{ "id": 5409755, "name": "THOMAS CUMMINGS et al., Plaintiffs-Appellees and Cross-Appellants, v. BEATON & ASSOCIATES, INC., Defendant (McDonald's Corporation, Defendant-Appellant and Cross-Appellee); THOMAS CUMMINGS et al., Plaintiffs-Appellants, v. BEATON & ASSOCIATES, INC., Defendant-Appellee", "name_abbreviation": "Cummings v. Beaton & Associates, Inc.", "decision_date": "1992-12-17", "docket_number": "Nos. 1\u201491\u20142131, 1\u201491\u20142492 cons.", "first_page": "287", "last_page": "328", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 287" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "549 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506249 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0792-01" ] }, { "cite": "472 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146414 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0317-01" ] }, { "cite": "492 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 912", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450455 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0912-01" ] }, { "cite": "187 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2668780 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0453-01" ] }, { "cite": "569 N.E.2d 1156", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1159" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527931 ], "weight": 2, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0113-01" ] }, { "cite": "546 N.E.2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518058 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0571-01" ] }, { "cite": "461 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "364-65" } ], "opinion_index": 0 }, { "cite": "101 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160472 ], "weight": 3, "pin_cites": [ { "page": "200" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0196-01" ] }, { "cite": "516 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546630 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0901-01" ] }, { "cite": "535 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "127 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564596 ], "pin_cites": [ { "page": "86-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0061-01" ] }, { "cite": "427 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5501054 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0544-01" ] }, { "cite": "852 F.2d 276", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542807 ], "opinion_index": 0, "case_paths": [ "/f2d/852/0276-01" ] }, { "cite": "434 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5472320 ], "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0521-01" ] }, { "cite": "522 N.E.2d 334", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 867", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3471001 ], "pin_cites": [ { "page": "870" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0867-01" ] }, { "cite": "393 N.E.2d 1361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3276799 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0414-01" ] }, { "cite": "1 N.E.2d 745", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "285 Ill. App. 217", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3354613 ], "opinion_index": 0, "case_paths": [ "/ill-app/285/0217-01" ] }, { "cite": "154 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1936, "pin_cites": [ { "page": "690" } ], "opinion_index": 0 }, { "cite": "15 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2766109 ], "year": 1936, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0272-01" ] }, { "cite": "293 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 2d 88", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1593054 ], "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0088-01" ] }, { "cite": "103 Ill. App. 3d 824", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5479633 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0824-01" ] }, { "cite": "103 Ill. App. 3d 1052", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483070 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/1052-01" ] }, { "cite": "421 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "85 Ill. 2d 59", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470237 ], "weight": 2, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0059-01" ] }, { "cite": "452 N.E.2d 55", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519110 ], "year": 1981, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0339-01" ] }, { "cite": "180 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "348 Ill. 280", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5274408 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "286" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill/348/0280-01" ] }, { "cite": "463 N.E.2d 896", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 913", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676706 ], "weight": 3, "pin_cites": [ { "page": "917" }, { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0913-01" ] }, { "cite": "841 F.2d 159", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 6119419, 11294780 ], "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/br/83/0159-01", "/f2d/841/0159-01" ] }, { "cite": "376 N.E.2d 693", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3360540 ], "pin_cites": [ { "page": "1018-19" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/1015-01" ] }, { "cite": "432 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483847 ], "pin_cites": [ { "page": "1101" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/1095-01" ] }, { "cite": "1 N.E.2d 717", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 181", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3160323 ], "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-app/284/0181-01" ] }, { "cite": "485 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499029 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0367-01" ] }, { "cite": "78 B 4820", "category": "reporters:state", "reporter": "Barb.", "opinion_index": 0 }, { "cite": "517 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "164 Ill. App. 3d 407", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3583171 ], "pin_cites": [ { "page": "413" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/164/0407-01" ] }, { "cite": "390 U.S. 414", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171777 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/390/0414-01" ] }, { "cite": "567 N.E.2d 1083", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "209 Ill. App. 3d 655", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2543284 ], "pin_cites": [ { "page": "659-60" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/209/0655-01" ] } ], "analysis": { "cardinality": 2503, "char_count": 95661, "ocr_confidence": 0.753, "pagerank": { "raw": 1.9151725996160076e-07, "percentile": 0.732221646899105 }, "sha256": "dc03b1773927ee3744b9a826ef9c52cbfdb7dcabbf1c6773cc8f599812c12b29", "simhash": "1:8fe8b4b01e5fdea9", "word_count": 15079 }, "last_updated": "2023-07-14T16:37:18.171744+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS CUMMINGS et al., Plaintiffs-Appellees and Cross-Appellants, v. BEATON & ASSOCIATES, INC., Defendant (McDonald\u2019s Corporation, Defendant-Appellant and Cross-Appellee).\u2014THOMAS CUMMINGS et al., Plaintiffs-Appellants, v. BEATON & ASSOCIATES, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiffs, Thomas and Barbara Cummings, filed a six-count complaint against McDonald\u2019s Corporation and other defendants who allegedly waged a war of harassment and intimidation against plaintiffs after their company, Central Ice Cream Company, won a $52 million jury verdict in 1984 against McDonald\u2019s. The instant appeal is from one count of the complaint, which claims that McDonald\u2019s violated a written settlement agreement that would have compromised and settled all of the Cummingses\u2019 claims against McDonald\u2019s and its agents. McDonald\u2019s chairman of the board, Fred Turner, and its general counsel, Shelby Yastrow, are also named defendants. The remaining defendants are individuals and agencies or business entities who were hired to investigate the Cummingses and others at the request of McDonald\u2019s. These defendants (hereafter sometimes referred to as the non-McDonald\u2019s defendants) are Beaton & Associates, Inc.; Beaton Services, Ltd.; Financial and Technical Investigations, Inc.; Search International, Inc.; United States Security Services Corporation; International Intelligence, Inc.; John Burke; Desnoyers & Associates, Inc.; Richard M. Lucas; Alisha Ramshaw; Andrew Doppelt; David Accardi; Wallace Oshiro; and Nick Keller.\nThe parties filed cross-motions for summary judgment on count VI of the second amended complaint, which alleges that McDonald\u2019s had breached the 1985 settlement agreement. The court ruled in favor of the Cummingses and awarded contract damages of $4 million plus prejudgment interest of approximately $1.2 million. McDonald\u2019s appeals from both the judgment as to liability and the amount of damages. The Cummingses cross-appeal from the interest award, asserting that the trial court should have applied a higher rate of interest in its calculation. They also seek attorney fees based on McDonald\u2019s \u201cbad faith conduct.\u201d In addition, the Cummingses appeal from the court\u2019s separate ruling that the non-McDonald\u2019s defendants were agents of McDonald\u2019s and therefore included in the scope of the releases that were part of the settlement agreement.\nWe affirm the judgments in both appeals.\nBackground\nHISTORY OF THE ORIGINAL STATE COURT ACTION\nIn 1977, Central Ice Cream Company (Central) .filed suit against McDonald\u2019s in the circuit court of Cook County, alleging breach of an oral contract and fraud. During the pendency of that suit, Central went into bankruptcy and the bankruptcy estate was named as an additional plaintiff in the Central litigation. Thomas Cummings was president of Central and Barbara Cummings was its secretary. Both were directors and Barbara owned substantial stock in the company. Thomas Cummings testified at length in the trial as the primary witness against McDonald\u2019s. Fred Turner, chairman of the board of McDonald\u2019s, also testified. According to Cummings, Turner was the instrumentality of the fraud.\nIn January 1984, the jury returned a verdict against McDonald\u2019s, awarding $52 million to Central. McDonald\u2019s filed extensive post-trial motions in the State court, challenging the verdict, and these motions were pending for almost a year. During this period, McDonald\u2019s hired private investigators who, according to the Cummingses, undertook a course of harassing conduct that was designed to coerce Thomas Cummings into agreeing to a low settlement figure and to discourage him from testifying again if a new trial were to be ordered as a result of the post-trial motions. On June 20, 1985 (June 20), one week before the State court judge was set to rule on the post-trial motions, McDonald\u2019s, Central, the bankruptcy trustee, and plaintiffs executed a written settlement agreement that would have settled all claims against McDonald\u2019s for a total of $15.5 million. As part of the agreement, the Cummingses were to net $2.6 million from a $4 million payment that included attorney fees. In exchange, the Cummingses would execute a release of their personal claims against McDonald\u2019s. The signed settlement agreement required all parties to recommend the bankruptcy court\u2019s approval of the agreement. Mutual general releases were also drawn up.\nThe June 20 settlement agreement was not adopted by the bankruptcy court, for reasons that will be discussed, and McDonald\u2019s was allowed to tender the full $15.5 million to the bankruptcy court in settlement of the Central litigation, without settling the Cummingses\u2019 claims. Thereafter, the Cummingses brought the pending, multiple-count lawsuit against McDonald\u2019s and the other defendants.\nAccording to detailed allegations in the complaint, McDonald\u2019s undertook a campaign of harassment and intimidation following the Central verdict, targeting the Cummings family, their attorneys, the trial judge, and others. The record indicates McDonald\u2019s has, in fact, admitted to hiring one or more private investigation agencies to investigate the Cummingses. McDonald\u2019s contends, however, that its investigation was limited to information found in public records and did not include illegal activities.\nDiscovery answers in the record tend to substantiate at least some of the allegations. For example, certain of the non-McDonald\u2019s defendants admit that they were hired to conduct surveillance of the Cummingses\u2019 daughter, Lydia; that credit checks were run on various members of the family; and that at least one investigative agency was told to approach members of the Central jury. Other allegations have not been admitted, however, and we emphasize that they have not been tested and proven by a trial on the merits. We express no opinion as to the veracity of the allegations and we decline to set forth a complete listing of charges, countercharges, and defenses. Nonetheless, referring to the Cummingses\u2019 \u201cpersonal claims\u201d against McDonald\u2019s without some elaboration would be like referring to a hurricane as a weather pattern.