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03/16/88 Michael Pepper, v. John L. Marks Et Al.

March 16, 1988





522 N.E.2d 688, 168 Ill. App. 3d 253, 119 Ill. Dec. 26 1988.IL.357

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.


Plaintiff Michael Pepper appeals from the trial court's judgment entered in favor of defendants John Marks and Anvan Realty and Management Company in plaintiff's suit seeking rescission and damages for fraudulent misrepresentation. On appeal, plaintiff contends that the trial court abused its discretion by improperly granting two motions in limine. Plaintiff further seeks reversal of the trial court's order which effectively excludes all evidence relevant to plaintiff's cause of action. Anvan Realty has failed to appear or file a brief in this court, but we shall consider the merits of the appeal as to Anvan Realty. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

According to the pleadings, plaintiff entered into negotiations for the purchase of a townhouse from Anvan in spring of 1982. Marks was an employee of Anvan. In July 1982, plaintiff learned that several condominium projects were reducing their prices by means of a real estate auction. Plaintiff questioned Anvan and Marks about the possibility of an auction of Anvan's remaining townhouse units in July 1982. Plaintiff was told that defendants knew of no auction planned and that there would be no significant price reduction before spring 1983.

Plaintiff met with Marks on August 12, 1982, and again asked about an auction or a significant price reduction. Plaintiff stated that he would not execute a contract to purchase the unit if an auction was to be held. At that meeting, Marks denied plans for an auction of any unsold units. Plaintiff executed and delivered a contract for the purchase of the townhouse on August 12, 1982.

The closing for the unit took place on September 8, 1982. Prior to closing, on September 3 and September 7, plaintiff again inquired as to whether an auction was planned and was informed that neither an auction nor a rental program was contemplated by Anvan.

Shortly following plaintiff's closing and the payment of the purchase price, Anvan announced the auction of 21 townhouses, some identical to plaintiff's, at greatly reduced prices. On September 18, 1982, plaintiff demanded rescission of the contract and defendants refused.

Plaintiff filed a complaint alleging that the statements made by Marks on August 12, 1982, were false and made with the knowledge of their falsity. Plaintiff claimed that he relied on such statements in executing the contract and further alleged that he would not have closed on the purchase if he had known defendants were planning an auction of the unsold units.

The first count of plaintiff's complaint sought rescission. Since the time of the complaint, however, plaintiff has sold the townhouse and has withdrawn his claim for rescission. Thus, we need only address count II of the complaint, seeking damages against Marks and Anvan.

Trial for this cause was set for June 9, 1987. On June 5, 1987, Marks filed two motions in limine. One motion sought to exclude as irrelevant testimony concerning any representations made after August 12, 1982, the date plaintiff executed the contract to purchase the unit. The other motion sought to exclude testimony of representations made prior to August 16, 1982, the date on which a contract was executed between Real Estate Auctions, Inc., and Anvan for the auction of Anvan's unsold units. Marks maintained that any statements made prior to August 16 were merely statements of future intentions and not actionable under Illinois law.

Following the hearing, the trial court granted both motions. As to the statements made after August 12, 1982, the court held that as of August 12, plaintiff was contractually bound to purchase the unit, and any statements or representations made after that date could have no bearing on plaintiff's decision to enter into the contract. Regarding representations about the auction made before August 16, 1982, the trial court held that such statements expressed future intentions which do not support fraud in Illinois and all statements made before this date were therefore excluded. Upon hearing these rulings, ...

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