Board of Ed. of Dist. No. 68 v. Green Val. Builders, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: ABRAHAMSON; GUILD, P.J., and THOMAS J. MORAN
• Citation: Board of Ed. of Dist. No. 68 v. Green Val. Builders, Inc., 293 N.E.2d 183, 10 Ill.App.3d 235 (Ill. App. 1973)
• Decision Date: 23 February 1973
• Docket Number: No. 71--332,71--332
• Parties: The BOARD OF EDUCATION OF DISTRICT NO. 68, a body politic and corporate, Plaintiff-Appellant, v. GREEN VALLEY BUILDERS, INC., an Illinois corporation, Defendant-Appellee.

Page 183

293 N.E.2d 183

10 Ill.App.3d 235

The BOARD OF EDUCATION OF DISTRICT NO. 68, a body politic and corporate, Plaintiff-Appellant, v. GREEN VALLEY BUILDERS, INC., an Illinois corporation Defendant-Appellee.

No. 71--332.

Appellate Court of Illinois, Second District.

Feb. 23, 1973.

Eva Schwartzman, Libertyville, plaintiff-appellant.

Robert B. Cook, Chicago, defendant-appellee.

ABRAHAMSON, Justice.

The Board of Education of District 68, Lake County, brings this appeal from an order entered August 4, 1971 by the Circuit Court of that county granting the motion of the defendant, Green Valley Builders, Inc., for summary judgment and dismissing its second amended complaint.

The second amended complaint, filed June 20, 1967, alleges that Green Valley was engaged in the business of constructing single family residences within a subdivision in Lake County known as Cooper's Countryside Manor. The complaint further alleges that Green Valley offered to donate a tract of land within the subdivision for school or park purposes and to pay to the Board the sum of $200 for each home constructed within the subdivision to be used to defray the costs of building a new school on the tract donated or furnishing bus service from the subdivision to existing schools. The complaint also states that the Board accepted the offer by holding a referendum on January 21, 1959 wherein the voters of the school district authorized the Board to furnish bus service to the subdivision. The complaint goes on to allege that the Board did, on March 16, 1959, commence to furnish the bus service, although it was not otherwise obligated to do so since the subdivision was within a 1 1/2 mile radius of the school, and has continuously furnished the service since that date. Finally, the complaint states that Green Valley constructed 130 homes within the subdivision but failed and refused to pay the $200 for each home as agreed and asks for judgment in the amount of $26,000. Attached to the complaint and incorporated in it are three letters wherein, the Board alleges, Green Valley (1) made the offer (by letter dated October 15, 1958); (2) repeated the agreement and sought to include additional conditions (April 1, 1959); and, (3) finally, waived the other conditions and acknowledged full performance by the Board (December 29, 1959).

After its first motion to dismiss was denied, Green Valley filed an answer to the complaint wherein they deny that they ever offered to donate land or monies to the Board and allege that the letters are, at best, evidence of continuing, but ultimately fruitless, negotiations between the parties. As an affirmative defense, Green Valley stated that even if the letter of October 15, 1958 was an offer, the referendum and bus service to the subdivision could not be construed as an acceptance of it. Its motion for summary judgment is based on minutes of a Board meeting held on November 12, 1958, copies of which were filed with the motion and in support of it, which, they assert, clearly indicate that the Board, in fact, rejected the offer of October 15.

In a memorandum of opinion filed by the trial court, it found that '. . . the question of the requirements for bus service were entirely separate and apart from any consideration of the written offer of Green Valley Builders.' The court found that there never was a meeting of minds between the parties since the Board never acted on the offer of the builder and, as we have seen, granted summary judgment for the defendant.

Section 57 of the Civil Practice Act provides that a summary judgment should be rendered '. . . if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.' Ill.Rev.Stat.1971, ch. 110, sec. 57(3). As has frequently been pointed out, a court should construe the pleadings and other documentation strictly against the moving party and liberally in favor of the opponent in determining if summary judgment should be rendered. (Solone v. Reck, 32 Ill.App.2d 308, 177 N.E.2d 879.) It is a remedy to be awarded with caution so as not to pre-empt the right to fully present the factual basis for a suit where a material dispute may exist. (Ruby v. Wayman, 99 Ill.App.2d 146, 240 N.E.2d 699, 700.) It is with these...