{ "id": 1096540, "name": "INDECK NORTH AMERICAN POWER FUND, L.P., et al., Plaintiffs-Appellants, v. NORWEB PLC et al., Defendants-Appellees", "name_abbreviation": "Indeck North American Power Fund, L.P. v. Norweb PLC", "decision_date": "2000-06-30", "docket_number": "No. 1-99-1809", "first_page": "416", "last_page": "433", "citations": [ { "type": "official", "cite": "316 Ill. App. 3d 416" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "697 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "297 Ill. App. 3d 488", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910284 ], "year": 1998, "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0488-01" ] }, { "cite": "645 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "164 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477002 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/164/0054-01" ] }, { "cite": "694 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "182 Ill. 2d 12", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864530 ], "year": 1998, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0012-01" ] }, { "cite": "720 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "188 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536152 ], "year": 1999, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0102-01" ] }, { "cite": "545 N.E.2d 672", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "131 Ill. 2d 145", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570227 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "154-55" }, { "page": "157" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0145-01" ] }, { "cite": "702 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "Hirsch" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221431 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "1081", "parenthetical": "Hirsch" }, { "page": "1081" }, { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/1076-01" ] }, { "cite": "688 N.E.2d 1172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "Vernon" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801348 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "344", "parenthetical": "Vernon" }, { "page": "344" }, { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0338-01" ] }, { "cite": "455 N.Y.S.2d 429", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1982, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "89 A.D.2d 229", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 3299446 ], "year": 1982, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ad2d/89/0229-01" ] }, { "cite": "553 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "1001" }, { "page": "1001" }, { "page": "1001" }, { "page": "1001" } ], "opinion_index": 0 }, { "cite": "75 N.Y.2d 496", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4417468 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "503" }, { "page": "503" }, { "page": "503" }, { "page": "503-04" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/75/0496-01" ] }, { "cite": "532 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "125 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555263 ], "year": 1988, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0498-01" ] }, { "cite": "692 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "181 Ill. 2d 214", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821397 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/181/0214-01" ] }, { "cite": "673 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295613 ], "year": 1996, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0201-01" ] }, { "cite": "681 N.E.2d 552", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596976 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "751" }, { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0743-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] } ], "analysis": { "cardinality": 1285, "char_count": 41135, "ocr_confidence": 0.774, "pagerank": { "raw": 1.54919132793605e-07, "percentile": 0.6743229045399944 }, "sha256": "b5473b695410b19d0019aa5f3c3acf24233ff109513f3b6ea449e94f5c3d5e35", "simhash": "1:a8d67f3a7d67a6a4", "word_count": 6528 }, "last_updated": "2023-07-14T16:10:00.608787+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INDECK NORTH AMERICAN POWER FUND, L.P., et al., Plaintiffs-Appellants, v. NORWEB PLC et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nThis case involves two purchase and sale agreements and preexisting partnership agreements through which various partnerships, which owned and operated electric generating power plants, intended to convey their interests to other partnerships wishing to purchase them. Preexisting partnership rights {i.e., first refusal, denial of permission to sell, and designated other purchaser), owned by another entity not involved in the purchase and sale were exercised by that entity prior to the closing of the purchases, thereby preventing the subject sale. Instead, the sales of the plants were made to a purchaser designated by the noncontracting partner.\nThe putative purchasers under the purchase and sale agreement, plaintiffs Indeck North American Power Fund, L.E, Indeck Auburn-dale, L.L.C., and Indeck Gordonsville, L.L.C. (collectively Indeck(s)), appeal from the order of the circuit court granting summary judgment in favor of the putative sellers, defendants Norweb pic (a public limited company registered in England and in Wales), Norweb Power Services (No 1) Limited, and Northern Hydro Limited (collectively Norweb(s)), on Indeck(s)\u2019 breach of contract and equitable estoppel claims, under section 2 \u2014 1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 1005 (West 1996)) (section 2 \u2014 1005) and dismissing with prejudice In-deck(s)\u2019 tortious interference with contract and civil conspiracy claims asserted against third-party and ultimate purchasers, defendants Cal-pine Auburndale, Inc., and Calpine Gordonsville, Inc. (collectively Calpine(s)), pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2\u2014 615 (West 1996)) (section 2 \u2014 615). The noncontracting partner, the Mission Entities (Mission(s)) also sued by Indeck(s), settled their differences with Indeck(s) and are not parties to this appeal.