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05/04/94 CAROLYN NEWTON v. ROSEMARY AITKEN AND

May 4, 1994

CAROLYN NEWTON, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE AND CROSS-APPELLANT,
v.
ROSEMARY AITKEN AND FRANK FURCH, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS AND CROSS-APPELLEES (VEERASIKKA BOMMIASAMY, PLAINTIFF; EDWARD S. SMITH AND JOAN F. SMITH, DEFENDANTS).



Appeal from the Circuit Court of Lake County, Illinois. No. 90-L-0954. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Inglis, McLAREN, Geiger

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, Drs. Carolyn Newton and Veerasikka Bommiasamy, sued defendants, Rosemary Aitken and Frank Furch, for an accounting and for fraud. The suit arose from two contracts among the parties and others which contemplated joint ownership and use of a property in Mundelein, Illinois, known as Morningside Island, and a property in Chicago, Illinois, located at 6150 North Hamilton. Defendants countersued plaintiff Newton (hereinafter plaintiff) for breach of contract. Neither plaintiff Bommiasamy, nor defendants Smith and Smith, nor the Hamilton Street property is involved in this appeal.

The trial court ordered rescission of the contract between plaintiff and defendants and restitution by defendants to plaintiff of all monies paid under the provisions of the contract. The parties agree that rescission is the appropriate remedy, but both sides appeal the trial court's calculation of restitution.

In addition, defendants contend that they are entitled to damages for breach of contract. Plaintiff further contends that the trial court erred in (1) finding insufficient proof of fraud and breach of fiduciary duty; (2) denying her an accounting; (3) failing to impose a constructive trust upon defendants; and (4) failing to accord plaintiff the status of "owner" of property interests. She also contends that defendants failed to comply with the Illinois Real Estate Time-Share Act (Time-Share Act) (765 ILCS 100/1 et seq. (West 1992)).

Initially defendants contend, and we agree, that plaintiff has waived many of the issues she presents. Plaintiff's complaint sought an accounting and damages for fraud. At trial she raised the issue of fiduciary duty and sought several remedies not pleaded, including constructive trust, contract reformation, and a declaratory judgment. This court has held: "It is a fundamental rule, with no exceptions, that a party must recover, if at all, on and according to the case [she] has made for [herself] by [her] pleadings." ( Broberg v. Mann (1965), 66 Ill. App. 2d 134, 137-38, 213 N.E.2d 89.) Plaintiff never sought to amend her pleadings as to these issues, and therefore they are not properly before this court.

On appeal she adds further claims of violation of the Time-Share Act and breach of contract. Plaintiff failed to plead or present these claims before the trial court and therefore has waived them. Points raised for the first time on appeal do not merit consideration. Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc. (1993), 252 Ill. App. 3d 96, 99, 191 Ill. Dec. 446, 623 N.E.2d 1036.

Rescission of a contract refers to cancellation of the contract so as to restore the parties to the status quo ante, the status before the contract. ( Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528, 127 Ill. Dec. 880, 533 N.E.2d 962.) "Rescission is an equitable remedy, the application of which is left largely to the discretion of the trial court. [Citation.] A reviewing court will not disturb that decision unless it clearly resulted from an abuse of discretion." ( Klucznik v. Nikitopoulos (1987), 152 Ill. App. 3d 323, 327, 105 Ill. Dec. 141, 503 N.E.2d 1147; Felde v. Chrysler Credit Corp. (1991), 219 Ill. App. 3d 530, 539, 162 Ill. Dec. 565, 580 N.E.2d 191.) A court may award rescission where there is material breach, fraud, or mutual agreement. ( Mor-Wood Contractors, Inc. v. Ottinger (1990), 205 Ill. App. 3d 132, 142, 150 Ill. Dec. 444, 562 N.E.2d 1247.) The material breach in this sense refers to a breach with regard to a matter "of such a nature and of such importance that the contract would not have been made without it." Felde, 219 Ill. App. 3d at 539.

In the present case, the trial court based its decision to award rescission on its findings that (1) plaintiff had materially breached the contract by nonpayment, and (2) the parties would not have contracted if plaintiff's nonpayment had been anticipated. The court further considered that neither party desired to continue the contract and that division of the property would be impractical. Under these circumstances, we find no abuse of discretion and therefore affirm the trial court's order of rescission.

The remedy of rescission contemplates voiding the contract as if it had never existed, returning the parties to their precontract status. ( Puskar, 179 Ill. App. 3d at 528.) A court will not grant rescission of a contract where the status quo ante cannot be restored. Klucznik, 152 Ill. App. 3d at 328.

In the present case, the court ordered defendants to pay restitution to plaintiff in the amount of $47,461, the total amount she paid into the real estate venture over the duration of the contract. Plaintiff contends that she is further entitled to interest on the amount she paid in, as well as a proportionate share of the increase in the value of the property. Defendants contend that the trial court failed to account for the benefits derived by plaintiff during the duration of the agreement and that they are entitled to the interest on the monies they expended to cover plaintiff's nonperformance.

Hearkening back to July 1986, before the contract was formed, plaintiff had her money: $47,461. Defendants had their property, free of any obligation to plaintiff. The trial court's order returns to each what he or she had before the contract, and nothing more.

The remedy of rescission generally requires each party to return to the other the value of the benefits received under the rescinded contract. ( Finke v. Woodard (1984), 122 Ill. App. 3d 911, 919, 78 Ill. Dec. 297, 462 N.E.2d 13.) Both parties rely on Finke, arguing that the trial court failed to require the return of the value of the benefits received. This argument, however, as applied to the present case, ignores the equitable and discretionary nature of the remedy of rescission. The trial court ...


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