
¶3 BACKGROUND
¶4 Plaintiff is an Illinois corporation and a licensed distributor of petroleum products. AZ is
an Illinois limited liability company owned and controlled by Zahdan. Zahdan also owns and
controls Swift, an Illinois corporation in the business of transporting and delivering petroleum
products. Midwest is an Illinois-based corporation and a competitor of plaintiff in the petroleum
distribution business. Bhagat and Ahmed own and control Midwest. Eid owns Bridgeview, a gas
station on South Harlem Avenue in Bridgeview, Illinois. Singh owns and controls Sandhu, an
Illinois corporation. Sandhu is the owner of the property at which the gas station operates. Bhatti
is the owner of First Choice. Nabeelah, Eid’s wife, is the owner of AJ Gas.
1
This appeal has been resolved without oral argument upon the entry of a separate written
order pursuant to Illinois Supreme Court Rule 352(a) (eff. July 1, 2018).
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No. 1-22-0490
¶5 The Agreement
¶6 On September 19, 2014, plaintiff entered into a “Motor Fuel Sales Petroleum Supply
Agreement” (the Agreement) with the Bridgeview defendants for the sale of petroleum products
and services. Pursuant to the Agreement, the Bridgeview defendants (collectively termed “Dealer”
in the Agreement) agreed to purchase all petroleum products and services for Bridgeview from
plaintiff. The term of the Agreement indicated that it would be for ten years, beginning on
September 19, 2014.
¶7 Paragraph four of the Agreement, entitled “Term,” provided as follows:
“4. Term. The term of this Agreement shall be for Ten (10)
years between the parties unless sooner terminated pursuant to
Paragraph 13 below (“Initial Term”)[.] This agreement shall
automatically renew upon expiration of the Initial [T]erm for
successive one-year terms (individually a “Renewal Term”) unless
no later than ninety (90) days prior to expiration of the Initial Term
or any Renewal Term, either party provides written notice of
nonrenewal to the other.”
¶8 Paragraph 13, entitled “Terminations and Non-Renewal by [Gas Depot],” listed multiple
circumstances under which it could unilaterally terminate the Agreement, including “Dealer’s
failure to comply with any provision of this Agreement” and “Dealer’s failure to operate the
[Bridgeview gas station] for seven (7) consecutive days, or such lesser period of time such that
under the particular facts and circumstances constitutes as an unreasonable period of time.”
¶9 Paragraph 14 (“Breach by Dealer; Liquidated Damages”) set forth plaintiff’s estimated loss
of profits if Dealer breaches the Agreement. The estimate was to be calculated pursuant to a
formula consisting of the following: the “[a]verage Monthly Motor Fuel Petroleum Sales (in
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No. 1-22-0490
gallons) by Dealer over the proceeding [sic] 12 months x $0.02 per gallon multiplied by the
remaining number of months in the Term of the Agreement” plus the “unamortized branding costs
incurred by [plaintiff],” which “Dealer acknowledges *** shall amount to between $15,000.00 and
$50,000.00 and shall be amortized on a straight line basis over the term of the contract.”
¶ 10 Finally, the Agreement also contained various standard provisions. Paragraph 18 of the
Agreement, entitled “Non-Waiver,” stated that Gas Depot’s failure to exercise any of its rights in
the Agreement would not constitute “any waiver or modification of such rights.” Paragraph 19
specified that the Agreement comprised “the entire agreement of the parties” and that all other and
prior agreements and understandings were “merged herein and extinguished hereby.” In addition,
paragraph 20 (“Modifications or Amendment”) provided that the Agreement could be modified or
amended “only in writing, executed by both of the parties hereto.” Although paragraph 25 of the
Agreement (“Lease/Contract Length”) indicated that the Agreement would run “concurrent with
the terms of the Land Lease,” the term “Land Lease” was not defined in the Agreement. Most
importantly, there is a handwritten statement at the bottom of the last page of the Agreement
providing as follows: “In the even[t] [the] current lease for the [D]ealer’s Premises is not renewed
or extended for any reason, this [A]greement shall be cancelled on the date of the lease termination
[and] this contract will be cancelled.” The dates “9/25” and “9/25/14” appear next to two
signatures.
¶ 11 Gas Depot’s Complaint
¶ 12 On February 16, 2016, plaintiff filed a seven-count complaint against Zahdan, AZ, Mid-
West, Singh, and Sandhu. Plaintiff subsequently amended its complaint several times. On June
26, 2018, plaintiff filed its third amended complaint against defendants, which is the operative
complaint in this appeal. Although the complaint comprised 21 counts (all of which were resolved
in defendants’ favor), plaintiff notes that it only challenges the dismissal of 5 counts (counts II, III,
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No. 1-22-0490
V, XX, and XXI) in this appeal: (1) breach of contract against the Bridgeview defendants (count
II); (2) intentional interference with contract against Zahdan, AZ, and Swift (count III); (3) aiding
and abetting against Midwest, Ahmed, and Bhagat (count V); (4) successor and alter ego liability
against the Bridgeview defendants, Nabeelah, 2 and AJ Gas (count XX); and (5) conspiracy to
defraud against the Bridgeview defendants, Nabeelah, AJ Gas, Zahdan, AZ, Midwest, Bhagat, and
Ahmed (count XXI). Gas Depot made the following allegations in its complaint.
¶ 13 Count II (breach of contract) alleged that, around January 2016, the Bridgeview defendants
(1) stopped purchasing petroleum products and services from and also processing credit card sales
transactions through plaintiff; and (2) began purchasing petroleum products and services and also
processing credit card sales through Midwest. Count III (intentional interference with contract)
alleged that Zahdan, through AZ, purchased the “existing loan and mortgage” on Bridgeview and
threatened to “evict and ‘kick out’ [Eid] and Bridgeview from the property” unless the Bridgeview
defendants (1) terminated the Agreement with Gas Depot, (2) purchased petroleum products from
Midwest instead, and (3) had Swift deliver those products. Count V (aiding and abetting against
Midwest, Ahmed, and Bhagat) alleged that Midwest, Ahmed, and Bhagat were aware of Zahdan’s
actions in the “wrongful interference with” the Agreement and “gave credence to, assisted and
aided” Zahdan in his acts.
¶ 14 Count XX (successor and alter ego liability) alleged that, following Gas Depot’s discovery
that the Bridgeview defendants had been purchasing petroleum products and processing credit card
payments through Midwest, Gas Depot sent cease-and-desist letters to Zahdan, AZ, and Midwest.
According to Gas Depot, shortly after it sent the letters, Eid and Nabeelah formed AJ and
transferred all “personal property and inventory” from the Bridgeview station to AJ without AJ
2
On February 8, 2019, the trial court dismissed counts XX and XXI with prejudice as to
Nabeela. Plaintiff does not challenge that dismissal.
