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04/26/96 VIPAL ARORA AND NIRMAL ARORA v. DAVID CHUI

April 26, 1996

VIPAL ARORA AND NIRMAL ARORA, PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,
v.
DAVID CHUI, LILLIAN CHUI, AND JOSEPH LAU, DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 92-CH-1091. Honorable Thomas C. Dudgeon, Judge, Presiding.

Released for Publication May 30, 1996.

The Honorable Justice Thomas delivered the opinion of the court: Doyle, J., concurs. Presiding Justice McLAREN, dissenting:

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The trial court granted the motion to dismiss counterplaintiffs' counterclaims for malicious prosecution and abuse of process pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1994)). The counterplaintiffs, David Chui, Lillian Chui, and Joseph Lau, (hereinafter referred to as the Chuis and/or Lau, respectively) appeal. We affirm.

On November 6, 1992, the counterdefendants, Vipal Arora and Nirmal Arora (hereinafter referred to as the Aroras), filed a complaint for specific performance of a contract for the sale of real property. The complaint alleged that the Aroras had entered into a valid real estate contract with Lau, as the duly authorized agent of the Chuis, for the purchase of the Chuis' home in Oak Brook, Illinois, at a price of $1,440,000. The Aroras requested that the Chuis be enjoined from conveying or disposing of any interest in the property and that the Chuis be ordered to perform the alleged contract. On November 10, 1992, the Aroras filed a lis pendens notice with the Du Page County recorder of deeds.

The Aroras did not attach a copy of the alleged real estate contract to their complaint. However, the Chuis' motion to dismiss the complaint on that basis was denied. The Chuis subsequently filed an answer to the complaint, which denied that the parties had ever entered into a contract. The Chuis also filed counterclaims for malicious prosecution and abuse of process.

The counterclaims alleged that on October 31, 1992, the Aroras, Robin Zahran (the Aroras' financial advisor), Zahran's wife, real estate broker Renuka Shah, and Mehri Briant (an agent for counterplaintiff Lau), were present on the Chuis' property. Lau had added a provision to "Rider 412" of the alleged contract which stated that the house in all respects was to be sold in "as is" condition. The Aroras would not agree to the "as is" provision, and Zahran crossed out the "as is" provision which had been inserted by Lau. The Aroras initialled the change. Zahran gave the contract to Briant, and Briant told everyone present that this was now a counteroffer and that there was another party interested in purchasing the property. The counterclaims further alleged that Zahran then told Briant not to play games with him and that if Briant did not get the contract without the "as is" provision, Zahran would "get a lot" for the Aroras and build them a home. Briant began turning off the lights at the property in preparation to leave when Shah indicated that the seller should be given time to think about the offer. Shah then added a provision to the contract which stated, "Sellers have till November 2, 9:00 p.m." The Aroras again initialled the change.

The counterclaims further alleged that on November 2, 1992, Briant asked Shah whether the Aroras would execute a "Rider 406," which is a rider providing that the buyer was accepting the house in an "as is" condition. Shah replied that the Aroras would not execute such a rider.

The counterclaims also stated that on November 2, 1992, Briant presented the Aroras' offer to Lau, who crossed off the provision that the sellers had until November 2, 1992, at 9 p.m. and initialled the change. Lau also wrote on the offer, "This contract serves as a back-up offer." Lau executed a rider 406 to be part of the back-up offer, and Briant inserted the rider 406 into paragraph 9 of the Aroras' offer, indicating that a rider 406 was required to be part of the back-up contract. Lau then executed a valid real estate contract for the Chui property with Vijay and Nishi Bajaj.

The counterclaims further alleged that the Aroras had wrongfully, maliciously, without probable cause, and for the purpose of preventing the Chuis from selling their property as they saw fit filed a lis pendens notice with the Du Page County recorder of deeds, which gave notice of the pendency of the Aroras' action against the Chuis and which indicated that the Aroras had entered into a valid real estate contract on October 31, 1992, even though the Aroras knew this to be false. In addition, the Chuis alleged that, as a result of the Aroras' actions, the Chuis were unable to close the sale of the Chui property to the Bajajs and alleged specific monetary damages suffered as a result of the Aroras' misconduct.

