dissenting:
The trial court prefaced its opinion by indicating that the court had read the pleadings of the parties "with keen interest,” noting that this was a case of "sizable magnitude.” The court then stated that "Illinois law is well settled that specific performance of construction projects is forbidden as a matter of law.” The court cited three particular Illinois cases: Besinger v. National Tea Co. (1966), 75 Ill. App. 2d 395, 221 N.E.2d 156; Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 326 N.E.2d 773; and Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 409 N.E.2d 515. In my opinion, the doctrine of stare decisis now applies to the case sub judice.
The Besinger case is particularly analogous to the instant case. In Besinger, the plaintiff, Leonard Besinger, in a two-count complaint, sought specific performance by the defendant, National Tea Co., and damages for breach of the contract against the defendant in counts I and II, respectively. Defendant moved to dismiss both counts. As in the instant case, the chancellor sustained the motion to dismiss count I and denied the motion as to count II.
In that case, the plaintiff and defendant entered into a contract in which the defendant agreed to construct
"a fully improved commercial building ... having a fully enclosed area of not less than ninety-three thousand (93,000) square feet and suitable for use as a food supermarket or discount store. The Building shall be of as good or better quality and workmanship as the commercial building recently constructed for and a portion of which is presently operated by lessee as a food supermarket in Rolling Meadows, Illinois.” (75 Ill. App. 2d at 397.)
The lease also provided:
"Prior to the time that Lessee shall commence construction of the Building, Lessee shall submit the plans and specifications for the Building to Lessor for Lessor’s approval. Lessee shall also at its sole expense construct, provide, furnish and maintain a parking lot area suitable for the operation of the Building to be constructed by Lessee, and any and all outbuildings, service areas, driveways, and all other structures necessary and suitable for the conduct of Lessee’s business.” 75 Ill. App. 2d at 397.
In affirming the trial court, the appellate court wrote: "The plaintiff has found no Illinois case wherein specific performance of a building contract was decreed ***.” (75 Ill. App. 2d at 401.) Significantly, almost 20 years after Besinger, the plaintiff can cite no Illinois case wherein specific performance of a building contract has been decreed.
In the case sub judice, the record establishes that Harris Bank has submitted no schematic design drawings and has completed no construction plans. Being mindful of the lack of any building plans, the majority writes "we are not ordering the trial court to grant specific performance. We are merely directing the trial court to permit FPI one opportunity to amend its complaint to attempt to show that the ARB will perform the functions that the dissent in Grayson-Robinson suggested that an arbitrator might perform in order to demonstrate that a decree of specific performance would not embroil the court in the ongoing supervision of the construction contract disputes.” 277 Ill. App. 3d at 498.
Subsequently, in its decision to reverse the trial court, the majority writes, "we are not convinced, based on FPI’s allegations in its current complaint for specific performance, that the ARB will completely eliminate the need for prolonged and constant judicial supervision of the building’s construction.” (277 Ill. App. 3d at 496.) However, it is clear from the transcript of the proceedings had in this case and the record that the trial court was convinced that agreement on all the necessary details could not be reached without the intervention of the court. Per force, I dissent.
Significantly, the Besinger court wrote: "The plaintiffs first point is that a decree of specific performance would not require extensive supervision of the construction.” (Besinger, 75 Ill. App. 2d at 399.) To the plaintiffs first point, I note that the Besinger court wrote: "Due to the absence of specifications and plans, the chancellor would be unable to order the construction of a particular building ***.” Besinger, 75 Ill. App. 2d at 400.
Moreover, the Besinger court concluded: "Even if the plans and specifications had been agreed upon it is doubtful whether specific performance would be available, for the decree would necessitate instant and prolonged judicial supervision of the construction operations. [Citations.]” Besinger, 75 Ill. App. 2d at 401.
Finding no Illinois case to support its opinion, the majority seeks to rely upon the New York case of Grayson-Robinson Stores, Inc. v. Iris Construction Corp. (1960), 8 N.Y.2d 133, 136-37, 168 N.E.2d 377, 378, 202 N.Y.S.2d 303, 305. Grayson v. Robinson is an arbitration award case. There, the court found specific performance appropriate where the plans and specifications for the building were completed or practically completed. However, the Grayson-Robinson decision, where the plans were completed or practically completed, was expressly rejected in Yonan v. Oak Park Federal Savings & Loan Association, 27 Ill. App. 3d at 975, where the court wrote: "However, it is our opinion that the traditional and well-established principle that specific performance of building and construction contracts will be denied is the better-reasoned rule of law. We espouse the view that the trial courts are not particularly well suited to supervise building construction and that denial of specific performance of such contracts promotes the goal of all litigation, finality.” Interestingly, I note that the majority in the case sub judice argues that Yonan does not reject Grayson v. Robinson. Query.
Regarding the futility of specific performance in the case sub judice, see also New Park Forest Associates II v. Rogers Enterprises, Inc. (1990), 195 Ill. App. 3d 757, 765, 552 N.E.2d 1215, wherein the court, in denying injunctive relief, wrote: "It is possible that, during the life of a mandatory injunction, the court would never have to enforce any of those terms or judge 'better quality.’ Problems may never arise. If problems did arise, however, the court would find itself in the business of managing a shopping center.”
Plaintiff also contends that the trial court abused its discretion by denying plaintiff at least one chance to amend its complaint. However, on the record before the trial court, plaintiff had no right to further amend where plaintiff did not provide the trial court with either a proposed amendment to the amended complaint or otherwise give a specific indication to the court of the contents of the proposed amendment to the amended complaint. See Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 579, 397 N.E.2d 84; see also Smith v. Sheriff of Cook County (1995), 277 Ill. App. 3d 335, 339 ("The trial court’s comment, however, does not relieve plaintiff of the responsibility of asking for leave to amend and providing the court with a proposed amendment in order to preserve his right to appeal the denial of the request”).
A fortiori, I dissent.