\nUnder the two purchase agreements, Norweb(s) intended to convey to Indeck(s) their general partnership interests in two limited partnerships, Auburndale Power Partners (Auburndale) and Gordonsville Energy (Gordonsville), for an amount in excess of $40 million. Mission(s) were preagreement general partners with Norweb(s) in the Auburndale and Gordonsville limited partnerships. Mission(s) exercised their preexisting partnership rights of first refusal and denial of permission to sell and designated Calpine(s) as purchasers of the subject partnership interests instead. Norweb(s) thereafter sold their interests to Calpine(s). Indeck(s) instituted this action, with the results noted above.\nIndeck(s) present as issues on appeal whether the circuit court erred in granting (1) Norweb(s)\u2019 section 2 \u2014 1005 motion for summary judgment on Indeck(s)\u2019 contract claims; (2) summary judgment in favor of Norweb(s) on Indeck(s)\u2019 equitable estoppel claims; (3) Cal-pine(s)\u2019 section 2 \u2014 615 motion to dismiss and dismissing with prejudice Indeck(s)\u2019 tortious interference with contract claims; and (4) in dismissing with prejudice Indeck(s)\u2019 civil conspiracy claims.\nOn March 28, 1996, Norweb(s) announced their intention to sell their 50% general partnership interests in the Auburndale and Gordonsville limited partnerships, which own and operate power generation facilities in Florida and Virginia, respectively. Auburndale was a partnership consisting of Norweb Power (a 50% general partner) and Mission(s)\u2019 El Dorado (a 1% general partner) and Devereaux (a 49% limited partner). Gordonsville was a partnership consisting of Nor-web(s)\u2019 Northern Hydro (a 50% general partner) and Mission(s)\u2019 Rapidan (a 1% general partner) and Madison (a 49% general partner).\nIn July 1996, Norweb(s) caused an information memorandum to be sent to potential qualified bidders, including Indeck(s), inviting bids in connection with Norweb(s)\u2019 intended sale of their partnership interests in Auburndale and Gordonsville. Prospective bidders were advised by Norweb(s) that the transfers of their partnership interests in both Auburndale and Gordonsville were subject to the rights of first refusal, denial of permission to sell, and designated purchaser held by the existing general partners of each partnership.\nIt was at this procedural juncture, according to Indeck(s), that Mission(s) and Calpine(s) concocted a scheme to skew the entire procedure in favor of purchase by Calpine(s), in return for Mission(s)\u2019 refusal to consent to the sale and designation of Indeck(s) as purchaser, in return for a $7 million payment to Mission(s) by Calpine(s). As other potential bidders were evaluating Norweb(s)\u2019 offering materials, Calpine(s) and Mission(s) discussed \u201cpartnering\u201d on acquiring Nor-web(s)\u2019 sale assets and planned for Calpine(s) to acquire Norweb(s)\u2019 interests in the Auburndale and Gordonsville plants by agreeing not to bid on them in Norweb(s)\u2019 bidding process. Instead, Mission(s) would designate Calpine(s) as purchaser under their rights in the partnership agreements once Norweb(s) had entered into contracts to sell the partnership interests to the winning bidder. Meanwhile, unaware of the Mission(s) \u2014 Calpine(s)\u2019 arrangement, Indeck(s) submitted their bid for Norweb(s)\u2019 interests and were put on a short list, which Norweb(s) disclosed to Mission(s). Ultimately, Indeck(s) were selected by Norweb(s) as the preferred bidder and entered final negotiations to purchase Norweb(s)\u2019 interests.\nAs Norweb (s) and Indeck(s) were finalizing the terms of the Auburndale and Gordonsville purchase agreements, Mission(s) and Cal-pine(s) allegedly furthered their plan to preempt Indeck(s)\u2019 acquisition of these interests. By February 1997, Mission(s) had agreed to allow Calpine(s) to acquire the Auburndale and Gordonsville interests, as demonstrated by an internal Calpine(s)\u2019 memorandum dated February 7, 1997, which noted that \u201cMission expects to receive formal notice of [an] offer to Norweb to buy 50 percent of the Auburndale and Gordonsville projects by February 7, 1997. Mission will give Calpine the opportunity to match this offer.\u201d\nBy late March 1997, Indeck(s) alleged agreement on the terms of definitive purchase and sale agreements had been reached for the sale of Norweb(s)\u2019 50% partnership interest in Auburndale to Indeck Auburndale, L.L.C., and for the sale of Norweb(s)\u2019 Northern Hydro\u2019s 50% partnership interest in Gordonsville to Indeck Gordonsville, L.L.C.\nBoth purchase and sale agreements contained representations and warranties to be exchanged between Indeck(s) and Norweb (s). One provision specified Norweb(s)\u2019 \u201cseller\u2019s knowledge\u201d obligations, section 5.1 of each agreement, requiring Norweb(s) to make \u201call inquiries *** that are reasonably necessary to permit Seller to make such representation or warranty on a fully informed basis.\u201d Both agreements also contained the representations in section 5.2(n) that Nor-web(s) sent to Mission(s) to review, under which Norweb(s) and their affiliates represented and warranted to Indeck(s) that, other than the seller and the Mission(s) partners in the respective partnerships, \u201cno Person has any right to or interest in the Partnership, and there is not outstanding any option, warrant, right of first refusal, or other right to acquire the Partnership [or the Mission partners] or any direct or indirect interest therein, nor does the Partnership [or the Mission partners] have any agreement to issue any such option, warrant, right of first refusal, or other right.