                                                                                THIRD DIVISION
                                                                                December 12, 2007




No. 1-06-2398


MICHAEL JORDAN,                                               )       Appeal from
                                                              )       the Circuit Court
       Plaintiff and Counterdefendant-Appellee,               )       of Cook County.
                                                              )
                v.                                            )       No. 05 CH 13060
                                                              )
KARLA KNAFEL,                                                 )       Honorable
                                                              )       Stuart E. Palmer,
       Defendant and Counterplaintiff-Appellant.              )       Judge Presiding.


       JUSTICE THEIS delivered the opinion of the court:

       This action arises from a complaint for declaratory judgment originally filed by plaintiff

Michael Jordan alleging that defendant Karla Knafel was attempting to extort $5 million from him

by threatening to publicly expose their relationship. Knafel filed a counterclaim asserting breach

of contract based on Jordan’s alleged agreement to pay her $5 million when he retired from

basketball in exchange for her agreement not to file a paternity suit against him and to keep their

romantic involvement confidential. Ultimately, Jordan filed a motion for summary judgment on

Knafel’s counterclaim and on his amended complaint. The circuit court granted the motions for

summary judgment, finding that the alleged settlement agreement was unenforceable because it

would have been either fraudulently induced by Knafel’s false statement to Jordan that “she was

pregnant with his child” or would have been based on a mutual mistake of fact as to the paternity
1-06-2398

of her unborn child.

       On appeal, Knafel contends that the circuit court erred in granting Jordan’s motions for

summary judgment on her verified counterclaim and his amended complaint where: (1) material

issues of fact remain regarding the validity of the paternity tests; (2) material issues of fact remain

on the elements of good faith, intent, materiality, and reliance in connection with Jordan’s

defenses of fraudulent inducement and mutual mistake of fact; and (3) there was no evidence that

she ever threatened Jordan to substantiate his claim of extortion. Additionally, Knafel contends

that the circuit court abused its discretion in denying her motions to compel Jordan’s deposition

and the production of certain documents.

BACKGROUND

        On October 23, 2002, Jordan filed his original complaint for a declaratory judgment and

injunctive relief against Knafel. Therein, he alleged that he had a relationship with Knafel more

than a decade earlier, but denied the existence of any agreement to pay Knafel $5 million. Jordan

further alleged that Knafel had previously extorted $250,000 from him under threat of publicly

exposing their relationship and that, pursuant to a purported second agreement, she threatened to

publicly expose their relationship unless Jordan paid her an additional $5 million. He sought a

declaratory judgment that her demand for payment, even if an agreement existed, was

unenforceable because (1) extortionate agreements violate public policy; (2) there would be no

consideration to support any such agreement due to Knafel’s existing obligation not to publicly

expose their relationship; (3) any such agreement would violate the statute of frauds; and (4) any

such agreement would be barred by the statute of limitations. Additionally, Jordan sought an


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order enjoining Knafel, and any other person acting on her behalf, from engaging in further efforts

to extort money from him.

        Knafel responded to the complaint by filing a verified answer and affirmative defenses

denying the material allegations of the complaint. Therein, she admitted that Jordan paid her

$250,000 but stated that it was for her mental pain and anguish arising from their romantic

relationship. In addition, Knafel filed a verified counterclaim asserting theories of breach of

contract and anticipatory breach of contract based on Jordan’s alleged breach of his promise to

pay Knafel $5 million “when he retired from professional basketball in exchange for her agreement

not to file a paternity suit against him and for her agreement to keep their romantic involvement

publicly confidential.”

        The following relevant facts were alleged in the verified counterclaim. In the spring of

1989, Knafel, a singer, was performing in a band at a hotel in Indianapolis, Indiana. The Chicago

Bulls were also in town to play the Indiana Pacers. After her performance, Knafel was

approached by a National Basketball Association referee, who eventually introduced her to Jordan

over the telephone. Although Knafel declined Jordan’s invitations to meet during the spring and

summer of 1989, she and Jordan continued long-distance telephone conversations during that

time.

        In December 1989, three months after Jordan had married his wife, Knafel traveled to

Chicago to meet Jordan, where they had unprotected sex. Thereafter, in November 1990, Knafel

stayed with Jordan in Phoenix, Arizona, where they again had unprotected sex. In early 1991,

Knafel learned that she was pregnant. She “was convinced that she was carrying Jordan’s baby,”


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but kept silent about the pregnancy for some time. The Bulls were on their way to their first NBA

championship and Jordan was earning large sums of money in product endorsements. Knafel

alleged that as a result, Jordan was “troubled” when she told him “she was pregnant with his

child” in the spring of 1991. He was worried about destroying his public image, which he and his

agent had carefully cultivated, and was concerned about the loss of future endorsements. Knafel

further alleged that Jordan demanded that she abort the baby, but because of her personal beliefs,

she refused.

