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09/04/97 WILLIAM B. THOMAS AND ROBERT S. THOMAS v.

September 4, 1997

WILLIAM B. THOMAS AND ROBERT S. THOMAS, PLAINTIFFS-APPELLANTS,
v.
JOHN DAUBS, D/B/A DAUBS DISPOSAL SERVICE, AND DAUBS LANDFILL, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Wayne County. No. 92-L-12. Honorable Robert S. Hill and Charles L. Quindry, Judges, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Kuehn, P.j., and Welch, J. concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiffs, William B. Thomas and Robert S. Thomas, sought to recover a 6% finder's fee from defendants, John Daubs, doing business as Daubs Disposal Service, and Daubs Landfill, Inc., for obtaining a buyer for the landfill, as per an alleged oral contract between the parties. Defendants filed a joint motion for the involuntary dismissal of plaintiffs' complaint, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 1994)), on the ground that the Real Estate License Act of 1983 (the Act) (225 ILCS 455/1 et seq. (West 1994)) bars the action because plaintiffs are not licensed to act as brokers or salespersons of realestate. The circuit court of Wayne County granted defendants' motion, and plaintiffs now appeal. The issue we are asked to consider is whether the Act bars a cause of action to collect a finder's fee under an oral contract for the sale of a landfill when the finder is unlicensed. We affirm.

FACTS

In their amended complaint, plaintiffs allege that they entered into an oral agreement with defendants in January 1988, whereby they would act to find a purchaser for defendants' new regional solid waste pollution control facility, the rights to the environmental permits for the operation of the facility, the real estate to be utilized as a landfill, and the equipment and other personal property used at the facility. Plaintiffs' complaint further alleges that on March 15, 1990, defendants entered into a written contract with Waste Management Professionals, Inc., acting as a nominee, agent, or other entity on behalf of Mid-American Waste Systems, Inc., for the acquisition of the ongoing business, real estate, operating permits, and equipment through a stock transfer or purchase. Plaintiffs allege a purchase price of $3.3 million, plus 10% of all revenues from the operation of the landfill. Plaintiffs further allege they made the original contract with Mid-American Waste Systems, Inc., which ultimately led to the deal, that they performed all the conditions on their part, and that they are, therefore, entitled to their finder's fee of 6% of the purchase price. Plaintiffs claim that their finder's fee amounts to at least $198,000, plus 6% of the share of the revenues from the landfill to be received by defendants.

Plaintiffs' amended complaint, like the original complaint, is in four counts. Count I is based upon the theory of breach of an oral contract. Count II is based upon the theory of promissory estoppel and makes additional allegations that defendants promised and represented to plaintiffs that they would pay a finder's fee of 6% on the gross sales price if plaintiffs extended their best efforts in contacting prospective buyers across the country, which plaintiffs did, and, therefore, plaintiffs are entitled to the finder's fee. Count III of the amended complaint is based upon the theory of quantum meruit and adds additional allegations that the work, labor, and services performed by plaintiffs on defendants' behalf have a reasonable value of 6% of the gross sales price of the business, property, and assets sold by defendant to Mid-American Waste Systems, Inc. Count IV is based upon a theory of unjust enrichment. It contains additional allegations that defendants benefited from the work, effort, and services provided by plaintiffs and that defendants would be unjustlyenriched if allowed to retain the benefit of the services of plaintiffs without paying for the services.

On August 2, 1994, defendants filed a joint motion for involuntary dismissal based upon affirmative matter, pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1994)), and a memorandum of law in support of said motion. Defendants' motion to dismiss was based upon plaintiffs' failure to allege that either one of them held the requisite license necessary to assert a claim for a commission as required by the Act. Plaintiffs responded that the Act was inapplicable because the sale here was the sale of "stock of Daubs Landfill, Inc. and not the sale of real estate." On November 30, 1994, the circuit court entered an order granting defendants' motion for involuntary dismissal on the basis that plaintiffs were not licensed to act as brokers or salespersons by the Department of Professional Regulation and, thus, plaintiffs' claims were prohibited by the Act. The trial court's original dismissal order contained the words "with prejudice," but these words were crossed out with a pen or marker. Plaintiffs' counsel, apparently believing that the amended complaint had been dismissed with prejudice, then filed a notice of appeal on December 2, 1994, asking leave to amend their pleadings. We issued a Supreme Court Rule 23 order (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, effective July 1, 1994) dismissing plaintiffs' appeal for want of jurisdiction on the basis that the complaint had not been dismissed with prejudice, and we remanded the case for further proceedings. Thomas v. Daubs, slip op., No. 5-94-0817 (October 5, 1995). On November 29, 1995, plaintiffs filed a motion for the entry of a trial court statement under Supreme Court Rule 308 (134 Ill. 2d R. 308). After a hearing, the trial court denied the motion. Following the denial of said motion, plaintiffs requested leave to amend the complaint. The trial court granted plaintiffs 28 days to file an amended complaint.

Plaintiffs did not file any additional pleadings. On April 22, 1996, plaintiffs filed a motion for extension of time to disclose opinion witnesses. Defendants objected, and ultimately, the trial court denied plaintiffs' motion. On May 30, 1996, plaintiffs moved for the reconsideration of the trial court's November 30, 1994, decision to dismiss their amended complaint. On July 10, 1996, the trial court denied plaintiffs' motion to reconsider but granted plaintiffs' alternative request for the entry of a final order of dismissal. Plaintiffs now appeal.

ANALYSIS

The issue we are asked to address is whether the Act bars a causeof action to collect a finder's fee under an oral contract for the sale of a landfill when the finder is unlicensed. Plaintiffs contend that the Act does not apply to the facts alleged in their amended complaint because the Act specifically enumerates the activities that make one a broker, and all such activities are directed toward real estate, not toward a business. Plaintiffs insist that the sale of the landfill here in question was the sale of a business, not the sale of real estate. Defendants respond that the Act, which requires that a person be licensed in order to claim a commission, applies to the facts herein because it cannot be said that the land is merely incidental to the sale. We agree. The trial court based its determination on the Act, which requires, inter alia, the licensing of real estate brokers. Section 3 of the Act specifically provides:

" ยง 3. It is unlawful for any person, corporation, limited liability company, or partnership to act as a real estate broker or real estate salesperson, or to advertise or assume to act as such broker or salesperson, without a properly issued sponsor card or a license issued by the Department of Professional Regulation under this Act." 225 ILCS 455/3 (West 1994).

The overall purpose of the Act "is to evaluate the competency of persons engaged in the real estate business and to regulate such business for the protection of the public." 225 ILCS 455/1 (West 1994). Section 4(4) of the Act defines "broker" as follows:

"(4) 'Broker' means an individual, partnership, limited liability company, or corporation, other than a real estate salesperson, ...


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