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No. 1-22-0490
paying any “money or thing of value.” Nabeelah (purportedly on behalf of AJ) then signed a credit
card processing agreement with another company. Gas Depot further alleged that the phone
number, business operations, financial accounts, employees of AJ were identical to those of
Bridgeview, and that Nabeelah’s title of president and owner of AJ was merely to “create the false
impression that [Eid] is not the owner and operator of the gasoline station and mini mart.”
¶ 15 Finally, count XXI (conspiracy to defraud) alleged that the Bridgeview defendants,
Nabeelah, AJ, Zahdan, AZ, Midwest, Bhagat, and Ahmed conspired to “defraud Gas Depot of
monies due it” by the Bridgeview defendants, obstruct Gas Depot’s rights under the Agreement,
and avoid the Bridgeview defendants’ obligations under the Agreement. The cause later proceeded
to discovery.
¶ 16 The Motion for Sanctions
¶ 17 On February 13, 2019, the Bridgeview defendants filed a motion to compel discovery and
for sanctions. 3 They noted that, on July 20, 2018, they issued their Illinois Supreme Court Rule
213 (Ill. S. Ct. R. 213 (eff. Jan. 1, 2018)) interrogatories and their Illinois Supreme Court Rule 214
(Ill. S. Ct. R. 214 (eff. July 1, 2018)) document requests on Gas Depot. Pursuant to the respective
rules, both documents requested responses within 28 days of the service of the documents. See
Ill. S. Ct. Rs. 213(d) (eff. Jan. 1, 2018), 214(a) (eff. July 1, 2018). Among the items requested in
the document production request were the following:
“1. All documents relating to the delivery or supply of
petroleum products to the [Bridgeview] Fuel Station during the
3
Although entitled in part as a motion for sanctions, no specific sanctions against Gas
Depot were requested; rather, Bridgeview and Eid sought in part “any further relief that is just and
proper” in the relief section of their motion.
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No. 1-22-0490
relevant time period, including, but not limited to, bills of lading and
invoices.
***
2. All documents relating to payment for supply or delivery
[of] petroleum products to the [Bridgeview] Fuel Station during the
relevant time period, including, but not limited to, receipts and proof
of payment.
***
3. All documents and records relating to petroleum product
sales and deliveries to the [Bridgeview] Fuel Station during the
relevant time period.
***
8. All documents showing or relating to your cost and
wholesale pricing for all fuel sales made to the [Bridgeview] Fuel
Station.
***
9. All documents that show or evidence that you sold to the
[Bridgeview] Fuel Station wholesale fuel at $0.02 above cost during
the relevant time period.
***
14. All documents evidencing invoicing and proof of
payments for all motor fuel purchased by Gas Depot from Luke Oil
Co., Inc. and subsequently delivered to the [Bridgeview] Fuel
Station in 2014 and 2015.”
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No. 1-22-0490
In addition, the “relevant time period” was defined as, “from January 1, 2014, through the present.”
¶ 18 The Bridgeview defendants stated that, despite having “repeatedly” communicated with
Gas Depot’s counsel, Gas Depot had not produced any answers or documents responsive to their
requests. The motion indicated that Gas Depot’s responses were more than five months overdue
and that nearly three months had elapsed since Gas Depot’s counsel had stated that responses
would be forthcoming and additional time was needed to complete them.
¶ 19 On February 27, 2019, the trial court granted the Bridgeview defendants’ motion, directing
Gas Depot to “comply with all outstanding discovery and respond on or before March 13, 2019.”
The court did not impose any sanctions on Gas Depot.
¶ 20 On June 7, 2019, the Bridgeview defendants filed a motion for sanctions under Illinois
Supreme Court Rule 219 (Ill. S. Ct. R. 219 (eff. July 1, 2002)). 4 The Bridgeview defendants noted
that, although Gas Depot issued its answers and objection to the request to produce on March 13,
2019, no documents were produced. Counsel for the Bridgeview defendants contacted Gas
Depot’s counsel regarding the status of its document production. Eventually, Gas Depot produced
some—but not all—documents requested. The motion further indicated that Gas Depot did not
amend or supplement its responses to written discovery and that Gas Depot’s supplemental
document production “directly conflict[ed] with [Gas Depot’s] answers asserting that no such
documents exist.” The Bridgeview defendants added that, as of the date of the motion, Gas Depot
had not produced any additional documents or otherwise communicated as to the status of its
document production.
¶ 21 On June 21, 2019, the trial court issued an order granting the Bridgeview defendants’
motion in part. The court directed Gas Depot to comply with Eid’s “Rule 214 Request to Produce
4
Codefendants AZ, Swift, and Zahdan subsequently joined in this motion for sanctions.
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No. 1-22-0490
request numbers 1, 2, 3, 8, 9, and 14” no later than 4 p.m. on July 19, 2019. The court stated that
the scope of Gas Depot’s production would run from September 19, 2014, through February 28,
2016. The court further directed that, for any requested document not in Gas Depot’s “care,
custody, or control,” Gas Depot would have to produce an affidavit stating that it “does not possess
the requested documentation.” The court then continued the motion to July 25, 2019.
¶ 22 On September 30, 2019, the Bridgeview defendants filed a supplemental brief in support
of their motion for sanctions. 5 The Bridgeview defendants noted that Gas Depot provided its
verified “Revised and Supplemental Response” on July 23, 2019. Although this response
produced documents relating to Gas Depot’s fuel purchase and sale invoices from January 2015
through February 2016, there was no documentation relating to fuel purchases or sales in 2014.
The motion recounted that Gas Depot’s response included a verification page certifying that its
supplemental responses were “full and complete and no other documents responsive to the
foregoing requests for production are in Gas Depot’s care, custody, possession[,] or control.” The
Bridgeview defendants then recalled that, during the deposition of Gas Depot’s “corporate
representative” on July 24, 2019, he revealed that there were additional documents responsive to
the defendants’ production requests that were available but had not been produced. Attached as
an exhibit to the motion was a transcript of the deposition of Tanglis (Gas Depot’s chief financial
officer). The deposition transcript provides in part as follows:
“[DEFENSE ATTORNEY]: My question is: After
September 19, 2014, through the end of 2014, being December 31st,
5
The Bridgeview defendants subsequently filed a motion to amend their supplemental
brief to include as an exhibit the deposition of plaintiff’s president, George Nediyakalayil, and
plaintiff’s chief financial officer, Nick Tanglis. The trial court granted this motion.
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No. 1-22-0490
2014, is it your testimony that Gas Depot never sold a single gallon
of gas—
[PLAINTIFF’S ATTORNEY]: I’m going to object to the
whole question—
[DEFENSE ATTORNEY]: -- to Bridgeview Mart --
***
MR. TANGLIS: Repeat the question, and the answer is ‘no.’
From September, prior to January 1st, 2015, we had a
previous database from a different -- excuse me, not a different.
We had a previous database that was corrupt, and any
information of such would have to be requested by special requests
from our data processing provider at a cost that was not readily
available to us.