        According to Knafel, during several conversations about the impending birth of the baby,

she and Jordan “discussed possible resolutions of their dilemma.” In the spring of 1991, Jordan

offered, and urged Knafel to accept, his proposed settlement agreement to “resolve their

problems.” Jordan offered to pay her “$5 million when he retired from professional basketball in

return for her agreement not to file a paternity suit against him and for her agreement to keep

their romantic involvement publicly confidential.” Knafel accepted Jordan’s offer. In

consideration for his promise to pay her, she agreed to forbear filing a public paternity action

against him and agreed to keep their romantic relationship confidential.

        In July 1991, Knafel’s child was born. Jordan paid certain hospital bills and medical costs

and paid Knafel $250,000 for “her mental pain and anguish arising from her relationship with

him.” Knafel did not file a paternity suit against Jordan and she kept their relationship

confidential.

        Thereafter, in October 1993, Jordan announced his retirement from the Bulls, but in

March of 1995, he returned again to the NBA to play for the Bulls. Knafel had not contacted


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Jordan to demand her payment of the $5 million which he had allegedly promised her until the

summer of 1998, amid public speculation that Jordan would soon retire again. In September

1998, Knafel approached Jordan while he was vacationing in Las Vegas. During their

conversation, Knafel reminded Jordan of his obligation to pay her the money under their

agreement. Knafel alleged that Jordan reaffirmed his agreement to pay her the $5 million. A few

months later, Jordan again retired from professional basketball.

         Two years later, after Jordan failed to pay the $5 million under the alleged agreement,

Knafel’s counsel contacted Jordan’s counsel to resolve their contract dispute. Jordan denied that

he had promised to pay Knafel $5 million and eventually filed his complaint for declaratory

judgment and an injunction. Knafel’s counterclaim sought $5 million for breach of contract.

Additionally, at the time Knafel filed her counterclaim, it was alleged that Jordan was playing

basketball for the Washington Wizards. Accordingly, she also alleged an anticipatory breach of

their 1991 contract and 1998 reaffirmation.

         Thereafter, Jordan filed a hybrid motion for judgment on the pleadings, which was

directed to his complaint, and a motion to dismiss Knafel’s counterclaim. Therein, Jordan argued

that the alleged agreement was unenforceable because it violated public policy or, in the

alternative, that it was induced by fraud or mutual mistake of fact regarding the paternity of her

child.

         After a separate hearing on both motions, the trial court dismissed Jordan’s complaint for

declaratory judgment and denied his motion for judgment on the pleadings. The court found that

Jordan failed to allege an actual controversy and that issuing a declaratory judgment on a


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hypothetical contract would constitute the rendering of an advisory opinion. The trial court

further dismissed the counterclaim, finding the agreement to be extortionate and against public

policy. The parties appealed both rulings.

       In Jordan v. Knafel, 355 Ill. App. 3d 534, 542, 823 N.E.2d 1113, 1121 (2005), this court

reversed the circuit court’s dismissal of the counterclaim, holding that taking the pleadings as

alleged, “the agreement could be construed as a good-faith settlement of her paternity claim with

a confidentiality provision which is not violative of public policy.” Jordan, 355 Ill. App. 3d at

542, 823 N.E.2d at 1121. Additionally, this court held that it could not address the merits of the

fraudulent inducement and mutual mistake arguments because there was no proper evidence

presented to the court with which to conclude that Jordan was not the father of the child. Jordan,

355 Ill. App. 3d at 544, 823 N.E.2d at 1122. Finally, this court reversed the dismissal of Jordan’s

complaint and held that although on its face it lacked sufficient facts to state a cause of action, the

facts alleged in Knafel’s counterclaim were sufficient to form a record establishing an actual

controversy. Jordan, 355 Ill. App. 3d at 545, 823 N.E.2d at 1123.

