Hubble v. O'Connor

No. 1-96-1095

RON HUBBLE and BARBARANN HUBBLE, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellants, ) Cook County.
)
v. ) No. 93 L 09826
)
PAUL O'CONNOR and LYNDA SIMON, ) Honorable
) Kenneth L. Gillis,
Defendants-Appellees. ) Judge Presiding.

JUSTICE ZWICK delivered the opinion of the court:
Plaintiffs, Ron and Barbarann Hubble, appeal from a grant of
summary judgment entered by the circuit court in favor of
defendants, Paul O'Connor and Lynda Simon. In their complaint,
plaintiffs (sometimes hereinafter, "sellers") sought to recover
damages from the defendants (sometimes hereinafter, "purchasers")
for an alleged breach of a contract to purchase certain
residential real estate. Only count I of the sellers' complaint,
that count relating to a breach of contract claim, is before us
on appeal.
The facts of this case revolve around a common real estate
transaction involving the purchase of a condominium. The written
contract at issue contained an attorney review provision which
allowed the contract to be voided if either sellers' or
purchasers' attorney gave written notice of disapproval within 5
business days after formation of the contract. Although the
agreement was signed and tendered by defendant-purchaser Paul
O'Connor to seller-plaintiff Ron Hubble, the parties continued to
discuss modifications to the agreement past the disapproval
period. Two weeks after the disapproval period had expired,
purchasers' attorney gave notice that he was invoking the
disapproval clause. The parties filed cross-motions for summary
judgment and, on February 28, 1996, the circuit court entered
judgment in favor of the purchasers and against the sellers.
The contract is a standardized real estate sales agreement
widely used in the Chicago area. The agreement was executed on
June 8, 1993. The attorney disapproval clause within the
agreement states in pertinent part:
"This contract is contingent upon the
approval hereof as to form by the attorney(s)
for Buyer and Seller within 5 Business days
after Seller's acceptance of this contract.
Unless written notice of disapproval is given
within the time period specified above, then
this contingency shall be deemed waived and
this contract will remain in full force and
effect.
If written notice of disapproval is
given within the time period specified above,
this contract shall be null and void and the
earnest money shall be returned to the
Purchaser."
The contract also provides that notice of disapproval may be
given or accepted by either of the parties' attorneys.
Although the attorney disapproval clause expired by its own
terms on June 15, 1993, the parties agreed on that day to extend
the disapproval period to June 22, 1993. This extension was
memorialized in a letter from purchasers' attorney to sellers'
attorney. Sellers' attorney returned the letter to purchasers'
attorney with his signature, formally approving the extension.
On June 17, 1993, purchasers' attorney faxed to the sellers
a "proposed Rider to the contract for review and comment." On
June 18, 1993, sellers' attorney submitted modifications to the
purchasers' proposed rider. On June 21, 1993, purchasers'
attorney incorporated the sellers' modifications into the rider
and faxed the rider back to sellers' attorney. At this point in
time the rider was finalized, but had not yet been executed.
On June 22, 1993, the last day of the contract disapproval
period, sellers' attorney telephoned purchasers' attorney to
inquire whether purchasers would agree to delaying the possession
date. He suggested that the sellers lease the property back from
purchasers for a short period of time following the closing.
Purchasers' attorney responded by proposing trading the later
possession date for a change in the form of the earnest money.
Sellers' attorney agreed to the change in a telephone call that
same day.
On June 30, 1993, sellers' attorney received the last rider
from purchasers' attorney. This rider incorporated all the
changes discussed on June 22, 1993, but left the exact possession
date blank. Upon receipt of the document, sellers' attorney
telephoned the office of purchasers' attorney and was instructed
that the possession date to be inserted into the blank was "on or
before August 23, 1993." The rider, however, remained unexecuted.
On July 6, 1993, in a letter written to sellers' attorney,
purchasers' attorney summarily stated he had "withdrawn attorney
approval." He requested that the sellers return to his clients
their earnest money.