If such information for sales prior to 2015 is demanded, it
has to be placed via court of law, because it costs Gas Depot extra
money to obtain that information.
***
Q. When is that—when did that database become corrupted?
MR. TANGLIS: It was corrupted since the migration of an
existing system to a new system in 2014.
Q. So at some point in 2014 the records of Gas Depot for
the year 2014 were corrupted?
MR. TANGLIS: They were not exactly corrupted. There
was erroneous data from two systems about sales.
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No. 1-22-0490
So on January 1st, 2015, we went to a new database to
maintain accurate records.
So that information is still available, we are being told from
our data processor, but we have to pay for it to access that
information.
Q. And in that data that was corrupted, would any of that
data have been information relating to Gas Depot’s sales to
Bridgeview Mart?
MR. TANGLIS: It’s data for all sales to all customers of
Gas Depot.
Q. So it would have included Bridgeview Mart, Inc.,
correct?
MR. TANGLIS: If any sales were made, the answer is
‘yes.’ ”
Tanglis further added that Gas Depot did not have the database for sales readily available for sales
prior to 2015, but that if it were demanded, “we would have to go to our data processor and ask
them to access a previous version of data, which they only have.”
¶ 23 Gas Depot filed its response on October 28, 2019. Gas Depot stated that it “fully complied”
with the trial court’s order dated June 21, 2019. Gas Depot added that its July 19, 2019 production
was limited to calendar years 2015 and 2016 but not 2014 because it did not have “documents for
the sale of fuel to Bridgeview for calendar year 2014.” Gas Depot complained that defense counsel
“rushed to file” their supplemental brief but never sought “additional information or clarification”
regarding Tanglis’ testimony. Gas Depot argued, “It makes no sense and there is no reason for
Gas Depot to incur the additional expense of contracting with the data processor vendor for the
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No. 1-22-0490
simple reason that all defendants *** have all of the invoices from Gas Depot to Bridgeview for
all sales of petroleum from the *** Agreement start date in September 2014 through the last
purchase of fuel by Bridgeview from Gas Depot in January 2016.”
¶ 24 Gas Depot attached the affidavit of Tanglis to its response. In his affidavit, Tanglis stated
that he “[stood] by” the testimony transcribed on pages 181 through 183 from his deposition on
July 24, 2019. Tanglis also stated as follows:
“8. Because of data errors in Gas Depot’s off-site data base,
Gas Depot switch[ed] data base[s] and in effect started fresh in
January of 2015. As a result, Gas Depot does not have sales
information for 2014 in its database.
9. As stated in the deposition session, it is possible that Gas
Depot’s outside data processing vendor is in possession of an old
database of information which includes 2014.
10. However, even if the outside vendor has the old database
which was switched out because of erroneous date [sic], that
database would only [provide] electronic copies of invoices from
Gas Depot to Bridgeview for 2014 and no other documentation.
11. To learn if the outside data processing vendor has the
old data base and to obtain access to the old data base would require
Gas Depot to contract with the data processor and incur additional
expense.”
Tanglis further explained Gas Depot’s conclusion that “expending money to contract with the
outside data processing vendor to possibly obtain documents that the Bridgeview defendants
already had in their possession was neither prudent nor practical.”
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No. 1-22-0490
¶ 25 On November 4, 2019, the Bridgeview defendants filed their reply. They argued that,
regardless of the fact that the 2014 documents were not in Gas Depot’s immediate possession
(because they were stored on an off-site database with an undisclosed third party), the documents
were nonetheless still within Gas Depot’s control. The Bridgeview defendants recounted Gas
Depot’s statement in the response that “[Gas Depot] could obtain records from this database at any
time by contacting the third party *** but had chosen not to do so in order to avoid incurring costs
*** from the third[-]party database host.” The Bridgeview defendants added that the trial court
had found the documents relevant and discoverable in its order dated June 21, 2019. They further
explained that the records were relevant to establish whether Gas Depot performed its own
obligations under the Agreement, and that Gas Depot was “attempting to conflate” the sales
invoices to Bridgeview and Gas Depot’s purchase invoices of the petroleum products it
subsequently sold to Bridgeview.
¶ 26 On December 20, 2019, the trial court held a hearing on the motion for sanctions. During
the hearing, the following colloquy took place:
“THE COURT: I think the only way to resolve this, and I’m
going [to] cut to the chase on it, either your client produces those
2014 records pursuant to my order, or at the minimum a negative
inference can be made by the opposing party.
MR. TINAGLIA [defense counsel]: But I’m representing to
the Court if Gas Depot was put to the task of doing that, the only
thing that we’re going to get is—
THE COURT: Have you seen these records?
MR. TINAGLIA: No, sir.
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No. 1-22-0490
THE COURT: If you have not seen those records, I would
strongly suggest that you qualify your statement that you believe
that’s all, because we’ve all had clients who have told us absolutely
that there is nothing more. And sadly we have all had instances
where we’ve discovered that, [‘]Oh, I was mistaken. There is
something more.[’]
So as far as these records, despite whatever costs, and that’s
the only thing I’ve heard is, [‘]Oh, we have to spend some money,[’]
well, we’re spending money every day when people come to court.
It’s not a question of whether or not you’re spending money
discovering documents or you’re spending money to pay your
attorney to come to court. You’re spending money. It’s all fungible.
***
[THE COURT:] So your client has a choice. He could
either, they can, it can, they can either decide to produce whatever
these documents are based upon whatever manner they’re being
retained in, or not, but if he does not produce documents, I am going
to assert that a negative inference can be drawn from the plaintiff’s
failure to produce these documents.
***
THE COURT: So, therefore, I’ll give you an opportunity to
produce those documents. And if those documents are not produced
within some reasonable amount of time, and I don’t know what that
is, if it’s 30 days, and counsel wishes to renew his motion for a
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No. 1-22-0490
sanction in regard to those documents, I will entertain it. I think
that’s all I can say.”
The court subsequently asked the parties to provide draft orders on this motion by January 6, 2020.
¶ 27 On January 9, 2020, the trial court granted the Bridgeview defendants’ motion for
sanctions. The court recounted that it had issued two prior orders, in February and June 2019,
compelling plaintiff to produce the records of its 2014 fuel purchases. The court further noted
that, in plaintiff’s response to the motion for sanctions, it attached an affidavit indicating that,
although it had control over and could produce its 2014 fuel records, it chose not to do so “to avoid
incurring an undisclosed cost.” The court thus found plaintiff’s conduct “willful and dilatory,
impeding the discovery of relevant evidence, and in violation of Illinois Supreme Court Rule
219(c).” Among the sanctions the court ordered was that the Bridgeview defendants would be
“entitled to an inference in their favor” that plaintiff withheld certain records for the year 2014 and
that such records would tend to establish that it failed to comply with the Agreement’s “fuel
pricing” and “fuel branding” provisions. The court also sanctioned plaintiff by directing that all
defendants would be entitled to an inference in their favor that, in 2014, plaintiff “commingled
non-Citgo branded deliveries in with its motor fuel deliveries to Bridgeview.” Finally, the court
granted defendants leave to file their petition for attorney fees “associated with this motion.”
