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11/21/94 BARRY MOGUL AND ASSOCIATES v. TERRESTRIS

November 21, 1994

BARRY MOGUL AND ASSOCIATES, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE,
v.
TERRESTRIS DEVELOPMENT COMPANY, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 91-L-1758. Honorable Jack Hoogasian and Honorable Bernard E. Drew, Jr., Judges, Presiding.

Released for Publication December 29, 1994. Petition to Leave to Appeal Denied February 1, 1995.

Quetsch, Woodward, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Plaintiff, Barry Mogul & Associates, Inc., brought this action against defendant, Terrestris Development Company, seeking recovery of a broker's commission allegedly due in connection with the sale of a certain parcel of land located in Lincolnshire. Defendant filed a five-count counterclaim alleging: breach of fiduciary duty (count I), negligent misrepresentation (count II), violation of the Real Estate License Act of 1983 (225 ILCS 455/1 et seq. (West 1992)) (count III), fraudulent misrepresentation (count IV), and violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)) (count V). The case proceeded to a jury trial on count I of plaintiff's amended complaint seeking recovery pursuant to a written commission agreement and on all five counts of the counterclaim. Prior to trial the trial court dismissed count II of plaintiff's amended complaint, which sought recovery in quantum meruit, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)). The jury returned verdicts in favor of defendant on count I of plaintiff's amended complaint and in favor of plaintiff on defendant's counterclaim.

On appeal plaintiff contends that the trial court erred in dismissing count II of its amended complaint seeking recovery in quantum meruit. Plaintiff further contends that the trial court erred in denying its post-trial motion for entry of a judgment notwithstanding the verdict or, alternatively, for a new trial, on count I of its amended complaint. Defendant cross-appeals seeking a new trial on its counterclaim. Defendant contends that the trial court committed error in excluding certain evidence and refusing to give certain jury instructions.

According to the allegations of plaintiff's original and amended complaints, plaintiff is a commercial real estate brokerage firm and defendant is in the business of developing real estate. Late in 1988 or early in 1989, representatives of plaintiff and defendant discussed the possibility of plaintiff procuring a buyer for a parcel of land in Lincolnshire owned by defendant. Shortly thereafter, plaintiff introduced a prospective buyer, Baxter Homes, Inc. (Baxter), to defendant. Plaintiff worked closely with defendant and Baxter to accomplish a sale of the property. On March 23, 1989, representatives of defendant and Baxter signed a letter of intent documenting their intention to enter into an agreement for the sale of the property to Baxter for the sum of $6,480,000 and on May 23, 1989, defendant and Baxter executed a real estate sale agreement.

Defendant sent plaintiff a letter agreement, dated May 10, 1989, and signed by defendant's president, Dennis Cortesi, which provided, in pertinent part:

"This will confirm our agreement concerning the broker's commission ('Commission') which shall become due upon sale of the [Lincolnshire property] pursuant to an agreement executed or to be executed by and between the undersigned, as Seller, and Baxter Homes, as Purchaser (the 'Agreement').

In consideration of services rendered by you as real estate broker in connection with the captioned transaction, and as procuring cause thereof, we hereby agree to pay you, if Closing as defined in the Agreement shall occur, an amount equal to five percent (5%) of all monies received by or credited to the Seller.

The terms and conditions contained herein shall supercede any prior Discussions and agreements between us and shall constitute the sole and entire agreement between us with respect to the [Lincolnshire property]. This letter agreement shall not be amended or modified except in writing executed by us * * *."

Plaintiff's president signed the commission agreement on plaintiff's behalf on May 24, 1989.

Plaintiff alleged that defendant and Baxter were unable to complete the sale in accordance with the terms of their May 24, 1989, agreement because of delays in obtaining zoning approval for Baxter's proposed development of the property and because of "the subsequent decreasing availability of capital." Plaintiff alleged, however, that defendant and Baxter ultimately proceeded with the sale, which "was structured through a series of limited partnership deals" and defendant or an entity controlled by defendant received $4,730,000 in cash and an "equity interest" (the complaint does not specify in what) worth at least $2,480,000.

In count I of its original complaint, plaintiff alleged it performed all of the conditions it was required to perform under the May 24, 1989, commission agreement and was entitled to a commission in the amount of $324,000. In count II, plaintiff alleged that it was the procuring cause of the sale and sought recovery in quantum meruit. Defendant moved to dismiss count II pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). In support of its motion, defendant pointed out that count II incorporated allegations showing that an express contract existed governing plaintiff's right to a commission. Defendant argued that the existence of an express contract precluded recovery in quantum meruit; plaintiff's recovery, if any, must be in accordance with the contract. The trial court granted the motion to dismiss, but granted plaintiff leave to amend.

Plaintiff thereafter amended its complaint. In count II plaintiff added the following allegations:

"12. * * * If 'closing as defined in the agreement,' as stated in the [commission agreement] did not occur, the commission agreement was null and void and was no longer in ...


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