Kilbane v. Collins

372 N.E.2d 415, 56 Ill. App. 3d 707, 14 Ill. Dec. 404, 1978 Ill. App. LEXIS 2023
CourtAppellate Court of Illinois
DecidedJanuary 19, 1978
Docket76-373
StatusPublished
Cited by10 cases

This text of 372 N.E.2d 415 (Kilbane v. Collins) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kilbane v. Collins, 372 N.E.2d 415, 56 Ill. App. 3d 707, 14 Ill. Dec. 404, 1978 Ill. App. LEXIS 2023 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE BOYLE

delivered the opinion of the court:

Frank Kilbane, hereinafter plaintiff, appeals from the trial court’s dismissal of count II of his complaint against James Collins, hereinafter defendant, for failure to allege compliance with the statute pertaining to the licensing of real estate brokers (Ill. Rev. Stat. 1965, ch. 114½, pars. 1,2, 2b).

On appeal, plaintiff’s main contention is that his participation in this real estate transaction was not an activity limited by statute (Ill. Rev. Stat. 1965, ch. 114½, pars. 1, 2, 2b) to licensed real estate brokers or salesmen and, thus, entitles plaintiff to a fee for his services. We find this contention to be entirely without merit and we affirm the judgment of the circuit court of Lake County.

Prior to a discussion of this issue, however, it is necessary to set out in detail the pleadings of the parties and the nature of the trial court’s orders so that this court may establish a basis for reaching the merits of the controversy.

Plaintiff filed a two-count verified complaint against the defendant on June 24, 1971, in the circuit court of Lake County. Count I alleged under oath the existence of a verbal partnership agreement entered into by plaintiff and defendant on July 25, 1961, whereby the defendant was to provide the purchasing capital and the plaintiff was to negotiate the purchase and sale of certain property. Count I also asserted that the plaintiff had negotiated with the ultimate purchasers from 1967 to 1970 and requested an accounting, a money judgment against the defendant, and a dissolution of the partnership and a distribution of its assets. Count II realleged under oath all the allegations of count I and additionally alleged that the plaintiff was a man of great knowledge and skill in the real estate business and had expended great amounts of time and money over a period of 10 years to effectuate the sale of the partnership assets. Count II requested that the plaintiff be awarded damages pursuant to a contract or, in the alternative, a quantum meruit amount of damages.

On February 5, 1973, the defendant filed his answer, which denied the allegations contained in plaintiff’s complaint and further alleged that plaintiff offered the property for sale in his capacity as a real estate broker. On March 16, 1976, the defendant was given leave to file a motion for summary judgment as to count I and a motion to dismiss as count II.

Defendant’s motion for summary judgment as to count I, which he was given leave to file on March 16,1976, asserted that plaintiff had admitted in a sworn deposition that there had never been a partnership agreement relating to the subject real estate. Defendant’s motion to dismiss as to count II, which he was also given leave to file on March 16, 1976, maintained that the plaintiff was claiming a commission and that the plaintiff had not alleged anywhere in his pleadings that at any time relevant to this transaction was he a licensed real estate broker or salesman in the State of Illinois and thus entitled to compensation for services rendered in the sale of real estate. Also, on March 16, 1976, the defendant’s motion for summary judgment as to count I was allowed, and the plaintiff was “granted leave to file Count II of his complaint instanter « o # » piaintiff was further given leave to file his answer to defendant’s motion to dismiss as to count II within 14 days of March 16, 1976. Plaintiff’s original count II, however, was never ruled upon by the trial court at any time either before or after the plaintiff was granted leave to file his “new” count II.

Thereafter, plaintiff filed a new, unverified count II which alleged that on April 22, 1965, plaintiff and defendant “entered into a verbal agreement whereby the Defendant was to pay to the Plaintiff a fee in the event that the Plaintiff was able to introduce the Defendant to eventual purchasers of” certain described property. Plaintiff further alleged that he was owed a fee of *45,000, five percent of the sales price of *900,000, for the sale of defendant’s property in 1970 to purchasers whom plaintiff had introduced to the defendant on or about May 1, 1965.

On April 1, 1976, plaintiff filed an answer to defendant’s motion to dismiss count II. Plaintiff’s answer denied he claimed a commission as a real estate broker or salesman but asserted that he was to be paid a fee for the introduction of the defendant to the eventual purchasers of the property. Plaintiff also denied that the oral contract fell within the statute of frauds for the reason, among others, that it was capable of performance within one year. The trial court dismissed plaintiff’s “new” count II, and plaintiff appeals from the entry of this order.

First, we note, as the defendant points out, that plaintiff’s “old” count II was never properly acted upon by the trial court at any time prior to the trial court’s granting plaintiff leave to file a “new” count II. This failure of the trial court to properly dispose of the plaintiff’s “old” count II does not prevent this court from reaching the merits of plaintiff’s “new” count II on appeal. We interpret the trial court’s actions in granting plaintiff leave to file a “new” count II to constitute, in effect, a dismissal of plaintiff’s “old” count II and an amendment of his complaint as to the “new” count II. Our liberal construction of the trial court’s actions gives due deference to the sound discretion of the trial court in permitting plaintiff to file a “new” count II. Its discretionary decision in allowing plaintiff to accomplish, in effect, an amendment of his complaint clearly did not unduly prejudice the defendant in this cause because the defendant was permitted to present in toto his theory of the case via his pleadings. (People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 235 N.E.2d 589; Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164; Hamer v. Mahin (1973), 13 Ill. App. 3d 51, 299 N.E.2d 595.) Therefore we hold the trial court properly permitted plaintiff to amend his pleadings by filing a “new” count II and determined this controversy on its merits instead of upon a procedural technicality in the furtherance of justice. LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70.

The defendant further argues that plaintiff should be bound by his prior verified pleadings contained in count I and the “old” count II and that the trial court could properly look behind the “new” count II and see “the obvious subterfuge of the new pleading and properly dismiss the case.” Defendant cites no authority in support of his position, but the law on this procedural and evidentiary point is well settled. This court recently stated in Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 670-71, 307 N.E.2d 749, 752:

“Where the original pleading is verified it remains part of the record upon the filing of an amended pleading.

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Bluebook (online)
372 N.E.2d 415, 56 Ill. App. 3d 707, 14 Ill. Dec. 404, 1978 Ill. App. LEXIS 2023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kilbane-v-collins-illappct-1978.