Defendants filed their petition for attorney fees, and the court subsequently awarded $9,512.50.
¶ 28 The Motion for Partial Summary Judgment
¶ 29 On November 12, 2019, the Bridgeview defendants filed a motion for partial summary
judgment on count II (breach of contract). The Bridgeview defendants argued, in essence, that the
Agreement was not in effect at the time of the alleged breach because both the Agreement’s
original terms as well as the subsequent written modification “clearly indicate[d] that the parties
did not intend to be bound to a ten-year supply agreement in the absence of a ten-year land lease
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No. 1-22-0490
for the premises.” In the alternative, the Bridgeview defendants argued that Gas Depot waived the
enforcement of the ten-year term when it agreed to the written modification and then “proceeded
under the supply agreement” knowing that there was no written lease in place. The Bridgeview
defendants additionally argued that the price term in the Agreement was illusory based upon Gas
Depot’s testimony that the “daily market rack price” term in the Agreement was not defined, which
rendered the Agreement unenforceable.
¶ 30 The Bridgeview defendants attached as an exhibit to their motion multiple exhibits
including the deposition testimony of Nediyakalayil (Gas Depot’s president), in which he admitted
that he had signed the written modification. The Bridgeview defendants also attached an affidavit
by Eid to their motion. This affidavit provided in relevant part as follows:
“13. On or about September 19, 2014, while acting as
president of Bridgeview Mart, I executed a Motor Fuel Sales
Petroleum Supply Agreement (“Supply Agreement”) with Gas
Depot, Inc. (“Gas Depot”). ***.
14. The Supply Agreement contained a reference to a ten-
year term, but this term was contingent upon a written lease term
being granted to Bridgeview Mart by Sandhu.
15. In order to clarify that the length term of the Supply
Agreement was dependent upon Bridgeview Mart receiving a
written land lease for the subject station, the handwritten
modification found on the last page of the Supply Agreement was
executed on September 25, 2014[,] by myself and ***
Nediyakalayil, the president of Gas Depot.
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No. 1-22-0490
16. On behalf of Bridgeview Mart, I sought to negotiate and
obtain a written land lease for subject station from Sandhu in order
to secure long term tenancy rights and obtain control of the fuel sales
at the subject station.
17. Sandhu never offered or granted a written lease term to
Bridgeview Mart, and the term of Bridgeview Mart’s lease remained
month-to-month throughout the time period that Bridgeview Mart
operated the Subject Station.
18. A foreclosure action was initiated against Sandhu and
the Subject Station during Bridgeview Mart’s tenancy.
19. Sometime subsequent to the initiation of the foreclosure
suit[,] the court appointed J2 Real Estate Group, LLC (“J2”) as
receiver for the Subject Station.
20. In December of 2014, Bridgeview Mart received a
notice from J2 informing it that its tenancy at the Subject Station
was being terminated effective January 20, 2015. ***.
21. Subsequent to receiving the notice of termination, I
negotiated an oral agreement with J2 in order to obtain tenancy for
Bridgeview Mart in exchange for monthly the [sic] fuel sale profits.
22. During the remainder of J2’s receivership of the Subject
Station, lease payments in the amount of the monthly fuel sale
profits were made to J2. ***.
23. J2’s receivership of the Subject Station ended in
February of 2016.
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No. 1-22-0490
24. In December of 2015, on behalf of Bridgeview Mart, I
provided notice that Bridgeview Mart would be ending its tenancy
at the end of February 2016 to both Sandhu and the Plaintiff in the
foreclosure action, [AZ].
25. I also provided oral notice to Gas Depot that Bridgeview
Mart’s tenancy at the Subject Station was terminating at the end of
February 2016.
26. Bridgeview Mart’s tenancy was terminated at the end of
February 2016, and Bridgeview Mart ceased operations at the
subject station at that time.”
Eid’s affidavit also contained a handwritten document dated April 8, 2013, purportedly setting
forth certain terms of the oral month-to-month lease. The handwritten exhibit stated that rent
would be “2500/month”; “Gas is for Harji [sic],” who would have responsibility to fix the gas
pumps or “any problem”; car wash proceeds would be “50/50 after expense”; and credit card
proceeds would go to Harji “with the expense.” The affidavit further included as an exhibit a copy
of the lease termination notice issued to Bridgeview from “J2 Real Estate Group, LLC,” indicating
that the lease would be terminated as of January 20, 2015.
¶ 31 In addition, a transcript of Eid’s deposition testimony was attached as an exhibit. Due to
the disputed characterization of Eid’s testimony in the case before us, we reproduce below a
substantial portion of this testimony.
“Q. [(PLAINTIFF’S ATTORNEY)] When did you first
lease space from Sandhu or Harjinder Singh?
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No. 1-22-0490
A. Actually I did not sign a lease with him. The lease I took
over with a friend of mine and his brother. So my friend signed the
lease and I partnered with him on this station.
Q. But you had no written lease with this gentleman?
A. Not with Sandhu. Until 2014 when Gas Depot came in
the picture and I signed the lease.
Q. You signed a lease for Gas Depot?
A. Yes.
Q. Is this lease --
A. Not a lease. A gas supply.
Q. A Fuel Supply Agreement?
A. Right.
***
Q. So back to Sandhu and Harjinder Singh. Did you have a
written lease to lease the space at 8301 South Harlem in
Bridgeview?
A. Yes.
Q. Did you have a Fuel Supply Agreement with them?
A. Yes.
Q. Subsequently you are saying that you signed one with
Gas Depot?
A. Yes. Gas Depot wanted the gas agreement. I asked him
to—actually I requested the gas supply agreement if I have a lease
with Sandhu. Prior to that, I did not sign a lease with Sandhu.
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No. 1-22-0490
Q. I see.
A. I signed based on the lease that he will give me.
Q. Okay. Did he ever give you that lease?
A. He never gave me that lease.
***
Q. Okay, all right. I believe you testified that you did not
have a written signed lease with Sandhu Petroleum, right?
A. Yes.
Q. I take it that also means you didn’t have a written signed
lease with Singh?
A. Yes. I don’t remember signing. He was supposed to
send me a lease when I signed the Gas Depot supply.
Q. Okay, but he never did?
A. He never did. At least I cannot recall. As far as I know,
I did not get anything from Sandhu.
Q. So sitting here today, you don’t remember ever getting a
written lease from Sandhu or Singh?
A. Right.
***
Q. You never had a lease with anybody on that property,
right?
A. I never did.
Q. And neither one of the companies ever had a lease, right?
A. Exactly.
20
No. 1-22-0490
Q. So there was never a lease [sic] whoever was operating
that convenient store—
A. No. There was a lease but I did not sign the lease.
Q. We have always been talking about a written lease that
was signed and delivered to you. There never was something like
that, right?
