Silvestros v. Silvestros

Citations: 563 N.E.2d 1084; 206 Ill. App. 3d 84; 150 Ill. Dec. 957; 1990 Ill. App. LEXIS 1734Docket: 1-89-3264

Court: Appellate Court of Illinois; November 15, 1990; Illinois; State Appellate Court

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Koula Silvestros, both individually and as executrix of the estate of Anthanasios S. Silvestros, filed a lawsuit against Silvestros Silvestros in the Cook County law division, aiming to enforce an alleged oral settlement agreement related to family disputes over a restaurant, which involved multiple pending chancery cases. The defendant moved to dismiss the case, citing section 2-619(a)(7) of the Code of Civil Procedure and the one-year provision of the statute of frauds, which requires certain agreements to be in writing if they cannot be performed within one year. The trial court granted the motion to dismiss with prejudice. On appeal, the plaintiff argued that the oral agreement did not fall under the statute of frauds. The agreement, described in an attached "agreed order," stipulated that the defendant would pay $40,000 to the plaintiff, with an initial payment of $15,000 and subsequent installments over 25 months. The order was only signed by the plaintiff and her attorney, with neither the defendant nor the judge's signatures present. The defendant contended that the 25-month payment term meant the agreement could not be performed within one year, while the plaintiff argued that the provision allowing for acceleration of payments in case of default enabled compliance within the one-year timeframe, thus exempting it from the statute of frauds.

The defendant contended that the acceleration clause in the agreement allowed for its termination but did not meet the one-year performance requirement of the statute of frauds, thus maintaining the statute's bar. During the motion to dismiss hearing, the plaintiff's attorney noted that a December 1987 order from Judge Hall dismissed the chancery case. After the dismissal, the plaintiff traveled to Greece, where she signed settlement documents that were later returned to her attorney. However, by that time, the defendant had opted not to proceed with the settlement. The plaintiff's attorney filed a petition under section 2-1401 of the Code of Civil Procedure to vacate the dismissal order, but it was indicated that the petition would likely be denied due to the plaintiff's lack of diligence in returning the documents. The trial court ruled that the statute of frauds barred the alleged agreement due to the absence of a written and signed document by the party to be charged. The key issue on appeal is whether the one-year provision of the statute of frauds applies, which hinges on whether the agreement could have been fully performed within that timeframe. The law establishes that a contract is unenforceable only if impossible to perform within one year; if reasonable terms suggest it could be performed within that period, the statute does not apply. In this case, the agreement required $40,000 to be paid over 25 months, thus falling outside the one-year performance requirement. Consequently, the court affirmed that the statute of frauds barred enforcement of the alleged agreement, resulting in a dismissal of the plaintiff's action.

The acceleration clause in the agreement does not negate the applicability of the statute of frauds. The clause allows the plaintiff to declare the entire debt due if the defendant defaults for more than 30 days, but it does not imply that full performance of the agreement, which stipulated a 25-month installment payment period, could be achieved within one year. Even if the defendant defaulted and the plaintiff invoked the clause, such acceleration would terminate the structured payment plan rather than fulfill it, thus not satisfying the agreement's terms. This situation parallels prior cases where certain contingencies did not remove contracts from the statute of frauds due to their effect on performance. The plaintiff's reference to other cases does not apply here, as those involved contracts that could be fully performed within a year despite contingencies. Additionally, the plaintiff's claim that the statute of frauds would leave her without a remedy is unsupported by the record, which does not confirm denial of her petition related to a separate chancery action. The circuit court's judgment is affirmed.