\nThe Cummingses\u2019 six-count, second amended complaint states that investigators hired by McDonald's posed as members of a jury polling service and took the jurors out to restaurants in the hopes of obtaining affidavits to impeach the $52 million verdict. Uncooperative jurors were allegedly harassed with repeated telephone calls to their homes. Other allegations claim that McDonald\u2019s attorneys met with private investigators to compile extensive dossiers on the Cummingses and their personal accountant, whose office was ransacked in March 1984. After the break-in, the only file missing contained some of the Cummingses\u2019 tax returns. The complaint further alleges that McDonald\u2019s investigators also tried to find information to impugn the integrity of the circuit court judge who had presided over the Central litigation. Still other allegations include defendants\u2019 deliberate attempts to frighten Lydia Cummings through harassing telephone calls and following her at night in a slow-moving car. One of the most serfous allegations in the complaint involves an alleged murder plot against Thomas Cummings.\nThe complaint further alleges that after Central went bankrupt Thomas Cummings was acting as a consultant for Bordens. Bordens then offered him full-time employment and agreed to let him begin after the conclusion of the Central trial. Later, however, Bordens told him he could not have the job because McDonald\u2019s had threatened to withdraw all of its business, nationwide, if Bordens hired Cummings.\nAllegations like these are not the sort that normally accompany commercial litigation. We acknowledge their severity but do not wish to elevate their significance for purposes of the issues in this appeal, which are limited to the breach of settlement agreement.\nTHE TEEMS OF THE WEITTEN SETTLEMENT AGEEEMENT\nThe June 20 settlement agreement that is the subject of this appeal is a short document executed by the trustee in bankruptcy of the estate; Central Ice Cream Company, by its president (Thomas Cummings); the Cummingses, individually; McDonald\u2019s, by its vice-president and general counsel, Shelby Yastrow; and by the parties\u2019 lawyers. The settlement agreement states, in paragraph one, that it \u201cshall not be effective unless and until the Bankruptcy Court *** grants the approval needed to carry out the Settlement Agreement. Upon execution of this Agreement, Bernard C. Chaitman [trustee] will petition said Court for such approval, setting forth the complete terms hereof and seeking entry of an order acknowledging all such terms and the reasonableness thereof and finding that such terms are fair, equitable and to the benefit of the Bankrupt Estate.\u201d\nThe second paragraph lists Central and McDonald\u2019s as parties to the Central litigation pending in the State court who have, \u201cwith the full knowledge and consent of Cummings, agreed to settle and resolve all claims and disputes of all kinds between them including all claims which have been made or could have been made in any [pleading anywhere at any time]. Central and McDonald\u2019s agree to execute a stipulation, in the form attached hereto as Exhibit A. Central agrees that it will cooperate fully in securing the entry of the orders provided in the stipulation.\u201d\nThe third paragraph concerns the personal claim of the Cummingses against McDonald\u2019s, \u201cthe validity of which has been consistently denied by McDonald\u2019s; however, McDonald\u2019s and [the Cummingses] wish to settle all potential litigation between them and put all aspects of this matter to rest so far as all are concerned.\u201d\nParagraph four of the settlement agreement provides that \u201cCentral, McDonald\u2019s, and [the Cummingses] each agree to execute forms of mutual general release on the date provided in paragraph 6, below [in the form attached as Exhibit B].\u201d\nParagraph five recites McDonald\u2019s representation that \u201cit has independently decided that execution and performance of this Settlement Agreement is in the best interests of McDonald\u2019s and that it will recommend approval of the Settlement Agreement without reservation.\u201d Similar language is repeated for Central and Cummings regarding their best interests and recommendations of approval of the agreement. The paragraph concludes as follows: \u201cThe parties further agree that they will support the entry of all orders needed to effectuate this Settlement Agreement.\u201d\nThe sixth paragraph sets forth the timing of the entry of the necessary orders, stipulations, and releases, copies of which are attached to the agreement. This provision also sets out the monetary consideration for the settlement: \u201cMcDonald\u2019s shall deliver (a) to Bernard C. Chaitman, Trustee, Central Ice Cream Company, Case No. 78 B 4820, a check, payable in the form specified by [the court], in the sum of Eleven Million Four Hundred Ninety Nine Thousand Nine Hundred Ninety Nine and Ninety Nine Cents ($11,499,999.99) and (b) to Thomas and Barbara Cummings, jointly, a check in the sum of Two Million Four Hundred Thousand Dollars ($2,400,000) and to their attorneys, the law firm of Becker & Tenenbaum and the law firm of Spence, Moriarity & Schuster, a check for One Million Six Hundred Thousand Dollars ($1,600,000) (the latter stun being forty percent (40%) of the aggregate sum of Four Million Dollars ($4,000,000)).\u201d\nParagraph seven states that the parties understand and agree that the agreement is not to be taken as an admission of the validity of any of the claims against McDonald\u2019s.\nThe eighth paragraph declares that each signatory has read and understood it and has been advised by counsel. The last paragraph states that the document may be executed in counterparts.\nSETTLEMENT NEGOTIATIONS\nWhile the settlement agreement did not arise in a vacuum, we believe that the negotiations leading up to its execution are of greatly limited relevance to the dispositive issues in this case. Ordinarily, our analysis would focus on the express terms of the written agreement rather than what the parties did or said before or at the time of its execution. We must discuss the negotiations, however, because McDonald\u2019s defense to the breach of contract claim rests almost entirely on those negotiations as a way of explaining or justifying what McDonald\u2019s subsequently did in the bankruptcy court to trigger that court\u2019s rejection of the June 20 settlement agreement.\nApproximately one week before the trial judge in the Central litigation was set to rule on McDonald\u2019s post-trial motions, Fred Turner, McDonald\u2019s vice-president, telephoned Gerry Spence, one of the trial lawyers for Central, to discuss settlement. At stake, of course, was the $52 million jury verdict that might, or might not, survive McDonald\u2019s post-trial challenges and possible appeal. Turner offered $11 million in settlement, which was rejected, and after additional negotiations, the amount of $15.5 million was agreed upon. Because Central was in bankruptcy, any agreement was subject to bankruptcy court approval and the verdict, or settlement amount, was virtually the sole asset of the Central bankruptcy estate.\nMcDonald\u2019s notes that at this point in the discussion, nothing was said about the possibility of including the Cummingses\u2019 personal claims as part of the settlement (although it was assumed that the Cummingses would sign releases). According to McDonald\u2019s, their executive vice-president, Donald Horwitz, and Spence agreed to the sum of $15.5 million in settlement of the Central litigation. But when Spence related the offer to Thomas Cummings, whose signature on behalf of Central was necessary, Cummings raised some questions and Spence referred him to Central\u2019s bankruptcy lawyer. This lawyer informed Cummings he was \u201cnot going to see a penny\u201d for his company after the claimants were through. Cummings told Spence he would not sign it because he might not get anything and that he had personal claims against McDonald\u2019s that he would not give up. Spence supposedly had a \u201cbig fight\u201d with his client over the matter, saying he had given \u201chis word\u201d on the deal to Horwitz.\nSpence, who represented both Central and Cummings, then came up with the idea of allocating a portion of the total settlement amount to compensate the Cummingses on their harassment claims. When Spence relayed this proposition, Horwitz \u201chad an absolute uncontrolled fit\u201d and rejected the notion of paying Cummings anything. Horwitz then threatened to take the deal directly to the bankruptcy court without the Cummingses\u2019 participation or release. Spence strongly objected, as that approach amounted to a unilateral action instead of a freely negotiated settlement of all claims.\nFinally, after further discussion, the parties all signed the written agreement of June 20, which clearly and indisputably includes the Cummingses\u2019 personal claims and releases as part of the settlement package. McDonald\u2019s contends, however, that contemporaneously with the execution of the agreement, the parties orally agreed to inform the bankruptcy court about the negotiations and the fact that McDonald\u2019s was willing to tender the same amount of money to the bankruptcy estate without allocating money to the Cummingses and without obtaining their releases.\nBANKRUPTCY COURT PROCEEDINGS\nCentral\u2019s trustee, a signatory of the contract, applied to the bankruptcy court for approval of the parties\u2019 settlement agreement. On July 9, Judge Schmetterer, the bankruptcy judge, began hearing testimony, calling as the court\u2019s first witness Theodore Becker. Becker, as special litigation counsel to the estate as well as counsel for the Cummingses, was interrogated by the court regarding the fairness of the settlement agreement, primarily in the context of whether the settlement amount reflected the best compromise of the $52 million verdict. At that point, the State court\u2019s ruling on the post-trial motions had been sealed and that ruling was to remain sealed if the parties settled the case and stipulated, pursuant to their written agreement of June 20, that judgment for McDonald\u2019s should be entered notwithstanding the verdict. Because of the bankruptcy court\u2019s duty to protect the interests of creditors as well as the bankrupt estate, the court questioned Becker on July 9 about the reasons why there was an allocation of funds to the Cummingses on unspecified personal claims. Becker replied that he did not believe he could disclose the nature of the claims without violating the State court\u2019s order that had expunged the allegations from the record. Upon further questioning, Becker explained that he had appeared before Judge Norman in May of 1984 and March 1985 to complain of McDonald\u2019s misconduct in the wake of the jury\u2019s verdict. During that time period the post-trial motions were still pending before Judge Norman, and he ordered the allegations expunged from the record because they related to matters outside of the issues pending before him. Judge Schmetterer ordered Becker to deliver to his chambers a sealed copy of the expunged material. The judge also expressed concern that Becker and Spence might be in a conflict of interest situation with respect to their representation of the Cummingses personally in addition to Central.\nAt the end of the bankruptcy court session on July 9, 1985, Judge Schmetterer had not finished questioning Becker and had not made any ruling as to the Cummingses\u2019 portion of the settlement agreement. The next day, however, June 10, attorney Fred Lane presented a letter to Judge Schmetterer at the beginning of court, on McDonald\u2019s behalf. In the letter, Lane claimed that parts of Becker\u2019s testimony were untrue. He also assured the bankruptcy court judge that \u201cthe expunged personal statements about Mr. Turner were irrelevant to the settlement discussions,\u201d contrary to Becker\u2019s representations. Lane\u2019s letter also stated that McDonald\u2019s was not seeking the Cummingses\u2019 release as a condition of the settlement. The remainder of the letter purports to explain (or contradict) much of the written settlement agreement by taking issue with Becker\u2019s June 9 testimony as to whose idea it had been to allocate money to the Cummingses in exchange for their release of the personal claims. The letter concluded, \u201cMcDonald\u2019s position remains unchanged. It does not care how the $15,500,000 is allocated so long as a judgment notwithstanding the [$52 million verdict] is entered in the Circuit Court litigation and McDonald\u2019s receives appropriate releases from the Trustee on behalf of Central.\u201d\nJudge Schmetterer questioned Lane, who advised the court that the- alternative McDonald\u2019s proposal \u201c[was] something that [had] always been available.