On August 7, 1993, sellers put the property back on the
market. The property ultimately sold at the end of January, 1994,
for $315,000, an amount $15,000 less than provided in the June 8
contract. Sellers claimed in their complaint that, in addition to
selling the property at a lower price, they were forced by
purchasers' breach to incur costs of $15,698.83 in carrying the
property from August 1993 through January 1994.
In seeking summary judgment, sellers asserted that the
purchasers had not exercised the attorney disapproval clause in a
timely manner, and that the attempt to exercise it on July 6,
1993, was designed simply to exculpate purchasers from their
binding contractual obligation to purchase the property. Sellers
noted that purchasers conceded during discovery that part of
their motivation in having their attorney withdraw his approval
for the agreement was because defendant Paul O'Connor had a
business opportunity to relocate from Chicago to Budapest,
Hungary. Sellers also included in the motion excerpts from the
deposition of defendant Lynda Simon in which she stated that,
although she had not actually signed the June 8, 1993, real
estate agreement itself, she had given permission to Paul
O'Connor to sign her name to the contract. An examination of the
sales agreement shows that both Lynda Simon and Paul O'Connor are
identified as "purchasers." Lynda's signature, however, is
followed by the annotation, "by Paul."
Purchasers filed their cross motion for summary judgment
asserting both that the attorney disapproval provision had been
properly exercised and that the Illinois Fraud Act (the Statute
of Frauds) prevented sellers' from enforcing the agreement.
Purchasers based their Statute of Frauds argument on the fact
that Lynda Simon had never actually signed the sales agreement
and that it had been signed only by Paul. They argued that the
contract was therefore incomplete and therefore could not be
enforced against either Lynda or Paul. They also argued that the
sellers' failure to sign the proposed rider which had been
negotiated by the attorneys, but ultimately disapproved by their
attorney prior to its execution, precluded contract formation.
As we have noted, the trial court granted purchasers'
summary judgment motion and denied sellers' motion. The court
ruled that the riders and letters written by purchasers' attorney
constituted disapproval and thus voided the contract.
In Illinois, summary judgment is governed by the provisions
of section 2-1005 of the Code of Civil Procedure. 735 ILCS
5/2-1005 (West 1994). Summary judgment is recognized to be a
drastic remedy which is properly granted only where the movant's
right to it is clear and free from doubt. Vicorp Restaurants v.
Corinco Insulating Co., 222 Ill. App. 3d 518, 584 N.E.2d 229
(1991). The purpose of the summary judgment procedure is to
determine whether there are any genuine issues of material facts
between the parties. Vallejo v. Mercado, 220 Ill. App. 3d 1, 580 N.E.2d 655 (1991). Summary judgment should be granted only if the
pleading, depositions, admissions and affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Dash
Messenger Service, Inc. v. Hartford Insurance Co., 221 Ill. App.
3d 1007, 582 N.E.2d 1257 (1991).
When all parties move for summary judgment, as here, the
trial court is invited to decide the issues presented to it as a
matter of law, and entry of summary judgment for one party or the
other is proper. Maywood Proviso State Bank v. York State Bank &
Trust Co., 252 Ill. App. 3d 164, 171, 625 N.E.2d 83 (1993).
Review in the appellate court of a grant of summary judgment is
de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co.,
154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).
In this case, the dispositive issues are: (1) whether the
parties entered into a valid contract on June 8, 1993, when Ron
Hubble and Paul O'Connor signed the sales agreement; (2) if there
was a valid contract, whether the parties' subsequent discussions
concerning the proposed rider acted as an implied disapproval;
and (3) whether the failure of defendant Lynda Simon to sign her
own name to the agreement precludes enforcement of the contract
against either her or her co-defendant, Paul O'Connor.
