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11/20/87 Kent W. Shodeen, v. Chicago Title and Trust

November 20, 1987





515 N.E.2d 1339, 162 Ill. App. 3d 667, 114 Ill. Dec. 68 1987.IL.1731

Appeal from the Circuit Court of Kane County; the Hon. Michael J. Colwell, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. NASH and INGLIS, JJ., concur.


The defendant, Chicago Title & Trust Company (Chicago Title), as trustee under trust No. 1081582, appeals from the order of the circuit court which granted the motion of the plaintiff, Kent Shodeen, for a preliminary mandatory injunction ordering the defendant to convey 26 real estate lots to the plaintiff. On appeal, the defendant contends that the trial court erroneously granted this relief where: (1) the court order was, in effect, a decree of specific performance as well as a disruption of the status quo; (2) the plaintiff failed to present evidence that the circumstances necessitated such relief; and (3) the court based its decision to enter an injunction on improper considerations, namely, the possible damage incurred by individuals who had previously contracted to purchase homes from the plaintiff. For the reasons set forth below, we reverse.

The following facts form the basis of this appeal. On September 6, 1974, the Collins Development Corporation (Collins), as seller, and the plaintiff, as buyer, entered into an installment contract for the sale of 126 acres of vacant land in St. Charles, Illinois, which was part of a proposed development to be known as Fox Chase. This contract, which stated that time was of the essence, provided that the plaintiff would make full payment of the purchase price on or before 10 years from the date that the St. Charles city council approved the preliminary development plan for Fox Chase. The contract further provided that the seller would be responsible for several on-site costs such as engineering and utilities as well as the off-site costs of water and sewer connections. In addition, paragraph 20 of the installment contract stated, in part:

"Seller further agrees to construct a new boulevard (Fox Chase Boulevard) along the North and West sides of Buyers subject property at no expense to the Buyer."

Paragraph 23 of the contract contained a notice provision which provided:

"In the event Buyer shall fail to make any of the payments required herein . . . and provided such failure is not cured or remedied within ninety (90) days after the receipt by Buyer of a written notice from Seller describing said failure, then this Agreement shall be forfeited at the option of Seller, and all sums heretofore paid shall be retained . . . by the Seller."

In 1982, Collins experienced financial difficulties and transferred the property which had not already been conveyed under the installment contract to the defendant, Chicago Title, as trustee pursuant to a settlement agreement between Collins, Continental Bank and others. Thereafter, on December 17, 1984, the city council of St. Charles passed a resolution stating that the preliminary plan entitled "Preliminary Plan, Unit 1 of Hunters Field" was approved subject to the following condition:

"4. Concurrent with the submittal of any Final Engineering Plans and Final Plat for Phases 3 or 4 (as shown on the plan received November 9, 1984), developer shall submit plans for the construction of Fox Chase Boulevard for approval, subject to the codes and regulations of the City. No final plat for Phase 3 or 4 shall be approved until the design, location, or construction planning of Fox Chase Boulevard are approved by the City."

After the transfer of ownership to Chicago Title, the plaintiff and Chicago Title amended the original installment contract four times by extending its completion date to May 15, 1987. During the pendency of the agreement between the plaintiff and Collins, as well as thereafter between the plaintiff and Chicago Title, the plaintiff paid a unit price per lot and the then seller conveyed the individual lots. Through May 28, 1987, the plaintiff had paid over $1.6 million to either Collins or Chicago Title for 273 lot purchases. This amounted to 60% of the total contract. During the 13-year pendency of this installment contract, it was not uncommon for the plaintiff to contract with third-party purchasers for the construction of houses on lots prior to his actually paying the lot price and having the lot conveyed to him.

During the time from February 7 to April 27, 1987, the plaintiff entered into 23 contracts for the sale of individual lots in Fox Chase. He also possessed deposits from three other prospective purchasers. The plaintiff scheduled closing dates for these lots to commence on June 16, 1987, and to continue until November 16, 1987. Each ...

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