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December 21, 2001

No. 2--00--1194

JUSTICE GROMETER delivered the opinion of the court:

Defendant, American Overhead Door (AOD), appeals from ajudgment of the circuit court of Lake County entered in favor ofplaintiff, Pickus Construction & Equipment (Pickus Construction). Following a bench trial, the trial court awarded plaintiff $35,079. Defendant contends that the trial court's judgment was contrary tothe manifest weight of the evidence. For the following reasons, wereverse.

Before turning to the merits of this appeal, we wish toaddress the parties' disregard of the supreme court rulesconcerning appellate briefs, which has needlessly hindered thiscourt in reaching a decision. Both parties frequently ignore therules pertaining to the citation of authorities. Rule 341(e)(7)states that arguments must be supported with citation to authority. 188 Ill. 2d R. 341(e)(7). Rule 341(d) provides that "[c]itationsshall be made as provided in Rule 6." 188 Ill. 2d R. 341(d). Rule 6 mandates that "[c]itations of cases must be by title, to the pageof the volume where the case begins, and to the pages upon whichthe pertinent matter appears in at least one of the reporterscited." 145 Ill. 2d R. 6. These rules are not mere suggestions;they are mandatory, and this court possesses the discretion toimpose appropriate sanctions for violations. See Geers v. Brichta,248 Ill. App. 3d 398, 400 (1993). We would be justified in findinga number of these arguments waived. See Chicago Title & Trust Co.v. Weiss, 238 Ill. App. 3d 921, 927-28 (1992) (noting violation ofSupreme Court Rule 341(d), which incorporates Supreme Court Rule 6,can result in waiver of an argument). Had we exercised thisprerogative, the result of this case might have been different. Defendant also raises some arguments for the first time in itsreply brief, which we will not consider. See 188 Ill. 2d R.341(e)(7) ("Points not argued are waived and shall not be raised inthe reply brief, in oral argument, or on petition for rehearing").

Further, both parties have violated numerous other supremecourt rules. Despite the clear dictate of Supreme Court Rule 6that "[i]t is not sufficient to use only supra or infra," plaintiffdoes so. 145 Ill. 2d R. 6. The covers of both defendant's mainbrief and reply brief do not name the trial judge entering thejudgment under review, in contravention of Supreme Court Rule341(b). 188 Ill. 2d R. 341(b). Defendant has also disregardedSupreme Court Rule 341(e)(2), in that its introductory paragraphdoes not contain a statement as to "whether any question is raisedon the pleadings." 188 Ill. 2d R. 341(e)(2). Additionally,Supreme Court Rule 341(e)(7) provides that "[c]itation of numerousauthorities in support of the same point is not favored." 188 Ill.2d R. 341(e)(7). Nevertheless, plaintiff cites four cases whichset forth the elements of promissory estoppel. None of the fourcitations indicate upon which pages these elements appear. Thereafter, plaintiff provides two cases in support of theproposition that " '[p]romissory estoppel' is a doctrine underwhich a plaintiff may recover without the presence of a contract." Both of these citations use only supra. Both parties, as well asall appellate counsel, are advised to pay close attention to theserules in the future.

BACKGROUND

Plaintiff is a construction company that was engaged as thegeneral contractor on a project known as the Wheaton Public WorksProject (Wheaton Project). James Pickus has been the company'svice-president of operations since 1990. In this position, he isinvolved in bidding and reviewing contracts between plaintiff andits various clients and subcontractors. Defendant is a companythat is in the business of supplying and installing overhead doors. Larry Hooker has been its president for over 30 years. At the timeof the events that form the basis of this suit, Trevor Murphy wasemployed by defendant as a salesman.

