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B&B Land Acquisition, Inc. v. Mandell

June 23, 1999

B&B LAND ACQUISITION, INC., PLAINTIFF-APPELLANT,
v.
DORIS R. MANDELL, INDIV. AND AS SUCCESSOR TRUSTEE OF THE JACK MANDELL 1987 TRUST, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Winnebago County.) No. 97--L--130 Honorable Steven L. Nordquist, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

the opinion of the court:

Plaintiff, B&B Land Acquisition, Inc., appeals the trial court's dismissal of its amended complaint against defendant, Doris R. Mandell. Plaintiff argues that the Frauds Act (740 ILCS 80/0.01 et seq. (West 1996)) does not render its legal claims unenforceable and that, in the alternative, plaintiff asserted a valid claim under the equitable theory of unjust enrichment. We affirm in part, reverse in part, and remand the cause for further proceedings.

Plaintiff's amended complaint alleged as follows. On or about December 29, 1993, plaintiff entered into a written contract to purchase real property from Jack Mandell in his capacity as trustee of the Jack Mandell 1987 Trust (the trust). The contract was signed by both parties and included a purchase price of $43,756. Although the contract stated that closing would occur no later than December 30, 1994, the parties subsequently agreed to change that date to July 31, 1996. Plaintiff paid to the trust a sum of $2,000 in exchange for that extension.

Count I of the amended complaint alleged that, on or about April 2, 1996, the parties agreed to modify their contract upon a proposal that was made by a representative of the trust. According to the modified contract, the trust agreed to sell the subject property to a different buyer and give to plaintiff half of the proceeds of the sale. This modification would be effective only if the sale price was at least $150,000. Upon the trust's request, plaintiff (1) provided information about the value of comparable real estate; (2) tendered a survey, aerial photograph, and description of the subject property; and (3) paid taxes on the property in the amount of $1,000 for the year 1995. These actions constituted full performance of plaintiff's obligations under the modified contract. During the fall of 1996, the trust sold the property for approximately $195,000. Defendant, Jack Mandell's widow and successor trustee of the trust, did not give to plaintiff half of the proceeds of the sale, thereby breaching the modified contract.

Count II set out the same basic allegations but stated that the parties entered into a joint venture to sell the subject property. Plaintiff alleged that, after it relinquished its rights under the original contract and fully performed its obligations under the joint venture agreement, defendant breached the latter by failing to tender half of the proceeds of the sale.

Count III contained an equitable claim. There plaintiff alleged that it justifiably relied upon the parties' joint venture agreement by forfeiting its right to purchase the subject property under the parties' original contract. By retaining the entire proceeds of the sale of the property, defendant was unjustly enriched to plaintiff's detriment. Plaintiff sought the recovery of half of the proceeds on that basis. Finally, in count IV, plaintiff claimed an entitlement to interest on the amount due that had accrued since the date of the sale.

Plaintiff attached two letters to its amended complaint. These letters purportedly evinced the modified contract or joint venture agreement between the parties. Each letter was dated April 2, 1996, and was written and signed by a representative of plaintiff. Collectively, the letters set out the terms of the agreement described in the complaint. Neither letter was signed by a representative of the trust.

Defendant moved to dismiss the amended complaint pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1996)). Defendant argued that the claims asserted in counts I and II of the complaint were unenforceable under the Frauds Act, while the claim in count III was barred by the presence of an express contract between the parties. The trial court dismissed counts I, II, and III upon those respective grounds. The court dismissed count IV upon its dismissal of the substantive counts. Each count was dismissed with prejudice. Plaintiff now appeals to this court, arguing that neither the Frauds Act nor any other applicable law should have resulted in the dismissal of its amended complaint.

We first note that defendant's motion to dismiss was improperly based upon section 2--615 of the Code. A motion to dismiss pursuant to section 2--615 attacks the legal sufficiency of the face of a complaint. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996). Defendant's motion did not do so; instead, it raised defenses that purportedly negated plaintiff's cause of action. Therefore, the motion should have been brought under section 2--619 of the Code. 735 ILCS 5/2--619 (West 1996); Lawson, 278 Ill. App. 3d at 634.

However, we are permitted to address the merits of defendant's motion as if it had been brought under the proper section, as long as plaintiff was not prejudiced by the error. Cosman v. Ford Motor Co., 285 Ill. App. 3d 250, 254 (1996). Because plaintiff argued the merits of defendant's motion in the trial court and now does so on appeal, we find no prejudice. We will therefore address the validity of the motion under section 2--619.

A motion to dismiss pursuant to section 2--619 should be granted only when there are no material facts in dispute and the moving party is entitled to dismissal as a matter of law. Rochon v. Rodriguez, 293 Ill. App. 3d 952, 958 (1997). A dismissal may be affirmed only if there exists no set of facts that could entitle the plaintiff to recover when all well-pleaded allegations in the complaint are taken as true. American National Bank & Trust Co. v. Thomas, 288 Ill. App. 3d 343, 346 (1997). When we evaluate a trial court's ruling on a motion based on section 2--619, our standard of review is de novo. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).

In count I of its amended complaint, plaintiff seeks to enforce an agreement that allegedly modified the terms of a written contract for the sale of real property. Defendant argues that plaintiff's claim is unenforceable ...


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