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02/11/88 Bank of Pawnee, v. Dennis L. Joslin

February 11, 1988





(Roger Alexander, Defendant and Third-Party, Plaintiff; Village of Pawnee et al.,

Third-Party Defendants-Appellees)

521 N.E.2d 1177, 166 Ill. App. 3d 927, 118 Ill. Dec. 484 1988.IL.174

Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, and the Hon. Richard J. Cadagin, Judges, presiding.


JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.


Defendant -- third-party plaintiff Dennis Joslin appeals the entry of summary judgment against him and in favor of the plaintiff, the Bank of Pawnee (bank), and the third-party defendant the Village of Pawnee (village). Joslin also disputes the denial of his respective motions for summary judgment against both parties. The bank cross-appeals the trial court's computation of interest on its judgment award against Joslin.

We affirm on the liability issues, but reverse as to the interest award.

This case began when the bank instituted suit against Joslin to recover the unpaid balance on a promissory note signed by him. Joslin responded by way of affirmative defense to the complaint, later counterclaiming against the bank and directing a third-party action against the village. Joslin asserted he signed the note in question as an undisclosed agent acting on behalf of the village for the purchase of a building when the owner of that building indicated he would not sell to the village. Joslin contends all parties to this appeal knew of the arrangement, and he had been repeatedly assured there would be no personal liability on his part. The village, however, has never bought the building from him, and the bank obviously has looked to him for full payment under the terms of the note.

We are here concerned with the grant of motions for summary judgment. Judgment may only be summarily entered when, after construing all the facts in the pleadings, affidavits, and depositions in a light most favorable to the nonmoving party, a court may conclude there are no genuine issues of material fact suitable for resolution by trial. (Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 516 N.E.2d 268.) A review of the record is necessary, and for a full grasp of the issues raised, the pleadings in this case must be summarized.

On May 17, 1983, the bank filed its complaint against defendants Dennis L. Joslin and Roger Alexander (who is not a party to this appeal) seeking recovery under a past-due promissory note executed on July 1, 1982, in the principal sum of $19,904.98. Joslin answered on June 27, 1983, raising as affirmative defense that he signed both the note and a renewal as the "undisclosed agent" of the village, a fact he contends was known by the bank. Joslin further asserted by way of affirmative defense the bank never intended to look to him for payment of the note.

The bank on March 8, 1984, moved to dismiss Joslin's affirmative defense. That motion was granted by the court on March 19, 1984, with Joslin given leave to amend within 21 days. Joslin never filed an amended affirmative defense. Instead he filed a counterclaim in three counts against the bank on April 9, 1984. While the counterclaim restated some of Joslin's previous allegations concerning his actions in an undisclosed agency capacity, it was further alleged the village clerk, Carroll Waganer, in his second capacity as loan officer for the bank, represented the bank would furnish all money necessary for the building purchase, and it would not look to Joslin for repayment because he was acting for the village. The bank again responded with a motion to dismiss, also renewing its motion for summary judgment on the complaint.

On May 23, 1984, the trial court granted the bank's motion for summary judgment on its complaint against Joslin, but denied the bank's motion to dismiss the counterclaim. By docket entry that day, the court specifically stayed execution of the judgment until further written order of the court. No final written judgment order was entered until December 23, 1986. As the case progressed, the bank on September 5, 1986, did move for summary judgment on the counterclaim.

Turning now to the pleadings as between Joslin and the bank, on June 27, 1983, a third-party action was initiated against the village, later amended in two counts filed October 11, 1983. Joslin in that amended third-party complaint alleged the village, during an official meeting of the board of trustees in May of 1982, decided to pursue the purchase of a building located immediately adjacent to the current village offices. It was further averred the board at that meeting expressly authorized the village manager, Roger Alexander, to extend an offer or otherwise negotiate for the acquisition of that building. When initial efforts were rebuked by the owner, both Alexander and Waganer, the village clerk, approached Joslin and reached an oral agreement that he act as undisclosed agent on behalf of the village for purposes of contracting to buy the building. Joslin in his third-party complaint further alleged on June 1, 1982, Alexander and Waganer represented to him the village would immediately take title to the building after closing and would pay the purchase price plus all other expenses. Waganer, who again was also a loan officer for the bank, reportedly informed Joslin the bank would furnish all money necessary for the purchase and would not consider him liable under the note.

On July 1, 1982, Joslin executed a personal promissory note evidencing the money advanced to pay for the building. On July 6, 1982, the sale was closed, and Joslin obtained title. However, Joslin alleged the village refused his subsequent demands to buy the building back from him or otherwise fulfill its promised obligations. Joslin in his pleading declared he had acted reasonably in the purchase of the building, relying on the village's assurances it would take title to the building and would reimburse him for all costs and expenses. The third-party complaint concluded Joslin fully performed his portion of the alleged agreement, seeking specific performance indemnification.

The village as third-party defendant on April 29, 1986, filed five affirmative defenses to the amended third-party complaint. Three are pertinent for our purposes. They state: (1) the alleged agency agreement by which Joslin was to purchase real estate on behalf of the village was not evidenced by a writing signed by the village as required under the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 2); (2) the alleged contract by which the village was to purchase the real estate back from Joslin similarly was not reduced to writing; and (3) Waganer and Alexander, as village clerk and manager, respectively, lacked either actual or apparent authority to appoint Joslin as the village's agent, or to appoint someone to purchase real property, and Joslin knew or should have known this.

On August 11, 1986, the village moved for summary judgment, appending to its motion excerpts from certain discovery depositions, the minutes of a village board meeting held September 27, 1982, and copies of village ordinances establishing the duties of its municipal manager. All motions pending at that time, including the bank's motion for summary judgment on the counterclaim and the village's motion for summary judgment on the third-party complaint, were heard before the trial court on September 17, 1986. On that date, the court by docket entry: granted summary judgment in favor of the village and entered summary judgment in favor of the bank on counts I and II of the counterclaim (although that action was filed in three counts).

The bank on October 2, 1986, filed a "motion for partial vacation and/or to reconsider the judgment order of September 17, 1986," essentially requesting amendment of the order by deletion of the "cause stricken" language until such time as the judgment could be reduced to actual damages; otherwise, the bank argued, the order would lack appealability. The court by docket entry on October 16, 1986, so amended the September 17 order. Joslin on October 15, 1986, filed an express motion to reconsider "and for the court to expand the record to include findings of fact and to state Conclusions of law," which was denied on November 12, 1986. A written judgment order entered December 23, 1986, set total judgment in the bank's favor, including principal and interest, at $33,992.40.

Joslin on January 20, 1987, filed a timely notice of appeal from this order. However, this court on April 7, 1987, dismissed the appeal as premature because one count of the counterclaim remained pending, ...

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