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05/28/97 RE/MAX R.E. PROFESSIONALS v. GARY R.

May 28, 1997

RE/MAX R.E. PROFESSIONALS, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,
v.
GARY R. ARMSTRONG AND JANE ARMSTRONG, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Champaign County. No. 91L296. Honorable Thomas J. Difanis, Judge Presiding.

Honorable Robert J. Steigmann, P.j., Honorable Rita B. Garman, J. - Concur, Honorable Robert W. Cook, J. - Special Concurrence. Presiding Justice Steigmann delivered the opinion of the court. Garman, J., concurs. Cook, J., specially concurs.

The opinion of the court was delivered by: Steigmann

PRESIDING JUSTICE STEIGMANN delivered the opinion of the court:

In March 1991, plaintiff, RE/MAX R.E. Professionals, Inc. (RE/MAX), filed a two-count complaint against defendants, Gary R. Armstrong and Jane Armstrong, alleging that it was entitled to recover a real estate commission under the terms of a listing agreement and a withdrawal agreement. In January 1995, RE/MAX filed a motion for summary judgment as to count I (breach of contract), and in March 1995, the trial court granted RE/MAX's motion. The Armstrongs appeal, arguing that (1) the docket entry did not constitute an entry of judgment; and (2) the court erred by granting RE/MAX's motion for summary judgment. We reverse and remand.

I. BACKGROUND

The following facts appear from the complaint, depositions, affidavits, and attached documents. On July 25, 1990, RE/MAX and the Armstrongs signed a "RESIDENTIAL LISTING AGREEMENT" (listing agreement) granting RE/MAX the exclusive right to sell real estate owned by the Armstrongs. The listing agreement provided, in relevant part, as follows:

"If, during the term of this agreement, anyone, including myself [(the Armstrongs)], produces a purchaser, ready, willing and able to purchase said property *** I agree to pay you a commission of *5% -- FIVE PERCENT. Said commission shall be paid on closing the sale herein contemplated or upon failure by the purchaser or me to perform under the contract of sale.

The term 'sale' as used herein shall be construed to include any exchange to which I consent in writing. " (Emphasis added.)

On August 8, 1990, Gary telephoned RE/MAX and informed one of its brokers that the Armstrongs were no longer interested in selling their property. On August 10, 1990, Gary signed a "UNIFORM LISTING WITHDRAWAL AGREEMENT" (withdrawal agreement). The withdrawal agreement became effective on August 13, 1990, and provided, in relevant part, as follows:

"(2) Should said property be sold or exchanged within 90 days from the effective date hereof, through any source, to any person or organization, I agree to pay you a commission in the amount provided in the listing agreement.

***

(4) This withdrawal agreement does not invalidate any part of the original listing agreement except with respect to the enactment of this withdrawal agreement exactly as stated on this form." (Emphasis added.)

During mid-August 1990, the Armstrongs showed their property to the ultimate buyers, Charles Miller and Jacqueline Cardinale (the buyers). Shortly thereafter, the buyers visited the Armstrong property again, and the Armstrongs quoted them a price of approximately $100,000. The Armstrongs then went on vacation and arrived back home in late September 1990. A few days later, the buyers looked at the property for the third time. A week or so later, the buyers made a counteroffer, and the Armstrongs accepted it. Although the Armstrongs and the buyers reached a verbal agreement on all of the terms of the sale, they never entered into a written sales contract for the subject property. On November 13, 1990, they closed the sale of the subject property.

In March 1991, RE/MAX filed a complaint against the Armstrongs to recover a real estate commission under the terms of the listing and withdrawal agreements. In January 1995, RE/MAX filed a motion for summary judgment as to count I, and the trial court subsequently granted the motion. In September 1996, RE/MAX moved for a voluntary dismissal of ...


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