{ "id": 3394499, "name": "BAIRD & WARNER, INC., Plaintiff-Appellee, v. CHARLES J. STUPARITS et al., Defendants-Appellants", "name_abbreviation": "Baird & Warner, Inc. v. Stuparits", "decision_date": "1977-10-04", "docket_number": "No. 63206", "first_page": "338", "last_page": "343", "citations": [ { "type": "official", "cite": "53 Ill. App. 3d 338" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "287 N.E.2d 734", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2667767 ], "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0424-01" ] }, { "cite": "329 N.E.2d 362", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 1004", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5412306 ], "pin_cites": [ { "page": "1007" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/1004-01" ] }, { "cite": "272 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "48 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906340 ], "year": 1975, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0580-01" ] }, { "cite": "292 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853833 ], "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0361-01" ] }, { "cite": "342 N.E.2d 751", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5304711 ], "year": 1972, "pin_cites": [ { "page": "1069" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/1065-01" ] }, { "cite": "222 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 2d 260", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2572301 ], "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/77/0260-01" ] }, { "cite": "49 N.E.2d 852", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "320 Ill. App. 57", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4979530 ], "year": 1966, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0057-01" ] }, { "cite": "332 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 310", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2623045 ], "year": 1943, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0310-01" ] }, { "cite": "348 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 658", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2802285 ], "year": 1975, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0658-01" ] } ], "analysis": { "cardinality": 645, "char_count": 12792, "ocr_confidence": 0.849, "pagerank": { "raw": 1.0146228463645157e-07, "percentile": 0.543124908054485 }, "sha256": "f5ef0c2e144ffda17a363cd0f684a76ad07e8ac5aff98a02d5cf37123dca91af", "simhash": "1:26757581ee84b089", "word_count": 1986 }, "last_updated": "2023-07-14T21:36:14.469992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BAIRD & WARNER, INC., Plaintiff-Appellee, v. CHARLES J. STUPARITS et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DOWNING\ndelivered the opinion of the court:\nPlaintiff, Baird & Warner, Inc., was granted summary judgment against defendants, Charles J. Stuparits and William Stuparits, thereby recovering a real estate broker\u2019s commission pursuant to a written exclusive listing agreement. The issue raised in this appeal is whether summary judgment was improperly granted.\nPlaintiff is a corporation engaged in the real estate brokerage business in the city of Chicago. On April 16, 1973, the parties entered into an exclusive sales listing agreement whereby defendants employed plaintiff as their exclusive agent for a period of nine months. Plaintiff was to receive a 6% commission upon the sale of property commonly known as 1816 N. 79th Court, Elmwood Park, Illinois. Within the nine-month period, on November 1, 1973, plaintiff was informed that the property had been sold for *52,000; and plaintiff thereafter demanded 6% of the selling price or *3,120 as its commission pursuant to the agreement.\nThe property had been previously owned by defendants\u2019 father who died on March 19,1973. His will was filed for record; probate proceedings were initiated; and defendants were issued letters of office for decedent\u2019s estate. As co-executors of their father\u2019s estate, defendants were authorized by the will to sell or otherwise dispose of the property as they, in their sole discretion, deemed necessary; to settle any claims of the estate; and to make and execute any necessary deeds or contracts. All of these powers could be exercised \u201cwithout authorization, permission or order of court.\u201d Moreover, the will designated defendants as the sole beneficiaries of the estate. When defendants\u2019 father died, Chicago Title and Trust Company held the legal title to the property and defendants\u2019 father held the beneficial interest under a land trust. Pursuant to the provision of the trust agreement, defendants received the beneficial interest in the property upon their father\u2019s death.\nAfter defendants had entered into the exclusive listing agreement, they became discouraged with plaintiff\u2019s efforts to sell the property and attempted to terminate the agreement. Defendants employed an attorney who wrote, on September 17, 1973, to plaintiff\u2019s saleswoman, Lucille Silvers, expressing defendants\u2019 dissatisfaction with plaintiff\u2019s efforts to sell and requesting that plaintiff voluntarily cancel the agreement. In response to the attorney\u2019s letter, Ms. Silvers wrote a letter, dated September 28, 1973, in which she said that she had produced two early offers to purchase and that her appointment sheet indicated 24 showings of the property. Although she said that plaintiff would prefer to continue representing defendants in the sale, she stated that if defendants insisted, plaintiff would agree to cancel the agreement with a 30-day notice. Defendants\u2019 attorney acknowledged receipt of the letter and said in another letter, dated October 11,1973, to Ms. Silvers that the agreement would continue in effect subject to the 30-day notice of cancellation provision.