\u201d (Emphasis added.) Understandably, Judge Schmetterer then concentrated on the prospect of having the full $15.5 million settlement reserved for Central\u2019s bankrupt estate, thus separating' the estate claims from the Cummingses\u2019 personal claims. The court requested the trustee to amend the application to eliminate the allocation of money to the Cummingses as well as their release of personal claims. In the amended settlement agreement, dated July 23, 1985, McDonald\u2019s insisted on including a specific proviso that required the court to enter an order rejecting the June 20 settlement agreement.\nOpinion\nAPPEAL No. 1-91-2131\nI\nBREACH OF THE SETTLEMENT AGREEMENT\nThe simple question is whether, after executing a written agreement to compromise and settle a $52 million jury verdict entered against it, as well as the separate claims of the Cummingses, McDonald\u2019s violated the agreement in the bankruptcy court by encouraging its rejection in favor of a different settlement. Both sides moved for summary judgment in their favor, arguing that the case involves no genuine issue of material fact in dispute. Both sides draw opposing legal conclusions from those facts, however. Much of McDonald\u2019s argument focuses on the presettlement negotiations: who represented what to whom at what point and for what reasons. In fact, McDonald\u2019s implies that the written agreement itself was never more than a bare proposal to the bankruptcy judge, instead of a formal compromise and settlement among the parties to the controversy.\nTo the extent McDonald\u2019s admits repudiating the settlement agreement in the bankruptcy court, it argues that its conduct was not only justified but mandated by ethical concerns and thus immune from liability. The Cummingses, in contrast, view the same conduct as a breach of contract that cannot be covered over by allusions to ethics and public policy. For our part, we face a mountain of \u201cundisputed\u201d facts, surrounded by a moat of legal arguments. Fortunately, the trial judge in this case crossed the moat and climbed the mountain, leaving us a trail with major signposts along the way.\nA. \u201cFULL DISCLOSURE\u201d OF SETTLEMENT NEGOTIATIONS\nIn our view, even if McDonald\u2019s was at all times ready, willing, and able to settle with Central alone, it is the parties\u2019 written agreement of June 20 that controls on the issue of what the final agreement was as to the Cummingses\u2019 claims. Nothing on the face of the agreement is ambiguous regarding the parties\u2019 intention to settle the Cummingses\u2019 claims as set forth, along with the Central litigation. (See Dayan v. McDonald\u2019s Corp. (1985), 138 Ill. App. 3d 367, 485 N.E.2d 1188 (most reliable indicator of parties\u2019 intent is the language they use in their contract) (affirming grant of defendant\u2019s motion for summary judgment that Illinois law governed franchise agreement).) McDonald\u2019s nonetheless insists that the June 20 written agreement was conditioned on an oral agreement of the parties to advise the bankruptcy court of all the negotiations that had occurred, especially the fact that McDonald\u2019s had been willing and remained willing to pay the $15.5 million settlement amount to Central alone, without the Cummingses\u2019 personal releases.\nThe Cummingses term this argument \u201cpreposterous,\u201d noting that there would be little point in executing a written settlement agreement if one of the parties could unilaterally repudiate or alter its terms under the guise of \u201cdisclosing\u201d earlier negotiations and alternative, rejected proposals to the bankruptcy court. See, e.g., Chicago Title & Trust Co. v. Cohen (1936), 284 Ill. App. 181, 194, 1 N.E.2d 717, 722 (When a contract on its face denies the existence of a condition, \u201cor where by necessary implication such condition is impossible, then to permit parol proof to the contrary would not only vary, but destroy the agreement\u201d).\nB. EFFECT OF LANE\u2019S APPEARANCE ON THE JUNE 20 SETTLEMENT\nThe record shows that Becker, on July 9, had been answering the judge\u2019s questions regarding the June 20 agreement, testifying as the court\u2019s first witness. He stated that much of the pre-agreement negotiations had taken place between Spence and Horwitz. Becker\u2019s understanding from what Spence had told him was that McDonald\u2019s had insisted on obtaining the Cummingses\u2019 personal release of claims and that McDonald\u2019s had made the allocation of the amounts that appeared in the June 20 agreement. (In later testimony, Spence clarified certain points from his personal knowledge. We do not regard as material the discrepancies in testimony as to what was said when and by whom during negotiations. Nonetheless, we adopt McDonald\u2019s chronicle of the sequence of negotiations for purposes of this appeal from summary judgment.) Becker also explained to the court at that time that he did not feel he could disclose the nature of the personal claims and the material that Judge Norman had expunged in the State court. Judge Schmetterer ordered Becker to provide him with a copy of the expunged material, however, presumably to take it into account in determining whether the June 20 settlement agreement was reasonable and fair under the circumstances.. Judge Schmetterer adjourned the proceedings for the day on July 9, without making any findings or legal rulings regarding approval of the settlement agreement.\nThe first thing that occurred when the bankruptcy court reconvened the next day was Fred Lane\u2019s presentation to the court of McDonald\u2019s \u201creal\u201d intentions regarding settlement. He certainly was not there to unreservedly recommend the written agreement. On the contrary, Lane intervened at a very preliminary stage in the hearing, while the court was still examining Becker. Abandoning the agreement his client had signed, Lane put forth the letter containing McDonald\u2019s \u201cother\u201d settlement proposal to the trustee and to the court. The letter was then attached to the trustee\u2019s application and urged upon the court as'the settlement position McDonald\u2019s had \u201calways\u201d championed, i.e., payment of the $15.5 million to Central without any allocation to the Cummingses and without the release of their claims.\nMcDonald\u2019s maintains in this appeal that Lane was merely reacting to Becker\u2019s misrepresentations and correcting the record as to the actual settlement negotiations. We note, however, that McDonald\u2019s stated attempt to vindicate the \u201cdisclosure requirement\u201d did not extend to any embarrassing allegations of McDonald\u2019s misconduct. Indeed, the very disclosures Lane wanted the court to hear operated to suppress the other disclosures that the court had ordered \u2014 the nature of the Cummingses\u2019 claims as set out in the material that had been expunged from the State court record. The Lane letter, with its recasting of McDonald\u2019s position, stopped the June 20 agreement in its tracks. As a result, the bankruptcy court no longer needed to explore the Cummingses\u2019 personal claims because McDonald\u2019s was agreeing to settle without their releases. The court was then free to accept the increased amount of funds to settle the bankruptcy estate. That is exactly what happened.\nLane\u2019s letter, and his oral statements, however, presented a settlement that was incompatible with the parties\u2019 express written agreement of June 20. As such, the Lane representations constituted a material breach of that agreement. Without a doubt, it was the parties\u2019 mutually executed agreement \u2014 not the proposal in Lane\u2019s letter\u2014 that McDonald\u2019s was contractually bound to recommend and support.\nThe uncontested proof of McDonald\u2019s breach of the June 20 agreement begins with the Lane letter itself, which affirms McDonald\u2019s willingness to settle with Central alone. That intention plainly contradicts the express terms of the June 20 agreement. All of the judges who have considered the matter have agreed that the Lane letter presented different settlement terms from those embodied in the June 20 agreement. Judge Schmetterer, who noted that Lane\u2019s appearance followed the court\u2019s request for the expunged matters, also found that Lane was \u201chere and now tendering to offer\u201d to change the settlement agreement \u201cto conform to the terms of his letter and accept releases only from Central.\u201d In a later review of the proceedings, Judge Leinenweber of the Federal district court found that McDonald\u2019s had \u201cunilaterally offered to modify the settlement offer\u201d on July 10 and had appeared in court to do so \u201cvoluntarily and without invitation.\u201d Judge Grieman, who reviewed the same materials and arguments in the pending litigation, concluded that the Lane letter offered the bankruptcy court \u201ca new deal.\u201d Judge Grieman also noted that McDonald\u2019s had insisted on a provision in the amended settlement agreement of July 23 that would expressly reject the June 20 agreement.\nC. JUSTIFICATION FOR CHANGING ITS POSITION\nMcDonald\u2019s argues, however, that Lane\u2019s statements to the bankruptcy court were not wrongful because McDonald\u2019s was required by the contract to disclose such matters; Lane was obliged to correct Becker\u2019s misrepresentations; and his professional obligations as an- officer of the court and attorney mandated his actions.\nThese stated reasons do not withstand analysis. If Lane\u2019s disclosures were \u201ccontractually required\u201d by the June 20 agreement they should have been expressly included therein. Nothing in the agreement states that the parties would apprise the court of settlement negotiations or alternatively discussed proposals, however. The sole reference to \u201cdisclosure\u201d in the contract refers to the terms of the written agreement itself, not some other parol deal or secret understanding or multiple choice arrangement. If we were to construe the parties\u2019 written agreement in accordance with McDonald\u2019s position, we would be creating an ambiguity where none exists.\nThe trial court in the pending case reviewed the entire record, including the bankruptcy court transcripts, affidavits, and pleadings, giving McDonald\u2019s \u201cevery intendment\u201d on summary judgment. The court found inescapable the conclusion that McDonald\u2019s had withdrawn the June 20 document from bankruptcy court consideration. Instead of recommending or supporting the agreement as written, McDonald\u2019s directly contravened its terms with a letter that offered a different agreement, under the guise of \u201cexplaining\u201d the earlier discussions or proposals. Lane thereby caused the court to adopt a different agreement from the one embodied in the June 20 document. In the pending case, the trial court reviewed McDonald\u2019s actions in the bankruptcy court in light of the express contractual provision of paragraph 5. In that paragraph, McDonald\u2019s agreed to \u201crecommend approval of the Settlement Agreement without reservation,\u201d and to support the entry of all orders necessary to effectuate it. The trial judge concluded, \u201cIt\u2019s just clear to me that the Lane letter did not comport with Paragraph 5 of the settlement agreement.\u201d\nWe agree with the trial court\u2019s interpretation. A party who reduces his understanding to a written agreement cannot change its essential terms by backpedaling and rationalizing after the fact. Parol negotiations are not on the same legal footing as executed, written agreements, for reasons firmly embedded in our contract law. (E.g., Land of Lincoln Savings & Loan v. Michigan Avenue National Bank (1982), 103 Ill. App. 3d 1095, 1101, 432 N.E.2d 378, 383 (\u201c[EJvidence of prior or contemporaneous oral agreements is not admissible to vary or contradict the terms of a writing, otherwise unambiguous on its face); Feder v. River\u2019s Edge Restaurant, Inc. (1978), 59 Ill. App. 3d 1015, 1018-19, 376 N.E.2d 693, 695 (\u201c[EJvidence of an oral condition precedent is inadmissible if that condition would contradict the terms of the written contract\u201d).) Here, all of the parties executed a written compromise and settlement of all their disputes. Thereafter, one party urged the bankruptcy court to adopt a different one in place of it. In so doing, McDonald\u2019s treated the writing as if it were a nonbinding suggestion entitled to no more weight than other alternative proposals. Settlements are by nature compromise positions. Once they are reduced to writing they are entitled to a degree of certainty. Therefore, in construing this unambiguous agreement of June 20 that settled the Cummingses\u2019 claims, we must exclude as immaterial the parties\u2019 prior, conflicting negotiating postures. If McDonald\u2019s had not intended to be bound, it should not have signed the agreement.