We begin our analysis by noting that contract formation
requires only the existence of an offer, an acceptance, and
consideration. La Salle National Bank v. Vega, 167 Ill. App. 3d
154, 520 N.E.2d 1129 (1988). In addition, to be enforceable, an
agreement must be sufficiently definite so that the terms thereof
are reasonably certain and able to be determined. Kraftco Corp.
v. Kolbus, 1 Ill. App. 3d 635, 274 N.E.2d 153 (1971). Putting
aside for the purposes of our initial discussion the Statute of
Frauds questions presented, the record establishes that the
purchasers submitted an offer to buy the sellers' condominium,
promising to pay $330,000. The offer contained a condition
subsequent, i.e., if either attorney disapproved of the contract
within a certain period, the contract would become void. Sellers
accepted the offer on June 8, 1993. Clearly then, at this point
in time, a binding contract was formed subject only to a
condition subsequent. "[A]n offer that states that it is
`subject' to the approval of the attorneys of both parties
creates a contract the moment it is accepted." Corbin on
Contracts, Rev. Ed., Sec. 3.7, p. 336. The essential terms of the
contract were that Ron and Barbarann Hubble would sell unit
number 9 at 1616 N. Hudson, Chicago, for $330,000, to be paid by
Lynda Simon and Paul O'Connor at closing.
In pronouncing its ruling, the circuit court found that the
writings between the parties after June 8, while "not a flat
disapproval or condition approval," were, nonetheless, "a
modification." The court noted the basic rule of contract
formation, sometimes called the "mirror-image rule," requiring
that the acceptance strictly comply with the terms set forth in
the offer. See Loeb v. Gray, 131 Ill. App. 3d 793, 799, 475 N.E.2d 1342 (1985). An acceptance conditioned on the modification
of terms in an offer generally constitutes a rejection of the
offer and becomes a counter-offer that the original offeror must
accept before a valid contract is established. Loeb, 131 Ill.
App. 3d at 799; Ebert v. Dr. Scholls Foot Comfort Shops, Inc.,
137 Ill. App. 3d 550, 558, 484 N.E.2d 1178 (1985).
Nonetheless, simply because a communication discusses the
possibility of modification does not necessarily mean that the
communication is a demand for modification:
"A mere inquiry regarding the possibility of
different terms, a request for a better
offer, or a comment upon the terms of the
offer, is ordinarily not a counter-offer.
Such responses to an offer may be too
tentative or indefinite to be offers of any
kind; or they may deal with new matters
rather than a substitution for the original
offer; or their language may manifest an
intention to keep the original offer under
consideration." Restatement (Second) of
Contracts, Sec. 39, comment b.
More fundamentally, this is not a case involving a question of
contract formation. A counter-offer rejects an offer only when
made before a contract is formed. Here, the contract was formed
when defendants' offer was accepted by plaintiffs on June 8,
1993. The mirror image rule is therefore not relevant.
Recognizing the clear nature of written terms of the June 8
agreement, purchasers suggest that the parties essentially had an
implied covenant that the contract would not become binding until
the rider was executed. None of the writings or testimony,
however, supports such a conclusion. Moreover, such an implied
covenant would directly contradict the express covenant in the
attorney disapproval clause that the contract would remain in
full force and effect if timely notice of disapproval was not
given. Express covenants abrogate the operation of implied
covenants, so the allegation of an implied covenant is not
permitted to overrule or modify the express agreement of the
parties. Sol K. Graff & Sons v. Leopold, 92 Ill. App. 3d 769,
772, 416 N.E.2d 275 (1980). In addition, purchasers are precluded
from offering testimony to contradict the terms of the written
agreement because, where contract terms are clear and
unambiguous, the terms of the written agreement must be given
their ordinary and natural meaning, and parol evidence cannot be
considered to vary that meaning. See Lewis v. Loyola University,
149 Ill. App. 3d 88, 92, 500 N.E.2d 47 (1986).
Once the contract came into existence on June 8, 1993, the
only question regarding its enforceability was whether one of the
attorneys would disapprove it within the stated disapproval
period. The disapproval clause is unambiguous and we agree with
sellers: purchasers' attorney never timely disapproved.
The first letter from purchasers' attorney after the
contract was signed and delivered by defendant Paul O'Connor, was
dated June 17, 1993. It stated:
"I have enclosed for your review and comment a
proposed Rider to the above-captioned contract. Please
give me a call to discuss after you have had a chance
to review it.
Thank you for your help."
Clearly, this letter did not invoke the attorney disapproval
clause. It served merely to request changes to what was, at that
time, a binding agreement.