The Aroras filed a response to the counterclaims wherein they admitted that, because of the lis pendens notice, the Chuis had been unable to convey the property to anyone else.

On March 25, 1994, the Chuis filed a "Motion to Set Discovery Cutoff Date And Set Matter for Trial," which alleged that the Aroras had not taken any depositions or requested any discovery.

On April 15, 1994, the parties entered a stipulation to dismiss, which stated that the Aroras' complaint was to be dismissed with prejudice, that the Aroras would file a release of their lis pendens on the Chuis' property, and that the Bajajs, who had been granted leave to intervene, would dismiss their complaint with prejudice. The stipulation also stated that the Chuis' counterclaims were not dismissed and would be the only actions remaining to be determined by the court, all other matters having been resolved by the parties.

On December 8, 1994, trial commenced on the counterclaims. After counsel for the Chuis had completed his opening statement, the Aroras counsel made oral motions to dismiss the Chuis' malicious prosecution and abuse of process claims. The trial court stated that it would defer ruling on the motions until the close of the Chuis' proof.

The trial was continued and subsequently the Chuis presented their case in chief. Briant testified for the Chuis and detailed the negotiations between the Aroras and the Chuis, including their inability to come to agreement with regard to the rider 406, by which the Aroras would have accepted the house in an "as is" condition. Briant also testified that she took the Aroras' final offer, made after the time for accepting the plaintiffs' preceding counteroffer, to Lau. At the same time, Briant presented Lau with an offer from the Bajajs. Lau executed the Bajaj contract and wrote on the Aroras' offer that it was a back-up offer and made some changes to it, including again writing "as is" on the document. Briant also testified that she told Shah that the Aroras' offer was a back-up offer when Briant returned home that night. Later that evening and again the next morning, Briant claimed she received a number of telephone calls from Shah and Zahran, wherein Shah and Zahran threatened to sue, as well as put a lis pendens on the house and also stated that nobody would get the house for three years.

Lau also testified. According to Lau, the Chuis executed powers of attorney in favor of Lau, which Lau used in handling the sale of the Chuis' house. Lau testified regarding the history of the negotiations with the Aroras and also that he was unable to close the sale with the Bajajs because of the lis pendens.

The parties entered into a stipulation regarding costs of $48,000 that the Chuis incurred as a result of the Aroras' filing of the lis pendens notice.

After the Chuis rested their case on the issue of liability, the Aroras renewed their oral motions to dismiss, which they identified for the first time as section 2--615 motions to dismiss (735 ILCS 5/2--615 (West 1994)) for failure to state a cause of action. The trial court stated that, in light of the nature of the motions, it could not consider the evidence which had been presented and was limited to reviewing the pleadings to determine if the counterclaims stated cognizable causes of action. The trial court then dismissed both the malicious prosecution and the abuse of process counterclaims with prejudice.

In view of the awkward proceedings before the trial court, we are compelled to detail the proper timing for making section 2--615 motions (735 ILCS 5/2--615 (West 1994)) at the trial court level. While section 2--615 (735 ILCS 5/2--615 (West 1994)) does not explicitly place a specific time limit on bringing the motion at the trial level, our supreme court has stated that "the best measure of a complaint's sufficiency *** is whether the defendant is able to answer [it]." People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308, 58 Ill. Dec. 754, 430 N.E.2d 1005 (1981). Thus, where "a complaint substantially although imperfectly alleges a cause of action, the defendant waives any defect by answering it without objection." Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 572, 66 Ill. Dec. 222, 442 N.E.2d 648 (1982). By answering the counterclaims, the Aroras thus waived the defects alleged to be present therein.

The Aroras point to an exception to the above rule and contend that they may raise at any time a claim that the counterclaims failed to state causes of action. See Adcock v. Brakegate, Ltd., 163 Ill. 2d 54, 61, 206 Ill. Dec. 636, 645 ...


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