i'm sure you are aware of and is the core of the appeal so i do want to go through a brief timeline what happened in the trial court in this case my client initiated this litigation by filing it complaint alleges three counts count one for injunction and declaratory judgment count two for specific performance and counts three for breach of contract it was filed because defendant had not performed under the contract such that closing could take place on november th twenty when it was natural to happen in an extension and that date for closing would have cost my client a penalty of two one hundred thousand dollars in lieu of that answer a motion to dismiss defendant filed a two page motion for judgment on the pleadings and all three counts and in prolog and two thousand and nineteen the trial court granted the motion for judgment on the pleadings as to count two for specific performance with contract including some facts discovered after the st complaint was filed however it contained the same three counts count two was replied for the purpose of preserving the claim of appeal defendant then filed an which was issued four months prior the reason for the motion was to force an appeal so that this court would affirm the trial court and alyssa pennons would be removed from the property eliminating my client's bill that he to enforce this contract hundred order but was that was denied on december nd two thousand and nineteen at that december hearing the trial court's main reasoning was that the parties never agreed to the description of the property in the contract but i submit that there was no evidence before the court to support such a finding an order to maintain its claim for specific performance and its right to the property the plaintiff was forced to file this appeal this court asked us to address the trial court's three and four a finding so i want to start there as you have seen the record my client objected to a three of four a finding and we believe the trial court abused its discretion in granting defendants version for that fight me the issue here is whether the trial court erred in granting the motion for judgment pleadings as to account for a specific performance of a contract while specific performance may be a standalone cause of action it is primarily an sought different remedies there's been no determination as to whether there is a valid and forcible contract nor whether the contract just reached there wasn't even an answer filed at the time of the april order for judgment on the pleading the order isn't final the fact that the trial court provided a thirty dollars for a order is not described as that and as to this court's jurisdiction and does not in itself make the april order a final one in fact there still remains pending an active claim for injunctive relief to prevent the sale of the property to a rd party which is a very similar equitable claim a specific performance so this piecemeal approach to the case could result in conflicting orders from this court and the trial court as to whether the defendant is prevented from selling the property solution under the circumstances the trial court abused it special when it granted defendants motion for three or for a finding now should this court determine it has jurisdiction the primary issue here is whether the trial or erred in entering judgment on the pleadings and preventing plaintiffs from reclaiming its cause of action for specific performance the result of the trial court ruling eliminates or remedy is sought by plaintiffs my client prior to even getting to put on evidence of an unforced book contract prior to again even prior to filing the defendant filing an answer to the i'm not going to tell you that the st complaint filed in this case was perfectly plat because it was not perfectly put it was drafted on an emergency basis two days prior before the sale was supposed to close plaintiff was trying to avoid the two hundred thousand hour penalty arising out of the amendment to the contract since defendant was not prepared to close however the complaint does attach the contract and its amendment and the complaint alleges that defendant failed to perform pursuant to the contract a review of the contract demonstrates that there was certain property identified for sale and a meeting of the minds the contract also explicitly provide specific performance as a remedy for breach and her back twenty one after the april order plaintiff file an amended complaint which contained facts legally sufficient to support a cause of action for specific performance defendant defendant answered the count despite that it was but preserve the claim on appeal and it's clear to us that defendant decided to pull out of this deal and then claim there was no meeting of the minds despite the plaintiff had already deposited three hundred thousand dollars and as much defendant made it impossible to close the deal by refusing to record the plant subdivision and failing to prepare a deed title commitment or survey which now it is using to say that there was no meeting of the minds as to   nd orders and remand with direction that plaintiff may reach the count two for specific performance thank you thank you very much justice had sent you had questions muslim i think you're certainly correct that the mere fact that the trial court enters bill for a language does not automatically make the order immediately appeal will also depends on whether or not it's a final order whether that there is any reason  you can you articulate what you believe the specific rationale was for the trial court to enter the serial for a finding how is this going to advance the litigation my understanding the court's order was that the court did not feel as though this property should be held up throughout the litigation i believe the court felt like it should be marketed and perhaps even sold defendant filed an answer direct that's correct and then the request for the tool thirty for a finding was made a couple of months later that's right the request was made by defendant four months counts to preserve it for appeal but defendant chose to answer