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No. 1-99-0882 First Division

1-00-2313 December 29, 2000

JUSTICE COHEN delivered the opinion of the court:

Defendant-Appellee E.A. Cox Company (Cox) served as general contractor on a roadconstruction project (the project) for the City of Chicago Department of Transportation (the City). Defendant-appellant Correct/All Sewer, Inc. (Correct/All) was Cox's sewer subcontractor for theproject. Defendant Fidelity and Deposit Company of Maryland (Fidelity) provided Cox's suretybond. Nine subcontractors and/or material suppliers filed complaints against Cox and Correct/Allfor mechanics' liens against public funds pursuant to section 23 of the Mechanics Lien Act (770ILCS 60/23 (West 1998)) and for bond claims against Fidelity and Cox pursuant to section 1 if thePublic Construction Bond Act (30 ILCS 550/1 (West 1998)). The trial court consolidated all ninecases into Sacramento Crushing Corporation v. Correct/All Sewer, Inc., 96 CH 198. Onceconsolidated, no order of severance was ever entered with respect to any of these cases.

Correct/All cross-claimed against Cox and Fidelity, asserting mechanic's lien and bondclaims. Cox moved to reduce the amount of Correct/All's lien, seeking a summary determinationunder section 2-1005(d) of the Code of Civil Procedure (735 ILCS 5/2-1005(d) (West 1998)) thatCorrect/All was not entitled to a separate pay item of $170,025.75 for "spoil removal" (wastehauling). In an order dated December 3, 1997 (the summary determination order), the trial courtgranted Cox summary determination as to the spoil removal issue. Correct/All's motion forreconsideration of the summary determination order was denied. Cox and Fidelity then moved forsummary judgment under Section 2-1005(b) of the Code of Civil Procedure, requesting a ruling thatCorrect/All was owed nothing further on the project. On September 3, 1998, the trial court grantedtheir motion (the first summary judgment order), finding that Correct/All was owed nothing furtheron the road construction project and ruling that Correct/All had no valid mechanic's lien or bondclaims. On January 28, 1999, the trial court entered a Rule 304(a) (134 Ill. 2d R. 304(a)) findingwith respect to the first summary judgment order. Correct/All filed its timely notice of appeal onMarch 2, 1999.

Cox counterclaimed against Correct/All to recover certain "backcharges" (i.e., money thatCox had spent on Correct/All's behalf). Cox moved for summary judgment against Correct/All onthe issue of backcharges. On May 2, 2000, the trial court granted Cox's motion, entering judgmentin favor of Cox in the amount of $312,346.02 plus costs (the second summary judgment order). Thecourt also entered a Rule 304(a) finding with respect to this order. Correct/All's motion to reconsiderwas denied. The same day, the trial court entered an order dismissing with prejudice all claims andcauses of action filed in the nine consolidated cases that had not been disposed of by prior order. Correc/All's motion to reconsider the second summary judgment order was denied. Correct/All filedits second timely notice of appeal on July 13, 2000.

Correct/All's first appeal, case no. 1-99-0882, is from the trial court's summary determinationorder and the first summary judgment order. Correct/All's second appeal, case no. 1-00-2313, isfrom the second summary judgment order and the denial of its motion to reconsider. Cox has movedon appeal for sanctions against Correct/All and its counsel, Mr. Lamont Cranston Strong (Strong). Cox has also moved for the reconsideration of our previous order consolidating this case withCorrect/All's second appeal. Cox's motions are taken with the case. We affirm the judgment of thetrial court, deny Cox's motion for reconsideration and grant Cox's motion for sanctions.

I. Summary Determination, Summary Judgment and the Motion to Reconsider

We note as a preliminary matter that there is currently an order of this court on file, datedOctober 3, 2000, consolidating this case (Correct/All's appeal under Rule 304(a) from the trial court'sentry of summary determination and summary judgment in favor of Cox and against Correct/All onCorrect/All's amended cross-claim) with case no. 1-00-2313 (Correct/All's appeal from the trialcourt's entry of summary judgment in favor of Cox and against Correct/All on Cox's counterclaimfor backcharges and from the denial of Correct/All's motion to reconsider). Cox has moved forreconsideration of the order granting consolidation. Case no. 1-99-0882 has already been fullybriefed, and the issues in the two appeals are nearly identical. No briefs have yet been filed in caseno. 1-00-2313; however, we require no briefs from the parties to guide our decision. As we willfurther discuss, the record on appeal in the second case, standing alone, affords us a sufficient basisto rule on Correct/All's second appeal. Cox's motion for reconsideration is denied.