A. There was a lease but it wasn’t my signature. I was not
responsible for the lease.
Q. Are you talking about before?
A. Before, right.
Q. I’m not talking about when Bridgeview operated. When
AJ Gas and Minimart operated. When you worked for those
companies, there was never a written lease, right?
***.
[A.] I don’t know.
***.
Q. Now you don’t know?
A. You are throwing all these questions on me. I cannot
even follow-up. There was a lease for Bridgeview. There was a
lease but I never personally signed the lease.
Q. Who signed it?
A. Samir [Khatib].
Q. Samir owned Bridgeview?
A. He signed the lease but I owned the corporation.
21
No. 1-22-0490
Q. Samir signed a lease when he was operating the gas
station, right? Is that what you are saying?
A. No. I was operating the gas station from day one. But it
was his lease. He had the lease and I had the business.
Q. Now, I want you to consider your testimony earlier on.
Did Bridgeview Mart Inc[.] ever have a written signed lease for
8301 South Harlem?
A. Maybe there was a lease.
Q. So before you said no and now you are saying maybe?
A. I mean, because I did not sign the lease.
Q. I’m not asking you who signed it. I’m asking you if there
was a lease?
A. Yes, there was a lease.
Q. There was a Bridgeview Mart Inc[.] lease?
A. Yes.
Q. But you didn’t bring it here today?
A. No. I didn’t know.
MR. RODRIGUEZ [DEFENSE ATTORNEY]: He said he
didn’t sign it.
BY MR. TINAGLIA:
Q. When were you first aware—in spite of your testimony
throughout this deposition that there was no written lease, when
were you first aware that there was a lease?
A. I mean, there was a lease but I did not sign the lease.
22
No. 1-22-0490
Q. Who was the owner? Who was the landlord?
A. Sandhu.
Q. Who was the tenant?
A. Bridgeview.
Q. Well, I want to know when this was signed and why you
changed your testimony?
A. I’m not changing.
***.
[A.] Yes, I’m not changing it. It’s just the way you phrase
the question.
[Q.] Well, no and maybe are two different answers.
[A.] Yes. There was a lease but I did not sign the lease. The
only thing I signed was the gas supply based on a future lease from
Sandhu which he never presented to me.
[Q.] You are saying two different things.
[A.] No, it’s one thing.
***.
Q. So you said you signed the Gas Depot Supply
Agreement?
A. Yes.
Q. Based on a future lease that you never received?
A. Right.
Q. But that aside, you are saying before that there was a
lease?
23
No. 1-22-0490
A. There was a lease, yes, but I did not sign that lease.”
In response to further questioning, Eid stated that Samir Khatib signed the lease, but Eid did not
know whether Khatib signed the lease in Khatib’s own name or on behalf of a company.
¶ 32 Gas Depot filed its response on December 31, 2019. Gas Depot argued that the handwritten
amendment did not modify the Agreement because the amendment referred to a “current lease”
and not a “lease to be obtained.” Gas Depot added that evidence as to the existence of a written
lease was “all over the board” based upon Eid’s deposition testimony. Gas Depot stated that,
before signing the Agreement, Eid made an oral representation to Nediyakalayil that Eid had a
five-year written lease. Gas Depot then argued that this was consistent with the term “current
lease” in the handwritten amendment to the Agreement. With respect to the Bridgeview
defendants’ alternative argument that it waived the ten-year provision, Gas Depot explained that
paragraph 18 of the Agreement expressly provided that Gas Depot’s failure to exercise any rights
under the Agreement would not constitute a waiver of them. Finally, Gas Depot countered that
the price terms of the Agreement were not illusory because the Agreement stated that the price
would be Gas Depot’s then-current pricing of “ ‘$0.01 per gallon over the daily market rack price,
plus freight, and all applicable taxes.’ ”
¶ 33 Attached to Gas Depot’s response was the affidavit of Nediyakalayil. Nediyakalayil stated
that, prior to signing the Agreement, Eid represented to him that Eid had a five-year written lease
agreement for the gas station with “Sandhu Petroleum.” Nediyakalayil said that he agreed to Eid’s
handwritten amendment and “signed off on the amendment on September 25, 2014.”
Nediyakalayil added that he believed the term “current lease” in the Agreement referred to a
written five-year lease for the Bridgeview gas station that was already in existence and in Eid’s
possession. Finally, Nediyakalayil stated that he did not understand that term to refer to a written
lease Eid had to obtain or an oral agreement for a month-to-month tenancy.
24
No. 1-22-0490
¶ 34 On January 28, 2020, the Bridgeview defendants filed their reply. The Bridgeview
defendants argued that Nediyakalayil’s affidavit contradicted his prior sworn deposition testimony
in which (1) he stated that he could not recall whether he had asked Eid for Bridgeview Mart’s
lease and (2) his testimony contained no reference to a representation from Eid that a five-year
lease existed. The reply further pointed out that, even if this matter were raised before the summary
judgment stage, it would not create a material issue of fact because this purported representation
took place before plaintiff entered into the Agreement. The Bridgeview defendants further argued
that plaintiff’s contention that Eid’s deposition testimony was contradictory improperly relied
upon “cherry-picked quotes” from Eid’s deposition. According to the Bridgeview defendants,
Eid’s deposition testimony, when viewed in context, was “clear and consistent.” Finally, the reply
included excerpts of Eid’s deposition in which he stated that there had been a lease for the station,
but he did not sign the lease.
¶ 35 On June 2, 2021, the trial court denied the motion for partial summary judgment. The court
found that there was a genuine issue of material fact based upon, inter alia, Eid’s deposition
testimony as to the existence of a written lease for the South Harlem property.
¶ 36 On July 2, 2021, the Bridgeview defendants filed a motion to reconsider the trial court’s
denial of their motion for partial summary judgment as to count II. The Bridgeview defendants
explained that the Agreement contained a merger clause, which confirmed that the Agreement was
“an integrated contract and no other agreements or understandings apply other than what exists in
the four corners” of the Agreement. The motion further observed that Gas Depot’s president
acknowledged at his deposition that he signed the written modification. The Bridgeview
defendants added that Gas Depot’s counsel’s failure to understand the nature of the lease
agreement—namely, that there was both a handwritten agreement regarding the amount of the rent
payments and an oral agreement regarding Bridgeview Mart’s continued tenancy—created
25
No. 1-22-0490
“confusion” during Eid’s deposition. With respect to Gas Depot’s assertion that Eid represented
to Nediyakalayil that Eid had a five-year lease, the Bridgeview defendants further argued that this
purported representation would not rebut or call into question evidence regarding the “termination”
of the lease. The Bridgeview defendants stated that, at most, this allegation might support a tort
claim but not one for breach of contract. In its response, Gas Depot argued for the first time that
summary judgment was unwarranted because the term “lease” in the Agreement was not defined
and therefore ambiguous, precluding summary judgment.
