McErlean v. Union Nat. Bank of Chicago

• Decision Date: 25 November 1980
• Docket Number: No. 79-2427,79-2427
• Citation: 46 Ill.Dec. 406,414 N.E.2d 128,90 Ill.App.3d 1141
• Parties: , 46 Ill.Dec. 406 Neal A. McERLEAN, Plaintiff-Appellant, v. UNION NATIONAL BANK OF CHICAGO, a National Banking Association, Defendant, and The First Suburban Bank of Olympia Fields, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 128

414 N.E.2d 128

90 Ill.App.3d 1141, 46 Ill.Dec. 406

Neal A. McERLEAN, Plaintiff-Appellant, v. UNION NATIONAL BANK OF CHICAGO, a National Banking

Association, Defendant,

and

The First Suburban Bank of Olympia Fields, a corporation,

Defendant-Appellee.

No. 79-2427.

Appellate Court of Illinois, First District, Second Division.

Nov. 25, 1980.

Michael James Frost, Chicago, for plaintiff-appellant.

Randall E. Server and Mary F. Stafford, Chicago (Epton, Mullin, Segal & Druth, Ltd., Chicago, of counsel), for defendant-appellee.

HARTMAN, Justice:

In counts II and III of a five count amended complaint in chancery, plaintiff Neal A. McErlean sued defendant First Suburban Bank of Olympia Fields ¹ (hereinafter "Suburban") for breach of an oral and written contract to extend to McErlean a line of credit of up to $100,000, and for breach of a fiduciary relationship established between him and Suburban. McErlean appeals from the dismissal of his amended complaint and the denial of leave to file a second amended complaint. He also appeals from a subsequent order dismissing the first appeal and denying him an extension of time within which to file the record on appeal. We affirm.

Realleging certain allegations contained in count I, and pleading further, in count II McErlean asserted, inter alia, that: on July 15, 1976 he applied to Suburban for a loan of $20,000 to start a carpentry company and pay off various notes; submitted to Suburban a personal financial statement; was told that Suburban would extend a loan not to exceed $50,000 if he assigned to it his beneficial interest in a land trust; proposed to Suburban that he would only assign the beneficial interest for a line of credit of up to $100,000; Suburban agreed "to this contract"; McErlean and his wife then transferred to Suburban their beneficial interest in a certain land trust as collateral for the proposed line of credit; his wife signed a guarantee of loans not to exceed $100,000; one of Suburban's officers told him that his credit checked out perfectly, and the bank would extend to him the $100,000 line of credit; he borrowed $20,000 on August 12, 1976 "in accordance with the terms of the agreement"; and, on or about August 26, 1978, Suburban refused to extend additional credit to him and thereby "breached its (oral and written) contract." McErlean concluded count II with a prayer for specific performance of the contract and money damages.

In count III, McErlean alleged, in addition to pleading over the facts hereinbefore stated, that the terms of the contract entered into between the parties established a fiduciary relationship of confidence and trust, and that Suburban's refusal to extend to McErlean additional funds beyond the $20,000 constituted interference with his protected interest, fraud, and a violation of the aforementioned relationship of trust and confidence. Actual and exemplary damages and attorney's fees were therein requested.

Certain exhibits were attached to the amended complaint, among which were the following: an assignment of beneficial interests in a First National Bank of Blue Island trust agreement to Suburban, signed by McErlean and the vice president of Suburban, as collateral security for a certain note payable to the order of Suburban in the amount of $100,000 dated August 5, 1976; ² a personal guarantee of loans "to the extent of $100,000 with interest at the rate of __% per annum," signed by Isabelle McErlean, to enable Neal McErlean to obtain said extent of credit; a promissory note in the sum of $20,000 at 9% interest per annum, payable to Suburban, dated August 12, 1976, payable February 9, 1976, and signed by Neal McErlean; and a letter from Suburban to McErlean dated August 26, 1976, stating Suburban had learned that consummation of the loan would precipitate the Union Bank (another lender) to demand payoff on McErlean's present borrowings from Union Bank, and that Suburban would therefore not advance additional money until McErlean submitted current financial statements of all corporations in which he was involved and a copy of his 1975 federal income tax return.

Suburban moved on July 27, 1977 to strike and dismiss the amended complaint for failure to state a claim for either legal or equitable relief. On March 2, 1979, the trial court allowed Suburban's motion and dismissed the complaint. McErlean then moved to reconsider and vacate the order of dismissal and for leave to file a second amended complaint. No draft of a proposed second amended complaint was proffered to the court. The court denied this motion on April 16, 1979.