       On remand, Jordan filed a verified amended complaint for declaratory judgment and

injunctive relief and a motion for summary judgment on Knafel’s counterclaims. For purposes of

the motion for summary judgment, Jordan did not contest the existence of the alleged settlement

agreement. Rather, he argued that the alleged agreement was unenforceable because it was either

fraudulently induced or was based on a mutual mistake of fact as to the paternity of Knafel’s

child. In support, Jordan attached the affidavit of Dr. Charles M. Strom. Dr. Strom’s affidavit

provided that in August 1991, which was one month after Knafel’s child was born, and a few


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months after the purported settlement agreement, he collected blood samples from Jordan, Knafel,

and Knafel’s child, and conducted genetic testing for all three individuals under pseudonyms.

Based upon the lab report from the Genetics Institute of the Illinois Masonic Medical Center,

which was attached to Dr. Strom’s affidavit, Dr. Strom concluded that “[t]he test exclude[d] Mr.

Jordan from being the father” of Knafel’s child. Additionally, in September 1991, Dr. Strom

collected blood samples from Jordan to conduct additional genetic testing of Jordan, Knafel, and

her child. Those tests were conducted by Cellmark Diagnostics and the report, also attached to

the affidavit, indicated that Jordan was excluded from being the father of Knafel’s child by both

DNA and serology testing.

       In response, Knafel argued that Jordan’s actual paternity was irrelevant to the

enforceability of the alleged settlement agreement. In support of her argument, she filed an

affidavit in opposition to the motion for summary judgment. Therein, she stated that at the time

of the alleged agreement she believed in good faith that she was pregnant with Jordan’s child.

Specifically, she stated that she informed Jordan throughout their relationship that she was having

sex with another man and that he even teased her about it. She never told Jordan that she was

using birth control and he never used a condom when they had sex. She and Jordan were

together in Phoenix, Arizona, on November 19-20, 1990, when they had unprotected sex. On

February 14, 1991, her obstetrician, Dr. Michael F. Grisanti, told her that her baby was conceived

on November 19 or 20, 1990. Knafel attached to her affidavit a copy of Dr. Grisanti’s signed and

dated office note. The note provides as follows:

               “TO WHOM IT MAY CONCERN:


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                  KARLA KNAFEL IS A PATIENT UNDER MY CARE FOR HER

                  PREGNANCY. HER DATE OF CONCEPTION IS NOV. 19, 20,

                  1990. HER LMP WAS NOV. 5, 1990. HER EDC IS AUG. 10,

                  1991. ANY QUESTIONS PLEASE FEEL FREE TO CALLME

                  [SIC] AT MY OFFICE.”

Knafel alleged that since those dates coincided with her stay with Jordan in Phoenix, she believed

in good faith that she was pregnant with Jordan’s child. Ultimately, Knafel’s child was born in

July 1991.

           Additionally, in response to Jordan’s motion for summary judgment, Knafel disputed the

validity and reliability of the paternity tests submitted by Jordan and sought to compel discovery

from him, but declined to depose Dr. Strom and declined Jordan’s offer of additional paternity

testing.

           After a hearing, the trial court granted Jordan’s motion for summary judgment on the

counterclaim, finding that “as a result of Knafel’s fraudulent misrepresentation to Jordan that he

was the child’s father or, alternatively, as a result of a mutual mistake of fact, the alleged

settlement contract is voidable and is therefore unenforceable against Jordan.” Thereafter, the

trial court also granted Jordan’s motion for summary judgment on his amended complaint for

declaratory judgment, concluding that “the relief sought in [Jordan’s] declaratory judgment is the

same relief” granted in the motion for summary judgment on the counterclaim. Knafel’s motions

to compel discovery were also denied. Knafel filed a timely appeal from those orders.




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ANALYSIS

       Knafel contends on appeal that the circuit court erred in granting Jordan’s motions for

summary judgment where there were disputed issues of fact relating to his defenses of fraudulent

inducement and mutual mistake of fact. Summary judgment is proper where the pleadings,

depositions, and admissions on file, when viewed in the light most favorable to the nonmoving

party, reveal that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004).

       “The movant bears the initial burden of production in a motion for summary judgment.”

Bourgonje v. Machev, 362 Ill. App. 3d 984, 994, 841 N.E.2d 96, 106 (2005). “A defendant

moving for summary judgment may meet its burden of production either by presenting evidence

that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the

plaintiff will be unable to prove an element of its cause of action.” Bourgonje, 362 Ill. App. 3d at

994, 841 N.E.2d at 106. If a defendant presents facts that would demonstrate its entitlement to

judgment as a matter of law, the burden then shifts to the plaintiff to present some evidence

allowing the imposition of liability on the defendant and supporting each element of his cause of

action, thereby defining a material issue of fact to be determined at trial. Bourgonje, 362 Ill. App.

