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Telander v. Posejpal

OPINION FILED MARCH 17, 1981.

JOHN C. TELANDER ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

GEORGE H. POSEJPAL, DEFENDANT-APPELLANT AND CROSS-APPELLEE. — (MICHAEL COAN ET AL., INTERVENING PETITIONERS-APPELLANTS AND CROSS-APPELLEES.)



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

The present litigation involves four parties: John C. Telander, a general contractor and land developer who is president of Telander Brothers Contractors, Inc.; Joseph M. Jura, a real estate broker; George H. Posejpal, the owner of a 54-acre farm which Telander contracted to buy and intended to develop as part of a planned unit development; and three architects, Michael Coan, Jesse Horvath and Bruce Liljeros, who did business as the Chicago Design Collaborative.

On May 7, 1973, the plaintiffs, Telander and Jura, brought suit against the defendant, Posejpal. In count I, Telander alleged that Posejpal had breached a real estate sale contract which Telander and Posejpal had entered into on April 28, 1972, while Jura alleged in count II that the defendant failed to pay him a real estate commission which was owing to him under the terms of the Telander-Posejpal contract. In his answer, Posejpal denied both that he had breached the contract with Telander and that Jura was entitled to a broker's commission. In addition, Posejpal counterclaimed against Jura, alleging that he had loaned Jura $5,000 which was to be applied toward the purchase price of a piece of property, known as the Johnson farm, which Jura had contracted to buy and that Jura had failed to repay the loan. On May 21, 1975, the three architects, Coan, Horvath and Liljeros, petitioned the court to intervene in the litigation involving Telander, Jura and Posejpal. In their petition to intervene and accompanying complaint, they alleged that Telander had refused to pay them for certain architectural services which they had rendered the plaintiffs. The court subsequently granted the petitioners leave to intervene.

After a bench trial, the court found that there was no contract between Telander and Posejpal after September 30, 1972, but awarded Telander a $25,000 recovery on the basis of quantum meruit. The court also denied Jura's claim for a broker's commission and likewise denied Posejpal's claim against Jura for damages occasioned by the failure of Jura to repay the alleged $5,000 loan. The court further determined that Telander and the intervening petitioners had not entered into a contract for architectural services but awarded the three architects recovery in the amount of $10,000 on the basis of quantum meruit.

Posejpal appeals from the judgment awarding Telander $25,000 as well as from the denial of his claim for $5,000 damages against Jura. Jura cross-appeals from the denial of his claim for a broker's commission, while Coan, Horvath and Liljeros appeal from the order granting them $10,000 recovery in quantum meruit. In addition, Telander cross-appeals and asserts that Posejpal did not have the right to declare the April 28, 1972, contract null and void and, further, that the architects should have been denied all recovery since their claim did not involve Telander personally.

Evidence in the record indicates that John C. Telander and George H. Posejpal entered into a written real estate sale contract, dated April 28, 1971, whereby Telander agreed to purchase and Posejpal agreed to sell a 54-acre parcel of land (the Posejpal farm). The contract was apparently terminated by the seller on April 28, 1972. On April 28, 1972, Telander and Posejpal entered into a second real estate contract which involved the same parcel of land. It is this contract which forms the basis for the present lawsuit. In pertinent part, the April 28, 1972, contract provided that it was subject to the condition that the purchaser be able to procure within 150 days a firm commitment for a loan acceptable to the purchaser and, further, that the contract was contingent upon the purchaser being able to secure rezoning of the subject property which was acceptable to the purchaser within the time limit set forth in paragraph 7 of the "Conditions and Stipulations." The purchaser was to assume all costs, fees and expenses attendant to the rezoning matter. Paragraph 7 stated that time was of the essence and that "[i]t is mutually understood that September 30, 1972, is the final date for rezoning and financing to be obtained and if said conditions are not met within that time this contract is null and void." The contract also provided that the time of closing would be 30 days after the purchaser notified the seller that financing had been procured, in the absence of a mutually agreeable extension of time. Furthermore, the seller agreed to pay Joseph Jura, at the time of closing, a broker's commission of five percent of the gross sale price prior to prorations. Finally, paragraph C of Rider A to the contract provided that in lieu of a cash payment at closing, the seller had the right or option to require the purchaser to buy certain real estate which would then be exchanged for the Posejpal farm, and the seller agreed to cooperate with Joseph Jura "in such manner that Jura can act in the capacity of real estate broker for the purchaser."

