Nave v. HEINZMANN

• Court: Appellate Court of Illinois
• Citation: Nave v. HEINZMANN, 801 N.E.2d 121, 344 Ill. App.3d 815, 279 Ill.Dec. 829 (Ill. App. 2003)
• Decision Date: 21 November 2003
• Docket Number: No. 5-02-0091.,5-02-0091.
• Parties: Havard Gene NAVE, Plaintiff-Appellant, v. Howard Dwaine HEINZMANN and Lyndell R. Heinzmann, Defendants-Appellees.

801 N.E.2d 121

344 Ill. App.3d 815

279 Ill.Dec. 829

Havard Gene NAVE, Plaintiff-Appellant, v. Howard Dwaine HEINZMANN and Lyndell R. Heinzmann, Defendants-Appellees.

No. 5-02-0091.

Appellate Court of Illinois, Fifth District.

November 21, 2003.

M. Keith Smith, Law Office of M. Keith Smith, Mt. Vernon, for Appellant.

Samuel E. Bauerle, Salem, for Appellees.

Justice GOLDENHERSH delivered the opinion of the court:

The plaintiff, Havard Gene Nave, filed suit against the defendants, Howard Dwaine Heinzmann (Dwaine Heinzmann) and Lyndell R. Heinzmann, in the circuit court of Marion County, Illinois. After a bench trial, the court entered a judgment order requiring the defendants to repay the plaintiff $15,000 but denying other relief sought by the plaintiff. On appeal, the plaintiff raises these issues: (1) whether the trial court erred in denying his request for specific performance and (2) whether the trial court erred in failing to require the defendants to pay interest on the damages awarded to the plaintiff. We affirm.

FACTS

The plaintiff filed a four-count complaint against the defendants. The plaintiff alleged that on or about June 5, 1996, the plaintiff and defendant Dwaine Heinzmann entered into a written contract regarding the sale of real estate located in Marion County. The plaintiff alleged that at the time he entered into the contract, he delivered a $15,000 check to defendant Lyndell R. Heinzmann (Dwaine's son) and that said amount was drawn from the plaintiff's account on June 7, 1996.

In count I of the complaint, the plaintiff requested specific performance. The plaintiff alleged that he had demanded a deed from the defendants but that the defendants had failed to deliver the deed. The plaintiff alleged that at all times since the execution of the real estate purchase contract, he has been ready, willing, and able to pay the outstanding balance owed pursuant to the contract. Other counts in the complaint alleged fraud, conspiracy to commit fraud, and breach of contract.

Attached to the complaint was a copy of a check in the amount of $15,000, dated June 5, 1996, made payable to defendant Dwaine Heinzmann. The memo portion of the check states "earnest money 60 acres."

Also attached to the complaint was a copy of the purchase contract. The contract identified defendant Dwaine Heinzmann as "Seller" and the plaintiff as "Buyer" or "Purchaser." The contract stated in part:

"Fifteen Thousand Dollars ($15,000.00) as earnest money to be applied on such purchase price when the sale is consummated, and the balance of Ten Thousand Dollars ($10,000.00) (subject to pro[ Rations of taxes, etc.) shall be paid upon delivery of deed, which shall occur on or before June 14, 1996, unless otherwise herein provided or extended by agreement of all parties."

The contract also provided, "Upon acceptance of this offer, it becomes a binding contract and Seller shall complete said agreement on or before June 14, 1996, if not sooner performed."

Paragraph A of the contract provided, "In the event Seller fails to perform upon this agreement, all earnest money tendered shall be returned in full to Buyer."

Paragraph F stated:

"Should said Purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the Seller, be forfeited by the Purchaser as liquidated damages, and this contract shall thereupon become and be null and void, and the Seller shall then have the right to re[ ]enter and take possession of the premises aforesaid."

The contract also contained a right to repurchase. Paragraph D provided:

"Seller reserves and Buyer grants unto Seller[ ] the right to re[ ]purchase the above described real estate during a six[-]month period ending December 30, 1996[,] for the sum of Twenty-five Thousand Dollars ($25,000.00) together with interest at the rate of 10% per annum, plus all costs and taxes. Should Seller exercise the right to re[]purchase said real estate before the expiration date, Seller * * * shall be entitled to 100% of all growing crops. Should Seller * * * fail to re[]purchase said real estate, [Buyer] shall pay to [Seller] 1/3 of all existing seed and fertilizer expenses and shall receive 1/3 of growing crops."

The purchase contract also indicates that it was filed with the Marion County recorder of deeds on June 19, 1998.