3d at 994-95, 841 N.E.2d at 106. Thus, although a plaintiff need not prove his case during a

summary judgment proceeding, he must present some evidence to support each element of the

cause of action. Prostran v. City of Chicago, 349 Ill. App. 3d 81, 85, 811 N.E.2d 364, 367

(2004). Our standard of review is de novo. Northern Illinois Emergency Physicians v. Landau,

Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305, 837 N.E.2d 99, 106 (2005).


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       Initially, we address Knafel’s threshold assertion that there is a disputed issue of fact

regarding Jordan’s paternity. Although rejecting several opportunities to depose Dr. Strom and

to conduct additional paternity testing, Knafel instead claims that she is entitled to an inference

that Dr. Strom’s expert opinion is invalid or unreliable. She makes the following arguments: (1)

the tests performed by the Genetics Institute were spoiled or tainted as a result of refrigeration;

(2) the Genetics Institute test results are inadmissible hearsay where Dr. Strom did not personally

conduct these tests; (3) no chain of custody has been shown to prove that the blood samples

drawn actually came from Jordan; and (4) Dr. Strom cannot verify the authenticity of the

Cellmark testing.

       We find that Dr. Strom’s affidavit and attached test results constitute valid and admissible

evidence in support of Jordan’s motion for summary judgment. Contrary to Knafel’s assertions,

the Genetics Institute final results were not spoiled or tainted. Rather, Dr. Strom indicated that

due to inadvertent refrigeration of certain samples, definitive HLA serology testing could not be

completed. However, despite the refrigeration issue, he was able to conclude that Jordan was not

the father of Knafel’s child because Jordan “was excluded from paternity by 4 other serology tests

which are not sensitive to refrigeration, and by DNA testing.” This conclusion was further

supported by the subsequent Cellmark DNA and serology testing.

       Furthermore, we reject Knafel’s argument, made without citation to any relevant

authority, that the test results are inadmissable hearsay because Dr. Strom does not claim to have

done the testing himself. Indeed, Dr. Strom indicated in his affidavit that with respect to the

Genetics Institute tests, he “conducted genetic testing,” and the test results are signed by him.


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Knafel was free to test that assertion by deposing Dr. Strom, but she declined. With respect to

the Cellmark test results, although Knafel argues that Dr. Strom cannot verify their authenticity,

as an expert witness, Dr. Strom may rely on otherwise inadmissible facts or data to support his

opinion that Jordan is not the father of Knafel’s child. Wilson v. Clark, 84 Ill. 2d 186, 192-93,

417 N.E.2d 1322, 1326 (1981).

       Additionally, Knafel’s arguments regarding chain of custody and authenticity are mere

speculation and are unsupported by any evidence suggesting that the tests were actually tainted or

contaminated. Mere speculation is not enough to create a genuine issue of material fact sufficient

to survive a motion for summary judgment. Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App.

3d 740, 747, 826 N.E.2d 987, 994 (2005). As the trial court aptly stated, “[t]his Court will not

hear Knafel’s unsupported challenge to the paternity tests when the Court’s offer of yet a third

round of testing was rebuffed by Knafel’s counsel.” Accordingly, where Jordan has presented

unrebutted evidence regarding paternity, Knafel has failed to meet her burden to raise a genuine

issue of material fact regarding Dr. Strom’s findings.

       We must now consider what impact the paternity evidence has on the enforceability of the

alleged agreement. Knafel argues that Jordan’s actual paternity is irrelevant to the enforceability

of the alleged settlement agreement as long as she has alleged a good-faith belief at the time of

contracting that she was pregnant with Jordan’s child. Jordan maintains that, based upon the

uncontroverted evidence that he is not the father of Knafel’s child, her statement to him at the

time of the alleged settlement that “she was pregnant with his child” is a fraudulent

misrepresentation as a matter of law which makes the contract voidable, permitting rescission.


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         A contract may contain all of the elements necessary for enforceability, but may

nonetheless be unenforceable as a result of the imposition of an affirmative defense. R. Lord,

Williston on Contracts §69:1, at 485 (4th ed. 2003). Here, Jordan seeks rescission of the

contract, which is an equitable doctrine (Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis

Insurance Co., 355 Ill. App. 3d 156, 165, 821 N.E.2d 706, 713 (2004)), based on the affirmative

defense of fraud in the inducement. Fraud in the inducement of a contract is a defense that

renders the contract voidable at the election of the injured party. Tower Investors, LLC v. 111

East Chestnut Consultants, Inc., 371 Ill. App. 3d 1019, 1030, 864 N.E.2d 927, 939 (2007).

