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Elg v. Whittington

OPINION FILED OCTOBER 30, 1986.

CURTIS J. ELG ET AL., PLAINTIFFS-COUNTERDEFENDANTS,

v.

JON A. WHITTINGTON ET AL., DEFENDANTS AND COUNTERPLAINTIFFS AND THIRD-PARTY PLAINTIFFS, (WALTER SKEISTAITIS, JR., ET AL., DEFENDANTS AND COUNTERPLAINTIFFS AND THIRD-PARTY PLAINTIFFS-APPELLANTS; FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHAMPAIGN, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents a question of the interrelationship of Supreme Court Rules 303(a)(1) and 304(a) (103 Ill.2d Rules 303(a)(1), 304(a)). With one exception discussed below, there appears to be no prior authority on the subject.

Since we have concluded to dispose of the matter on the pleadings, a recapitulation of those documents is in order.

Plaintiffs-counterdefendants, Curtis Elg and Hilde Trieglaff, filed a complaint in the circuit court of Champaign County against defendants-counterplaintiffs, Jon and Penny Whittington, and defendants-third-party plaintiffs, Walter and Aldona Skeistaitis. Count I of the complaint alleged that the Whittingtons breached a contract to purchase certain described real property from Elg and Trieglaff. In count I Elg and Trieglaff sought specific performance or, in the alternative, damages from the Whittingtons. Count II of the complaint alleged that the Skeistaitises breached a contract to sell the same real property to Elg and Trieglaff. Count II alleged that the Skeitstaitises were unable to remove an encumbrance on the property's title and, for this reason, Elg and Trieglaff did not perform their obligations under the contract. In count II Elg and Trieglaff sought damages from the Skeistaitises.

The Whittingtons filed an answer to the complaint and a counterclaim against Elg and Trieglaff. The counterclaim alleged that Elg and Trieglaff were unable to provide them with a marketable title. In the counterclaim the Whittingtons sought the return of earnest money which had been deposited in escrow.

Elg and Trieglaff filed an answer to the counterclaim.

The Skeistaitises filed an answer to the complaint in which it pleaded an affirmative defense. The affirmative defense alleged that the Skeistaitises were unable to remove the encumbrance on the property's title because the First Federal Savings and Loan Association of Champaign (First Federal) refused to release a lien on the property despite an attempt by the Skeistaitises to satisfy the lien.

The Skeistaitises also filed a third-party complaint against First Federal. Count I of the third-party complaint alleged that the Skeistaitises tendered an amount sufficient to satisfy its debt to First Federal, but First Federal refused to accept the tender or to release its lien on the property. In count I the Skeistaitises sought indemnity from First Federal for any judgment entered against the Skeistaitises on the complaint and any costs incurred by the Skeistaitises in defending the complaint. Count II of the third-party complaint alleged that the acts of First Federal referred to in count I were wilful and malicious acts intentionally designed to embarrass the Skeistaitises and to hinder the sale of the property. In count II the Skeistaitises sought statutory damages (see Ill. Rev. Stat. 1983, ch. 95, pars. 52 through 54), punitive damages, and an order directing First Federal to release its lien on the subject property.

On November 21, 1984, First Federal filed an answer to the third-party complaint in which it pleaded three affirmative defenses. The first affirmative defense alleged that the third-party complaint and the relief requested therein were barred on principles of res judicata. The second affirmative defense alleged that another action was pending between the same parties for the same cause. The third affirmative defense alleged that the Skeistaitises' claim was barred by other affirmative matter avoiding the legal effect of or defeating the claim. First Federal also filed a motion to dismiss count II of the third-party complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 2-615).

The circuit court dismissed count II of the third-party complaint, and the Skeistaitises filed an amended count II.

The Whittingtons filed a motion for summary judgment supported by affidavits and other materials. In response Elg and Trieglaff filed affidavits and other documents.

On March 11, 1985, First Federal filed a motion for judgment on the pleadings. The motion alleged that the Skeistaitises failed to reply to the affirmative defenses. The motion alleged that by reason of their failure to reply, the Skeistaitises admitted the factual allegations contained in the defenses. The motion alleged further that the defenses were legally sufficient to defeat the third-party complaint. On the same date First Federal filed a motion to dismiss amended count II of the third-party complaint pursuant to section 2-615 of the Code. Ill. Rev. Stat. 1983, ch. 110, par. 2-615.

On May 2, 1985, the following docket entry was made:

"Hearing on Third Party Defendant, First Federal's motion to dismiss amended Count II and Motion for Judgment on pleadings resumed. Motion for judgment on pleadings allowed. Judgment on pleadings entered in favor of Third Party Defendant, First Federal Savings and Loan Association of Champaign and against Third Party Plaintiffs Walter Skeistaitis, Jr. and Aldona V. Skeistaitis and in bar of the causes of action sought to be stated in Count I and amended Count II of the Third Party Complaint. No written order required. No just reason to delay enforcement or appeal of the order.

By reason of ruling on Motion for Judgment, Motion to Dismiss not reached.

Hearing resumed on motion for summary judgment on Defendants/Counterplaintiffs Whittington. Court finds that motion and supporting affidavits do no [sic] demonstrate that there is no genuine issue of material fact and accordingly ...


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