Plaintiff received plans for the Wheaton Project early inSeptember 1997. Bidding on the project was to close on September26, 1997. The parties dispute whether plaintiff invited defendantto submit a bid or defendant learned of the project from anindependent source. Pickus testified that plaintiff does not sendout specifications for a project with invitations; rather, it makesfollow-up calls to see which subcontractors are interested andprovides them with plans and specifications. Hooker testified thatdefendant learned of the Wheaton Project through the Dodge Report,a trade publication that lists upcoming projects. According toHooker, when it learns of a project in this manner that it is interested in, it goes to the Dodge Room--apparently a facilitymaintained by the publishers of the Dodge Report--or directly to ageneral contractor to obtain plans. Hooker stated that defendantdoes not ignore specifications when bidding a job. Thespecifications for the Wheaton Project required the use of Fimbledoors or a comparable alternative. Fimble is a manufacturer ofoverhead doors.

On September 22, 1997, plaintiff received defendant's firstbid on the Wheaton Project by fax. In this bid, defendant proposedto supply 18 doors, of various sizes and types, at a cost of$76,895. The doors were classed as types A, B, C, and D. Thesedifferent classifications apparently referred to the doors' sizes. Fourteen doors were type A, two were type B, one was type C, and one was type D. The bid did not indicate from which manufacturerdefendant intended to procure these doors. This bid also included18 operators. "Void" was written across this bid because it wassuperceded by later bids.

Plaintiff received a second bid from defendant on September24, 1997, at 8:41 a.m. in the amount of $69,575. This bidconsisted of three pages; however, only the first and third appearin the record. On the first page, type A doors are listed, but noquantity is shown. Type C doors are omitted. Thus, only threedoors, two type B and one type D, are listed. Pickus testifiedthat the second page of the bid listed two or three additionaldoors. Eighteen operators were also included in this bid. Thisbid has "void" written over it. At 8:57 a.m. of the same morning,defendant faxed plaintiff a corrected first page that listed thequantity of type A doors as 13. All bids contained a statementindicating that, because of potential price increases by suppliers,defendant would not hold prices for more than 30 days and a signedpurchase order must be tendered.

On September 26, 1997, the date bidding on the Wheaton Projectwas to close, plaintiff received four additional bids from otheroverhead door companies. The lowest of these was from a companycalled Door Systems in the amount of $113,500. Pickus stated that,after receiving these bids, he became concerned about defendant'sbid because it was considerably lower and telephoned Murphy toexpress his concern. Pickus testified to the followingconversation with Murphy. He advised Murphy that he believeddefendant's bid was erroneous. Both Pickus and Murphy opened plansto the Wheaton Project in their respective offices. They went overthe plans to insure defendant's bid complied with them. Murphyassured Pickus that the bid was correct. Pickus also inquired asto whether the bid had been sent to other general contractors, andMurphy said that it had. Pickus told Murphy that he felt the bidwas too low and that Murphy should advise all of the generalcontractors to whom it had been sent of this problem. Pickusexplained that, if he did not use the bid and the other generalcontractors did, plaintiff would be at a competitive disadvantagerelative to the other general contractors. Murphy stated the bidwas correct and would be honored. Pickus informed Murphy thatplaintiff would be using the bid and if it was awarded the project,it would forward a subcontract to defendant. Murphy replied,"Fine, I look forward to working with you" and added, "Good luck." Defendant disputes whether this conversation occurred. Plaintiffwas awarded the project later the same day.

On October 1, 1997, defendant faxed plaintiff a new bid,lowering the price to $66,000. Plaintiff contends that there wassome contact between plaintiff and defendant in the 30 daysfollowing the date defendant's last bid was received. Defendantdisputes this contention. Outside of defendant's October 1, 1997,fax, the record does not divulge the nature of any such contact. It is undisputed that plaintiff did not forward a signed purchaseorder or any other writing indicating the acceptance of defendant'sbid during this period.

Plaintiff contacted defendant early in November 1997 to set upa meeting to award defendant the contract for the overhead doorsystem. The meeting took place on November 17, 1997. Pickus wascalled into the meeting as it was nearing completion. Murphy toldPickus that he had not figured the specified manufacturer, Fimble, into the bid and that defendant was no longer willing to enter intoa contract based on its bid. Murphy stated that the door on whichdefendant had based its bid was equal or superior to the dooridentified in the plans and specifications for the project and thathe would be able to get the architect to approve it. Thearchitect, however, did not do so.