¶ 37 On October 21, 2021, the trial court granted the Bridgeview defendants’ motion to
reconsider and entered summary judgment on count II in favor of the Bridgeview defendants. On
March 8, 2022, the parties entered into a stipulation noting that the following counts of the third
amended complaint remained pending as of the date of the stipulation: counts III, V, VI, XIV,
XVI, XX, and XXI. The parties further stipulated that counts III (alleging intentional interference
with contract), V (aiding and abetting), XX (successor and alter ego), and XXI (conspiracy to
defraud) were “all dependent upon the existence of an enforceable contract.” Finally, the parties
stipulated to the following: “the parties agree that an order shall be entered by the [c]ourt
dismissing [c]ounts III, V, VI, XIV, XVI, XX and XXI[,] and said order shall state that it is a final
and appealable order with no reason to delay enforcement or appeal.
¶ 38 On March 11, 2022, the trial court entered an order dismissing counts III, V, VI, XIV, XVI,
XX, and XXI of the third amended complaint pursuant to the stipulation and further found that its
order was a “final and appealable order with no reason to delay enforcement or appeal[,] all claims
in the case having been determined.” This timely appeal follows.
¶ 39 ANALYSIS
¶ 40 At the outset, defendants contend that Gas Depot’s statement of facts in its brief is “a
distortion of the record and merits dismissal of the appeal.” Specifically, defendants complain that
26
No. 1-22-0490
Gas Depot’s omissions include “repeated citations” in its statement of facts to the original, but not
modified, Agreement. Defendants further argue that Gas Depot’s statement of facts “fails to
acknowledge the trial court’s discovery orders” that preceded defendants’ motion for discovery
sanctions, including the order dated February 27, 2019.
¶ 41 We reject defendants’ request for multiple reasons. First, the proper procedure is to file a
motion to strike with this court upon service of the offending brief, rather than lie in wait and
improperly bury the request in the body of the response. See John Crane Inc. v. Admiral Insurance
Co., 391 Ill. App. 3d 693, 698 (2009).
¶ 42 Furthermore, striking Gas Depot’s brief and dismissing the appeal would be inappropriate.
Defendants correctly note that Supreme Court Rule 341(h)(6) (Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1,
2020)) requires that an appellant’s statement of facts must contain facts necessary to an
understanding of the case, stated accurately and fairly. We further agree that supreme court rules
are not mere suggestions; rather, they are rules that must be followed. In re Marriage of Hluska,
2011 IL App (1st) 092636, ¶ 57. Although this court has the inherent authority to dismiss the
appeal if an appellant’s brief fails to comply with these rules (Epstein v. Galuska, 362 Ill. App. 3d
36, 42 (2005)), striking a brief for failure to comply with supreme court rules is a harsh sanction
(In re Detention of Powell, 217 Ill. 2d 123, 132 (2005)). Here, Gas Depot’s brief sufficiently
references both the modified Agreement as well as the trial court’s order of February 27, 2019.
Since we are able to understand the factual background of this case and dispose of the issues raised
here, striking Gas Depot’s brief for its purported deficiencies is unduly harsh and thus
unwarranted. Accordingly, we reject defendants’ request for this additional reason. We now
consider the merits of this appeal, turning first to Gas Depot’s claim that the trial court erred in
granting the motion for partial summary judgment in favor of the Bridgeview defendants.
27
No. 1-22-0490
¶ 43 The Motion for Partial Summary Judgment
¶ 44 Gas Depot contends that the trial court erroneously granted the Bridgeview defendants’
motion for partial summary judgment (following the court’s granting of their motion to
reconsider). 6 Specifically, Gas Depot argues in part that there was a genuine issue of material fact
regarding whether the contract was still in force at the time of the alleged breach. Gas Depot notes
that its president, Nediyakalayil, stated in his affidavit (attached to its response to the motion for
partial summary judgment) that, before executing the Agreement, Eid had represented to him that
Eid had a five-year written lease for the premises. Gas Depot further points out that Eid’s
deposition testimony indicated that there was a written lease on the premises. Gas Depot further
argues that it did not waive the enforcement of the Agreement and that the price terms in the
Agreement are not illusory. Finally, Gas Depot asks that we also vacate the dismissal of counts
III, V, XX, and XXI because those counts were voluntarily dismissed as a result of the purportedly
erroneous entry of summary judgment against it on count II.
¶ 45 Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
2018). To determine whether there is a genuine issue of material fact, we construe the pleadings,
depositions, admissions, and affidavits strictly against the moving party and liberally in favor of
the opponent. MEP Construction, LLC v. Truco MP, LLC, 2019 IL App (1st) 180539, ¶ 12 (citing
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 131-32 (1992)). If
reasonable people would draw divergent inferences from undisputed facts, summary judgment is
inappropriate. Id. (citing Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)). It should be noted,
6
Gas Depot does not challenge the basis for the trial court’s granting of the motion to
reconsider.
28
No. 1-22-0490
however, that “[s]tatements in an affidavit which are based on information and belief or which are
unsupported conclusions, opinions, or speculation are insufficient to raise a genuine issue of
material fact.” (Alteration in the original.) Id. ¶ 13 (quoting Outboard Marine, 154 Ill. 2d at 132).
Nonetheless, it is well established that “facts contained in an affidavit in support of a motion for
summary judgment which are not contradicted by counteraffidavit are admitted and must be taken
as true for purposes of the motion.” Purtill v. Hess, 111 Ill. 2d 229, 241 (1986) (citing
Heidelberger v. Jewel Cos., 57 Ill. 2d 87, 92-93 (1974)).
¶ 46 The essential elements of a breach of contract are: (i) the existence of a valid and
enforceable contract, (ii) performance by the plaintiff, (iii) breach of the contract by the defendant,
and (iv) resultant injury to the plaintiff. Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 27. The
terms of an agreement, if unambiguous, should generally be enforced as they appear, and those
terms will control the rights of the parties. Id. (citing Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d
460, 479 (1998)). Any ambiguity in a contract term, however, must be resolved against the drafter
of the disputed provision. Id.
¶ 47 Plaintiff’s contention of error concerns whether the Agreement was in existence at the time
of the alleged breach, which in turn is based upon the interpretation of a contract. Principles of
contract interpretation are well settled. Our primary duty in construing a contract is to give effect
to the parties’ intent at the time they entered into the agreement, as shown by the language used in
the contract. In re Doyle, 144 Ill. 2d 451 (1991). Illinois courts follow the “four corners rule” for
contract interpretation, which requires that we initially look to the language of the agreement. Air
Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999).
¶ 48 If the language of the contract is facially unambiguous, then the trial court interprets the
contract as a matter of law without the use of parol evidence. Id. By contrast, if the agreement is
ambiguous or reasonably capable of more than one interpretation, the court may consider parol
29
No. 1-22-0490
evidence to ascertain the parties’ intent. Id. at 462-63; but see Camp v. Hollis, 332 Ill. App. 60,
68 (1947) (noting that it is a well-settled rule that, if a contract is susceptible of two constructions,
the one that is “rational and probable” must be preferred). Nonetheless, a contractual term is not
ambiguous simply because the parties disagree on its meaning. Central Illinois Light Co. v. Home
Insurance Co., 213 Ill. 2d 141, 153 (2004).
