Gas Depot, Inc. v. Zahdan

2023 IL App (1st) 220490-U

• Court: Appellate Court of Illinois
• Decided: September 20, 2023
• Docket: 1-22-0490
• Status: Unpublished

Opinion

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). 2 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

3 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,

4 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. 5 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. 6 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.”

7 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. 8 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. 9 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.

10 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

11 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.”

12 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.

13 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

14 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

15 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.

16 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.

17 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?

18 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?

Q. Did you have a Fuel Supply Agreement with them?

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.

19 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?

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?

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?

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?

Q. Based on a future lease that you never received?

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.