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06/23/95 ROBERT L. GREINER v. DOMINICK'S FINER

June 23, 1995

ROBERT L. GREINER, PLAINTIFF-APPELLANT,
v.
DOMINICK'S FINER FOODS, INC., A DELAWARE CORPORATION, DOMINICK DIMATTEO, JR., LA SALLE NATIONAL BANK AS TRUSTEE UNDER TRUST NO. 54204, S.D.M., INC., AN ILLINOIS CORPORATION A/K/A S.D.M. REALTY, INC., AN ILLINOIS CORPORATION, SALVATORE DIMUCCI, OAK PARK TRUST & SAVINGS BANK AS TRUSTEE UNDER TRUST NO. 9234, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. 87 L 13949. The Honorable Ian H. Levin, Judge Presiding.

The Honorable Justice Zwick delivered the opinion of the court: Egan, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

JUSTICE ZWICK delivered the opinion of the court:

Plaintiff instituted this action seeking recovery of a commission allegedly due on the sale of a parcel of real property by defendants Dominick's Finer Foods, Inc., Dominick DiMatteo, Jr., and La Salle National Bank (the DiMatteo defendants) to defendants S.D.M. Realty, Inc., Salvatore DiMucci, and Oak Park Trust & Savings Bank (the DiMucci defendants). After the DiMatteo defendants had been dismissed from the action, the trial court granted summary judgment in favor of the DiMucci defendants, finding that the agreement for payment of a commission to plaintiff was void and unenforceable because it was contrary to the provisions of the Real Estate Brokers and Salesmen License Act and its successor the Real Estate License Act of 1983. Plaintiff filed a motion for reconsideration of the court's ruling and a motion for leave to file an amended complaint. The trial court denied both of these motions, and plaintiff has appealed.

Plaintiff's action arose from the sale by the DiMatteo defendants to the DiMucci defendants of an 18-acre parcel of property located in DuPage County. Plaintiff claims that in the fall of 1982, he entered into an oral agreement with the DiMatteo defendants for payment of a 10% commission if plaintiff was instrumental in procuring a purchaser of the subject property. This commission was to be paid at the closing of any sale or upon execution of a contract to purchase the property. In December 1982, plaintiff procured the DiMucci defendants as prospective purchasers of the property, and the DiMucci defendants tendered a proposed written contract for the purchase of the property to the sellers. At this time, plaintiff was a licensed real estate salesperson employed by Olga S. Kowaliuk, a licensed real estate broker and the owner of Suburban Industrial Realty Company. This tendered contract was not accepted by the sellers, and after the initial contract was submitted, plaintiff was not involved in the negotiations between the parties.

Eighteen months later, on May 29, 1984, the DiMatteo defendants and the DiMucci defendants entered into a contract, the articles of agreement for deed, for the sale of the property to the DiMucci defendants. At the time the articles of agreement was executed by the buyers and sellers of the property, plaintiff was a licensed real estate salesperson sponsored by Brooks Kellogg, a licensed real estate broker and part owner of Plaza Partners, Inc.

The articles of agreement executed by the buyers and sellers included a provision which stated as follows:

"Seller represents to the Buyer that it has not dealt with any real estate broker or any other party that may be entitled to a brokerage commission or finders fee in connection with any aspect of this Agreement or the transaction contemplated hereby and agrees to indemnify and hold the Buyer harmless from any liability arising out of a breach of said representation. Buyer represents that the only broker that it has dealt with that may be entitled to a brokerage commission is Robert Grenier [sic] and that no other party is entitled to brokerage commission or finders fee in connection with this Agreement or the transaction contemplated hereby. Buyer agrees to pay any commission or fee due Robert Grenier [sic] and agrees to indemnify and hold Seller harmless from and against any claim for commission or fee by Robert Grenier [sic] or from any liability arising out of a breach of Buyer's representation hereunder."

On June 6, 1985, the articles of agreement were amended by the parties to increase the purchase price, originally $1,400,000, to $1,416,500.

The DiMucci defendants ultimately purchased the subject property in June 1987. Plaintiff was not informed by either party of the sale of the property until after the closing, and no real estate commission was ever paid to plaintiff for his efforts in locating a buyer.

Plaintiff initially filed a three-count complaint against the DiMatteo and the DiMucci defendants, asserting that they were liable to him for a commission on the sale of the property. Count I was directed against the sellers of the property and alleged that they had breached an oral agreement to pay plaintiff a commission in the amount of 10% of the purchase price in the event that plaintiff was instrumental in procuring a purchaser for the subject real estate. Count II was directed against the buyers of the property and alleged that the buyers had breached their obligation under the sales contract to pay the plaintiff's commission. The claim asserted in Count II was premised upon plaintiff's contention that he was a third-party beneficiary of the sales contract between the buyers and the sellers of the property. Count III sought punitive damages and alleged that the buyers had acted willfully and maliciously in embarking upon a course of conduct designed to interfere with plaintiff's contractual right to the commission on the sale.

The DiMatteo defendants, sellers of the real estate, filed an answer denying the substantive allegations in the complaint and asserting affirmative defenses to plaintiff's claims. These affirmative defenses included the contention that the buyers of the property, the DiMucci defendants, had assumed the obligation to pay any commission due plaintiff. The DiMatteo defendants were voluntarily dismissed from the action in 1990 pursuant to section 2-1009 of the Code of Civil Procedure. 735 ILCS 5/2-1009 (West 1992).

The DiMucci defendants filed a section 2-619 motion to dismiss, asserting that plaintiff was precluded from recovering the commission because he was not a licensed broker at the time he performed services on behalf of the sellers. The DiMucci defendants also asserted that any alleged agreement for payment of a commission between plaintiff and the sellers of the property, the DiMatteo defendants, was void where the licensing statute precluded a salesperson from collecting a commission from any person other than his employing broker.

Plaintiff responded by alleging that he was a licensed/registered real estate salesperson from 1972 through March 1987, and he has been a licensed real estate broker from August 22, 1986 to the present. Plaintiff asserted that during 1981 and 1982 he was sponsored by Suburban Industrial Realty Co. In 1983, plaintiff was sponsored by Brooks L. Kellogg of Plaza Partners, Inc. Plaintiff argued ...


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