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04/09/97 FOXFIELD REALTY v. THEODORE KUBALA AND

April 9, 1997

FOXFIELD REALTY, INC., PLAINTIFF-APPELLANT,
v.
THEODORE KUBALA AND BARBARA E. KUBALA, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. No. 95--LM--3440. Honorable Donald J. Fabian, Judge, Presiding.

Released for Publication May 9, 1997.

Presiding Justice Geiger delivered the opinion of the court. Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Foxfield Realty, Inc., a real estate broker, appeals from the circuit court's order of May 6, 1996, dismissing with prejudice (see 735 ILCS 5/2--615 (West 1994)) the plaintiff's unverified complaint seeking the award of a real estate sales commission allegedly owed by the defendants, Theodore and Barbara E. Kubala, pursuant to an exclusive right-to-sell agreement. Following the denial of its motion to reconsider, the plaintiff timely appeals. We affirm.

The plaintiff contends that the court's dismissal of the cause of action and the denial of the motion to reconsider were erroneous where the plaintiff's exclusive right-to-sell agreement with the defendants (sellers) provided that the seller agreed to pay the listing broker a commission of 6% of the full selling price, including encumbrances, "if any sale or exchange is made by [the] BROKER, by the SELLER or by anyone else" during the exclusive listing period.

Initially, we note that there is no report of proceedings for the hearing at which the order of dismissal was entered, but there is one for the hearing on the motion to reconsider. The complaint alleged that the defendants were the owners of real property located in St. Charles, Illinois. On July 14, 1994, the plaintiff and the defendants entered into a written listing agreement. The defendants signed the agreement as "SELLER." The defendants appointed the plaintiff as their agent with the exclusive right to sell the property at the list price of $237,500 or such lesser amount as the sellers agreed to accept. The agreement was made in consideration for, among other things, the plaintiff's efforts to procure a purchaser for the property.

Under the agreement, the sellers had the usual obligations to provide a current survey and a title policy as evidence of merchantable title and to refer all inquiries made to the seller to the listing broker. The commission was due for covered transactions during the exclusive period or if it were sold or exchanged within 60 days after the termination of the agreement (unless the property were listed with another broker) to any "PURCHASER" to whom it was offered or shown during the term of the agreement. The exclusive period was from August 5, 1994, through February 5, 1995.

The complaint alleged that the plaintiff advertised the property and showed it to prospective purchasers. It stated that the plaintiff learned that Barbara conveyed her interest in the property to Theodore by (quitclaim) deed, dated December 20, 1994, in exchange for consideration in the form of property and an allocation of debt as the result of a marital settlement agreement and pursuant to a judgment of dissolution of the defendants' marriage. The plaintiff therefore concluded that the defendants became obligated to pay a 6% commission on the $237,500 list price.

Theodore moved to dismiss the complaint for the failure to state a cause of action. The motion stated that Theodore and Barbara owned the property as joint tenants at the time of the agreement and that on December 6, 1994, the court entered an agreed order dividing the property in accordance with a prior order presumably entered in the dissolution proceeding. The December 6 order appears to be in response to Theodore's motion to compel the enforcement of a prior judgment and orders inter alia Theodore to pay Barbara $103,000 in satisfaction of certain credit card debts, the purchase of three life insurance policies, Barbara's interest in the marital property, and an award of $33,265 due according to the prior judgment.

Appended to Theodore's motion was a copy of a quitclaim deed dated December 20, 1994, and signed by Barbara; also appended were copies of two checks dated December 19, 1994, totalling $103,000 and a receipt signed by Barbara. Theodore asserted that the transaction was a division of marital assets pursuant to a court order and not a "sale." Citing a Colorado case, Cooley Investment Co. v. Jones, 780 P.2d 29 (Colo. App. 1989), because of the lack of Illinois precedent, Theodore also argued that there was merely a change in the form of ownership and not a transfer to another entity; thus, there was no sale and no right of the plaintiff to a commission. Barbara filed a separate motion to dismiss also arguing that there was no sale entitling the plaintiff to a commission.

An appeal from the dismissal of a complaint for the failure to state a cause of action preserves for review only the question of the legal sufficiency of the complaint. Payne v. Mill Race Inn, 152 Ill. App. 3d 269, 273, 105 Ill. Dec. 324, 504 N.E.2d 193 (1987). In considering a motion to dismiss, all well-pleaded facts are taken as true along with all reasonable inferences favorable to the nonmoving party. Payne, 152 Ill. App. 3d at 273. However, a motion to dismiss does not admit conclusions of law or of fact that are not supported by allegations of specific facts which form the basis for such conclusions. Payne, 152 Ill. App. 3d at 273. Exhibits attached to the pleadings are considered part of the pleadings, and allegations in the pleadings which conflict with facts disclosed in the exhibits are not admitted as true; rather, the exhibits control. Evers v. Edward Hospital Ass'n, 247 Ill. App. 3d 717, 724, 187 Ill. Dec. 490, 617 N.E.2d 1211 (1993). The granting of a motion to dismiss a complaint is within the discretion of the trial court. Evers, 247 Ill. App. 3d at 724.

A claim should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle a party to recover. F.H. Prince & Co. v. Towers Financial Corp., 275 Ill. App. 3d 792, 797, 211 Ill. Dec. 950, 656 N.E.2d 142 (1995). Whether a complaint states a cause of action based on the interpretation of a contract may be the subject of a motion to dismiss where the question presented is a matter of law. See, e.g., Evers, 247 Ill. App. 3d 717, 187 Ill. Dec. 490, 617 N.E.2d 1211; Chicago Investment Corp. v. Dolins, 93 Ill. App. 3d 971, 974, 49 Ill. Dec. 415, 418 N.E.2d 59 (1981); see also Camp v. Hollis, 332 Ill. App. 60, 74 N.E.2d 31 (1947).

The trial judge, who was the same in both the dissolution proceeding and the contract action, was in a position to take judicial notice of the facts in the dissolution proceeding. We do not have the benefit of a complete record from either proceeding. At the hearing on the motion to reconsider, the trial judge noted that both owners of the property signed the listing agreement. He concluded that a cause of action was not properly pleaded as no commission was ...


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