       In order for a representation to constitute fraud that would permit a court to set aside a

contract, the party seeking such relief must establish that the representation was: (1) one of

material fact; (2) made for the purpose of inducing the other party to act; (3) known to be false by

the maker, or not actually believed by him on reasonable grounds to be true, but reasonably

believed to be true by the other party; and (4) was relied upon by the other party to his detriment.

Tower Investors, LLC, 371 Ill. App. 3d at 1030, 864 N.E.2d at 939; Wilkinson v. Appleton, 28

Ill. 2d 184, 187, 190 N.E.2d 727, 729-30 (1963).

       Knafel asserts that there is a genuine issue of fact as to whether her affirmative

representation to Jordan that “she was pregnant with his child” was material to the alleged

settlement agreement and induced Jordan to act. Specifically, she argues that Jordan’s actual

paternity (1) was not a subject of discussion when they reached their settlement agreement; (2) it

was not a term or contingent condition of their settlement agreement; and (3) Jordan has never

actually stated that it was material to the agreement. Additionally, she maintains that she is


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entitled to an inference that Jordan’s only motive was to preserve his image and protect his

lucrative endorsements.

       A misrepresentation is “material” if the party seeking rescission would have acted

differently had he been aware of the fact or if it concerned the type of information upon which he

would be expected to rely when making his decision to act. Miller v. William Chevrolet/GEO,

Inc., 326 Ill. App. 3d 642, 649, 762 N.E.2d 1, 7 (2001); see also Restatement (Second) of

Contracts §162(2) (1981) (materiality exists when the misrepresentation would be likely to affect

the conduct of a reasonable person). To be material, the representation need not have been the

“paramount or decisive inducement, so long as it was a substantial factor.” R. Lord, Williston on

Contracts §69:12, at 550-51 (4th ed. 2003); see Restatement (Second) of Contracts §167, at 453

(1981) (“a misrepresentation induces a party’s manifestation of assent if it substantially

contributes to his decision to manifest his assent”).

       Contrary to Knafel’s assertions, her own allegations establish that paternity was material

to the alleged settlement agreement and was made for the purposes of inducing Jordan to act.

Knafel alleged that in the spring of 1991, when she told Jordan “she was pregnant with his child,”

Jordan “became worried” and they “discussed possible resolutions of their dilemma.” When she

refused to get an abortion, Jordan then “proposed a settlement agreement which would resolve

their problems.” In her verified statement, she asserted that it was not until “after [she] told

Jordan of [her] pregnancy” that “Jordan said he was troubled at the prospect of destroying his

public image” and he agreed to the alleged settlement. Thus, although a general fear of public

exposure of their relationship may well have been a factor when Jordan proposed the alleged


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settlement, it was not Jordan’s only inducement. Rather, by Knafel’s own account, her statement

to Jordan that he was the father of her child was indeed material and a substantial factor in

inducing Jordan to act.

       To hold otherwise would render her agreement not to file a paternity claim to have been a

mere pretense to extort money. If Jordan’s paternity was immaterial to the parties’ settlement

agreement, then her claim that she had a good-faith basis for a paternity action against Jordan

would be unfounded. Without a good-faith basis, they would have lacked the necessary

consideration for their bargain. See McKinley v. Watkins, 13 Ill. 140, 143-44 (1851). Since

consideration is a material element of a contract (Steinberg v. Chicago Medical School, 69 Ill. 2d

320, 371 N.E.2d 634 (1977)), Jordan’s paternity must have been material to a good-faith

settlement of her paternity claim.

       Next, we consider whether there is a genuine issue of fact as to whether Knafel’s

representation was known to be false or not reasonably believed by her to be true at the time of

the alleged agreement. Jordan argues that because Knafel represented to him with certainty that

“she was pregnant with his child,” yet paternity testing ultimately revealed that someone else was

the father, it necessarily follows that at the time she told Jordan he was the father, she must have

lacked certainty about the paternity of the child. Therefore, Knafel’s knowledge of her

uncertainty regarding paternity satisfies the “knowledge” element of fraudulent misrepresentation.

He relies upon Lipscomb v. Wells, 326 Ill. App. 3d 760, 761 N.E.2d 218 (2001), and section

162(1) of the Restatement (Second) of Contracts in support (Restatement (Second) of Contracts

§162(1) (1981)).


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        In Lipscomb, the plaintiff brought a paternity action against the defendant to have him

adjudicated the father of her child, alleging in a verified complaint that he was the natural father.