Although the trial court entered no Rule 304(a) finding with respect to the summarydetermination order of December 3, 1997, that order was a step in the procedural progression leadingto the summary judgment order of September 3, 1998. Therefore, Correct/All's notice of appeal wassufficient to grant this court jurisdiction over the summary determination order. 155 Ill. 2d R.304(a); Ruane v. Amore, 287 Ill. App. 3d 465, 470 (1997).

Our review of the trial court's grant of summary judgment is de novo. Natale v. GottliebMemorial Hospital., 314 Ill. App. 3d 885, 888 (2000). Summary judgment is properly granted"where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in thelight most favorable to the nonmovant, reveal that there is no genuine issue as to any material factand that the movant is entitled to judgment as a matter of law." Natale, 314 Ill. App. 3d at 888. Inits first appeal, Correct/All argues that the trial court's summary determination order reducing itsclaimed lien violated both an unspecified section of the Chicago Municipal Code and the separationof powers doctrine. Correct/All also argues that in entering the first summary judgment order infavor of Cox, the trial court further violated an unspecified section of the Chicago Municipal Codeby assigning to one O'Malley (as a subcontractor of Correct/All) a portion of the funds owed toCorrect/All by Cox. Correct/All has indicated in its second notice of appeal that it wishes to appealthe trial court's entry of the second summary judgment order in favor of Cox, as well as the denialof its motion to reconsider that ruling.

We need not address the substance of these arguments on appeal. The function of areviewing court on appeal from a grant of summary judgment is limited to determining whether thetrial court correctly concluded that no genuine issue of material fact was raised and, if none wasraised, whether judgment as a matter of law was correctly entered. Malanowski v. Jabamoni, 293Ill. App. 3d 720, 724 (1997). The record is quite clear that Cox supported both its summarydetermination and first summary judgment motions against Correct/All with detailed affidavits. Therecord is equally clear that in response to Cox's motion for summary determination, Correct/All fileda document purporting to be an affidavit from Mr. George Fed, the president of Correct/All,addressing the spoil removal issue only. However, that document was not signed by Mr. Fed, norwas it notarized; therefore, that document was not a valid affidavit and was not sufficient to raise agenuine issue of material fact for purposes of summary judgment. In re Marriage of Lewis, 213 Ill.App. 3d 1044, 1049-50 (1991) (Welch, J., dissenting). The record reflects that Correct/All filed noaffidavits -- sufficient or otherwise -- in response to Cox's first motion for summary judgment. Thesuggestion that an issue of material fact exists, without supporting evidence, is insufficient to createone. In re Marriage of Palacios, 275 Ill. App. 3d 561, 568 (1995). In the face of supportingaffidavits from the moving party, the nonmovant must submit counteraffidavits (or refer todepositions or admissions on file) in order to raise an issue of fact sufficient to survive summaryjudgment. Werckenthein v. Bucher Petrochemical Co., 248 Ill. App. 3d 282, 288 (1993). Failureto file counteraffidavits in opposition to a summary judgment motion supported by affidavits is fatal. Fitzpatrick v. Human Rights Comm., 267 Ill. App. 3d 386, 391 (1994). Therefore, Correct/All failedto raise any genuine issue of material fact before the trial court in response to either the summarydetermination or the first summary judgment motion.

Similarly, the record in Correct/All's second appeal reveals that Cox's secondsummary judgment motion was also supported by detailed affidavits. The record is clear thatalthough Correct/All eventually moved for reconsideration of the trial court's entry of summaryjudgment in favor of Cox, Correct/All again filed no response to the second summary judgmentmotion. As with its first appeal, Correct/All failed to raise any genuine issue of material fact beforethe trial court. Fitzpatrick, 267 Ill. App. 3d at 390.

Our determination that Correct/All failed to raise a genuine issue of material fact inresponse to these motions does not conclude our analysis. We must now determine whetherjudgment as a matter of law in favor of Cox was correctly entered. Malanowski, 293 Ill. App. 3d at724. "A court of review's determination as to whether the record supports a grant of summaryjudgment is one of law *** and may be based on any grounds called for by the record. [Citation.]"In re Marriage of Palacios, 275 Ill. App. 3d 561, 568 (1995). Uncontested, sworn affidavitssubmitted in support of a motion for summary judgment must be accepted as true for purposes ofdeciding the motion, contrary assertions in an opponent's pleadings notwithstanding. SoderlundBrothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 614 (1995). Cox's affidavits, accepted as true,clearly demonstrate that Correct/All had been fully paid under the terms of its subcontract. The trialcourt first determined that under the terms of its subcontract with Cox, Correct/All was not entitledto a separate pay item for spoil removal. By its own terms, the subcontract states that final paymentto Correct/All would be made "on [the] quantities allowed in the final estimate by the [City]." TheCity's final pay estimate included no separate line-item term for spoil removal. In fact, thespecifications of the subcontract specifically state that compensation to Correct/All for spoil removalwas to be paid under line items 4, 37 through 49, 52 through 67 and 70 through 76, all of which wereincluded in the City's final pay estimate. All of these line items were included among the agreeditems of work under the subcontract; therefore, spoil removal was included among the items of workthat Correct/All agreed to perform, and Correct/All was not entitled to separate payment. The trialcourt correctly entered summary determination in favor of Cox on this issue.