\nAs for the ethical obligations McDonald\u2019s alludes to, we are left to wonder about their exact nature. The suggestion is that Becker, attorney for Central and the Cummingses, was concealing from the court something important about the settlement agreement. What the record reveals, however, is that it was McDonald\u2019s whose actions resulted in the concealment of information. The effect of the Lane letter was to end Judge Schmetterer\u2019s inquiry into the Cummingses\u2019 allegations that McDonald\u2019s had tampered with the jury and intimidated and investigated the Cummings family. McDonald\u2019s therefore ignores the selective nature of its \u201cduty to disclose,\u201d which it cloaks with ethical and profession obligations. McDonald\u2019s did not feel ethically bound, apparently, to let the bankruptcy court find out the nature of the Cummingses\u2019 claims. McDonald\u2019s did not explain to the court why it had agreed to the allocation of settlement funds directly to the Cummingses in exchange for their release. Instead, McDonald\u2019s obviated the need for that inquiry by assuring the court it would settle the Central litigation without reference to the personal claims and releases.\nWe also find unpersuasive the contention that Lane\u2019s letter was necessary to correct Becker\u2019s misstatements of certain details of the negotiating process. Even accepting that Becker incorrectly described the negotiations (some of which he did not directly participate in), Becker did not conceal or alter any material term of the June 20 settlement agreement under consideration. If it was important for the court to know whose idea it had been to include the Cummingses in the settlement, McDonald\u2019s could have offered a simple correction.\nWe do not suggest that parties are free to conceal material terms of their settlement agreements from a bankruptcy court judge. We acknowledge the bankruptcy court\u2019s right to inquire as to the status of negotiations or the range of possible settlement proposals. Furthermore, a settlement agreement should not be approved if it is unfair to creditors or the bankrupt estate. (E.g., In re American Reserve Corp. (7th Cir. 1987), 841 F.2d 159, 162.) We agree that Judge Schmetterer properly attempted to determine whether the lawyers believed that the settlement was the best one they could fashion under the circumstances. Certainly, both Sides faced risks that the post-trial motions then pending before Judge Norman might be adverse to their interests.\nThe parties\u2019 earlier settlement discussions, however, were necessarily immaterial to the final bargain they struck in the written agreement. If McDonald\u2019s truly intended to recommend and support the June 20 agreement, as the parties\u2019 final agreement, it would not have offered a materially different settlement proposal to the court. Lane\u2019s recitals on July 10 not only did not recommend the June 20 agreement but actually encouraged its rejection in favor of another. Consequently, McDonald\u2019s reneged on its promise to compensate the Cummingses on their claims.\nMcDonald\u2019s numerous arguments in this appeal avoid the dispositive contract issue in this case: Did McDonald\u2019s recommend and support the terms of the June 20 agreement as it was bound to do under paragraph five of that agreement? Clearly, McDonald\u2019s did not. Was there a legal justification for not doing so? Under the material, undisputed facts, the answer is no. As we have found, McDonald\u2019s stated justification for its breach did not give rise to a cognizable defense based on the facts of record. McDonald\u2019s defense instead rests on an undefined \u201cduty to disclose\u201d the purported oral condition that runs contrary to the written agreement. We reject McDonald\u2019s attempt to craft this \u201cduty\u201d into an ethical mandate.\nD. PREVENTION OF THE CONTRACTUAL CONDITION\nStripped of the extended explanations of what led to the June 20 agreement, the contract itself is clear in its terms and intent. In a straightforward manner, it reveals that the signing parties intended to settle all pending an\u00b0d potential claims and disputes, both between McDonald\u2019s and Central and between McDonald\u2019s and the Cummingses. As for the latter inchoate claims, which arose after the Central verdict, the agreement states the intention of McDonald\u2019s and the Cummingses to \u201csettle all potential litigation between them and put all aspects of this matter to rest so far as all are concerned.\u201d To that end, all agreed to seek the bankruptcy court\u2019s.approval of the settlement sum and allocation of the money. What the bankruptcy court might then do was speculative because of factors not within the parties\u2019 control. The parties\u2019 own conduct, however, was within their control. The condition of the contract was bankruptcy court approval, which never occurred. McDonald\u2019s unequivocal repudiation of the June 20 agreement is what prevented the bankruptcy court from considering it as the agreement all parties were recommending and supporting.\nWhen parties enter a contract that is conditioned upon the happening or nonhappening of an event, and the condition fails, generally the contract has no further effect. (See, e.g., Grill v. Adams (1984), 123 Ill. App. 3d 913, 917, 463 N.E.2d 896, 900 (failure of condition means contract does not take effect or that performance of party is excused).) If one party directly causes the condition to fail, however, the contract may be fully enforced against that party; one cannot take advantage of his own conduct and then claim that the resulting failure of the condition defeats his liability. (123 Ill. App. 3d at 918.) In Grill v. Adams, for example, the defendants were parties to a contract for a tax-deferred exchange of commercial real estate. Defendants, who were to select a suitable property for the exchange, declined to do so after market conditions and soaring interest rates made their agreement less favorable to them. They claimed that the failure of the condition (to locate a suitable exchange property) released their liability under the contract. The court rejected this position, holding that the condition was in the sole control of defendants, who had not used reasonable, good-faith efforts to locate a property.\nMany other cases have recognized that a party who prevents the fulfillment of a condition upon which his own liability rests may not defeat his liability by asserting the failure of the condition he himself has rendered impossible. (E.g., Foreman State Trust & Savings Bank v. Tauber (1932), 348 Ill. 280, 286, 180 N.E.2d 827; Lukasik v. Riddell, Inc. (1983), 116 Ill. App. 3d 339, 346, 452 N.E.2d 55; Blackhawk Hotel Association v. Kaufman (1981), 85 Ill. 2d 59, 65, 421 N.E.2d 166).) In application, then, the \u201cwrongful prevention doctrine\u201d is in the nature of an estoppel because it prohibits a party from profiting through his own wrongdoing.\nThe above principle of contract law is not applicable, however, to situations in which a party under no contractual obligation to perform or refrain from performing a particular act does something which incidentally operates to the disadvantage of another contracting party. McDonald\u2019s relies on cases in which the wrongful prevention doctrine was not applicable. See, e.g., Botti v. Avenue Bank & Trust Co. (1982), 103 Ill. App. 3d 1052 (Trustee who waived financing contingency in contract of first buyer of property was authorized to do so under that contract and therefore did not wrongfully cause failure of condition of contract with second prospective buyer for the property, whose contract was contingent upon the termination of the first); Podolsky & Associates, Ltd. v. City Products Corp. (1981), 103 Ill. App. 3d 824 (Court rejected brokers\u2019 argument that they were wrongfully prevented from collecting commissions that would have been due if sublessee had exercised option to renew sublease; instead of renewing sublease, sublessee obtained the prime lease by direct assignment).\nWe agree with the trial court\u2019s rejection of McDonald\u2019s attempt to legitimize its prevention of the condition. One of the cases the court relied on was Foreman v. Tauber. The contract in issue was an antenuptial agreement that provided for Mrs. Tauber to receive $20,000, conditioned on her outliving her husband. He shot and killed her and then himself, effectively removing the condition of the ante-nuptial agreement. In the battle of estates that followed, his executor argued that Mrs. Tauber had not survived Mr. Tauber and accordingly the condition of the antenuptial agreement failed. The court was able to discern that it was Mr. Tauber\u2019s conduct that had prevented his wife\u2019s ability to fulfil the condition of outliving him, however, and held that his estate was liable to hers in the amount of $20,000. The court further noted that any uncertainties that she would have outlived him but for his conduct would be resolved against him. The court thus refused to speculate regarding what might have happened if the breaching party did not violate the contract.\nIn the pending case the trial court found that McDonald\u2019s had \u201cshot down the equivalent of Mrs. Tauber.\u201d We agree. Like the court in Tauber, we note that \u201c[wjhatever uncertainty there was\u201d that the condition of the contract might not have occurred, it \u201cwas removed by the deliberate and wrongful act\u201d of the breaching party. 348 Ill. at 287, 180 N.E. at 830.\nE. \u201cCAUSATION\u201d OF INJURY-BURDEN OF PROOF\nMcDonald\u2019s contends, however, that its actions did not cause the failure of the condition of the June 20 agreement. The condition of the contract was bankruptcy court approval, which McDonald\u2019s asserts would not have been forthcoming in any event. Therefore, McDonald\u2019s argues that its breach of contractual duty to recommend the settlement is excused.\nIn support of this contention, McDonald\u2019s cites the court\u2019s refusal to approve any settlement that did not contain a provision under which McDonald\u2019s would be obligated to pay interest on the settlement pending any appeals from the bankruptcy court\u2019s order. The court termed this a \u201cstructural problem\u201d and made it clear that it would not be in the best interest of the estate if the court approved a settlement that did not ensure that the value of the settlement would not be diminished over time. Accordingly, the trustee and McDonald\u2019s amended the amended settlement agreement to include an interest rate of 8%.\nMcDonald\u2019s maintains that because the court would not have approved the June 20 settlement agreement without such a provision for interest, McDonald\u2019s should be excused from its contractual obligation to recommend the agreement and cooperate in the entry of the necessary orders. We cannot agree, for reasons that appear obvious. Nonetheless, McDonald\u2019s labors at length in its brief to construct a \u201cno-causation\u201d defense to release it from the onus of the wrongful prevention doctrine. This inherently speculative argument focuses on the attempt to show that if the bankruptcy court\u2019s approval would not have been forthcoming in any event, for reasons unrelated to McDonald\u2019s wrongful conduct, the prevention doctrine does not apply.\nMcDonald\u2019s relies on selected comments to section 245 of the Restatement (Second) of Contracts (1981) to bolster its argument. That section, which reflects the general principle we have referred to as the \u201cwrongful prevention doctrine,\u201d provides as follows:\n\u201cWhere a party\u2019s breach by non-performance contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.\u201d Restatement (Second) of Contracts \u00a7245 (1981).\nIn simpler English, this means that the bankruptcy court\u2019s approval of the June 20 agreement is excused as a condition of the agreement .if McDonald\u2019s materially contributed to the court\u2019s lack of approval. We have concluded in the preceding sections of this opinion that McDonald\u2019s did, by its breach, prevent the court\u2019s approval of the agreement. To answer McDonald\u2019s \u201ccausation\u201d argument, however, we must necessarily repeat some of the concepts already discussed.\nIllinois courts have cited the Restatement provision with approval (see Blackhawk, 85 Ill. 2d 59, 421 N.E.2d 166; Grill v. Adams, 123 Ill. App. 3d 913, 463 N.E.2d 896). In Hansen v. Johnston (1969), 111 Ill. App. 2d 88, 93, 293 N.E.2d 133, 137, the court noted that \u201cwhen performance of an agreement is rendered impossible by the willful acts of one of the contracting parties, the agreement to pay becomes absolute.\u201d This formulation of the wrongful prevention doctrine has been stated as a corollary to the general principle that all contracts contain an implied covenant of good faith and fair dealing. (E.g., Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683, 690; Jordan v. Busch (1936), 285 Ill. App. 217, 1 N.E.2d 745 (when cooperation of contracting party is necessary for condition to occur, party who does something to prevent the happening of the event causes the contract to become absolute and performable as though event had occurred).\nMcDonald\u2019s does not dispute the law as such but contends that Judge Grieman misapplied the Restatement because, as comment b to section 245 states, \u201cif it can be shown that the condition would not have occurred regardless of the lack of cooperation\u201d the failure of the condition is not attributed to the breaching party as a material cause of the failure of the condition (Restatement (Second) of Contracts \u00a7245, Comment b, at 259 (1981)). McDonald\u2019s relies on this caveat found in the Restatement yet rejects the Restatement\u2019s further stipulation that the \u201cburden of showing [that the condition would not have occurred regardless of lack of cooperation] is properly thrown on the party in breach.