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Wheeling T. & Sav. Bk. v. City of Highland Park





APPEAL from the Circuit Court of Lake County; the Hon. ROBERT K. McQUEEN, Judge, presiding.


Rehearing denied July 27, 1981.

The plaintiffs appeal from an order of the circuit court of Lake County that granted the defendant's motion for judgment after plaintiff's case in chief was presented. Plaintiffs contend that they have established a prima facie case for specific performance of a contract with the city of Highland Park (hereinafter City).

The plaintiff, Wheeling Trust & Savings Bank, is the trustee under a trust in which the owners of the Highland Park Country Club (hereinafter the Club) are beneficiaries. On May 10, 1973, the Club, in response to an invitation for bids published by the City, submitted a bid for the purchase of three parcels of real estate and offered $300,000 conditional upon terms that included the vacation of any plats of dedication of a number of proposed public streets including an unused portion of Western Avenue that was located on the property the City was selling. The Club enclosed 10 percent of the purchase price with their bid for the property. On May 14, 1973, the City acknowledged the Club's bid and directed corporate counsel to make a recommendation for the city council. On August 27, 1973, the city council considered and approved an ordinance to vacate the dedicated streets and approved the sale of the property to the Club. Prior to passage, a councilman proposed an amendment to reserve easements for a bicycle and footpath on the vacated portion. The ordinance, without being redrafted, was passed by a roll-call vote, and the council authorized the corporate counsel to draft an amendment for the easement and incorporate it for the mayor to sign and for it to be recorded.

Former Mayor Raymond Geraci testified that the land sale plan originated as a means for the City to raise revenue for construction of two fire stations. The landfill area to be sold had been filled to capacity. He further testified that once the ordinance was passed no further action would have to be taken by the council for the ordinance to become effective and that he had never signed the ordinance because the amendments had not been prepared.

After the ordinance was passed a citizens group complained that they were not satisfied with the reservation of a path but that they wanted a thoroughfare through the country club. An alternative solution, proposed by the Club, called for the dedication of a 33-foot section along the eastern boundary, but this was contingent on a neighboring country club (the Exmoor Club) dedicating 33 feet of its western boundary. Some time later the Exmoor Club stated that it would not agree to dedicate the property, and to date no agreement as to the bicycle path has been reached between the parties. The record reflects that the Club proposed these alternatives without waiving its rights to the vacation of Western Avenue as contained in the ordinance.

Despite the details yet to be agreed upon, on November 2, 1973, the parties closed the sale, and the Club deposited $270,000 in an escrow account while the City tendered a warranty deed. The Club had been leasing certain of these parcels from the City, and it received a return of its prepaid rent after the closing. The area purchased that was not previously leased by the Club was a landfill that had been filled to capacity and was to be graded over by the City according to the purchase agreement. This grading was not completed prior to the closing. Neither the escrow agreement nor the deed contained any provision that the City was to vacate the plat dedicating the streets in question or that the City was to grade the dump site. The Club deeded the parcels into three different trusts.

On July 25, 1975, the Club petitioned the court for specific performance. The complaint alleged that the City had breached its contract, that the vacation of the plat of dedication was unique, and that the Club had no adequate remedy at law. It requested that the City be ordered to vacate the plats dedicating the streets and to complete the grading of the dump site. In count II, it petitioned for damages it had incurred for grading at the dump site, for loss of membership and other damages; and in count III it petitioned for punitive damages.

At trial, the City made a motion in limine to exclude any evidence of what transpired at the city council meetings except the official records. The court reserved its ruling on this motion but admitted the transcripts of relevant meetings into evidence.

Former Mayor Geraci testified that the Club had conditioned its desire to purchase the land on the vacation of Western Avenue. The Club then offered into evidence the minutes of the meeting at which its bid and the ordinance to vacate Western Avenue were approved. The mayor stated that he didn't sign the ordinance because the amendment was not prepared but he considered the ordinance passed despite his failure to sign it. The Club then called Mr. Gluck, who had represented the Club as counsel during the negotiations of the contract. He testified that the City had accepted the terms of his letter dated May 10, 1973, which included the vacation of Western Avenue. He stated that the Club's Exhibit No. 9 was a copy of the ordinance vacating Western Avenue but that that ordinance did not include a reference to a five-foot bike path or other easements that were voted on as indicated by the minutes of August 27, 1973. Counsel for the Club stated that the parties had been negotiating the terms of the contract since the passage of the ordinance and that the parties had not reached a compromise solution, nor had the City indicated where the five-foot bike path was to be located. Counsel for the Club indicated that his client was willing to dedicate the 33 easternmost feet of property for a street if a neighboring club was willing to do the same but that this did not occur and that he had at all times preserved the Club's rights under the ordinance vacating Western Avenue.

The Club's manager testified at trial that the Club had to spend money on grading the land where the city dump had been in order to use it for golf course purposes. He further testified that the Club had lost several members because it was unable to enlarge the golf course as planned. After the Club rested its case the City moved for judgment pursuant to section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 64(3)), arguing that the Club had failed to prove that a contract had been entered into and that the only evidence that an agreement was entered into was the escrow agreement which did not include any provision for the vacation of the dedicated streets. It is also argued that the ordinance to vacate Western Avenue was not passed pursuant to the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 1-1-1 et seq.) and thus was never an ordinance. The court entered judgment for defendant, finding there was no clear and convincing evidence of a binding contract free from ambiguity. Further, it added that had a contract been entered into it would be impossible for the court to find where the five-foot path should be located. The court considered the concept of inducement inapplicable.

The first issue raised by the Club is the contention that the trial court erred in granting the City's motion for judgment at the close of the Club's case because a prima facie case for specific performance was proved. The Club argues that the motion was granted in error under the rule of Kokinis v. Kotrich (1980), 81 Ill.2d 151, 407 N.E.2d 43.

It also contends that the court considered its request for specific performance to be a request for the court to compel the City to enact an ordinance vacating the dedicated street when, in fact, the ordinance was already passed.

The court in Kokinis clarified the standard by which the trial court should consider the evidence upon a motion by defendant for judgment after the ...

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