                                               SECOND DIVISION
                                               FILED: March 4, 2008




No.   1-07-0970

WHEELER-DEALER, LTD., an Illinois         )    APPEAL FROM THE
Corporation,                              )    CIRCUIT COURT OF
                                          )    COOK COUNTY
           Plaintiff-Appellant,           )
                                          )
                     v.                   )
                                          )
ROGER CHRIST, individually and d/b/a/     )
R&R BUILDING INVESTMENTS,                 )    HONORABLE
                                          )    MARTIN S. AGRAN,
           Defendant-Appellee.            )    JUDGE PRESIDING.


      PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

      The plaintiff, Wheeler-Dealer, Ltd., filed a two-count amended

complaint in the instant action seeking, in count I, reformation of

a deed conveying all of lot 4 of Massey’s Addition to Fairmont, a

subdivision in Blue Island, Illinois (Lot 4).     Count II, pled in

the alternative to count I, sought rescission of the same deed.

Following a bench trial, the circuit court entered judgment in

favor of the defendant, Richard Christ, on both counts of the

amended complaint.   The plaintiff filed a timely notice of appeal.

      In its brief filed with this court, the plaintiff states that

it is not pursuing an appeal from the circuit court’s judgment on

count II, the rescission count, and the plaintiff has not presented

any arguments in relation thereto.      Consequently, any claim of

error in the circuit court’s entry of a judgment in favor of the
NO.   1-07-0970

defendant on count II has been waived.            210 Ill. 2d R. 341(h)(7).

We restrict our analysis to the plaintiff’s claims of error in the

circuit court’s judgment on count I, the reformation action.

      Count I of the plaintiff’s amended complaint alleges that, on

October 9, 2004, the plaintiff as seller and the defendant as

purchaser executed a contract for the sale and purchase of a

certain parcel of real property described, in part, as the east 165

feet of Lot 4.       However, when the sale was closed on December 28,

2004, the plaintiff delivered a special warranty deed conveying all

of Lot 4 to R&R Building Investments, the defendant’s nominee.

According to the complaint, the conveyance of all of Lot 4 was a

"scrivener’s error," and the product of a mutual mistake of fact.

In count I of its amended complaint, the plaintiff asked the court

to reform the deed by deleting from the legal description that

portion   of   Lot    4   which   had   been   excluded   from   the   parties’

contract.

      In his answer to count I of the amended complaint, the

defendant admitted the execution of the contract as alleged by the

plaintiff, but denied that he only intended to purchase the east

165 feet of Lot 4.        He denied that the conveyance of all of Lot 4

was the result of a mutual mistake of fact.

      At trial, the defendant testified that he attended a real

estate auction on October 9, 2004, and received a bid brochure at

that time.     He stated that he was interested in purchasing the land

and building at 12531 S. Vincennes in Blue Island, Illinois, which


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was listed by that address as parcel No. 54 in the bid brochure.

As described in the brochure, the property had a metal garage

building located on it which was being used as an auto shop.                   The

defendant testified that he intended to use the metal building as

a   warehouse    for   the   storage   of    cabinets.        According   to   the

defendant, the auctioneer made no disclosure prior to the bidding

that the seller intended to retain any part of the property listed

as 12531 S. Vincennes.       He admitted that, prior to the auction, he

had no idea that there was an advertising sign on the property, nor

did the auctioneer make any reference to the sign.                  None of the

auction    materials     described     the       property   as   containing     an

advertising sign.      The defendant testified that the first time he

found out that there was a sign on the property was approximately

two months later.

      The defendant admitted that he did not read the bid brochure

"word for word" prior to the auction.                  After being shown the

document, he acknowledged that the brochure states that it and all

other auction related materials are subject to and superceded by

the real estate contract which had been made available to all

potential bidders prior to the auction.

      The defendant maintained that he intended to purchase all of

the   property    comprising    12531       S.   Vincennes.      Initially,     he

testified that he knew the boundaries of the property prior to the

auction.    However, later in his testimony, the defendant stated

that, at the time he purchased the subject property, he had no idea


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how large the parcel was.

      After identifying the real estate sale contract which he

signed on October 9, 2004, the defendant acknowledged that the

address of 12531 S. Vincennes does not appear anywhere in the

document. Rather, the contract contains a legal description of the

property as the east 165 feet of Lot 4 and gives approximate

dimensions of 50 feet by 165 feet.    The defendant then identified

a special warranty deed dated December 27, 2004, which conveyed all

of Lot 4 to R&R Building Investments and a survey of Lot 4 showing

the dimensions of Lot 4.    According to the survey, Lot 4 is 206.27

feet on its northern border, 50 feet on its eastern border which

abuts a private road, 224.77 feet on its southern border, and 53.30

feet on its western border which abuts Vincennes road.    The metal

building bearing the address of 12531 is located on the eastern

portion of   Lot 4, approximately 19 feet from the eastern border of

the property.

