Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Kenneth L. Gillis and the Hon. Edwin M. Berman, Judges, presiding.
The Honorable Justice Freeman delivered the opinion of the court: Chief Justice Bilandic and Justice Harrison took no part in the consideration or decision of this case.
The opinion of the court was delivered by: Freeman
JUSTICE FREEMAN delivered the opinion of the court:
As part consideration for assets of a business, the buyer, Sexton Contractors Company, agreed to pay an attorney who had done legal work for the seller, XL Disposal Corporation. Sexton later challenged the legality of the payments. We hold Sexton cannot challenge the payments for the reasons it asserted.
Robert Blair, an attorney, secured for XL Disposal Corporation (XL Disposal) land upon which it operated two waste transfer facilities. In August 1984, XL Disposal agreed to compensate Blair for his past services. A typewritten letter from Blair, signed by XL Disposal, confirmed the agreement. XL Disposal was to pay Blair, or his estate upon his death, $5,000 every month, the amount increased annually by 6%, from the letter's date until XL Disposal ceased operating the two facilities.
One of the facilities was located on South Laflin Street in Chicago. The Laflin Street facility was operated on land leased for a five-year term, from 1983 to 1988. The lease was renewable for four additional terms, but would end in 2008.
In June 1985, XL Disposal sold, subject to that lease, the assets of the Laflin Street facility to the John Sexton Contractors Company (Sexton). For the assets, Sexton agreed to pay XL Disposal $443,200 and to continue monthly payments, as modified, to Blair. Sexton promised to pay Blair $2,650 every month, with the same 6% yearly increase, from July 1985 until the time Sexton ceased to operate the Laflin Street facility. Sexton's promise was set out in an addendum to the letter stating XL Disposal's previous agreement to pay Blair. The addendum was incorporated by, and referred to, the typewritten contract stating the terms of the asset sale. Blair, himself, was not a party to the addendum.
In April 1989, Sexton, though it continued to operate the Laflin Street facility, stopped paying Blair. In turn, XL Disposal sued Sexton. XL Disposal sought a declaration that the asset sale contract obligated Sexton to continue to pay Blair.
Sexton raised numerous affirmative defenses in answer to the complaint: XL Disposal's agreement to pay Blair was fraudulent as based on past consideration; the agreement was an excessive legal fee arrangement; the agreement was contrary to public policy as a contingent-fee arrangement for Blair to lobby the City of Chicago for public contracts; Sexton's promise to Blair was similarly one for Blair to lobby for city contracts as Sexton's attorney and, therefore, the addendum was also an excessive fee agreement; and, finally, the promises of both XL Disposal and Sexton to pay Blair were perpetual contracts.
Sexton also filed a verified counterclaim, as amended, against Blair. The counterclaim stated five counts, each based on one or more of the affirmative defenses Sexton asserted against XL Disposal. Sexton sought declaratory relief and recovery of money it had paid to Blair.
Blair moved pursuant to section 2-619(a)(9) to dismiss Sexton's counterclaim. (Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(9).) Blair argued that Sexton had no standing to challenge XL Disposal's original promise to pay him. Further, Sexton's allegations that its payments were for something other than the assets of the Laflin Street facility were barred by the parol evidence rule. Blair also argued that neither XL Disposal's nor Sexton's promise to pay him was a perpetual contract, for a termination date could be ascertained in the lease under which the Laflin Street facility was operated.
XL Disposal moved for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005) on its complaint against Sexton. XL Disposal's arguments for summary judgment were the same ones Blair raised in his then still pending motion to dismiss Sexton's counterclaim.
Blair's motion to dismiss was granted and, four days later, XL Disposal was awarded summary judgment.
Sexton filed a notice of appeal which sought review of both the counterclaim's dismissal and the grant of summary judgment. The appellate court, ruling in Sexton's favor, reversed and remanded. (No. 1-91-1809 (unpublished order under Supreme Court Rule 23).) The court stated that Sexton had standing to challenge XL Disposal's agreement to pay Blair and that the trial judge was wrong not to find the agreement invalid. The court directed on remand that the trial ...