\u201d* **\nBoth agreements also imposed obligations on Norweb(s) to seek Mission(s)\u2019 consent and on Norweb(s) themselves to guarantee the performance of their subsidiaries\u2019 obligations. Section 5.5 of both agreements required Norweb(s) as the seller to use their best efforts \u201cto obtain the satisfaction of the Conditions *** in Section[ ] 4.1 [the \u2018CONDITIONS TO CLOSING,\u2019 purchaser\u2019s obligations] *** as soon as possible.\u201d\nOne week after the purchase agreements were signed, however, on April 11, 1997, Mission(s) informed Indeck(s) orally that they would exercise their rights of first refusal under the partnership agreements. On May 16, 1997, Mission(s), through their subsidiary El Dorado, served notice that they exercised their right of first refusal under the Auburndale partnership agreement and designated defendant Calpine Auburndale, Inc., one of Calpine(s)\u2019 subsidiaries, to purchase this interest. On the same date, Rapidan, Mission(s)\u2019 general partner for Gordonsville, served notice that it designated Calpine Gordonsville, Inc., another of Calpine(s) subsidiaries, to purchase the general partnership interest of Norweb (s)\u2019 Northern Hydro in the Gordonsville partnership.\nAt the same time, it is alleged, Mission(s) and Calpine(s) entered into an agreement under which Mission(s) granted Calpine(s) rights of first refusal in all of Mission(s)\u2019 East Coast cogeneration facilities, including Mission(s) \u2019 interests in Auburndale and Gordonsville, for which Calpine(s) agreed to pay Mission(s) the $7 million fee upon the closing of the transactions with the Calpine(s) affiliates. Calpine(s) allegedly derived this $7 million figure from the value of Norweb(s)\u2019 Auburndale and Gordonsville interests.\nAfter Indeck(s) objected to the designation of Calpine(s) to purchase Norweb(s)\u2019 partnership interests, Norweb(s) asserted that the purchase agreements with Indeck(s) remained in force. On June 4, 1997, however, Calpine(s) directed Norweb(s) by letter to terminate their dealings with Indeck(s). Following these and other directions from Calpine(s), Norweb (s) ceased all actions to effect the transfer of the Auburndale and Gordonsville interests to Indeck(s).\nOn June 11, 1997, Indeck(s) filed their initial complaint in this case in the circuit court of Cook County. The case was removed to the United States District Court for the Northern District of Illinois on June 27, 1997, where the district court granted Indeck(s)\u2019 request for expedited discovery in connection with their motion for a preliminary injunction to enjoin the sales of the partnership interests by Nor-web (s) to Calpine(s). Documents were exchanged, and a dozen individuals were deposed both in the United States and in England. After Calpine(s) intervened, but before the preliminary injunction motion was decided, the case was remanded to the circuit court of Cook County on September 2, 1997, where Indeck(s)\u2019 motion for a temporary restraining order was denied on September 5, 1997.\nNorweb(s) joined in Mission(s)\u2019 motion to dismiss the amended complaint on August 22, 1997; however, before the circuit court ruled, Indeck(s) were granted leave to file a second amended complaint at law seeking compensatory and punitive damages on September 30, 1997. The second amended complaint alleged three causes of action against Norweb(s): breach of contract, fraud, and equitable estoppel. The case was then transferred from the chancery division to the law division.\nOn November 14, 1997, Norweb(s) moved to dismiss the second amended complaint, which the circuit court granted with respect to the fraud and equitable estoppel causes of action, but denied with respect to the breach of contract causes of action.\nOn August 17, 1998, with leave of court, Indeck(s) filed their third amended complaint, in which they alleged breach of contract (count I) and equitable estoppel (count IV) claims against Norweb(s); actions against Calpine(s) for tortious interference with contract (count II) and conspiracy (count VI); and actions against Mission(s) for tortious interference with contract (count II), common law fraud (count III), equitable estoppel (count IV), and conspiracy (count VI) .\nNorweb(s) moved for summary judgment on September 18, 1998. Prior to responding to the summary judgment motion, Indeck(s) deposed Gavin Young, Norweb(s)\u2019 in-house lawyer, and Norweb(s) produced all documents relating to the negotiation of the purchase agreements, including all correspondence and all closing documents. Calpine(s) moved to dismiss the third amended complaint. Mission(s) also moved to dismiss the third amended complaint on September 18, 1998, but settled with Indeck(s) before the court rendered a decision on their motion.\nThe circuit court granted Norweb (s)\u2019 motion for summary judgment, with prejudice, in its entirety, and granted Calpine(s)\u2019 motion to dismiss the third amended complaint. This appeal followed.\nI\nIndeck(s) first contend that the circuit court erred in granting summary judgment in favor of Norweb(s) on their breach of contract claims alleged in count I of the third amended complaint, on the theory that the purchase agreements did not excuse Norweb(s) from their obligations to perform if Mission(s) failed to grant their consent or exercised their rights of first refusal. In the alternative, Indeck(s) argue that even if the purchase agreements were terminated, Nor-web(s) have not shown that they should be allowed to avoid liability under their terms.