\nPlaintiff then learned that the property had been sold on November 1, 1973, for *52,000. When plaintiff\u2019s commission was not forthcoming, plaintiff filed suit. Plaintiff\u2019s complaint alleged the written exclusive agreement, its effort to sell the property, the sale of the property, and defendants\u2019 refusal to pay the commission. Defendants\u2019 answer either denied the allegations of the complaint or claimed lack of knowledge demanding strict proof, and denied liability.\nPlaintiff thereafter moved for summary judgment, contending that a valid agreement was in effect, and that defendants had the capacity to enter into such an agreement as sole beneficiaries of the land trust, as sole co-executors of their father\u2019s estate, or as sole beneficiaries of the estate. With the motion, plaintiff filed various exhibits. Thereafter defendant filed an answer and affidavit (with exhibits) in support of a \u201cCOUNTERMOTION FOR SUMMARY JUDGMENT FOR DEFENDANTS.\u201d Although defendants\u2019 responsive pleading to the plaintiff\u2019s motion for summary judgment is entitled an \u201cAnswer to Plaintiff\u2019s Motion For Summary Judgment and Defendants\u2019 Countermotion For Dismissal,\u201d it was interpreted by the trial court as defendants\u2019 motion for summary judgment. Following the court\u2019s grant of plaintiff\u2019s motion and denial of defendants\u2019 motion, defendants appealed from the court\u2019s order which entered judgment in the sum of *3,120, plus statutory interest and the costs of the suit.\nI.\nPlaintiff maintains that the court below acted properly in that a valid agreement existed between the parties and plaintiff was entitled to summary judgment as a matter of law. We agree. Although defendants contend that there are genuine issues of material fact which barred summary judgment in this case, a careful review of the record convinces us that the disposition of the case turns on questions of law, and that the court below could properly find, and did properly find, that plaintiff was entitled to judgment as a matter of law.\nSince defendants posit that certain matters raised issues of fact which we believe are actually questions of law, it is necessary to examine the record to clarify the posture of this case. There is no dispute that defendants signed an exclusive sales listing agreement with plaintiff on April 16,1973. Likewise, there is no dispute that plaintiff was to receive a 6% commission if the property was sold within nine months. Neither party disputes that the agreement states in bold letters that defendants agreed that, \u201cALL NEGOTIATIONS AND OTHER DEALINGS ARE TO BE WITH AND THROUGH BAIRD & WARNER, INC.\u201d No one disputes that the property was sold within the nine-month period. Lastly, no one disputes that the property was sold during the 30-day cancellation period. Clearly, therefore, certain crucial facts were not in dispute. In light of these undisputed facts, we believe that the court below proceeded to the next logical inquiry: whether, as a matter of law, plaintiff was entitled to recover its stated 6% commission pursuant to the agreement.\nDefendants, however, argue that despite these undisputed facts, there are genuine issues of material fact in the instant case which bar summary judgment. Specifically, they contend that there are issues of fact as to (1) whether plaintiff substantially performed under the agreement; (2) whether defendants rescinded their termination of the agreement; and (3) whether the agreement was valid without the authority of the Probate Division and without execution by defendants as co-executors. Notwithstanding the phraseology used by defendants to frame these alleged \u201cgenuine issues of material fact,\u201d we think it evident that defendants are attempting to create fact issues out of questions of law.\nYet summary judgment is properly granted when the record presents purely questions of law. (Wheaton National Bank v. Aarvold (2d Dist. 1976), 38 Ill. App. 3d 658, 663, 348 N.E.2d 520; People ex rel. Rappaport v. Drazek (1st Dist. 1975), 30 Ill. App. 3d 310, 314, 332 N.E.2d 532; Reconstruction Finance Corp. v. Lucius (1st Dist. 1943), 320 Ill. App. 57, 75, 49 N.E.2d 852.) This is so because the important purpose of summary judgment procedure is the disposition of litigation through the trial or determination of cases in which the disputed issue is exclusively one of law. (Applicolor, Inc. v. Surface Combustion Corp. (1st Dist. 1966), 77 Ill. App. 2d 260, 266, 222 N.E.2d 168.) In reviewing the pleadings, depositions, and affidavits in this case, as we must pursuant to section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57(3)), we note an interesting statement made by defendants in their answer to the complaint. The statement reinforces our view that the dispute here is exclusively one of law. In framing a response to plaintiff\u2019s allegation of the existence of the agreement and its terms, defendants stated:\n\u201cWith respect to the allegations recited in paragraph 3, defendants deny that they made or entered into a valid or subsisting written contract or agreement as alleged therein; further, defendants state that said listing agreement established no binding rights, duties, or obligations of the purported parties thereto.