Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. ROBERT A. NOLAN, Judge, presiding.
Reversed and remanded.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. This is an appeal from a summary judgment entered in favor of the plaintiffs and against the defendants in the sum of $1,000, plus costs of the suit. The appeal raises the question of the propriety of a summary judgment under the facts of the case.
The plaintiffs failed to file an appellees' brief which would justify a reversal of the trial court without consideration of the cause on its merits. Beinarauskas v. Beinarauskas, 90 Ill. App.2d 381, 234 N.E.2d 16 (1967); American Nat. Bank & Trust Co. v. Bergstedt, 90 Ill. App.2d 381, 234 N.E.2d 56 (1967); Matyskiel v. Bernat, 85 Ill. App.2d 175, 178, 228 N.E.2d 746 (1967). However, under the circumstances, we deem it advisable to consider the merits of the case.
The undisputed facts, as set forth in the complaint are: The plaintiffs, as purchasers, entered into a contract to purchase certain real estate in the City of Elmhurst, from the defendants, Guy C. Carrol and Jane V. Carrol. The purchase price was $34,000, and pursuant to the contract, the plaintiffs deposited $1,000 as earnest money with the defendant, Douglas C. Hancock, as Escrowee, which sum was to be applied against the purchase price, if and when the sale was consummated. The contract described the property as "A single family residence commonly known as 305 Oaklawn Avenue, Elmhurst, Illinois, legally described as: . . .," and it recited that the premises were subject only to: "Existing leases expiring 2nd floor month-to-month $130.00 monthly rent . . . ."
The plaintiffs alleged, and the defendants denied, that there were two apartments in the real estate in question, in violation of the Zoning Ordinances of the City of Elmhurst; that Hancock had paid over $1,000 to the Carrols; that any demand was made on the Carrols to turn over such sum to the plaintiffs; and that they had wilfully refused to return it. The parties agreed that the real estate was located in District A Single-Family Zone, as shown by the City Zone Map and Ordinances; and that the plaintiffs had made a demand on the defendant Hancock for the $1,000.
The defendants set up as an affirmative defense that the contract required the seller to furnish a title report or insurance to the purchasers; that in event of any defects in the title, the sellers should have 60 days from the date of the title report or insurance, to cure such defects; and, if such defects were not cured within that time, the purchasers could terminate the contract. The defendants admitted that the plaintiffs had served notice of termination of the contract, and asserted that the plaintiffs had no right to do so without giving the defendants 60 days within which to cure any alleged title defects. They further alleged that the plaintiffs' failure in this respect constituted a default under the terms of the contract, which warranted the retention of the earnest money by the defendants, as liquidated damages.
The plaintiffs, in reply, alleged that the violation of the Zoning Ordinance did not constitute a defect in title, but rather, was a gross misrepresentation; that the termination of the contract by the plaintiffs was because of the zoning violation; that the defendants did not furnish any preliminary title report and thereby were guilty of an additional breach of duty under the contract.
In addition, as a reply, the plaintiffs alleged that the contract was void on its face in that it was in violation of sections 1 and 2 of chapter 29, Ill Rev Stats of 1967, since neither a certificate of compliance was attached thereto, nor did it contain an express written warranty "that no notice from any City, Village, or other governmental authority of a Dwelling Code Violation which existed in the dwelling structure before the contract was executed had been issued and received by the owner or his agent"; that such requirement could not be waived and, therefore, the contract was void.
In addition to the foregoing pleadings, the Carrols demanded and were furnished a bill of particulars by the plaintiffs. A bill of particulars is deemed to be a part of a complaint which it particularizes. Marion v. In re Estate of Wegrezyn, 93 Ill. App.2d 205, 208, 236 N.E.2d 328 (1968); Louis v. Barenfanger, 81 Ill. App.2d 104, 108, 226 N.E.2d 85 (1967).
The bill of particulars stated that the zoning restrictions, referred to in paragraph 4 of the complaint, which prohibited two apartments in the premises, are contained in chapter II, article 2, section 1-1.1 of the Amended Zoning Ordinance of the City of Elmhurst; that the exact details, in which the improvements on the premises in question are in violation of the Zoning Ordinances of the City, are: the upstairs is partitioned into a four-room apartment which is rented for $130 per month; that the parts of the premises which constituted a second apartment are a side entrance into a vestibule with steps leading to a landing which is level with the first floor where a doorway has been installed, and from which steps to the second-floor apartment begin, thus, giving it privacy; that the second floor apartment has all facilities, except a kitchen; and that the tenants use a hot plate for cooking, which use violates the City Code.
With the pleadings in this posture, the plaintiffs filed a motion for a summary judgment, which was supported by an affidavit of the plaintiff, William T. Giova. The affidavit alleged the filing of the complaint; the payment of earnest money pursuant to the contract to purchase real estate; the discovery of zoning violations and the statutory violation; the demand for a return of the earnest money; the failure of the defendants to return it; and that the contract was void in that it was in violation of sections 1 and 2 of chapter 29, Ill Rev Stats of 1967. A copy of the contract was attached to the affidavit.
The defendants filed an answer to the affidavit wherein they denied that $1,000 was wrongfully retained by them; denied that the use of the real estate constituted a zoning violation; denied that the contract was void by virtue of the aforesaid statute, and further asserted that the statute applied only to multiple dwellings; and denied that $1,000 was due and owing to the plaintiffs.
The court entered summary judgment for the plaintiffs and against all defendants, in the sum of $1,000, plus costs of the suit. The defendants' motion to vacate the judgment was denied, and upon appeal we face the threshold question of the propriety of the summary judgment.
[3-7] In Lumbermens Mut. Cas. Co. v. Poths, 104 Ill. App.2d 80, 243 N.E.2d 40 (1968), we considered the nature, purpose and the propriety of the summary judgment procedure, and at pages 87 and 88 stated:
"The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Ruby v. Wayman, 99 Ill. App.2d 146, 240 N.E.2d 699, 700 (1968); ...