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06/12/87 Phil Stefani Et Al., v. Baird & Warner

June 12, 1987

PHIL STEFANI ET AL., PLAINTIFFS-APPELLANTS

v.

BAIRD & WARNER, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 65, 157 Ill. App. 3d 167, 109 Ill. Dec. 444 1987.IL.807

Appeal from the Circuit Court of Cook County; the Hon. Joseph Wosik, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiffs, Phil and Karen Stefani, appeal from a final order of the circuit court of Cook County dismissing their second amended complaint against defendant, Baird & Warner, Inc., a real estate broker, pursuant to defendant's section 2-615 motion (Ill. Rev. Stat. 1983, ch. 110, par. 2-615).

Plaintiffs' second amended complaint, which contained four counts, alleged that in 1983 plaintiffs contacted Jennifer Sisto, an employee of defendant, to assist them in finding a suitable residence to purchase. Defendant, through Sisto, allegedly orally agreed to act as plaintiffs' agent and was to receive a commission from the seller as consideration for its representation of plaintiffs.

In February 1984, Sisto arranged for plaintiffs to inspect a residence located in Chicago and owned by Aldona Harris. Prior to that time, Harris had executed an exclusive listing agreement with Heritage Realty for the period of January 3, 1984, through March 3, 1984.

On February 18, Sisto prepared a real estate purchase offer on behalf of plaintiffs, which they executed and submitted to Harris for acceptance. Thereafter, a number of counteroffers were exchanged between the parties from February 18 to April 19. While the negotiations continued, defendant, through another one of its employees, contacted Carlos and Mary Jane Fernandez with respect to purchasing the Harris property. The Fernandezes subsequently offered a higher purchase price for the Harris property than the one offered by plaintiffs, and defendant submitted the offer to Harris on behalf of the Fernandezes.

On April 19, defendant received a listing of the real estate from Harris. On the same day, a contract of sale was entered into between Harris and the Fernandezes for the purchase of the involved residence, and the transaction subsequently closed. As a result of defendant's representation of the Fernandezes, it received a commission from Harris in connection with the sale of her property, as well as a commission from the Fernandezes relating to the sale of their former residence. Plaintiffs were never advised of defendant's representation of the Fernandezes or of their offer to purchase the Harris property.

On April 27, plaintiffs filed an action for specific performance against Harris and defendant. Summary judgment was entered thereafter in favor of Harris and against plaintiffs. Plaintiffs were granted leave to file an amended complaint, they did so, and, upon defendant's motion, the amended complaint was stricken on March 15, 1985.

On April 17, 1985, plaintiffs filed their second amended, four-count complaint against defendant. Count I alleged that defendant breached its fiduciary duty of disclosure owed by defendant to plaintiffs based on an alleged principal-agent relationship. Count II charged defendant with violation of certain provisions of the Real Estate License Act of 1983 (Ill. Rev. Stat. 1983, ch. 111, pars. 5818(e)(1), (e)(3), (e)(5), (e)(15), (e)(18)) and Rule Vof the Department of Registration and Education enacted pursuant to the Real Estate License Act. Count III alleged a violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 262) and a violation of section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 312). Count IV claimed a tortious interference with a prospective business advantage.

On June 13, 1985, the trial court granted defendant's motion to strike all four counts of plaintiffs' second amended complaint for failure to state a cause of action, pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615), and entered its order striking same. Thereafter, plaintiffs indicated their election to stand on their second amended complaint. On August 21, 1985, the trial court entered its final order dismissing plaintiffs' cause of action against defendant, and this appeal followed.

For purposes of ruling on a motion to dismiss, all well-pleaded facts contained in a complaint must be taken as true and all inferences therefrom must be drawn in favor of the nonmovant. (Palatine National Bank v. Charles W. Greengard Associates, Inc. (1983), 119 Ill. App. 3d 376, 456 N.E.2d 635.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts ...


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