\nIndeck(s) argue that the circuit court erroneously imposed \u201cimplicit\u201d partnership agreement terms into the purchase agreements contrary to its initial conclusion on the motions to dismiss the second amended complaint that \u201c[n]either of the purchase agreements include the specific rights of withholding consent or the Right of First Refusal that are contained in the Partnership Agreements.\u201d Indeck(s) urge that the court ignored the clear import of the parties\u2019 decision not to include a specific clause that would excuse Norweb(s)\u2019 obligations to perform if the consents were not obtained; ignored an affidavit which established that Norweb(s)\u2019 failure to obtain a \u201cconsents and approvals\u201d clause paralleling section 4.1(c) of the purchase agreements was a negotiated term; and also ignored the fact that fair-minded persons could draw different inferences from the facts of this case.\nSummary judgment is properly granted where the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005 (West 1996); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992); Mobil Oil Corp. v. Maryland Casualty Co., 288 Ill. App. 3d 743, 751, 681 N.E.2d 552 (1997). Because this is an appeal from an order granting summary judgment not involving credibility determinations, our review of this case is de novo. Mobil, 288 Ill. App. 3d at 751; Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 285 Ill. App. 3d 201, 209, 673 N.E.2d 369 (1996), affd, 181 Ill. 2d 214, 692 N.E.2d 269 (1998).\nSection 9.7 of the purchase agreements provides that they are to be \u201cconstrued in accordance with and governed by the laws of the State of New York,\u201d excluding its conflicts of laws provisions.\nSpecifically, Indeck(s) assert that Norweb(s)\u2019 failure to insist upon a \u201cconsents and approvals\u201d clause in section 4.2 of the purchase agreements indicates that Norweb(s)\u2019 obligations to sell under the purchase agreements were not excused if Mission(s) failed to give consent under section 9.3.1 of their partnership agreement with Norweb(s). The record reveals, however, that on October 3, 1996, Indeck(s) submitted an initial proposal to purchase Norweb(s)\u2019 partnership interests, In-deck(s)\u2019 offer making itself contingent upon obtaining written consent from the existing partners of Norweb (s). Before submitting their formal written bid, Indeck(s)\u2019 due diligence review resulted in their receiving both the Auburndale partnership agreement and the Gordonsville Energy partnership agreement, which Indeck(s) and their counsel examined. These agreements contained virtually identical provisions: expressly giving Mission(s) the right of first refusal, denial of consent to sell, and the right to designate a third party to purchase Norweb(s)\u2019 partnership interests in the event that Norweb(s) proposed to sell those interests.\nFrom these documents it is clear that Indeck(s) knew of the condition precedent in order for Norweb (s) to sell their partnership interests, namely, that Mission(s) had to consent \u201cto admission of the Successor General Partner,\u201d which could be withheld \u201cin the sole and absolute discretion\u201d of Mission(s) and could also be withheld \u201carbitrarily.\u201d Each partnership agreement supplied to Norweb(s) for examination further provided that any transfer of a general partnership interest without the consent of the other general partner is \u201cnull and void,\u201d as against the partnership.\nIndeck(s) nevertheless proceeded with the proposed purchases with full knowledge of their potential abortion through the exercise by Mission(s) of their partnership rights.\nIndeck(s) nevertheless claim that neither of the purchase agreements, or either version of section 5.1(c) attached thereto, referred to the possibility that Mission(s) would exercise their right of first refusal under the partnership agreements, nor did the purchase agreements purport to incorporate the terms and conditions of the partnership agreements which contained those rights. Rather, Indeck(s) argue, the integration clauses in the purchase agreements made clear that the \u201centire understanding of the parties with respect to the matters herein\u201d did not include the partnership agreements or potential rights of a nonselling partner to preempt the transaction. Therefore, Indeck(s) assert, any knowledge that Indeck(s) had of Mission(s)\u2019 rights of first refusal was immaterial since those rights were not expressly made part of the parties\u2019 agreements.\nBoth purchase agreements in their \u201cASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTEREST\u201d clauses preceding the signature lines clearly and expressly stated, however, that they were being entered into \u201cpursuant to the [Mission-Norweb] Partnership Agreements,\u201d providing that what was being sold included, among other things, \u201cthe rights and obligations of being a general partner in the Partnership[s] *** as such interests, rights and obligations are more fully described in the Partnership agreements.\u201d Indeck(s) thereby were well aware, informed of and bound by Mission(s)\u2019 potential power to stop the sale, even before submitting their written purchasing proposals.\nBased upon the foregoing, the circuit court\u2019s conclusion that the purchase agreements excused Norweb(s) from their obligation to perform in the event Mission(s) exercised their right to first refusal or refused to consent to the purchase or designated a different purchaser must be upheld.