the count but was technically pending in the trial court when this rule for enter feel for a language was under correct that's right ok i have other questions later but that's all i have at this point just words can we give an advisory opinion to the court yes i believe that if you find that this court finds that it has jurisdiction that what this corner what if we find that do not have jurisdiction with my question i'm sol i'm sorry i misunderstood i apologize no i actually don't believe that this court would have the ability to provide an opinion if there is no jurisdiction to hear th they're not exactly the same are they if we look at  specific performance to comply with all provisions of the document that's not the same relief as it i do think this is the same relief i think that is spelled out more clear in the amended complaint as to what pla sought in the st complaint for specific performance which was to complete this sale there had to be a recording of the plat subdivision and then  conveyance of the property so it's so i do believe it's just a more specific prior for release than what was originally ok in are the factual allegations the same two complaints they're certainly not exactly numbered the same there are more in the original complaint that are incorporated in count two there are twenty two counts in the original complaint and i believe we look here i think it was fifteen in the amended complaint so they're not exist yes i'm right fifteen so they're not exactly  subdivision at the time of the filing of the original complaint we didn't know that so that was added to the amended complaint ok and do you contend that the defendant waived a rule three o four a finding and how no i don't believe that our waiver was their motion it was their motion from three o four a the court found and i think what you're asking is did they way that i answering the amended complaint right yes yes i do believe they did i will say this is a really unusual procedural situation and i don't believe there's people out there but the answer if you count to does not say that it is only  reasons of appeal or anything like that they simply answered it ok would a what what purpose if any would a decision by the appellate court in this case serve at this time i believe the primary purpose for this decision would be to prevent the sale of that property to a rd party my client is still interested in that property if there was there would be some confusion if this court heard found jurisdiction and heard this issue on the specific performance count because there still remains pending whether you're looking at the st complaint or the  complaint there is a claim for injunctive relief which would prevent the defendant from selling to a rd party so i believe it would it would still type the property and hold the property tell to the end of this  case or until we can come to an agreement or whatever but i think that there could be some conflicting directions to the defendant as to this property ok thank you very much all right at this two complaints go straight to the core of the matter now on april th when the initial judgment on the pleadings was entered one of the objections to the motion for judgment on the pleading was that the court was supposed to have been considering our answer and as we cited in our papers the answer can be considered may be considered but isn't the court isn't obligated to have an answer when the could ever see and were and get specific performance on the can on the contract which had so many essential terms left open and in fact in the amended complaint it was specifically indicated that it was only being led for purposes of preserving the issue on appeal and that's something the judge we noted in in the oral argument regarding the entry of the thrill for a fine so it's a little bit disingenuous on the one hand to say that the court should not have entered a judgment on the pleadings without considering my answer and then having asked for that answer and obtain one to an amended complaint that somehow that amounts to a waiver the fact remains that there were so many essential turns that were left open that specific performance wouldn't have been appropriate to finish up on my discussion of three dollars to four dollars a as the court knows the thrill for a finding to be made at any time five or so criteria or factors which the court ought to take into consideration in determining whether or not a thrill for a fighting is appropriate and they are number one the relationship between  this case we have a complaint for specific performance versus one for declaratory relief and or contract damages can't get specific performance and contract damages so there are different the nd is the possibility the need for  pass i don't think that's exactly how it plays out the rd factor is the possible need to reconsider an issue in this case that wouldn't happen if the court were to find that the trial court was correct that so many essential terms were not reach so as to preclude specific performance it would do two things one it with it would shorten the proceedings in the trial court and two it would be the case regarding the declaratory relief that indicates it's being sought and two the possibility of settlement is one of those miscellaneous factors that can be considered so not taking to the original complaint if the court review refers in paragraph four the original complaint specifically said that they had not reached the parties had not reached agreement on the part portion of the overall parcel which was to be sold the number of the paragraph five says that there was no survey or accurate legal description attached as required by paragraph one of the contract paragraph six says the description of what was going to be conveyed was disputed paragraph seven says the portion of the part of the overall parcel which the defendant was going physically blank paragraph one said an essential term that is regarding the replacement of a wall on the existing building those terms had not reached being the subject of an agreement and that was a an exhibit after the contract