A notice of appeal was filed by McErlean on May 16, 1979. Pursuant to Supreme Court Rule 309(3) (Ill.Rev.Stat.1977, ch. 110A, par. 309(3)), Suburban moved to dismiss the appeal on November 21, 1979, because McErlean had not timely filed the record on appeal nor requested an extension of time in accordance with Supreme Court Rule 326 (Ill.Rev.Stat.1979, ch. 110A, par. 326). On that same date, McErlean moved for and was given leave to file a motion to extend time to file the record instanter. In his motion, McErlean stated that he had been unable to complete a praecipe or file a record on appeal because the documents in his file were not date stamped, he could not locate the court file, and he was unable to prepare a praecipe by reviewing Suburban's files. He further stated that he had advised Suburban of his problem, and that he promptly filed a praecipe on November 16, 1979 after the court record had been located on November 2, 1979. The court granted Suburban's motion to dismiss. Although Rule 309(3) previously authorized a trial court to dismiss an appeal for failure to file the record on appeal after expiration of the time periods delineated in Supreme Court Rule 326, an amendment, adopted July 30, 1979 and effective October 15, 1979, eliminated subsection (3). Therefore, on November 21, delay in filing the record was no longer a ground for dismissal by the circuit court. Ill.Ann.Stat., ch. 110A, par. 309, Supplement to Historical and Practice Notes, at 321 (Smith-Hurd Supp. 1980).

McErlean's motion to extend the time for filing of the record on appeal made in the trial court on November 21, 1979 should have been timely made in the reviewing court (see In re Estate of Meirink (1957), 11 Ill.2d 561, 144 N.E.2d 591, and First Finance Co. v. Ross (1965), 64 Ill.App.2d 474, 211 N.E.2d 588). His suggestion of extenuating circumstances in that he was unable to locate the court record is unpersuasive for several reasons. He had access to Suburban's files and could have consulted the circuit court docket and register, from which he could have prepared a praecipe. He had the right to move the reviewing court for an extension of time pursuant to Rule 326, which he neglected to do. He could have moved the circuit court for restoration of the missing record in the intervening time (see, e. g., Ill.Rev.Stat.1977, ch. 116, par. 1 et seq.). Restoration here would have been facilitated by the fact that there was no report of proceedings to reconstruct. McErlean's contention that he did not pursue any of these alternatives because Suburban was advised of the situation and never objected is insufficient. Notwithstanding the foregoing, however, under amended Rule 309, the trial court was without authority to dismiss the appeal. We elect to consider the case on its merits. See People v. Marbly (1980), 85 Ill.App.3d 935, 937, 41 Ill.Dec. 223, 407 N.E.2d 721; Ray v. Winter (1977), 67 Ill.2d 296, 10 Ill.Dec. 225, 367 N.E.2d 678.

The dismissal of the lawsuit was correct and must be affirmed. The amended complaint did not state a cause of action for specific performance or damages as it failed to allege a loan commitment sufficiently definite to constitute an enforceable agreement. It is clear that McErlean was to sign a personal note for any amounts actually borrowed before Suburban gave him any money. When he subsequently borrowed $20,000, such a note was executed. Although the assignment of the beneficial interest in the Blue Island Bank trust refers to it, no allegation appears in the amended complaint charging that McErlean ever signed such a note for a loan of $100,000, and no such exhibit is annexed to the complaint. No document purporting to be a contract to loan McErlean $100,000 has been otherwise pleaded or attached to the amended complaint as an exhibit. Allegations appear in the amended complaint to the effect that an officer of Suburban would " * * * extend to him (McErlean) a line of credit not to exceed * * * ($100,000)" (amended complaint, count II, par. 14), and that the parties " * * * had entered into a contract both oral and written * * *" (amended complaint, count II, par. 17), for that line of credit. The alleged "extended line of credit" appears to be a reflection of language in the personal guaranty signed by Isabelle McErlean in the form of a request that Suburban " * * * extend from time to time to said Debtor such credit as said Bank may deem proper * * * to the extent of ($100,000) * * *." No elements of a contract cognizable in law or equity as to the essential terms of such a contract appear in the guaranty or elsewhere, nor are any such elements pleaded. These terms would include, for example, the intended duration of the line of credit; the applicable rate of interest to be charged for any loan emanating from such an agreement, or the basis for how such interest would be ascertained; what duration or date or dates were contemplated for maturity of such loans; and what mode or rate of repayment was contemplated, i. e., whether the entire amount would be repayable or if repayment in installments would be acceptable. (See, e. g., Fleming v. Parkview Colonial Manor Investment Co. (1975), 31 Ill.App.3d 6, 8, 333 N.E.2d 587.) The absence of such material elements from the allegations of the amended complaint or any of the exhibits attached, as well as the absence...