¶ 49 Of course, “[p]arties to a contract are not locked into its terms forever.” Schwinder v.
Austin Bank of Chicago, 348 Ill. App. 3d 461, 468 (2004). Accordingly, parties to an existing
contract may, by mutual assent, modify the contract provided that the modification does not violate
law or public policy. Id. A modification of a contract is a change in one or more respects that
“introduces new elements into the details of the contract, or cancels some of them, but leaves the
general purpose and effect undisturbed.” Id. A modified contract containing a term that is
inconsistent with a term of an earlier contract between the same parties is interpreted as including
an agreement to rescind the earlier contract’s inconsistent term. Id. The modified contract creates
a new single contract consisting of (1) the earlier contract’s terms that the parties have not agreed
to change, and (2) the new terms on which they have agreed. Id. Finally, when a contract is
modified by a subsequent agreement, any lawsuit to enforce the agreement must be brought on the
modified agreement and not on the original agreement. Id.
¶ 50 We review a trial court’s entry of summary judgment de novo. Outboard Marine, 154 Ill.
2d at 102. In addition, whether there is an ambiguity in a contract is a question of law subject to
de novo review. Cincinnati Insurance Co. v. Gateway Construction Co., 372 Ill. App. 3d 148, 151
(2007) (citing Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407,
416 (2006)). Moreover, this court reviews the judgment, not the reasoning, of the trial court, and
we may affirm on any grounds in the record, regardless of whether the trial court relied on those
30
No. 1-22-0490
grounds or whether the trial court’s reasoning was correct. Leonardi v. Loyola University of
Chicago, 168 Ill. 2d 83, 97 (1995).
¶ 51 In this case, the trial court did not err in granting summary judgment in favor of the
Bridgeview defendants on count II. The Agreement states that it comprised “the entire agreement
of the parties” and that “all other and prior agreements and understandings” were merged into the
Agreement and thus extinguished. The Agreement further provides that any modifications could
only be made in writing and executed by both parties. Finally, the parties freely admitted that they
modified the Agreement with the handwritten statement that, in the event the lease for the gas
station was not renewed or extended for any reason, the Agreement would be cancelled on the
same date as the non-renewal. The parties further acknowledged their respective signatures, dated
September 25, 2014, agreeing to the handwritten amendment. Finally, Eid’s affidavit included an
exhibit consisting of a notice that the lease for the gas station was terminated effective January 20,
2015. Gas Depot did not provide a counteraffidavit or otherwise challenge this fact, so the trial
court was obligated to take that notice as true for purposes of the summary judgment motion. See
Purtill, 111 Ill. 2d at 241. Therefore, on these facts, the trial court correctly found that the written
Agreement—which comprised the entire agreement between the parties—was cancelled upon the
termination of the lease for the gas station. Although Gas Depot argues that its president was
purportedly led to believe that Eid had a five-year written lease, that does not change the unrebutted
fact that the nonrenewal of the lease for the gas station—regardless of whether the lease term was
month-to-month, 5 years, or 500 years—would operate to end the obligations under the
Agreement. Moreover, the Agreement contains an integration clause, which states in relevant part
that “all other and prior *** understandings” are merged into the Agreement and “extinguished
hereby.” Therefore, since Gas Depot’s president’s prior understanding that Eid had a five-year
lease was not incorporated into the Agreement, it is extinguished. Gas Depot’s claim thus fails.
31
No. 1-22-0490
¶ 52 Gas Depot, nonetheless, maintains that the terms “Land Lease” and “current lease” are
ambiguous, thereby precluding summary judgment. It relies heavily upon Shields Pork Plus, Inc.
v. Swiss Valley Ag Service, 329 Ill. App. 3d 305 (2002), in support of this contention. Gas Depot’s
reliance, however, is misplaced. There, the plaintiff entered into a contract for the sale of “feeder
pigs ‘of a Newsham line’ ” to the defendant. Id. at 308. The plaintiff claimed the defendant
breached the contract when it did not accept a portion of a delivery under the contract, and the
defendant counterclaimed that the plaintiff breached the contract “when it abandoned all efforts to
convert its pig herd to 100% Newsham genetics.” Id. On appeal, this court agreed with the trial
court that the contract was ambiguous, both with respect to the term “progeny” (which could
involve descendants of (1) only a Newsham male, (2) only a Newsham female, or (3) both) and
the term “Newsham line” (which was the shortened name for a company that sells genetic material
for animal husbandry, raising the question of whether the parties intended that the animals to be
bred must be Newsham or, rather, that the material used to breed merely “be from the Newsham
company”). Id. at 311-12. Here, by contrast, the terms “Land Lease” and “current lease”
unambiguously refer to the lease for the gas station. Gas Depot points to nothing in the record
(nor do we find anything) that would indicate that there was some other lease that would be
connected to a contract to purchase gasoline for a gas station. Shields is thus unavailing.
¶ 53 Since we have held that the trial court properly granted summary judgment based upon the
written modification in the Agreement, we need not consider Gas Depot’s alternative arguments
that it did not waive enforcement of the Agreement and that the price term was not illusory.
Finally, since we have held that the trial court did not erroneously grant summary judgment in
favor of defendants, we reject plaintiff’s final contention on appeal that we must vacate the
dismissal of counts III, V, XX, and XXI. Plaintiff’s claim of error on this point is thus unavailing.
32
No. 1-22-0490
¶ 54 The Motion for Sanctions
¶ 55 Gas Depot also contends that the trial court erred in granting defendants’ motion for
sanctions pursuant to Rule 219. Specifically, Gas Depot argues that the factors involved in
determining whether to impose sanctions “weighed heavily against” sanctioning it without first
allowing it an opportunity to produce the invoices underlying the sanctions order. Gas Depot
concludes that its eventual production of the documents should have caused the trial court to vacate
its sanctions order. In the alternative, Gas Depot contends that, should we hold that the “entirety”
of the trial court’s sanctions order was not an abuse of discretion, the trial court nonetheless abused
its discretion in that portion of the order “granting negative inferences against Gas Depot.” We
first examine the propriety of the trial court’s awarding defendants their attorney fees associated
with their motion for sanctions.
¶ 56 Illinois Supreme Court Rule 219(c) provides in relevant part as follows:
“If a party *** unreasonably fails to comply with any provision of
part E of article II of the rules of this court (Discovery, Requests for
Admission, and Pretrial Procedure) or fails to comply with any order
entered under these rules, the court *** may enter, in addition to
remedies elsewhere specifically provided, such orders as are just,
including, among others, the following:
***
(iii) That the offending party be debarred from maintaining
any particular claim, counterclaim, third-party complaint, or defense
relating to that issue.” Ill. S. Ct. R. 219(c) (eff. July 1, 2002).