Accepting as true the total amount that Correct/All claimed that it had earned, the trial courtthen subtracted from that figure the remaining credits due Cox, including certain payments made byCox on Correct/All's behalf and payments of the lien claims of Correct/All's sub-subcontractors andmaterial suppliers. This calculation showed that Correct/All was owed nothing further on theproject. The court concluded that Cox was therefore entitled to judgment as a matter of law. Thereis ample support in the record for the trial court's conclusion. The trial court's grant of the summarydetermination and first summary judgment motions in favor of Cox is affirmed.

Similarly, Cox's affidavit in support of its second summary judgment motion, accepted astrue, shows that the total amount due to Correct/All under the subcontract for line-item work andcontract extras was $743,665.93. The trial court subtracted from this figure the sum of$1,056,011.95, which was the total of all past payments to Correct/All from Cox, all of thebackcharges due to Cox from Correct/All (for material, labor and union pension benefits) and all ofthe mechanic's lien claims against Cox by Correct/All's subcontractors. The trial court calculatedthat Correct/All had been overpaid and that there was a balance due from Correct/All to Cox in theamount of $312,346.02. The trial court then entered summary judgment in favor of Cox in thisamount. The record clearly supports the trial court's conclusion. The trial court's grant of Cox'ssecond summary judgment motion is affirmed.

With respect to Correct/All's motion to reconsider, we have held:

"The purpose of a motion to reconsider is to bring to thecourt's attention newly discovered evidence which was not availableat the time of the hearing, changes in the law or errors in the court'sprevious application of existing law. [Citation.] As a general rule amotion to reconsider is addressed to the trial court's sound discretion. [Citation.] But a motion to reconsider an order granting summaryjudgment raises the question of whether the judge erred in hisprevious application of existing law. Whether the court has erred inthe application of existing law is not reviewed under an abuse-of-discretion standard." Korogluyan v. Chicago Title & Trust Co., 213Ill. App. 3d 622, 627 (1991).

As with any question regarding the application of existing law, we review the denial of such amotion de novo. Joel R. v. Board of Education of Mannheim School District 83, 292 Ill. App. 3d607,

613 (1997). Correct/All's motion to reconsider fails to offer any newly discovered evidence whichwas not available at the time of hearing. The motion mentions no changes in the law subsequent tothe entry of summary judgment. The motion simply asserts error on the part of the trial court in itsapplication of existing law in granting the second summary judgment motion. "[A] trial court is notrequired to consider documents attached to a [defendant's] motion for reconsideration of a summaryjudgment ruling where the [defendant] had failed to file the documents in *** response to the[plaintiff's] motion for summary judgment." McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941,947 (1993). Neither are we required to do so on appeal, leaving for our consideration only theunsubstantiated allegations of error in Correct/All's motion. As we have already determined that thetrial court did not err in its findings that Correct/All failed to establish any genuine issue of materialfact and that Cox was entitled to judgment as a matter of law, we hold that the trial court committedno error in denying Correct/All's motion to reconsider.⁽¹⁾

II. Cox's Motion for Sanctions

The following excerpts from Correct/All's briefs set forth Correct/All's remaining argumenton appeal:

"THE TRIAL COURT'S ORDER OF DECEMBER 3, 1997,AND ALL ORDERS PREDICATED UPON THE DECEMBER 3,1997 ORDER REDUCING CORRECT/ALL'S LIEN CLAIM INTHE AMOUNT OF $170,025.75 ARE VOID BECAUSE THETRIAL COURT'S JUDGMENT WAS PROCURED BY FRAUD.

*** In its efforts to reduce Correct/All's lien, Cox presented to theCourt an altered Schedule C form.

***

By causing the Court to rely upon a document that wasaltered, Cox procured the December 3, 1997 order by fraud.

