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02/05/87 Joan Payne, D/B/A v. Mill Race Inn Et Al.

February 5, 1987





504 N.E.2d 193, 152 Ill. App. 3d 269, 105 Ill. Dec. 324 1987.IL.135

Appeal from the Circuit Court of Kane County; the Hon. James Quetsch, Judge, presiding.


JUSTICE HOPF delivered the opinion of the court. NASH and REINHARD, JJ., concur.


Plaintiff, Joan Payne, d/b/a Cross Country Ski Shop, appeals from the order of the circuit court which dismissed her breach of contract action against defendants, Mill Race Inn and John Mitchell, for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). For the reasons set forth below we reverse.

On June 20, 1984, the plaintiff filed her original two-count complaint against Mill Race Inn (Mill Race) and John Mitchell. In count I she alleged that the defendants breached an agreement to purchase her business. Count II characterized certain conduct of the defendants as wilful and wanton and sought exemplary damages. On May 29, 1985, the trial court dismissed the complaint under section 2 -- 615 for failure to state a cause of action.

On June 28, 1985, the plaintiff filed a six-count amended complaint. In count I, for breach of contract, the plaintiff alleged the following facts. She operated a sole proprietorship known as the Cross Country Ski Shop in Aurora, Illinois. The defendant, Mill Race Inn, a corporation, operated in Geneva, Illinois, with the defendant, John Mitchell, acting as managing agent of Mill Race and the Mill Race Cyclery Shop, also in Geneva. On April 2, 1984, Mitchell and the plaintiff initiated negotiations and subsequently reached an agreement which resulted in the defendants' offer to purchase the plaintiff's business. On April 12, 1984, the parties entered into a contract for defendants' purchase of the business. Plaintiff attached a document to the complaint, referred to as exhibit A, which assertedly did two things: (1) set forth the terms of defendants' offer, and (2) constituted the contract between plaintiff and defendants. Exhibit A was titled "Plan for Development of Cross Country Ski Shop at Mill Race Inn" (plan for development).

Count I further alleged that, pursuant to the contract, the plaintiff terminated her existing business lease and advertising and relocated some of her inventory to storage facilities arranged for by the defendants. The defendant, Mill Race, paid for storage for other of the plaintiff's inventory on other premises. The inventory relocation was done under the direction and control of defendants. On May 16, 1984, the defendants breached the contract when they refused to allow the plaintiff access to a previously agreed-upon location under the defendants' control. Since that date the defendants have refused to comply with the terms of the contract. Because of the defendants' breach, the plaintiff again relocated, reinstated advertising, procured new inventory, and advised suppliers of her change in location. These actions resulted in a loss of business as well as customer goodwill.

Plaintiff based counts II through VI of her amended complaint on detrimental reliance, part performance, promissory estoppel, fraud, and wrongful interference with the plaintiff's business. The plaintiff also attached to the complaint, as exhibit B, a copy of an advertising proof for telephone advertising for the new Mill Race business.

On November 27, the court heard oral argument on the defendants' motion to dismiss. Defendants contended that: (1) exhibit A, the plan for development, was not a contract which would impose liability on these defendants; (2) even if considered a contract, the plan for development failed to comply with the statute of frauds; (3) detrimental reliance, part performance and promissory estoppel are not causes of action; and (4) the count entitled fraud failed to contain a specific misrepresentation of material fact.

In response, plaintiff asserted that it is a question of fact as to whether the plan for development is a contract. She further urged that the parties' agreement should be discerned not only from the document itself but also from the plaintiff's activities extrinsic to the contract. The court entered an order which found that none of the counts stated a cause of action. The trial Judge then dismissed plaintiff's amended complaint pursuant to section 2-615 and terminated the litigation pursuant to section 2-615(d). Ill. Rev. Stat. 1985, ch. 110, par. 2-615(d).

On appeal, plaintiff again contends that whether the plan for development is merely a plan, or rather, a binding legal contract, is a question of fact, incapable of resolution on a section 2 -- 615 motion. Plaintiff insists that the trial court erred when it concluded that the plan for development was not a contract. The source of the error, according to plaintiff, was the court's failure to consider the significance of the actions of the parties subsequent to the time when the agreement was reached. While the basis for the trial court's dismissal of plaintiff's breach of contract action is not clear from the court's order, we agree with plaintiff's ultimate Conclusion that it was error to dismiss her complaint and terminate the litigation.

Section 2-615 of the Code of Civil Procedure provides for a motion to dismiss a complaint for failure to state a cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) Appeal from dismissal of a complaint for such failure preserves for review only the question of the legal sufficiency of the complaint. (Henkhaus v. Barton (1977), 56 Ill. App. 3d 767, 769, 371 N.E.2d 1166.) For purposes of a motion to dismiss, all well-pleaded facts must be taken as true, as well as all reasonable inferences favorable to the nonmoving party which may be drawn from the facts. (Morrow v. L. A. Goldschmidt Associates, Inc. (1984), 126 Ill. App. 3d 1089, 1096, 468 N.E.2d 414, rev'd on other grounds (1986), 112 Ill. 2d 87, 492 N.E.2d 181.) A motion to dismiss, however, does not admit Conclusions of law or Conclusions of fact which are not supported by allegations of specific facts which form the basis for such Conclusions. (Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 302, 390 N.E.2d 428.) In determining whether a complaint states facts or Conclusions, the complaint must be considered in its entirety and not in its disconnected parts. (Denkewalter v. Wolberg (1980), ...

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