After most of his suggested changes had been made to the
agreement in the form of a proposed rider, purchasers' attorney,
on the last day of the attorney disapproval period, June 22,
1993, again drafted a letter to the sellers. This letter stated:
"I would like to propose a final additional
provision to the Rider which I previously submitted to
you for discussion purposes.
I would like to add a provision which allows for
the earnest money to be paid in the form of a
promissory note to your clients in lieu of an actual
cash payment during the mortgage contingency period.
* * *
I realize that this request is somewhat out of the
ordinary, but is necessitated by tax concerns that my
clients have.
* * *
I emphasize that the purchasers have applied for
the mortgage and have received indications that they
will be receiving a positive outcome. The sole reason I
am raising this is because of the tax concerns.
I appreciate your consideration of this. Please
give me a call to discuss as soon as it is convenient."
Again, this letter hardly constitutes "disapproval" of the
agreement. It does not clearly and unambiguously state that the
contract would be disapproved and thereby voided unless the
sellers agreed to the proposed modifications.
In any case, if there is doubt as to what was intended by
the purchasers' actions, that doubt is resolved in favor of
avoiding a forfeiture of the contract. McElvain v. Dorris, 298 Ill. 377, 379, 131 N.E. 608 (1921); see also Restatement (Second)
of Contracts, Sec. 227, comment b ("when it is doubtful whether
or not the agreement makes an event a condition of an obligor's
duty, an interpretation is preferred that will reduce the risk of
forfeiture"). This is because conditions subsequent such as
attorney disapproval clauses operate to deny vested rights. Cf.
In re Estate of Wojtalewicz, 93 Ill. App. 3d 1061, 418 N.E.2d 418
(1981) (construction of in terrorem clause in a will).
The contract in this case specifically stated that "unless
written notice of disapproval is given *** the contract will
remain in full force and effect." Unquestionably, the option to
disapprove the agreement is a powerful right and basic fairness
requires that any communication invoking the disapproval right be
made clearly and unambiguously. Only after the sellers have
notice of disapproval are they free to list the property for re-
sale. Correspondingly, were the sellers to invoke the disapproval
provision, it would be only after the purchasers had received
unambiguous disapproval that they would be able to consider
making offers on other residences. It would be fundamentally
unfair, in our view, to allow one party to give ambiguous
disapproval so as to play both sides of the fence, i.e., to argue
that a binding contract exists or that no contract exists,
depending upon the development of subsequent events.
Purchasers rely upon Olympic Restaurant Corp. v. Bank of
Wheaton, 251 Ill. App. 3d 594, 622 N.E.2d 904 (1993), for the
proposition that "a buyers' attorney properly exercises his right
of disapproval of a real estate contract by proposing
modifications to it." The Olympic case, however, is readily
distinguishable. In Olympic, the sellers' attorney wrote a letter
to purchasers' attorney within the disapproval period and stated
"I do not approve said contract." Olympic, 251 Ill. App. 3d at
596. That same day, purchasers' attorney wrote to sellers'
attorney: "Pursuant to the terms of Paragraph 14, Attorney's
Review, please be advised the following modifications should be
made to the Contract." Olympic, 251 Ill. App. 3d at 596. As the
court in the Olympic case found, these letters were fair notice
by and to each party of the other's intention to invoke attorney
disapproval. The language used by the attorneys in Olympic,
however, is far different than the language at issue in the case
sub judice. See also Groshek v. Frainey, 274 Ill. App. 3d 566,
654 N.E.2d 467 (1995)(where attorney unambiguously wrote within
the disapproval period, "I hereby withhold my approval of said
contract").
Summarizing, we find that the writings here did not fairly
inform the sellers that the contract would be voided under the
attorney disapproval clause if the sellers failed to agree to the
purchasers' suggested changes. We therefore find the contract
became irrevocable when the attorney disapproval period ended on
June 22, 1993.
We now turn to purchasers' invocation of the Statute of
Frauds (740 ILCS 80/2 (West 1994)) as a defense to sellers'
contract claims. In Prodromos v. Poulos, 202 Ill. App. 3d 1024,
560 N.E.2d 942 (1990), this court enunciated the following test:
"Under the Statute of Frauds, a person cannot enforce a real
estate contract unless: (1) there is a written memorandum or note
on one or more documents; (2) the documents collectively contain
a description of the property and the terms of sale, including
price and manner of payment; and (3) the memorandum or note
contains the signature of the party to be charged." Prodromos,
202 Ill. App. 3d at 1028. Moreover, the court in Prodromos stated
that "in a contract for the sale of land, an agent may sign the
contract only if the authority to do so is in writing."
