Appeal from the Circuit Court of Cook County; the Hon.
Benjamin S. Mackoff, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1987.
The plaintiff, Downers Grove Associates, filed suit in the circuit court of Cook County against the defendant, Red Robin International, Inc., seeking specific performance of an alleged real estate contract. The defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(a)(9)), contending that the plaintiff failed to relocate a drainage easement running across the center of the property prior to the July 1, 1985, closing date, as had been agreed between the parties in the amended escrow trust instructions. After a hearing, the trial court granted the motion and dismissed the complaint with prejudice. The plaintiff now appeals.
The facts pertinent to this appeal are as follows. The plaintiff and the defendant entered into a contract whereby the plaintiff agreed to sell to the defendant certain property located in Downers Grove. Although the contract was originally undated, the parties subsequently agreed by letter that the missing contract date would be February 15, 1985, which was also the date of their agreement concerning the escrow trust instructions. The contract contained a provision stating that "time is of the essence of this contract." A rider to the contract provided that the contract was contingent upon the defendant obtaining certain permits from the village of Downers Grove within 60 days of the February 15, 1985, date. The time for closing under the contract was to be 10 days after the village granted the permits. Also, paragraph 5 of the contract provided that if the contract was terminated through no fault of the buyer, the earnest money was to be returned to the buyer.
On May 14, 1985, pursuant to the terms of the contract, the plaintiff sent the defendant a copy of the Chicago Title Insurance Company's commitment for title insurance. The commitment contained the following exception:
"3. Drainage and utility easement over the westerly 15 feet of the north 10 feet of the east 45 feet and the west 50 feet of the 95 feet of lot 13, as shown on the plat of subdivision."
On May 20, 1985, the defendant sent a letter to the plaintiff stating that it objected to title exception number 3, but that it was certain the exception could be cleared by the plaintiff. The defendant further stated that pursuant to paragraph 2 of the real estate contract, which allowed the plaintiff 30 days after delivery of the title commitment to have exceptions removed from the commitment, the closing date would accordingly be June 19, 1985. Paragraph 2 further provided that if the seller failed to have the exceptions removed within the 30-day time period, the buyer could terminate the contract.
Shortly after this defect in the title was revealed, it also became evident that the defendant would be unable to obtain the necessary permits from the village of Downers Grove, upon which the contract was contingent, until the plaintiff had arranged for the relocation of the drainage easement. Therefore, the parties agreed that the plaintiff would remove the drainage easement, and that the closing would take place no later than July 1, 1985, after the relocation of the easement had been accomplished. The parties then amended the escrow trust instructions (amendment to the escrow trust instructions) to reflect this agreement.
The original escrow trust instructions provided that if the defendant did not advise the escrowee in writing within 60 days of the contract date that it had obtained or waived the necessary permits, then on the written demand of either the buyer or the seller the escrow was to be terminated and the deposit returned. Subsequently, on September 6, 1985, the defendant made a written demand to the escrowee pursuant to this provision of the escrow trust instructions, as well as paragraphs 2 and 5 of the contract, and the escrow was terminated. As of that date, the plaintiff had not relocated the easement. The record does reveal, however, that the easement was relocated by the plaintiff sometime in late September 1985.
On September 13, 1985, the plaintiff filed this complaint against the defendant for specific performance. The complaint alleged that the plaintiff was "ready, willing and able to close said transaction pursuant to the contract," but that the defendant "had failed and refused to close said transaction even though the plaintiff had demanded that defendant [close] on numerous occasions." Thereafter, as stated previously, the defendant filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(a)(9)), alleging that the plaintiff had failed to relocate the drainage and utility easement by July 1, 1985, which was a condition to the defendant's performance as provided in the amendment to the escrow trust instructions. Therefore, the defendant asserted in its motion that it had properly terminated the contract on September 6, 1985. The motion to dismiss was supported by the affidavit of Stuart A. Heller, senior vice-president of Red Robin International, Inc., and the amendment to the escrow trust instructions was also attached to the motion as an exhibit. In his affidavit, Mr. Heller stated that he had personal knowledge of the allegations contained in the motion to dismiss, that the documents attached to the motion were true and correct copies, and, if called as a witness, he could testify competently to these matters. The plaintiff filed counteraffidavits, but did not deny that it had failed to comply with its contractual obligation to remove the drainage easement before the July 1, 1985, closing date.
At a hearing on December 30, 1985, the trial court granted the defendant's motion to dismiss and denied the plaintiff leave to file a proposed amended complaint. The plaintiff then filed this appeal.
On appeal the plaintiff argues that the trial court erred in granting the defendant's motion to dismiss because (1) it was actually a two-pronged motion, i.e., a section 2-615 motion (Ill. Rev. Stat. 1983, ch. 110, par. 2-615) and a section 2-619 motion (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) and, therefore, procedurally improper; (2) it did not assert other affirmative matter pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 983, ch. 110, par. 2-619(a)(9)), but merely alleged factual matters that did nothing more than contest the material facts of the plaintiff's complaint; (3) the affidavit filed by the defendant in support of its motion to dismiss was insufficient under Supreme Court Rule 191(a) (87 Ill.2d R. 191(a)); and (4) the amendment to the escrow trust instructions should not have been considered as a modification of the terms of the real estate contract. For the reasons set forth below, we affirm the trial court's decision.
• 1 The plaintiff initially argues, as stated, that the trial court should not have granted the defendant's motion to dismiss because the motion was improperly labelled as being brought solely under section 2-619 of the Code of Civil Procedure. It is the plaintiff's contention that the motion was in essence a hybrid motion, combining a challenge to the sufficiency of the pleadings to state a cause of action under section 2-615, with a challenge to the complaint by an affirmative defense under section 2-619 which, contrary to a 2-615 motion, necessarily admitted the legal sufficiency of the cause of action. Thus, the plaintiff concludes that before the trial court could have considered the merits of the defendant's motion to dismiss under section 2-619, the trial court should have first considered the motion under section 2-615 to determine if a cause of action had been stated and, if not, then simply granted leave to amend the complaint.
We find no merit to the plaintiff's argument. The failure to properly designate a motion as being brought pursuant to section 2-615 or section 2-619 will not require reversal unless prejudice results to the non-movant. (Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App.3d 190, 199-200, 478 N.E.2d 888.) A hybrid motion normally will only cause prejudice when the plaintiff is induced to forego the submission of counteraffidavits or other material to contest a defendant's affirmative defense and to rely solely on his complaint. (Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App.3d 638, 643, 450 N.E.2d 1360.) In the instant case, however, even assuming arguendo that the motion to dismiss was a hybrid motion, the plaintiff was clearly not prejudiced because, rather than merely resting on its complaint, as would, of course, be proper when responding to a section 2-615 motion (Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App.3d 183, 185, 437 N.E.2d 658), the plaintiff here did in fact contest the merits of the defendant's motion by filing counteraffidavits. Furthermore, from our review of the record of the proceedings, and, as discussed in more detail later in this opinion, we conclude that ...