      David R. Gray, Jr. (Gray Jr.), the attorney who represented

the plaintiff in the subject transaction, testified that he made a

mistake when he included all of Lot 4 in the special warranty deed

which he prepared.   According to Gray Jr., instead of inserting the

proper legal description of the east 165 feet of Lot 4 in the deed,

he used a "cut and paste" method and mistakenly took the legal

description, Lot 4, from the documents the plaintiff received when

it obtained title to the property.      Gray Jr. testified that he

never discovered the error until several months after the closing.


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NO.   1-07-0970

He admitted that the receipt given to the defendant when he posted

his earnest money on the day of the auction lists 12531 S.

Vincennes as the address of the property purchased, as does the

closing statement.   Gray Jr. also admitted that, about one month

prior to the closing, he received a title commitment showing Lot 4

as the property involved in the transaction, but he stated that he

would not have reviewed the legal description.   He would only have

reviewed title exceptions listed on schedule B of the commitment.

Gray Jr. testified that, in addition to the special warranty deed,

Lot 4 was mistakenly listed as the legal description of the

property in other closing documents such as the affidavit of title

and the state and county tax declarations.

      Kevin Skalnick, who was employed by Gray Jr. as a law clerk at

the time of the instant transaction, testified that, prior to the

closing, he received a call from the law firm representing the

defendant.   According to Skalnick, he spoke to a woman named Donna

regarding her concern that the legal description of the property as

set forth on the sale contract did not match the legal description

on the title commitment or the survey.       He testified that he

consulted with Gray Jr. about the discrepancy and told Donna that

the legal description on the contract was correct.   Donna Stasi, an

employee of the law firm that represented the defendant in the

instant transaction, testified that, although she assisted in the

transaction, she did not remember having a discussion with anyone

regarding a discrepancy between the legal description in the sales


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NO.   1-07-0970

contract and the description in the title commitment.

      Timothy Gray, the president of the plaintiff corporation,

testified that, when he decided to sell the portion of Lot 4 with

the metal garage located on it, he never intended to sell that

portion of       the   property       upon   which    the     advertising     sign   was

located. Gray stated that he was present at the auction on October

9, 2004, and did not make any statements to the defendant about

selling less than the entire parcel of property listed as 12531 S.

Vincennes, nor did he instruct the auctioneer to announce to the

bidders that it was only the east 165 feet of the property listed

as 12531 S. Vincennes that was being sold.                      He admitted that the

address of 12531 S. Vincennes was painted on the door of the metal

building    located       on    the     property.        Gray    testified    that   he

authorized his father, David R. Gray, Sr., to prepare the contract

of sale and Gray Jr. to prepare the deed and all other documents

necessary for a closing.              According to Gray, he never authorized

the preparation of any deed or closing documents that contained a

legal description         other       than   the   one   appearing    on     the   sales

contract.    He acknowledged that 12531 S. Vincennes appears on the

earnest money receipt given to the defendant on the day of the

auction as the address of the property purchased and the same

address appears on the closing statement.

      Following the close of evidence, the circuit court entered

judgment    in    favor    of     the    defendant       on   both   counts    of    the

plaintiff’s amended complaint.                   As to count I, the reformation


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NO.   1-07-0970

action,     the   circuit   court      found    that    the   defendant     never

contemplated that he was going to receive less than the entire lot

at 12531 S. Vincennes or that any portion of the land was going to

be excluded from the transaction.           This appeal followed.

      The plaintiff argues that the judgment of the circuit court on

its reformation     claim   is   against       the   manifest     weight   of   the

evidence.    According to the plaintiff, the conveyance of all of Lot

4 to the defendant was the result of a mutual mistake of fact. The

plaintiff    contends   that     the    parties'       contract    unambiguously

identifies the east 165 feet of Lot 4 as the parcel that it agreed

to sell and the defendant agreed to purchase, and the variance

between the legal description in the contract, the east 165 feet of

Lot 4, and the legal description in the deed, Lot 4, was solely the

result of Gray Jr.'s mistake in preparing the deed.                The plaintiff

concludes that the circuit court erred in failing to reform the

legal description in the deed to conform to the legal description

in the contract.

      The purpose of an action for reformation is to change a

written instrument by inserting some omitted provision or deleting

some existing provision so that the document conforms to the

original agreement of the parties.             Schaffner v. 514 West Grant

Place Condominium Ass'n, Inc., 324 Ill. App. 3d 1033, 1044, 756

N.E.2d 854 (2001).      Before a deed will be reformed, satisfactory

evidence of mistake must be presented.            The mistake must be one of

fact, not of law, and it must be mutual and common to both parties.


