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FOURTH DIVISION
 June 12, 2003

1-02-1006

JUSTICE HARTMAN delivered the opinion of the court:

A collection action was brought by plaintiff law firm, Barack FerrazzanoKirschbaum Perlman and Nagelberg (plaintiff), seeking to recover attorney fees andcosts for services it rendered on behalf of defendants, Robert and Kevin Loffredi(defendants), in a National Association of Securities Dealers, Inc. (NASD)arbitration proceeding. The circuit court granted summary judgment in plaintiff'sfavor based on the doctrine of judicial estoppel. Defendants appeal on the groundthat the court erred in applying judicial estoppel to the circumstances of thiscase. The facts set forth below emanate from the pleadings and affidavits filedin the circuit court proceedings.⁽¹⁾

Defendants were representatives of a broker registered with NASD. On July28, 1999, Robert Loffredi retained plaintiff to provide legal services andrepresent defendants in an arbitration action before the NASD against James Dreherand Dreher & Associates (collectively Dreher) on the ground that Dreher terminateddefendants' registration status as representatives with the NASD and conspired tosteal defendants' customers from them, accounts valued at more than $6 million. Because of their perceived loss of customers, defendants asked plaintiff to seekemergency injunctive relief and monetary damages. Plaintiff alleged thatdefendants agreed to pay plaintiff's standard legal fees at an hourly rate to becharged monthly, as well as expenses. According to defendants' pleadings,however, Ray Rezner, one of plaintiff's partners, estimated for Robert that thefees and expenses to pursue the action would total between $25,000 and $30,000. Defendants denied that plaintiff disclosed to Robert plaintiff's hourly rates.

Plaintiff immediately began investigating defendants' claim by reviewingdocuments and interviewing witnesses. On August 3, 1999, plaintiff filed astatement of claim on behalf of defendants initiating an NASD arbitration actionagainst Dreher and two former employees of Raymond Financial Group, Inc., acorporation in which Robert is sole shareholder. Plaintiff also moved ondefendants' behalf for an immediate interim injunction, which it pursued with theNASD. Plaintiff drafted and filed a pre-hearing memorandum and prepared for theinjunction hearing. At an evidentiary hearing on defendants' motion, which washeld before an NASD arbitration panel, plaintiff examined and cross-examinedvarious witnesses.

The NASD arbitration panel granted defendants an interim injunction. Defendants admittedly were "ecstatic" with the injunction because it requiredDreher to transfer immediately Loffredi's customers to their new broker-dealer. Thereafter, plaintiff sent defendants separate bills, copies of which arecontained in an exhibit attached to the complaint. Plaintiff's bills are datedAugust 26, 1999, September 21, 1999, October 21, 1999, November 19, 1999, December21, 1999, January 25, 2000, February 25, 2000, and March 23, 2000. The bill sentin August 1999 reflected the sum of $16,870.05 in charges; the September 1999 billfor attorney fees showed a sum due of $83,999. Nothing in the record revealsdefendants disputing or complaining about the sums showing as being owed and dueafter the bills were received, nor challenging the bills after their receipt ashaving exceeded the alleged estimate. No credits and payments were shown to havebeen made by defendants. Despite non-payment, plaintiff continued to representdefendants in settlement negotiations to resolve the remaining claims in the NASDproceeding. In May 2000, plaintiff withdrew as defendants' counsel for nonpaymentof plaintiff's fees.

Defendants thereafter retained the law firm of Schuyler Roche & Swirner,P.C. (Schuyler) to appear on their behalf. The NASD arbitration continued afterplaintiff's withdrawal, primarily to adjudicate defendants' claims for damages.

On June 12, 2000, plaintiff filed their initial complaint in the circuitcourt of Cook County to recover attorney fees and expenses totaling $124,628.36,later amending it to allege two counts each against Robert for breach of contractand quantum meruit. Attached to the amended complaint was the exhibit consistingof plaintiff's periodic billing for legal services rendered by plaintiff todefendants, plus costs and advances. The exhibits attached to both the originaland the amended complaint detailed specific dates, hours, activities andidentities of the attorneys and clients involved in the billing of fees. Plaintiff also alleged two counts claiming quantum meruit against Kevin.

