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Talerico v. Olivarri

August 29, 2003

ROBERT J. TALERICO AND MICHAEL A. MARTIN, PLAINTIFFS-APPELLANTS,
v.
RUDOLPH OLIVARRI AND LUZ STELLA OLIVARRI, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County Honorable Richard J. Billik, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice O'brien

UNPUBLISHED

Plaintiffs, Robert J. Talerico and Michael A. Martin, contracted to purchase certain real estate from defendants, Rudolph and Luz Stella Olivarri. Defendants breached the contract, and plaintiffs filed a two-count complaint for declaratory judgment and specific performance. The court granted plaintiffs specific performance and dismissed the declaratory judgment count. Thereafter, plaintiffs filed a first amended complaint seeking damages from defendants for their delay in the performance of the contract. The trial court dismissed (735 ILCS 5/ 2-619 (West 2002)) plaintiff's complaint for damages, finding that such damages were not reasonably foreseeable and were inconsistent with the grant of specific performance. Plaintiffs appeal. We reverse and remand for further proceedings.

Plaintiffs owned and operated a bakery at 7652 West 63rd Street. Defendants owned a building immediately west and adjacent to plaintiffs' property. In July 2000, the parties entered into a real estate contract pursuant to which defendants agreed to sell their building to plaintiffs for $118,000.

Defendants requested and plaintiffs agreed to continue the closing date from July 29, 2000, to August 27, 2000. Defendants breached the contract by failing to convey the property on August 27, 2000.

On September 20, 2000, plaintiffs filed a two-count complaint against defendants. Count I requested the court to declare the contract to be in full force and effect and binding on all parties and to enter an order granting plaintiffs reasonable attorney fees, costs, and other appropriate relief. Count II requested the court to direct the defendants to specifically perform and fulfill the terms of the contract, to enjoin the defendants from conveying any interest in the property to any person other than the plaintiffs, and to award plaintiffs their reasonable attorney fees, costs, and other appropriate relief.

On December 6, 2001, defendants filed a motion to voluntarily tender specific performance on count II of the complaint. On December 27, 2001, the court entered an order granting specific performance on count II and dismissing count I. The parties closed on the sale of the property on February 15, 2002.

Plaintiffs subsequently filed a first amended complaint seeking damages from defendants for their delay in the performance of the contract. Specifically, plaintiffs sought reimbursement for rents and related expenses they paid on other property during the time the contract was to be performed. Plaintiffs also sought damages for the loss of certain tax benefits caused by defendants' delay in closing.

The trial court dismissed plaintiffs' first amended complaint for damages pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2002)), finding that such damages were inconsistent with the grant of specific performance and were not reasonably foreseeable. Plaintiffs filed this timely appeal.

A section 2-619 motion to dismiss admits the legal sufficiency of a plaintiff's complaint while raising a defect, defense or other affirmative matter that appears on the face of the complaint or is established by external submissions and defeats the plaintiff's claim. 735 ILCS 5/2-619 (West 2002); Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, (1999). An appeal from a section 2-619 motion raises a question of law, which is reviewed de novo. Joseph, 306 Ill. App. 3d at 930.

First, plaintiffs argue that the trial court erred by finding that their complaint for damages was inconsistent with the grant of specific performance. The trial court primarily relied on Arnold v. Leahy Home Building Co., 95 Ill. App. 3d 501 (1981), and Douglas Theater Corp. v. Chicago Title & Trust Co., 288 Ill. App. 3d 880 (1997). In Arnold, the plaintiffs brought a breach of contract action against the defendant for its failure to timely convey certain property to plaintiffs. Arnold, 95 Ill. App. 3d at 503-04. In count II of their complaint, plaintiffs sought specific performance and damages for the delay, including incidental and consequential damages for storage, extra housing, additional costs of mortgage financing and commuting expenses. Arnold, 95 Ill. App. 3d at 509. The trial court dismissed count II and the plaintiffs appealed. Arnold, 95 Ill. App. 3d at 503.

Citing 71 Am. Jur. 2d Specific Performance §217, at 279 (1973), the appellate court held that once a plaintiff affirms the contract and obtains specific performance, essentially erasing the breach, he cannot also seek damages at law for breach of contract as such damages are inconsistent with the erasure of the breach. Arnold, 95 Ill. App. 3d at 509. The appellate court then held that even if plaintiff's claim was for damages "incident to a decree for specific performance [and] not for breach of contract" (Arnold, 95 Ill. App. 3d at 509), such damages were still not allowable:

"We do not find any Illinois authority for the proposition that damages for storage, extra housing, additional costs of mortgage financing and commuting expenses are recoverable as incidental to a specific-performance suit. *** [Further,] rent paid by a party seeking specific performance, for other premises, after the other party should have conveyed may not be the basis for recovery ***." Arnold, 95 Ill. App. 3d at 509-10.

Accordingly, the appellate court held that plaintiffs' claim for damages should have been stricken. ...


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