APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 3, 1980.
Plaintiffs, Osvaldo and Carmelina Venturini, brought this action seeking legal and equitable relief from multiple defendants based on their alleged participation in a conspiracy to interfere with and defraud plaintiffs of their rights under a contract to purchase certain real estate. Pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)), plaintiffs appeal from an order dismissing their amended complaint as to one defendant, Victor J. Cacciatore, who has failed to file a brief as appellee.
The allegations of the complaint and the procedural details of this case, insofar as they are necessary to a resolution of this appeal, are as follows. Plaintiffs entered into a contract to purchase real estate owned by defendants Antonio and Florence Affatato. At the time of the contract, June 1976, the subject property had been leased to Texaco, Inc., under a lease which granted Texaco an option to purchase the property for $60,000. The option had to be exercised before November 30, 1976, when the lease would expire. In April of that year, the Affatatos' attorney, defendant Rafael Del Campo, inquired of Texaco whether it planned to exercise its option. In a letter to Del Campo dated May 11, 1976, and attached to plaintiffs' complaint as an exhibit, Texaco wrote: "As for the probable sale of the property, you may be assured that we will waive our rights to purchase upon your notification of a bona fide offer." In order to induce plaintiffs to enter into a contract to buy the property, Del Campo represented to plaintiffs' counsel that the property was subject to the Texaco lease, which would terminate upon closing or no later than November 30, 1976, and that Texaco would not exercise its option but instead would permit the sale of the property free and clear of the option. In reliance, plaintiffs contracted to buy the property for $125,000.
The contract, which was attached to plaintiffs' complaint, does not expressly provide that it is conditioned upon Texaco's waiver of its rights under the lease. It merely provides that the Affatatos will deliver a recordable warranty deed subject to existing leases (paragraph 2); that the sellers would deliver possession at closing, subject to the existing lease (paragraph 6); and that the sellers would provide, prior to closing, evidence of merchantable title (paragraph 1 of the contract's conditions and stipulations). Finally, paragraph 11 of the contract's conditions, a typed section, provides: "SELLERS state that [the] present lessee is in compliance with and not in violation of all the terms and covenants of the lease; that the monthly rentals are $425.00 per Mo.; that the lessee's rights, title and interest expire 11/30/76. In the event that any of these statements relative to the present lease are not true, the PURCHASERS may rescind this contract, and the earnest money shall be refunded."
With full knowledge of plaintiffs' contract rights and Texaco's waiver representations, defendant-appellee Cacciatore, acting as attorney for defendants Jerry and Celeste Eubanks, began contacting Texaco agents in an attempt to obtain an assignment of the Texaco lease and option. Cacciatore also endeavored to persuade Del Campo to sell the Affatato property to Cacciatore's clients, who offered to pay $250,000.
The closing of the sale was originally set for October 28, 1976. On October 27, Del Campo informed plaintiffs' counsel that the closing should be postponed because Texaco was reassessing its rights to assign the lease or exercise its option, and the Affatatos were at that time unable to produce a formal written release by Texaco. The closing was postponed by agreement, until the matter was clarified. Plaintiffs further alleged that Del Campo, Cacciatore, and their clients then entered into a conspiracy to interfere with and defraud plaintiffs of their contractual rights in the property, by agreeing that the property would be sold to Cacciatore's clients. Pursuant to this agreement, in early November 1976, Del Campo knowingly misrepresented to plaintiffs' counsel that Texaco had assigned its lease and option to an unknown assignee, whose purpose was to exercise the option. Actually, as Del Campo knew, no such assignment had occurred or ever did. Del Campo then demanded that plaintiffs close the transaction on November 15, regardless of Texaco's assignment and the Affatatos' inability to obtain a release from Texaco. All this was done to induce plaintiffs to refuse to proceed with the closing, thereby providing Del Campo and the Affatatos with an ostensible excuse for selling the property to Cacciatore and/or his clients. Plaintiffs also alleged that from at least late October 1976, Del Campo and Cacciatore were acting with each other's knowledge and approval.
Plaintiffs sought clarification from Texaco of its position, in a letter dated November 11, 1976, attached to the complaint. In the meantime, Del Campo declared the contract null and void when plaintiffs refused to accede to his fraudulent demands that they close the transaction on November 15 notwithstanding the question of Texaco's assignment. The property was then conveyed, in contravention of plaintiffs' rights, into a land trust held by defendant Central National Bank for the sole benefit of defendant-appellee Cacciatore.