Defendants filed their answer and affirmative defenses to plaintiff'samended complaint, denying the allegation that they agreed to pay plaintiff'sstandard hourly rate for its services. Defendants admitted receiving plaintiff'sfee statements for services rendered and admitted never paying the bills. In anaffirmative defense, defendants alleged that plaintiff may recover only thereasonable value of its services and that the legal fees sought by plaintiff wereunreasonable in their totality. Defendants also asserted that plaintiff failedto disclose its hourly fee rates within a reasonable time after commencing itsrepresentation, citing Rule 1.5(b) of the Illinois Rules of Professional Conduct(134 Ill. 2d R. 1.5(b)). In addition, defendants denied that they owed plaintiffthe amount sought because plaintiff failed to disclose in a timely manner that thefees and expenses incurred had exceeded greatly the original estimate of $25,000to $30,000 for prosecution of the NASD case. Defendants generally denied thatthey never objected to any of the statements for legal services and expenses sentthem; however, they made no claim that they objected to the fee amounts for havingbeen redundant, unnecessary or inaccurate.

While the state court proceedings were pending, through Schuyler,defendants' other attorneys, defendants petitioned for attorney fees and costs inthe NASD arbitration under the Uniform Deceptive Trade Practices Act (Act) (815ILCS 510/1 et seq. (West 2000)). Defendants sought from Dreher reimbursement ofall fees and expenses for both plaintiff and Schuyler which, they asserted,totaled $157,239.90. Defendants' NASD petition made no claim that plaintiff'sfees and expenses did not represent the services rendered and expenses incurred,or that they were unnecessary, that they were redundant or otherwise inaccurateor were unreasonable in whole or in part. Paragraphs 7 and 8 of defendants' NASDfee petition are of particular importance, stating:

"7. Claimants [defendants here] were initiallyrepresented by the firm of Barack Ferrazzano KirshbaumPerlman and Nagelberg ("BFKPN") [plaintiff here]. BFKPNprepared and filed the Statement of Claim and relatedpapers in July and August 1999 and represented claimantsat the interim injunctive hearing on August 24 and 25,1999. BFKPN continued in its representation of claimantsthrough May 10, 2000, at which time BFKPN withdrew.

8. Ray G. Rezner was the attorney principallyresponsible for claimants' representation by BFKPN. Attached as Exhibit A hereto are the Affidavit of Ray G.Rezner and the bills submitted by BFKPN to claimants inconnection with this arbitration. These bills show thatthe total attorney's fees incurred by claimants for workperformed by BFKPN in connection with this arbitrationare $115,830.00. The costs were $8,639.36. Accordingly,total attorney's fees and costs for work performed byBFKPN are $124,469.36." (Emphasis added.)

Further, and notwithstanding their denial in the state court proceedingsthat they agreed to pay plaintiff's standard hourly rates and expenses, and theiraffirmative defense, defendants attached Rezner's affidavit to their NASD feepetition, which stated:

"6. Bills to claimants were prepared on the basisof the normal hourly rates charged by BFKPN for eachattorney or paralegal who worked on this matter.

7. During the time that BFKPN representedclaimants, my standard hourly rate was $390 per hourbefore October 1, 1999, and $420 per hour after October1, 1999. The hourly rates of other billing professionalswho have worked on this matter are as follows: W. ScottPorterfield - $300/hour before October 1, 1999, and$325/hour after October 1, 1999; Gayle Fisher - $195/hourbefore October 1, 1999, and $230/hour after October 1,1999; Heather Green - $120/hour."

Attached to Rezner's affidavit were the same itemized bills detailing plaintiff'sfees and expenses that defendants admitted they received in their pleadings.

On July 30, 2001, the NASD arbitration panel filed its written decisionregarding defendants' case. No damages were awarded to defendants; however, thefindings stated, "[i]n deciding to award attorneys' fees, the panel considered thearguments of the parties, as well as the pleadings[,] briefs and caselaw filed ontheir behalf, and determined that authority existed for an award of attorney's[sic] fees to [defendants]. [Dreher is] jointly and severally liable for andshall pay to the [defendants] the following attorneys' fees in the amount of$70,000.00." In addition, the panel stated, "[e]xcept as specified otherwiseherein, each party shall bear its own costs and attorney's [sic] fees." (Emphasisadded.)

