Schwinder v. Austin Bank of Chicago
Decision Date | 26 April 2004 |
Docket Number | No. 1-03-0566.,1-03-0566. |
Citation | 284 Ill.Dec. 58,809 N.E.2d 180,348 Ill. App.3d 461 |
Parties | Thomas F. SCHWINDER and Susan L. Londay, Plaintiffs-Appellees, v. AUSTIN BANK OF CHICAGO, Trustee under Trust Agreement Dated February 24, 1978, and Known as Trust No. 5861, and Marian Baginski, Defendants-Appellants. |
Court | United States Appellate Court of Illinois |
Thomas A. Else, Thomas A. Else, P.C. & David A. Carrabotta, Chicago, for Appellants.
Michael A. Haugh, Veverka, Rosen & Haugh, Chicago, for Appellees. Justice GORDON delivered the opinion of the court:
The instant suit arises from a chancery action filed by plaintiffs, Thomas F. Schwinder and Susan L. Londay, seeking specific performance of a condominium purchase contract against defendants, Austin Bank of Chicago and Marian Baginski. Baginski subsequently filed a counterclaim, seeking possession of the condominium unit and claiming a rental rate of $1,500 per month. Following a bench trial, the trial court entered judgment for plaintiffs, granting specific performance and returning to plaintiffs a portion of rent they paid to defendant for November 2000. On appeal, defendants contend that the trial court abused its discretion in granting specific performance because the purchase contract granted defendants the exclusive right to terminate the purchase contract and limited plaintiffs to the exclusive remedy of the return of their earnest money. Defendants further contend that the subsequent preclosing possession agreement did not modify either of those provisions. Plaintiffs respond that defendants never had an unfettered right to terminate the purchase contract due to a mutuality of obligation that conferred on the purchase contract an implied covenant of good faith and fair dealing. Further, plaintiffs respond that if defendants ever had such a right, the preclosing possession agreement modified the purchase contract and terminated that right. Therefore, plaintiffs argue that the trial court properly granted specific performance of the purchase contract. In the alternative, plaintiffs claim that even if defendants had an unfettered right to terminate the purchase contract, they were estopped from doing so due to Baginski's actions and plaintiffs' detrimental reliance thereon. For the reasons that follow, we affirm the trial court's ruling.
BACKGROUND
The record and testimony in this case reveal that on June 21, 2000, plaintiffs, Thomas F. Schwinder and Susan L. Londay, tendered an offer to purchase a condominium unit located at 3117 South Benson, in Chicago, Illinois, which was owned by defendants, Austin Bank of Chicago, trustee under trust agreement dated February 24, 1978, known as trust No. 5861 (hereinafter Trustee), and Marian Baginski. As the sole beneficiary of this land trust, Baginski was thus authorized to convey the title to plaintiffs.
On July 5, 2000, Baginski accepted the offer from plaintiffs to purchase the condominium unit. The purchase contract between the parties was a form real estate contract prepared by Baginski's attorney and utilized for all real estate transactions in the Bridgeport Crossing Condominium complex in which the condominium unit was located. Relevant to this case is paragraph 12 of the purchase contract, which provided as follows:
According to the record, attorney approval and other modifications to the purchase contract were completed on August 1, 2000. Thereafter, closing of the sale and purchase of the condominium unit was originally scheduled for August 16, 2000. However, by mutual agreement of the parties, the closing was rescheduled for August 31, 2000, at the offices of Stewart Title. The purchase price for the condominium unit was $215,0001, which included certain "custom2" items of construction.
According to the testimony of Schwinder and Londay, they deposited the earnest money and obtained mortgage approval as required by the purchase contract. They further withdrew $10,000 from their 401(k) retirement plan for use as the down payment on the purchase of the condominium unit. Also, they testified that they were ready willing and able to close the purchase of the condominium unit on the previously agreed-upon date. However, one day prior to the scheduled closing, plaintiffs were advised that the closing of the condominium purchase contract would be delayed due to an injunction entered in Baginski's divorce action No. 00 D 6184 (Cir. Ct. Cook County) (hereinafter Baginski divorce action). Because the plaintiffs' lease on their pervious residence was expiring on August 31, 2000, the plaintiffs needed possession of the condominium unit pending closing. In order to provide plaintiffs with possession prior to closing, Baginski's attorney prepared a preclosing possession agreement (hereinafter PCPA). The PCPA was executed by plaintiffs and Baginski on August 31, 2000. Although the purchase contract, by its terms, prohibited possession of the condominium unit prior to closing, the PCPA granted possession of the condominium to plaintiffs until the seller, Baginski, "was able to close on the sale of the property." The PCPA did not afford Baginski the right to terminate the contract3 but, on the contrary, granted plaintiffs "the sole option [to] terminate this [PCPA] together with the Condominium Purchase Agreement * * * by giving 30 days written notice to the seller" if closing had not occurred "on or prior to November 30, 2000."
Schwinder testified that on August 31, 2000, pursuant to the PCPA, plaintiffs took possession of the condominium unit and he and his coplaintiff were to pay a monthly fee of $1,500 for the use and occupancy of the condominium unit. Pursuant to the express terms of the PCPA, the monthly fee of $1,500 was payable only "until such time as Seller is able to close on the sale of the property." Plaintiffs also testified that after they took possession of the condominium unit, they purchased and installed a washer and dryer and made other such improvements therein.
Schwinder, Londay and Baginski testified that on August 31, 2000, they executed a "Punch List of Items to be Finished at 3117 South Benson" (hereinafter punch list) pursuant to the terms of the purchase contract. That day, Baginski repaired some of the punch list items. Then in early September, Baginski repaired additional punch list items; however, there are punch list items that remain unperformed.
On November 8, 2000, Judge Bellows entered an agreed order in the Baginski divorce action allowing the sale of the condominium unit to proceed. Baginski's real estate attorney, Stephen Witt, was advised of the entry of the agreed order by a letter, in evidence, dated November 8, 2000, sent by plaintiffs' attorney. That letter also requested that the plaintiffs be advised of possible closing dates so that a definitive closing date could be scheduled amongst the parties.
Baginski testified that after receipt of the letter of November 8, 2000, from plaintiffs' attorney, he directed Witt to schedule a closing date. Baginski further testified that he was willing to close the sale of the condominium unit if the terms of the purchase contract were met. However, Schwinder and Loday testified that neither they nor their attorney received a response to the November 8th letter. There was no testimony or evidence introduced at trial regarding efforts made to schedule a closing for the sale of the condominium unit or an inability to do so. Likewise, the record is devoid of any facts that would excuse or explain Baginski's refusal to consummate the sale of the condominium unit.
Schwinder and Londay testified that on December 15, 2000, they sent a certified letter to Baginski requesting that Baginski schedule a closing date for the purchase of the condominium unit. They obtained acknowledgment that Baginski received the letter, but never received a reply thereto. They further testified that...
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