Suburban 1, Inc. v. Ghs Mortgage, LLC

• Decision Date: 20 July 2005
• Docket Number: No. 2-04-0937.,2-04-0937.
• Citation: 833 N.E.2d 18
• Parties: SUBURBAN 1, INC., d/b/a Re/Max Suburban, Plaintiff-Appellant, v. GHS MORTGAGE, LLC, d/b/a Windsor Mortgage; Karen Sullivan; and Douglas Sullivan, Defendants-Appellees.
• Court: Illinois Supreme Court

833 N.E.2d 18

SUBURBAN 1, INC., d/b/a Re/Max Suburban, Plaintiff-Appellant, v. GHS MORTGAGE, LLC, d/b/a Windsor Mortgage; Karen Sullivan; and Douglas Sullivan, Defendants-Appellees.

No. 2-04-0937.

Appellate Court of Illinois, Second District.

July 20, 2005.

COPYRIGHT MATERIAL OMITTED

Stanley A. Walton III, Willowbrook, for Suburban 1, Inc. d/b/a Remax Suburban.

Richard C. Perna, Joonho Yu, Fuchs & Roselli, Ltd., Wheaton, for GHS Mortgage, LLC.

Mark T. Schmidt, Janella L. Barbrow, Lora D. Kadlec, Schmidt & Barbow, P.C., Wheaton, for Douglas Sullivan, Karen Sullivan.

Justice McLAREN delivered the opinion of the court:

Plaintiff, Suburban 1, Inc., appeals the dismissal with prejudice of its third amended complaint alleging fraud and conspiracy against defendants GHS Mortgage, LLC (doing business as Windsor Mortgage), Karen Sullivan, and Douglas Sullivan, in this case involving a failed real estate deal. We affirm.

The following facts are taken from the record. On May 1, 2003, David and Cathy Griffith, realtors with Suburban 1, Inc., a real estate broker, were retained by George and Connie Jiang to sell their home in Wheaton, Illinois. The contract between the Griffiths and the Jiangs provided that, upon the sale of the Jiangs' home, Suburban 1 would receive a percentage of the sale price as a commission. Subsequently, the Sullivans made an offer to purchase the Jiangs' home. Because the Sullivans' offer was contingent upon the sale of the Sullivans' home, the Jiangs refused the offer. Later, two offers were made simultaneously for the Jiangs' house; one of the offers was from the Sullivans. The Sullivans' second offer exceeded the Jiangs' asking price by $5,000 and did not contain a contingency that the Sullivans first sell their home. However, the offer did contain a contingency that the Sullivans obtain 90% financing by June 16, 2003, for a conventional 30-year fixed-rate mortgage at a rate not to exceed 6%. The Jiangs accepted the Sullivans' offer on May 9, 2003.

Two days before the Jiangs accepted the Sullivans' offer, Kevin Morse, branch manager of Windsor Mortgage, signed a letter stating that the Sullivans qualified and were approved for financing of 90% of the sale price of the Jiangs' home and that the sale of the Sullivans' current home was not required for their mortgage approval. The letter also stated that final approval would be available within one or two weeks after the Sullivans' formal mortgage application and a satisfactory appraisal of the Jiangs' home.

After the Jiangs entered into the contract to sell their home to the Sullivans, the Jiangs entered into a contract to purchase a home in Naperville. The Griffiths were their agents for this transaction as well. The contract for the Jiangs' purchase of the Naperville home was contingent on the sale of their home in Wheaton to the Sullivans and the Sullivans' obtaining a final mortgage commitment.

The Sullivans had not received the necessary financing by June 16 as required by the contract. Therefore, the Sullivans asked for and received a seven-day extension of time to obtain a mortgage commitment. On June 23, 2003, the Sullivans requested another seven-day extension, but the Jiangs denied the request this time and terminated the real estate sales contract on June 25, 2003.

When the sale of the Jiangs' home to the Sullivans fell through, the Jiangs' purchase of the Naperville home fell through as well because it was contingent on the Sullivan sale. Subsequently, the Jiangs decided not to move, and they took their Wheaton home off the market. Consequently, Suburban 1 received no commission from these failed deals.

On August 20, 2003, Suburban 1 filed a three-count complaint against Windsor Mortgage and Karen and Douglas Sullivan, alleging fraud and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 2002)). This and two amended complaints were variously nonsuited and dismissed.

On July 12, 2004, Suburban 1 filed its third-amended complaint, alleging common-law fraud and fraudulent civil conspiracy against all three defendants, and alleging a violation of the Act against Windsor Mortgage. The trial court dismissed the complaint pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619(a)(9) (West 2002). This appeal followed.

On appeal, Suburban 1 first argues that the trial court erred by dismissing count I of its complaint, alleging common-law fraud. We disagree.

A motion to dismiss a complaint pursuant to section 2-615 attacks the legal sufficiency of the complaint. Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733 (1999). In reviewing the sufficiency of a complaint, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996). "Pleadings are to be liberally construed, and a pleader is not required to set out his evidence but only the ultimate facts to be proved." Gilmore v. Stanmar, Inc., 261 Ill.App.3d 651, 654, 199 Ill.Dec. 189, 633 N.E.2d 985 (1994). The court must determine whether the allegations of the complaint, when considered in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc., 186 Ill.2d 419, 424, 238 Ill.Dec. 608, 712 N.E.2d 330 (1999). A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved that will entitle the plaintiff to relief. Van Horne v. Muller, 185 Ill.2d 299, 305, 235 Ill.Dec. 715, 705 N.E.2d 898 (1998). The sufficiency of a complaint is an issue of law and is reviewed de novo. Hynes v. Snyder, 355 Ill.App.3d 394, 397, 291 Ill.Dec. 221, 823 N.E.2d 231 (2005).

The elements of common-law fraud...