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02/21/89 Thomas Perkins Et Al., v. James J. Collette Et Al.

February 21, 1989

THOMAS PERKINS ET AL., PLAINTIFFS-APPELLANTS

v.

JAMES J. COLLETTE ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1312, 179 Ill. App. 3d 852, 128 Ill. Dec. 707 1989.IL.205

Appeal from the Circuit Court of Du Page County; the Hon. John Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. REINHARD, J., concurs. JUSTICE INGLIS, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiffs, Thomas and Eileen Perkins, brought an action against defendants, James Collette, Adele Collette, and Century 21 Plaza Real Estate, for rescission of a real estate sales contract and damages. Plaintiffs alleged that James Collette, an agent of Century 21 Plaza, fraudulently represented that if they purchased a vacant lot which the Collettes owned, they would be able to build a house on the lot. The circuit court of Du Page County dismissed plaintiffs' original and first amended complaints primarily on the basis that any misrepresentations made by James Collette were misrepresentations of law upon which plaintiffs were not entitled to rely. Plaintiffs contend on appeal that the trial court erred by concluding that Collette's misrepresentations were ones of law, not fact, and by dismissing their complaints. We reverse and remand.

Plaintiffs filed a four-count complaint alleging fraud on February 5, 1987. The complaint also alleged a breach of fiduciary duty on the part of James Collette in his capacity as a real estate broker. The Collettes subsequently filed a counterclaim for installment payments allegedly due and owing under the contract. The trial court dismissed the complaint on September 22, 1987.

Although the trial Judge stated on the record that the above dismissal was with prejudice, he also stated that plaintiffs would have leave to file an amended complaint employing any legal theories not set forth in the original complaint. The trial Judge denied plaintiffs' motion to reconsider on October 19, but allowed plaintiffs leave to file an amended complaint within 45 days. Since dismissing a case with prejudice means that plaintiff will not be permitted to plead over and the litigation is terminated (O'Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 133, 484 N.E.2d 834, 836), it is apparent that the trial Judge mischaracterized the September 22, 1987, dismissal order. Accordingly, we will ignore that characterization and consider the September 22 order as a dismissal without prejudice.

Plaintiffs subsequently filed an amended complaint in which they alleged as follows. On or about September 26, 1981, plaintiffs met with James Collette at the Century 21 Plaza office in Villa Park. Plaintiffs told Collette that they wanted to purchase a vacant lot and build a home on the lot. Collette showed them a vacant parcel of land which was listed for sale by Century 21 Plaza. He informed plaintiffs that the lot was a suitable place to build a home. James and Adele Collette owned this parcel of land.

On October 3, 1981, plaintiffs executed a sales contract in which they agreed to purchase the lot for $14,000. Plaintiffs paid $2,000 in earnest money to Century 21 Plaza at this time. The parties held an interim closing on November 13, 1981, during which plaintiffs and the Collettes executed articles of agreement for deed. Plaintiffs paid an additional $5,216 at this time. After the closing, Thomas Perkins asked James Collette whether Perkins would be able to obtain a building permit for the lot. Collette told Perkins that it would be no problem for him to obtain such a permit.

Thomas Perkins requested an application for a building permit from Thomas Miller, the Du Page County supervisor of zoning enforcement, on September 9, 1983. Miller told Perkins that James Collette had previously submitted an application for a building permit for the subject property which had been denied and that the Perkins' application would be denied as well. Upon discovering that they could not obtain a building permit for the property, plaintiffs sent the Collettes a notice of rescission of the articles of agreement for deed. On or about October 24, 1983, plaintiffs received a letter from the attorney for the Collettes. The letter stated that the Collettes had filed a lawsuit against the County of Du Page. According to the amended complaint, the lawsuit was still pending in the circuit court of Du Page County, and no progress had been made.

The amended complaint further alleged that James Collette knew that the vacant lot was not a suitable place to build a home and that plaintiffs could not obtain a building permit for the lot, but deliberately concealed these facts from plaintiffs. Collette was an employee of Century 21 Plaza and was acting as its agent.

Although the amended complaint did not incorporate the allegations of the original complaint, the six counts of the amended complaint are numbered V through X. Counts V and VI are directed against James Collette and seek rescission on the basis of unilateral mistake and mutual mistake. Counts VII and VIII are directed against Adele Collette and seek rescission on the same grounds. Count IX is directed against James Collette and requests damages and the imposition of a constructive trust as a result of his alleged fraudulent misrepresentations in violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.). Count X is directed against Century 21 Plaza and is also premised upon alleged violations of the Act.

The circuit court dismissed plaintiffs' amended complaint with prejudice in an order dated April 20, 1988. The Collettes' counterclaim was still pending at this time. The trial court included the requisite language in the April 20 order to render it appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiffs filed a timely notice of appeal and subsequently filed an amended notice of appeal.

The amended notice of appeal states that plaintiffs are appealing from the September 22, 1987, order dismissing the original complaint, the October 19, 1987, order denying plaintiffs' motion to reconsider the aforesaid dismissal, and the April 20, 1988, order dismissing their amended complaint. This court only has jurisdiction to review the latter order because it is the only order containing the requisite language under Rule 304(a) (107 Ill. 2d R. 304(a)). Furthermore, by filing an amended complaint, plaintiffs waived any objection to the dismissal of their original complaint. (Foxcroft Townhome Owners ...


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