An Illinois state appeals court has affirmed a lower court’s grant of summary judgment to a couple who were long-time Chicago Bears season-ticket holders. The couple had been sued by a woman who would regularly buy their tickets and was upset when the couple decided to stop selling them to her.
Fueling the controversy was the fact that the plaintiff had purchased two permanent seat licenses (PSLs) to maintain the couple’s contract with the Bears during the course of the arrangement. While the defendants were willing to reimburse the plaintiff for the original cost of the PSLs, they were not willing to pay the woman the fair market value that she sought.
In sum, the appeals court ruled for the defendants because the agreement had not been formalized in writing and because the plaintiff had not made her unjust enrichment claim in the complaint.
The defendants in the case were Donald and Nancy Barthel. In 1980, they applied for season tickets to the Chicago Bears and were placed on a waiting list. In 1992, they acquired two season tickets in Donald Barthel’s name. In 1996, the defendants relocated to another state because of a job transfer. The defendants began selling most of their season tickets at face value to the plaintiff, Cindy Chiappe-Kay, their lifelong friend.
In April 2001, the defendants received a letter from the Chicago Bears informing them of an opportunity to purchase at a season-ticket-holder discount two PSLs, which would guarantee defendants, as licensees, the permanent right to purchase annual season tickets for two specific seats in Soldier Field, beginning in 2003.
The plaintiff alleged that she reached an agreement with the defendants in 2002, where she would purchase the two PSLs in exchange for maintaining the agreement. Initially, the PSLs would be placed in Mr. Barthel’s name, because, as the season ticket holder of record, he was the only one eligible to purchase the PSLs. The plaintiff would then purchase all of the annual season tickets and sell to defendants, at face value, tickets to at least one home game per year.
The plaintiff alleged that, during 2002 and 2003, she made payments totaling $2,210 to the Bears organization, which then issued two PSLs in Mr. Barthel’s name. From 2003 to 2007, the plaintiff purchased the season tickets each year, either by sending payment directly to the Bears or by sending payment to the defendants. The parties never “formally executed the PSL transfer papers” because of “the trust and long-standing friendship between her and defendants,” according to the plaintiffs.
In 2008, the defendants allegedly breached the agreement when they refused to transfer the PSLs into the plaintiff’s name and they stopped selling the season tickets to the plaintiff.
The plaintiff’s first amended complaint contained three counts: “Count I sought specific performance of the agreement, count II sought enforcement of the agreement under a theory of promissory estoppel, and count III sought a declaratory judgment that the plaintiff was the sole owner of the PSLs.”
On July 11, 2011, the trial court granted the defendants’ motion for summary judgment on all three counts.
“The court found that the purported agreement was subject to the statute of frauds because it could not be performed within one year,” wrote the appeals court. “The court further found that the agreement was unenforceable because it was not in writing. The court reasoned that the agreement was incapable of performance within one year because the agreement required the plaintiff to sell to the defendants tickets to at least one game per year for life. In the same order, the court ordered the defendants to pay to the plaintiff $2,210 in restitution, the amount the plaintiff paid for the PSLs.”
The plaintiff, however, wanted more. She filed a “Motion for Restitution,” seeking (1) restitution in the amount of the current fair market value of the two PSLs, purported to be in excess of $22,000; and (2) prejudgment interest on the funds. On August 7, 2012, the trial court granted in part and denied in part the plaintiff’s motion for restitution. The court declined the plaintiff’s request for restitution in the amount of the fair market value of the PSLs, but awarded her 5 percent interest on the judgment from the date the defendants stopped selling the season tickets to the plaintiff.
The plaintiff appealed, challenging the trial court’s determination that the agreement to transfer the PSLs was unenforceable under the statute of frauds.
The plaintiff argued that the purported agreement between the plaintiff and the defendants met the writing requirement of the statute of frauds because each party had allegedly signed the license agreement forms. The appeals court disagreed, noting that “the two documents contained in the record—the application signed by the plaintiff and the PSL agreement signed by the defendant—do not identify the subject matter of any agreement nor any terms or conditions thereof. There is no genuine issue of material fact that the writing requirement of the statute of frauds was not satisfied.”
Next, the plaintiff argued that the statute of frauds does not apply because “full performance of the contract took place within one year.” Her argument:
“If the contract was merely oral, the Statute does not apply because full performance took place within a year. The money was paid right away as were the signatures and the dispersal of some game tickets to Defendants. The rights of the parties Plaintiff [sic] promptly vested. If several years later Plaintiff had refused tickets to the Barthels they could have sued for them.”
The appeals court found that the plaintiff cited “no authority whatsoever for her argument. Nor does she provide citations to the pages of the record relied upon. Therefore, the argument is forfeited.”
Next, the panel turned to the plaintiff’s argument that the agreement was “not subject to the statute of frauds because the parties entered into a series of one-year oral contracts. The plaintiff acknowledges in her reply brief that she did not make this argument before the trial court. Therefore, the argument is forfeited.”
As for the plaintiff’s argument that the trial court “should have awarded her restitution in the amount of the current fair market value of the PSLs.” She specifically argued that permitting the defendants “to retain the PSLs, which purportedly are ‘worth maybe $25,000,’ would be unjust enrichment. The problem with the plaintiff’s argument, as the defendants point out, is that the plaintiff’s complaint did not contain either a count for unjust enrichment or the elements of an unjust enrichment claim.”
Cindy Chiappe-Kay v. Donald Barthel and Nancy Barthel et al.; App. Ct. Ill., 2d Dist.; No. 2-12-0975, 2013 IL App (2d) 120975-U; 2013 Ill. App. Unpub. LEXIS 1252; 6/7/13