\u201d (Restatement (Second) of Contracts \u00a7245, Comment b, at 259 (1981).) Comment b to section 245 also says that it is not necessary for the nonbreaching party to show that the condition would have occurred but for the lack of co operation. McDonald\u2019s, however, prefers to ignore this commentary and put the burden on the Cummingses to prove that the court would have approved the settlement agreement if Lane had refrained from presenting the new deal to the bankruptcy court judge. To support this shifting of the burden, McDonald\u2019s holds forth at some length about rebuttable presumptions and the \u201cbursting bubble\u201d theory that presumptions disappear once evidence contrary to the presumed fact is presented. However interesting such a discussion may be, in the context of this case it adds nothing but confusion to the analysis. The Cummingses, as the nonbreaching parties, are not required to adduce evidence of what might have happened if McDonald\u2019s had not breached.\nDespite the array of theories presented we easily conclude that Lane\u2019s appearance before the bankruptcy court to offer different settlement terms constitutes material contribution to the failure of the condition, as a matter of law. We need not look beyond what happened on July 10, 1985. The bankruptcy court had not withheld its approval from the agreement at that time. McDonald\u2019s did not come in to support and recommend the agreement, however. Instead the June 20 agreement was withdrawn by McDonald\u2019s and replaced with a different one. The question whether this materially contributed to the failure of the condition does not require extended discussion of bursting bubble presumptions or other matters of proof.\nMcDonald\u2019s cites to Huegal v. Sassaman (1979), 75 Ill. App. 3d 414, 393 N.E.2d 1361, a case involving contract formation rather than performance. In Huegal, the plaintiffs offered to buy an industrial tool distributorship from the defendants. The proposed agreement was expressly conditioned upon the plaintiff\u2019s ability to obtain a loan from a particular bank to cover the purchase price. The bank in question would not grant the loan, however, unless it was given collateral in the form of assignable contracts between the distributorship and the customers of the distributorship. Because the business was conducted with purchase orders and receipts, there were no such contracts to assign. The plaintiffs instructed the bank to deny the loan and asked defendants to return their down payment. Defendants refused on the ground that plaintiffs had instructed the bank to reject the loan application. The court ruled in plaintiff\u2019s favor, however, holding that the bank\u2019s approval of the loan depended on a requirement that was beyond the control of the parties and, without financing, the parties did not intend for the contract to come into existence. Hence, there could be no breach. Heugel does not help McDonald\u2019s.\nF. PUBLIC POLICY ARGUMENTS\nA recurring theme throughout McDonald\u2019s brief is that it cannot be held liable for breach of contract because it was acting on a higher moral plane and disclosing matters to the court that were mandated by professional duties and public policy. We have already rejected those arguments as unfounded under the circumstances of this case and see no reason to repeat them here. McDonald\u2019s also maintains, however, that the June 20 agreement itself should be declared \u201cvoid\u201d as against public policy. This is the ethical disclosure argument reformulated in broader terms. According to McDonald\u2019s, the agreement violates public policy \u201cin two significant respects. First it embodies the Cumingses\u2019 [sic] diversion of $4 million of the $15.5 million settlement offer to Central in violation of their fiduciary duties as directors and officers of Central; second, the lower court\u2019s ruling that the settlement prohibited Lane from disclosing information to the bankruptcy court renders the June 20 settlement unenforceable.\u201d\nWe refuse to give any credence to such sophistry. The breach of fiduciary duty argument is disingenuous, as it suggests that the Cummingses were diverting corporate funds or trying to cheat Central in their request for compensation on their own, distinct injuries. What Thomas Cummings did on behalf of Central was play an instrumental role in obtaining the $52 million verdict in the first place. What McDonald\u2019s allegedly did to him and his family in response to that verdict is the subject of this lawsuit. McDonald\u2019s violation of the settlement agreement has resulted in seven more years of litigation. We find the fiduciary duty argument in McDonald\u2019s brief to be unworthy of additional consideration. Similarly, we reject as meritless McDonald\u2019s redundant assertion that the settlement agreement, if enforced as written, prevented Lane from disclosing the settlement negotiations and by its \u201csuppression of evidence is void against public policy.\u201d\nG. JUDICIAL PRIVILEGE\nMcDonald\u2019s repeats a variation on the same theme in an argument relying on absolute judicial privilege to insulate Lane\u2019s statements to the bankruptcy court. This is not a defamation action, however, and the logic of McDonald\u2019s position escapes us. Lane\u2019s letter to Judge Schmetterer informed the court that notwithstanding its signed settlement agreement, McDonald\u2019s stood ready to eliminate the Cummingses from the settlement. Lane\u2019s self-styled role as officer of the court does not require us to agree that his actions in breach of contract were protected by judicial privilege, however. If we adopted this position, the implication would be that any party could breach a contract with impunity simply by repudiating it in open court. We find the argument irrational and unsupported by sound authority.\nII\nPROPRIETY OF ENTERING SUMMARY JUDGMENT\nMcDonald\u2019s major focus on appeal has been to persuade this court to enter judgment, as a matter of law, in its favor. In the alternative, McDonald\u2019s asks for a trial. In support of its request for a reversal of the summary judgment that was entered in favor of the Cummingses, McDonald\u2019s maintains that the trial court erroneously assessed Fred Lane\u2019s credibility by ruling that Lane\u2019s letter was \u201cfalse.\u201d To demonstrate that Lane\u2019s letter was not \u201cfalse,\u201d McDonald\u2019s cites affidavits of its officers and counsel that vouch for the veracity of Lane\u2019s representations. Finally, McDonald\u2019s argues that the \u201crecord is undisputed that Lane\u2019s statements were truthful, and he did not wrongfully prevent bankruptcy court approval. Summary judgment should have been entered in favor of McDonald\u2019s.\u201d\nWe note that for purposes of summary judgment McDonald\u2019s professed willingness to settle with Central alone is not in dispute. We, like the trial court, also accept the veracity of the statements in McDonald\u2019s affidavits. The trial court went on to hold, however, that the legal effect of the Lane letter was to decimate the written agreement; this decision had nothing to do with assessing witness credibility.\nNo facts of record contradict the obvious conclusion that the Lane letter embodied materially different settlement terms than those which were reduced to writing and signed by the parties. Having elected to sign the agreement, McDonald\u2019s was bound to recommend and support it. Regardless of motive, and regardless of what Becker may have said as to the sequence of events leading to the written document, McDonald\u2019s is the party which affirmatively undercut the June 20 agreement in the bankruptcy court.\nAs we have thoroughly discussed elsewhere in this opinion, moreover, the \u201ctruth\u201d as to Lane\u2019s and McDonald\u2019s motives is immaterial to the breach of contract issues. Their acts \u2014 wholly inconsistent with the written agreement \u2014 constituted the actionable breach. Facts that are immaterial or otherwise incompetent must be excluded from trial. We believe that the trial court properly entered summary judgment because the ultimate issue (McDonald\u2019s wrongful prevention of the contract\u2019s condition) was a legal conclusion based on the material, undisputed facts. See, e.g., Sloan v. Jasper County Community Unit School District No. 1 (1983), 167 Ill. App. 3d 867, 870, 522 N.E.2d 334 (purpose of summary judgment is not to try an issue of fact but to determine whether one exists).\nMcDonald\u2019s never explains what issues would be tried if we were to reverse summary judgment in this case. Lane\u2019s credibility is not in issue and McDonald\u2019s motives are immaterial. It is indisputed that McDonald\u2019s said it was willing to sever the Cummingses\u2019 claims from those of Central, both before and after it signed the June 20 agreement. Our ruling is based on the legal consequences of the parties\u2019 conduct.\nWhat might have happened without the Lane letter is unknown and cannot be proved in a trial. If Lane had strongly recommended the June 20 agreement instead of ignoring it, the court might have ultimately approved it. Or, the bankruptcy court might have severed the Cummingses\u2019 claims from those of the bankruptcy estate on its own motion. The court might even have asked McDonald\u2019s if it was willing to tender the same money to the estate alone. What might have happened does not raise a genuine issue of material fact, however.\nWe are not implying that there may never be a triable issue on the question of why a party fails to perform; a party might plead valid defenses that would excuse performance for legitimate reasons. In this case, McDonald\u2019s has advanced a parade of defenses, which we have searched for merit. The trial court sifted through the various legal theories of defense and the entire record before concluding that the proffered justifications for breach were unavailing, as a matter of law. The undisputed material facts of record establish that after the June 20 settlement agreement was formally offered to the bankruptcy court, and before the court had the opportunity to fully review it, McDonald\u2019s withdrew it from further consideration in favor of a different settlement.\nIn reviewing McDonald\u2019s papers in opposition to the Cummingses\u2019 motion for summary judgment, we apply summary judgment principles that require us to strictly construe them against the Cummingses and in favor of McDonald\u2019s. (E.g., Stringer v. Zachesis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.) We affirm the trial court.\nAs a final point, we note that, the parties were experienced in business and had the benefit of impressive legal representation. Me-Donald's was not coerced into executing the June 20 agreement. McDonald\u2019s spin on what it did must not be permitted to tilt the analysis toward visualizing triable fact issues where none exist. Sheer repetition of arguments does not enhance them. Invoking ethical concerns to justify a breach of promise does not persuade.\nIll\nWAIVER AND RESCISSION\nMcDonald\u2019s next argues that it cannot be charged with violating its contractual duty to recommend approval of the June 20 settlement agreement because Central and the Cummingses were also bound by that duty and they breached it first. Alternatively, McDonald\u2019s contends that the June 20 agreement was effectively rescinded once the Cummingses\u2019 attorney consented to the court\u2019s entry of the final, amended settlement agreement.\nNeither point is well-taken. Both rely on the concept of a waiver or release of McDonald\u2019s duty to perform contractual obligations. Certainly the Cummingses never breached the June 20 agreement, personally or through their attorneys. Morover, Central\u2019s trustee was the party who filed the application for court approval of the settlement. Becker and Spence were the attorneys who were advocating the June 20 agreement on behalf of Central and the Cummingses. If there was a conflict of interest between the Central bankruptcy estate and the Cummingses\u2019 personal claims, it was a conflict based on the allocation of a pie that was limited in size by the willingness of McDonald\u2019s to pay no more than $15.5 million on the $52 million verdict.\nWe find it necessary to digress once more into the bankruptcy court proceedings because McDonald\u2019s in this argument asserts that it was Becker who first violated the covenant of seeking bankruptcy court approval. In support of this contention, McDonald\u2019s states that Becker \u201cadamantly refused\u201d to recommend approval of the settlement because when the court asked Becker whether he thought the settlement of $15.5 million was a good one, Becker \u201crefused to give a responsive answer.