Shugan v. Colonial View Manor

• Decision Date: 03 June 1982
• Docket Number: No. 81-1267,81-1267
• Citation: 63 Ill.Dec. 82,437 N.E.2d 731,107 Ill.App.3d 458
• Parties: , 63 Ill.Dec. 82 Murray M. SHUGAN, individually, and Lake Geneva Condominiums Associates, Ltd., an Illinois Limited Partnership, Plaintiff-Appellant, v. COLONIAL VIEW MANOR, an Illinois Limited Partnership, d/b/a Condeversion Realty Sales Company, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 731

437 N.E.2d 731

107 Ill.App.3d 458, 63 Ill.Dec. 82

Murray M. SHUGAN, individually, and Lake Geneva Condominiums Associates, Ltd., an Illinois Limited Partnership Plaintiff-Appellant, v. COLONIAL VIEW MANOR, an Illinois Limited Partnership, d/b/a Condeversion Realty Sales Company, Defendant-Appellee.

No. 81-1267.

Appellate Court of Illinois First District, Fourth Division.

June 3, 1982.

George M. Sachs and Associates, Vernon Hills (Brian C. Donegan, Chicago, of counsel), for plaintiff-appellant.

Victor J. Piekarski and Glen E. Amundsen, Querrey, Harrow, Gulanick & Kennedy, Ltd., Chicago, for defendant-appellee.

ROMITI, Justice:

Plaintiffs filed a complaint for specific performance of an alleged agreement to sell real estate or in the alternative for damages. Defendant filed a section 45 (Ill.Rev.Stat.1979, ch. 110, par. 45), motion to dismiss on the grounds that the complaint failed to state a cause of action in that the pleadings failed to establish or evidence a valid and enforceable contract between the parties; that no sufficient writing existed or could have existed since the parties never entered into a contractual agreement; and compliance with all conditions precedent had not been pleaded or evidenced by the plaintiffs. The trial court indicated that there was a sufficient written memorandum to justify a full hearing on whether or not there has been compliance with the Statute of Frauds. (Ill.Rev.Stat.1979, ch. 59, par. 2.) It held, however, that the contract could not be specifically enforced because there were too many elements missing and dismissed the complaint. We reverse and remand.

Since the case was dismissed on a section 45 motion, only the pleadings can be considered. Also because the case arises on a section 45 motion the facts alleged in the complaint must be accepted as true. Duhl v. Nash Realty Inc. (1981), 102 Ill.App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267.

Plaintiffs filed two complaints, both verified. In the first complaint they alleged that defendant in June 1980 had been engaged in the business of converting and selling condominiums. Shugan, one of the plaintiffs, entered into preliminary negotiations with defendant to purchase all twelve units in Building 210, Country Club Drive of the Colonial View Manor Condominiums. On June 23, 1980 defendant, through its general partner, sent Shugan a letter offering to sell the units. The letter, attached to the complaint, reads in material part:

"Following up our meeting on Saturday, we can offer you three proposals:

1. Installment Sale--12 units, 10% down, 11% interest only (plus taxes and maintenance fee) with a balloon payment in 3 years. This offer is subject to acceptance by Joseph Zowada as to 10 units.

                3 1BR at $32,900 =       $  98,700
                3 2BRC at 35,900 =         107,700
                6 2BRC at 38,900 =         233,400
                                         ---------
                 TOTAL at current
                   pricing               $ 439,800
                   LESS $1,000 discount
                   per unit               - 12,000
                                         ---------
                   Net price             $ 427,800
                                         ---------
                   10% down                 42,780
                   Contract balance        385,020
                

* * *

In addition to the above, we will be able to work out something for you along the lines we discussed Saturday for your own personal unit."

The letter was signed by Michael Bufkin, defendant's partner's vice-president and general counsel. On June 27, 1980 plaintiff wrote defendant stating:

"I am in receipt of your letter dated June 23, 1980.

Please be advised that I hereby accept your offer, '1. Installment Sale'. I would also appreciate clarification in writing of your reference in the above-mentioned letter to '... something for you along the lines we discussed Saturday for your own personal unit.' Please contact my attorney, Sam Borek, to discuss those items which will be necessary to prepare the documentation to consummate this transaction."

On July 26, 1980 Shugan deposited a $6,000 downpayment. He later deposited another $1,000. He also executed a "Purchase Offer" which, he alleged, "memoralized and integrated" into one document the terms of the agreement. In fact this purchase offer failed to conform to the previous writing in certain respects. Only Shugan signed this offer. Plaintiffs further alleged that during July and August defendant indicated it could only convey eleven of the units and Shugan orally agreed to reduce the number from twelve to eleven; the price being adjusted accordingly. Plaintiffs sought specific performance of the contract or damages.

