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Nave v. Heinzmann

November 21, 2003

HAVARD GENE NAVE, PLAINTIFF-APPELLANT,
v.
HOWARD DWAINE HEINZMANN AND LYNDELL R. HEINZMANN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Marion County. No. 01-LM-65 Honorable David L. Sauer, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

The plaintiff, Havard Gene Nave, filed suit against the defendants, Howard Dwaine Heinzmann (Dwaine Heinzmann) and Lyndell R. Heinzmann, in the circuit court of Marion County, Illinois. After a bench trial, the court entered a judgment order requiring the defendants to repay the plaintiff $15,000 but denying other relief sought by the plaintiff. On appeal, the plaintiff raises these issues: (1) whether the trial court erred in denying his request for specific performance and (2) whether the trial court erred in failing to require the defendants to pay interest on the damages awarded to the plaintiff. We affirm.

FACTS

The plaintiff filed a four-count complaint against the defendants. The plaintiff alleged that on or about June 5, 1996, the plaintiff and defendant Dwaine Heinzmann entered into a written contract regarding the sale of real estate located in Marion County. The plaintiff alleged that at the time he entered into the contract, he delivered a $15,000 check to defendant Lyndell R. Heinzmann (Dwaine's son) and that said amount was drawn from the plaintiff's account on June 7, 1996.

In count I of the complaint, the plaintiff requested specific performance. The plaintiff alleged that he had demanded a deed from the defendants but that the defendants had failed to deliver the deed. The plaintiff alleged that at all times since the execution of the real estate purchase contract, he has been ready, willing, and able to pay the outstanding balance owed pursuant to the contract. Other counts in the complaint alleged fraud, conspiracy to commit fraud, and breach of contract.

Attached to the complaint was a copy of a check in the amount of $15,000, dated June 5, 1996, made payable to defendant Dwaine Heinzmann. The memo portion of the check states "earnest money 60 acres."

Also attached to the complaint was a copy of the purchase contract. The contract identified defendant Dwaine Heinzmann as "Seller" and the plaintiff as "Buyer" or "Purchaser." The contract stated in part:

"Fifteen Thousand Dollars ($15,000.00) as earnest money to be applied on such purchase price when the sale is consummated, and the balance of Ten Thousand Dollars ($10,000.00) (subject to pro[]rations of taxes, etc.) shall be paid upon delivery of deed, which shall occur on or before June 14, 1996, unless otherwise herein provided or extended by agreement of all parties."

The contract also provided, "Upon acceptance of this offer, it becomes a binding contract and Seller shall complete said agreement on or before June 14, 1996, if not sooner performed." Paragraph A of the contract provided, "In the event Seller fails to perform upon this agreement, all earnest money tendered shall be returned in full to Buyer."

Paragraph F stated:

"Should said Purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the Seller, be forfeited by the Purchaser as liquidated damages, and this contract shall thereupon become and be null and void, and the Seller shall then have the right to re[]enter and take possession of the premises aforesaid."

The contract also contained a right to repurchase. Paragraph D provided:

"Seller reserves and Buyer grants unto Seller[] the right to re[]purchase the above described real estate during a six[-]month period ending December 30, 1996[,] for the sum of Twenty-five Thousand Dollars ($25,000.00) together with interest at the rate of 10% per annum, plus all costs and taxes. Should Seller exercise the right to re[]purchase said real estate before the expiration date, Seller *** shall be entitled to 100% of all growing crops. Should Seller *** fail to re[]purchase said real ...

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