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Vc&M, Ltd., D/B/A Re/Max Elite v. Cindy andrews and Robert andrews

April 16, 2012

VC&M, LTD., D/B/A RE/MAX ELITE,
PLAINTIFF-APPELLANT,
v.
CINDY ANDREWS AND ROBERT ANDREWS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 10-AR-3951 Honorable Bruce R. Kelsey, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Zenoff concurred in the judgment and opinion.

OPINION

¶ 1 Defendants, Robert and Cindy Andrews, entered into a real estate listing agreement with plaintiff, VC&M, Ltd., to list their marital residence for sale. Plaintiff procured a potential buyer who submitted an offer for less than the asking price. Defendants, who were in the process of dissolving their marriage, rejected the offer, instead arranging for Cindy to purchase Robert's interest in the home and continue residing there. Robert transferred his interest to Cindy as part of a marital settlement agreement, and defendants refused to pay plaintiff a commission.

¶ 2 Plaintiff filed an amended complaint alleging claims of breach of contract and for an account stated. The trial court dismissed the amended complaint, and plaintiff appeals. We dismiss the appeal for lack of jurisdiction on the ground that plaintiff violated the circuit court's local rule prohibiting the electronic filing (e-filing) of certain motions and all notices of appeal.

¶ 3 FACTS

¶ 4 On December 15, 2010, plaintiff filed a two-count amended complaint alleging claims of breach of contract and for an account stated. Plaintiff alleged that, on November 24, 2009, it entered into a contract with defendants to list their home for sale for $1,350,000. Through plaintiff's efforts, a couple submitted an offer of $1,126,000 on March 31, 2010. The prospective buyers allegedly were ready, willing, and able to close on their offer. However, the offer was $224,000 less than the asking price specified in the listing agreement.

¶ 5 Defendants rejected the bid and did not make a counteroffer. Specifically, Cindy informed Susan Mitch, the listing agent employed by plaintiff, that defendants would not pursue the bid because Cindy intended to "buy out" Robert's interest in the home and remain living there herself. Defendants did not pursue negotiations with the prospective buyers, and no further offers were made by any prospective buyer. The listing agreement expired on April 6, 2010.

¶ 6 On August 4, 2010, in the unrelated divorce proceedings, the circuit court entered a judgment for dissolution of marriage, which incorporated a settlement agreement. The settlement provided that Cindy would buy out Robert's share of the marital home. For purposes of determining the parties' interests in the property, Cindy and Robert stipulated that the fair market value of the home was $1,126,005, which was $5 more than the offer that defendants had rejected.

¶ 7 Based on the transfer of Robert's interest to Cindy, plaintiff asserted that it had earned a commission under the listing agreement. Plaintiff alleged that it complied with all terms and conditions of the agreement and made a timely demand for payment of the commission. Plaintiff sought the commission and prejudgment interest (see 815 ILCS 205/2 (West 2010)) accruing since March 31, 2010, when the prospective buyers submitted their offer. Plaintiff also alleged that defendants and their real estate attorney sent e-mail correspondence acknowledging that defendants owed plaintiff the commission.

¶ 8 Cindy and Robert filed motions to dismiss the amended complaint on December 29, 2010, and January 5, 2011, respectively. Defendants argued that the amended complaint must be dismissed with prejudice for failure to state a claim. See 735 ILCS 5/2-615 (West 2010). Plaintiff e-filed, without agreement or stipulation of the parties, its response to the motions to dismiss.

¶ 9 On February 23, 2011, the trial court dismissed with prejudice the amended complaint. On March 25, 2011, plaintiff e-filed a motion to reconsider the dismissal. Plaintiff filed a paper copy of the motion on April 25, 2011, and the trial court denied the motion on the same day. Plaintiff e-filed a notice of appeal on May 25, 2011.

¶ 10 ANALYSIS

ΒΆ 11 On November 16, 2011, defendants moved to dismiss the appeal for lack of jurisdiction. Defendants argued that plaintiff violated the circuit court's local rule governing e-filing, and therefore plaintiff did not timely file a motion to reconsider or notice of appeal. We initially denied the motion to dismiss, but we revisit the issue because this court has a continuing duty to assess our jurisdiction. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 251-52 (2010) (a ...


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