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04/13/87 the Millikin National Bank v. the Millikin National Bank

April 13, 1987

APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT IONA K. SEEFELDT ET AL., PLAINTIFFS-APPELLANTS

v.

THE MILLIKIN NATIONAL BANK OF DECATUR ET AL., DEFENDANTS-APPELLEES (JACK WYSE ET AL., DEFENDANTS)



506 N.E.2d 1052, 154 Ill. App. 3d 715, 107 Ill. Dec. 161 1987.IL.489

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiffs brought this action to recover damages which they claim to have sustained as a result of defendants' fraud and conspiracy to defraud. Three of the defendants, the Millikin National Bank of Decatur (the Bank), Jerry Skeffington, and Robert Skeffington, filed motions for summary judgment. The motions were granted, and the circuit court of Macon County entered judgments in defendants' favor. Also, the court made a finding pursuant to Supreme Court Rule 304(a) (103 Ill. 2d R. 304(a)) that no just reason existed for delaying enforcement or appeal. Plaintiffs appeal.

In a prior appeal, we reversed the lower court's order granting defendants judgment on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). (Seefeldt v. Millikin National Bank (1985), 137 Ill. App. 3d 841, 485 N.E.2d 30.) In that appeal, we held that the lower court had granted defendants' motion with the improper assistance of additional discovery material, namely, certain depositions. We determined that such assistance was improper on motions for judgment on the pleadings. We made no determination regarding the evidence outside of the allegations in plaintiffs' first amended complaint. On remand, the Bank and Jerry and Robert Skeffington filed motions for summary judgment. In order to decide this appeal, we must discuss in more detail the allegations in the complaint and the supporting material in the record.

Plaintiffs' first amended complaint, filed on October 22, 1984, alleged that Jerry Skeffington, Robert Skeffington, Warren Hagen, John James Malloy, and Wayne B. Phillips were joint venturers in "Big I, Inc." (Big I), a real estate development venture. The Bank provided financing for

The Bank and both Skeffingtons answered the complaint, denying fraud and conspiracy to commit fraud. After discovery, the three defendants filed motions for summary judgment, arguing that they were entitled to judgment as a matter of law.

The sole issue is whether the court should have granted summary judgments in favor of the Bank and Jerry and Robert Skeffington. Section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005) sets forth the procedure for summary judgments, and provides in part:

"(b) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.

(c) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment sought shall be rendered without delay 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."

It is well established that the summary judgment procedure is an important tool in the administration of Justice, and its use in a proper case is to be encouraged because its benefits inure not only to the litigants in the saving of time and expenses, but to the community as well in avoiding congestion of trial calendars and the expenses of unnecessary trials. (Martin v. 1727 Corp. (1983), 120 Ill. App. 3d 733, 736, 458 N.E.2d 990, 992.) In reviewing the order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact does still exist. (Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1098, 441 N.E.2d 860, 863.) Summary judgment is proper when the matters properly before the court show that if the case goes to trial, there would be no question the trier of fact would be required to decide and the movant would be entitled to judgment as a matter of law. (Scheff v. Fort Dearborn Life Insurance Co. (1986), 148 Ill. App. 3d 77, 80, 499 N.E.2d 78, 80.) The trial court must construe any evidence in support of the motions strongly against the movant and liberally in favor of the opponent. (Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.) Even though a complaint may purport to raise an issue of material fact, if such issue is not further supported by evidentiary facts, summary judgment is appropriate. (Harrington v. Chicago Sun-Times (1986), 150 Ill. App. 3d 797, 801, 502 N.E.2d 332, 334.) In determining the genuineness of a fact, a court should ignore personal Conclusions, opinions, and self-serving statements and consider only facts admissible in evidence under the rules of evidence. Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 571, 501 N.E.2d 376, 390.

In this case, the plaintiffs argue that defendants conspired to commit fraud against them and did commit fraud against them. In a civil conspiracy, the wrongful act alleged to have been done in pursuance of a conspiracy, and not the fact of the conspiracy itself, is the gist of the action for damages. (Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, 667, 344 N.E.2d 805, 816.) As the alleged wrongful act in this case is fraud, we must focus on the evidence of fraud contained in the depositions, admissions, and affidavits in evidence to determine whether the summary judgments were properly granted.

The elements of fraud are: (1) a false statement of a material fact; (2) the party making the statement knew or believed it to be untrue; (3) that the party to whom the statement was made had a right to rely on it and did rely on it; (4) that the statement was made for the purpose of inducing the other party to act; and (5) that reliance by the person to whom the statement was made led to his injury. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 185-86, 441 N.E.2d 324, 331-32.) As stated above, one of the elements of a fraudulent misrepresentation is that the injured party justifiably relied on the false statement. In determining whether reliance is reasonable, courts look to all the relevant circumstances surrounding the alleged misrepresentation. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 454 N.E.2d 723.) Generally, it is only where parties do not have equal knowledge or means of obtaining knowledge of the facts which are allegedly misrepresented that a person may justifiably rely on them. (Central States Joint Board v. ...


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