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03/21/95 JUDITH ZOELLER AND ERNEST KOPKOWSKI v.

March 21, 1995

JUDITH ZOELLER AND ERNEST KOPKOWSKI, PLAINTIFFS-APPELLEES,
v.
RICHARD J. AUGUSTINE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Richard L. Curry, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: McCORMICK, J., specially concurs. Scariano, P.j., dissents.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

This is an appeal from the circuit court's order granting plaintiffs-sellers' (sellers) motion for summary judgment and ordering specific performance of their real estate sales contract. Defendant-purchaser (purchaser) contends that he made reasonable, albeit unsuccessful, efforts to satisfy the contract's conditions precedent, which could not be accomplished, and that the circuit court erred, therefore, in failing to find the contract null and void. The purchaser appeals.

In October 1989, sellers and the purchaser executed a real estate sales contract in which purchaser agreed to purchase from the sellers the property located at 1628 West Central Road in Arlington Heights. Paragraph 7 of the form contract provided that the contract was subject to the purchaser obtaining a mortgage commitment by November 25, 1989. It also provided that:

"If, after making every reasonable effort, Purchaser is unable to procure such commitment within the time specified herein and so notifies Seller in writing thereof within that time, the Contract shall become null and void * * *."

The purchaser subsequently learned that the property was improperly listed as commercial, and was actually zoned residential; however, he was acquiring the property for business purposes and required commercial zoning. The contract thereafter was modified, making it also contingent upon rezoning of the property to commercial zoning. In this regard, the purchaser's lawyer wrote to the sellers' lawyer stating that:

"This contract must be subject to zoning for commercial purposes with the cost burden upon the Purchaser and said rezoning completed within 150 days. If the property is not rezoned, the contract shall be Null and Void." (Emphasis added.)

The purchaser applied for financing at two institutions: both informed him that the property would have to be rezoned prior to his obtaining a loan. He then obtained information from the Village of Arlington Heights about the rezoning process which indicated that applicants for rezoning should submit their plans to the plat and subdivision committee of the Arlington Heights Plan Commission. That committee then makes suggestions and recommendations regarding the plans for the property. Next, applicants submit all necessary materials for a departmental review and staff report. Applicants may then revise their plans before a public hearing is held on the issue. After the hearing, the plan commission votes on whether or not to approve the rezoning. Finally, the village board votes on whether to adopt the ordinance permitting the rezoning.

The purchaser hired E. Tony Ryan, an architect, and together they met with Scott Viger, an Arlington Heights village planner, to discuss the purchaser's plans for the property. In accordance with Viger's suggestions, the plans were revised several times. The purchaser then submitted his plan to the plat and subdivision committee which requested comments from the plan commission staff. The staff "indicated a preference to relocate the driveway * * * in order to combine driveways with the adjacent lots to the west * * *." The staff wanted a cross access easement to be provided on part of the approved plan so as to limit the curb cuts needed for ingress and egress on Central Road.

The purchaser then met with Viger and Linnea Palmer-O'Neil, an urban planner for the village, who informed him that, before submitting his rezoning application to the plan commission, he needed to provide: a tree survey; a garbage dumpster location; a site signage proposal; a traffic study; a preliminary engineering plan; and a detailed land survey. The purchaser directed Ryan to hire various professionals to conduct a topographic survey, prepare a preliminary engineering plan, and to develop landscaping plans for the property.

On March 1, 1990, the purchaser also met with Ted Eckhardt, the owner of the adjacent property, to discuss creating the common driveway with easements sought by the plat and subdivision committee. On March 28, 1990, Eckhardt informed defendant that he would not agree to the creation of a common driveway between the two properties.

The purchaser periodically informed the sellers through their attorney of the difficulty in obtaining the rezoning.

On June 6, 1990, after the expiration of a 60-day extension, the sellers informed the purchaser that he had waived the rezoning condition precedent by failing to apply for rezoning within the allotted time and that they were ready to schedule a closing on the property. The purchaser's attorney responded by requesting the sellers' attorney to "please contact my office so we may discuss the closing date." According to the sellers' attorney, the parties agreed in a telephone conversation to a closing date of July 23, 1990. The purchaser did not show up at the scheduled closing; nor did he appear on July 27, 1990, the rescheduled date. On July 26, the purchaser's attorney wrote to the sellers, informing them that the purchaser could not obtain financing and requesting an additional 30 days to procure a loan. No closing ever took place.