***

On the face of the record, it clearly appears that theSchedule 'C' Form that Cox submitted to the Court, and that theCourt apparently relied upon to reduce Correct/All's lien, may nothave been a genuine Schedule C document, contrary to anyaversion otherwise.

***

As clearly illustrated by the above emphatic quotations, Correct/All charges Cox withperpetrating a fraud on the trial court and engaging in "deception" in order to obtain the summarydetermination order of December 3, 1997. Correct/All asserts that this order and all subsequentorders predicated thereon (including the summary judgment order of September 3, 1998) aretherefore void as a matter of law. A void order can be attacked "at any time, in any court, eitherdirectly or collaterally." People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d420, 424 (1994). Correct/All bases its claim of fraud on an alleged discrepancy between acontract schedule contained in the general contract between Cox and the City of Chicago andwhat Correct/All claims to be an "altered" copy of that same contract schedule in the subcontractbetween Cox and Correct/All. The disputed contract schedule in the general contract, scheduleC, is a list estimating the amount per item of work that Cox would pay to Correct/All as asubcontractor. This list contains a notation (without any numbered line item) for spoil removalin the amount of $170,025.75. This is the amount by which the trial court reduced Correct/All'slien claim in its summary determination order of December 3, 1997. The schedule C containedin the subcontract is different from that appended to the general contract in that the subcontractschedule C lacks a separately listed item for spoil removal.

In its less-than-artful briefs, Correct/All claims that it prepared the version of schedule Cthat included the separate spoil removal item and submitted it to Cox for incorporation into Cox'sbid proposal to the City. Correct/All further claims that Cox's estimate then became binding,requiring Cox to pay to Correct/All the sum of $170,025.75 for spoil removal. Cox responds byagreeing that the schedule C attached to the subcontract does lack a numbered spoil removalitem. However, Cox argues, the schedule C submitted by Cox along with its bid proposal to theCity of Chicago was a nonbinding estimate. No "line-item number" accompanied the spoilremoval notation in the schedule C submitted with the bid.

Cox further notes that had Correct/All disagreed with the numbered items of work listedin the subcontract schedule C, Correct/All had the option simply to refuse to sign the contract aswritten. Correct/All freely signed the subcontract containing the allegedly altered schedule Cwithout disputing any of its terms. Correct/All does not argue that it signed the subcontract onother than a level playing field, nor is there evidence in the record of coercion.

Cox's motion for sanctions is framed in terms of Supreme Court Rule 137, which governsproceedings in the trial court. 155 Ill. 2d R. 137. However, Rule 375 is the appropriate basis forsanctions in the appellate court for improper conduct on appeal. 155 Ill. 2d R. 375. A motion forsanctions that is improperly brought in the appellate court pursuant to Rule 137 may be treated asproperly brought under Rule 375 and considered on its merits. Kennedy v. Miller, 197 Ill. App.3d 785, 788-89 (1990).

Rule 375 allows this court to impose sanctions when "an appeal or other action [is] nottaken in good faith." 155 Ill. 2d R. 375(b). Despite Correct/All's assertion on appeal that Coxobtained both the summary determination and first summary judgment orders by deceptively"altering" the schedule C appended to the subcontract, the record reveals that Correct/All itselfhad previously admitted before the trial court the authenticity of the allegedly altered documenton no fewer than three separate occasions. First, Correct/All attached a copy of the subcontractto its cross-claim against Cox without disputing the authenticity of the attached schedule C. Correct/All itself therefore submitted the allegedly altered document to the trial court. Second,Correct/All filed an answer to Cox's counterclaim, in which Correct/All admitted that the copy ofthe subcontract attached to Cox's counterclaim, including schedule C, was true and correct. Finally, Correct/All filed and answer to Cox's motion for summary judgment, in whichCorrect/All admitted that the copy of the subcontract attached to Cox's motion, includingschedule C, was true and correct.

Because Correct/All repeatedly admitted the authenticity of the subcontract schedule Cbefore the trial court, and despite Mr. Strong's vehement protests to the contrary, Correct/All'schallenge of the document on appeal as "fraudulent" cannot be said to have been made "in goodfaith" within the meaning of Rule 375.