which is blank paragraph ten said there was no agreement regarding access to railroad switches and that was reflected in an exhibit deed to the contract which was blank in paragraph fifteen said there was no agreement on a lease back of the building that was there as set forth in and required by paragraph eleven of the contract what happened in the amended complaint is that mr kolbein simply omitted references to all the areas of a lack of agreement allegations of regarding the three hundred thousand dollars omits the fact that those three hundred thousand dollars earns money are not in my client's possession but per paragraph six dollars b of the contract in an interest bearing account at les very interesting because that is a case that didn't specifically involve or actually involve a claim for specific performance and it was right after three hundred and four it was modified to its current term and in that case summary judgment was  specific i'm performing complaint and other to two other counts remain open after that within three or four days the defendant who had obtained summary judgment asked for three l for a finding none proton to the date of the summary judgment time and the court held that it was an appropriate thrill for a case on the nd appeal and that's exactly what you have here a question of specific performance which i think fits squarely within the five factors so i a finding how do you respond to that argument i did i respond in the same fashion i just a moment ago which is that you can't have it two ways you can argue that the judgement on the pleadings shouldn't have been entered without the court considering an answer then amend the complaint theoretically just for preserving the record on appeal but to make it a different case complaint somewhat and then say that i somehow waived it i don't think that would fit squarely within any sort of equitable theory and our answer is is consistent with what we said in the st place which is the contract itself has glaring omission so i don't believe that's a waiver and  and and especially the language that said re pleaded for purposes of preserving the issue on appeal and that's what exactly what judge wheaton said when she considered the argument that particular argument  position that it was answered by me and it in the sense that it was answered only as to fill out the record not because it's still technically pending in the judge judge we didn't specifically said yes but mr kolbein you only repleat did that to preserve the issue on the  it wasn't i don't think the judgment was vacated there's no order in the record that suggests that the judgment was vacated and we've got most of the reasons the fact of the matter is isn't it would you acknowledge that there's a replanted count on the record du page county in this case that was never dismissed or ruled out i would acknowledge that the that document exist in the court record i would say that the earlier order is raised judicata and the nd count so what legitimate legal purpose then is served by thinking in the media an appeal on this most counts when the other count is now pending and replayed over to let me give you a couple of scenarios and you tell me what your responses to these possible implications of these rulings that we could make if we were to find we had jurisdiction and we reversed the dismissal of the complete regional count two that would merely revive the count the planet has already abandoned and buy the premise in your nd example your honor if if you were to affirm the trial court's finding that there's no right to specific performance under this set of facts that i don't believe that would revive the nd count as i indicated i believe the nd count and it would in fact shorten the proceedings below in that they would not be entitled to the declaratory and junk or injunctive relief that they have sought but they may still have a viable cause of action for contract damages because i disagree contradicted that allegation by stating that we pleading with quote unquote preserve our right to specific performance and appeal they say preserve the right to specific performance and yes an appeal right there asking for to preserve that and the judge had already entered a final order that said there's no way you have a right to that because there are so many wide open issues of fact and put differently if the court were to to say that it lacks jurisdiction we'd be back in front of the judge we can on an immediate motion for summary judgment based upon the very same kind of situation that is the glaring omissions in the in the in the contract this court can by determining that three or four a language was appropriate and affirm the trial court's finding this court can seriously circumscribe the few the going ahead nature of the remaining with nothing aside the issue of whether guy or factors are the very same factors that i recited to the court just a moment ago because the starr case refers to the gutter case and i think it's apparent from from looking at that contract her comments i do not believe they overlap do i i believe there are different i believe in the one situation seeking contract damages because what we have here and which is not unusual at all in a complex commercial transaction we have here is an underlying agreement for the parties to work towards a closing to and they specifically talk about the number of factors that they're going to have to have followed in place sensually conditions preceding to the obligation to close and if so i believe at best they have a contract to enter into boot negotiations and work towards a successful closing and that's i believe how judge week was viewing it and because as is more succinctly stated or accurately stated in the st complete because so many of those things simply never came to pass she she might be in a position to find that my client and ally wouldn't see it but she might be able to in a position to find if there's evidence to support it my client didn't act in good faith by failing to reach agreement on these various items but it nevertheless would have would leave her with