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September 19, 1997


Appeal from the Circuit Court of Cook County. No. 93 L 09826. Honorable Kenneth L. Gillis, Judge Presiding. Original Opinion of August 1, 1997,

Reported at: 291 Ill. App. 3d 974 at 985. Rehearing Denied September 19, 1997. Released for Publication October 9, 1997.

The Honorable Justice Zwick delivered the supplemental opinion of the court. Greiman, P.j., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick


The Honorable Justice ZWICK delivered the supplemental opinion of the court:

Following the filing of our opinion in this matter, plaintiffs, Ron and Barbarann Hubble, filed a timely petition for rehearing. Although in our opinion we found in favor of plaintiffs and against defendant Paul O'Connor, plaintiffs are dissatisfied with our determination that the Statute of Frauds prevents a finding of liability against Paul O'Connor's co-defendant, Lynda Simon. Plaintiffs assert that the opinion mischaracterizes the status of the pleadings in that it implies defendants affirmatively raised the Statute of Frauds as part of their responsive pleadings, but that plaintiffs failed to raise the counter defense of equitable estoppel in their reply pleadings. In fact, as plaintiffs now point out, the Statute of Frauds defense was not raised by defendants until they filed their motion for summary judgment. It was only then that plaintiffs raised equitable estoppel as a counter-defense in their response to the motion, along with a claim that the Statute of Frauds defense had been waived because it was "tardy." Plaintiffs now argue, as they did in their initial briefs, that under such facts defendant Lynda Simon has necessarily waived the Statute of Frauds defense.

For support of their argument, plaintiffs cite the opinion itself for the proposition that "[a] defense not properly pleaded is deemed waived even though support for the defense may appear within the evidence" (slip op. at 15, citing M. Loeb Corp. v. Brychek, 98 Ill. App. 3d 1122, 1125, 424 N.E.2d 1193, 54 Ill. Dec. 290 (1981)). They urge that we reconsider our holding and apply the rule of waiver to Lynda Simon's invocation of the Statute of Frauds.

We reject plaintiff's waiver claim, as we implicitly did in our original opinion. The rule of waiver is a limitation on the parties, not upon the courts. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178, 220 Ill. Dec. 166 (1996). Even though defendant Simon risked a finding of waiver by not affirmatively pleading her Statute of Frauds defense, we note that she did fully raise the defense and argued it below in her summary judgment motion. Despite the fact that plaintiffs responded by asserting that her defense was "tardy," the trial court did not find waiver. In such a case, we are unwilling to reverse the trial court's ultimate ruling in favor of Simon. We do find, however, that plaintiff's petition for rehearing deserves further discussion.

In holding that plaintiffs had waived their estoppel counter-defense to Simon's Statute of Frauds claim, we implicitly relied upon the principle that we may affirm the trial court when its decision is correct for any reason appearing in the record, even if that reason was not affirmatively relied upon by the trial court in reaching its decision. People v. Rodriguez, 187 Ill. App. 3d 484, 489, 543 N.E.2d 324, 135 Ill. Dec. 89 (1989). On reconsideration, however, we recognize the inherent unfairness of imposing the waiver rule against plaintiffs when defendant Simon did not raise the Statute of Frauds defense in her pleadings, but only in her motion for summary judgment. It is established that, "What is good for the goose is good for the gander." PSI Energy, Inc. v. Exxon Coal USA, Inc. 831 F. Supp. 1430 (S.D. Ind. 1993), reversed on other grounds, PSI Energy, Inc. v. Exxon Coal USA, Inc., 17 F.3d 969 (7th Cir. 1994). A corollary to this technical legal principle is "What is good for the defendant is good for the plaintiff." Accordingly, we elect to address the merits of plaintiffs' equitable estoppel claim as it relates to defendant Lynda Simon.

