Palmolive Tower Condominiums Llc v. Simon

• Decision Date: 23 June 2011
• Docket Number: Nos. 1–10–0427,1–10–1348.,s. 1–10–0427
• Citation: 350 Ill.Dec. 931,409 Ill.App.3d 539,949 N.E.2d 723
• Parties: PALMOLIVE TOWER CONDOMINIUMS, LLC, Plaintiff-Appellee,v.Mary SIMON, as Trustee of the Marcy Simon Revocable Trust dated September 19, 1991, and Marc Simon, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

409 Ill.App.3d 539

949 N.E.2d 723

350 Ill.Dec. 931

PALMOLIVE TOWER CONDOMINIUMS, LLC, Plaintiff-Appellee,

v.Mary SIMON, as Trustee of the Marcy Simon Revocable Trust dated September 19, 1991, and Marc Simon, Defendants–Appellants.

Nos. 1–10–0427

1–10–1348.

Appellate Court of Illinois, First District, First Division.

May 16, 2011.Rehearing Denied June 23, 2011.

Sperling & Slater, P.C., Chicago (Steven C. Florsheim, Diana G. Rollman, of counsel), Robert A. Weisman, LTD., Chicago (Robert A. Weisman, of counsel), for Appellant.K & L Gates LLP, Chicago (Abram I. Moore, Daniel G. Rosenberg, of counsel), Cassiday Schade, LLP, Chicago (Julie A. Teuseher, Richard A. Barrett, Jr., of counsel), for Appellees.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

The defendants, Mary and Marc Simon, appeal from the circuit court judgments dismissing their counterclaims against the plaintiff, Palmolive Tower Condominiums, LLC, and granting the plaintiff judgment on the pleadings on count I of its complaint. For the reasons that follow, we affirm the trial court's judgment dismissing the defendants' counterclaims, and we dismiss the defendants' appeal of the trial court's judgment on count I of the plaintiff's complaint.

In its complaint, the plaintiff alleged that it and the defendants entered into a condominium purchase agreement in July 2003, before the plaintiff had finished construction on the site. That agreement provided as follows:

“4(c)(i) If Seller fails to substantially complete the Unit on or before December 31, 2005 * * *, Purchaser, as its sole remedy for such failure, shall have the right to terminate this Agreement * * *. In the event Purchaser exercises its Right to Terminate hereunder, Purchaser shall be only entitled to a refund of the Earnest Money and all interest earned thereon and this Agreement shall terminate. * * *

(ii) Notwithstanding the foregoing, if the Closing does not occur by August 31, 2005, Seller shall, as compensation for the delay, at Purchaser's option, (A) pay to Purchaser [$7,500] per month * * *, or (B) provide to Purchaser [an apartment and parking]. If Purchaser is entitled to receive (A) or (B) under this paragraph * * *, such shall be provided by Seller from July 1, 2005 [,] through and including the earlier of * * * the Closing Date * * * or * * * the effective date of the Purchaser's termination of [the Agreement].”

According to the plaintiff's complaint, on January 17, 2006, it and the defendants entered into a closing agreement, which provided as follows, in relevant part:

“Whereas, Seller has not yet completed construction of the * * * Building * * *; and

Whereas, * * * purchaser is not obligated to close the purchase of the Premises until such [construction] has been completed; and

Whereas, the parties have agreed to close the purchase and sale of the Premises in accordance with and in material reliance upon the provisions of this Closing Agreement.

[949 N.E.2d 726 , 350 Ill.Dec. 934]

Now, therefore, the parties agree as follows:

* * *

2. At closing, [part of] the sales proceeds shall [be deposited into escrow]. Seller represents and warrants to Purchaser that Seller has completed construction * * * except for construction to be performed on [two floors of the building on which the plaintiffs' condominium is not located] * * *. The escrowed funds shall be held in escrow until [the construction is completed, in which case the seller will receive the funds, or until three years pass, in which case the purchaser will receive the funds]. * * *

3. Seller represents and warrants to Purchaser that Seller has heretofore closed the sale of three * * * condominium units in the Building, has signed contracts with no less than 10% earnest money deposited for the sale of [83] condominium units and there are no more than [15] condominium units remaining unsold.

4. Seller represents and warrants to Purchaser that it is Seller's good faith belief that construction of no less than 25% of the condominium units in the Building will be completed by March 1, 2006, 50% by June 1, 2006, 75% by September 1, 2006[,] and 100% by December 1, 2006.

