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Lincolnland Prop. v. Butterworth Apt.

OPINION FILED OCTOBER 31, 1984.

LINCOLNLAND PROPERTIES, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

BUTTERWORTH APARTMENTS, INC., DEFENDANT AND COUNTERPLAINTIFF (GINKIDS INVESTMENTS, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLEE).



Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 3, 1984.

This appeal (the third one between these parties) concerns the nature of an order entered in the circuit court of Sangamon County on November 13, 1975. The appeal lies from another order entered in the same court on December 27, 1983. The latter is intimately intertwined with the 1975 order. The current controversy is over the calculation of interest.

Some brief background information is necessary to a complete understanding of the case. A more complete recitation of the facts is found in the opinion emanating from the first appeal. (See Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App.3d 907, 382 N.E.2d 1250.) Ginkids Investments, Inc. (Ginkids), appellee here, is the successor in interest to the original owners of the rental properties and the holder of judgment notes of Lincolnland Properties, Inc. (Lincolnland), appellant here.

The basis of the original action, out of which the first appeal grew, was an agreement dated October 5, 1967. Under this agreement refinancing was to be obtained for certain rental properties owned by Lincolnland. In the event such refinancing could not be obtained by March 1, 1968, then the terms of the judgment notes, which were secured by the rental properties, were to be altered to provide that the notes would be paid solely from one-half of the net cash flow from the encumbered properties. The net cash flow was to be determined by Lincolnland's accountant. The agreement contained other provisions not pertinent here.

The refinancing efforts failed, and Lincolnland brought suit to enforce the 1967 agreement. Ginkids counterclaimed, seeking a money judgment on the notes, or, in the alternative, rescission of the sale of the properties to Lincolnland. After a trial in the circuit court of Sangamon County, the trial court held that the notes were payable in accordance with the terms of the 1967 agreement, and this court affirmed that portion of the trial court's judgment.

The portion of the trial court's order, dated November 13, 1975, pertinent to the instant appeal provides:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as to the Amended Counter-Complaint as follows:

1. The Counterplaintiff [Ginkids] have of and from the Counterdefendant [Lincolnland] the sum of Sixty Thousand Dollars ($60,000.00) with interest at the rate of six percent (6%) per annum from October 24, 1968, on the note of Lincolnland Properties, Inc. to Butterworth Apartments, Inc. [Ginkids' assignor] and it is the further Order of the Court that the said note was not due and payable until May 22, 1975, and said payment shall be made under the terms and conditions of the Agreement dated October 5, 1967.

The Counterplainiff have of and from the Counterdefendant the sum of One Hundred One and 26/100ths Dollars ($101.26). [This amount represents a debt of an interior decorating firm which Lincolnland assumed pursuant to its purchase agreement.]

It is the further Order of this Court that the Counterplaintiff take nothing from the Counterdefendant on the remaining issues in Count I [the count relating to the monies at issue in this appeal.]"

A second appeal between these parties concerned the meaning of the term "net cash flow." It is not an issue in the instant appeal. Lincolnland Properties, Inc. v. Ginkids Investment, Inc. (1982), 108 Ill. App.3d 1221, 446 N.E.2d 324 (Rule 23 order).

On December 27, 1983, Lincolnland filed a petition in the circuit court of Sangamon County seeking release of judgment and judgment lien with respect to a $60,000 note secured by a rental property known as "Moline 42." Lincolnland made a tender of $87,690.16, which it calculated was the amount due on that note. Ginkids objected and asserted that the proper amount due was $99,838.36. The trial court held that the tender was inadequate and denied Lincolnland's petition. This appeal followed.

The positions of the parties are relatively straightforward. Their disagreement is over the ...


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