Subsequently, defendant submitted additional proposals usingdifferent doors. All were rejected by the architect. Finally, onMay 13, 1998, defendant submitted a proposal using Fimble doors ata cost of $122,800. Pickus then spoke with Hooker about thematter. Hooker told Pickus that the only way it would perform thejob was if plaintiff sent defendant a contract reflecting the May13 proposal. Plaintiff declined and instead entered into acontract with Door Systems at a cost of $114,500.

Plaintiff then filed this action, seeking damages on apromissory estoppel theory. After a bench trial, the court foundfor plaintiff. The trial court found that plaintiff hadestablished a prima facie case of promissory estoppel. The courtheld that defendant's bid was not ambiguous despite not mentioningthe manufacturer, as it was based on the plans and specificationsfor the Wheaton Project. The court noted that the parties agreedthat one typically has plans and specifications available when onemakes a bid. The court found Pickus's testimony credible regardingthe conversation he purported to have had with Murphy. The courtacknowledged that defendant's last bid, of which the second pagewas not made a part of the record, included only 16 doors, although the plans called for 18. The court reduced damages proportionatelyas a result. Regarding the 30-day written confirmation provisionin defendant's bid, the court observed that, in the constructionindustry, this was not a firm rule. Accordingly, the trial courtawarded plaintiff $35,079. Defendant now appeals.

ANALYSIS

In order to succeed on a claim of promissory estoppel, aplaintiff must show (1) that the defendant made a promiseunambiguous in its terms, (2) that the plaintiff relied on thepromise, (3) that this reliance was expected and foreseeable fromthe defendant's position, and (4) that the plaintiff's reliance onthe promise was detrimental. Gerson Electric Construction Co. v.Honeywell, Inc., 117 Ill. App. 3d 309, 312 (1983). Defendantcontends that plaintiff failed to demonstrate both the existence ofan unambiguous promise and that plaintiff's reliance wasforeseeable to defendant. As this appeal comes to us following abench trial, we will not disturb the decision of the trial courtunless it is against the manifest weight of the evidence. Zink v.Maple Investment & Development Corp., 247 Ill. App. 3d 1032, 1036(1993). A decision is contrary to the manifest weight of theevidence only where the opposite conclusion is clearly evident Zink, 247 Ill. App. 3d at 1036.

Turning to defendant's first argument, we conclude that thetrial court's determination that an unambiguous promise was made isnot contrary to the manifest weight of the evidence. Defendantpoints to two sources of potential ambiguity. First, defendantasserts that the bid upon which plaintiff relied was for 16 doors,while the Wheaton Project required 18 doors. We find this argumentunpersuasive. The trial court based its award on defendant'shaving forwarded a bid to plaintiff for 16 doors. The bid sheetitself, showing a bid for 16 doors, is contained in the record. That the project required two additional doors says nothing aboutwhether the bid unambiguously stated that defendant would provideplaintiff with 16 doors at the quoted cost. Defendant does notexplain how its bid, taken as a bid for 16 doors as the trial courttook it, was in some way ambiguous.

Second, defendant argues that its bid was ambiguous because itdid not specify the manufacturer of the doors it proposed to use. The trial court ruled that no ambiguity existed sufficient topreclude the application of promissory estoppel because defendant'sbid was based on the plans and specifications for the WheatonProject, which clearly set forth what constituted an acceptabledoor. Evidence in the record supported this finding. Hookertestified that defendant consults plans and specifications prior tosubmitting bids on projects. Further, Pickus recounted theconversation he had with Murphy on September 26, 1997. During thisconversation, Pickus and Murphy compared defendant's bid with theplans for the Wheaton Project and Murphy assured Pickus thatdefendant's bid was correct.