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Schmitt v. Heinz, 5 Ill. 2d 372, 379, 125 N.E.2d 457 (1955).                The

plaintiff    has   the   burden   of    proving   by   clear   and   convincing

evidence that the parties reached a meeting of the minds resulting

in an actual agreement between them, but that, at the time that the

deed   was   reduced     to   writing   and    executed,   some      agreed-upon

provision was omitted or one not agreed upon was inserted either

through mutual mistake or through mistake by one party and fraud by

the other.    See Sheldon v. Colonial Carbon Co., 116 Ill. App. 3d

797, 800, 452 N.E.2d 542 (1983).            Whether the plaintiff in such an

action has met its burden of proof is a question of fact to be

resolved by the circuit court, and its decision in the matter will

not be disturbed on review unless it is against the manifest weight

of the evidence.     Fisher v. State Bank of Annawan, 163 Ill. 2d 177,

182, 643 N.E.2d 811 (1994); Sheldon, 116 Ill. App. 3d at 800.

       There is a presumption that a written instrument conforms to

the intention of the parties.           Sheldon, 116 Ill. App. 3d at 800.

However, where a mutual mistake is alleged, parol or extrinsic

evidence is admissible to show the true intent of the parties.

Schmitt, 5 Ill. 2d at 379; Schaffner, 324 Ill. App. 3d at 1045.               A

mutual mistake is one that is common to the parties such that each

labors under the same misconception.            In such a case, the parties

are in actual agreement, but the instrument to be reformed, in its

present form, does not express the parties' real intent.                See Bank

of Naperville v. Holz, 86 Ill. App. 3d 533, 538, 407 N.E.2d 1102

(1980).


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NO.   1-07-0970

      In    this   case,   the    plaintiff       contends    that     the    parties’

contract unequivocally and unambiguously establishes their intent;

namely, the sale and purchase of the east 165 feet of Lot 4, "[n]o

more, no less."      According to the plaintiff, its attorney made a

mistake when he prepared a deed conveying all of Lot 4, and the

defendant "made a mistake in accepting the Deed."                      The plaintiff

concludes that the mistake was mutual.

      The defendant appears to argue that the mistake in this case

involved the very identity of the subject matter of the parties’

contract.      The   defendant         asserts   that    he   always    intended     to

purchase the entire premises identified in the bid brochure as

12531 S. Vincennes, which is legally described as Lot 4, not merely

some portion thereof.            He reasons that, if as it asserts, the

plaintiff only intended to sell a portion of the property commonly

known as 12531 S. Vincennes, there was no meeting of the minds and,

as a consequence, no agreement upon which a claim for reformation

could be based.      The defendant’s argument in this regard rests on

the circuit court’s finding that the plaintiff failed to prove a

meeting of the minds by clear and convincing evidence.

      The    plaintiff     asserts      that     the   circuit   court       erred    in

considering any parol evidence as to the defendant’s intent at the

time that he signed the contract to purchase the east 165 feet of

Lot   4.     According     to    the    plaintiff,      the   contract       is   clear,

unambiguous and contains an integration clause stating that the

document incorporates the entire understanding between the parties.


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The plaintiff argues that the circuit court erred in looking beyond

the "four corners" of the contract in determining the intent of the

parties.     However, assuming for the sake of analysis that the

evidence offered by the defendant did violate the parol evidence

rule, the plaintiff waived any challenge to the circuit court’s

consideration of that evidence by failing to make a contemporaneous

objection at trial.

      Evidence violating the parol evidence rule may be considered

by a trial court in the absence of a timely objection.           Tolbird v.

Howard, 43 Ill. 2d 357, 362, 253 N.E.2d 444 (1969).              Timeliness

requires that an objection be made when the evidence is offered at

trial.   Spurgeon v. Mruz, 358 Ill. App. 3d 358, 360, 832 N.E.2d 321

(2005). Although a party may have objected to the evidence at some

pre-trial stage in the proceedings or unsuccessfully moved to bar

the evidence prior to trial, it must still renew its objection at

the time that the evidence is offered.      Spurgeon, 358 Ill. App. 3d

at 360-61.     Failure to renew the objection when the evidence is

offered at trial results in a waiver of any challenge to the

circuit court’s consideration of that evidence. Spurgeon, 358 Ill.

App. 3d at 361; see also Dremco, Inc. v. Hartz Construction Co.,

261 Ill. App. 3d 531, 534, 633 N.E.2d 884 (1994).

      The plaintiff asserts that, during the "discovery stage" of

the   proceedings,   it   objected   to   the   admission   of    any   oral

statements going to the intent of the parties at the time that they

entered into the real estate contract and that it again objected to


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such evidence in its brief filed with the circuit court prior to

the commencement of trial.        Nevertheless, the record is devoid of

any objection      by   the   plaintiff    to   the   introduction   of   parol

evidence at the time that it was offered during the trial of the

cause.    Consequently, any objection to the circuit court having

considered the extrinsic evidence offered by the defendant to

establish his intent at the time that he entered into the real

estate contract with the plaintiff has been waived.