Following the NASD arbitration panel's decision and award, plaintiff movedfor summary judgment in the circuit court, asserting that defendants' judicialadmissions established that an attorney-client relationship existed with plaintifffor the purposes of the NASD proceedings and that defendants were estoppedjudicially from contesting the entire amount of plaintiff's bill.

Defendants responded to plaintiff's motion, arguing that judicial estoppeldid not apply and, because the NASD arbitration panel already had determined thatthe reasonable attorney fees for the work performed by both plaintiff and Schuylerwas $70,000, the doctrine of res judicata barred plaintiff from seeking a recoveryagainst defendants in excess of the fee award.⁽²⁾

On December 6, 2001, the circuit court entered summary judgment inplaintiff's favor in the amount of $124,469.36, the entire amount of billed feesand expenses. Defendants' emergency motion to reconsider and vacate the summaryjudgment order was denied. Defendants timely appeal.

Before addressing the merits of the instant case, the appropriate standardof review must be determined. Defendants argue that the appropriate standard ofreview is de novo because they are not challenging the circuit court'sdiscretionary authority to invoke the doctrine of judicial estoppel, but insteadcontest its determination that they satisfied the elements of judicial estoppelas a matter of law. Plaintiff responds that, after this court considers theapplication of judicial estoppel under an abuse of discretion standard, the ordergranting summary judgment then is reviewed de novo.

In Bidani v. Lewis, 285 Ill. App. 3d 545, 549, 675 N.E.2d 647 (1996)(Bidani), the circuit court entered summary judgment for defendants based upon thedoctrine of judicial estoppel. There, the appellate court reviewed applicationof the doctrine under an abuse of discretion standard. Bidani, 285 Ill. App. 3dat 550.⁽³⁾ We elect to follow Bidani with respect to the standard of review as tojudicial estoppel.

Summary judgment will be granted only when the moving party is entitled tojudgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). When reviewingthe grant of a summary judgment motion, this court may consider pleadings,depositions and admissions on file, together with any affidavits. 735 ILCS 5/2-1005(c) (West 2000). Review of the decision to grant summary judgment in theinstant case is de novo. Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d1104, 1110, 740 N.E.2d 819 (2000).

Defendants identify error in the circuit court's grant of summary judgmentin plaintiff's favor, claiming the court improperly held that judicial estoppelbarred their challenge to the reasonableness of attorney fees where they soughtthe same fees in a separate petition filed with the NASD, which resulted in apartial fee award of $70,000. According to defendants, the partial fee awardshould be construed as a finding by the NASD arbitration panel that the remainingfees of $87,239.90 were rejected as unreasonable.

Plaintiff responds that the circuit court properly applied the doctrine ofjudicial estoppel and, therefore, correctly entered summary judgment in its favoras a matter of law. Plaintiff asserts that the NASD arbitration panel did notrule on the issue of reasonable attorney fees in its findings and, even if it had,defendants' petition for statutory fee-shifting before the NASD is different froman independent court action for fees by an attorney against a former client. Plaintiff maintains that if a fee-shifting petition partially is granted, as inthe instant case, the attorney nevertheless is entitled to receive the remainingpayment of fees, costs and expenses incurred from the client, as the NASD awardprovides.

The doctrine of judicial estoppel postulates that "a party who assumes aparticular position in a legal proceeding is estopped from assuming a contraryposition in a subsequent legal proceeding." Bidani, 285 Ill. App. 3d at 550. Thepurpose of the doctrine is "to promote the truth and to protect the integrity ofthe court system by preventing litigants from deliberately shifting positions tosuit the exigencies of the moment." Bidani, 285 Ill. App. 3d at 550. The fiveelements necessary for the application of judicial estoppel, include thefollowing: "the party to be estopped must have (1) taken two positions, (2) thatare factually inconsistent, (3) in separate judicial or quasi-judicialadministrative proceedings, (4) intended for the trier of fact to accept the truthof the facts alleged, and (5) have succeeded in the first proceeding and receivedsome benefit from it." People v. Caballero, No. 88784, slip op. at 11 (Ill. Oct.18, 2002) (Caballero). Except for the third element,⁽⁴⁾ elements one, two, four andfive of the doctrine contested in their application by defendants will beaddressed.