Equitable estoppel prevents a party from taking advantage of her own wrongdoing. Goodwine State Bank v. Mullins, 253 Ill. App. 3d 980, 1012, 625 N.E.2d 1056, 192 Ill. Dec. 901 (1993). The doctrine prevents a party from asserting a right she would have otherwise been able to assert. Gorgees v. Daley, 256 Ill. App. 3d 143, 146, 628 N.E.2d 721, 195 Ill. Dec. 257 (1993). The ultimate purpose of the doctrine is to prevent fraud or injustice. Gorgees, 256 Ill. App. 3d at 146. "In order to establish equitable estoppel, the plaintiff must show that he was led to detrimentally rely upon the conduct or statements of the defendant and that such reliance was in good faith." Pothier v. Chicago Transit Authority, 238 Ill. App. 3d 702, 705, 606 N.E.2d 531, 179 Ill. Dec. 699 (1992).

There are six elements required to make out an equitable estoppel claim: (1) voluntary words or conduct by the estopped party amounting to a misrepresentation or concealment of material facts; (2) actual or implied knowledge of the estopped party that the representations were not true; (3) lack of knowledge of the true facts by the innocent party both at time made or at time acted upon; (4) intent, or a reasonable expectation, on the part of the estopped party that the innocent party would act on the misrepresentations; (5) a reasonable, good-faith, detrimental change of position by the innocent party based on the misrepresentations; and (6) prejudice to the innocent party. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 100, 662 N.E.2d 138, 214 Ill. Dec. 784 (1996); Estes v. Smith, 244 Ill. App. 3d 681, 684-85, 614 N.E.2d 469, 185 Ill. Dec. 335 (1993).

It is established that "[a] party claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to seek information that is easily accessible, and then charge his ignorance to others." Vaughn v. Speaker, 126 Ill. 2d 150, 169, 533 N.E.2d 885, 127 Ill. Dec. 803 (1988)(Ryan, J., specially concurring), quoting Vail v. Northwestern Mutual Life Insurance Co., 192 Ill. 567, 570, 61 N.E. 651 (1901). Thus, to benefit from equitable estoppel, the plaintiff must have "had no knowledge or means of knowing the true facts." Lissner v. Michael Reese Hospital & Medical Center 182 Ill. App. 3d 196, 207, 537 N.E.2d 1002, 130 Ill. Dec. 673 (1989).

Here, the record does not establish the elements of equitable estoppel against Lynda Simon. Most fundamentally, there is no evidence that Lynda Simon ever misrepresented or concealed a material fact from the plaintiffs. Rather, the record affirmatively establishes that all of the parties involved in the transaction knew Lynda had not personally signed the sales agreement and that Paul had signed on her behalf. Indeed, the agreement itself contains the notation "by Paul" following Lynda's name on the signature line. Thus, every indication is that all the parties, including Lynda, believed that Paul's signing of the agreement would bind Lynda at the time it was signed. To this end, Lynda freely admitted in her deposition that she had given Paul permission to sign the agreement. Consequently, the plaintiffs had the same facts available to them as did the defendants regarding the legal effect of the sales agreement. Plaintiffs cannot later blame Lynda because they failed to recognize the consequences of her failure to personally sign the agreement.

Because the record does not establish equitable estoppel, we reject plaintiffs' claim that Lynda Simon's is estopped form raising the Statute of Frauds. We therefore re-affirm the trial court's grant of summary judgment in favor of Lynda Simon and against the plaintiffs.

For the foregoing reasons, as well as the reasons set out in our original opinion, the order of the circuit court of Cook County granting summary judgment in favor of defendant Lynda Simon and against the plaintiffs is affirmed; the order granting summary judgment in favor of defendant Paul O'Connor and against the plaintiffs is reversed. Pursuant to our authority under Supreme Court Rule 366(a)(5), we hereby grant summary judgment in favor of plaintiffs and against defendant Paul O'Connor; we deny plaintiffs' summary judgment motion against defendant Lynda Simon. The matter is remanded to the circuit court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

GREIMAN, P.J., and QUINN, J., concur.


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