Lipscomb, 326 Ill. App. 3d at 762, 761 N.E.2d at 219. Thereafter, an agreed order of parentage

was entered requiring the defendant to pay child support. Years later, after being told by the

plaintiff that he was not the child’s natural father and that she had been seeing another man at the

time of conception, the defendant filed a petition seeking DNA testing to determine his paternity

and to vacate the agreed order and to refund the child support payments. Lipscomb, 326 Ill. App.

3d at 762, 761 N.E.2d at 219-20. Therein, he asserted that he entered into the parentage

agreement without the benefit of DNA testing based upon a representation from the plaintiff that

he was the natural father of the child and a representation that she “had no other relations with

men at the time of conception.” Lipscomb, 326 Ill. App. 3d at 762, 761 N.E.2d at 219. The trial

court vacated the parentage judgment finding that prior to the entry of the agreed order of

paternity, the plaintiff concealed from defendant the material fact that he was not the child’s

father. Lipscomb, 326 Ill. App. 3d at 763, 761 N.E.2d at 220.

        On appeal, the appellate court affirmed, recognizing generally that concealing the paternity

of a child from a man held liable for paternity of that child is fraud. Lipscomb, 326 Ill. App. 3d at

765-66, 761 N.E.2d at 222. The court reasoned that when a party claims to know a material fact

with certainty, yet knows that she does not have that certainty, the assertion constitutes a

fraudulent misrepresentation. Lipscomb, 326 Ill. App. 3d at 768, 761 N.E.2d at 224. Thus, the

court reasoned, as applied to this context, when a woman categorically represents to a man that

he is the father of her child, it is implicit in her representation that during the period of conception


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she had only one sexual partner. If the man is actually not the father, that representation is

categorically false, and constitutes a fraudulent misrepresentation. Lipscomb, 326 Ill. App. 3d at

768, 761 N.E.2d at 224.

       Although Lipscomb does not specifically rely on section 162(1) (Restatement (Second) of

Contracts §162(1) (1981)) to support its reasoning, it is implicitly recognized therein. That

provision is instructive and provides:

                       “(1) A misrepresentation is fraudulent if the maker intends

                       his assertion to induce a party to manifest his assent and the

                       maker

                               (a) knows or believes that the assertion is not in

                               accord with the facts, or

                               (b) does not have the confidence that he states or

                               implies in the truth of the assertion, or

                               (c) knows that he does not have the basis that he

                               states or implies for the assertion.” Restatement

                               (Second) of Contracts §162(1) (1981).

       Here, at the time of contract formation, Knafel represented with certainty that she knew

Jordan was the father of her child. However, the paternity tests reveal that it was also the case

that she was having sexual relations with someone other than Jordan around the time of

conception. Therefore, the evidence presented establishes that she knew that she lacked the

certainty about the paternity of the child or, at least, knew that she did not have the basis that she


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stated or implied for that categorical representation, thus making it fraudulent.

       To rebut that finding, Knafel asserts that she believed she had certainty about the paternity

of her child, and in support of that state of mind, she relies on Dr. Grisanti’s office memo

regarding the timing of conception. However, the memo is insufficient to defeat summary

judgment. Knafel merely states that the doctor’s information regarding the dates of conception

coincided with the dates she was with Jordan in Phoenix. That assertion does not discount that

she knew she was also with another partner around that same time period. Although one could

contemplate a situation where a pregnant woman could be subjectively certain about paternity,

Knafel has presented no such affirmative evidence to support an adequate basis for her certainty.

       Additionally, Knafel argues that she indeed disclosed to Jordan throughout their

relationship that she was having sex with another man. Nevertheless, the question is not whether

she told him about her relationships with other men at some previous time, but whether she failed

to disclose material information in the process of contract formation that would render the

contract voidable. Section 161(b) (Restatement (Second) of Contracts §161(b) (1981)) is

instructive here, providing that one makes a misrepresentation through nondisclosure:

                       “(b) Where he knows that disclosure of the fact would

               correct a mistake of the other party as to a basic assumption on

               which that party is making the contract and if non-disclosure of the

               fact amounts to a failure to act in good faith and in accordance with

               reasonable standards of fair dealing.” Restatement (Second) of

               Contracts §161(b) (1981).


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Here, at the time of negotiating the settlement, Knafel was not forthcoming that she had sex with

another partner at the time of conception. Instead, she made an affirmative representation with

certainty that she was pregnant with Jordan’s child. Her failure to disclose the information when

she alone had access to that information amounts to a failure to act in good faith and in

accordance with reasonable standards of fair dealing.