Defendants challenge application of the first and second judicial estoppelelements, maintaining that, in the arbitration proceeding before the NASD, theirfee petition did not assert the position that all of plaintiff's legal fees werereasonable, while before the circuit court, defendants contended the fees wereunreasonable. Defendants insist they did not argue two inconsistent positions asrequired in order to apply the judicial estoppel doctrine, but simply tookadvantage of the fee-shifting provision of the Act in seeking their fees. Defendants maintain specifically that their entitlement to an award of attorneyfees in the arbitration was governed by "section 3 of the Uniform Deceptive TradePractices Act, a statutory fee shifting provision" and, since the arbitrationpanel awarded $70,000 to both law firms representing them in the arbitrationproceedings, the balance of fees remaining, which plaintiff claims in this action,"must perforce be deemed unreasonable," relying on J.B. Esker & Sons v. Cle-Pa'sPartnership, 325 Ill. App. 3d 276, 282, 757 N.E.2d 1271 (2001) (Esker).

The issues raised in this appeal will be determined by the pleadings filedby the parties, rather then from inferences sought to be drawn from unspoken wordsor findings not made. A reviewing court can affirm the decision of the courtbelow for any reason or ground appearing in the record, regardless of whether thereasons given by the nisi prius court or specific findings made are correct orsound. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387, 457N.E.2d 9 (1983); Estate of Johnson v. Contell Memorial Hospital, 119 Ill. 2d 496,502, 520 N.E.2d 37 (1988); King v. City of Chicago, 324 Ill. App. 2d 856, 859, 755N.E.2d 143 (2001). Whether the unreasonableness of plaintiff's fees waschallenged effectively by defendants before the NASD, or not, need not be decidedhere, since the decision of the circuit court must be affirmed for other reasonsappearing in the record.

Section 3 (815 ILCS 510/3 (West 2000) (section 3)) of the Act, onlypartially quoted by defendants in their principal brief, goes on to provide:

"The relief provided in this section is in additionto remedies otherwise available against the same conductunder the common law or other statutes of this State." (Emphasis added.)

Equally in contradistinction to defendants' theory, is the award language of thearbitration panel stating, at paragraph 4, in part, that "each party shall bearits own costs and attorney's [sic] fees." (Emphasis added.) Nothing in Esker,which involved a private fee-shifting arrangement, is analogous to the statutoryand NASD award language recognizing the right to additional fees, as are involvedin the present case.⁽⁵⁾

The record shows that defendants demonstrably took two contrary positionsbefore the two different tribunals. In their response to plaintiff's firstamended complaint in the circuit court, filed before they petitioned the NASD,defendants denied that they agreed to pay plaintiff's legal fees on an hourly rateto be charged on a monthly basis in representing defendants in the NASD action. Defendants specifically denied that they "incurred" the amount sought byplaintiff.⁽⁶⁾ As detailed earlier in this opinion, defendants' NASD petition soughtto recover all outstanding attorney fees from Dreher, submitting in its supportthe Rezner affidavit, outlining hourly rates for attorneys and staff assigned todefendant's case and plaintiff's particularization of the legal services plaintiffperformed, including the number of hours, and costs incurred, and sought, "anaward of the reasonable attorneys' [sic] fees and costs they have incurred in thismatter." (Emphasis added.)

Defendants' submission of plaintiff's detailed legal and expense billingcould have had only the purpose and intended effect of persuading the NASDarbitration panel to accept plaintiff's affidavit as true and, based upon thetruth and accuracy of its submission, that the arbitration panel would grant theremedy requested. If the purpose and intent of defendants' submission wereotherwise, it would have run afoul of several Illinois Rules of ProfessionalConduct.⁽⁷⁾

In Galena Park Home v. Krughoff, 183 Ill. App. 3d 206, 208, 538 N.E.2d 1366(1989) (Galena Park), defendant stated in a previously filed, verified complaintagainst a non-party, Blue Cross/Blue Shield, that he personally was liable for thecosts of his father's care and that he had expended the amount on his father'sbill. As a result of that proceeding, he and his attorney received payment on thebill. In the second proceeding, defendant stated that he was not responsible forthe full amount of the unpaid bill, but only was required to pay the amount hereceived after the deduction of attorney fees. The Galena Park court ruled thatdefendant's two positions were inconsistent and affirmed the circuit court'sfinding under the doctrine of judicial estoppel. 183 Ill. App. 3d at 208-09. Tothe same effect are People v. Wisbrock, 223 Ill. App. 3d 173, 175, 584 N.E.2d 513(1991) and McDonald's Corp. v. American Motorists Insurance Co., 321 Ill. App. 3d972, 987, 748 N.E.2d 771 (2001).

