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Martin-trigona v. Bloomington Fed. Sav.

OPINION FILED NOVEMBER 10, 1981.

ANTHONY R. MARTIN-TRIGONA, PLAINTIFF-APPELLANT,

v.

BLOOMINGTON FEDERAL SAVINGS & LOAN ASSOCIATION ET AL., DEFENDANTS. — (SCHIFF, HARDIN & WAITE ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR SULLIVAN, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff Anthony R. Martin-Trigona filed a 21-count complaint in the Circuit Court of Cook County against nine defendants. Among those defendants were the Chicago law firm Schiff, Hardin & Waite (Schiff), and Barry Alberts (Alberts), a member of the Schiff firm. Schiff and Alberts filed a single motion to dismiss the complaint against them. The circuit court granted this motion and entered an order under Supreme Court Rule 304 (73 Ill.2d R. 304) making the dismissal appealable immediately. Martin-Trigona thereafter instituted the present appeal.

Martin-Trigona has filed a confusing, inartfully drawn, ad hominem appellant's brief with this court. In effect the brief asks this court to find (1) that the complaint properly alleged a breach of contract action against Schiff and Alberts, or (2) that the complaint alleged a cause of action against the same parties on the basis of fraud. Martin-Trigona therefore asserts that the circuit court's order of dismissal was erroneous.

Since this appeal is taken from the grant of a motion to dismiss, the facts are taken from the complaint, especially count 14, and are viewed as admitted by Schiff and Alberts for these purposes to the extent that they are well-pleaded. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296, 302, 390 N.E.2d 428.

The instant appeal has its genesis in a mortgage foreclosure action instituted by defendant Bloomington Federal Savings & Loan Association (Bloomington) against Martin-Trigona and others in the Circuit Court of Champaign County, Illinois, sometime in early 1978. Schiff, through Alberts, represented Bloomington in that case. Its merits are not relevant to this appeal.

Subsequent to the filing of the Champaign County action, but prior to Martin-Trigona's appearance therein, Schiff, through Alberts, apparently entered into a discussion with Martin-Trigona and his attorney, Paul Bradley. Bradley advised Alberts that he believed Martin-Trigona had substantial claims against Bloomington but desired a "peaceful and peaceable settlement."

Schiff, Alberts, and Martin-Trigona then allegedly entered into an agreement by which Schiff and Alberts would not proceed with the Champaign County case and Martin-Trigona would not pursue his claims while settlement negotiations went forward. As a result of the purported agreement, Martin-Trigona alleges that he failed to appear in the Champaign County case. Bloomington's local attorney (not Schiff) allegedly proceeded to secure a default judgment against Martin-Trigona.

Martin-Trigona's Cook County complaint further alleges he was unable to appeal entry of that default because of its interlocutory nature. He alleges that he suffered "substantial economic loss and legal fees" nonetheless, and seeks $500,000 actual damages and $1 million punitive damages due to Schiff's and Alberts' alleged breach of the "contract and agreement" with Martin-Trigona.

Other facts, made known through Schiff's and Alberts' motion, are that Martin-Trigona filed a timely motion to vacate the default judgment in Champaign County which made no mention of the purported agreement. This motion was denied. Subsequently, only after the present action had begun and Schiff had filed the motion to dismiss, Martin-Trigona filed with the Champaign County court a motion to vacate the default judgment based upon the same theory as presented in count 14 of the Cook County complaint.

I

• 1 Martin-Trigona's appeal arises from the circuit court's grant of Schiff's and Alberts' motion to dismiss. The circuit court's dismissal did not specify the grounds upon which the dismissal was based. Schiff and Alberts relied upon several theories in presenting their motion. *fn1 In such circumstances, the reviewing court may affirm the dismissal upon any of the issues raised in the motion to dismiss. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296, 298-99. *fn2

One of the bases of Schiff's and Alberts' motion was that Martin-Trigona's allegations did not show the existence of a duty owed by Schiff or Alberts to Martin-Trigona, did not allege conduct which would constitute a breach of contract, and did not allege consideration for the alleged agreement. Martin-Trigona apparently argues on appeal that the complaint did adequately allege a breach of contract action.

• 2 A proper and adequate complaint based upon breach of contract must allege the existence of the contract purportedly breached by the defendant, the plaintiff's performance of all contractual conditions required of him, the facts of the defendant's alleged breach, and the existence of damages as a consequence thereof. (Thilman & Co. v. Esposito (1980), 87 Ill. App.3d 289, 296, 408 N.E.2d 1014.) Allegations demonstrating the existence of a contract must contain facts indicating an offer, acceptance, and consideration. (Kalkounos v. Four K's, Inc. (1981), 94 Ill. App.3d 1011, 1012-13, 419 N.E.2d 503; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App.3d 296, 301; Pollack v. Marathon Oil Co. (1976), 34 Ill. App.3d 861, 864, 341 N.E.2d 101.) A general allegation that a contract exists, without supporting facts, is a legal conclusion which is not admitted as true by a motion to dismiss or strike. Pollack v. Marathon Oil Co.

• 3 After examining Martin-Trigona's complaint, we find that Martin-Trigona has failed to adequately plead a breach of contract action. First, his allegations as to offer and acceptance are contained in a paragraph which, in form, is essentially a legal conclusion. *fn3 Since such legal conclusions are neither admitted as true by a motion to dismiss (Mid-Town Petroleum, Inc. v. Dine), nor adequate to serve as the essential ...


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