Defendant asserts that evidence to the contrary exists. According to defendant, it was undisputed at trial that, when asubcontractor intended a particular manufacturer, the manufacturerwas specified in the subcontractor's bid. In support, defendantpoints to three bids from other subcontractors that did namespecific manufacturers and testimony from Hooker that defendant'sbid did not. Such evidence is wholly insufficient to establish atrade practice or custom. See Clark v. General Foods Corp., 81Ill. App. 3d 74, 78 (1980), quoting Kelly v. Carroll, 223 Ill. App.309, 315-16 (1921) (" 'A usage or custom to be binding must be souniform, long-established and generally acquiesced in and so wellknown as to induce the belief that the parties contracted withreference to it, nothing appearing in their contract to thecontrary, and the existence of such a custom or usage cannot beconsidered established when the proof consists of a few isolatedinstances' "). If plaintiff should have known to interpretdefendant's bid in light of the custom to which defendant alludes,defendant failed to introduce any substantial evidence of this attrial.

Some support for defendant's position can be found in the factthat the bid sheet contained a space to indicate that the bid wasbased on plans and specifications. This space was left blank. However, the weight of this evidence is undermined by the fact thatdefendant's later bids, including its final one using Fimble doors,also contained no indication in the space provided that the bid wasbased on any plans or specifications. In any event, it was for thetrial court, sitting as the trier of fact, to resolve conflicts inthe evidence. Rodgers v. Withers, 229 Ill. App. 3d 246, 250(1992). The trial court's decision on the ambiguity issue findssupport in the record, and, although evidence to the contraryexists, it is not so compelling as to render the trial court'sdecision erroneous. We will not substitute our judgment for thatof the trial court in such circumstances.

Defendant relies on Camosy, Inc. v. River Steel, Inc., 253Ill. App. 3d 670 (1993), in support of its argument. In that case,a subcontractor submitted a bid to a general contractor that statedit would "[f]urnish and erect" structural metal on one of thegeneral contractor's projects. Camosy, 253 Ill. App. 3d at 672. On the same page of the bid, a second section listed "[e]rection"among things excluded from the bid. Camosy, 253 Ill. App. 3d at672. This court held that the bid was ambiguous such thatpromissory estoppel would not lie. Camosy, 253 Ill. App. 3d at676-77. We find Camosy distinguishable. Unlike Camosy, theinstant case does not involve a bid containing a blatantcontradiction on its face. Rather, we are here concerned withwhether the bid adequately described what was being proposed. Wereject defendant's contention that the trial court found the bid tobe ambiguous. Defendant's reliance on certain statements the trialcourt made in rendering its decision that acknowledged that the biditself did not specify the manufacturer of the doors is misplaced. Read as a whole, the trial court clearly found that the bid, viewedin light of the plans and specifications for the Wheaton Project,was not ambiguous. As noted above, this finding is not contrary tothe manifest weight of the evidence. Thus, Camosy provides littleguidance here.

We now turn to defendant's next argument. Defendant contendsthat plaintiff's reliance upon its bid was not reasonable and hencenot foreseeable from defendant's point of view. Defendant advancestwo theories on this point. First, defendant asserts that, becauseits bid was so much lower than the others plaintiff received,plaintiff knew it was erroneous and thus should not have relied onit. Second, defendant points to plaintiff's failure to forward asigned purchase order or some other writing to it within 30 days,as was required in the bid documents. According to defendant, thisfailure to comply with a condition required by the bid renders anysubsequent reliance unreasonable.

We find defendant's first contention unpersuasive. It isgenerally true that a general contractor that receives a bid thatis substantially lower than other bids it receives is put on noticethat the bid may be erroneous. See S.N. Nielsen Co. v. NationalHeat & Power Co., 32 Ill. App. 3d 941, 945-46 (1975). In thepresent case, Pickus, when confronted by defendant's low bid,contacted defendant and expressed his concern that the bid waserroneous. Murphy stated that the bid was accurate, that defendantwould honor it, and that it had been submitted to other generalcontractors. Murphy's assurances were sufficient to dispel anyimpression held by Pickus that the bid had been made in error. Under these circumstances, we cannot find that the trial court'sdecision was against the manifest weight of the evidence simplybecause defendant's bid was substantially lower than the othersreceived by plaintiff.

