No. 2--00--1194

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

PICKUS CONSTRUCTION AND	)	Appeal from the Circuit

EQUIPMENT,	)	Court of Lake County

	)

	Plaintiff-Appellee,	)

	)

v. 	)	No. 98--L--535

	)

AMERICAN OVERHEAD DOOR,	)	Honorable

	)	Barbara C. Gilleran-Johnson,

	Defendant-Appellant.	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE GROMETER delivered the opinion of the court:

	Defendant, American Overhead Door (AOD), appeals from a judgment of the circuit court of Lake County entered in favor of

plaintiff, 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 to

the manifest weight of the evidence.  For the following reasons, we

reverse.

	Before turning to the merits of this appeal, we wish to

address the parties' disregard of the supreme court rules

concerning appellate briefs, which has needlessly hindered this

court in reaching a decision.  Both parties frequently ignore the

rules 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]itations

shall be made as provided in Rule 6."  188 Ill. 2d R. 341(d).  Rule 

No. 2--00--1194

6 mandates that "[c]itations of cases must be by title, to the page

of the volume where the case begins, and to the pages upon which

the pertinent matter appears in at least one of the reporters

cited."  145 Ill. 2d R. 6.  These rules are not mere suggestions;

they are mandatory, and this court possesses the discretion to

impose appropriate sanctions for violations.  See Geers v. Brichta, 248 Ill. App. 3d 398, 400 (1993).  We would be justified in finding

a number of these arguments waived.  See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927-28 (1992) (noting violation of Supreme Court Rule 341(d), which incorporates Supreme Court Rule 6,

can result in waiver of an argument).  Had we exercised this

prerogative, the result of this case might have been different. 

Defendant also raises some arguments for the first time in its

reply brief, which we will not consider.  See 188 Ill. 2d R.

341(e)(7) ("Points not argued are waived and shall not be raised in

the reply brief, in oral argument, or on petition for rehearing"). 

	Further, both parties have violated numerous other supreme

court rules.  Despite the clear dictate of Supreme Court Rule 6 that "[i]t is not sufficient to use only supra or infra," plaintiff does so.  145 Ill. 2d R. 6.  The covers of both defendant's main

brief and reply brief do not name the trial judge entering the

judgment under review, in contravention of Supreme Court Rule

341(b).  188 Ill. 2d R. 341(b).  Defendant has also disregarded

Supreme Court Rule 341(e)(2), in that its introductory paragraph does not contain a statement as to "whether any question is raised

on the pleadings."  188 Ill. 2d R. 341(e)(2).  Additionally,

Supreme Court Rule 341(e)(7) provides that "[c]itation of numerous

authorities in support of the same point is not favored."  188 Ill.

2d R. 341(e)(7).  Nevertheless, plaintiff cites four cases which

set forth the elements of promissory estoppel.  None of the four

citations indicate upon which pages these elements appear. 

Thereafter, plaintiff provides two cases in support of the

proposition that " '[p]romissory estoppel' is a doctrine under

which a plaintiff may recover without the presence of a contract." 

Both of these citations use only supra.  Both parties, as well as all appellate counsel, are advised to pay close attention to these

rules in the future.

BACKGROUND

	Plaintiff is a construction company that was engaged as the

general contractor on a project known as the Wheaton Public Works

Project (Wheaton Project).  James Pickus has been the company's

vice-president of operations since 1990.  In this position, he is

involved in bidding and reviewing contracts between plaintiff and

its various clients and subcontractors.  Defendant is a company

that is in the business of supplying and installing overhead doors. 

Larry Hooker has been its president for over 30 years.  At the time

of the events that form the basis of this suit, Trevor Murphy was

employed by defendant as a salesman.

	Plaintiff received plans for the Wheaton Project early in

September 1997.  Bidding on the project was to close on September

26, 1997.  The parties dispute whether plaintiff invited defendant

to submit a bid or defendant learned of the project from an

independent source.  Pickus testified that plaintiff does not send

out specifications for a project with invitations; rather, it makes

follow-up calls to see which subcontractors are interested and

provides them with plans and specifications.  Hooker testified that

plaintiffdefendant learned of the Wheaton Project through the Dodge Report,

a trade publication that lists upcoming projects.  According to

Hooker, when it learns of a project in this manner that it is 

interested in, it goes to the Dodge Room--apparently a facility

maintained by the publishers of the Dodge Report--or directly to a

general contractor to obtain plans.  Hooker stated that defendant

does not ignore specifications when bidding a job.  The

specifications for the Wheaton Project required the use of Fimble

doors or a comparable alternative.  Fimble is a manufacturer of

overhead doors.

	On September 22, 1997, plaintiff received defendant's first

bid on the Wheaton Project by fax.  In this bid, defendant proposed

to 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.  These

different classifications apparently referred to the doors' sizes. 

