Rosin v. First Bank of Oak Park

• Decision Date: 05 July 1984
• Docket Number: C,No. 11566,No. 83-1898,11566,83-1898
• Citation: 126 Ill.App.3d 230,81 Ill.Dec. 443,466 N.E.2d 1245
• Parties: , 81 Ill.Dec. 443 Joseph A. ROSIN, Plaintiff-Appellant, v. FIRST BANK OF OAK PARK, as Trustee under Trustontinental Illinois National Bank and Trust Company of Chicago, Sheldon F. Good & Co., Real Estate Auctions, Inc., and Anderson Properties, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1245

466 N.E.2d 1245

126 Ill.App.3d 230, 81 Ill.Dec. 443

Joseph A. ROSIN, Plaintiff-Appellant, v. FIRST BANK OF OAK PARK, as Trustee under Trust No. 11566 Continental Illinois National Bank and Trust Company of Chicago, Sheldon F. Good & Co., Real Estate Auctions, Inc. and Anderson Properties, Inc., Defendants-Appellees.

No. 83-1898.

Appellate Court of Illinois First District, Fourth Division.

July 5, 1984.

George B. Collins, Sandra Hertzberg, Collins & Amos, Chicago, for plaintiff-appellant.

Jack D. Jester, Kevin M. Flynn, Michael T. Trucco, Coffield, Ungaretti, Harris & Slavin, Chicago, for defendants-appellees First Bank Oak Park, Continental Illinois Nat. Bank and Trust Co. Chicago and Anderson Properties, Inc.

Reuben & Proctor, Chicago (Don H. Reuben, Shane H. Anderson, William J. Cambpell, Jr., Chicago, of counsel), for defendants-appellees Sheldon F. Good & Co. and Real Estate Auctions, Inc. LINN, Presiding Justice:

Plaintiff, Joseph A. Rosin, brought suit to specifically enforce a contract for the sale of land bought at auction. At trial, at the close of plaintiff's case, defendants' motions for judgment (Ill.Rev.Stat.1983, ch. 110, par. 2-1110) were granted on the ground that plaintiff had not presented enough evidence to make out a prima facie case on a contract.

On appeal, plaintiff claims that (1) he presented sufficient evidence to establish a prima facie case of the existence of a contract arising out of an auction of real estate, and (2) the trial court erred in not weighing the evidence before ruling on defendants' motions for judgment at the close of plaintiff's case.

We affirm the decision of the trial court.

FACTS

Continental Bank was the holder of a first mortgage lien on a 6.5 acre commercial site in Libertyville, Illinois. After the loan went into default and the mortgagor subsequently died, the mortgage indebtedness to Continental exceeded $700,000.

In April 1983, Continental and the representative of the estate of the mortgagor agreed to allow Real Estate Auctions, Inc., to offer the property for sale at public auction to satisfy the mortgage indebtedness. Accordingly, while legal title to the property remained with First Bank of Oak Park under a land trust, Continental's nominee took an assignment of the beneficial interest in the property in exchange for a release of the mortgagor's estate from liability on the mortgage loan. The agreement documenting the release and conveyance reflected a $595,000 "current appraised value" for the property and an outstanding indebtedness of $834,591.80 owed to Continental.

Real Estate Auctions proceeded to arrange for the sale and to prepare and distribute an advertising brochure that announced the sale, described the various parcels to be sold at auction and the financing available, and set forth the terms of the sale as follows:

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"2. The final high bid on * * * the 6.5 acres in Libertyville will be offered with reserve. These bids must be irrevocable for 24 hours and subject to seller's acceptance. * * * The seller on Libertyville reserves the right to reject the high bid by the payment of $1,500 to the high bidder who signs contract.

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5. Announcements made by Auctioneer at time of sale will take precedence over printed matter. Conduct of auction and increments of bidding at the discretion of the Auctioneer." [Emphasis in original.]

On April 23, 1983, the night of the auction, not only were copies of the advertising brochure available to bidders, but a "green sheet" listing all the parcels was provided for the use of bidders in keeping track of the bidding. The front of the "green sheet" described the auction procedure, noted that one-half of all the lots offered were to be sold without reserve, and concluded by stating that the remaining lots were offered for sale subject to the sellers' acceptance or rejection within 24 hours after the close of the auction.