The defendants filed an answer admitting that on or about June 5, 1996, the plaintiff and defendant Dwaine Heinzmann had entered into a written contract concerning the sale of certain real estate. The defendants also admitted that the plaintiff had delivered a $15,000 check to defendant Lyndell R. Heinzmann towards the purchase price of $25,000. The defendants denied the remaining allegations in the complaint but raised no affirmative defenses.

On November 9, 2001, the court conducted a bench trial. The plaintiff testified that on June 5, 1996, he signed an agreement to purchase approximately 60 acres of rough, open farmland from the defendants. The plaintiff knew the defendants and had previous property dealings with them over the prior three or four years. The plaintiff was familiar with the property and had purchased the property from defendant Lyndell R. Heinzmann on a previous occasion and had resold the property to the defendants prior to entering into this contract. The plaintiff stated that it was his intention that the $15,000 payment function as a down payment and not just earnest money. The plaintiff testified that he had more than $35,000 sitting in a credit union account and was ready and willing to make the final payment of $10,000 on the date assigned for the closing.

According to the plaintiff, at the time the contract was entered into, the defendants had already sold 20 acres of the land to Irvin Buchholz. The plaintiff testified that after entering into the contract, but prior to the date set for the closing, defendant Lyndell R. Heinzmann stated that he would get the title to the property straightened out. Because the plaintiff knew that the defendants did not have the ability to deliver clear title, he did not try to contact them for the next two to three weeks. The plaintiff testified that it was his understanding that the defendants would offer a deed to the entire property once it was cleared, but they never contacted him to say they had a deed ready. The plaintiff testified that for the first year or two, he attempted to contact the defendants on numerous occasions. The plaintiff telephoned the homes of both the defendants several times and went to the defendants' attorney's office at least three or four times. On two or three occasions the plaintiff was able to talk to Dwaine. The plaintiff stated that Dwaine said he would call the plaintiff back, but he never did. The plaintiff stated that he called Dwaine again, but Dwaine told him to talk to Lyndell. The plaintiff went by Lyndell's home approximately four to six times, and although Lyndell was never home, the plaintiff left word with Lyndell's wife that he was there to try to close on the contract. The plaintiff determined that the defendants were hiding from him. He then recorded the contract at the Marion County recorder of deeds office in order to inform anyone who might attempt to purchase any of the property; On May 3, 2000, the plaintiff sent Lyndell a letter by certified mail requesting the deed to the property.

Mary Heinzmann, Lyndell's wife, stated that the plaintiff came by her residence only one time and that was in 1998.

Defendant Dwaine Heinzmann testified that the plaintiff called a couple of times in the fall of 1997 or 1998 looking for Lyndell regarding the contract. Dwaine testified that he had signed a deed to complete the transaction but that he did not know whether the deed was ever proffered to the plaintiff.

Defendant Lyndell Heinzmann testified that he negotiated the terms of the contract with the plaintiff. He stated that he contacted Irvin Buchholz and had him sign a deed to clear title by June 14, 1996. Lyndell testified that in the four years prior to entering into the contract, he and his father had been doing property sales and assignment of contracts with the plaintiff in loan-type situations. Most of the closings were performed at the defendants' attorney's office, and all were completed on time. Lyndell testified as follows:

"Q. [Mr. Bauerle:] Now this wasn't the first time that you had sold property or you or your father had sold property to Mr. Nave with a buy[-]back option, was it?

A. No. I mean actually the way they really consisted of [sic] was a loan[,] and we used property as collateral and put it back in Gene Nave[,] and then he gave us the contract back to purchase that property.

Q. And you had always redeemed that property?

A. Yes, I have, or my dad has."

Lyndell testified that a couple days after the contract was signed, he contacted the plaintiff to inform him that there had been a mistake in the deed from Irvin Buchholz in that an "N" should have been an "S." Lyndell told the plaintiff that he had contacted Buchholz and was in the process of the correcting the deed. Lyndell also told the plaintiff they would be able to close by the scheduled date of June 14, 1996. Lyndell testified that the plaintiff did not show up for the closing and did not contact him for more than two years. Lyndell testified that the plaintiff did not contact him about the contract until 1998 and that at no time did Lyndell conceal his location.

The trial court entered an order awarding the plaintiff $15,000 in contract damages but denying the plaintiff's request for specific performance. The court specifically found there had been no intent to defraud by the defendants and that the plaintiff had not made a demand to perform within a reasonable time. The court found that both the buyer and the seller were ready, willing, and able to perform at the time originally set for the...