Prodromos, 202 Ill. App. 3d at 1029.
Even though she had given Paul O'Connor permission to sign
her name, it is undisputed that Lynda Simon never signed the
contract which was ultimately delivered by Paul O'Connor to the
sellers; nor is it disputed that Paul O'Connor had no written
authority to act as Lynda Simon's agent for purposes of
purchasing the property. As such, the Statute of Frauds serves as
a bar to plaintiffs' claims against Lynda Simon.
Sellers raise equitable estoppel and argue that Lynda Simon
should not be permitted to raise the Statute of Frauds. Equitable
estoppel is a doctrine that is invoked to prevent fraud and
injustice. It arises whenever a party, by his word or conduct,
reasonably induces another to rely on his representations,
leading that person to change his position so as to be injured.
Gary-Wheaton Bank v. Meyer, 130 Ill. App. 3d 87, 95-96, 473 N.E.2d 548 (1984). In support of their estoppel argument, sellers
claim that Simon stood silent while her attorney negotiated the
terms of the agreement on her behalf, and that they reasonably
relied upon the existence of the sales contract to their
financial detriment.
The test used to evaluate an estoppel claim is whether,
considering all the circumstances of the specific case,
conscience and honest dealing require that a party be estopped.
Carey v. City of Rockford, 134 Ill. App. 3d 217, 218, 480 N.E.2d 164 (1985). In this case, however, we note that sellers failed to
plead estoppel in the circuit court as an affirmative counter-
defense. Under Illinois law, both estoppel and waiver must be
affirmatively pled, or they are waived. Dayan v. McDonald's
Corp., 125 Ill. App. 3d 972, 998, 466 N.E.2d 958 (1984). A
defense not properly pleaded is deemed waived even though support
for the defense may appear within the evidence. M. Loeb Corp. v.
Brychek, 98 Ill. App. 3d 1122, 1125, 424 N.E.2d 1193 (1981). The
same waiver rule applies to counter-defenses such as sellers'
estoppel claim. Cf. Payne v. Mill Race Inn, 152 Ill. App. 3d 269,
276, 504 N.E.2d 193 (1987). Accordingly, we decline to address
sellers' estoppel arguments, finding them to have been waived.
Our determination that the Statute of Frauds precludes the
written contract from being enforced against Lynda Simon leaves
unresolved only the question of whether the contract may,
nonetheless, be enforced against Paul O'Connor individually.
Unlike Lynda Simon, O'Connor signed his own name to the June 8,
1993, agreement.
Sellers' urge us to rely upon the Restatement (Second) of
Contracts and hold defendant Paul O'Connor individually liable
under the contract, despite the failure of Lynda Simon to sign
her own name to the agreement. Section 135 of the Restatement
provides:
"Where a memorandum of a contract within the
Statute [of Frauds] is signed by fewer than
all parties to the contract and the Statute
is not otherwise satisfied, the contract is
enforceable against the signers but not
against the others." Restatement (Second) of
Contracts, 2d Sec. 135.
In his defense, O'Connor cites cases in which courts have held
that all vendors must sign a real estate sales contract in order
for purchasers to enforce the agreement against any of them. See
Madia v. Collins, 408 Ill. 358, 97 N.E.2d 313 (1951); Axe v.
Potts, 37 A.2d 572, 574, (Pa. 1944).
O'Connor's reliance on such cases as Collins and Axe is
misplaced. Here, O'Connor is not a vendor, but a purchaser. The
Madia and Axe cases hold merely that those with an undivided
interest in property do not have the legal authority to sell the
entire property in the absence of written approval from their co-
owners. In this case, in contrast, the defective signature is
that of a co-buyer, Lynda Simon. Under these facts, where Paul
O'Connor signed the agreement in his own name and tendered it to
the sellers, there is no reason in either law or logic why he
should not be individually bound by its terms.
