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Shugan v. Colonial View Manor

OPINION FILED JUNE 3, 1982.

MURRAY M. SHUGAN ET AL., PLAINTIFFS-APPELLANTS,

v.

COLONIAL VIEW MANOR, D/B/A CONDEVERSION REALTY SALES COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiffs filed a complaint for specific performance of an alleged agreement to sell real estate or in the alternative for damages. Defendant filed a section 45 (Ill. Rev. Stat. 1979, ch. 110, par. 45) motion to dismiss on the grounds that the complaint failed to state a cause of action in that the pleadings failed to establish or evidence a valid and enforceable contract between the parties; that no sufficient writing existed or could have existed since the parties never entered into a contractual agreement; and compliance with all conditions precedent had not been pleaded or evidenced by the plaintiffs. The trial court indicated that there was a sufficient written memorandum to justify a full hearing on whether or not there has been compliance with the Statute of Frauds. (Ill. Rev. Stat. 1979, ch. 59, par. 2.) It held, however, that the contract could not be specifically enforced because there were too many elements missing and dismissed the complaint. We reverse and remand.

Since the case was dismissed on a section 45 motion, only the pleadings can be considered. Also because the case arises on a section 45 motion the facts alleged in the complaint must be accepted as true. Duhl v. Nash Realty Inc. (1981), 102 Ill. App.3d 483, 429 N.E.2d 1267.

Plaintiffs filed two complaints, both verified. In the first complaint they alleged that defendant in June 1980 had been engaged in the business of converting and selling condominiums. Shugan, one of the plaintiffs, entered into preliminary negotiations with defendant to purchase all 12 units in Building 210, Country Club Drive of the Colonial View Manor Condominiums. On June 23, 1980, defendant, through its general partner, sent Shugan a letter offering to sell the units. The letter, attached to the complaint, reads in material part:

"Following up our meeting on Saturday, we can offer you three proposals:

1. Installment Sale — 12 units, 10% down, 11% interest only (plus taxes and maintenance fee) with a balloon payment in 3 years. This offer is subject to acceptance by Joseph Zowada as to 10 units.

3 1BR at $32,900 = $ 98,700 3 2BRC at 35,900 = 107,700 6 2BRD at 38,900 = 233,400 _________ TOTAL at current pricing $ 439,800 LESS $1,000 discount per unit -12,000 _________ Net price $ 427,800 ========= 10% down 42,780 Contract balance 385,020

In addition to the above, we will be able to work out something for you along the lines we discussed Saturday for your own personal unit."

The letter was signed by Michael Bufkin, defendant's partner's vice-president and general counsel. On June 27, 1980, plaintiff wrote defendant stating:

"I am in receipt of your letter dated June 23, 1980.

Please be advised that I hereby accept your offer, `1. Installment Sale'. I would also appreciate clarification in writing of your reference in the above-mentioned letter to `. . . something for you along the lines we discussed Saturday for your own personal unit.' Please contact my attorney, Sam Borek, to discuss those items which will be necessary to prepare the documentation to consummate this transaction."

On July 26, 1980, Shugan deposited a $6,000 downpayment. He later deposited another $1,000. He also executed a "Purchase Offer" which, he alleged, "memorialized and integrated" into one document the terms of the agreement. In fact this purchase offer failed to conform to the previous writing in certain respects. Only Shugan signed this offer. Plaintiffs further alleged that during July and August defendant indicated it could only convey 11 of the units and Shugan orally agreed to reduce the number from 12 to 11, the price being adjusted accordingly. Plaintiffs sought specific performance of the contract or damages.

The complaint was dismissed on defendant's motion. Plaintiffs then filed a second verified complaint. In that complaint plaintiffs alleged that in June 1980 defendant was in the business of converting and selling condominiums. A declaration of condominium ownership setting forth the legal description of the property was attached to the complaint. On June 23, 1980, the seller offered to sell the 12 units; the letter was again attached to the complaint as was Shugan's reply of June 27, 1980. In July 1980, Michael Bufkin sent Shugan a memorandum, in Bufkin's handwriting, showing each unit in Building 210 to be transferred pursuant to the contract together with a breakdown of the contract terms on a unit by unit basis. The memorandum also was attached to the complaint. Shugan made downpayments of $6,000 and $1,000. Shugan also assigned his right to 11 of the 12 units to the co-plaintiff, Lake Geneva Condominium Associates. Plaintiffs sought specific performance of the contract to sell all 12 units ...


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