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09/30/94 BEAR KAUFMAN REALTY v. SPEC DEVELOPMENT

September 30, 1994

BEAR KAUFMAN REALTY, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
SPEC DEVELOPMENT, INC., AN ILLINOIS CORPORATION, PAPPAGEORGE HAYMES, LTD., AN ILLINOIS CORPORATION, JAMES BOLDUC, WILLIAM R. GURTIN, AND KAY L. GURTIN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Thomas J. O'Brien, Judge Presiding

Rehearing Denied January 19, 1995. As Corrected October 13, 1994.

Tully, Cerda, Greiman

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiff, Bear Kaufman Realty, Inc. (hereinafter referred to as "Bear Kaufman"), filed a five-count complaint in chancery against defendants, Spec Development, Inc. (hereinafter referred to as "Spec"), Pappageorge Haymes, Ltd., James Bolduc, and William and Kay Gurtin (hereinafter collectively referred to as "the Gurtins"). Subsequently, plaintiff filed a first amended complaint which alleged claims for breach of contract, fraud, conspiracy and sought the imposition of a constructive trust. Pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-615 (now 735 ILCS 5/2-615 (West 1992))), the circuit court dismissed plaintiff's first amended complaint as against Spec for failure to state a claim upon which relief may be granted. Plaintiff appeals from the order dismissing its claim against Spec pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

In August of 1988, Michael Kaufman, a Bear Kaufman principal and a licensed Illinois real estate broker was engaged by the Gurtins. Kaufman accompanied the Gurtins to a two-unit townhome in a Spec development. The Gurtins admired the property and requested of Kaufman that he arrange a meeting with a Spec representative. In September of 1988, Kaufman contacted James Bolduc, a Spec agent and indicated he had a "young investment banking couple" who could be interested in purchasing a unit. Bolduc then informed Kaufman that Spec would pay a "standard brokerage commission of 5%" if a deal with "the young investment banking couple" or any other of plaintiff's clients was closed.

In September 1988, the Gurtins attended a developer's open house at the site. Although they signed the visitor's register, the Gurtins omitted listing plaintiff as their broker.

In October 1988, the Gurtins submitted an offer directly to Spec for the purchase of one of the townhomes. Spec reduced the selling price based upon the Gurtins' representations to Spec that they were "no longer working with a broker" and, therefore, no commissions would be due. This transaction was consummated in December 1988.

After both the Gurtins and Spec executed a sale contract, but prior to the closing, Kaufman contacted Bolduc and advised him that the Gurtins were the "young investment banking couple" he had referred to earlier. Kaufman advised Bolduc that he had originally directed the Gurtins to the Spec property and was thus entitled to a brokerage commission as previously agreed. Bolduc refused to pay plaintiff a commission asserting that neither Kaufman nor the Gurtins had informed Bolduc or any other Spec agent of their previous brokerage arrangements and that further, Spec had no reason to know that the Gurtins were the specific "young investment banking couple" Kaufman had referred to.

We note initially that plaintiff presented neither argument nor authority in support of its request that we consider the circuit court's dismissal of count II (fraud) and count III (conspiracy) contained in its first amended complaint. " point raised but not argued or supported by citation to relevant authority fails to meet the requisites of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), and, therefore, is deemed waived." ( In re Marriage of Isaacs (1994), 260 Ill. App. 3d 423, 431, 632 N.E.2d 228, 198 Ill. Dec. 169.) Thus, we find these issues waived. We review the dismissal of plaintiff's first amended complaint only as to count V (breach of contract) and count I (constructive trust).

The sole issue presented by this appeal is plaintiff's contention that the trial court erred in dismissing its first amended complaint. "In considering the trial court's dismissal of a complaint, the standard of review is de novo. We must determine whether the complaint, when viewed in a light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action for which relief may be granted and all well-pleaded facts must be accepted as true." ( Harris v. Chicago Housing Authority (1992), 235 Ill. App. 276, 277-78, 601 N.E.2d 1011, 176 Ill. Dec. 313.) Thus, if there is any evidence in the record that supports plaintiff's position that it is entitled to a real estate commission, such evidence must be submitted to a jury.

Plaintiff is not basing its claim for commission on a written contract since clearly no such contract existed. Instead, plaintiff bases its claim for commission upon Spec's breach of an oral contract. A broker is entitled to assert a claim for and recover commissions upon an oral contract ( Stone v. Brown (1987), 162 Ill. App. 3d 405, 515 N.E.2d 384, 113 Ill. Dec. 575) ...


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