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Lanno v. Naser

OPINION FILED NOVEMBER 29, 1979.

JOHN L. LANNO ET AL., PLAINTIFFS-APPELLANTS,

v.

NOREEN NASER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, John L. Lanno and Alice Ann Lanno, brought this action in the circuit court of Cook County against defendants, Noreen Naser and Fred B. Raskin. Plaintiffs sought (1) to enjoin the sale of the beneficial interest in property held in trust by LaSalle National Bank, as trustee; (2) to obtain a declaration that certain documents executed by plaintiffs and defendants constituted a mortgage; and (3) an accounting. On defendants' motion pursuant to section 48 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48), the trial court dismissed plaintiffs' amended complaint with prejudice.

The issue on appeal is whether the trial court erred in dismissing plaintiffs' complaint based on the four grounds raised in defendants' motion to dismiss.

We reverse the trial court and remand the cause for further proceedings.

In 1965, plaintiffs acquired title in joint tenancy to certain improved real estate in Niles, Illinois, which they occupied as a residence. Defendant Naser obtained a judgment against plaintiffs on August 12, 1969, in the amount of $3,757.50. This judgment was not paid, and in 1972, Naser ordered a sheriff's sale of plaintiffs' Niles home.

Before the sheriff's sale took place, plaintiffs were allegedly persuaded to enter into a written agreement with Naser to ensure payment of the debt and forestall the imminent sheriff's sale. Under the terms of this agreement Naser agreed to cancel the sheriff's sale and the parties established a schedule for the payment of the debt. As security for the principal amount of the debt plaintiffs were to convey by deed in trust to the LaSalle National Bank their interest in the Niles property; to enter into a land trust agreement with the bank; and to assign all of their beneficial interest in the property to Naser. It was agreed that if plaintiffs defaulted on the payments, Naser would acquire "exclusive right, title and interest to the real property." In furtherance of the agreement, plaintiffs executed an assignment of the beneficial interest in the property, not to Naser, but to defendant Raskin, Naser's attorney. The trust agreement, deed in trust, and assignment to Raskin "for collateral purposes only" were executed simultaneously.

Plaintiffs fell behind in their payments to Naser and, in 1978, Raskin published notice of a public auction of the beneficial interest in the real estate pursuant to provisions of the Illinois Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 9-101 et seq.). At that time, plaintiffs filed their original complaint for injunctive and declaratory relief seeking to restrain the auction sale and to have the documents executed by the parties declared a mortgage, entitling plaintiffs to the right of redemption. Plaintiffs were denied temporary injunctive relief by the trial court, and their further efforts to obtain a stay from this court on appeal from the denial of a temporary restraining order were unsuccessful. (Docket No. 78-898.) The auction sale took place on May 2, 1978, and Naser made the successful bid of $6,000.

Plaintiffs' amended and supplemental complaint, filed after the auction, sought to restrain defendants from consummating the sale of the beneficial interest and to restrain LaSalle National Bank from recognizing Naser as the owner of the property. Plaintiffs asked for a declaration that the instruments executed by plaintiffs and defendants constituted a mortgage on the real estate as security for payment of the judgment held by Naser against plaintiffs and sought a ruling that the May 2, 1978, auction sale was invalid. Finally, plaintiffs requested an accounting.

It appears that the trial court reserved its ruling on defendants' motion to dismiss the original complaint until the amended complaint, defendants' additional motion to strike the amended complaint, and plaintiffs' response to the motion to dismiss were filed. It also appears that the trial court allowed defendants' original motion to dismiss, as supplemented by their motion to strike, to stand as defendants' pleading in opposition to the amended complaint.

Defendants' motion to dismiss raised four objections to plaintiffs' complaint: (1) that the complaint was not in plain and concise language in violation of section 33(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 33(1)); (2) that plaintiffs' action was barred by laches; (3) that plaintiffs were estopped because Naser had cancelled the sheriff's sale in 1972 as part of her agreement with plaintiffs; and, (4) that plaintiffs' action was an attack on the original 1969 judgment in contravention of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). Defendants' subsequent responsive pleading raised essentially the same objections to the amended complaint. An affidavit in support of defendants' motion to dismiss alleged that plaintiffs were in default on payments under the 1972 agreement and had made no payments to Naser since May 31, 1973. Defendants also stated that they relied to their detriment in canceling the sheriff's sale in 1972 based on plaintiffs' promise to pay the 1969 judgment debt according to the 1972 agreement. In none of defendants' pleadings was there an allegation challenging the sufficiency of the complaint or claiming that the complaint failed to state a cause of action.

Based on the pleadings filed, the trial court sustained defendants' motion to dismiss on all four grounds. Plaintiffs chose to stand on their complaint and a final order dismissing the cause was entered on December 13, 1978.

OPINION

• 1 An order that sustains a motion to dismiss without specifying the ground on which it is based places before this court every issue raised by the motion. (Bradley v. Gallagher (1973), 14 Ill. App.3d 652, 303 N.E.2d 251.) If any ground relied on by the trial court in granting the motion was proper, the reviewing court is required to affirm. (Matchett v. Rose (1976), 36 Ill. App.3d 638, 344 N.E.2d 770.) Defendants' motion to dismiss the amended complaint can be analyzed as raising two types of questions: (1) whether the complaint violated section 33(1) of the Civil Practice Act which requires a plain and concise statement of the cause of action (Ill. Rev. Stat. 1977, ch. 110, par. 33(1)); and (2) ...


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