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July 25, 1995



Rehearing Denied September 8, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Scariano delivered the opinion of the court: DiVITO and McCORMICK JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

Under a contract dated May 15, 1993, defendants James and Holly Frainey agreed to purchase plaintiffs Stephen and Joanne Groshek's home for $310,000. The contract, consisting of a realty board's form supplied by defendants' real estate broker, included an attorney approval clause (the "approval clause" or the "clause") which in pertinent part provided:

"It is agreed by and between the parties hereto as follows: That their respective attorneys may approve or make modifications, other than price and dates, mutually acceptable to the parties. Approval will not be unreasonably withheld, but if within [five business] days after the date of acceptance of the Contract, it becomes evident agreement cannot be reached by the parties hereto, and written notice thereof is given to either party within the time specified, then this Contract shall become null and void, and all monies paid by the Purchaser shall be refunded."

Defendants' attorney avers that within the five day period referred to in the contract he spoke via speaker phone to both Mr. Groshek and his attorney, and expressed disapproval of the contract, one reason being concern over the zoning of an adjacent parcel. Plaintiffs contend that defendants' attorney explained that he was withholding approval since the defendants had changed their minds, and that any other reason he gave for doing so was merely pretextual and after the fact. In any event, on that same day, defendants' attorney faxed plaintiffs' attorney a notice of disapproval that did not explain why approval was being withheld, but simply stated:

"Pursuant to the Attorney's Approval Rider 708 attached to the contract ***, I hereby withhold my approval of said contract."

In their complaint, plaintiffs stated that to invoke the approval clause properly, defendants' attorney was required to state his reasons for doing so in the form of proposed modifications, and absent such proposals, the contract never became "null and void;" defendants therefore breached their contract and caused plaintiffs to re-list their property and sell it at a reduced price of $290,000.

On April 6, 1994, defendants filed a motion to dismiss the complaint for failure to state a cause of action (735 ILCS 5/2-619(a)(9) (West 1992)), contending that only a good faith standard governed the approval clause, and that their attorney was not required to propose modifications or to explain why he was withholding approval; thus, his written notice of disapproval made the contract "null and void." Thereafter, defendants' motion to dismiss was granted, and plaintiffs now appeal from that order.

We disagree that the failure to state a cause of action is amenable to attack by a motion to dismiss under any provision of 735 ILCS 5/2-619 (West 1992), for that statute assumes that a cause of action has been stated but that it is subject to dismissal by virtue of an affirmative defense entitling the movant to judgment. (See Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 1068-75, 603 N.E.2d 1215, 177 Ill. Dec. 841.) Nevertheless, in the interest of conserving judicial resources, we shall treat the motion as one for summary judgment, which appears to be the basis upon which the proceeding was heard by the trial judge. See Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center (1985), 137 Ill. App. 3d 294, 299, 484 N.E.2d 841, 92 Ill. Dec. 110.

Summary judgment motions permit the trial court to determine whether any genuine issue of material fact exists in the action, and if not, to provide an expedient means of resolution. ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 95 Ill. Dec. 305.) When deciding the motion, the trial court should construe all the evidence before it strictly against the movant. Our supreme court has warned that while summary judgments are to be encouraged in the interest of prompt disposition of lawsuits, they are a drastic measure. Consequently, trial courts should grant summary judgments only where the movant's right to judgment is so clear as to be free from doubt. ( Purtill, 111 Ill. 2d at 240, 489 N.E.2d 867.) This court reviews the grant of summary judgment de novo. Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 167 Ill. Dec. 225.

Plaintiffs argue essentially that defendants' attorney's disapproval amounted to a mere rejection of the contract, not also a counter-offer, and that the clause could have been effectively invoked by him only if he had made a counter-offer by submitting proposed modifications, thereby providing plaintiffs with an opportunity to accept such counter-offer (having amended the contract), an opportunity which defendants' attorney's flat rejection did not present.

The main objective in construing a contract is to determine and give effect to the intention of the parties at the time they entered into the contract. ( Zale Constr. Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241, 494 N.E.2d 830, 98 Ill. Dec. 708; Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697, 427 N.E.2d 585, 56 Ill. Dec. 390.) An ambiguity is not created by the mere fact that, as here, the parties do not agree upon an interpretation. ( Zale Constr. Co., 145 Ill. App. 3d at 241, 494 N.E.2d 830; Harlem-Irving Realty Inc. v. Alesi (1981), 99 Ill. App. 3d 932, 936, 425 N.E.2d 1354, 55 Ill. Dec. 181.) The question of whether a contract is clear or ambiguous is a question of law for the court. ( Tishman Midwest Management Corp. v. Wayne Jarvis Ltd. (1986), 146 Ill. App. 3d 684, 689, 500 N.E.2d 431, 102 Ill. Dec. 538.) If an agreement ...

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