Between 500 and 700 people attended the auction, among whom were Joseph A. Rosin, owner of the parcel of land adjacent to the Libertyville property up for sale, and his friend, Irving Drobny, who was present for the specific purpose of bidding on Rosin's behalf. The Libertyville property was called for auction by Bruce Sayre, the auctioneer, at approximately 10:00 p.m. Although the auction was recorded on tape, the beginning of Sayre's call of the Libertyville property occurred while the tape was being changed. However, various plaintiff's witnesses testified that Sayre, after describing the property, the available financing, and the general terms of sale, went on to announce the "Dutch" auction method to be used for the Libertyville property.

According to the witnesses, Sayre also said that the owner had (1) a right to reject the high bid within 24 hours or (2) the right to "buy back" (a) the property or (b) the contract within the same time by the tender of a check for $1,500. The recording resumed with the "Dutch" auction itself. Sayre started the bidding at $800,000, and then, as no bids were forthcoming, lowered the requested amount by $50,000 reductions until, when he called for $500,000, Drobny bid $300,000. When no other bids were made, Sayre knocked down the parcel to Drobny, calling out, "Sold, subject to seller's acceptance." Drobny was then escorted by an employee of the auctioneer to a cashier, where he signed a sales contract as agent "on behalf of an undisclosed principal" and deposited the required $15,000 earnest money with the auction company.

Although representatives of Continental Bank present at the auction maintained that an officer of the bank told Sayre that evening that the bid was rejected, Sayre testified that they did not reject the bid until the next day, April 27. By 5:00 p.m. on the afternoon of the 27th, Continental gave Sayre the $1,500 check representing the rejection fee, and at 7:47 EST (6:47 CST), Sayre sent a Mailgram to Drobny advising him that the $300,000 bid for the Libertyville property had been rejected.

Drobny informed Sayre by letter on April 29 that because the method of rejection did not comply with the announced requirements, the conditional acceptance of his bid was not binding and effective, and the sale must be consummated immediately. Drobny enclosed the next required payment of $15,000, but when he and Rosin went to Continental Bank to apply for a mortgage later that day, they were turned away. Within a week Rosin's two checks were returned to him along with the $1,500 rejection fee. On May 4, Rosin filed an action for specific performance.

At trial, at the conclusion of the plaintiff's evidence narrated above, all defendants moved for judgment pursuant to section 2-1110 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-1110.) The trial judge, stating that no contract capable of specific performance had been formed because the offer to purchase had never been accepted, granted defendants' motions and ruled that Rosin had failed to establish a prima facie case of the existence of a contract. From the entry of the judgment order granting defendants' motions, Rosin now appeals.

OPINION

Section 2-1110 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-1110) provides as follows:

"In all cases tried without a jury, defendant may, at the close of plaintiff's case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived."

In an effort to resolve conflicting appellate court opinions concerning the proper procedure to be followed by the court in ruling on a section 2-1110 motion (former section 64(3)), the supreme court, in Kokinis v. Kotrich (1980), 81 Ill.2d 151, 40 Ill.Dec. 812, 407 N.E.2d 43, stated that the procedure necessitates two steps: first, a determination whether or not the plaintiff has made out a prima facie case by presenting some evidence on every element essential to his cause of action; and second, if a prima facie case has been made out, a weighing of the plaintiff's evidence and a subsequent review to see if any evidence necessary to the prima facie case has been negated. Judgment in defendant's favor is to be entered if there is insufficient evidence to establish a prima facie case following either step. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Getzoff v. Paris (1979), 77 Ill.App.3d 401, 33 Ill.Dec. 35, 396 N.E.2d 260.

In the instant case, the trial court determined that Rosin had not presented some evidence on every element essential to a prima facie case in contract. Specifically, the court found no evidence of an acceptance of Rosin's offer by the seller, and there can be no contract without an offer and an acceptance. (Milanko v. Jensen (1949), 404 Ill. 261, 88 N.E.2d 857.) We agree with the decision of the trial court.

Rosin's claim to specific performance appears to rest solely on his belief that unless he received a written rejection, payment of the $1,500 rejection fee, and the return of his earnest money deposit, all within 24 hours of the close of the auction, the fall of the hammer following his bid constituted a conditional acceptance that matured into an irrevocable acceptance 24 hours later. However, neither basic contract law nor the application of the rules of auction sales to the facts in the present case support his position.

"The mutual assent necessary to the formation of a bilateral contract * * * requires the communicated expression of a promise to purchase and an acceptance in the...