Plaintiffs alleged they were and are willing and able to perform the contract in accordance with its terms, and that their remedy at law was inadequate. In count I of their amended complaint plaintiffs sought injunctive relief from all defendants, including an order compelling the appropriate defendants to convey title to the property to plaintiffs. In count II, plaintiffs sought damages for breach of contract from the Affatatos. In counts III, IV, and V, plaintiffs requested damages from all defendants except the bank for, respectively, conspiracy to defraud and to interfere with plaintiffs' contract rights; interference with prospective advantage; and fraudulent misrepresentation. A jury demand was filed on all but count I.
All defendants but the trustee bank filed a group motion to dismiss the complaint, essentially on the ground that plaintiffs contracted to purchase the property subject to the Texaco lease and their decision not to go through with the closing amounted to an election to rescind the contract. The motion also contended plaintiffs could have investigated the truth of any representation as to the lease assignment. Although the motion prayed that the complaint be dismissed for failing to state a cause of action, the motion was supported by an affidavit of Del Campo "as to affirmative matters not appearing on the face of the complaint." The affidavit stated that plaintiffs' counsel drafted the real estate sales contract. It also set out factual matters with regard to Del Campo's appearance, and plaintiffs' failure to appear, on the date Del Campo set for closing. Included also were letters between Del Campo and plaintiffs' counsel on this subject. Del Campo in this affidavit did not deny making a misrepresentation as to the lease assignment.
Plaintiffs filed a lengthy response, containing argument, to defendants' group motion to dismiss. Noting the motion was supported by an affidavit as to matters not appearing on the face of the complaint, plaintiffs argued the motion must have been made pursuant to section 48(1)(i) of the Civil Practice Act, rather than section 45. (Ill. Rev. Stat. 1977, ch. 110, pars. 48(1)(i), 45.) Therefore, pursuant to section 48(3), plaintiffs supplemented their response by an affidavit and "other proof" consisting of depositions, letters, and other materials obtained in discovery. (See Ill. Rev. Stat. 1977, ch. 110, par. 48(3).) These materials tended generally to support plaintiffs' factual allegations. Thus, depositions of Texaco employees were submitted which tended to confirm and expand upon Cacciatore's repeated attempts to procure an assignment of Texaco's lease, over a period beginning in August and extending through the second week of November 1976. The materials also established continuing contact between Del Campo and Cacciatore or his associate throughout the month of November, culminating in the closing and conveyance into trust for the benefit of Cacciatore on November 23, 1976. In addition, plaintiffs submitted a letter by Texaco to all counsel dated November 19, 1976, once again expressing a waiver of its option right, as well as a letter from plaintiffs' counsel to Del Campo the following day, expressing plaintiffs' readiness to close the transaction in light of Texaco's position. Evidence of plaintiffs' attorney's repeated attempts to telephone Del Campo between November 19 and 22 was also offered.
Del Campo filed a separate reply, containing argument, to plaintiffs' response. Subsequently, Cacciatore filed a separate motion to dismiss. The first basis for the motion was that the complaint was defective under section 45 of the Civil Practice Act in that it failed to state a cause of action for tortious interference with a contractual relationship as to Cacciatore. Next, the motion relied on section 48(1)(i) of the Civil Practice Act, contending that plaintiffs' request for equitable relief was barred by the fact that plaintiffs breached or rescinded the contract. *fn1 Finally, the motion stated that if plaintiffs did have a cause of action, their remedy at law was adequate. Cacciatore submitted a memorandum in support of his separate motion which, besides containing argument on these points, set forth as "factual background" the following: the fact that plaintiffs' counsel drafted the contract in issue; the contract terms relating to the lease, and the fact that the contract was not expressly conditioned on Texaco's waiver of the lease; and conclusions drawn from the letters and affidavit attached to the prior group motion to dismiss of all defendants, to the effect that plaintiffs breached or rescinded the contract. Del Campo then filed his own memorandum adopting Cacciatore's "factual background" and similarly arguing that plaintiffs breached or rescinded the contract and therefore were not entitled to equitable relief such as specific performance.
On November 3, 1976, the following order, drafted by Cacciatore's attorney, was entered by the trial court:
"This cause coming on to be heard on Motion of Defendant Cacciatore to Dismiss [the] Amended Complaint and on Motion of Defendant Del Campo to dismiss [the] Amended Complaint, and the ...