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Knightsbridge Realty Partners, Ltd-75 v. Pace

OPINION FILED OCTOBER 7, 1981.

KNIGHTSBRIDGE REALTY PARTNERS, LTD-75, PLAINTIFF-APPELLANT,

v.

JOSEPH A. PACE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Knightsbridge Realty Partners, Ltd., appeals from the denial of its post-trial motion requesting the trial court to vacate its order dismissing plaintiff's complaint with prejudice and seeking leave to amend the complaint. By its complaint against defendant, Joseph A. Pace, plaintiff had sought damages for breach of a personal guaranty contract and for fraudulent misrepresentation.

Defendant is President of Elmore Medical Building, Ltd. After negotiating a sale and leaseback of real estate owned by Elmore, defendant executed a purchase agreement. He signed the document as follows:

"By /s/ Joseph A. Pace Joseph A. Pace President."

By the terms of the purchase agreement, a lease for the premises was to be executed by the plaintiff buyer at the closing. The terms of the lease were fully set forth and attached to the agreement and incorporated therein by reference. The agreement also provided that the "lease obligation shall be personally guaranteed by Joseph A. Pace, who shall execute at the Closing a Guaranty in the form attached hereto as Exhibit "C" and incorporated by reference herein."

At the closing, plaintiff executed a lease and paid the purchase price, but defendant did not execute the formal guaranty. After Elmore defaulted on the lease payments, defendant rejected plaintiff's demand for payment.

Plaintiff filed a complaint in three counts seeking damages for breach of a personal guaranty contract and for fraudulent misrepresentation. In orders dated January 31 and February 7, 1980, the trial court dismissed all three counts with prejudice for failure to state a cause of action. On May 6, 1980, the trial court denied plaintiff's post-trial motion requesting that the dismissal orders be vacated and seeking leave to amend the complaint.

Plaintiff thereafter filed a notice of appeal from the order of May 6, 1980. Subsequently, it obtained leave of this court to file an amended notice of appeal, which stated that the appeal was from all the orders dated January 31, February 7, and May 6, 1980.

We initially address defendant's contention that there are no reversible issues before this court. Defendant first maintains that our jurisdiction is limited to the issues raised in the order of May 6, 1980, since the original notice of appeal alluded only to that order. The amended notice of appeal, he contends, filed approximately 6 months after the May 6 ruling, was untimely.

The notice of appeal must be filed within 30 days of the trial court's disposition of a timely post-trial motion directed at the judgment. (Ill. Rev. Stat. 1979, ch. 110A, par. 303.) Thereafter, the notice may be amended on motion in the reviewing court and, provided that the amendment does not specify a judgment not named in the original notice, the amendment relates back to the time of filing of the original notice. Ill. Rev. Stat. 1979, ch. 110A, par. 303(c)(4).

The original notice of appeal here states that the appeal is from the May 6, 1980, order denying the motion to vacate the earlier dismissal orders and denying leave to amend. The amended notice states that the appeal is from all three orders. Since the dismissal orders of January 31 and February 7 involve the legal issue whether the complaint on its face states a cause of action, a review of the refusal to vacate such dismissals requires an examination of the complaint for its legal sufficiency. (See People ex rel. Endicott v. Huddleston (1975), 34 Ill. App.3d 799, 340 N.E.2d 662.) Hence, whether we proceed under the authority of either the original or the amended notice of appeal, our inquiry on review would be the same. We therefore decline to decide whether the amended notice was effective.

Defendant also maintains that since plaintiff's original brief in this court discusses only whether the complaint is legally sufficient and does not address whether the trial court abused its discretion in refusing to vacate its orders of dismissal, plaintiff has waived any error in the trial court's refusal to vacate. Yet, there is really one issue: does plaintiff's complaint state a cause of action? Accordingly, the briefs fully set forth the pertinent argument on this matter. Moreover, we gave leave to plaintiff to file an amended brief in which plaintiff pointed out that the abuse of discretion issue is the same as the sufficiency of the complaint issue for the purpose of the present case.

• 1 Defendant also contends that plaintiff's request for leave to amend its complaint in the post-trial motion constituted an abandonment of any claim of error regarding the dismissed complaint thereby precluding this court from reviewing that dismissal. Where a pleading has been stricken and another pleading filed in its stead, the earlier pleading is abandoned and any claim of error on the original pleading is waived. (Villareal v. Trevino (1961), 30 Ill. App.2d 77, 173 N.E.2d 582.) But where, as here, the original pleading was stricken with prejudice, and the movant also requested in its motion that the trial court vacate its dismissal order as to the first complaint, we do not believe that an abandonment has occurred. (Cf. Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App.3d 991, 376 N.E.2d 660.) We therefore turn to plaintiff's argument that the trial court erred in dismissing its complaint.

• 2 In count I, plaintiff seeks damages for breach of a personal guaranty contract. Such a contract is subject to the usual standards governing contracts in general. (Blackhawk Hotel Associates v. Kaufman (1981), 85 Ill.2d 59, 421 N.E.2d 166.) Defendant maintains that the purchase agreement is not a binding contract to personally guarantee payment since, by its terms, it contemplated the later execution of a formal guaranty contract at the closing. Whether a written agreement which includes essential contract terms but which contemplates the execution of a formal contract is a mere negotiation or is itself a binding contract depends upon the intent of the parties. (Interway, Inc. v. Alagna (1980), 85 Ill. App.3d 1094, 407 N.E.2d 615.) If by the terms of the agreement it is clear that the parties intended to make the later execution of the ...


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