\nII\nIndeck(s) next maintain that Norweb(s) breached their obligation to inquire regarding representations made to \u201cseller\u2019s knowledge,\u201d as well as its section 5.2(n) warranties under the purchase agreements. At the very least, they maintain, material issues of fact existed concerning Norweb(s)\u2019 admitted breaches of their investigation obligations, as well as breaches of the warranties, which Norweb(s) deliberately chose not to fulfill. Norweb (s) delegated the responsibility of making all inquiries to permit them to make \u201cseller\u2019s knowledge\u201d representations on a \u201cfully informed\u201d basis to one of their in-house solicitors, Gavin Young. In late January 1997, Young sent a letter to Mission(s)\u2019 in-house lawyer, which included the section 5.1 knowledge representation definition and the section 5.2(n) warranties Norweb(s) would make regarding the Auburndale and Gordonsville partnerships. Young sent his letter to Mission(s)\u2019 in-house lawyer, together with a general release under which Norweb(s) released Mission(s) and their affiliates from liability for any information they supplied in response.\nNorweb(s)\u2019 \u201cseller\u2019s knowledge\u201d inquiries .to Mission(s) were answered in correspondence to Peter Goldsworthy, Norweb(s)\u2019 managing director. Mission(s)\u2019 wholly owned subsidiary, El Dorado, advised, among other responses, that it \u201cwill not comment upon the items set forth in the last sentence of subsection 5.2(n),\u201d i.e., the sentence that represented \u201cseller\u2019s knowledge\u201d that Mission(s) had no agreements to sell any direct or indirect interests they had in the Auburndale partnership, including options, rights of first refusal or any other right. In correspondence of the same date, regarding the Gordonsville partnership, Mission(s)\u2019 wholly owned subsidiary, Rapidan, also refused to comment on the last sentence of subsection 5.2(n).\nAware that Mission(s) refused to respond to their request for section 5.2(n) information, Norweb(s) allegedly knew that they could not make the warranty on a \u201cfully informed basis\u201d as section 5.1 required. Norweb(s) nonetheless decided not to make \u201call inquiries\u201d on this issue and knowingly determined to do nothing with respect to Mission(s)\u2019 position that they would not comment on the 5.2(n) representation. Norweb(s) also consciously decided to withhold this information from Indeck(s), assertedly with full knowledge and acceptance of the consequences of their actions.*\nIllinois and New York both recognize that an express warranty is a creature of contract which a warrantor has created or agreed to by making the requisite affirmation as part of a contract to which it is an adjunct. Collins Co. v. Carboline Co., 125 Ill. 2d 498, 509, 532 N.E.2d 834 (1988). An express warranty given by a seller in a purchase agreement is as much a part of the contract as any other term (CBS, Inc. v. Ziff-Davis Publishing Co., 75 N.Y.2d 496, 503, 553 N.E.2d 997, 1001 (1990)) (CBS), and amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue. Metropolitan Coal Co. v. Howard, 155 E2d 780, 784 (2d Cir. 1946) (Metropolitan Coal); CBS, 75 N.Y.2d at 503, 553 N.E.2d at 1001. Since representations and warranties are assurances upon which a party may rely, they are \u201cintended precisely to relieve the promisee of any duty to ascertain the fact for himself.\u201d Metropolitan Coal, 155 F.2d at 784. A representation is operative even if the party to whom it is given does not believe it to be true. See CBS, 75 N.Y.2d at 503, 553 N.E.2d at 1001. To recover on a warranty claim, a party need only show that the warranty is part of the contract and is relied upon. \u201c[T]he right to indemnification depends only on establishing that the warranty was breached.\u201d CBS, 75 N.Y.2d at 503-04, 553 N.E.2d at 1001.\nA fact finder could well determine that a proper response to the section 5.2(n) inquiry would have required disclosure of the $7 million scheme between Mission(s) and Calpine(s) and that had Norweb(s) conducted the inquiry they had agreed and were required to conduct, they also would have obtained knowledge that Mission(s) planned to preempt the Indeck(s)-Norweb(s) transaction; otherwise, Norweb(s) were obligated to refrain from making the warranty. There is a question of fact as to whether the warranties of section 5.2(n) were breached, perhaps repeatedly, as Mission(s)\u2019 right to first refusal scheme unfolded, because it could be concluded that the section 5.2(n) representations were not true as of the date the agreements were signed and that Mission(s)\u2019 promise to Calpine(s) made them false. Based on the circumstances set forth above, reasonable inferences could be drawn that the warranties were breached when Mission(s) designated Calpine(s) to purchase Norweb(s)\u2019 partnership interests and when Mission(s) granted Calpine(s) rights of first refusal in Mission(s)\u2019 interests in the Auburndale and Gordonsville partnerships. The grant of summary judgment in this aspect of the case was error and must be reversed. That portion of the case should be tried to judgment.\nSection 8.2(c) of the purchase agreements expressly makes Nor-web(s) liable for all damages, including attorney fees, if the purchase agreements are terminated as a result of the \u201cnegligent or willful failure of Seller or Guarantor to perform its obligations hereunder.\u201d Sections 8.3 and 8.4 of the Auburndale and Gordonsville agreements, respectively, provide that the section 8.2 provisions were intended to survive termination of the agreements.\nWith regard to damages, Indeck(s) assert that they have lost profits and income directly flowing from Norweb(s)\u2019 contract breaches. By expressly preserving the parties\u2019 rights to consequential damages, Norweb(s) and Indeck(s) specifically contemplated and agreed that In-deck(s) could bring a claim for the damages sought here. Because the purchase agreements expressly allow, for consequential damages, for this additional reason entry of summary judgment in this part of the case was error and must be reversed and the cause tried to judgment on the merits.