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08/01/97 RON HUBBLE AND BARBARANN HUBBLE v. PAUL

August 1, 1997

RON HUBBLE AND BARBARANN HUBBLE, PLAINTIFFS-APPELLANTS,
v.
PAUL O'CONNOR AND LYNDA SIMON, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 93 L 09826. Honorable Kenneth L. Gillis, Judge Presiding.

Supplemental Opinion on Denial of Rehearing of September 19, 1997, Released for Publication October 9, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiffs, Ron and Barbarann Hubble, appeal from a grant of summary judgment entered by the circuit court in favor of defendants, Paul O'Connor and Lynda Simon. In their complaint, plaintiffs (sometimes hereinafter, "sellers") sought to recover damages from the defendants (sometimes hereinafter, "purchasers") for an alleged breach of a contract to purchase certain residential real estate. Only count I of the sellers' complaint, that count relating to a breach of contract claim, is before us on appeal.

The facts of this case revolve around a common real estate transaction involving the purchase of a condominium. The written contract at issue contained an attorney review provision which allowed the contract to be voided if either sellers or purchasers' attorney gave written notice of disapproval within 5 business days after formation of the contract. Although the agreement was signed and tendered by defendant-purchaser Paul O'Connor to seller-plaintiff Ron Hubble, the parties continued to discuss modifications to the agreement past the disapproval period. Two weeks after the disapproval period had expired, purchasers' attorney gave notice that he was invoking the disapproval clause. The parties filed cross-motions for summary judgment and, on February 28, 1996, the circuit court entered judgment in favor of the purchasers and against the sellers.

The contract is a standardized real estate sales agreement widely used in the Chicago area. The agreement was executed on June 8, 1993. The attorney disapproval clause within the agreement states in pertinent part:

"This contract is contingent upon the approval hereof as to form by the attorney(s) for Buyer and Seller within 5 Business days after Seller's acceptance of this contract. Unless written notice of disapproval is given within the time period specified above, then this contingency shall be deemed waived and this contract will remain in full force and effect.

If written notice of disapproval is given within the time period specified above, this contract shall be null and void and the earnest money shall be returned to the Purchaser."

The contract also provides that notice of disapproval may be given or accepted by either of the parties' attorneys.

Although the attorney disapproval clause expired by its own terms on June 15, 1993, the parties agreed on that day to extend the disapproval period to June 22, 1993. This extension was memorialized in a letter from purchasers attorney to sellers' attorney. Sellers' attorney returned the letter to purchasers attorney with his signature, formally approving the extension.

On June 17, 1993, purchasers attorney faxed to the sellers a "proposed Rider to the contract for review and comment." On June 18, 1993, sellers' attorney submitted modifications to the purchasers' proposed rider. On June 21, 1993, purchasers' attorney incorporated the sellers' modifications into the rider and faxed the rider back to sellers' attorney. At this point in time the rider was finalized, but had not yet been executed.

On June 22, 1993, the last day of the contract disapproval period, sellers' attorney telephoned purchasers' attorney to inquire whether purchasers would agree to delaying the possession date. He suggested that the sellers lease the property back from purchasers for a short period of time following the closing. Purchasers' attorney responded by proposing trading the later possession date for a change in the form of the earnest money. Sellers' attorney agreed to the change in a telephone call that same day.

On June 30, 1993, sellers' attorney received the last rider from purchasers' attorney. This rider incorporated all the changes discussed on June 22, 1993, but left the exact possession date blank. Upon receipt of the document, sellers' attorney telephoned the office of purchasers' attorney and was instructed that the possession date to be inserted into the blank was "on or before August 23, 1993." The rider, however, remained unexecuted.

On July 6, 1993, in a letter written to sellers' attorney, purchasers' attorney summarily stated he had "withdrawn attorney approval." He requested that the sellers return to his clients their earnest money.

On August 7, 1993, sellers put the property back on the market. The property ultimately sold at the end of January, 1994, for $315,000, an amount $15,000 less than provided in the June 8 contract. Sellers claimed in their complaint that, in addition to selling the property at a lower price, they were forced by purchasers' breach to ...


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