In his complaint for breach of contract and at trial, Telander asserted that Posejpal made certain statements prior to September 30 and took certain actions subsequent to September 30 which indicated that the seller had orally agreed to waive the requirement that financing be completed by September 30, 1972. Telander further alleged in his complaint and argued in the court below that Posejpal had orally agreed to extend the April 28, 1972, contract, with certain amendments or changes, beyond September 30, 1972, and that the seller breached the contract when he failed to close the transaction on February 15, 1973.

With respect to these claims, the trial court determined that there was no contract between Telander and Posejpal after September 30, 1972, and that dealings between the parties were negotiations for a new contract which never materialized. These findings are not contrary to the manifest weight of the evidence and will not be disturbed on appeal. Given the fact that the testimony adduced at trial was conflicting and contradictory, the trial judge as trier of fact was in a superior position to hear and weigh the evidence and determine the credibility of the witnesses. Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 356; Wainwright v. Lyons (1979), 73 Ill. App.3d 1043, 1045; Ross v. Steiner (1978), 66 Ill. App.3d 567, 572, 574.

The trial court awarded $25,000 to Telander under the doctrine of quantum meruit on the grounds that Telander had secured a consent decree entered into by Telander, the defendant and other landowners on the one hand, and the County of Du Page on the other and thereby effected a rezoning of the defendant Posejpal's property to allow for a planned unit development that consequently substantially increased the value of Posejpal's property.

The general principles underlying recovery on the basis of quantum meruit are well settled:

"A contract implied in law is equitable in its nature and is one which reason and justice dictate. It does not arise from an intent to contract or a promise to pay. It exists where there is a plain duty and a consideration. The consideration may be a parting with something by the party seeking to enforce the contract; the promise is presumed so that there will not be a failure of justice. Its essential element is the receipt of a benefit by one party which would be inequitable for that party to retain. It is predicated on the fundamental principle that no one should unjustly enrich himself at another's expense. [Citations.]" (First National Bank of Lincolnwood v. Glenn (1971), 132 Ill. App.2d 322, 324; Comm v. Goodman (1972), 6 Ill. App.3d 847, 854; see Rutledge v. Housing Authority (1980), 88 Ill. App.3d 1064, 1069; Elliott v. Villa Park Trust & Savings Bank (1978), 63 Ill. App.3d 714, 717.)

Both Posejpal and Telander agree that a crucial inquiry here is whether the defendant received any benefit as a result of the purported rezoning of the Posejpal property. Posejpal argues that the actions of Telander did not confer any benefit upon him and thus the trial court erred in entering the judgment of $25,000 in favor of Telander.

The consent decree in question found that Telander Brothers Contractors, Inc., and its assigns should be permitted to develop the proposed site as a planned unit development and ordered that "Telander Bros. Contractors, Inc., its successors and assigns," be permitted to use the subject property for a planned unit development. Contrary to Telander's assertion, the consent decree did not rezone the defendant's property but merely ordered that it could be used as part of the planned unit development. Moreover, by the express terms of the consent agreement between the parties, any benefits flowing from the consent decree were limited to Telander Brothers Contractors, Inc., and its successors and assigns; it is manifest that the consent decree itself conferred no benefit upon Posejpal. Furthermore, although the consent decree itself does not specifically set forth the area which may be developed as a planned unit development, other evidence in the record reveals that the development comprised a 78-acre parcel, which included the defendant's farm property. Thus, even if the defendant were able to benefit from the consent decree, he would not be able to develop his property as a planned unit development unless he did so in concert with the other property owners whose land was included in the consent decree. Finally, any insinuation by Telander in his brief that the defendant sold his farm and secured a much higher price for his 54 acres as a result of more desirable zoning is unfounded. In addition to the fact that there is no evidence that the defendant's property was ever rezoned, counsel for Telander admitted in the trial court that the 54-acre Posejpal farm was in the same state that it was six years ago (1972) and had not been sold by Mr. Posejpal.

Given the above facts, we conclude that the defendant derived no benefit from the consent decree. A reviewing court has a duty to reverse a judgment where the findings are clearly and palpably against the manifest weight of the evidence. (Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App.3d 953, 956; see City of Chicago v. Abdullah (1979), 76 Ill. App.3d 325, 329.) For a finding or judgment to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. (Comm v. Goodman (1972), 6 Ill. App.3d 847, 853.) In the present case, the trial court's implicit finding that ...


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