\nIll\nIndeck(s) next argue that the circuit court erred in granting summary judgment in favor of Norweb(s) on Indeck(s)\u2019 equitable estoppel claims alleged in count IV of the third amended complaint, which sought damages and to estop Norweb(s) from defending on the basis that Mission(s) would not have consented to Indeck(s)\u2019 admission to the partnerships. They maintain that a jury could find that Goldsworthy\u2019s representations to Indeek(s), as well as his conduct, were calculated to convey the impression that the facts were otherwise than, and inconsistent with, those which Norweb(s) later asserted and could also conclude that Goldsworthy intended that his representations be acted upon. Indeck(s) argue that, given his understanding of the situation and Norweb(s)\u2019 deliberate decision not to inform In-deck(s) of Mission(s)\u2019 failure to comment on the \u201cseller\u2019s knowledge\u201d representations, a fair-minded person could infer that Goldsworthy had actual or constructive knowledge of the true facts. At the very least, he allegedly knew there would be problems obtaining consents.\nUnder New York\u2019s view of estoppel, three elements must be established before estoppel may be imposed upon a party:\n\u201c(1) conduct which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intent that such conduct (representation) will be acted upon; and (3) knowledge, actual or constructive, of the true facts.\u201d Holm v. C.MP. Sheet Metal, Inc., 89 A.D.2d 229, 233, 455 N.Y.S.2d 429, 433 (1982).\nThe circuit court correctly cited Holm in its memorandum order for the proposition that, under New York law, equitable estoppel operates merely to preclude the denial of a right claimed otherwise to have arisen and correctly rejected Indeck(s)\u2019 argument that Norweb(s) should be equitably estopped from denying that \u201cfull and complete consent to the admission\u201d of Indeck(s) partners in the partnerships would have been given.\nEstoppel may not be invoked to compel performance of an act that is beyond the power of the other party to perform. Here, Mission(s), not Norweb (s), had the power to give or withhold consent to In-deck(s)\u2019 admission as partners. Indeck(s) had no independent right to demand and secure such consents or admission.\nFurther, Indeck(s) failed to sustain a claim for estoppel because they did not raise any issue of fact that Mission(s)\u2019 consents would have been forthcoming had Norweb(s) conducted themselves differently. In fact, as Indeck(s) themselves have previously asserted, Mission(s) and Calpine(s) already had agreed that Calpine(s) would be the designated and approved purchaser before Indeck(s) even submitted their final proposals to purchase.\nThe circuit court correctly entered summary judgment for Nor-web(s) on the equitable estoppel claims.\nIV\nIndeck(s) next contend that the circuit court improperly granted Calpine(s)\u2019 section 2 \u2014 615 motion to dismiss their tortious interference with contract claims alleged in count II of their third amended complaint. Indeck(s) argue that Calpine(s) assumed in their section 2 \u2014 615 motion to dismiss that they had conditional privileges to interfere with Indeck(s)\u2019 contracts and that Irideck(s) bore the burden of pleading and proving that no privilege could apply. Because Cal-pine(s) did not meet their burden of pleading and proving their affirmative defense of conditional privilege and because the allegations of the third amended complaint showed that they exceeded any privilege they may have had even if Indeck(s) did bear the burden, Indeck(s) assert the court erred in dismissing their claims, improperly requiring Indeck(s) to plead and prove lack of justification.\nA motion to dismiss under section 2 \u2014 615 attacks the legal sufficiency of the complaint. Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172 (1997) (Vernon). A section 2 \u2014 615 motion alleges only defects on the face of the complaint; it does not raise affirmative factual defenses. Vernon, 179 Ill. 2d at 344; Hirsch v. Feuer, 299 Ill. App. 3d 1076, 1081, 702 N.E.2d 265 (1998) (Hirsch). All well-pleaded facts in the complaint are taken as true and the court must determine whether the complaint\u2019s allegations, when interpreted in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted. Hirsch, 299 Ill. App. 3d at 1081. The standard applied when reviewing the dismissal of a complaint pursuant to section 2 \u2014 615 is de novo. Vernon, 179 Ill. 2d at 344; Hirsch, 299 Ill. App. 3d at 1081.\nTo state a cause of action for tortious interference with an existing contract, a plaintiff must allege: (1) the existence of a valid and enforceable contract between plaintiff and another; (2) defendant\u2019s awareness of the contractual obligation; (3) defendant\u2019s intentional and unjustified inducement of a breach of contract; (4) a subsequent breach by the other caused by defendant\u2019s wrongful conduct; and (5) damages. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 154-55, 545 N.E.2d 672 (1989). An individual is privileged to interfere with a contract when he acts to protect an interest \u201cwhich the law deems to be of equal or greater value than the plaintiffs contractual rights.\u201d HPI Health Care Services, Inc., 131 Ill. 2d at 157. Where it is apparent from the face of the complaint that the interference was privileged, the burden is on plaintiff to allege specific facts establishing that defendant\u2019s conduct was unjustified or malicious. HPI Health Care Services, Inc., 131 Ill. 2d at 156.