\u201d\nBecker\u2019s responses to the court\u2019s questions were given against the backdrop of the extremely protracted State court litigation and the \u201cno-settlement\u201d posture McDonald\u2019s had taken from the beginning of the Central litigation. McDonald\u2019s puts much weight on representations Becker made to the bankruptcy court on July 9, 1985, when asked whether the settlement arrangement was, in his opinion as special litigation counsel to the trustee, the best negotiated settlement that could be expected under the circumstances. Becker was in a unique position to answer because of his involvement in the Central trial in the State court. His personal opinion as to the \u201cvalue\u201d of the settlement, however, was not necessarily what the court was seeking. The transcript of the colloquy between Becker and Judge Schmetterer on this point shows that Becker, by his own admission, was unable to give the court \u201ca one-word answer.\u201d Our review of the pertinent transcript illuminates why. Becker cited the scope of the 13-week jury trial and massive evidence; the enormous resources required to sustain such litigation; and the need for the Cummingses to come up with litigation financing in the form of soliciting loans on behalf of the bankrupt company. What this meant to Becker was that if the jury verdict were reversed by Judge Norman for a new trial, in all likelihood there would be no second trial, plaintiffs lacked the money. Becker reiterated that he believed \u201cvery strongly\u201d in the merits of Central\u2019s case and in the amount of the jury\u2019s verdict, which he said was low under the evidence. On the other hand, Becker stated that the ability of the bankrupt estate to \u201cwithstand even a minor setback\u201d at that point was low. After additional discussion of whether or not it was appropriate for Becker to venture a valuation of the case as litigation counsel, the court asked Becker if he had \u201cany other opinion\u201d to give about the settlement and he replied he \u201cbelieved not\u201d because, although he would be happy to expound, it was \u201cvery difficult.\u201d The court then adjourned for the day, after making a few general comments about its role as \u201cinquisitor\u201d and expressing admiration for the lawyering up to the verdict. The court did express some concern over a possible conflict of interest on the part of the lawyers with respect to the June 20 agreement.\nThe next day, of course, further consideration of the settlement agreement was mooted by the production of the Lane letter and the \u201camended\u201d settlement agreement. As we have concluded, that was what prevented the condition of the agreement from occurring. Therefore, McDonald\u2019s position that Becker was first to violate the agreement is unpersuasive.\nSimilarly meritless is the assertion that the Cummingses consented to a rescission of the June 20 agreement through their new counsel, Arnold Pagniucci. When Pagniucci appeared on their behalf, the bankruptcy court already had accepted McDonald\u2019s offer to tender the full $15.5 million to the bankruptcy estate; the parties\u2019 written agreement of June 20 was simply discarded. Pagniucci sought and received assurances that nothing in the bankruptcy court orders or proceedings was to be construed as a waiver of the Cummingses\u2019 separate right to proceed against McDonald\u2019s for any claims then in existence.\nMcDonald\u2019s apparently assumes that because the \u201camended\u201d settlement agreement superseded the original written agreement of the parties, no legal rights or duties arising out of the June 20 agreement survived. This ignores the key point that at no time did the Cummingses receive any bargained-for exchange under the new agreement because they were, in effect, unilaterally cut out of the proceedings. The settlement of the Central Ice Cream litigation was perceived by all to be of major importance, moreover, and the Cummingses were not trying to impede that settlement; however, they were not willing to sign a release of their post-verdict claims without being compensated for them. The fact that the amended agreement settled the Central litigation is certainly no grounds for a ruling that the Cummingses agreed to a rescission of the agreement they had signed in settlement of their own claims. Indeed, McDonald\u2019s even admits in its brief that the Cummingses \u201cpersisted in their objection to the $15.5 million settlement\u201d in its amended form. The record reflects Thomas Cummings\u2019 statement to Judge Schmetterer confirming that he was not waiving his personal claims and therefore he objected to the approval of the amended agreement. We conclude that the Cummingses, through their attorneys, never asked the court to reject the agreement they signed in good faith, nor did they agree to its rescission.\nIV\nDAMAGES, ATTORNEY FEES, AND RATE OF INTEREST\nA. MCDONALD\u2019S APPEAL FROM DAMAGES AND INTEREST AWARD\nMcDonald\u2019s challenges both the damages award of $4 million in principal and the interest of $1,169,864. The Cummingses cross-appeal from the interest award and the denial of their request for an award of attorney fees premised on the bad-faith conduct of McDonald\u2019s.\nThe $4 million award is the aggregate amount specified in the June 20 agreement to settle the Cummingses\u2019 claims. It includes the agreed-upon allotment of attorney fees payable to Spence and Becker ($1.6 million, or 40% of the total). The interest award is based on the statutory rate for prejudgment interest (5%), calculated for the period of July 11, 1985, to the day summary judgment was entered on behalf of the Cummingses in the pending case.\nIn its appeal, McDonald\u2019s contends that (1) the Cummingses are entitled to no more than nominal damages because they established no actual damages; (2) the trial court put the Cummingses in a better position than they would have been absent the breach; (3) under the agreement itself the Cummingses\u2019 award would have been limited to $2.4 million; (4) the trial court failed to set off the Cummingses\u2019 claim by the amount of benefits they have received \u201cby virtue of the alleged breach\u201d; and (5) the trial court erred in its determination that the prejudgment interest began to accrue on July 11, 1985, which was the day after Lane submitted the letter to the court.\nNone of these arguments have merit. The Cummingses\u2019 damages plainly were not amorphous, uncertain, or otherwise unproveable; the proof is in the settlement agreement. The sum specified therein was the agreed-upon amount and no additional evidence on what was in effect stipulated damages is necessary or desirable. Although McDonald\u2019s cites a number of cases regarding the elements of contract damages, the relief granted here was in the nature of specific performance of the settlement agreement. There simply is no question as to what amount is set out in the agreement to compensate the Cummingses on their personal claims. Consequently, we summarily reject McDonald\u2019s conclusion that the Cummingses did not prove actual damages.\nThe second point, that the bankruptcy court put the Cummingses in a better position than they would have been absent the breach, is mystifying. Apart from being obliged to spend many additional years in litigation by pursuing the instant suit, the Cummingses did not receive any compensation for their personal claims whatsoever. McDonald\u2019s suggests that because it increased the settlement to the Central estate by $4 million, the Cummingses benefited by receiving a greater share of the settlement money through Central than they would have under the June 20 settlement agreement. McDonald\u2019s does not show what net amounts the Cummingses ultimately received as shareholders or creditors of Central after the other debts were paid, however. More significantly, McDonald\u2019s does not explain how that disbursement of the bankruptcy monies bears any relation to the Cummingses\u2019 separately bargained-for damages arising out of their tort claims against McDonald\u2019s. Any \u201cwindfall\u201d to the Cummingses resulting from the increase in the amount paid to the Central estate was most likely \u201coffset\u201d by the expenses and inconvenience of seven more years of litigation that the Cummingses have now endured in pursuing their claims.\nMcDonald\u2019s attempt to limit the award of damages to the $2.4 million figure allocated in the settlement agreement is also baseless. The agreement refers to the aggregate amount of $4 million in compensation for the Cummingses\u2019 claims; the breakdown of that sum into a percentage for the attorneys simply represents the contingent fee amount that Spence and Becker were claiming for their representation of the Cummingses on the personal claims. By enforcing the June 20 agreement, the trial court did nothing to change the Cummingses\u2019 responsibility for paying their lawyers 40% of the recovery. The only thing that has changed is the amount of work their attorneys have had to put in since the date of the settlement agreement in order to enforce it.\nThe fourth reason, that the Cummingses\u2019 award is subject to a setoff, is basically the same as the second reason discussed above. We have found no merit in the argument that the Cummingses\u2019 personal damages should be reduced because of the \u201cwindfall\u201d effect that supposedly occurred once McDonald\u2019s tendered the portion allocated to the Cummingses directly to the Central bankruptcy estate.\nThe final point McDonald\u2019s offers as a means of reducing the damages award relates to the accrual of prejudgment interest on the principal amount of damages. According to McDonald\u2019s, the trial court erred in setting July 11, 1985, as the day interest began to accrue. McDonald\u2019s quotes the prejudgment interest statute as providing for interest to be paid on \u201cmoneys after they become due\u201d (Ill. Rev. Stat. 1989, ch. 17, par. 6402). In this case, according to the June 20 settlement agreement, the principal due thereunder was to be paid on \u201cthe business day following the date that entry of an order approving this Settlement Agreement by the Bankruptcy Court becomes final\" (emphasis by McDonald\u2019s). Under this rationale, presumably, no interest would ever be due because the June 20 settlement agreement never was the subject of an order of approval which became final. McDonald\u2019s does not go so far as to assert that no interest should be assessed, however. Instead, McDonald\u2019s argues that we should adopt the date that McDonald\u2019s made payment under the amended settlement agreement, May 11, 1987, which was the date the bankruptcy court\u2019s order became final after the exhaustion of the bankruptcy court appeals.\nWhile it is true that had the June 20 agreement been approved in the ordinary course of proceedings, payment of the settlement amount would not be due until some period of time later than July 11, 1985. The trial court\u2019s adoption of July 11, however, was appropriate as being the day after the breach. Once McDonald\u2019s breached the agreement, its obligation to pay (and the accrual of interest) can fairly be said to vest at that time. (E.g., Art Press, Ltd. v. Western Printing Machinery Co. (7th Cir. 1988), 852 F.2d 276 (construing Illinois law); see also E.M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 427 N.E.2d 181 (prejudgment interest is computed from the date the money becomes due).) The June 20 agreement provided for payment the next business day after the order approving the agreement became final. Since McDonald\u2019s prevented such approval, the court rightly found that the date of the breach (or, in this case, the next business day after) started the accrual of interest. We find no error in the trial court\u2019s decision to compute interest from July 11, 1985, to the date of its final judgment in this case.\nB. CROSS-APPEAL FROM RATE OF INTEREST AND DENIAL OF FEES\nIn the Cummingses\u2019 cross-appeal from the amount of the prejudgment interest assessed, they urge this court to adopt the higher, prime rate of interest instead of the relatively low statutory rate. They cite cases in support of their position that because the statutory rate does not fully compensate them, they should be awarded an increased amount of interest. See In re Estate of Wernick (1989), 127 Ill. 2d 61, 86-87, 535 N.E.2d 876, 888 (prejudgment interest may be awarded on equitable grounds at the prime rate rather than the statutory limit when necessary to provide just compensation for money wrongfully withheld and to make injured party whole) (involving breach of fiduciary duties).