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10/14/94 MATHIAS G. KLEMP AND MARY JANE KLEMP v.

October 14, 1994

MATHIAS G. KLEMP AND MARY JANE KLEMP, PLAINTIFFS-APPELLANTS
v.
HERGOTT GROUP, INC., AN ILLINOIS CORPORATION, D/B/A CASTLEWOOD DEVELOPMENT COMPANY, AND WASHINGTON NATIONAL DEVELOPMENT COMPANY, A DELAWARE CORPORATION, DEFENDANTS-APPELLEES



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE EVERETTE A. BRADEN, JUDGE PRESIDING.

Cousins, Jr., Murray, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Plaintiffs, Mathias G. Klemp and Mary Jane Klemp, filed an action against defendants, Hergott Group, Inc., d/b/a Castlewood Development Company, and Washington National Development Company, to obtain a declaratory judgment determining that defendants are required to either (1) file and prosecute an action in court seeking a change in the zoning classification of property conveyed by a "real estate contract" from R-3 to R-4, or (2) authorize plaintiffs to file and prosecute such an action. Plaintiffs also sought a judgment against defendants on a note in the amount of $500,000 for breach of contract. Previously, defendants had filed an application with the Village of Highland Park to rezone the subject property from R-3 to R-4 under the Village's zoning ordinance which the City Council of Highland Park denied. In court, plaintiffs sought to prove that, pursuant to the parties' real estate contract, defendants were required to appeal the City Council of Highland Park's decision to deny their zoning request. The trial court denied plaintiffs motion for partial summary judgment and then, at trial, entered an order granting defendants' motion for a directed finding in defendants' favor on all of plaintiffs' claims. On appeal, plaintiffs contend that the trial court erred in: (1) denying their motion for partial summary judgment, and (2) entering a directed finding in favor of the defendants.

We affirm.

BACKGROUND

On April 22, 1988, plaintiffs entered into a real estate contract with defendants whereby defendants purchased from plaintiffs approximately 15.24 acres of vacant land located in Highland Park, Illinois. Although the parties' written agreement provided that the purchase price was $2,500,000, the agreement also provided that $500,000 of the purchase price was contingent on and would only become due in the event that defendants successfully obtained a rezoning classification of the subject parcel from the City Council of Highland Park. Pursuant to the parties' written agreement, defendants agreed to use their "best efforts" to obtain the rezoning classification until their zoning request was denied and the decision of the Village of Highland Park became final, in which case their obligation with respect to the $500,000 would be cancelled.

After the conveyance of the property, defendants filed an application with the City Council of Highland Park to change the zoning of the subject property from a classification of R-3, low density residential lots of approximately 40,000 square feet, to a classification of R-4, low to moderate density residential lots of approximately 20,000 square feet. On February 27, 1989, the City Council unanimously denied defendants' request to rezone the subject property. Shortly thereafter, defendants subdivided the property into one acre lots pursuant to the R-3 zoning classification, constructed public roads on the lots, and commenced the development and sale of the lots for single family homes.

On November 6, 1989, plaintiffs filed a two count complaint for declaratory judgment against defendants in the circuit court of Cook County seeking: (1) a judgment requiring defendants to either file and prosecute a legal action challenging the City Council's zoning classification of the subject property or to authorize plaintiffs to file and prosecute such an action, and (2) the $500,000 portion of the purchase fee that was contingent upon the subject property's rezoning. Plaintiffs alleged that defendants were in breach of contract because they had failed to pursue the subject property's rezoning beyond the level of proceedings before the City Council of Highland Park as was required in the parties' written agreement.

In an amended complaint, plaintiffs also pled an entitlement to reformation of the contract based on fraud or a mutual mistake because the language of the parties' written agreement is at variance with the actual intention of the parties which resulted from a mutual mistake of fact or an understanding and agreement on the part of the plaintiffs that judicial review was to be available, of which defendants had knowledge but concealed that they had no intention of pursuing or authorizing such judicial review.

On November 26, 1990, plaintiffs filed a motion for partial summary judgment on their claims that they were entitled to a declaratory judgment finding that defendants are required to file a lawsuit seeking a reclassification of the City Council's zoning of the subject property and that they were entitled to recover on the $500,000 "installment note" the payment of which was contingent on defendants successfully obtaining the subject property's zoning reclassification from the City Council. Defendants filed a cross-motion for summary judgment. On January 18, 1991, the trial court denied both parties' motions and set the case for trial.

After plaintiffs' case-in-chief, the trial court entered an order granting defendants' motion for a directed finding and entered a judgment in favor of defendants and against plaintiffs on all four of plaintiffs' claims. Plaintiffs appeal from both the order entered denying their motion for partial summary judgment and the order granting defendants' motion for a directed finding.

I.

Initially, plaintiffs contend that the trial court erred in denying their motion for partial summary judgment. In their briefs, plaintiffs do not raise any arguments in support of this claim. However, since plaintiffs have raised this claim in their notice of appeal, we elect to address it.

Defendants argue that the result of a trial court's denial of a motion for summary judgment is merged by law into the subsequent trial. (See Battles v. LaSalle National Bank (1992), 240 Ill. App. 3d 550, 558, 608 N.E.2d 438, 181 Ill. Dec. 365.) We agree.

Under Illinois law, the denial of a motion for summary judgment or partial summary judgment is not reviewable following an evidentiary trial, because the result of any error in such denial is merged in the subsequent trial. See Thurmond v. Monroe ...


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