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10/13/88 Barbara Jean Landers Et Al v. Doris M. Andrews Fronczek

October 13, 1988

BARBARA JEAN LANDERS ET AL., PLAINTIFFS-APPELLANTS

v.

DORIS M. ANDREWS FRONCZEK ET AL., DEFENDANTS-APPELLEES



On September 9, 1986, plaintiffs filed a motion in the chancery division seeking to consolidate case No. 82 -- CH -- 9769 and case No. 85 -- CH -- 7965. The motion was granted. On November 17, 1986, defendants filed an application for an immediate appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) and a petition for substitution of Judges. On February 4, 1987, the court entered an order denying the motion to vacate the consolidation of the cases and denying the motion to certify the consolidation order for immediate appeal, in accordance with Rule 308. The order allowed the substitution of Judges.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

532 N.E.2d 265, 177 Ill. App. 3d 240, 126 Ill. Dec. 580 1988.IL.1524

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiffs, Barbara Jean Landers and Thomas O. Landers, appeal from the order of the circuit court of Cook County that granted the motion to dismiss case No. 82 -- CH -- 7965 based on res judicata filed by defendants, Doris M. Andrews Fronczek, Gertrude M. Andrews Oscar, and the First National Bank of Evergreen Park, as trustee under trust agreement dated June 18, 1971, and known as trust No. 2288, a corporation, and Harry "Bus" Yourell, registrar of titles. The sole issue for our review is whether the action for specific performance is barred by the doctrine of res judicata.

We reverse and remand.

On November 9, 1982, Barbara Jean Landers, Thomas O. Landers, Lorraine Landers, and Albert T. Gusanders (the latter two plaintiffs are not parties to this appeal) filed their original complaint seeking correction of contract, accounting, and other relief against defendants (case No. 82 -- CH -- 9769). Plaintiffs alleged that the parties had entered into articles of agreement for a warranty deed dated May 19, 1975, for property located at 4521 West 102nd Place, Oak Lawn, Illinois. Plaintiffs claim defendants breached the agreement by the following acts: (1) retaining insurance proceeds for wind damage to the property; (2) modifying the beneficial interest in the subject land trust; (3) failing to deliver the Torrens certificate for the property; and (4) failing to make a proper division of real estate taxes. Plaintiffs also claim that they are entitled to an accounting as to the principal, interest, and taxes paid to defendants. The prayer for relief requested that defendants be ordered to perform the above acts.

On March 16, 1983, plaintiffs filed an amended complaint consisting of four counts. Counts I, II, and III essentially repeated the same allegations as those stated in the original complaint. Count III also sought reformation of the installment agreement so as to allow plaintiffs to prepay all or part of the balance due under the contract. Count IV was an action at law for damages in the amount of $33,594. In this count plaintiffs allege that they had obtained a mortgage to pay the balance due on the agreement, but because defendants failed to provide the required information to the lender, they were unable to secure the mortgage. As a result, there was an increase in the interest rate.

On August 2, 1984, Judge Hechinger entered an order granting plaintiffs the relief they requested. Plaintiffs, on November 1, 1984, were granted leave to file a motion for determination and accounting and a petition to have defendants comply with the order of August 2. Defendants were ordered to comply with the August 2 order within 14 days. Plaintiffs were ordered to file a motion for summary judgment on the accounting issue.

On December 17, 1984, an order was entered finding that the balance due on the installment contract was $37,000. Plaintiffs were given until March 1, 1985, to secure the mortgage. The order further stated that counts I, II, and III were dismissed with prejudice, and that the court would retain jurisdiction to enforce the order. Count IV was transferred to the law division.

On February 28, 1985, the parties appeared before Judge Anthony J. Scotillo in accordance with defendants' pro se motion. The motion sought a court order to close the case pursuant to the court order of December 17, 1984. The motion was stricken on the grounds that the court lacked subject matter jurisdiction.

On July 23, 1985, plaintiffs presented an "Emergency Petition for Order of Issuance of Deed" before Judge Hechinger. They alleged that defendants had failed to comply with the court's orders of August 2 and December 17, 1984. The Judge stated that the court had lost ...


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