APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
Trustee under Trust No. 109529, et al.,
520 N.E.2d 1129, 167 Ill. App. 3d 154, 117 Ill. Dec. 778 1988.IL.295
Appeal from the Circuit Court of Du Page County; the Hon. James W. Jerz, Judge, presiding.
PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and NASH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG
Plaintiff, La Salle National Bank, as trustee under Trust No. 109529, appeals from two June 22, 1987, orders of the circuit court of Du Page County. The first order granted the motion of counterplaintiff, Jerold A. Borg (Borg), for partial summary judgment. It also entered judgment on plaintiff's first amended complaint in favor of defendants, Paul Vega (Paul), as trustee under the Mel Vega Trust; Paul Vega, as independent administrator of the decedent's estate of Mel Vega (Mel); and Richard Vega (Richard), as trustee under the Marie Vega Trust. The second order denied plaintiff's petition for rehearing and dismissed both counts of plaintiff's first amended complaint (without vacating the portion of the first order entering judgment for defendants on both counts of the same first amended complaint).
Plaintiff's first amended complaint alleged the existence of a contract for the sale of real estate between it and Mel and sought specific performance of the alleged contract and damages from defendants for willfully and intentionally breaching it. Borg was permitted to intervene and filed a counterclaim naming plaintiff and defendants as counterdefendants. As finally amended, the counterclaim sought specific performance of a different contract for sale of the same real estate to Borg; a judgment declaring the alleged contract between Mel and plaintiff void and holding it for naught; and, if the alleged contract with plaintiff was "held to be a valid and enforceable contract," damages from defendants for fraud for failure to disclose the contract with plaintiff to Borg.
Borg moved for partial summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(d)) requesting a determination by the court that the alleged contract between plaintiff and Mel was unenforceable because it was not "signed in accordance with its terms and provisions" and because plaintiff abandoned it. The trial court granted partial summary judgment on the basis of the first ground argued by Borg.
In its verified first amended complaint, plaintiff alleged, inter alia :
"The Defendant, MEL VEGA, on March 12, 1985, in his own behalf and in behalf of all the owners of record, entered into a Real Estate Sale Contract (herein 'Contract') with the Plaintiff, a true and correct copy of said Contract is attached hereto and incorporated herein as Exhibit A."
Exhibit A is a document, drafted by counsel for plaintiff, entitled "Real Estate Sale Contract." On the first page of this document appears the date March 12, 1985, and the statement that "Attached Rider is part of this Contract." One of the Rider's provisions states:
"This contract has been executed and presented by an authorized agent for the purchaser, the beneficiaries of the La Salle National Bank, under Trust No. 109529, as Trustee aforesaid for the benefit of the Trust only and not personally. Upon execution of this contract by the Seller, this contract shall be presented to the trust for full execution. Upon the trust's execution, this contract will then be in full force and a copy of ...