APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 96-L-12019 THE HONORABLE KENNETH L. GILLIS JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Cousins
This appeal stems from a breach of contract claim by plaintiff, Parkside Senior Services, L.L.C. (Parkside), against defendant, National Development & Consultants, Ltd. (National). Both parties filed motions for summary judgment and, on February 20, 1998, the trial court denied Parkside's motion and granted National's motion. On appeal, Parkside contends the trial court erred in granting National's motion for summary judgment and denying its motion for summary judgment.
On April 14, 1995, Parkside and National agreed to jointly develop approximately 215 acres of property in Greensboro, North Carolina (the North Carolina property), for the purpose of developing, marketing and managing a health care complex for senior citizens. The North Carolina property was the subject of a purchase and sales agreement entered into between the seller, Jefferson-Pilot Life Insurance Company (Jefferson- Pilot), and the buyer, Sedgefield Retirement Community, Inc. (Sedgefield), and required Sedgefield to make a down payment of $100,000 to Jefferson-Pilot.
On May 23, 1995, Parkside and National entered into an indemnification agreement wherein they agreed to pay the down payment on behalf of Sedgefield. The down payment was to be placed in escrow with Commonwealth Title Insurance Company. Paragraph 2 of the indemnification agreement provided:
"2. Parkside Demand Right. Parkside, within forty (40) days of the execution of the contract to purchase the Real Property between Sedgefield and Jefferson-Pilot, shall have the unilateral right to have National return to Parkside, within five (5) days, Parkside's fifty percent (50%) share of any and all deposits paid to Jefferson-Pilot under the contract to purchase the Real Property. Should Parkside exercise this demand right, the parties shall have no obligations to each other thereafter. This right shall lapse forty (40) days after the date of execution of the aforementioned contract, and after that date, Parkside shall have no right to demand from National its fifty percent (50%) share of any and all deposits paid to Jefferson-Pilot. Notwithstanding the preceding sentence, if Parkside has not received any of its deposit back to date, Parkside shall have the right to receive fifty percent (50%) of any and all deposits that it provided an[d] which are returned to Sedgefield and/or National because of a failure of closing on the purchase of the Real Property requiring Jefferson-Pilot to return any and all deposits received under the Purchase and Sales Agreement."
The agreement further provided that "[n]o change, termination or attempted waiver of any of the provisions of this Agreement shall be binding, unless in writing signed by both parties."
In a letter dated June 19, 1995, Michael S. McCarthy, Parkside's chairman and chief executive officer, advised National that, pursuant to paragraph 2 of the indemnification agreement, Parkside was exercising its right to demand repayment of its $50,000 deposit. No monies were ever remitted to Parkside.
On October 16, 1996, Parkside filed suit in the circuit court of Cook County as a result of National's refusal to pay. Therein, it alleged National breached the indemnification agreement by failing to return to Parkside its $50,000 deposit.
On March 27, 1997, National pleaded the affirmative defense of waiver. It alleged that for at least six months after June 19, 1995, Parkside continued in its efforts to jointly develop the North Carolina property with National. As such, National argued that Parkside waived its right to the return of its deposit.
The parties moved for summary judgment on September 11, 1997, and October 21, 1997, respectively. Attached to and incorporated in National's cross-motion was the affidavit of Flanders O'Neal, a consultant working with National in its efforts with Parkside to develop the North Carolina property. Mr. O'Neal stated that he contacted Mr. McCarthy upon receipt of the June 19, 1995, letter. During their telephone conversation, Mr. McCarthy allegedly told Mr. O'Neal to ignore the June 19, 1995, letter and further assured Mr. O'Neal that the work Parkside was doing on the project would continue.
In response to this affidavit, Parkside filed the affidavit of Mr. McCarthy, attesting that the above-referenced phone call and conversation never took place. Rather, Mr. McCarthy stated that Mr. O'Neal asked Parkside to continue its participation in the project in order to enable National to obtain funds to pay Parkside its $50,000 deposit, as demanded in the June 19, 1995, letter.
On December 12, 1997, after a hearing on the matter, the circuit court denied Parkside's motion and granted National's motion, finding that Parkside had waived its right to repayment under paragraph 2 of the indemnification agreement.
On January 9, 1998, Parkside filed its motion for reconsideration, which was denied by the circuit court on ...