In addition, the rule provides that the trial court may also impose an appropriate sanction, which
may include an order to pay the other party’s reasonable expenses incurred due to the misconduct,
33
No. 1-22-0490
including reasonable attorney fees. Id. The rule, however, requires that, when a sanction is
imposed, the trial court must “set forth with specificity the reasons and basis of any sanction so
imposed” either in the judgment order or a separate written order. Id.
¶ 57 “The purpose of imposing sanctions is to coerce compliance with court rules and orders,
not to punish the dilatory party.” Sander v. Dow Chemical Co., 166 Ill. 2d 48, 68 (1995); see also
County Line Nurseries & Landscaping, Inc., ex rel. Bankruptcy Trustee v. Glencoe Park District,
2015 IL App (1st) 143776, ¶ 42. Furthermore, in the event of a “willful violation of a court order,”
the penalty imposed should be proportionate to the seriousness of the violation. Id. The factors a
trial court should use in determining what sanction, if any, to apply are: (1) the surprise to the
adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of
the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the
timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of
the party offering the testimony or evidence. Shimanovsky v. General Motors Corp., 181 Ill. 2d
112, 124 (1998). No single factor, however, is determinative. Id.
¶ 58 We will not disturb a court’s decision to impose Rule 219(c) sanctions unless the record
establishes “a clear abuse of discretion.” Id. at 123. A court abuses its discretion only where its
ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the
court’s view. Blum v. Koster, 235 Ill. 2d 21, 36 (2009); Maniscalco v. Porte Brown, LLC, 2018
IL App (1st) 180716, ¶ 29.
¶ 59 Here, Gas Depot argues that, although defendants established the fourth and fifth factors—
namely, diligence in seeking discovery and timeliness in objecting to the testimony or evidence,
respectively—the remaining four factors weigh in its favor, and therefore sanctions were
unwarranted. Defendants respond that Gas Depot has forfeited any claim regarding unfair
prejudice, bad faith, punishment, and negative inferences because they comprise “bare
34
No. 1-22-0490
contentions” devoid of citation to relevant authority or the record on appeal to support those
contentions. Forfeiture aside, Gas Depot’s claim is meritless.
¶ 60 The record in this court reveals that, although requested in discovery, Gas Depot failed to
fully produce records in its possession and control related to its fuel pricing and fuel deliveries to
Bridgeview. The trial court ordered Gas Depot to produce those records on two separate occasions
(and in response to defendants’ motions to compel): in February 2019 and June 2019. Although
it failed to produce those records, Gas Depot nevertheless submitted an affidavit of completeness
attesting that all records responsive to the discovery requests that were in its “care, custody,
possession[,] or control” had been produced. This statement, however, was false. Gas Depot’s
chief financial officer, Tanglis, testified at his deposition that there were additional documents
responsive to defendants’ request for production, but they were stored with a third party and Gas
Depot did not want to incur some undisclosed cost to obtain them. Gas Depot’s rationale for
submitting a false statement to the court regarding its compliance with discovery—i.e., solely to
avoid some unspecified cost—weighs heavily against it with respect to the last factor (good faith).
In addition, until the deposition, which took place after the motion for sanctions was filed,
defendants were unaware of Gas Depot’s improper act, which establishes the first factor (surprise
to the adverse party). Defendants sought the improperly withheld documents to support its
counterclaim that Gas Depot had breached the fuel pricing, branding, and other provisions of the
Agreement, which further establishes the second and third factors (the prejudicial effect and nature
of the proffered evidence). On these facts, we cannot hold that the trial court’s imposition of
sanctions by awarding defendants their attorney fees related to their motion for sanctions was
arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the court’s view.
As such, the court did not abuse its discretion in awarding attorney fees in favor of defendants.
Shimanovsky, 181 Ill. 2d at 124.
35
No. 1-22-0490
¶ 61 Moreover, our holding is not altered by Gas Depot’s citation to Dyduch v. Crystal Green
Corp., 221 Ill. App. 3d 474, 481 (1991). In that case, the plaintiff homeowner sued the defendant
lawn-care business, alleging that the defendant breached their agreement to provide law
maintenance and negligently failed to diagnose and treat insect infestations. Id. at 475. The
defendant alleged that the plaintiff had willfully withheld the name of a witness who had inspected
plaintiff’s lawn. Id. at 479. In his report to the plaintiff, the witness opined that the plaintiff’s
lawn problem was “ ‘drought injury, possibly combined with insect damage.’ ” Id. The defendant
coincidentally retained that same individual as its own expert witness shortly before trial. Id. The
witness was unaware of the plaintiff’s identity, and defense counsel had only presented the witness
with a hypothetical set of facts. Id. The witness, however, became aware of the plaintiff’s identity
when he appeared in court on the first day of trial. Id. The defendant sought sanctions against the
plaintiff for the failure to disclose either the witness’s identity or report. Id. The plaintiff’s
response to the court was that the plaintiff was aware of the witness’s report but “ ‘did not want to
produce it.’ ” Id. at 480. The trial court granted the motion for sanctions and awarded the
defendant “all of its costs in the litigation and one-half of its attorney fees.” Id. On appeal, this
court held that costs and fees awarded did not “relate to the misconduct that occurred” and
concluded that the award was imposed strictly as a punishment. Id. at 481. We thus vacated the
award and remanded the cause for a determination of what costs and fees were “directly related to
and incurred as a direct result of [the] plaintiff’s misconduct.” Id.
¶ 62 Here, by contrast, the trial court’s order granted defendants leave to file their petition for
attorney fees solely associated with their motion for sanctions. It did not, as in Dyduch, award
defendants their entire costs and one-half of their attorney fees for the entire litigation. Gas
Depot’s reliance upon Dyduch is therefore misplaced.
36
No. 1-22-0490
¶ 63 Since we have affirmed the trial court’s granting of summary judgment on count II in favor
of the Bridgeview defendants and rejected Gas Depot’s ancillary claim that we should then vacate
the stipulated dismissal of the remaining counts (counts III, V, XX, and XXI), no claims remain
pending before the trial court. As such, we need not consider Gas Depot’s claim in the alternative,
namely, whether the trial court abused its discretion in imposing as a sanction the granting of an
inference in favor of the Bridgeview defendants regarding whether the records wrongfully
withheld “tend[ed] to establish that Gas Depot failed to comply with” various provisions in the
Agreement. Gas Depot’s final claim of error is therefore meritless.
¶ 64 CONCLUSION
¶ 65 The trial court did not err in granting the Bridgeview defendants’ motion for partial
summary judgment on count II, which obviates plaintiff’s claim that we must vacate the dismissal
of counts III, V, XX, and XXI. Finally, the trial court did not abuse its discretion in imposing
sanctions on plaintiff for various discovery violations. Accordingly, we affirm the judgment of
the Circuit Court of Cook County.
¶ 66 Affirmed.
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