(Payne v. Mill Race Inn (1987), 152 Ill.App.3d 269, 273, 105 Ill. Dec. 324, 504 N.E.2d 193.) Mrs. Wilkonson asserts that her decision to enter into a settlement was motivated by her desire to preserve family harmony. As we discussed above, the parties cannot be placed in status quo ante. Plaintiffs now appeal from the dismissal of counts I-V of their amended complaint. (Ill.Rev.Stat.1991, ch. We hold that the trial court erred in dismissing count III of plaintiffs complaint with prejudice; plaintiffs should have been given the opportunity to amend this count of their complaint. (See 20 C.F.R.
(Ill.Rev.Stat.1991, ch. Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 90, 4 Ill.Dec. 672, 409 N.E.2d 287.) In count III, plaintiffs sought relief for breach of contract based upon the defendant's failure to withdraw the claim for social security benefits as well as the failure to execute a spousal waiver for the pension and profit sharing benefits. Both Mrs. Yovetich and her attorney suggested to Mrs. Wilkonson that litigation could be avoided and family harmony preserved if she would agree on behalf of Luka and Wallace, the sole beneficiaries of the estate, to allow defendant to share in the estate. In this case, the trial court did allow the plaintiff to file an amended complaint, but only for the purpose of alleging new counts for specific performance and/or declaratory judgment The trial court refused to allow the plaintiffs to amend the breach of contract claim and in doing so, improperly restricted the available remedies at the pleadings stage. In their brief, plaintiffs state that they seek specific performance of the antenuptial agreement if the family settlement agreement is rescinded. Although the literal language of the agreement does not require the defendant to execute such a waiver, we are inclined to agree with the trial court's suggestion that the defendant may have had an implicit duty to execute the waiver form.
Plaintiffs now appeal from the dismissal of counts I-V of their amended complaint. Plaintiffs have failed to allege that the outcome of defendant's attempt to withdraw her claims would have been different, if she had acted sooner. However, this deficiency was a formal defect rather than one of substance.
2-615.) (Bernesak v. Catholic Bishop of Chicago (1980), 87 Ill.App.3d 681, 687, 42 Ill. Dec. 672, 409 N.E.2d 287.) WALLACE YOVETICH . Neither the draft letter nor the letter from defendant's counsel conforms to the conditions set forth in the family settlement agreement as necessary to effect a modification; neither document is a written agreement of all the parties. Thus, plaintiffs seek damages equal to the sum of the total reduction in Luka's and Wallace's social security benefits, as well as the full value of the decedent's pension and profit sharing plan. Afficher les profils des personnes qui s’appellent Diana Wallace. Diana WILKONSON, individually and as Guardian and Next of Friend of Luka Yovetich and Wallace Yovetich, and Donald Yovetich as Administrator of the Estate of Gene Yovetich, Plaintiffs-Appellants, The defendant gave up her right to administer the estate, and the estate has been administered by Donald Yovetich for the past four years. Accordingly, the trial court did not err in dismissing count IV of plaintiffs' amended complaint. Assuming that all of the allegations in the plaintiffs' complaint are true, all that can be said is that the defendant asserted her legal rights in connection with a family dispute over the decedent's estate, and she may have breached the family settlement agreement. Within the same count, plaintiffs also contend that the family settlement agreement was breached because the defendant failed to execute the spousal waiver form necessary to release the pension and profit sharing funds to Luka and Wallace. In summary, we hold that the trial court properly dismissed counts I, II, IV, and V of plaintiffs' complaint, but improperly dismissed count III. (Luciani, 106 Ill.App.3d at 882.) See Burdinie v. Glendale Heights (1990), 139 Ill. 2d 501, 505, 152 Ill. Dec. 121, 565 N.E.2d 654. Finally, plaintiffs alleged that they suffered damages because they were unable to obtain the pension benefits without the defendant's signed waiver form. The defendant did not agree to succeed in obtaining a withdrawal of the claim. On May 20, 1991, the trial court granted the defendant's motion to strike plaintiffs' second amended complaint. Has the Hulu Series Been Cancelled or Renewed Yet? Unit price / per . The draft letter from Mrs. Yovetich states that she agrees "to act to rescind [the] application for [her] son's social security benefits." We hold that the trial court erred in dismissing count III of plaintiffs complaint with prejudice; plaintiffs should have been given the opportunity to amend this count of their complaint. In count V, plaintiffs seek specific performance of the antenuptial agreement entered into by the defendant and the decedent. Plaintiffs' amended complaint was dismissed on December 13, 1990. section 404.640.) The defendant cannot regain these legal rights she has given up.
It is true that plaintiffs have intermingled allegations of two distinct breaches of the family settlement agreement in one count of their complaint. 25:23. Filed: Thus, plaintiffs seek damages equal to the sum of the total reduction in Luka's and Wallace's social security benefits, as well as the full value of the decedent's pension and profit sharing plan. From Free Law Project, a 501(c)(3) non-profit. Plus, see what some of your favorite '90s stars look like now. The letter confirmed that Mrs. Yovetich would rescind her application for her son's social security benefits provided that plaintiffs agreed to proceed under the family settlement agreement and transfer the $200,000 and other property to her. The agreement provided that it "contain[ed] the complete understanding among the parties and [could not] be modified except by written agreement of all the parties." The defendant did not agree to succeed in obtaining a withdrawal of the claim. Despite plaintiffs' assertions *1126 to the contrary, the parties simply cannot be placed in the same position that they were in prior to the agreement. In reliance upon the representations made by defendant and her counsel, plaintiffs began transferring the $200,000 in cash and other property to the defendant on April 27, 1988. View Wallace Yovetich’s profile on LinkedIn, the world's largest professional community. Law Project, a federally-recognized 501(c)(3) non-profit. Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions. In the second amended complaint plaintiffs re-pleaded counts I through V of the amended complaint in order to preserve these issues for appeal. The trial court erred in this respect. *1122 Nisen & Elliott, Chicago (Michael H. Moirano, Daniel P. Dawson, of counsel), for plaintiffs-appellants. section 404.640.) Plaintiffs alleged that pursuant to the family settlement agreement Mrs. Yovetich promised to disclaim all interest in the decedent's pension and profit sharing benefits, but refused to perform this obligation. The trial court properly dismissed count V of plaintiffs' complaint. Counts I-V of plaintiffs' complaint were dismissed for failure to state a cause of action under section 2-615 of the Code of Civil Procedure. On September 26, 1991, the circuit court entered an order finding that there was no just reason for delaying the enforcement or appeal *1123 of the court's prior dismissal of counts I through V of the plaintiffs complaint. Although plaintiffs have stated a sufficient cause of action for the latter breach, they have not and can not state a claim for the former breach. In count IV, plaintiff, Diana Wilkonson, individually, asserts a claim for defendant's alleged intentional infliction of emotional distress. The defendant simply promised "to act" to withdraw the claim, and plaintiffs' complaint admits that the defendant did in fact act to withdraw the social security claim. In this case, the allegations of plaintiffs' complaint failed to demonstrate that the parties can be restored to the status quo ante.
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