Fourteen doors were type A, two were type B, 1one was type C, and 1

one was type D.  The bid did not indicate from which manufacturer

defendant intended to procure these doors.  This bid also included 18 operators.  "Void" was written across this bid because it was

superceded by later bids.

	Plaintiff received a second bid from defendant on September

24, 1997, at 8:41 a.m. in the amount of $69,575.  This bid

consisted of three pages; however, only the first and third appear

in the record.  On the first page, type A doors are listed, but no

quantity is shown.  Type C doors are omitted.  Thus, only three

doors, two type B and one type D, are listed.  Pickus testified

that the second page of the bid listed two or three additional

doors.  Eighteen operators were also included in this bid.  This

bid has "void" written over it.  At 8:57 a.m. of the same morning,

defendant faxed plaintiff a corrected first page that listed the

quantity of type A doors as 13.  All bids contained a statement

indicating that, because of potential price increases by suppliers,

defendant would not hold prices for more than 30 days and a signed

purchase order must be tendered.

	On September 26, 1997, the date bidding on the Wheaton Project

was to close, plaintiff received four additional bids from other

overhead door companies.  The lowest of these was from a company

called Door Systems in the amount of $113,500.  Pickus stated that,

after receiving these bids, he became concerned about defendant's

bid because it was considerably lower and telephoned Murphy to

express his concern.  Pickus testified to the following

conversation with Murphy.  He advised Murphy that he believed defendant's bid was erroneous.  Both Pickus and Murphy opened plans

to the Wheaton Project in their respective offices.  They went over

the plans to insure defendant's bid complied with them.  Murphy

assured Pickus that the bid was correct.  Pickus also inquired as

to whether the bid had been sent to other general contractors, and

Murphy said that it had.  Pickus told Murphy that he felt the bid

was too low and that Murphy should advise all of the general

contractors to whom it had been sent of this problem.  Pickus

explained that, if he did not use the bid and the other general

contractors did, plaintiff would be at a competitive disadvantage

relative to the other general contractors.  Murphy stated the bid

was correct and would be honored.  Pickus informed Murphy that

plaintiff would be using the bid and if it was awarded the project,

theyit 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.  Plaintiff

was 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 was

some contact between plaintiff and defendant in the 30 days

following the date defendant's last bid was received.  Defendant

disputes 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 purchase order or any other writing indicating the acceptance of defendant's

bid during this period.

	Plaintiff contacted defendant early in November 1997 to set up

a meeting to award defendant the contract for the overhead door

system.  The meeting took place on November 17, 1997.  Pickus was

called into the meeting as it was nearing completion.  Murphy told

Pickus that he had not figured the specified manufacturer, Fimble, 

into the bid and that defendant was no longer willing to enter into

a contract based on its bid.  Murphy stated that the door on which

defendant had based its bid was equal or superior to the door

identified in the plans and specifications for the project and that

he would be able to get the architect to approve it.  The

architect, however, did not do so.

	Subsequently, defendant submitted additional proposals using

different doors.  All were rejected by the architect.  Finally, on

May 13, 1998, defendant submitted a proposal using Fimble doors at

a cost of $122,800.  Pickus then spoke with Hooker about the

matter.  Hooker told Pickus that the only way it would perform the

job was if plaintiff sent defendant a contract reflecting the May

13 proposal.  Plaintiff declined and instead entered into a

contract with Door Systems at a cost of $114,500.

	Plaintiff then filed this action, seeking damages on a

promissory estoppel theory.  After a bench trial, the court found

for plaintiff.  The trial court found that plaintiff had established a prima facie case of promissory estoppel.  The court held that defendant's bid was not ambiguous despite not mentioning

the manufacturer, as it was based on the plans and specifications

for the Wheaton Project.  The court noted that the parties agreed

that one typically has plans and specifications available when one

makes a bid.  The court found Pickus's testimony credible regarding

the conversation he purported to have had with Murphy.  The court

acknowledged that defendant's last bid, of which the second page

was not made a part of the record, included only 16 doors, although 

the plans called for 18.  The court reduced damages proportionately

as a result.  Regarding the 30-day written confirmation provision

in defendant's bid, the court observed that, in the construction

industry, this was not a firm rule.  Accordingly, the trial court

awarded plaintiff $35,079.  Defendant now appeals.

