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Djikas v. Grafft

October 27, 2003


Appeal from the Circuit Court of Cook County. No. 00 CH 1015 Honorable Julia Nowicki, Judge Presiding.

The opinion of the court was delivered by: Justice Gordon


The instant cause of action arose from a lease between plaintiff Mary Djikas and defendant John Grafft, which included an option to purchase. Plaintiff brought an action for a declaratory judgment and specific performance to enforce the option, which was granted by the trial court. The trial court subsequently granted plaintiff's petition for further relief, requiring defendant to satisfy a mortgage on the property before transfer. Over two months later, defendant presented an oral motion in the trial court requesting a final and appealable order, which the court granted. Defendant now appeals the final and appealable order. We dismiss defendant's appeal for lack of subject matter jurisdiction.


In October 1996, the home of plaintiff's son, Paul, was sold for delinquent taxes. Shortly thereafter, Paul entered into an agreement with defendant, whereby defendant purchased the tax deed for the home from the tax purchaser and acquired title. Defendant then obtained a mortgage on the property from a mortgagee referred to as "BNC Mortgage." *fn1 Upon acquiring title to the home, defendant entered into a lease with Paul's mother, plaintiff Mary Djikas. Although Paul negotiated the terms of the lease and stated that he would be the person who actually paid the rent, plaintiff signed the lease as lessee. The lease provided that Paul would live in the home and pay rent at a rate of $7,575.80 for the first month and $977.49 plus taxes and insurance, for a total of $2,135, each month thereafter. It also included an option to purchase the home for $79,931.98 in addition to the cost of renovations to be calculated pursuant to paragraph 33 of the lease. Paragraph 33 provided that plaintiff must pay 110% of the cost of any renovations paid for by defendant as well as a 25% oversight fee for such renovations at an annual interest rate of 18%. The lease commenced on April 1, 1997, and expired March 31, 1998.

In December 1997 or January 1998, the parties entered into negotiations regarding plaintiff's purchase of the home from defendant. In February 1998, plaintiff's attorney wrote defendant a letter acknowledging a prior conversation during which defendant agreed to extend the current lease one month, until April 30, 1998, and agreed to grant plaintiff a new five-year lease with an option to purchase at "any time during the lease term, with the rental to be determined by [defendant]." The letter further provided that defendant was willing to help plaintiff obtain a loan to repair and purchase the home. A new five-year lease was never reduced to writing.

According to the trial testimony, defendant and plaintiff began repairs on the home in March 1998, in order to enable plaintiff to obtain a mortgage to purchase the property, and, in December 1998, defendant referred plaintiff to a mortgage broker to aid her in obtaining a mortgage. In February 1999, defendant sent a letter to plaintiff informing her that the purchase price of the home would be $250,000. Discussions regarding the purchase price ensued over the next couple of months. In March, defendant paid off the BNC mortgage and obtained a $280,000 mortgage on the property from mortgagee "Washington Mutual," *fn2 for which he began making monthly mortgage payments. One month later, plaintiff's attorney sent defendant a letter, which was introduced into evidence, announcing plaintiff's exercise of the option to purchase, and offering a purchase price of $165,637.23. Defendant rejected plaintiff's tender, responding that the original lease and option had expired on April 30, 1998, as no new lease had been drafted.

In January 2000, plaintiff filed her first complaint for declaratory relief and specific performance of the lease, and in March or April of that year, defendant sent plaintiff a notice that the rent would be increased to $5,735 per month. Plaintiff continued paying $2,135 a month through November 2000, at which time she ceased paying rent altogether. At that time, defendant began paying the taxes and insurance on the home.

On April 5, 2001, plaintiff filed her third amended complaint in the circuit court and it is that amended complaint which now frames the issues for appeal. The complaint alleged the existence of a lease and option to purchase, the terms of which were contained in the original lease signed by the parties in April 1997. Pursuant to these terms, count I of the complaint requested a declaratory judgment construing the lease and option to purchase, particularly the above-mentioned paragraph 33, in order to establish the purchase price of the property, as well as a declaration of the correct purchase price. Count II prayed for specific performance of the pre-existing written lease, thereby enabling the sale and transfer of the property. On April 16, 2001, defendant filed an answer and counterclaim, which denied the existence of a lease and option to purchase, as the alleged lease had expired April 30, 1998. Defendant further prayed for unpaid rent, which had been withheld since November 2000.

A bench trial commenced on May 1, 2001, and was continued a number of times over the next several months. On September 20, 2001, the trial court entered the following written order:

"1. On plaintiff's action for declaratory judgment, the court declares the purchase price under the contract to be $158,734.60.
2. On defendant's counterclaim for rent, judgment is entered for the defendant in the amount of $21,350 representing rent due through September, 2001.
3. The contract shall be performed by adding the rent due to the purchase price.
4. Rent shall continue to accrue at $2,135 per month due on the first day of the month.
5. Plaintiff shall tender the purchase price on or before November 5, 2001, closing to occur within a reasonable time thereafter."
Neither party filed any postjudgment motions to reconsider, vacate or modify.

On November 1, 2001, plaintiff filed a "petition for further relief" alleging that she attempted to tender the previously declared purchase price to defendant, but that defendant refused to satisfy an outstanding $270,000 mortgage lien held by Washington Mutual before transferring the property. The petition argued that defendant's theory, that he need not convey title to the property clear of the mortgage lien, was inconsistent with the court's previous declaration of rights. Plaintiff requested further relief by way of a declaration requiring defendant to satisfy the $270,000 mortgage prior to accepting the purchase price. On December 3, 2001, the court entered the following written order:

"1. Defendant shall communicate with Plaintiff's counsel to arrange a closing on a date and time that is at the earliest possible convenience of the parties and no later than February 1, 2002.
2. At the closing, Defendant shall convey fee simple title to the premises via quit claim deed subject only to the encumbrances specified in paragraph 5, sub-sections (a) through (i) of the Rider.
3. The closing shall otherwise proceed in accordance with the terms of the Rider and the declaratory judgment that has been rendered by this Court.
4. Plaintiff shall not be responsible for rent accruing after October 31, 2001, but Plaintiff shall be responsible for real estate taxes accruing after October 31, 2001.
5. Plaintiff's request for sanctions is denied." Again, no postjudgment motions were filed.

On February 4, 2002, plaintiff filed a petition for rule to show cause why defendant should not be held in contempt of court for willfully violating the orders of the court. Plaintiff alleged she was ready, willing and able to proceed to closing, but that defendant refused to close the ordered transaction by the required date. Plaintiff requested that defendant be held in contempt and that punitive and coercive sanctions be imposed. On February 15, 2002, the parties appeared before the circuit court on plaintiff's petition for rule to show cause and, according to the court's order, it appears as though defendant made an oral "motion for entry of final and appealable order," although no written motion has been provided in the record. Plaintiff's response to the motion has been provided, however, and it denied the need for a final and appealable order because, it ...

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