Goldwater v. Greenberg
95 N.E.3d 1237
| Ill. App. Ct. | 2017Background
- Plaintiff Ben Goldwater, an Illinois attorney, entered a written retention agreement with Jason Greenberg on March 23, 2012 to represent him in a marital dissolution matter for $375/hour and a $5,000 retainer.
- Jason instructed Goldwater to send bills to his parents, George and Denise Greenberg; George signed the initial retainer check and subsequent checks covering interim bills.
- Goldwater represented Jason through entry of the dissolution judgment on December 30, 2015, then issued a final bill on January 8, 2016 that remained unpaid.
- Goldwater sued George and Denise for breach of a contract to pay Jason’s legal fees; defendants moved to “strike and dismiss” invoking the statute of frauds and other defenses.
- The trial court dismissed the entire complaint on statute-of-frauds grounds and separately dismissed Denise because the complaint did not allege facts showing she promised to pay.
- The appellate court accepted the complaint’s allegations as true, held the statute-of-frauds defense was precluded by plaintiff’s full performance, affirmed dismissal of Denise, reversed dismissal as to George, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ promise to pay Jason’s fees is barred by the Statute of Frauds | Goldwater: defendants’ promise was an original undertaking or, alternatively, statute of frauds is inapplicable because Goldwater fully performed | Defendants: promise is a collateral promise to pay another’s debt and therefore must be in writing under the Statute of Frauds | The court held that, accepting complaint facts, Goldwater’s full performance prevents the statute of frauds from defeating his claim (statute-of-frauds dismissal reversed) |
| Whether plaintiff sufficiently pleaded Denise’s liability | Goldwater: alleged parents collectively agreed to pay (in response he asserted additional communications) | Defendants: complaint contains no allegations that Denise agreed to pay | Held: complaint lacks allegations that Denise promised to pay; dismissal of Denise affirmed |
| Proper procedural vehicle for raising statute-of-frauds defense at pleading stage | Goldwater: (implicitly) statute should not be used to dismiss where full performance alleged | Defendants: invoked statute in a section 2-615 motion to dismiss | Held: statute of frauds is generally an affirmative defense (section 2-619), but where the defense rests solely on facts in the complaint it may be considered; nonetheless, full performance alleged defeats the defense here |
| Whether extrinsic facts in plaintiff’s response could cure pleading defects re: Denise | Goldwater: pointed to extrinsic facts (conferences, calls) showing Denise’s promise | Defendants: court should consider only complaint allegations on motion to dismiss | Held: plaintiff cannot rely on facts outside the complaint to survive a section 2-615 attack; extrinsic facts disregarded |
Key Cases Cited
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (1994) (distinguishes 2-615 and 2-619 motions and explains overlap where affirmative defenses rest on complaint facts)
- Wallace v. Smyth, 203 Ill. 2d 441 (2002) (section 2-619 motion admits complaint’s legal sufficiency and asserts an external defense)
- Greenberger, Krauss & Tenenbaum v. Catalfo, 293 Ill. App. 3d 88 (1997) (doctrine of complete performance can prevent statute-of-frauds defense; original vs. collateral undertaking depends on timing and intent)
- Kahn v. Deutsche Bank AG, 2012 IL 112219 (2012) (standards for accepting well-pled facts and drawing inferences on a section 2-615 motion)
- Callaghan v. Village of Clarendon Hills, 401 Ill. App. 3d 287 (2010) (standards applicable when reviewing section 2-619 motions)
- Cain v. Cross, 293 Ill. App. 3d 255 (1997) (statute of frauds is an affirmative defense rendering a contract voidable, not void)
- Payne v. Mill Race Inn, 152 Ill. App. 3d 269 (1987) (statute of frauds is not generally the basis for a section 2-615 dismissal)
- Inland Real Estate Corp. v. Christoph, 107 Ill. App. 3d 183 (1982) (plaintiff may not rely on facts outside the complaint to oppose a section 2-615 motion)