ANALYSIS

	In order to succeed on a claim of promissory estoppel, a

plaintiff must show (1) that the defendant made a promise

unambiguous in its terms, (2) that the plaintiff relied on the

promise, (3) that this reliance was expected and foreseeable from

the defendant's position, and (4) that the plaintiff's reliance on

the promise was detrimental.  Gerson Electric Construction Co. v. Honeywell, Inc., 117 Ill. App. 3d 309, 312 (1983).  Defendant contends that plaintiff failed to demonstrate both the existence of

an unambiguous promise and that plaintiff's reliance was foreseeable to defendant.  As this appeal comes to us following a

bench trial, we will not disturb the decision of the trial court

unless 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 the

evidence only where the opposite conclusion is clearly evident 

Zink, 247 Ill. App. 3d at 1036.

	Turning to defendant's first argument, we conclude that the

trial court's determination that an unambiguous promise was made is

not contrary to the manifest weight of the evidence.  Defendant

points to two sources of potential ambiguity.  First, defendant

asserts that the bid upon which plaintiff relied was for 16 doors,

while the Wheaton Project required 18 doors.  We find this argument

unpersuasive.  The trial court based its award on defendant's

having forwarded a bid to plaintiff for 16 doors.  The bid sheet

itself, showing a bid for 16 doors, is contained in the record. 

That the project required two additional doors says nothing about

whether the bid unambiguously stated that defendant would provide

plaintiff with 16 doors at the quoted cost.  Defendant does not

explain how its bid, taken as a bid for 16 doors as the trial court

took it, was in some way ambiguous.

	Second, defendant argues that its bid was ambiguous because it

did not specify the manufacturer of the doors it proposed to use. 

The trial court ruled that no ambiguity existed sufficient to preclude the application of promissory estoppel because defendant's

bid was based on the plans and specifications for the Wheaton

Project, which clearly set forth what constituted an acceptable

door.  Evidence in the record supported this finding.  Hooker

testified that defendant consults plans and specifications prior to

submitting bids on projects.  Further, Pickus recounted the

conversation he had with Murphy on September 26, 1997.  During this

conversation, Pickus and Murphy compared defendant's bid with the

plans for the Wheaton Project, and Murphy assured Pickus that

defendant's bid was correct.

	Defendant asserts that evidence to the contrary exists. 

According to defendant, it was undisputed at trial that, when a

subcontractor intended a particular manufacturer, the manufacturer

was specified in the subcontractor's bid.  In support, defendant

points to three bids from other subcontractors that did name

specific manufacturers and testimony from Hooker that defendant's

bid did not.  Such evidence is wholly insufficient to establish a

trade practice or custom.  See Clark v. General Foods Corp., 81 Ill. 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 so

uniform, long-established and generally acquiesced in and so well

known as to induce the belief that the parties contracted with

reference to it, nothing appearing in their contract to the

contrary, and the existence of such a custom or usage cannot be considered established when the proof consists of a few isolated

instances' ").  If plaintiff should have known to interpret

defendant's bid in light of the custom to which defendant alludes,

defendant failed to introduce any substantial evidence of this at

trial.

	Some support for defendant's position can be found in the fact

that the bid sheet contained a space to indicate that the bid was

based on plans and specifications.  This space was left blank. 

However, the weight of this evidence is undermined by the fact that

defendant's later bids, including its final one using Fimble doors,

also contained no indication in the space provided that the bid was

based on any plans or specifications.  In any event, it was for the

trial court, sitting as the trier of fact, to resolve conflicts in

the evidence.  Rodgers v. Withers, 229 Ill. App. 3d 246, 250 (1992).  The trial court's decision on the ambiguity issue finds

support in the record, and, although evidence to the contrary

exists, it is not so compelling as to render the trial court's

decision erroneous.  We will not substitute our judgment for that

of the trial court in such circumstances.

	Defendant relies on Camosy, Inc. v. River Steel, Inc., 253 Ill. App. 3d 670 (1993), in support of its argument.  In that case,

a subcontractor submitted a bid to a general contractor that stated

it would "[f]urnish and erect" structural metal on one of the

general 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 at 672.  This court held that the bid was ambiguous such that

promissory estoppel would not lie.  Camosy, 253 Ill. App. 3d at 676-77.  We find Camosy distinguishable.  Unlike Camosy, the instant case does not involve a bid containing a blatant

contradiction on its face.  Rather, we are here concerned with

whether the bid adequately described what was being proposed.  We

reject defendant's contention that the trial court found the bid to

be ambiguous.  Defendant's reliance on certain statements the trial

court made in rendering its decision that acknowledged that the bid

itself did not specify the manufacturer of the doors is misplaced. 

Read as a whole, the trial court clearly found that the bid, viewed

in light of the plans and specifications for the Wheaton Project,

was not ambiguous.  As noted above, this finding is not contrary to

the manifest weight of the evidence.  Thus, Camosy provides little guidance here.

