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08/25/89 Robert L. Leonard, v. Leonard W. Koval Et Al.

August 25, 1989

ROBERT L. LEONARD, PLAINTIFF-APPELLANT

v.

LEONARD W. KOVAL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

543 N.E.2d 911, 187 Ill. App. 3d 924, 135 Ill. Dec. 343 1989.IL.1315

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. QUINLAN and LaPORTA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Robert L. Leonard, the seller of a warehouse in Northbrook, Illinois, filed a two-count complaint against defendants Leonard W. Koval, the buyer, Chicago Title and Trust Company, which held the escrow account, and Florrie Gottainer, a realtor, for specified performance and other relief. After plaintiff rested his case in this bench trial, the trial court directed a verdict in favor of defendants as to count II. Leonard appeals from the directed verdict as to count II for specific performance and declaratory relief concerning the $55,000 escrow. At the close of defendant's case, the trial court directed a verdict in favor of Leonard as to count I, and defendants have not appealed that order. Only the appellee Koval has filed an appearance and answering brief in this court.

On January 21, 1985, Leonard entered into a real estate contract with Koval for the purchase of a 60-year-old airplane hangar which had been converted into a commercial structure, for the purchase price of $865,000. On August 7, 1985, the parties also entered into an escrow agreement, which provided that Koval would, for nine months, use his best efforts to seek a revision to Article V of the Northbrook Zoning Ordinance in order to permit him to add 29,000 square feet or less to the building. Leonard would then have an additional nine months to seek such a zoning revision in the event that Koval failed to succeed.

During the 18-month period, $55,000 was to be held in escrow by Chicago Title and Trust. If the zoning revisions were obtained, $44,000 was to be paid to Leonard and $11,000 was to be paid to a real estate broker. If the zoning change was not accomplished after Koval's best efforts, the money was to be given to Koval. The agreement read:

"VI. The parties have agreed to retain $55,000 as escrow funds for the next eighteen months during the time the revising of Article V of the Northbrook Zoning Ordinance as aforestated will be pursued; that for the first nine months of said period, the purchaser [defendant] and his attorney shall use their best efforts and at their expense to secure the contemplated revision of Article V of the Northbrook Zoning Ordinance as heretofore stated and permission to add twenty-nine thousand square feet of building or such lesser square footage as Koval [defendant-buyer] accepts; that after said nine month period, the seller [plaintiff], upon notice by purchaser [defendant] that the revision has not yet been accomplished, shall use his [plaintiff-seller's] best efforts so as to accomplish the revision of Article V of the Northbrook Zoning Ordinance as before stated."

Koval filed for a 32,774-square-foot variance with the Northbrook Zoning Board of Appeals . He subsequently reduced the request to 31,000 square feet. Koval's application for variance was filed on September 27, 1985.

The October 28, 1985, minutes of the ZBA show that Grant Erickson, Koval's attorney, appeared with Joseph Alexander, an architect, who presented site plans. After some Discussion, with various recommendations and suggestions made to Koval, the matter was continued until November 25, 1985.

On November 19, 1985, Leonard notified Koval that he was in the wrong forum, since the ZBA had no authority to revise Article V of the Northbrook Zoning Ordinance. The letter included a demand to proceed "up and until April 15, 1986, so as to obtain this variation by ordinance," at which time Leonard would "use the following 9 month period of time to accomplish said variation." The parties then contacted Northbrook's attorney, Steven Elrod, to determine the proper forum. Based on the information received from Elrod, the parties included the disputed language in section V of the escrow agreement.

On November 25, 1985, Koval appeared before the Northbrook ZBA. He requested a continuance due to his "inability to complete the items addressed at the November meeting." The chairman announced that if Koval could not proceed on January 27, 1986, the petition would be dismissed and he could refile for a hearing at a later date.

In January 1986, Koval made an application to the Northbrook plan commission for an ordinance amendment.

On January 27, 1986, the ZBA minutes reflect that Koval was still not ready to make a presentation in response to the suggestions and requests made at the November meeting, and he asked for a continuance until April. The chairman stated emphatically that he did not want Koval to work one board, such as the plan commission or village board, against the ZBA. Koval's attorney assured the ZBA that he did "not intend to approach the boards in opposite directions." He further stated that the project is ...


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