Bruss v. Klein
| Decision Date | 05 March 1991 |
| Docket Number | No. 2-90-0058,2-90-0058 |
| Citation | 210 Ill.App.3d 72,154 Ill.Dec. 683,568 N.E.2d 904 |
| Parties | , 154 Ill.Dec. 683 William H. BRUSS, Plaintiff-Appellant, v. Howard J. KLEIN, Jr., et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Robert V. Gildo, Robert V. Gildo, Ltd., Wheaton, for William H. bruss.
Walsh & Knippen, Chtd., Zachary M. Bravos, Bravos & Trapp, Ltd., Wheaton, for Howard J. Klein, Jr., and Alice M. Klein.
Plaintiff, William H. Bruss, appeals from a judgment entered in favor of defendants, Howard J. Klein, Jr., and Alice W. Klein, following a nonjury trial. Plaintiff was seeking specific performance of an option contract which gave him an option to purchase a parcel of real estate located in Wheaton, Illinois, and a declaratory judgment stating that he had the right to proceed under the agreement. The sole issue raised by plaintiff on appeal is whether the trial court's finding in favor of defendants was contrary to the manifest weight of the evidence.
Plaintiff filed his complaint on April 21, 1988. The complaint alleged that defendants are record title holders of real estate located at 1751 Naperville Road, Wheaton, Illinois (subject property). Plaintiff further alleged that he and defendants entered into an option contract dated February 26, 1987, for the purchase of the subject property. A copy of the contract was attached to the complaint.
The agreement provided that, in consideration of the sum of $5,000, plaintiff had an option to purchase the subject property for $350,000. Earnest money was to be paid to the defendants in the amount of $35,000 on or before March 1, 1988, with the balance to be due at closing. The agreement further provided (the underlining indicates completed blanks in the preprinted form):
"The option hereby granted shall be exercised by the Optionee by (a) written notice to that effect delivered to the Optionor at 1751 Naperville Road, Wheaton, Illinois and (b) payment to the Optionor of the price or portion thereof specified, and (c) the delivery of any note and mortgage or trust deed above provided for, on or before March 1, 198."."
Attached to the agreement was a two-page "Rider A" which was made a part of the contract. "Rider A" provided, in pertinent part:
Plaintiff alleged that he attempted to serve defendants with notice to finalize the transaction and with a check in the amount of $35,000 by personally appearing at the subject property on February 26 and 29 and March 1, 1988. He alleged that the premises were vacant on each of these occasions so that he was unable to accomplish delivery.
He further alleged that defendants had a duty to inform plaintiff that they were going to move out of State and would therefore be unavailable for service and that defendants never intended to fulfill the terms of the contract but rather "maliciously, intentionally, and willfully" misrepresented that they resided at the subject property for the purpose of acquiring the $5,000 option fee.
Defendants filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615). Defendants argued that the complaint failed to state a cause of action because defendants had no duty under the terms of the contract to keep plaintiff informed of their residence and because plaintiff admitted that he did not accomplish delivery of the notice and check. The motion was denied, and the cause proceeded to a bench trial.
At trial, plaintiff testified that he attempted to telephone defendants several times around February 24, 1988. He then went to the subject property on February 26, 1988, in order to deliver a $35,000 check and a letter. Both the check and the letter were admitted into evidence. The check was dated February 26, 1988, and the handwritten letter stated:
Plaintiff was there approximately five to seven minutes but was unable to deliver the check and letter because no one was home. He again attempted to deliver the same check and letter twice on February 29, 1988, and once on March 1, 1988. He did not leave the check or letter at the property on any of these occasions.
Defendant Howard Klein, called as an adverse witness, testified that he moved to North Carolina in September 1987. He left the utilities on at the subject property, did not disconnect the telephone and left furniture and draperies inside the property. This was because he used the house approximately two times a month when he came back to Illinois on business, although he did not stay at the property. He did not notify plaintiff of the move. He did notify the post office of his forwarding address in North Carolina, and, as mail was forwarded by the post office, he notified persons sending him mail of his new address. Klein also stated that plaintiff had not contacted him at any time during the year the option was in effect. He testified that he did not move to North Carolina with the intent to hide himself from plaintiff.
Other evidence at trial established that plaintiff's business partner, Jeffrey Walker, delivered the $35,000 check and a letter to defendants' attorney, Gordon Trapp, on March 11, 1988. In the letter, Walker outlined plaintiff's attempts to deliver the check and notice to defendants and demanded that the option contract be consummated. Mr. Trapp did not accept the check based on the fact that the option had expired March 1, 1988.
Plaintiff also testified that he did not send written notice to defendants at the subject property or to defendants' attorney on or before March 1, 1988. He admitted that the option to deliver the check and letter to Mr. Trapp was available to him on March 1, 1988. He did state that he believed that he was required to deliver written notice to defendants first.
A tape of a March 9, 1988, telephone conversation between plaintiff and defendant Howard Klein was played for the judge and admitted into evidence. The telephone conversation was initiated by Klein and was taped by Klein. There is no transcript of the conversation in the record. However, plaintiff agreed during his testimony that the statements of defendants' counsel during his opening statement regarding the conversation were essentially correct. This version of the conversation can be summarized briefly as follows. Klein told plaintiff that he wanted to let plaintiff know that the option had expired. Plaintiff responded:
Another taped conversation between plaintiff and Klein occurred on March 10, 1988. At that time plaintiff told Klein that he had attempted to contact him and that there was nobody to whom to give the money. He asked Klein if he had been out of town. Klein replied that he was on work assignment and that plaintiff could have given it to the lawyer.
Following this testimony, defendants presented an oral motion for a directed finding. The motion was denied.
Jeffrey Walker then testified that he believed that the contingency period on the option agreement ran until March 12, 1988, one year from the date he had been told by plaintiff that the agreement was accepted. Gordon Trapp testified that he had a conversation with Walker on March 11, 1988. Walker told Trapp that he had blown it, that he had marked his file March 12.
Following the trial, the trial court entered judgment for defendants. The judge found that: (1) plaintiff failed to meet his burden to show that he attempted to deliver notice to the subject property on or before March 1, 1988; (2) that plaintiff failed to meet his burden to establish that defendants never intended to fulfill the terms of the contract; and (3) that plaintiff did not exercise the option in a timely manner as set out in the option contract and as contemplated between the parties. After the trial court denied plaintiff's motion to reconsider, this timely appeal followed.
Plaintiff argues on appeal that the trial court's ruling in favor of defendants was against the manifest weight of the evidence. He contends that, as the trial court denied defendants' motion to dismiss and motion for a directed finding, the court must have found that his complaint was sufficient legally to state a cause of action and that plaintiff not only presented sufficient evidence to make out a prima facie case, but met his burden of proof by a preponderance of the evidence. Plaintiff concludes that implied in the court's ruling on the motion for a directed finding was a determination that plaintiff's testimony was credible. Plaintiff maintains that defendants did not negate his testimony that he attempted to serve defendants but that defendants' own conduct made service impossible, arguing that there is therefore no evidence in the record which supports the finding of the trial court for defendants. We disagree and affirm.
Plaintiff is correct that, in ruling on a defendant's motion for judgment in his favor at the end of the plaintiff's case, the court must ...
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