\u201d\nThus, defendants\u2019 own pleading reveals that the question in this case is one of law, rather than fact.\nPlaintiff justifiably operated under the assumption that defendants were proceeding on the theory that the instrument or agreement was invalid. On appeal, defendants still maintain that the agreement is invalid as they lacked the capacity to enter into it. Simultaneously, however, they argue on the basis of statements made in their affidavits and depositions that plaintiff failed to perform under the agreement. We believe that defendants\u2019 numerous theories advanced below and their attempts on appeal to create fact issues where none exist have obfuscated the issue.\nAs a matter of law, a valid agreement existed between the parties. First, as beneficiaries of a conventional land trust, defendants possessed the requisite capacity to enter into a mutually enforceable contract. Under appropriate circumstances, the beneficiary of a conventional land trust may enter into a valid contract to convey title to trust property where the trust agreement vests in the beneficiary the sole right to direct the trustee to convey title. (Seaberg v. American National Bank & Trust Co. (1st Dist. 1976), 35 Ill. App. 3d 1065, 1069, 342 N.E.2d 751; see also Celeste Italian Foods, Inc. v. Choyce (1st Dist. 1972), 9 Ill. App. 3d 361, 363, 292 N.E.2d 177.) Second, as co-executors of their father\u2019s estate, defendants possessed the requisite capacity to enter into a mutually enforceable contract. Pursuant to the second article of their father\u2019s will, defendants could sell property of the estate as they deemed necessary without court permission. Third, as sole beneficiaries of the estate, defendants possessed the requisite capacity to enter into a mutually enforceable contract to convey the property in question. There is nothing in the record to indicate that any other heirs or legatees existed who could have been harmed by defendants\u2019 entry into the agreement with plaintiff. Thus, as a matter of law, defendants had the capacity to make a valid contract with plaintiff.\nDespite their claim that a valid contract did not exist, defendants nonetheless maintain that plaintiff failed to perform its duties under it. According to defendants, this issue in particular raised questions of fact. Although plaintiff had generally pleaded performance of the agreement, defendants denied that performance in their affidavits and depositions. We note, however, that plaintiff, through its saleswoman Ms. Silvers, alleged in the affidavit offered in support of plaintiff\u2019s reply to defendants\u2019 motion to dismiss, that she had sent a letter to defendants\u2019 attorney indicating that plaintiff had submitted two offers which were rejected and had shown the property 24 times. A copy of the letter was attached to Ms. Silvers\u2019 affidavit. Moreover, her affidavit was subscribed on August 12, 1975 \u2014 a date later than any of defendants\u2019 statements of non-performance contained in earlier affidavits and deposition testimony. Ordinarily the difference in dates might not be important; in the instant case, however, defendants failed to offer counteraffidavits to oppose such allegation of performance by plaintiff\u2019s saleswoman. Where such well alleged facts are not contradicted by counteraffidavit, they must be taken as true, notwithstanding the existence of contrary averments in the adverse party\u2019s pleadings which merely purport to establish bona fide issues of fact. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497; People ex rel. Scott v. Continental Can Co. (1st Dist. 1975), 28 Ill. App. 3d 1004, 1007, 329 N.E.2d 362.\nAs defendants\u2019 denial of performance by plaintiff was insufficient to create a genuine issue of material fact (cf. Investors Diversified Service, Inc. v. Straumietis (2d Dist. 1972), 7 Ill. App. 3d 424, 425, 287 N.E.2d 734), the only question before the court was one of law as to whether defendants possessed the capacity to enter into a binding agreement. We have already indicated that defendants did possess such capacity. Consequently, the motion for summary judgment was properly granted. The order of the circuit court of Cook County is, therefore, affirmed.\nAffirmed.\nSTAMOS and PERLIN, JJ, concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE DOWNING" } ], "attorneys": [ "Russell J. Topper, of Chicago, for appellants.", "Robert E. Zeitner, of Chicago, for appellee." ], "corrections": "", "head_matter": "BAIRD & WARNER, INC., Plaintiff-Appellee, v. CHARLES J. STUPARITS et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 63206\nOpinion filed October 4, 1977.\nRussell J. Topper, of Chicago, for appellants.\nRobert E. Zeitner, of Chicago, for appellee." }, "file_name": "0338-01", "first_page_order": 360, "last_page_order": 365 }