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08/25/88 Paine/Wetzel Associates, v. Gerald A. Gitles Et Al.

August 25, 1988

PAINE/WETZEL ASSOCIATES, INC., PLAINTIFF-APPELLANT

v.

GERALD A. GITLES ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

528 N.E.2d 358, 174 Ill. App. 3d 389, 123 Ill. Dec. 813 1988.IL.1310

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Paine/Wetzel Associates, Inc., is a real estate broker. Defendant La Salle National Bank, as trustee under trust No. 109325, owns certain real estate held in trust for the benefit of defendant G & K Partners. Defendant American National Bank & Trust Company of Chicago, as trustee under trust No. 62905, is a co-owner of the property, held in trust for the benefit of defendant CGV Partners. Defendants Gerald Gitles and Donald Kahan are the general partners for the beneficiary-limited partnerships.

Plaintiff brought an action in the circuit court of Cook County against defendants. Plaintiff alleged that the beneficiaries owed it a brokerage commission for services rendered. Plaintiff alleged further that its brokerage agency agreement with the beneficiaries created a lien on the property to secure payment of the commission. Plaintiff sought, inter alia, a declaration that it held a lien on the property. The trial court, sua sponte, dismissed that portion of the complaint seeking the declaration of the lien. Plaintiff appeals, contending that the dismissed count: (1) stated a cause of action generally for a declaratory judgment and (2) stated a cause of action specifically for a declaration that it holds a lien on the property.

We reverse and remand.

Background

Defendants answered the complaint; the parties filed other pleadings. However, the trial court, sua sponte, dismissed one count of the complaint. The record shows that the trial court dismissed the count for being substantially insufficient at law. Therefore, we will consider this appeal as though it were a dismissal under section 2-615(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615(a)). In determining whether to allow a motion to dismiss, a court must take all well-pled allegations of fact contained in the complaint, and in any attached exhibits incorporated into the complaint, as true and construe all reasonable inferences therefrom in the plaintiff's favor. Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 422 N.E.2d 86, 89.

Plaintiff alleged that defendant Kahan retained it to procure a buyer or tenant for real estate located at 4800 South Central Avenue in Chicago, Illinois. The brokerage agreement, signed June 11, 1985, provided that if Kahan independently sold or leased the property, then plaintiff would still be entitled to a commission. Further, in the event of Kahan's independent sale or lease of the property, the brokerage agreement granted plaintiff a lien on the property to secure payment of the commission.

Pursuant to the brokerage agreement, Kahan represented to plaintiff that he was authorized to enter into the agreement. The agreement further provided that if a land trust was involved, then all of the beneficiaries would be jointly and severally liable for plaintiff's commission. Plaintiff alleged that Kahan was, in fact, authorized to enter into the agreement on behalf of the beneficiaries of the land trusts. Plaintiff further alleged that the beneficiaries possessed the right to direct a conveyance from or by the land trusts.

In March or April of 1987, defendants independently sold or leased the property. Plaintiff alleged that as a result, it was entitled to a commission of at least $300,000.

Plaintiff filed its two-count complaint on May 4, 1987. Alleging the foregoing facts, count I sought a declaration that plaintiff holds a lien on the property to secure payment of the commission. Count II sought damages in the amount ...


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