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Talerico v. Olivarri

Case Date: 08/29/2003
Court: 1st District Appellate
Docket No: 1-02-2961 Rel

SIXTH DIVISION
August 29, 2003



No. 1-02-2961

ROBERT J. TALERICO and
MICHAEL A. MARTIN,

            Plaintiffs-Appellants,

v.

RUDOLPH OLIVARRI and
LUZ STELLA OLIVARRI,

            Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
Cook County





Honorable
Richard J. Billik,
Judge Presiding.


PRESIDING JUSTICE O'BRIEN delivered the opinion of thecourt:

Plaintiffs, Robert J. Talerico and Michael A. Martin,contracted to purchase certain real estate from defendants,Rudolph and Luz Stella Olivarri. Defendants breached thecontract, and plaintiffs filed a two-count complaint fordeclaratory judgment and specific performance. The court grantedplaintiffs specific performance and dismissed the declaratoryjudgment count. Thereafter, plaintiffs filed a first amendedcomplaint seeking damages from defendants for their delay in theperformance of the contract. The trial court dismissed (735 ILCS5/2-619 (West 2002)) plaintiff's complaint for damages, findingthat such damages were not reasonably foreseeable and wereinconsistent with the grant of specific performance. Plaintiffsappeal. We reverse and remand for further proceedings.

Plaintiffs owned and operated a bakery at 7652 West 63rdStreet. Defendants owned a building immediately west andadjacent to plaintiffs' property. In July 2000, the partiesentered into a real estate contract pursuant to which defendantsagreed to sell their building to plaintiffs for $118,000.

Defendants requested and plaintiffs agreed to continue theclosing date from July 29, 2000, to August 27, 2000. Defendantsbreached the contract by failing to convey the property on August27, 2000.

On September 20, 2000, plaintiffs filed a two-countcomplaint against defendants. Count I requested the court todeclare the contract to be in full force and effect and bindingon all parties and to enter an order granting plaintiffsreasonable attorney fees, costs, and other appropriate relief. Count II requested the court to direct the defendants tospecifically perform and fulfill the terms of the contract, toenjoin the defendants from conveying any interest in the propertyto any person other than the plaintiffs, and to award plaintiffstheir reasonable attorney fees, costs, and other appropriaterelief.

On December 6, 2001, defendants filed a motion tovoluntarily tender specific performance on count II of thecomplaint. On December 27, 2001, the court entered an ordergranting 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 complaintseeking damages from defendants for their delay in theperformance of the contract. Specifically, plaintiffs soughtreimbursement for rents and related expenses they paid on otherproperty during the time the contract was to be performed. Plaintiffs also sought damages for the loss of certain taxbenefits caused by defendants' delay in closing.

The trial court dismissed plaintiffs' first amendedcomplaint for damages pursuant to section 2-619 of the Code ofCivil Procedure (735 ILCS 5/2-619 (West 2002)), finding that suchdamages were inconsistent with the grant of specific performanceand were not reasonably foreseeable. Plaintiffs filed thistimely appeal.

A section 2-619 motion to dismiss admits the legalsufficiency of a plaintiff's complaint while raising a defect,defense or other affirmative matter that appears on the face ofthe complaint or is established by external submissions anddefeats 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 questionof law, which is reviewed de novo. Joseph, 306 Ill. App. 3d at930.

First, plaintiffs argue that the trial court erred byfinding that their complaint for damages was inconsistent withthe grant of specific performance. The trial court primarilyrelied 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 abreach of contract action against the defendant for its failureto timely convey certain property to plaintiffs. Arnold, 95 Ill.App. 3d at 503-04. In count II of their complaint, plaintiffssought specific performance and damages for the delay, includingincidental 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 countII and the plaintiffs appealed. Arnold, 95 Ill. App. 3d at 503.

Citing 71 Am. Jur. 2d Specific Performance