no ability to order specific performance because it would require the trial court to supply terms that the party simply never agreed to some of mr polanski would say and it's not unusual at all for this court the whole we have jurisdiction to entertain the appeal of the dismiss count where the count has been replayed in this answered in pending in the trial court that would not be an unusual position for us to take while i can say that it's unusual because i can't  think spoken to support a supreme court rule three hundred and four a since the phil dresser case i addressed but but i can tell you that i don't believe it would be unfair for the court to determine it had jurisdiction specifically when the amended yes i think the complaint in both cases attaches the exhibit and exhibit is the contract and as the court bill is when when exhibits are inconsistent with the factual allegations in the complaint system exhibits control and in this case the contract which is attached has several riders which are simply blank indicating that no agreement was ever reached i don't believe th one think you kind of knowledge may be a knowledge of you you've gone that way as well is a lot of the the rulings were based upon judicially kind of me and you know hey if she rules this way this is going to happen anyway remaining against between the very same parties and evacuate this district said that it had the jurisdiction to take up the summary judgment on the specific performance count with regard to separate from the others and there's a very good reason for that as as ms freeman indicated the property is the subject of a lose pendens and during the pendency of this litigation if my client were required to wait around for the pla to come up with some evidence to suggest that that they parties had reached an actual agreement the party is the property itself remains encumbered and we can't simply cannot convey it to anyone else without the benefit of them having appeal but in order to preserve your if you want to peel you don't have to answer that i guess that i guess that's correct except for the they overlap that is t answer the vast majority of them anyway and is not i forget i forget which one of you pointed out there were twenty two dollars paragraphs before hand and only fifteen afterwards so we had to answer some of them just answer counts lacks jurisdiction and i don't think that you're in a position to to advise judge we know how she ought to rule although i'm not too not all that concerned about it because i think the glaring omission sees omissions will continue to exist was supposedly replay to perfect the record on the appeal why did you well i think you alluded to why you answered it what's the effect of your answer as you said you had to answer the other counts but you knew that this was only replay supposedly to perfect the appeal what's the effect of any answer i think the effect is that it's in to simply perfect the record and i'll note that one of the objections in response to the initial motion for judgment on the pleadings was that the court needed to have an if ready the ability to consider my answer and as we  papers that's an option but because the original complaint was so clear that the head of the party had reached an agreement it was a lesser so i think the effect of my answer is simply to make the record more clear where the confusion lies is that my client believes these are defendants breaches of the contract not items that were never agreed upon and if you if you took time to look at the contract you would see that  the defendant was supposed to obtain total commitment and a survey within ten days of the execution of the country that didn't happen within a due diligence period the parties were to engage in good faith negotiations or at least back to defendant for parking spaces paragraph eleven that didn't have that contract was amended on august th two thousand and eighteen and set a closing date and at that point my client had deposited three hundred thousand dollars which i know it's a commercial transaction but that's that's a lot of money i mean clearly my client believed this was a contract now the only reason that these terms were not met were because the defendant did not meet its obligations under the contract to to make the sale so that it's not that these terms were not agreed upon and it's that the defendant could have identified the property because it never recorded the plat of subdivision and in fact it refused to immediately before the sale so i wanted to make that clear and secondly i realize or did not give a cite for the case that i had relied upon for the three o four a discussion and that is blumenthal  have the same set of facts and the same transaction upon which case were involves if you divide up your counts for various remedies they are all one claim and you cannot provide thirty dollars for a language when you just take away one of those counts or one of those remedies because the underlying claim has not been decided i i believe that on the one hand defendant will say the contract is enforceable because there was no specific description of the property being conveyed but on the other hand it was defendant's allegation under the contract to a to obtain that description and provided so it could be conveyed so this idea that there were no there was no agreement no essential terms it's all smoke and mirrors and a reason for defendant to fade the enforcement of this contract by specific performance which point of this entitle miscount soley for the purposes of preserving an appeal i think the record reflects the when the question was raised before the trial court contradicted that assertion by reply by stating that to be pleading with preserve your right to specific o no there's no motion for nothing further thank you ok this is justice enough i don't have any questions at this time a the court would like to thank counsel for their arguments the swanee our oral argument is concluded we will take the matter under advisement and render a decision and due course thank you again counsel for participating this morning thank you