Braman v. Woodfield Gardens Associates

715 F. Supp. 226, 1989 U.S. Dist. LEXIS 7288, 1989 WL 72001
CourtDistrict Court, N.D. Illinois
DecidedJune 29, 1989
Docket88 C 9116
StatusPublished
Cited by10 cases

This text of 715 F. Supp. 226 (Braman v. Woodfield Gardens Associates) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braman v. Woodfield Gardens Associates, 715 F. Supp. 226, 1989 U.S. Dist. LEXIS 7288, 1989 WL 72001 (N.D. Ill. 1989).

Opinion

ORDER

BUA, District Judge.

Realcorp, Inc. (“Realcorp”), an Illinois corporation, specializes in forming limited partnerships for the purpose of investing in or acquiring residential properties. Real-corp then sells interests in the partnerships it creates. In late 1984, Realcorp’s officers — Allen Perres, William Dec, and Edward Niziol — organized a partnership called Woodfield Gardens Associates (“Woodfield Gardens”), which acquired and operated an apartment complex in Rolling Meadows, Illinois. Realcorp then offered to sell an interest in Woodfield Gardens to Braman-Leibowitz Associates No. 2 (“Bra-man-Leibowitz”), a Florida partnership. Norman Braman and Edward Leibowitz, the general partners of Braman-Leibowitz, initially balked at Realcorp’s. proposal. Neither Braman nor Leibowitz had seen *228 the apartment complex that Woodfield Gardens had acquired. In order to induce Bra-man-Leibowitz to invest immediately in Woodfield Gardens, Realcorp’s officers allegedly made an oral promise to buy back any units purchased by Braman-Leibowitz if representatives of the Florida partnership subsequently inspected the Woodfield Gardens property and determined that the investment was undesirable. Based on this inducement, Braman and Leibowitz agreed to purchase ten units in Woodfield Gardens without having seen the property. To obtain financing for this purchase, Braman-Leibowitz executed a secured recourse note in favor of Woodfield Gardens.

In May 1985, relying on the promise previously made by Realcorp’s officers, Bra-man-Leibowitz asked Realcorp to repurchase eight of the Florida partnership’s ten units in Woodfield Gardens. At this point, representatives of Realcorp and Braman-Leibowitz conducted several months of negotiations concerning the terms of the repurchase. In the meantime, Perres, Dec, and Niziol organized two new partnerships: Realcorp Investors I (“Investors I”) and Realcorp Investors VII (“Investors VII”). On February 1, 1986, representatives of Braman-Leibowitz and Investors VII entered into a sale agreement. This agreement provided that Braman-Leibowitz would convey eight units in Woodfield Gardens to Investors VII. In exchange, Investors VII agreed to assume liability on the secured recourse note executed by Bra-man-Leibowitz. Alternatively, Investors VII promised to find substitute investors who would take responsibility for the note.

In compliance with the sale agreement, Braman-Leibowitz transferred eight units in Woodfield Gardens to Investors VII. According to Braman and Leibowitz, however, Investors VII has neither assumed liability on the secured recourse note nor found substitute investors who might purchase the note. Claiming that they never received compensation for the partnership units they conveyed to Investors VII, Bra-man and Leibowitz filed this lawsuit. Their four-count amended complaint names seven defendants: Realcorp, Woodfield Gardens, Investors I, Investors VII, Perres, Dec, and Niziol. In response, defendants have moved to dismiss most of plaintiffs’ claims. Defendants have also moved to strike certain allegations made in the complaint. The court will now assess the merits of defendants’ motions.

I. Motion to Dismiss

A. Count I — Breach of Contract

Count I of plaintiffs’ complaint alleges a breach of contract by all seven defendants. Although the complaint alludes to several “agreements,” only one of these accords — the February 1986 sale agreement — could conceivably have created contractual obligations. Obviously, if the sale agreement represents a valid contract, then its terms would bind Investors VII, which agreed to purchase eight units in Woodfield Gardens from Braman-Leibow-itz. The sale agreement would also bind Perres, Dec, and Niziol, the individual partners who formed Investors VII. General partners assume ultimate liability for the unsatisfied debts of a partnership. Lyons Savings and Loan Association v. Geode Co., 641 F.Supp. 1313, 1324 n. 6 (N.D.Ill.1986); Grass v. Homann, 130 Ill.App.3d 874, 881, 85 Ill.Dec. 751, 756, 474 N.E.2d 711, 716 (1984). Defendants contend, however, that plaintiffs cannot assert a contract claim against Realcorp, Woodfield Gardens, and Investors I. This court agrees. To state a claim for breach of contract, plaintiffs must establish privity of contract with defendants: “Privity requires that the party suing has some contractual relationship with the one sued.” Crest Container Corp. v. R.H. Bishop Co., 111 Ill.App.3d 1068, 1076, 67 Ill.Dec. 727, 733, 445 N.E.2d 19, 25 (1982). Although Real-corp may have participated in negotiations regarding the repurchase of plaintiffs’ units in Woodfield Gardens, neither Real-corp, Wood field Gardens, nor Investors I entered into the February 1986 sale agreement with Braman-Leibowitz. Therefore, of the seven defendants, only Investors VII and its partners could possibly incur contractual liability. For this reason, the court dismisses Realcorp, Woodfield Gardens, and Investors VII from Count I.

*229 B.Count II — Unjust Enrichment

Count II asserts a claim for unjust enrichment. As defendants correctly observe, plaintiffs may not prevail on an unjust enrichment claim if a contract governs the relationship between the parties. See First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir.1985). Based on this principle, defendants argue that the allegation of a breach of contract in Count I precludes plaintiffs from raising an unjust enrichment claim in Count II. The Federal Rules of Civil Procedure, however, undermine defendants’ argument for dismissal of Count II. Rule 8(e)(2) provides that “a party may set forth two or more statements of a claim ... alternately or hypothetically, either in one count ... or in separate counts_ A party may also state as many separate claims ... as the party has regardless of consistency ...” Fed.R.Civ.P. 8(e)(2). Under Rule 8(e)(2), plaintiffs may raise alternative claims of breach of contract and unjust enrichment despite the inconsistency of these claims. See McIntosh v. Magna Systems, Inc., 539 F.Supp. 1185, 1190-91 (N.D.Ill.1982). Consequently, this court declines to dismiss Count II. Nonetheless, the court recognizes that plaintiffs cannot maintain an unjust enrichment claim against all seven defendants. To recover under an unjust enrichment theory, plaintiffs must show that defendants “voluntarily accepted a benefit which it would be inequitable for [them] to retain without payment.” Premier Electrical Construction Co. v. LaSalle National Bank, 132 Ill.App.3d 485, 496, 87 Ill.Dec. 721, 729, 477 N.E.2d 1249, 1257 (1984). Of the seven defendants, only Investors VII and its partners voluntarily accepted a benefit from Braman-Leibowitz.

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715 F. Supp. 226, 1989 U.S. Dist. LEXIS 7288, 1989 WL 72001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braman-v-woodfield-gardens-associates-ilnd-1989.