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12/20/89 Thomas R. Gold, Jr., Et Al v. Edward R. Dubish Et Al.

December 20, 1989

THOMAS R. GOLD, JR., ET AL., PLAINTIFFS-APPELLANTS

v.

EDWARD R. DUBISH ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

549 N.E.2d 660, 193 Ill. App. 3d 339, 140 Ill. Dec. 9 1989.IL.1982

Appeal from the Circuit Court of Madison County; the Hon. Paul E. Riley, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH and HOWERTON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

This is a permissive interlocutory appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from orders of the circuit court of Madison County which dismissed counts I through VI, XIII through XVIII, XIX through XXIV, and XXV through XXX of plaintiffs' second amended

Plaintiffs, Thomas R. Gold, Jr., Barbara A. Gold and W. Scott Stroder, sought to buy a grocery business from defendants, Edward R. Dubish, Pauline M. Dubish, Edray Foods, Inc., and Edray Dubish Investments, Inc. When the sale was not consummated, plaintiffs brought a damage action against defendants in the circuit court of Madison County. In their second amended complaint, plaintiffs sought recovery based on promissory estoppel, breach of contract, equitable estoppel, and fraud. Defendants moved to dismiss the promissory estoppel, equitable estoppel and breach of contract counts pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) on the grounds that they failed to state a cause of action. At the same time, defendants filed a motion pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) in which they argued that plaintiffs' breach of contract claims were barred by the statute of frauds and that no basis existed for holding defendants liable on the theory of fraud. Defendants also moved to strike plaintiffs' claim for lost profits from those counts of their complaint alleging promissory estoppel, equitable estoppel and fraud.

In an order entered February 17, 1988, the circuit court granted defendants' motion to strike and struck from the complaint all references to lost profits which were contained in the counts regarding promissory estoppel, equitable estoppel and fraud. In the same order, the circuit court dismissed counts I through VI of the complaint, dealing with promissory estoppel, and counts XIII through XVIII, which were premised on equitable estoppel, on the grounds that they failed to state a cause of action. Plaintiffs' claims for breach of contract and fraud were allowed to stand.

Although the circuit court's order specifically found that the counts pertaining to fraud were "appropriately plead and should be answered within thirty (30) days," defendants filed a "Motion to Clarify Court's Order" which claimed that the court had not specifically dealt with the issue of the counts sounding in fraud and asked that those counts be dismissed. Plaintiffs, in turn, filed a motion to reconsider in which they requested that the court reverse its decision and: (a) deny defendants' motion to dismiss those counts of the second amended complaint alleging equitable estoppel and fraud, and (b) reinstate their claim for lost profits under the equitable estoppel and fraud counts. In an order entered on August 25, 1988, the circuit court denied plaintiffs' motion to reconsider, granted the "Motion to Clarify Court's Order" filed by defendants, and dismissed those counts of plaintiffs' second amended complaint which sounded in fraud. On plaintiffs' motion, the circuit court found no just reason for delaying enforcement or appeal (107 Ill. 2d R. 304(a)), and the circuit court's orders of February 17, 1988, and August 25, 1988, are each now before us for review.

Because counts I through count VI and XIII through XVIII of plaintiffs' second amended complaint were dismissed pursuant to a motion filed by defendants under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615), the only question before us with respect to those counts is whether the circuit court erred in concluding that they failed to state a cause of action upon which relief may be granted. (See Wooded Shores Property Owners Association v. Mathews (1976), 37 Ill. App. 3d 334, 337, 345 N.E.2d 186, 189.) As our supreme court has recently reaffirmed, a civil complaint in Illinois is required to plead the ultimate facts which give rise to the cause of action. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438.) Upon a motion to dismiss, all facts properly pleaded in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the nonmoving party. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to recover. Board of Education, 131 Ill. 2d at 438.

Counts I through VI each sought recovery based on the theory of promissory estoppel. This court has recently held:

"'Promissory estoppel is an equitable device invoked to prevent a person from being injured by a change in position made in reasonable reliance on another's conduct. [Citation.] It is a doctrine under which a plaintiff may recover without the presence of a contract, and the courts have permitted suit on this theory in the absence of a contract. [Citation.] To recover under this doctrine, the following elements must be met: (1) a promise, (2) which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (3) which induces such action or forbearance, and (4) which must be enforced in order to avoid inJustice.'" (Phillips v. Britton (1987), 162 Ill. App. 3d 774, 785, 516 N.E.2d 692, 700, quoting Lawrence v. Board of Education (1987), 152 Ill. App. 3d 187, 201, 503 N.E.2d 1201, 1210.)

We believe that these elements have been adequately alleged here.

Counts I through VI are each based on the same series of events, and each contains the same basic substantive allegations. In those counts, plaintiffs allege that from July 14, 1984, until August 16, 1984, they negotiated with defendants to purchase Edray Foods, Inc., and some real estate owned by Edray Dubish Investments, Inc. Defendants Edward R. Dubish and Pauline M. Dubish were co-owners of each of those enterprises. According to the complaint, defendants required that the transfer of the business and real estate be completed on or by September 1, 1984. Plaintiffs, in turn, informed defendants that in order to meet this time requirement, "all ...


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