For the foregoing reasons, the order of the circuit court of
Cook County granting summary judgment in favor of defendant Lynda
Simon and against the plaintiffs is affirmed; the order granting
summary judgment in favor of defendant Paul O'Connor and against
the plaintiffs is reversed. Pursuant to our authority under
Supreme Court Rule 366(a)(5), we hereby grant summary judgment in
favor of plaintiffs and against defendant Paul O'Connor; we deny
plaintiffs' summary judgment motion against defendant Lynda
Simon. The matter is remanded to the circuit court for further
proceedings consistent with this opinion.
Affirmed in part; reversed in part and remanded.
GREIMAN, P.J., and QUINN, J., concur.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING
JUSTICE ZWICK delivered the supplemental opinion of the
court:
Following the filing of our opinion in this matter,
plaintiffs, Ron and Barbarann Hubble, filed a timely petition for
rehearing. Although in our opinion we found in favor of
plaintiffs and against defendant Paul O'Connor, plaintiffs are
dissatisfied with our determination that the Statute of Frauds
prevents a finding of liability against Paul O'Connor's co-
defendant, Lynda Simon. Plaintiffs assert that the opinion
mischaracterizes the status of the pleadings in that it implies
defendants affirmatively raised the Statute of Frauds as part of
their responsive pleadings, but that plaintiffs failed to raise
the counter defense of equitable estoppel in their reply
pleadings. In fact, as plaintiffs now point out, the Statute of
Frauds defense was not raised by defendants until they filed
their motion for summary judgment. It was only then that
plaintiffs raised equitable estoppel as a counter-defense in
their response to the motion, along with a claim that the Statute
of Frauds defense had been waived because it was "tardy."
Plaintiffs now argue, as they did in their initial briefs, that
under such facts defendant Lynda Simon has necessarily waived the
Statute of Frauds defense.
For support of their argument, plaintiffs cite the opinion
itself for the proposition that "[a] defense not properly pleaded
is deemed waived even though support for the defense may appear
within the evidence" (slip op. at 15, citing M. Loeb Corp. v.
Brychek, 98 Ill. App. 3d 1122, 1125, 424 N.E.2d 1193 (1981)).
They urge that we reconsider our holding and apply the rule of
waiver to Lynda Simon's invocation of the Statute of Frauds.
We reject plaintiff's waiver claim, as we implicitly did in
our original opinion. The rule of waiver is a limitation on the
parties, not upon the courts. Committee for Educational Rights v.
Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178 (1996). Even though
defendant Simon risked a finding of waiver by not affirmatively
pleading her Statute of Frauds defense, we note that she did
fully raise the defense and argued it below in her summary
judgment motion. Despite the fact that plaintiffs responded by
asserting that her defense was "tardy," the trial court did not
find waiver. In such a case, we are unwilling to reverse the
trial court's ultimate ruling in favor of Simon. We do find,
however, that plaintiff's petition for rehearing deserves further
discussion.
In holding that plaintiffs had waived their estoppel
counter-defense to Simon's Statute of Frauds claim, we implicitly
relied upon the principle that we may affirm the trial court when
its decision is correct for any reason appearing in the record,
even if that reason was not affirmatively relied upon by the
trial court in reaching its decision. People v. Rodriguez, 187
Ill. App. 3d 484, 489, 543 N.E.2d 324 (1989). On reconsideration,
however, we recognize the inherent unfairness of imposing the
waiver rule against plaintiffs when defendant Simon did not raise
the Statute of Frauds defense in her pleadings, but only in her
motion for summary judgment. It is established that, "What is
good for the goose is good for the gander." PSI Energy, Inc. v.
Exxon Coal USA, Inc. 831 F. Supp. 1430 (S.D. Ind. 1993), reversed
on other grounds, PSI Energy, Inc. v. Exxon Coal USA, Inc., 17 F.3d 969 (7th Cir. 1994). A corollary to this technical legal
principle is "What is good for the defendant is good for the
plaintiff." Accordingly, we elect to address the merits of
plaintiffs' equitable estoppel claim as it relates to defendant
Lynda Simon.