The detailed information submitted by defendants as contained in plaintiff'sattorney's affidavit seeking payment for "the total attorney's fees incurred" isanalogous to the "deliberate, detailed and unequivocal" assertion of a judicialadmission. In Van's Material Co. v. Department of Revenue, 131 Ill. 2d 196, 212-13, 545 N.E.2d 695 (1989) (Van's Material Co.) the supreme court observed:

"The Department attempts to distinguish Hansen byasserting that its answer did not involve a fact and wasadditionally not unequivocal. While it may be more thana matter of semantics as to what constitutes a fact, weare not persuaded by the Department's arguments. Thequestion posed to the Department did not ask for aconclusion; rather, it asked the Department to identifyits 'contentions.' The Department would be the only bodyable to answer that question; its beliefs or contentionsare peculiarly and completely within its owndeterminations. (See Hansen, 155 Ill. App. 3d at 482.)***

Additionally, current arguments that the answer wasnot unequivocal are without merit. While the court inLindenmier v. City of Rockford (1987), 156 Ill. App. 3d76, as the Department correctly notes, did recognize thatdeposition testimony is ordinarily an evidentiaryadmission that may be controverted, the court also wenton to acknowledge and apply the reasoning expressed bythe court in Young v. Pease (1983), 114 Ill. App. 3d 120,wherein the court noted that '"[t]here may be cases inwhich admissions at pre-trial depositions are sodeliberate, detailed and unequivocal, as to matterswithin the party's personal knowledge, that they willconclusively bind the party-deponent, and he will not beheard to contradict the admission at the trial"' (Young,114 Ill. App. 3d at 122-23)."

Here, of course, the matter of fees for which they were charged and whichthey represented to the arbitrators that they had incurred were within defendants'personal knowledge. Having submitted plaintiff's charges as those they admittedhaving incurred, which were the same amounts for which they sought reimbursementfrom the NASD panel, defendants will not be heard to contradict that position ata subsequent judicial proceeding. Van's Material Co., 131 Ill. 2d at 213.

Based upon the foregoing, the circuit court did not abuse its discretion infinding defendants have asserted two diametrically opposed positions for thepurposes of satisfying the first two elements of the judicial estoppel doctrine.

Defendants next challenge the circuit court's finding with respect to thefourth element of the judicial estoppel doctrine, arguing that their fee petitionwas not submitted under oath, and that the absence of the oath alone is sufficientto require reversal of the court's grant of summary judgment.

Contrary to defendants' insistence, in Caballero, the requirement of an oathwas not included among the five judicial estoppel elements. All that is requiredto satisfy this element is that the party being estopped must intend for the trierof fact to accept the truth of the facts alleged, the fourth element set forth inCaballero.

Although defendants alleged plaintiff's fees were unreasonable before thecircuit court, as previously discussed, the issue of reasonableness with respectto those fees need not be decided for the purposes of applying judicial estoppelto the circumstances in the instant case. In court, defendants plead that theydid not agree to pay plaintiff's standard hourly rates; in their petition for feesbefore the NASD arbitrators, however, they presented plaintiff's statement of feesfor the same hours to show the fees they incurred in an attempt to recover allattorney fees due and owing to plaintiff. Previously noted in footnote 7 are theconstraints imposed by the Illinois Rules of Professional conduct upon submissionsmade to courts and other tribunals by attorneys. Nothing is found in the natureof fee-shifting procedures which would contemplate, encourage or condone mendacityor disingenuousness in submitting fee petitions by officers of the court to atribunal of justice, whether under oath, or not.⁽⁸⁾

Moreover, defendants' argument impugns their own veracity. By making theassertion that judicial estoppel cannot be applied because their two allegedinconsistent positions were not submitted under oath, they are challenging, ineffect, whether their own statements are true, as opposed to the facts inCaballero, where defendant challenged the truth of the positions submitted by theopposing party, the State.

Defendants here intended that both the NASD arbitration panel and thecircuit court accept the truth of the allegations made in their respectivepleadings. Therefore, the fourth element of the judicial estoppel doctrine issatisfied, as the circuit court properly held.