	We now turn to defendant's next argument.  Defendant contends

that plaintiff's reliance upon its bid was not reasonable and hence

not foreseeable from defendant's point of view.  Defendant advances

two theories on this point.  First, defendant asserts that, because

its bid was so much lower than the others plaintiff received,

plaintiff knew it was erroneous and thus should not have relied on

it.  Second, defendant points to plaintiff's failure to forward a signed purchase order or some other writing to it within 30 days,

as was required in the bid documents.  According to defendant, this

failure to comply with a condition required by the bid renders any

subsequent reliance unreasonable.

	We find defendant's first contention unpersuasive.  It is

generally true that a general contractor that receives a bid that

is substantially lower than other bids it receives is put on notice

that the bid may be erroneous.  See S.N. Nielsen Co. v. National Heat & Power Co., 32 Ill. App. 3d 941, 945-46 (1975).  In the present case, Pickus, when confronted by defendant's low bid,

contacted defendant and expressed his concern that the bid was

erroneous.  Murphy stated that the bid was accurate, that defendant

would honor it, and that it had been submitted to other general

contractors.  Murphy's assurances were sufficient to dispel any

impression held by Pickus that the bid had been made in error. 

Under these circumstances, we cannot find that the trial court's

decision was against the manifest weight of the evidence simply

because defendant's bid was substantially lower than the others

received by plaintiff.

	Second, defendant asserts that plaintiff's failure to forward

a written purchase within 30 days, as specified on the face of the

bid, renders any subsequent reliance unreasonable.  It is

undisputed that no such order was tendered to defendant.  The trial

court rejected this argument, finding that the 30-day provision was not a firm rule in the construction industry and that "generally,

things go beyond that time frame."  Defendant contends that there

is no evidence in the record to support this finding.

	Defendant's observation is correct.  In its brief, plaintiff

points to no basis for this finding, and our reading of the record

reveals none as well.  In fact, the only evidence in the record

addressing the existence of a trade practice regarding the 30-day

provision is contrary to the trial court's finding.  Hooker

explained that defendant included this provision in the bid because

its suppliers would only hold their prices for 30 days.  Hooker

added that it is a custom of the industry that contracts be in

writing and that subcontractors order no material until they

receive something in writing.  Defendant also points out that two

other door companies included similar provisions in their bids;

however, this fact provides weak support, at best, for the

existence of this trade practice, as the inclusion of such

provisions in these bids says nothing as to whether they were

typically enforced.  Plaintiff submitted no contradictory evidence

from which the existence of a trade practice could be inferred.

	The party asserting the existence of a trade practice bears

the burden of proving its existence.  Katz v. Brooks, 65 Ill. App. 2d 155, 160 (1965).  Plaintiff submitted no evidence of a trade

practice indicating that such provisions like the one in

defendant's bid were routinely disregarded.  Accordingly, the trial court erred in finding that such a trade practice existed.  See

Roberts v. Buske 12 Ill. App. 3d 630, 632 (1973).  Absent this trade practice, plaintiff cannot establish that it was reasonable

for it to rely on defendant's bid, after the bid was to expire on

its own terms, without taking the specified action to consummate

the contract.

	Plaintiff relies on Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co., 90 Ill. App. 3d 768 (1980), in arguing that its failure to respond within 30 days does not preclude its

promissory estoppel claim.  That case is distinguishable.  Illinois Valley Asphalt did involve a factual situation similar to the present case, where a general contractor responded to a

subcontractor's bid in writing after the date the subcontractor

fixed in its bid.  Illinois Valley Asphalt, 90 Ill. App. 3d at 769- 70.  However, after the bidding had opened, a representative of the

general contractor told a representative of the subcontractor that,

if the general contractor was awarded the contract, it would award

the subcontract to the subcontractor.  Illinois Valley Asphalt, 90 Ill. App. 3d at 769.  At trial, evidence was presented that a trade

practice existed that such a communication was sufficient to award

the subcontract.  Illinois Valley Asphalt, 90 Ill. App. 3d at 770.  In that case, the plaintiff presented evidence that established a

trade practice demonstrating that it was reasonable to rely on the

defendant's bid.  In the present case, no such evidence exists.

	Plaintiff points out that a conversation occurred between

Murphy and Pickus similar to the one the court relied on in

Illinois Valley Asphalt.  As noted above, in Illinois Valley Asphalt it was shown that the conversation was sufficient to award the subcontract to the subcontractor considered in the context of

a prevailing trade practice.  The existence of a trade practice is

a question of fact.  Clark, 81 Ill. App. 3d at 78-79.  We cannot assume the existence of a similar trade practice absent evidence to

support its existence merely because such a trade practice was

proved in Illinois Valley Asphalt.  Hence, this similarity between the two cases provides no support for plaintiff's position

	In light of the foregoing, the judgment of the circuit court

of Lake County is reversed.

	Reversed.

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