       The existence of a factual mistake is a prerequisite for

relief in a reformation action. Friedman v. Development Management

Group, Inc., 82 Ill. App. 3d 949, 953, 403 N.E.2d 610 (1980).

Mistakes are divided into two groups.           The first group consists of

"those fundamental in character, relating to an essential element

of the contract which prevent a meeting of the minds of the parties

and so no agreement is made."         Harley v. Magnolia Petroleum Co.,

378 Ill. 19, 28, 37 N.E.2d 760 (1941).            Mistakes relating to the

identity of the subject matter of the contract are included within

this first group.       Harley, 378 Ill. at 28.         The second group of

mistakes involve circumstances in which an actual understanding has

been reached by the parties but, through some error, their written

contract does not express their actual understanding.            "The former

of    these   classes   constitutes   ground      for   rescission   but    not

reformation, while the latter may be reformed."             Harley, 378 Ill.

at 28.

       The defendant contended throughout this litigation that he


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intended to purchase the entire property commonly known as 12531 S.

Vincennes.        His testimony in this regard is supported by the bid

brochure for the auction on October 9, 2004, which described the

property as 12531 S. Vincennes, and the receipt which the defendant

received when he posted his earnest money deposit which also

described the property as 12531 S. Vincennes.               In contrast, the

plaintiff's president testified that he never intended to sell all

of Lot 4; rather, he only intended to sell the east 165 feet

thereof.     The contract entered into by the parties states that the

property to be conveyed is the east 165 feet of Lot 4, and makes no

reference to a common address of 12531 S. Vincennes.                The survey

admitted into evidence reveals that the parcel described in the

contract, the east 165 feet of Lot 4, does not border Vincennes

road.   The only road frontage that the parcel has is 50 feet on the

private road abutting its eastern border.

      The circuit court found that the defendant never contemplated

that he     was    purchasing   anything     less   than   the   entire   parcel

commonly known as 12531 S. Vincennes. The inference being that the

plaintiff prepared a contract for the sale of one parcel of land,

and   the   defendant    signed   the    contract    thinking     that    he   was

purchasing a different parcel.          The circuit court concluded that

there was no meeting of the minds when the parties signed the real

estate contract on October 9, 2004, and we are unable to find based

upon the record before us that its determination in this regard is

against the manifest weight of the evidence.


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NO.   1-07-0970

      When, as in this case, there has been no meeting of the minds,

there can be no reformation.                In cases where reformation is

appropriate, the mistake involved is in the expression of an

agreement between parties whose minds have met.               See Harley, 378

Ill. at 28.

      The plaintiff also argues that reformation of the deed to

include only the east 165 feet of Lot 4 is appropriate in order to

prevent the defendant from being unjustly enriched at its expense.

However, the plaintiff has failed to cite any cases in support of

the proposition that, in the absence of any underlying meeting of

the minds, reformation of a written instrument is an appropriate

remedy in order to prevent unjust enrichment.                Failure to cite

legal authority in support of an argument results in a waiver of

the issue for purposes of appeal.               210 Ill. 2d R. 341(h)(7);

Libertyville Toyota v. U.S. Bank, 371 Ill. App. 3d 1009, 1017-18,

864 N.E.2d 850 (2007).        Waiver aside, we reject the argument on its

merits.

      Recovery under a theory of unjust enrichment is based on a

contract implied in law.         Because recovery under this theory is

based upon an implied contract, where the parties' relationship is

governed by a contract, the doctrine of unjust enrichment has no

application.      People ex rel. Hartigan v. E & E Hauling, Inc., 153

Ill. 2d 473, 497, 607 N.E.2d 165 (1992).           Reformation of a written

instrument is based upon proof of an underlying agreement between

the   parties   which   has    been   thwarted    by   a   mutual   mistake   in


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transcription.    Harley, 378 Ill. at 27-28; Sheldon, 116 Ill. App.

3d at 800; Friedman, 82 Ill. App. 3d at 953.   The two concepts are

fundamentally inconsistent.    Unjust enrichment may only form the

basis of recovery in the absence of an agreement between the

parties; whereas, reformation may only be awarded in order to

conform a writing to an actual agreement between the parties.   We

conclude, therefore, that the doctrine of unjust enrichment may not

form the basis of a claim for reformation.

      Based upon the foregoing analysis, we affirm the judgment of

the circuit court in favor of the defendant on count I of the

plaintiff’s amended complaint, the reformation claim.   Further, as

noted earlier, the plaintiff has declined to pursue its appeal from

the judgment entered in favor of the defendant on count II, its

action for rescission.   We, therefore, affirm the circuit court’s

judgment in its entirety.

      Affirmed.


      SOUTH and KARNEZIS, JJ., concur.




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