\nHere, Mission(s)\u2019 consent was an express condition to Nor-web(s)\u2019 obligation to transfer their partnership interests to Indeck(s). Mission(s)\u2019 decision to withhold consent is fatal to Indeck(s)\u2019 claim for tortious interference with contract. Without Mission(s)\u2019 consent, there were no actionable contractual rights that could have been the subject of interference by Mission(s) or Calpine(s). As Indeck(s), themselves, acknowledge, the understanding between Mission(s) and Calpine(s) was reached before Indeck(s)\u2019 proposed purchase was finalized. At that time, the identity of the successful bidder was unknown to any party.\nAs previously recognized, Indeck(s)\u2019 right to acquire Norweb(s)\u2019 partnership interests, and Norweb(s)\u2019 right to transfer their partnership interests to Indeck(s), were conditioned upon Mission(s)\u2019 consent. Norweb(s) could not force Mission(s) to accept Indeck(s). Further, the purchase and sale agreements call for the transfer of Norweb (s)\u2019 partnership interests to be effected by Indeck(s)\u2019, Norweb(s)\u2019 and Mission(s)\u2019 execution of assignment and assumption agreements, which were attached to the purchase and sale agreements. They, too, require Mission(s)\u2019 consent.\nFrom the foregoing it is clear that Indeck(s) did not and could not plead a viable tortious interference with contract claim against Gal-pine(s). The circuit court so held and must be affirmed.\n\u201c[Mission] hereby consents to the assignment of the Acquired Interests pursuant to this Assignment and Assumption, and the admission of [Indeck] as general partner of the partnership.\u201d\nV\nIn their last contention, Indeck(s) argue that the dismissal with prejudice of the civil conspiracy claims was improper because the circuit court made no independent ruling with respect to their civil conspiracy claims and appears to have dismissed the claims on the grounds that there was no underlying tort to support the civil conspiracy claims, not because the proper elements of civil conspiracy were not pled. They argue that their third amended complaint made clear that Mission(s) and Calpine(s) as co-conspirators employed tortious means to plan, agree upon, and implement their conspiracy through the first refusal scheme. Because the elements of civil conspiracy were adequately pled in count VI, and because the underlying tort of tortious interference with Indeck(s)\u2019 contracts was properly pled as well, they allege the court erred in granting the motion to dismiss with prejudice.\nIn order to allege a cause of action for conspiracy, Indeck(s) were required to allege with specific facts an agreement between Mission(s) and Calpine(s) and a tortious act committed in furtherance of that agreement. McClure v. Owens Coming Fiberglas Corp., 188 Ill. 2d 102, 133, 720 N.E.2d 242 (1999). Here, Indeck(s)\u2019 conspiracy claim sets forth only conclusions as to a tortious agreement between Cal-pine(s) and Mission(s) or a tortious act committed in furtherance of such an agreement. Indeck(s)\u2019 conspiracy claim fails for the same reasons that it was unable to state a cause of action for tortious interference with contract. Characterizing a combination of acts as a conspiracy is insufficient to withstand a motion to dismiss. Buckner v. Atlantic Plant Maintenance, Inc., 182 Ill. 2d 12, 23-24, 694 N.E.2d 565 (1998).\nFurthermore, a conspiracy is not an independent tort. Where, as here, a plaintiff fails to state an independent cause of action underlying its conspiracy allegations, the claim for a conspiracy also fails. See Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 645 N.E.2d 888 (1994); Davis v. Times Mirror Magazines, Inc., 297 Ill. App. 3d 488, 499, 697 N.E.2d 380 (1998).\nAccordingly, the dismissal of the alleged conspiracy assertions was proper.\nFrom the foregoing, the circuit court\u2019s dismissals and entries of summary judgments must be upheld, except for the grant of summary judgment upon Indeck(s)\u2019 allegations relating to Norweb (s) breaches of warranties as to \u201csellers knowledge\u201d and section 5.2(n) of the purchase agreements, as discussed in point II of this opinion, which is reversed and remanded for trial.\nAffirmed in part, reversed in part, and remanded with directions.\nTHEIS, EJ., and QUINN, J., concur.\nMissionls) are comprised of parent company Edison Mission Energy and its wholly owned subsidiaries El Dorado Energy Company (El Dorado), Devereaux Energy Company (Devereaux), Rapidan Energy Company (Rapidan), and Madison Energy Company (Madison).\nOne week later, on February 14, 1997, another Calpine(s)\u2019 memorandum noted the following:\n\u201cMission has provided Calpine with the significant project documents for both Auburndale and Gordonsville, as well as financial projections. Norweb has not yet submitted to Mission the terms of the winning bid for it\u2019s [sic] 50% share of these two projects. Upon receipt of this bid, Mission, or it\u2019s [sic] designee, has 45 days to exercise a right of first refusal. Mission has indicated to Calpine that it will have an exclusive opportunity to act as Mission\u2019s designee.\u201d (Emphasis added.)\nArticle V, \u201cREPRESENTATIONS, WARRANTIES AND COVENANTS,\u201d section 5.1, of the purchase agreements provides:\n\u201cSection 5.1 Representations and Warranties of Seller. Whenever a representation or warranty made by Seller in this Agreement is made to Seller\u2019s knowledge, it shall mean the actual knowledge of Seller, Guarantor and Norweb Generation Limited after making all inquiries of El Dorado, the members of the Management Committee of the Partnership and the Executive Director of the Partnership that are reasonably necessary to permit Seller to make such representation or warranty on a fully informed basis. Seller hereby represents and warrants to Purchaser as of the Closing Date that: ***.\u201d (Emphasis added.)