Second, defendant asserts that plaintiff's failure to forwarda written purchase within 30 days, as specified on the face of thebid, renders any subsequent reliance unreasonable. It isundisputed that no such order was tendered to defendant. The trialcourt rejected this argument, finding that the 30-day provision wasnot a firm rule in the construction industry and that "generally,things go beyond that time frame." Defendant contends that thereis no evidence in the record to support this finding.

Defendant's observation is correct. In its brief, plaintiffpoints to no basis for this finding, and our reading of the recordreveals none as well. In fact, the only evidence in the recordaddressing the existence of a trade practice regarding the 30-dayprovision is contrary to the trial court's finding. Hookerexplained that defendant included this provision in the bid becauseits suppliers would only hold their prices for 30 days. Hookeradded that it is a custom of the industry that contracts be inwriting and that subcontractors order no material until theyreceive something in writing. Defendant also points out that twoother door companies included similar provisions in their bids;however, this fact provides weak support, at best, for theexistence of this trade practice, as the inclusion of suchprovisions in these bids says nothing as to whether they weretypically enforced. Plaintiff submitted no contradictory evidencefrom which the existence of a trade practice could be inferred.

The party asserting the existence of a trade practice bearsthe burden of proving its existence. Katz v. Brooks, 65 Ill. App.2d 155, 160 (1965). Plaintiff submitted no evidence of a tradepractice indicating that such provisions like the one indefendant's bid were routinely disregarded. Accordingly, the trialcourt erred in finding that such a trade practice existed. SeeRoberts v. Buske 12 Ill. App. 3d 630, 632 (1973). Absent thistrade practice, plaintiff cannot establish that it was reasonablefor it to rely on defendant's bid, after the bid was to expire onits own terms, without taking the specified action to consummatethe contract.

Plaintiff relies on Illinois Valley Asphalt, Inc. v. J.F.Edwards Construction Co., 90 Ill. App. 3d 768 (1980), in arguingthat its failure to respond within 30 days does not preclude itspromissory estoppel claim. That case is distinguishable. IllinoisValley Asphalt did involve a factual situation similar to thepresent case, where a general contractor responded to asubcontractor's bid in writing after the date the subcontractorfixed in its bid. Illinois Valley Asphalt, 90 Ill. App. 3d at 769-70. However, after the bidding had opened, a representative of thegeneral contractor told a representative of the subcontractor that,if the general contractor was awarded the contract, it would awardthe subcontract to the subcontractor. Illinois Valley Asphalt, 90Ill. App. 3d at 769. At trial, evidence was presented that a tradepractice existed that such a communication was sufficient to awardthe subcontract. Illinois Valley Asphalt, 90 Ill. App. 3d at 770. In that case, the plaintiff presented evidence that established atrade practice demonstrating that it was reasonable to rely on thedefendant's bid. In the present case, no such evidence exists.

Plaintiff points out that a conversation occurred betweenMurphy and Pickus similar to the one the court relied on inIllinois Valley Asphalt. As noted above, in Illinois ValleyAsphalt it was shown that the conversation was sufficient to awardthe subcontract to the subcontractor considered in the context ofa prevailing trade practice. The existence of a trade practice isa question of fact. Clark, 81 Ill. App. 3d at 78-79. We cannotassume the existence of a similar trade practice absent evidence tosupport its existence merely because such a trade practice wasproved in Illinois Valley Asphalt. Hence, this similarity betweenthe two cases provides no support for plaintiff's position

In light of the foregoing, the judgment of the circuit courtof Lake County is reversed.

Reversed.

HUTCHINSON, P.J., and BOWMAN, J., concur.