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06/03/94 STEVE RELANDER v. PHOENIX MUTUAL LIFE

June 3, 1994

STEVE RELANDER, PLAINTIFF-APPELLANT, DONALD E. BELL AND VERLIE E. BELL, PLAINTIFFS,
v.
PHOENIX MUTUAL LIFE INSURANCE COMPANY AND KEVIN EMERICK, INDIVIDUALLY, AND D/B/A KEVIN EMERICK FARMS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 21st Judicial Circuit, Mercer County, Illinois. No. 92-CH-3. Honorable Edward Keefe, Judge, Presiding

Rehearing Denied July 11, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The primary issue presented on appeal is whether the trial court erred in refusing to allow the plaintiff to amend his complaint after a summary judgment had been entered disposing of all the plaintiff's claims against the defendant, a Supreme Court Rule 304(a) finding of appealability (134 Ill. 2d R. 304(a)) had been made in connection with the summary judgment, and the time for appealing from that judgment had passed without the plaintiff filing a motion for leave to amend his complaint. We hold that under the facts of this case the trial court properly refused to allow the plaintiff to amend his complaint.

FACTS

This case arose out of a conflict over the sale of real estate. The record shows that in December 1991, plaintiff Steve Relander received a letter from defendant Phoenix Mutual Life Insurance Co. listing numerous parcels of farm real estate for sale. The farm at issue was listed for $275,000. In mid-January 1992, Relander informed the vice-president of Phoenix, Bill Myers, that he had clients who wanted to buy the farm for $260,000. The two negotiated the terms of the sale. Myers prepared a sales contract entitled "Offer to Purchase Farm Real Estate from Phoenix Mutual Life Insurance Company" and sent the document along with a cover letter to Relander. The cover letter stated:

"Enclosed herewith are three copies of the proposed Offer to purchase for your review. If as agreed, promptly have two copies dated, signed and return to us * * * We also need the earnest money check of $10,000 payable to Phoenix Mutual."

The document further provided that the offer shall be deemed accepted only when Phoenix executes the form of acceptance provided in the document. The document also stated that the broker agrees that no commission shall be considered earned or payable unless and until the sale is actually consummated by the recording of a deed from Phoenix to the purchaser.

After making several non-material changes, Relander's clients, Donald and Verlie Bell, signed the "Offer to Purchase" and returned it to Phoenix along with $10,000. Myers received the Bells' check and the "Offer to Purchase," but that document was never signed on behalf of Phoenix. That same day, Myers spoke with Emerick (who had been renting the farm in question) and the two verbally agreed that Emerick would purchase the property for $261,000. Myers told Emerick to come into the office to sign a purchase offer and bring an earnest money check. Emerick eventually purchased the property.

Thereafter, Relander and the Bells filed this lawsuit against Phoenix alleging a written agreement for the purchase of real estate between the Bells and Phoenix. The plaintiffs also sued defendant Kevin Emerick. Emerick filed, inter alia, a counterclaim against the plaintiffs for tortious interference with contract. Judge Joseph Beatty granted Phoenix's summary judgment motion to dismiss the plaintiffs' complaint finding that the alleged contract to purchase was unenforceable under the statute of frauds because Phoenix did not execute the document.

Thereafter, various motions for clarification and for reconsideration were filed. Relander's motion to reconsider the granting of summary judgment was denied on October 30, 1992, and the order denying the motion to reconsider contained a Rule 304(a) finding. In 1993, Judge Edward Keefe replaced Judge Beatty as trial Judge for the case. On March 15, 1993, Judge Keefe entered an order clarifying a previous ruling made by Judge Beatty on Emerick's counterclaim. That ruling served to inform the parties that Judge Beatty's previous order should not be construed as having disposed of Emerick's counterclaim. On July 1, 1993, Relander filed his motion for leave to amend his complaint to allege quantum meruit for the services he rendered to Phoenix in procuring a ready, willing and able buyer. Relander filed this motion to amend eight months after the expiration of the 30-day period to file a notice of appeal from the denial of the motion to reconsider. Judge Keefe denied the plaintiff's motion to amend the complaint, finding that the summary judgment order rendered the proposed amended complaint res judicata. The court further ruled that language in the proposed contract providing that no commission could be paid unless the sale was consummated by "the recording of a deed," negated the cause of action in quantum meruit.

ARGUMENT

On appeal, Relander argues that the trial court's res judicata finding was erroneous because the actual order granting summary judgment was not made final and appealable and that even if it was, the court was still required to use its ...


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