Appeal from Circuit Court of Vermilion County No. 96CH34 Honorable Thomas J. Fahey, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
In April 1996, plaintiff, Douglas W. Crawley, sued defendant, Mark Hathaway, for specific performance of a written contract involving the sale of real property from Hathaway to Crawley. In January 1999, after the parties had engaged in discovery, Hathaway filed a motion for summary judgment, alleging section 2 of the Frauds Act (740 ILCS 80/2 (West 1998)), often referred to as the "Statute of Frauds," as a defense. In February 1999, Crawley moved to strike Hathaway's motion as untimely. The trial court denied that motion and ultimately granted Hathaway's motion for summary judgment. Crawley appeals, arguing that the trial court erred by (1) determining that the Statute of Frauds bars enforcement of the purported contract and (2) permitting Hathaway to untimely raise the Statute of Frauds in his motion for summary judgment. We reverse and remand.
During the spring of 1995, the parties negotiated Crawley's possible purchase of property owned by Hathaway. Around the beginning of June 1995, Hathaway prepared and the parties signed a handwritten document (hereinafter the document) that is the subject of this litigation. The document, in its entirety and in the following format, reads as follows:
"Agreement to Buy 100 Acres More or less, 83 acres of pasture & timber and 19 acres of tillable ground For $90,000 Seller Mark Hathaway Buyer Doug Crawley"
When the document was executed, Crawley gave Hathaway as down payment a check for $7,500, which Hathaway cashed. Hathaway then contacted a banker in an effort to help Crawley obtain financing.
Hathaway did not know the exact acreage he was selling but believed it to be "100 acres[,] more or less." The land consisted of woods and tillable ground that was in pasture and hay.
In August 1995, Hathaway commissioned a survey to acquire a legal description of the property and picked a beginning point for the survey to be done. Both parties were present during the performance of the survey and directed the surveyor as to the boundary lines for the land that was contemplated as the subject of the sale. This survey was completed in October 1995. Between October 1995 and January 1996, Hathaway changed his mind about the sale because he believed the area surveyed exceeded the size of what he intended to sell. In January 1996, Hathaway refused to transfer the property to Crawley and instead listed it with a real estate broker at a price of $150,000. The acreage on that listing was "127 acres more or less."
In January 1997, Crawley filed a request for admission of facts and genuineness of document pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216). Because Hathaway did not respond, Crawley's request for admission of facts stands admitted, establishing the following facts in this case: (1) Hathaway drafted the document; (2) Hathaway owned the property that was the subject of the document; (3) Hathaway provided a legal description by ordering a survey; (4) Hathaway received a $7,500 down payment from Crawley; and (5) Hathaway later contracted to sell the land to a third party. Subsequently, the court considered (over Crawley's objection) Hathaway's January 1999 motion for summary judgment and granted that motion.
Summary judgment is appropriate only when the pleadings, depositions, admissions, and affidavits, if any, demonstrate that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Hubble v. O'Connor, 291 Ill. App. 3d 974, 979, 684 N.E.2d 816, 820 (1997). The Statute of Frauds provides, in pertinent part, as follows: "No action shall be brought to charge any person upon any contract for the sale of lands *** unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith ***." 740 ILCS 80/2 (West 1998).
In Callaghan v. Miller, 17 Ill. 2d 595, 599, 162 N.E.2d 422, 424 (1959), the supreme court addressed what a purported written contract for real property needed to contain to comply with the Statute of Frauds:
"The memorandum is sufficient to satisfy the Statute of Frauds if it contains upon its face the names of the vendor and the vendee, a description of the property sufficiently definite to identify the same as the subject matter of the contract, the price, terms and conditions of the sale, and the signature of the party to be charged."
The subject matter of the contract in Callaghan, 17 Ill. 2d at 599, 162 N.E.2d at 424, was described as follows:
"'[T]he Altha Martin property located on Route 25, north of the city of Batavia, Illinois (not in corporation). This area comprises five acres more or less. The space now occupied by 20 trailers[,] is properly licensed and zoned by the State of Illinois and Kane County Zoning Dept. (non- conforming use).'"
The supreme court in Callaghan affirmed the trial court's rejection of the Statute of Frauds ...