The complaint was dismissed on defendant's motion. Plaintiffs then filed a second verified complaint. In that complaint plaintiffs alleged that in June, 1980 defendant was in the business of converting and selling condominiums. A declaration of Condominium Ownership setting forth the legal description of the property was attached to the complaint. On June 23, 1980 the seller offered to sell the 12 units; the letter was again attached to the complaint as was Shugan's reply of June 27, 1980. In July 1980, Michael Bufkin sent Shugan a memorandum, in Bufkin's handwriting, showing each unit in Building 210 to be transferred pursuant to the contract together with a breakdown of the contract terms on a unit by unit basis. The memorandum also was attached to the complaint. Shugan made downpayments of $6,000 and $1,000. Shugan also assigned his right to eleven of the twelve units to the co-plaintiff, Lake Geneva Condominium Associates. Plaintiffs sought specific performance of the contract to sell all twelve units in Building 210 or, in the alternative, for damages. Defendant did not file an answer but instead filed a section 45 motion to dismiss. In the motion defendant alleged that the complaint failed to state a cause of action. Specifically defendant alleged:

1. the pleadings failed to establish or evidence a valid and enforceable contract between the parties;

2. no writing sufficient under the Statute of Frauds to evidence an alleged contract existed nor could it exist since the parties never entered into a contract 3. compliance with all conditions precedent to an agreement were not pleaded or evidenced by the plaintiffs.

At the hearing on the motion to dismiss, defendant for the first time specifically raised plaintiffs' failure to plead that Joseph Zowada, as required by the letter of June 23, 1980, had accepted the contract, the installment sale of 10 of the units being subject to his acceptance. Plaintiffs offered to amend the complaint to show that Zowada had tendered his acceptance. The trial court did not rule on that point. It concluded that as to the Statute of Frauds there was a sufficient written memorandum to justify a full hearing on whether or not there had been compliance with the Statute of Frauds, but while plaintiffs could file another action for damages, specific performance could not be ordered because there were too many vital contractual elements missing. The trial court thereupon dismissed the complaint with prejudice. Even if the court's reasoning were correct, its order dismissing the complaint would have to be reversed since, as we recently noted in Conway v. Conners (1981), 101 Ill.App.3d 121, 56 Ill.Dec. 610, 427 N.E.2d 1015, if a claim in equity is not stated but one in law is, the complaint cannot be dismissed although the cause may be transferred to the law division. However in this case where the trial court correctly found that the memoranda might be sufficient to satisfy the Statute of Frauds, it erred in holding that the complaint did not state a cause of action for specific performance.

I.

Defendant's objection that plaintiffs had not pled conditions precedent lacked the specificity required by section 45 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 45(1)), to raise the plaintiffs' failure to allege that Zowada had consented, either orally or in writing, to the installment sale or that his consent was for some reason no longer required. This issue therefore was, for the first time, raised at the hearing and plaintiffs immediately offered to amend the complaint. Assuming that the complaint otherwise stated a cause of action, the amendment should have been allowed. Lee v. Conroy (1973), 13 Ill.App.3d 694, 300 N.E.2d 505; Coatie v. Kidd (1958), 17 Ill.App.2d 289, 149 N.E.2d 646 (Abst.).

II.

Defendant's allegation in its motion that a valid and enforceable contract between the parties was not established or evidenced is without merit. All a plaintiff is required to do in a complaint is to set forth such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. (Ill.Rev.Stat.1979, ch. 110, par. 42(2).) He is not required in his complaint to evidence or prove anything. (Duhl v. Nash Realty Inc. (Dec. 3, 1981), Gen.No. 80-2787, 102 Ill.App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267.) Indeed, except to the extent a plaintiff is required to or wishes to attach a written document relied upon to his complaint (Ill.Rev.Stat.1979, ch. 110, par. 36), the plaintiff is expected to plead ultimate not evidentiary facts. Conway v. Conners (Oct. 15, 1981), Gen.No. 80-2503, 101 Ill.App.3d 121, 56 Ill.Dec. 610, 427 N.E.2d 1015.

Plaintiffs have sued for breach of contract and sought specific performance of that contract. Their amended complaint sets forth the offer and acceptance and the essential terms of the contract. This, except for plaintiffs' failure to allege Zowada's approval, is sufficient to state a cause of action. Kalkounos v. Four K's, Inc. (1981), 94 Ill.App.3d 1011, 50 Ill.Dec. 395, 419 N.E.2d 503; Denkewalter v. Wolberg (1980), 82 Ill.App.3d 569, 37 Ill.Dec. 883, 402 N.E.2d 885; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill.App.3d 296, 28 Ill.Dec. 261, 390 N.E.2d 428.

Defendant contends that the exhibits show that the letters were part of continuing negotiation and did not create a contract. This may...