\nOur review of the trial court\u2019s award of the statutory rate of prejudgment interest is limited to whether the court abused its discretion in declining to substitute a higher rate. While equitable concerns may justify the prime rate, as was the case in Wernick, we are not prepared to conclude that the trial court abused its discretion in applying the rate provided by statute. The Cummingses\u2019 plea for the higher rate has some merit in light of the fact that McDonald\u2019s has had use of the settlement proceeds since the breach and the Cummingses have not had the opportunity to invest it at more favorable rates. Wernick does open the way for courts to apply the prime rate as a means of better compensating injured parties; however, in the pending case the trial court concluded that the statutory rate was appropriate. Unlike the situation in Wernick, McDonald\u2019s is not in a fiduciary relationship with the Cummingses and the award of prejudgment interest was not based on the \u201cvexatious delay\u201d provision of the interest statute; instead, it was based on the provision that permits interest to accrue on written instruments after the money is due. (Ill. Rev. Stat. 1989, ch. 17, par. 6402.) While the Wernick decision suggests that the statutory rate is not to be considered as a limit in all cases, the trial court determined that the interest portion of damages was otherwise adequate in this case. By finding that interest began accruing on the day after the breach, moreover, the court permitted the Cummingses a larger interest award than they would have received if the court had adopted McDonald\u2019s contention that accrual should not be deemed to begin until May 1987, almost two years later. Accordingly, we affirm the award of interest, both as to rate and date of accrual.\nATTORNEY FEES\nThe Cummingses\u2019 second issue in their cross-appeal requests an award of attorney fees based on a so-called \u201cbad-faith\u201d exception to the requirement in Illinois that attorney fees may not be assessed absent a specific statute or agreement. In the pending case, no provision in the settlement agreement mentioned attorney fees and there is no statute that the Cummingses cite as justification for such an award. Even if we were to agree that McDonald\u2019s position throughout the litigation has been oppressive and vexatious, Illinois law has not applied a common law, bad-faith ground for awarding attorney fees. In fact, the Cummingses concede that while Illinois courts \u201cseem to indicate a willingness to consider applying the bad faith exception,\u201d none have done so to this date. See, e.g., Bank of Waukegan v. Epilepsy Foundation of America (1987), 163 Ill. App. 3d 901, 516 N.E.2d 1337.\nWe agree with the trial court that the \u201cinherent\u201d power of the court to punish improper conduct of parti\u00e9s and attorneys is currently limited to contempt citations. The power to assess attorney fees absent an agreement, moreover, has traditionally been limited to specific statutes that provide for such awards or the supreme court rules, which permit fee sanctions for filing false or inadequately investigated pleadings (Rule 137) or for discovery violations (Rule 219). We decline to extend existing law by adopting a \u201cbad faith\u201d exception to the American rule.\nWe conclude that the trial court\u2019s judgment in appeal No. 1 \u2014 91\u2014 2131 should be affirmed in all respects, as to McDonald\u2019s liability; the amount of damages; the amount of prejudgment interest; and the refusal to award the Cummingses attorney fees based on McDonald\u2019s bad faith.\nAPPEAL No. 1-91-2492\nDISMISSAL OF NON-McDONALD\u2019S DEFENDANTS AS \u201cAGENTS\u201d\nThe second appeal in this consolidated matter centers on the status of the remaining, non-McDonald\u2019s defendants. These defendants are the individuals and detective agencies which, allegedly acting at McDonald\u2019s request, implemented the harassing tactics that are the subject of the pending action.\nThe sole issue is whether these defendants were \u201cagents\u201d of McDonald\u2019s for purposes of the release of claims that the Cummingses signed in exchange for the $4 million payment from McDonald\u2019s under the June 20 settlement agreement.\nAfter holding a hearing on the status of these defendants the trial court concluded that it was clear from the record that the intention of the parties had been to release all defendants when they signed the June 20 releases as part of the settlement agreement. While the Cummingses contend on appeal that these individuals and agencies acted as independent contractors and co-conspirators who are still answerable for their tortious conduct, the trial court found that all had been operating solely at the behest of McDonald\u2019s. Accordingly, on June 27, 1991, the court granted their joint motion to dismiss pursuant to section 2 \u2014 619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619.) As a matter of law, the court found that the following definition in the Cummingses\u2019 release covered those defendants as well as McDonald\u2019s:\n\u201ca. \u2018McDonald\u2019s\u2019 shall mean McDonald\u2019s Corporation; the past and present subsidiaries and affilliates of McDonald\u2019s Corporation; the past and present officers, directors, employees, agents and attorneys of any of the above, and the successors, assigns, heirs and personal representatives of any of the above.\u201d (Emphasis added.)\nAnother portion of the settlement agreement stated that McDonald\u2019s and the Cummingses \u201cwish to settle all potential litigation between them and put all aspects of this matter to rest so far as all are concerned.\u201d Counsel for the Cummingses admitted that the litigation against the non-McDonald\u2019s defendants was wholly caused by the fact McDonald\u2019s had breached the settlement agreement. The only sound conclusion from the June 20 agreement and release language, statements of counsel, and the record as a whole is that when the settlement agreement was executed, in 1985, the release was intended to end all further litigation directly relating to the Cummingses\u2019 personal claims against McDonald\u2019s. Because it was McDonald\u2019s who activated the non-McDonald\u2019s defendants, they must be viewed as McDonald\u2019s agents who carried out the plan.\nThe Cummingses maintain on appeal, however, that because the non-McDonald\u2019s defendants were not specifically named or designated in the release, their liability was not extinguished. For support, they rely primarily on Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361. In that case, Firestone, a tire manufacturer, appealed from the denial of its motion for summary judgment, which was premised on the fact that before suing Firestone, the Alsups settled and released their personal injury claims against the driver of the automobile which had struck the Alsups\u2019 car. The release they signed included \u201call other persons, firms, and corporations, both known and unknown.\u201d\nIn reversing, the supreme court held that the Contribution Among Joint Tortfeasors Act (Contribution Act or Act) (Ill. Rev. Stat. 1983, ch. 70, par. 302(c)) intended to abrogate the common law rule that the release of one tortfeasor released all, and, to that end, held that a release must \u201cspecifically identify [the other] tortfeasors in order to discharge their liability.\u201d (Alsup, 101 Ill. 2d at 200, 461 at 363.) The court concluded that a release under the Act was not meant to discharge other tortfeasors unless they were \u201cdesignated by name or otherwise specifically identified.\u201d (Emphasis added.) 101 Ill. 2d at 203, 461 N.E.2d at 364-65.\nOther cases involving the Contribution Act have followed Alsup and rejected the contention that a particular tortfeasor may be released from liability without being identified clearly in the release. E.g., Brady v. Prairie Material Sales, Inc. (1989), 190 Ill. App. 3d 571, 546 N.E.2d 802 (Defendant who was not a party to the release contract nor designated by name or otherwise specifically identified was not discharged from liablity); Stro-World Farms v. Finnell (1991), 211 Ill. App. 3d 113, 569 N.E.2d 1156 (Release included \u201cheirs, agents, servants, successors *** and all other persons, corporations, firms, associations or partnerships\u201d; however, court held that plaintiffs who attempted to come within \u201cagent\u201d designation were not released under the Alsup rationale); cf. Christmas v. Hughes (1989), 187 Ill. App. 3d 453 (unnamed employee of a settling party properly released under covenant not to sue cab company or \u201cany of its agents, servants, or employees\u201d).\nIn our view, a particular release must be considered in the context of the litigation in which it was given. The intent of the parties at the time the release was entered is controlling. (Kolar v. Ray (1986), 142 Ill. App. 3d 912, 492 N.E.2d 899; see also Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791.) We acknowledge that Kolar and Lucente were decided without reliance on Alsup. We also acknowledge that the fourth district in Stro-World apparently read Alsup as requiring a \u201c \u2018bright-line\u2019 rule\u201d regarding the necessity of explicitly naming released tortfeasors. (Stro-World, 211 Ill. App. 3d at 118, 569 N.E.2d at 1159.) We are not faced with an issue of statutory contribution, however, and we do not read Alsup as requiring that all tortfeasors be identified by name before a release is effective. Indeed, Alsup permits identification by means other than actual naming (such as designation by class of persons). The supreme court in Alsup, moreover, was explaining how the Contribution Act modified the harsh common law principle that the release of one joint tortfeasor operates as an automatic release of all, regardless of whether a party actually intended to release other parties. In the pending case, the trial court found that there was not \u201ceven a whisper of a fact\u201d issue on the parties\u2019 unambiguous intent to \u201csettle everything\u201d in 1985; back then, the Cummingses viewed the other defendants, known or yet to be discovered, as agents who had acted pursuant to McDonald\u2019s directives.\nThe facts of Alsup are also distinguishable from those of the pending case. There the party seeking the benefit of the release was Firestone, as manufacturer of the tires. Whatever duty or liability Firestone may have had to the plaintiff was different in kind from that of the settling defendant\u2019s negligence in driving. In the pending case, however, the tortious actions of the non-McDonald\u2019s defendants derived totally from McDonald\u2019s directive and goals. The other defendants were the means by which McDonald\u2019s carried out its campaign against the Cummingses.\nIt may be true that the original agencies that McDonald\u2019s had engaged then hired their own subcontractors without directly informing McDonald\u2019s. There is no doubt, however, that McDonald\u2019s is the party who initiated the investigation of the Cummingses for its own questionable purposes. We believe that the trial court correctly interpreted the parties\u2019 intent in 1985 that the release would reach all of the non-McDonald\u2019s defendants also, as \u201cagents\u201d of McDonald\u2019s.\nApparently, the passage of time and the frustrations of many additional years of litigation has led to the Cummingses\u2019 attempt to hold the non-McDonald\u2019s defendants separately accountable for their actions. While we are not implying that these investigative agencies automatically should be immunized from any illegal conduct they may have engaged in, we do agree with the trial court that the unambiguous intention of the parties back in 1985 is what controls in this case. Accordingly, we find that the trial court\u2019s entry of specific performance of the June 20 settlement agreement and its attendant releases was proper.\nWe conclude that the trial court did not misapply Alsup to the facts of the pending case. While the non-McDonald\u2019s defendants were not parties to the 1985 settlement agreement and release, their general existence and role in McDonald\u2019s alleged campaign was known and, we believe, specifically intended to be included in the release under the \u201cagent\u201d rubric. They were not acting independently and no one thought they were until the pending litigation made it advantageous for the parties to take differing legal positions in support of or opposing their status as agents of McDonald\u2019s.\nMcDonald\u2019s, the other defendants, and the Cummingses have all taken mutually contradictory positions on the issue of agency. At one time, McDonald\u2019s litigation stance necessarily sought to disavow the acts of the non-McDonald\u2019s defendants; by denying its control over those defendants and distancing itself from the illegal conduct, McDonald\u2019s could deny liability for their allegedly wrongful acts. The Cummingses, of course, viewed McDonald\u2019s as the orchestrator of the tortious activity and in that sense at least, the acts of the non-McDonald\u2019s defendants would be imputed to McDonald\u2019s through agency principles. Now however, the Cummingses find it strategically beneficial to urge us to hold that the other defendants were not agents after all, but rather co-conspirators or independent contractors. We see no justification, however, for engaging in what amounts to theoretical discussion of issues that are not pertinent under the actual facts of this case. We reject the notion that the parties\u2019 changing theories on the issue of agency create a genuine issue of material fact. As we did in response to McDonald\u2019s multiple-pronged attack against the summary judgment entered against it, we conclude that the Cummingses\u2019 challenge to the trial court\u2019s conclusions on the scope of the 1985 release is unpersuasive. Accordingly, we affirm the trial court\u2019s order dismissing the non-McDonald\u2019s defendants from the case.\nWe affirm, in their entirety, the trial court\u2019s judgments that are the subject of these combined appeals.