Equitable estoppel prevents a party from taking advantage of
her own wrongdoing. Goodwine State Bank v. Mullins, 253 Ill. App.
3d 980, 1012, 625 N.E.2d 1056 (1993). The doctrine prevents a
party from asserting a right she would have otherwise been able
to assert. Gorgees v. Daley, 256 Ill. App. 3d 143, 146, 628 N.E.2d 721 (1993). The ultimate purpose of the doctrine is to
prevent fraud or injustice. Gorgees, 256 Ill. App. 3d at 146. "In
order to establish equitable estoppel, the plaintiff must show
that he was led to detrimentally rely upon the conduct or
statements of the defendant and that such reliance was in good
faith." Pothier v. Chicago Transit Authority, 238 Ill. App. 3d
702, 705, 606 N.E.2d 531 (1992).
There are six elements required to make out an equitable
estoppel claim: (1) voluntary words or conduct by the estopped
party amounting to a misrepresentation or concealment of material
facts; (2) actual or implied knowledge of the estopped party that
the representations were not true; (3) lack of knowledge of the
true facts by the innocent party both at time made or at time
acted upon; (4) intent, or a reasonable expectation, on the part
of the estopped party that the innocent party would act on the
misrepresentations; (5) a reasonable, good-faith, detrimental
change of position by the innocent party based on the
misrepresentations; and (6) prejudice to the innocent party.
Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 100, 662 N.E.2d 138 (1996); Estes v. Smith, 244 Ill. App. 3d 681, 684-85,
614 N.E.2d 469 (1993).
It is established that "[a] party claiming the benefit of an
estoppel cannot shut his eyes to obvious facts, or neglect to
seek information that is easily accessible, and then charge his
ignorance to others." Vaughn v. Speaker, 126 Ill. 2d 150, 169,
533 N.E.2d 885 (1988)(Ryan, J., specially concurring), quoting
Vail v. Northwestern Mutual Life Insurance Co., 192 Ill. 567, 570
(1901). Thus, to benefit from equitable estoppel, the plaintiff
must have "had no knowledge or means of knowing the true facts."
Lissner v. Michael Reese Hospital & Medical Center 182 Ill. App.
3d 196, 207, 537 N.E.2d 1002 (1989).
Here, the record does not establish the elements of
equitable estoppel against Lynda Simon. Most fundamentally, there
is no evidence that Lynda Simon ever misrepresented or concealed
a material fact from the plaintiffs. Rather, the record
affirmatively establishes that all of the parties involved in the
transaction knew Lynda had not personally signed the sales
agreement and that Paul had signed on her behalf. Indeed, the
agreement itself contains the notation "by Paul" following
Lynda's name on the signature line. Thus, every indication is
that all the parties, including Lynda, believed that Paul's
signing of the agreement would bind Lynda at the time it was
signed. To this end, Lynda freely admitted in her deposition that
she had given Paul permission to sign the agreement.
Consequently, the plaintiffs had the same facts available to them
as did the defendants regarding the legal effect of the sales
agreement. Plaintiffs cannot later blame Lynda because they
failed to recognize the consequences of her failure to personally
sign the agreement.
Because the record does not establish equitable estoppel, we
reject plaintiffs' claim that Lynda Simon's is estopped form
raising the Statute of Frauds. We therefore re-affirm the trial
court's grant of summary judgment in favor of Lynda Simon and
against the plaintiffs.
For the foregoing reasons, as well as the reasons set out in
our original opinion, the order of the circuit court of Cook
County granting summary judgment in favor of defendant Lynda
Simon and against the plaintiffs is affirmed; the order granting
summary judgment in favor of defendant Paul O'Connor and against
the plaintiffs is reversed. Pursuant to our authority under
Supreme Court Rule 366(a)(5), we hereby grant summary judgment in
favor of plaintiffs and against defendant Paul O'Connor; we deny
plaintiffs' summary judgment motion against defendant Lynda
Simon. The matter is remanded to the circuit court for further
proceedings consistent with this opinion.
Affirmed in part; reversed in part and remanded.
GREIMAN, P.J., and QUINN, J., concur.