Defendants next contest the fifth element of the judicial estoppel doctrine,asserting that they were "spectacularly unsuccessful" in establishing that the$124,496.36 in fees incurred were due plaintiff because defendants received lessthan that amount from the NASD arbitration panel.

Defendants again contradict their own argument. They first insist thattheir fee petition did not claim that all plaintiff's fees as delineated inplaintiff's billing statement represented the amount due plaintiff. Then, inorder to overcome the fifth element of judicial estoppel, defendants argue thatonly the fees actually awarded by the NASD arbitration panel were owed plaintiffand the balance "must perforce be deemed unreasonable," because they were eitherunnecessary or excessive. Defendants further assert that once the NASD panelruled that their request for attorney fees would be allowed only in the amount of$70,000, it was not inconsistent for defendants to contest those fees exceedingthat amount in the circuit court. As previously noted, the NASD award makes nofinding or suggestion that it was limiting fees due plaintiff and Schuyler to the$70,000 amount; instead, the language expressly requires the parties to bear theirown costs and attorney fees. Of further significance in the circuit courtproceedings, defendants contested the entire amount of plaintiff's fees, notmerely any amount that might remain.

Defendants "hoist themselves upon their own petard." Both section 3 of theAct and the arbitration award specifically contemplate by their language that morethan the statutory award may be merited, contrary to defendants' argument. If apetition seeking fees pursuant to a fee-shifting clause is denied, the successfullitigant's attorney nevertheless is entitled to payment from his own client. Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590, 595, 740 N.E.2d501 (2000). Defendants were awarded $70,000 from the NASD panel, but plaintiffnevertheless is entitled to seek payment of its remaining fees.

The Seventh Circuit Court of Appeals has explained that the doctrine ofjudicial estoppel is "intended to prevent the perversion of the judicial process. [Citation.] It is to be applied where 'intentional self-contradiction is beingused as a means of obtaining unfair advantage in a forum designed for suitorsseeking justice,' [citation], to prevent litigants from 'playing fast and loosewith the courts.'" In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990), quotingScarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953). Here,defendants give the appearance of playing "fast and loose" with the circuit courtby denying responsibility for payment of the attorney fees, yet attempting torecover the entire amount of attorney fees which it owed to plaintiff from theNASD arbitration panel via a fee-shifting petition. Defendants' positionaccordingly is rejected.

All the requirements for application of the judicial estoppel doctrine havebeen met. The circuit court did not abuse its discretion in this aspect of thecase.

Next to be considered is the grant of summary judgment in this case. Defendants are judicially estopped from attempting to create a question of factfor purposes of summary judgment by contradicting their previous positions. Therewas no genuine, triable issue of fact remaining for the instant circuit court todecide. Spirit of Excellence, Ltd. v. Intercargo Co., 334 Ill. App. 3d 136, 144,777 N.E.2d 660 (2002). The court properly granted plaintiff's summary judgmentmotion.

For the reasons stated above, the decision of the circuit court of CookCounty to apply the doctrine of judicial estoppel to the circumstances of thiscase and grant summary judgment in favor of plaintiff is affirmed.

Affirmed.

THEIS, P.J., and KARNEZIS, J., concur.

1. Defendants attempt to supplement the record with materials developed beforethe NASD panel, which never were filed in the circuit court proceedings norconsidered by the court. Their motion to so supplement the record, therefore, hasbeen denied in a separate order. The contents of the proposed supplemental recordare not determinative in reaching the result of the instant appeal.

2. Defendants do not assert a res judicata argument on appeal.

3. In noting the standard of review, the Bidani court cited Ceres Terminals,Inc. v. Chicago City Bank & Trust Co., 259 Ill. App. 3d 836, 850, 635 N.E.2d 485(1994), a case which did not involve summary judgment. The supreme court inPeople v. Caballero, No. 88784, slip op. at 11 (Ill. Oct. 18, 2002), citingBidani, also recently reviewed application of the doctrine under an abuse ofdiscretion standard. No summary judgment issues were involved in that case.

4. Defendants do not contest application of the third element of the judicialestoppel doctrine, as stated in their briefs.

5. Defendant's reliance upon Blackenship v. Dialist International Corp., 209Ill. App. 3d 920, 568 N.E.2d 503 (1991) also is misplaced. The statute there(Ill. Rev. Stat. 1985, ch. 121