\nSection 5.2(n) of the purchase agreements state:\n\u201c[Section 5.2](n) No Other Interests. Other than El Dorado, Devereaux and Seller, no Person has any right to or interest in the Partnership, and there is not outstanding any option, warrant, right of first refusal, or other right to acquire the Partnership, El Dorado or Devereaux or any direct or indirect interest therein, nor does the Partnership, El Dorado or Devereaux have any agreement to issue any such option, warrant, right of first refusal, or other right. Effective upon the Closing, Purchaser has full and valid title to a fifty percent (50%) general partnership interest in the Partnership, free and clear of any Encumbrances except those, if any, created by Purchaser. Except for the rights or interests of Seller, to Seller\u2019s knowledge, there is no outstanding option, warrant, right of first refusal, or other right to acquire El Dorado\u2019s general partnership interest or Devereaux\u2019s limited partnership interest in the Partnership or any direct or indirect interest therein, nor does El Dorado nor Devereaux have any agreement to issue any such option, warrant, right of first refusal or other right.\u201d (Emphasis added.)\nAmong the \u201cCONDITIONS TO CLOSING\u201d bearing upon the issues are section 4.1(b) and (c) of article iy as follows:\n\u201cSection 4.1 Conditions to Purchaser\u2019s Obligation. Purchaser\u2019s obligation to purchase the Acquired Interest on the Closing Date shall be subject to the satisfaction or the waiver by Purchaser, in its sole discretion, of each of the following conditions:\n(b) Representations and Warranties True. There shall be no Material Adverse Change (considered in the aggregate) in the representations-and warranties of Seller contained in Sections 5.1, 5.2 and 7.1 and in any estoppel letter delivered pursuant to Section 4.1(g) hereof, and Purchaser shall have received a certificate dated as of the Closing Date as though such representations and warranties were made on and as of the Closing Date attesting to such effect signed by a duly authorized officer of Seller on behalf of Seller, and Seller shall have complied with all of the covenants required by Section 5.4 of this Agreement to be performed by it at or prior to the Closing Date, and Purchaser shall have received a certificate of Seller dated as of the Closing Date attesting to such effect signed by a duly authorized officer of Seller on behalf of Seller.\n(c) Consents and Approvals. All Consents and Approvals set forth in Schedule 5.1(c) shall have been duly obtained, made or provided, as the case may be, and shall be in full force and effect.\u201d (Emphasis added.)\nCalpine(s) entered into separate agreements with Norweb(s) to purchase the Auburndale and Gordonsville partnership interests, which transactions closed in October 1997.\nThe third amended complaint does not appear to contain a count V\nThe text of section 4.1(c) is set forth in footnote 5.\nSection 4.2 of the purchase agreement reads in part:\n\u201cSection 4.2 Conditions to Obligations of Seller. Seller\u2019s obligation to sell the Acquired Interest on the Closing Date shall be subject to the satisfaction or the waiver by Seller in its sole discretion, of each of the following conditions:\n(a) Proceedings Satisfactory, Etc.\n(i) All matters in connection with the transactions contemplated hereby, and all the legal matters, documents and instruments incident thereto, shall be reasonably satisfactory in form and substance to Seller and its legal counsel, and Seller shall have received all documents and instruments as may reasonably be requested by Seller or its legal counsel; and\n(ii) Purchaser shall have taken all actions required to be taken by Purchaser as of the Closing Date under Article II hereof.\u201d\nSee text of paragraph 5.2(n) at footnote 4.\nNorweb(s)\u2019 counsel made this clear in a deposition filed in the circuit court in which Norweb(s)\u2019 counsel, Gavin Young, asserted that he did not inform Indeck(s) of Mission(s)\u2019 refusal to respond to the section 5.2(n) inquiry because:\n\u201cWe [Norweb(s)] do not have a duty to disclose information, we give a representation and we are allowed to qualify that representation if we chose to do so.\nAnd for the reasons I have given we chose not to pursue that particular response from Mission and not to specifically raise it with Indeck.\nWe accepted *** the consequence[s] of not disclosing that information to Indeck; yes.\u201d\nThe assignment and assumption agreements state as follows:", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Hedlund, Hanley & John, of Chicago (Reuben Hedlund, Dean Trafelet, and Steven Roeder, of counsel), for appellants.", "Gardner, Carton & Douglas, of Chicago (Terry Hacket and Patrick Hughes, of counsel), and Bryan Cave L.L.E, of New York, New York (Michael Biggers, Robert Dwyer, and Beth Green, of counsel), for appellees Norweb pic, Norweb Power Services and Northern Hydro Limited.", "Baker & McKenzie, of Chicago (William Lynch Sehaller, Michael Pollard, and John Murphy, of counsel), for appellees Calpine Auburndale, Inc., and Calpine Gordonsville, Inc." ], "corrections": "", "head_matter": "INDECK NORTH AMERICAN POWER FUND, L.P., et al., Plaintiffs-Appellants, v. NORWEB PLC et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1-99-1809\nOpinion filed June 30, 2000.\n\u2014 Rehearing denied September 22, 2000.\nHedlund, Hanley & John, of Chicago (Reuben Hedlund, Dean Trafelet, and Steven Roeder, of counsel), for appellants.\nGardner, Carton & Douglas, of Chicago (Terry Hacket and Patrick Hughes, of counsel), and Bryan Cave L.L.E, of New York, New York (Michael Biggers, Robert Dwyer, and Beth Green, of counsel), for appellees Norweb pic, Norweb Power Services and Northern Hydro Limited.\nBaker & McKenzie, of Chicago (William Lynch Sehaller, Michael Pollard, and John Murphy, of counsel), for appellees Calpine Auburndale, Inc., and Calpine Gordonsville, Inc." }, "file_name": "0416-01", "first_page_order": 436, "last_page_order": 453 }