\nAffirmed.\nJOHNSON, J., concurs.\nThis allegation, and the inclusion of Fred Turner\u2019s name as the person behind the threat, was raised for the first time in the second amended complaint. McDonald\u2019s objected to the filing of the second amended complaint, requesting an opportunity to disprove the allegations relating to the murder plot. The trial court ordered that the file would be impounded and the parties and their attorneys would be subject to a \u201cgag\u201d order. We vacated that order upon plaintiffs\u2019 appeal, however, holding that it amounted to an unconstitutional prior restraint on speech. Cummings v. Beaton & Associates, Inc. (1989), 192 Ill. App. 3d 792, 549 N.E.2d 634.\nThe transcript of the July 9, 1985, bankruptcy court proceedings hints at the massive undertaking the Central litigation had become in the State court, as discovery proceeded and McDonald\u2019s zealous defenses engendered the need for more expert witnesses and additional discovery. Central\u2019s earliest, prelitigation demand for settlement of its initial claim was $600,000. After years of extensive discovery and motion practice, which forced Cummings to find investors to finance the litigation expenses, the parties underwent a 13-week trial, reportedly the longest ever in Cook County at the time. The resulting $52 million verdict was also reported to be the largest verdict returned at that time.\nThe record indicates that the bankruptcy court routinely required inclusion of an interest component in settlement awards, to preserve the value of the sum pending any bankruptcy appeals or other delays. McDonald\u2019s readily agreed to include the interest component in the amended settlement and there is no indication of record that it would have objected to the same interest in the original settlement agreement.", "type": "majority", "author": "JUSTICE LINN" }, { "text": "PRESIDING JUSTICE JIGANTI,\ndissenting:\nWith apologies to the persevering reader who has endured moats, mountains and a hurricane, I must respectfully dissent from the majority opinion. I promise to be brief. This is an appeal from the allowance of a motion for summary judgment in favor of the plaintiffs, Thomas and Barbara Cummings, in the breach of contract action against McDonald\u2019s. The majority opinion appears to be that of a trial court deciding a question of fact. Summary judgment is a question of law. Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083.\nThe instant breach of contract action emanated from an underlying lawsuit by Central Ice Cream Company, an Illinois corporation, and against McDonald\u2019s Corporation. A verdict was entered in favor of Central and against McDonald\u2019s in the amount of $52 million. While Thomas and Barbara Cummings were officers and directors of Central and owned substantial stock, they were not parties themselves to, the lawsuit. Not being parties, they were, of course, not entitled to a portion of the judgment.\nCentral, McDonald\u2019s and the Cummingses signed a settlement agreement, also referred to in these proceedings as the contract. That agreement accomplished two things. First, by allocating $11.5 million to Central and $1.6 million to the attorneys, it settled the action between Central and McDonald\u2019s. Second, the settlement agreement allocated $2.4 million to the Cummingses, not for any personal claim emanating from the litigation between Central and McDonald\u2019s, but rather \u201cto settle all potential litigation between them.\u201d The settlement agreement was conditioned upon the approval of the bankruptcy court. The agreement provides that McDonald\u2019s \u201cwill recommend approval of the Settlement Agreement without reservation.\u201d It is this provision of the contract that the Cummingses claim, and the trial court found, was breached. The contract also provides that the trustee will petition the court for approval of the agreement \u201csetting forth the complete terms hereof and seeking entry of an order acknowledging all such terms and the reasonableness thereof and finding that such terms are fair, equitable and to the benefit of the Bankrupt Estate.\u201d\nThe Cummingses contend that the contract was breached by the conduct of Fred Lane, a McDonald\u2019s attorney, during the course of the hearings in the bankruptcy court by introducing evidence of the negotiations to reach the settlement. The significance of the negotiations is that they indicate to whom McDonald\u2019s made an offer of settlement. The trial court found as a matter of law that the contract provision stating that McDonald\u2019s was to recommend approval of the settlement without reservation was breached by the introduction of this evidence.\nThe pertinent facts in the record relating to the settlement agreement are that McDonald\u2019s initiated settlement discussions with trial counsel for Central, Gerry Spence. Spence stated that McDonald\u2019s initially offered $11 million, which was rejected, and after additional negotiations the amount of $15.5 million was verbally agreed upon. At that time there was nothing mentioned about the Cummingses. Thomas Cummings was initially elated about the settlement, but later after conferring with his attorney, and then with a bankruptcy attorney, he was informed that after the creditors\u2019 claim was satisfied he was \u201cnot going to see a penny\u201d of the settlement. Cummings said that he would not sign the agreement either on behalf of Central or personally. According to Spence, Cummings stated that \u201c[yjou\u2019re asking me to give up \u2014 the possibility of giving up $15 million and a half and getting nothing. And then also giving up my own personal claims?\u201d Spence had a \u201cbig fight\u201d with Cummings over the matter because he had given \u201chis word\u201d to McDonald\u2019s. Cummings asked if McDonald\u2019s would agree to $5 million to be set out of the total settlement for his claims. Spence spoke to Donald P. Horwitz, a lawyer and an executive vice-president of McDonald\u2019s, who had \u201can absolute uncontrolled fit\u201d and rejected the notion of paying Cummings anything. McDonald\u2019s threatened to take the matter directly to the bankruptcy court without the Cummingses\u2019 participation or release. Spence testified that he told the McDonald\u2019s representative:\n\u201cWell, please, what difference does it make to you how this money is spent? We have got to take it to the bankruptcy judge. We will make a full disclosure to the bankruptcy court. How it [$15.5 million] is spent shouldn\u2019t be any of McDonald\u2019s business. What difference does it make to you? I made a deal for fifteen and a half million dollars. Now, you want to tell me how to spend it.\u201d\nHorwitz, in an affidavit on the motion for summary judgment related that he told Spence:\n\u201cMcDonald\u2019s was willing to pay a total of $15.5 million to Central in full satisfaction of the judgment in the Central Ice Cream litigation and it was up to the bankruptcy court to direct to whom the fund should be paid. I [Horwitz] said that as long as McDonald\u2019s is not required to pay any more than $15.5 million in full settlement, of Central\u2019s judgment and it receives appropriate releases from Central, McDonald\u2019s would agree to an allocation to Mr. Cummings which was approved by the bankruptcy court only if the entire agreement reflecting the $11.5 million and the $4 million is presented to the bankruptcy court and the court is fully advised of all the settlement negotiations giving rise to the agreement, including that McDonald\u2019s had been willing to pay the entire $15.5 million to Central and is still willing to make that payment.\u201d\nShelby Yastrow, an attorney for McDonald\u2019s, by affidavit stated that he was a party to the conversation between Spence and Horwitz and essentially reiterated what Horwitz had stated.\nWith these facts in the background and known only to the parties, the bankruptcy judge, Jack B. Schmetterer, at the beginning of the hearing, quoting from the case of Protective Committee for Independent Stockholders of T M T Trailer Ferry, Inc. v. Anderson (1968), 390 U.S. 414, 20 L. Ed. 2d 1, 88 S. Ct. 1157, stated that in order to determine whether a compromise was fair and equitable it needed all facts necessary to make an intelligent and objective opinion. In order to do so, he had to take a \u201cquasi-inquisitorial role.\u201d Even before the hearing started, one of the attorneys for the creditors suggested that he wanted to depose Theodore M. Becker, special litigation counsel for the trustee in the McDonald\u2019s lawsuit, and also an attorney for Thomas Cummings. He specifically wanted to question Becker about the negotiation process.\nBecker was the first witness in the hearing before Judge Schmetterer and explained the settlement agreement; however, his explanation was at odds with settlement negotiations as related in the majority opinion and in this dissent. Becker stated that McDonald\u2019s was \u201cabsolutely adamant\u201d and insisted upon a personal release from Cummings throughout the settlement negotiations. He stated that McDonald\u2019s was the one who allocated $11.5 million to Central and the $4 million to the Cummingses and their attorneys. The bankruptcy judge after only hearing Becker indicated that when the lawyers for the estate embarked upon settlement discussions, they were put in a conflict of interest situation with the estate.\nThe alleged breach of contract occurred the following day before testimony began. McDonald\u2019s attorney, Fred Lane, informed the court that the original settlement between McDonald\u2019s and Spence called for McDonald\u2019s to pay $15.5 million in settlement of the circuit court litigation; the only litigation pending at that time was between Central and McDonald\u2019s. Lane related that McDonald\u2019s informed plaintiffs\u2019 counsel that the Cummingses\u2019 execution of release was not a condition of the settlement and that the fund could be allocated on any basis that the plaintiffs wanted as long as the bankruptcy court approved, and as long as it does not cost McDonald\u2019s any more money, and that they received a release from the trustee on behalf of Central.\nPatently, the parties had a duty to disclose settlement negotiations. The bankruptcy court was keenly aware of the fact that it had to determine the fairness of the settlement and needed all necessary facts to make that determination. It was presented a settlement agreement that settled a matter not only with the subject matter of the bankruptcy, Central, but also the agreement with the president of Central who at that time had no litigation pending. At the very hearing when only Central\u2019s attorney, Becker, testified, the bankruptcy court determined that there was a conflict of interest between Becker and the bankrupt estate. The testimony of Becker at the hearing was contrary to the facts as testified to, not only by McDonald\u2019s but also Spence, and are not contradicted anywhere in this motion for summary judgment. The information was relevant. Attorneys are officers of the court and must make a complete disclosure of relevant facts. (People v. Buckley (1987), 164 Ill. App. 3d 407, 413, 517 N.E.2d 1114.) Concisely, a contract cannot be breached by withholding relevant information from the court.\nSecondly, the agreement specifically provides that the bankruptcy court would be petitioned for approval and that the complete terms would be set forth and an evaluation made of the reasonableness of those terms by the bankruptcy court. All of the evidence before the court in this motion for summary judgment amplifies that provision in the contract.\nThe attorneys were duty bound and contractually bound to inform the court of the negotiations and this contract was not breached by providing that information. In my estimation, the judgment of the trial court should be reversed.", "type": "dissent", "author": "PRESIDING JUSTICE JIGANTI," } ], "attorneys": [ "Foran, Wiss & Schultz, of Chicago (Thomas A. Foran, Richard G. Schultz, James R. Figliulo, and Steven H. Gistenson, of counsel), for McDonald\u2019s Corporation.", "Theodore M. Becker, P.C., and Sachnoff & Weaver, Ltd., both of Chicago (Lowell E. Sachnoff, Arnold A. Pagniucei, and Jeffrey T. Gilbert, of counsel), for Thomas Cummings and Barbara Cummings." ], "corrections": "", "head_matter": "THOMAS CUMMINGS et al., Plaintiffs-Appellees and Cross-Appellants, v. BEATON & ASSOCIATES, INC., Defendant (McDonald\u2019s Corporation, Defendant-Appellant and Cross-Appellee).\u2014THOMAS CUMMINGS et al., Plaintiffs-Appellants, v. BEATON & ASSOCIATES, INC., Defendant-Appellee.\nFirst District (4th Division)\nNos. 1\u201491\u20142131, 1\u201491\u20142492 cons.\nOpinion filed December 17, 1992.\nJIGANTI, P.J., dissenting.\nForan, Wiss & Schultz, of Chicago (Thomas A. Foran, Richard G. Schultz, James R. Figliulo, and Steven H. Gistenson, of counsel), for McDonald\u2019s Corporation.\nTheodore M. Becker, P.C., and Sachnoff & Weaver, Ltd., both of Chicago (Lowell E. Sachnoff, Arnold A. Pagniucei, and Jeffrey T. Gilbert, of counsel), for Thomas Cummings and Barbara Cummings." }, "file_name": "0287-01", "first_page_order": 305, "last_page_order": 346 }