5. At closing, Purchaser will receive a credit of [$25,000] * * *.”

The plaintiff alleged, and the defendants in their answer admitted, that the defendants took possession of their condominium on the date of the closing agreement and began residing there just over one week later. However, according to the complaint, even after the plaintiff obtained the required construction approval for the project, the defendants declined to release the escrow money to the plaintiff. The plaintiff's complaint contained three counts, seeking a declaration of the plaintiff's entitlement to the escrowed funds, damages for breach of the parties' agreements, and specific performance of the parties' agreements.

The defendants thereafter filed counterclaims against plaintiff for breach of contract, negligence, and fraud. The counter-complaint contained the following allegations:

“12. When informed by [the plaintiff] that the Unit was habitable, the [defendants] agreed to close on January 17, 2006.

* * *

16. By closing on January 17, 2006, the [defendants] gave up their rights to receive a payment of $7,500 per month * * *.

* * *

20. On information and belief, the representation and warranty [the plaintiff set out in the closing agreement, regarding the construction and sales of other units] was untrue and therefore breached.”

The counter-claim then detailed the defendants' reasons for believing that sales and construction progress were not as the plaintiff had warranted and setting forth the plaintiff's involvement with the sales and construction processes. According to the counter-claim, construction on the project was not finally finished until October 2008.

In their count for breach of contract, the defendants alleged that the plaintiff's failure to honor the warranties made in the closing agreement “[s]ubjected the [defendants] to the risk that the project would fail,” “[c]aused the [defendants] to be inconvenienced by [the plaintiff's] construction work including lack of access to all

[350 Ill.Dec. 935 , 949 N.E.2d 727]

elevators, dirt, dust and debris in their Unit, on their deck and their cars, the cost of which was not less than $10,000.00,” caused the defendants to “give up what was essentially a free option on [the property]” due to their right to terminate the agreement, caused the defendants to “[give] up the opportunity to earn interest on [the cost of the condominium] * * * and [begin] paying taxes and assessments,” caused the defendants to begin using a property tax freeze earlier than if they had waited to close, and caused them to forgo their right to a monthly $7,500 credit.

In their fraud count, the defendants alleged that the plaintiff knew the representations in the closing agreement to be false but made them anyway in an attempt to induce the defendants' agreement to close. The fraud count alleged that the defendants were damaged in the same ways described in the breach of contract count.

The plaintiffs filed a motion to dismiss the defendants' counterclaims as well as a motion for judgment on the pleadings. In January 2010, the circuit court granted the plaintiff's motion to dismiss the counterclaims in an order that also stated, “This is a final and appealable order there being no just reason to delay enforcement or appeal.” The defendants thereafter filed a notice of appeal relating to that order, and the matter was docketed in this court as case number 1–10–0427. In April 2010, the circuit court granted the plaintiff's motion for judgment on the pleadings in part, by granting judgment on the first count of the plaintiff's multi-count complaint. The order stated, “This order is final and appealable.” The defendants filed a second notice of appeal challenging the April 2010 order. We docketed the matter as case number 1–10–1348, and we later consolidated it for decision with the defendants' prior appeal.

We begin by addressing the defendants' appeal in case number 1–10–1348. Although the parties agree that we have jurisdiction over that appeal, we have an independent duty to consider the issue and dismiss the appeal where our jurisdiction is lacking. Mund v. Brown, 393 Ill.App.3d 994, 996, 332 Ill.Dec. 935, 913 N.E.2d 1225 (2009). We conclude that we do not have jurisdiction over this appeal.

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Ill. Sup.Ct. R. 304(a) (eff.Feb.26, 2010). Here, the defendants seek to appeal an order that resolved only one count of the plaintiff's multi-count complaint and therefore unquestionably resolved fewer than all of the claims between the parties. Accordingly, under Rule 304(a) the order was not appealable unless it was accompanied by the circuit court's express written finding that there was “no just reason for delaying either enforcement or appeal or both.” For their stance that the circuit court's April 10 order is appealable, the parties cite the court's statement that the order was “final and appealable.” That order, however, contains no reference either to Rule 304(a), to the justness of delaying enforcement or appealability, or to the propriety of immediate appeal.

Our supreme court does not require that a circuit court parrot Rule 304(a) exactly in order to invoke it. Indeed, in In re Application of Du Page County Collector, 152 Ill.2d 545, 178 Ill.Dec. 773, 605 N.E.2d 567 (1992), the court explained that an order accompanied by language referencing only “appealability” or “enforceability” may be reviewed under Rule 304(a) depending on

[350 Ill.Dec. 936 , 949 N.E.2d 728]

the...