We fail to see the relevance of Mr. Strong's contention, in Correct/All's response toCox's motion for sanctions, that he was not of record during trial but was retained for purposesof appeal only. Rule 375 imposes upon Mr. Strong, and every other appellate counsel, a good-faith duty to thoroughly investigate the trial record and to refrain from making arguments beforethis court that are clearly contradicted by that record. "[C]onduct [on appeal] will be found to beimproper if a reasonable prudent attorney would not have engaged in such conduct." (Emphasisadded.) 155 Ill. 2d R. 375(b), Committee Comments. In Correct/All's response to Cox's motionfor sanctions, Mr. Strong insists that "reasonable inquiry was made" and that "the facts set forthabove are warranted by existing law." Even a cursory examination of the operant facts belies thisspecious representation. A reasonable prudent attorney would have made a thoroughinvestigation of the trial record and refrained, in the face of multiple admissions by his client ofthe authenticity of a document, from accusing an opposing party and its counsel of fraudpredicated on the alleged alteration of that same document. We find that this argument was"improper" within the meaning of Rule 375.

The committee comments to Rule 375 state that when conduct on appeal is found to beimproper, "the subjective nature of the conduct is then important to determine the appropriatenature and amount of the sanction." 155 Ill. 2d R. 375(b), Committee Comments. We findCorrect/All and Mr. Strong's conduct in this regard to be egregious. The decision to accuse anopposing party or its counsel of perpetrating a fraud on the court is a momentous one. When thedecision is made to go forward on such a charge, one would hope that the charging party wassolidly armed with competent, clear, and convincing evidence supporting his theory.

We are particularly disturbed that Mr. Strong chose to accuse fellow officers of the courtof an offense meriting disbarment for the sole purpose of attempting to gain an advantage inlitigation, as his statement in Correct/All's response to Cox's motion for sanctions clearlydemonstrates:

"Also, because the order that reduced the lien was entered in1997,it was this writer's opinion that attacking that order in the mannerthat it was attacked was the best proper legal avenue under thecircumstances."

Mr. Strong would do well to remember his duty under the Rules of Professional Conduct not to"assert *** an issue [in any proceeding], unless there is a basis for doing so that is not frivolous." 134 Ill. 2d R. 3.1. Not only did these charges lack any semblance of substance, they were bothspurious and embarrassingly silly.

Upon careful review of the record on appeal, the parties' briefs and all motions filed inthis matter, this court hereby grants Cox's motion for sanctions against Correct/All and itscounsel, Mr. Lamont Cranston Strong. We order Correct/All and Mr. Strong to pay to Cox boththe reasonable costs of these appeals and any other expenses incurred by Cox in defending theseappeals. These expenses shall include reasonable attorney fees in an amount to be determined,subject to counsel for Cox submitting to this court, within 14 days after the filing of thisjudgment, an affidavit setting forth such expenses and fees.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed, with sanctions.

McNULTY, P.J., and O'MARA FROSSARD, J., concur.

1. In light of the foregoing, we conclude that we are justified in deciding the merits ofCorrect/All's second appeal without separate briefs from the parties. This court has previouslyheld that briefs are for the convenience of the court, for the purpose of presenting the parties'arguments to the court in a coherent manner. 47th & State Currency Exchange, Inc. v. B.Coleman Corp., 56 Ill. App. 3d 229, 232 (1977). Correct/All's second notice of appeal referssolely to the order entering the second summary judgment motion in favor of Cox, as well as thedenial of Correct/All's motion to "vacate" that order (actually a motion to reconsider). " 'It is wellestablished that an appellate court has jurisdiction only of those matters which are raised in thenotice of appeal.' " Steinberg v. System Software Associates, Inc., 306 Ill. App.. 3d 157, 166(1999), quoting Lewanski v. Lewanski, 59 Ill. App. 3d 805, 815 (1978); 155 Ill. 2d R. 303(b)(2). Therefore, these are the only matters properly before us in Correct/All's second appeal.

As discussed earlier, we are limited on appeal from summary judgment to determiningwhether a genuine issue of material fact was raised and, if not, whether judgment as a matter oflaw was correctly entered. Malanowski, 293 Ill. App. 3d at 724. Therefore, any argumentCorrect/All might raise in its second appeal would necessarily be limited to one of these avenuesof consideration. We have found that through its failure to file any affidavits in opposition toCox's motions, Correct/All failed to raise any genuine issue of material fact before the trial court. No argument Correct/All makes in an additional brief will alter this finding. We have alsoclosely scrutinized the record in Correct/All's second appeal and determined that the trial courtcorrectly entered judgment in favor of Cox on the second summary judgment motion andCorrect/All's motion to reconsider. Again, no matter what argument Correct/All might makebefore us, the fact remains that, accepting Cox's affidavits as true, Cox was entitled to judgmentas a matter of law. Under these circumstances, we can conceive of no argument Correct/Allmight make that would be sufficient to alter the outcome of our analysis. Therefore, in theinterest of judicial economy, we decide Correct/All's second appeal on the record only.