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05/18/87 Robert W. Schwaner Et Al., v. Belvidere Medical Building

May 18, 1987

ROBERT W. SCHWANER ET AL., PLAINTIFFS-APPELLEES

v.

BELVIDERE MEDICAL BUILDING PARTNERSHIP ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 522, 155 Ill. App. 3d 976, 108 Ill. Dec. 361 1987.IL.639

Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendants, Belvidere Medical Building Partnership and the individual partners, Lester G. Detterbeck, Lawrence B. Irwin, and Andrea D. Hall, appeal from a $91,813.70 summary judgment entered in favor of M. Paul Dommers. We have allowed the parties' motion to dismiss as to all plaintiffs except Dr. M. Paul Dommers, the only plaintiff remaining in the case. Defendants further appeal the denial of their motions to reconsider and for leave to file an amended counterclaim. Plaintiff appeals from the order denying attorney fees. The issues raised on appeal are: (1) whether the trial court erred in granting plaintiff's motion for summary judgment; (2) whether the trial court erred in denying defendants' motions to reconsider and for leave to file an amended complaint; and (3) whether the trial court erred in denying plaintiffs' motion for attorney fees. We affirm in part, reverse in part, and remand.

This action arises from four promissory notes totaling $250,000 given by defendants to four individuals, including plaintiff, M. Paul Dommers, as part of the purchase price for a medical office building in Belvidere. In 1981, plaintiff and the other partners of the Belvidere Medical and Office Building Partnership executed a written contract for sale of the building to defendants. The contract was negotiated by plaintiff on behalf of the sellers, and Lawrence Irwin on behalf of the buyers, defendants herein. The contract provided, inter alia :

"PURCHASE PRICE : The price is $1,300,000.00 payable as follows:

(a) $30,000.00 upon execution of this contract;

(b) The payment of $270,000.00 at the time of closing;

(c) The payment of $1,000,000.00 at the time of closing.

The price allocation for the purchase price is as follows:

(a) Building -- $900,000.00;

(b) Improvements -- $200,000.00;

(c) Lease Guarantee -- $115,000.00;

(d) Finance Guarantee -- $85,000.00."

The contract further provided:

"This contract is further contingent upon the SELLER [Belvidere Medical and Professional Building Partnership] providing PURCHASER a second mortgage in the amount of $250,000.00, with interest not to exceed 12% per annum, to be amortized over 29 years, payable monthly, with no loan costs."

The buyers executed four promissory notes in favor of the buyers as security for the $250,000 second mortgage. Each promissory note, including that given to plaintiff, provided the following:

"In case of any default in the payment of any installment, the holder of this note may, without notice, declare the entire balance immediately due and payable, and thereafter said balance shall bear interest at the rate of 17 % per year."

The note was secured by a trust deed for the real estate occupied by the medical building and was personally guaranteed by each one of the buyers.

Further, the note contained the following provision:

"The monthly payments of this obligation shall be abated in the event that a 1980 or 1981 tax bill is issued on the property underlying the Belvidere Medical and Professional Building until such time as the amount of the tax bill or bills is credited. The 1981 tax bill shall be prorated as of July 24, ...


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