*1 taxes, in the absence of proration to be responsible rely was entitled to defend some error suspect Batter, (Reinhard, 3d at 431 ant’s See calculations. dissenting). of a mutual mistake the existence

Since the record demonstrates fact, does not did merger apply, the doctrine It the court should to assert the error. follows right waive the and denied judgment motion for summary defendant’s motion. reversed, foregoing reasons,

For to enter judg- cause is to the circuit court with directions remanded $3,846.20. in the ment directions. Reversed and DOYLE, JJ., GEIGER and concur. AGENTS, INC., Plaintiff-Appellant,

REAL v. ED- ESTATE BUYER’S FOSTER, Defendant-Appellee. WARD Second No. 2 — 91—1175 District Rehearing Opinion denied October 1992.

DUNN, J., concurring part. *2 Laughlin, Real Buyer’s Inc., Roselle, of Agents, Estate appel- of

lant se.

No filed for appellee. brief

PRESIDING JUSTICE INGLIS delivered the of the opinion court: Plaintiff, Agents, Inc., Real Estate Buyer’s appeals pro through its president and nonattomey, Terry Laughlin, from an of cir cuit of Kane County which dismissed its small claims complaint against defendant, Edward The Foster. sole issue raised on appeal whether the trial court erred in dismissing plaintiff’s complaint based section of the Frauds (Ill. Act Rev. Stat. par. 2). August

On filed plaintiff complaint its small claims against It alleged defendant. through agent, Village his Real Es tate, a offered 3% commission if plaintiff obtained “$80,000 offer from Ramona Webb of no points seller” a Bellwood, house owned defendant Illinois. Plaintiff further a offer to purchase obtained real estate on those terms, to sign sought defendant refused the contract. Plaintiff from broker’s commission amount $1,500. Laughlin, complaint signed by plaintiff’s presi dent. A of a offer copy purchase written Ramona Webb prop purchase $80,000 for a erty price was attached offer seller a stated commission in $2,400.

Defendant filed motion to the complaint dismiss 1991. Defendant in the motion that the should argued Civil pursuant 619(a)(2) (Code) missed to section Practice Law 2— because, according to Su 619(a)(2)) Rev. Stat. 2— 282(b) (134 2d R. 282(b)), Court pear proceeding as a claimant in small claims counsel. Defendant should be dismissed also 1991, ch. 619(a)(7) to section Code the sale of land unsigned because the 619(a)(7)) Frauds 2 of the section under was unenforceable on by plaintiff relied entered 1991, an order was on October Following itself with matter concerns that “this that the court found stated Frauds.” The the Statute governed by of real estate and the sale to sec defendant’s court therefore denied that the court also stated The order 619(a)(7) tion Code. upon Supreme motion to dismiss based defendant’s herein.” Plaintiff and that “Terry notice of timely been should argues that On appeal, of Frauds as an the Statute dismissed filed an has not oral. Defendant bemay real estate broker’s commission under however, consider the will, appellee’s response. brief Con v. Talandis Capitol Mortgage Corp. in First the standard set forth 63 Ill. 2d 128. Corp. (1976), struction 2 of the Frauds Act provides: con brought charge any person upon

“No action shall be or any or hereditaments lands, tenements tract for the sale of than one them, longer year, for a term concerning in or interest or note thereof or some memorandum unless such contract *3 therewith charged to be writing, signed party in by be 59, 2.) Stat. ***.” Rev. of land sale any requires the Frauds to real regard contains no such writing, requirement

must in v. Dro & Co. (Arthur contracts of employment. estate brokers’ Rubloff no re 867, 871.) There is Ill. 3d (1980), App. Bank 80 vers National agreements Frauds Act that under the quirement brokerage commission or that claims writing must broker’s Re (Edens View instrument. commission must be based a written Ill. Investment, (1980), App. 87 Enterprises, Inc. Heritage Inc. v. alty & oral, gov the contract brokerage A contract 487.) 3d Bowlway v. contracts. Bossow ordinary applicable erned the law by Lanes, App. Inc. 161 Ill. 3d (1987), oral to enforce seeking

In its complaint, seeking was not commission and broker’s The trial court of real estate. to enforce contract for the sale Act. dismissing erred in any supported court on basis However, affirm the trial we (1983), Revenue Department the record. by another dismiss, raised 382, 387.) 98 Ill. In his motion to 2d corpora- plaintiff, He 260

tion, represented had to be by counsel

282(b) (134 Ill. R. 282(b)). 282(b), August 1, 2d which was effective *** 1987, states that as claimant appear “[n]o small claims proceeding, counsel.” Ill. 2d (134 R. 282(b).) We conclude that this cause was dismissed as the rec ord shows that represented by its and not le president gal counsel. Court, recognize District, Appellate Third Woerner v. Petroleum,

Seneca Inc. (1988), App. 3d held that Rule 282(b) was preempted by section 2—416 of the Code January effective that a provides a small corporation may prosecute pro claims director, ceeding plaintiff “through officer, as manager, department manager corporation, though or such supervisor corporation were appearing proper person.” held 416.) legislative Woerner enactment was controlling as “legislature preempted question representation cor enacting section 2—416

porations by years almost four su prior adoption Woerner, preme Rule 282.” 3d at 331. court, however, Our supreme that, has held a statute directly when supreme conflicts with a court rule on a within irreconcilably matter authority, the court’s the rule prevails. (People v. Williams 477, 483; Ill. 2d People Felella As conflict, supreme directly irreconcilably statute and the court rule the rule must decline to follow Woerner. prevail. We therefore is not plaintiff’s president demonstrates In plaintiff’s plaintiff’s attorney summons listed new lists as “NONE —Pro Se.” The case information sheet also attorney Plaintiff’s brief is appellate “NONE.” although Pro Su Finally, Se.” “Plaintiff-Appellant 13(c)(l) attorney that an file a written requires R. no such addressing (134 13(c)(l)), before the court pearance was filed here. appearance coun

Because *4 sel, rule, the required by the was dismissed. circumstances, conclude, however, that, under these the further should be allowed prejudice. missal should have been without with counsel. We proceed an with cause of action opportunity affirm however, cause; the dismissal the dismissal of this without prejudice. of Kane reasons, the circuit foregoing For the modified, is and this cause is affirmed as dismissing the cause County for further proceedings. Affirmed modified and remanded.

McLAREN, concurs. DUNN, concurring part: JUSTICE trial court agree I conclusion that the majority’s (Bl. dismissing plaintiff’s complaint based erred disagree I with its conclusion 2), adamantly court’s dismissal should affirmed because the trial counsel. This conclusion results injustice substantial to plaintiff. on is correct that it affirm the trial court may

While majority Depart record supported by is 387), case, in this majority ment Revenue the rec affirming supported by the trial court on a fact not at all based re ord There on report proceedings motion, is garding bystander’s on defendant’s nor there a report 323(c) (134 323(c)). Court Rule Ill. 2d R. Supreme itself, to dis record contains defendant’s motion only states, miss the trial order specifically court’s order. That “[Djefendant’s Laughlin represent is denied and hereon [pjlaintiff

[sic].” attorney.

The record silent as to whether record only Terry Laughlin, president, representing reveals it corporation pro complete appeal, se. In the absence of a trial in con will that the order entered court was presumed (Foutch with the and had a sufficient factual basis. formity law Thus, there is for the no basis O’Bryant conclusion affirm the dismissal of this cause be majority’s I reverse cause portion the trial order Act,

upon the Fraud affirm the of the trial court’s portion finding plaintiff.