On November 8, 1990, the sellers filed their first amended complaint in the chancery division of the circuit court of Cook County. Their two-count complaint requested the court to order specific performance of the contract and alleged that the purchaser had breached their contact, for which they sought damages.

On December 18, 1992, the sellers filed their summary judgment motion and, on February 1, 1993, the purchaser filed his response and a cross-motion for summary judgment. Both parties filed affidavits in support of their motions. After a hearing, the circuit court granted the sellers summary judgment on their specific performance count, denied their breach of contract damages claim, and denied defendant's cross-motion for summary judgment. The court found that the sales contact was clear and unambiguous; both parties understood its terms; the purchaser could not claim the contract was void for failure to obtain rezoning because he never applied for rezoning; and that since the purchaser did not request an extension of time to obtain financing until after the expiration of the time allotted, that contingency "evaporated." The purchaser timely filed a notice of appeal.

I.

The appellate standard in summary judgment cases is to determine by de novo review, independent of the circuit court's reasoning whether summary judgment was appropriate; if that review reveals the existence of a material issue of fact or an erroneous interpretation of law, reversal is warranted. ( Arra v. First State Bank & Trust Co. (1993), 250 Ill. App. 3d 403, 406, 621 N.E.2d 128, 190 Ill. Dec. 259; Reed v. Fleming (1985), 132 Ill. App. 3d 722, 477 N.E.2d 733, 87 Ill. Dec. 607; Warren v. Lemay (1986), 144 Ill. App. 3d 107, 494 N.E.2d 206, 98 Ill. Dec. 279.) Both grounds for reversal exist in this case.

II.

Considering the bases upon which summary judgment was granted by the circuit court here, it is clear that reversible error was committed. The rules governing summary judgment procedures, when not given mere lip service but are appropriately applied, provide the bases for reversal. One such rule requires not only that documents submitted in response to the motion by a non-movant be construed liberally in his favor, but that those documents submitted by the movant in support of summary judgment be construed strictly against him. ( Gilbert v. Sycamore Municipal Hospital (1993), 156 Ill. 2d 511, 622 N.E.2d 788, 190 Ill. Dec. 758.) If the sellers' documents are construed strictly, summary judgment should have been denied.

As a frame of reference, the principle that one must have title or a possessory interest in subject property in order to seek to effectuate rezoning of that property must be considered. Particularly, a contract to purchase, contingent upon rezoning of the subject property, is not a sufficient interest to maintain a legal action without the owner of the property joining in the proceedings. Clark Oil & Refining Corp. v. City of Evanston (1961), 23 Ill. 2d 48, 50-51, 177 N.E.2d 191; Chicago Title and Trust Co. v. Village of Mt. Prospect (1978), 63 Ill. App. 3d 223, 226, 379 N.E.2d 901, 20 Ill. Dec. 68; Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 788-89, 331 N.E.2d 380.

Patently, the parties understood this potential problem and the need for the sellers to be involved in the rezoning process when they agreed by their contact that the purchaser would bear only "the cost burden" occasioned by the rezoning. Unlike the situation in Dixon v. City of Monticello (1991), 223 Ill. App. 3d 549, 558, 585 N.E.2d 609, 165 Ill. Dec. 878, upon which the dissent relies, nothing in the instant contract placed the onus of pursuing the rezoning solely upon the contingentpurchaser, nor could it have. Reading this provision in the contract strictly against the movant sellers here raises considerable doubt as to their clear legal right to summary judgment under the facts and documents presented, and the circuit court should have so held.

The rules, regulations and applications, provided to putative applicants for rezoning by the Village of Arlington Heights, set forth the requirements that owners and title holders of property subject to rezoning must provide at the very least the title information and the owner's consent in order to go forward with the initial rezoning scheme. Here, for all that is shown in the record, the sellers provided nothing in furtherance of the rezoning procedures; instead, they were content to sit on the sidelines as observers and timekeepers, notwithstanding the fact that they created the instant circumstances by misdescribing the applicable zoning restriction in their real estate listing in the first instance. The purchaser might have called off the agreement right then and there; instead, he endeavored to consummate the sale.

The sellers were not entitled to summary judgment where, as here, the contract terms were subject to a very different interpretation than that given by the circuit ...


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