       Finally, with respect to the element of reliance, Knafel initially argues that Jordan’s failure

to state that he relied upon Knafel’s representation precludes summary judgment.       However,

“[w]here representations have been made in regard to a material matter and action has been taken,

in the absence of evidence showing the contrary, it will be presumed that the representations were

relied on.” R. Lord, Williston on Contracts §69:32, at 12 (4th ed. 2003), citing Hicks v. Stevens,

121 Ill. 186, 11 N.E. 241 (1887). Knafel argues that Jordan’s statements to her in 1998, that he

remembered their agreement and would still pay her, despite his knowledge that he was not the

child’s father, supports an inference that, at the time he entered into the contract, he never relied

on her representation that he was the father of the child. However, as stated previously, if the

alleged agreement had nothing to do with his paternity, then the agreement was merely an

agreement to keep their romantic relationship confidential and could no longer be construed as a

settlement of her paternity claim with a confidentiality provision. Accordingly, based upon

Knafel’s own allegations, Jordan must have relied on the representation or the alleged settlement

agreement was otherwise untenable.

       Furthermore, as the court in Lipscomb articulated, Jordan had a right to rely upon the

categorical representation by Knafel that he was the father because “[i]t would make little sense to


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compel a putative father to conduct an independent investigation in the face of a clear and

categorical representation of a mother (who is also his sexual partner) as to his parentage.”

Lipscomb, 326 Ill. App. 3d at 768, 761 N.E.2d at 224. Additionally, we find no merit to Knafel’s

contention that Jordan should not have relied on the representation. “ ‘ “[O]ne who has

intentionally deceived the other to his prejudice is not to be heard to say, in defense of the charge

of fraud, that the innocent party ought not to have trusted him or was guilty of negligence in so

doing” [citations.]’ ” Lipscomb, 326 Ill. App. 3d at 768-69, 761 N.E.2d at 224, quoting Arndt v.

Arndt, 336 Ill. App. 3d 65, 76, 82 N.E.2d 908, 913 (1948). Accordingly, for all of the foregoing

reasons, the alleged settlement agreement was premised on a fraudulent misrepresentation and,

therefore, was voidable by Jordan.

       We further find Knafel’s cited cases, primarily a Maryland case from 1956 and an Illinois

case from 1880, to lack any persuasive or instructive value where contract law has evolved and

societal notions regarding intimate relationships have changed. Moreover, Heaps v. Dunham, 95

Ill. 583 (1880), and Fiege v. Boehm, 210 Md. 352, 123 A.2d 316 (1956), merely stand for the

unremarkable proposition already recognized by this court that forbearance to sue for a lawful

claim or demand is sufficient consideration for a promise to pay for the forbearance “if the party

forbearing had an honest intention to prosecute litigation which is not frivolous, vexatious, or

unlawful, and which he believed to be well founded.” Fiege, 210 Md. at 361, 123 A.2d at 322.

       The court in Fiege found that even though Fiege was ultimately found not to be the father

there was no proof of fraud or unfairness and that the mother gave testimony which indicated that

“she made the charge of bastardy against [the father] in good faith.” Fiege, 210 Md. at 362, 123


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A.2d at 323. The court in Heaps affirmed a settlement of a bastardy claim, finding no fraud

despite evidence that there was doubt whether the woman was actually pregnant. Heaps, 95 Ill. at

585. Nevertheless, the court recognized that the settlement of a bastardy claim could be avoided

by the putative father where the settlement was procured by fraud. Heaps, 95 Ill. at 586; see also

Fiege, 210 Md. at 361, 123 A.2d at 322.

       Moreover, under modern case law and section 161(Restatement (Second) of Contracts

§161 (1981)), the mother’s testimony in Fiege that she had sex with the defendant on one

occasion, would likely constitute a misrepresentation permitting rescission where she failed to

disclose the material fact that she also had sex with another partner around the time of

conception. See Oberman, Sex, Lies, and the Duty to Disclose, 47 Ariz. L. Rev. 871 (2005)

(arguing in favor of subjecting these types of agreements between intimates to contemporary rules

favoring disclosure of material information). Accordingly, Knafel’s reliance on these cases is not

well founded.

