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06/30/95 EARL L. VUAGNIAUX AND ALICE G. VUAGNIAUX

June 30, 1995

EARL L. VUAGNIAUX AND ALICE G. VUAGNIAUX, PLAINTIFFS-APPELLANTS,
v.
RALPH KORTE AND GARRETT A. BALKE, D/B/A THE EDWARDSVILLE PARTNERSHIP, AN ILLINOIS LIMITED PARTNERSHIP; AND THE CITY OF EDWARDSVILLE, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 88-L-1280. Honorable Gordon E. Maag, Judge, presiding.

The Honorable Justice McLAUGHLIN delivered the opinion of the court: Lewis, J., and Schwartz, J., concur.

The opinion of the court was delivered by: Mclaughlin

JUSTICE McLAUGHLIN delivered the opinion of the court:

Plaintiffs, Earl L. Vuagniaux and Alice G. Vuagniaux, appeal from the dismissal of their fourth amended complaint against defendants, Ralph Korte and Garrett A. Balke, d/b/a the Edwardsville Partnership (Korte-Balke), and the City of Edwardsville (the City). We affirm.

Plaintiffs' fourth amended complaint was framed in two counts. Count one was against Korte-Balke. It alleged the breach of a written contract for the sale of real estate. Count one alleged that defendants were engaged in a joint venture to develop a tax-increment-financing district in downtown Edwardsville; that plaintiffs entered into a writtencontract with Korte-Balke, on behalf of the joint venture, for the sale of plaintiffs' downtown real estate; and that Korte-Balke failed to perform its contractual obligations, causing plaintiffs to suffer damages.

Count two was against the City. It alleged the City's breach of the same written contract by virtue of being engaged in a joint venture with Korte-Balke.

Defendants filed motions to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1992)), alleging, inter alia, that the City was not a party to the contract; that there was no joint venture between Korte-Balke and the City; that the contract included an express condition precedent which had not been fulfilled and therefore Korte-Balke was not required to perform; and that the statute of frauds (Ill. Rev. Stat. 1987, ch. 59, par. 2 (now 740 ILCS 80/2 (West 1992))) barred enforcement of the contract against the City.

The trial court granted the defendants' motions to dismiss pursuant to section 2-619, without describing its reasons.

Section 2-619(a)(7) of the Code allows the dismissal of a complaint when "the claim asserted is unenforceable under the provisions of the Statute of Frauds." (735 ILCS 5/2-619(a)(7) (West 1992).) Section 2-619(a)(9) allows dismissal when "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." (735 ILCS 5/2-619(a)(9) (West 1992).) In ruling on a section 2-619 motion to dismiss, the trial court may consider pleadings, depositions, and affidavits. (See 735 ILCS 5/2-619(a),(c) (West 1992); 134 Ill. 2d R. 191(a); Torcasso v. Standard Outdoor Sales, Inc. (1993), 157 Ill. 2d 484, 486, 626 N.E.2d 225, 226, 193 Ill. Dec. 192.) Our standard of review is "whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law." Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 116, 619 N.E.2d 732, 736, 189 Ill. Dec. 31.

We hold that Korte-Balke's contractual duty to perform was discharged by the nonoccurrence of a condition precedent, and as a result Korte-Balke is not liable for breach of this contract. The circuit court therefore properly dismissed count one of plaintiffs' fourth amended complaint, against Korte-Balke, pursuant to section 2-619(a)(9). Even if there was a joint venture between Korte-Balke and the City, nevertheless, the statute of frauds prevents enforcement of this contract against the City. The circuit court therefore properly dismissed count two of plaintiffs' fourth amended complaint, against the City, pursuant to section 2-619(a)(7).

Here are the essential facts. The written contract, entitled "EARNEST MONEY RECEIPT AND SALES CONTRACT", is attached to plaintiffs' fourth amended complaint. Significantly, it describes plaintiffs as the "sellers" and Korte-Balke as the "buyers" of Lot 220 in the City of Edwardsville. The contract includes the following additional language relevant to this case:

"The parties hereto agree as follows:

1. This sale is on the following express conditions:

First, that fee simple title to Lot 55 *** be conveyed by Warranty Deed to the ...


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