       Alternatively, we consider Jordan’s defense of mutual mistake of fact. “Mutual mistake of

fact” as defined by section 152 of the Restatement (Restatement (Second) of Contracts §152

(1981)), and as recognized in Bentley v. Slavik, 663 F. Supp. 736 (S.D. Ill. 1987) citing

Hagenbuch v. Chapin, 149 Ill. App. 3d 572, 500 N.E.2d 987 (1986), provides that if a mistake by

both parties “as to a basic assumption on which the contract was made has a material effect on the

agreed exchange of performances, the contract is voidable by the adversely affected party unless

he bears the risk of the mistake.” Restatement (Second) of Contracts §152, at 385 (1981).

       Here, even if Knafel’s representation was not fraudulent and was made in good faith, her


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representation regarding paternity was ultimately mistaken as Jordan was not the father of the

child. As we have already held, the issue of paternity went to a basic assumption upon which the

contract was made because it was the consideration for the alleged settlement of her paternity

claim. Knafel’s certainty regarding Jordan’s paternity had a material effect on the agreed

exchange of performances, and Jordan did not bear the risk of mistake as a matter of law as he

was not obligated to infer that Knafel had another sexual partner at the time of conception in the

face of Knafel’s categorical representation that Jordan was the father. See Lipscomb, 326 Ill.

App. 3d at 768. In other words, Jordan had no duty to attempt independent verification of the

information especially where, here, ascertainment of the true fact was more readily available to

Knafel than it was to Jordan. See Allstate Insurance Co. v. National Tea Co., 25 Ill. App. 3d 449,

461, 323 N.E.2d 521, 529 (1975) (party had no duty to attempt independent verification of

representation that building had sprinkler system especially where true condition of the building

was more readily ascertainable to the other party). Accordingly, Jordan is entitled to rescission

based upon a mutual mistake of fact regarding paternity and summary judgment was properly

granted in his favor on that basis.

       Next, we consider Knafel’s argument that the circuit court improperly denied her repeated

requests to depose Jordan and to obtain documentary discovery prior to granting Jordan’s

motions for summary judgment. Knafel essentially argues in her Supreme Court Rule 191(b) (145

Ill. 2d R. 191(b)) affidavit that in order to properly oppose the motion for summary judgment, she

needed relevant discovery from Jordan regarding the elements of his defense, namely, “reliance,

materiality, good faith and mistake.”


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        Discovery is authorized in the supreme court rules “ ‘regarding any matter relevant to the

subject matter involved in the pending action.’ ” Computer Teaching Corp. v. Courseware

Applications, Inc., 199 Ill. App. 3d 154, 157, 556 N.E.2d 816, 818 (1990), quoting 107 Ill. 2d R.

201(b)(1). “Discovery is to be a mechanism for the ascertainment of truth and for the purpose of

promoting either a fair settlement or a fair trial.” Computer Teaching Corp., 199 Ill. App. 3d at

157, 556 N.E.2d at 818. Because discovery focuses on the relevance and materiality of both

admissible materials as well as materials that lead to what would be admissible at trial, Illinois trial

courts traditionally have been given great latitude in determining the scope of discovery.

Computer Teaching Corp., 199 Ill. App. 3d at 157, 556 N.E.2d at 818. “A trial court's discovery

order is usually reviewed for an abuse of discretion.” Wisniewski v. Kownacki, 221 Ill. 2d 453,

457, 851 N.E.2d 1243, 1245 (2006).

        Here, we find no abuse of discretion in the trial court’s decision to stay discovery that was

not relevant to the evidentiary issues raised in the motion for summary judgment. The court

found Knafel’s Supreme Court Rule 191(b) (145 Ill. 2d R. 191(b)) affidavit was entirely

conclusory. The court further found that discovery was unnecessary on the issues of materiality

and reliance because those matters were demonstrated by Knafel’s own verified pleadings and

Jordan took those allegations as true for purposes of the motion. Furthermore, Knafel was given

an opportunity by the court to refute the paternity evidence by deposing Dr. Strom and testing the

basis for his assertions and the authenticity of the documents upon which he relied and to engage

in additional paternity testing. She chose not to take that opportunity. Accordingly, it was not an

abuse of discretion for the trial court to find that her assertions that she was “denied access to the


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truth” to be baseless.

       Lastly, where Jordan’s complaint for declaratory judgment was premised upon the same

arguments in defense of the counterclaim, namely, fraudulent inducement and mutual mistake of

fact, the trial court properly granted summary judgment on his complaint as well. For all of the

foregoing reasons, we affirm the judgment of the circuit court.

       Affirmed.

       GREIMAN and CUNNINGHAM, JJ., concur.




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