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International Capital Corp. v. Moyer

March 10, 2004

[5] INTERNATIONAL CAPITAL CORPORATION, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,
v.
GREG MOYER, DEFENDANT (MARCUS AND MILLICHAP REAL ESTATE INVESTMENT BROKERAGE COMPANY OF CHICAGO, A CALIFORNIA CORPORATION, DEFENDANT-APPELLANT).



[6] Appeal from the Circuit Court of Cook County. No. 99 L 014221 Honorable Lee Preston, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Hall

[8]  The plaintiff, International Capital Corporation (ICC), filed a complaint against the defendants, Marcus and Millichap Real Estate Investment Brokerage Company of Chicago (M&M) and Greg A. Moyer, seeking damages resulting from the defendants' disbursement of escrowed funds.

[9]  Following a bench trial, the circuit court of Cook County entered judgment in favor of ICC and awarded damages in the amount of $43,105.32 against M & M only. *fn1

[10]   M & M raises the following issues on appeal: whether there was sufficient evidence that M & M breached its fiduciary duty to ICC and whether ICC was entitled to the full amount of the escrow as damages for M & M's alleged breach of fiduciary duty.

[11]   The pertinent testimony from the bench trial in this case is summarized below.

[12]   Robert W. Forloine testified as follows.

[13]   Mr. Forloine is the owner of ICC. ICC is in the business of buying and managing apartments.

[14]   On April 27, 1998, Mr. Forloine entered into a contract to purchase a 128-unit apartment complex in Madison, Wisconsin, from Park I. Butch and R. Adam Sarauskas (the sellers). Mr. Forloine deposited $25,000 as earnest money. Scott Harris, the M & M broker who showed him the property, suggested that M & M act as escrowee of the earnest money. The closing on the property was to take place in mid-July 1998.

[15]   In a letter dated August 17, 1998, to Mr. Harris, Mr. Forloine requested an extension of the closing date and authorized an additional $10,000 to be added to the escrowed earnest money fund. There were no discussions regarding M & M's representation of ICC, and Mr. Forloine was not aware of any agreement that M & M had with the sellers.

[16]   In a letter to M & M dated October 16, 1998, Mr. Forloine requested another extension. He agreed to place another $5,000 in the earnest money escrow. The letter did not authorize the disbursement of the additional $5,000 without further communication from M & M. It was also his understanding that the now $40,000 in escrow could not be disbursed without any further communication from M & M. The October 16, 1998, letter was not a consent to the distribution of the escrowed funds. It was Mr. Forloine's understanding that the escrowed funds would not be disbursed until both parties agreed to it or a court ruled that the funds could be released.

[17]   In a letter dated October 21, 1998, to Mr. Harris, Mr. Forloine enclosed the check for $5,000 for the extension of the contract, which was to be held for deposit until Mr. Forloine received the signed subscription agreement from his investors and a written confirmation by the sellers of the extension of the contract through December 15, 1998. His October 21, 1998, letter did not authorize M & M to disburse the escrowed funds without further communication from Mr. Forloine.

[18]   Mr. Forloine was not aware that, in March 1999, the sellers made a demand on M & M for release of the escrowed funds. Mr. Forloine received a letter, dated April 12, 1999, from Greg Moyer, first vice-president of M & M, advising him of a letter from the sellers instructing Mr. Moyer to forward the escrowed funds. Mr. Moyer requested Mr. Forloine's authorization to release the funds. In a letter dated April 16, 1999, Mr. Forloine responded to Mr. Moyer's April 12, 1999, letter, stating that he "would like to request that the funds remain in escrow, while our firm completes its work to secure equity funds for the acquisition of The Woodlands."

[19]   In May 1999, Mr. Forloine received a call from a prospective purchaser for the property. Mr. Forloine contacted Mr. Harris and was told that M & M had been pressured by the sellers into releasing the escrowed funds. Mr. Forloine never received written notice of default or termination of the contract from the sellers. At a meeting in May 1999, Mr. Moyer told Mr. Forloine that he had been under pressure to release the funds.

[20]   On cross-examination, Mr. Forloine acknowledged Mr. Moyer's April 12, 1999, letter, stating that the previous correspondence had waived all contingencies, that the earnest money deposit was nonrefundable and that the closing date had long since passed. However, he did not consider the letter to be notification that the contract was terminated because Mr. Moyer did not have the authority to terminate the contract. As of April 12, 1999, Mr. Forloine was still working toward purchasing the property, with the knowledge of both M & M and the sellers. Even though the extension expired on December 15, 1998, Mr. Forloine expected to purchase the property when he tendered the purchase price, based upon conversations with Mr. Harris.

[21]   Mr. Forloine's December 10, 1998, letter to Mr. Harris requested an extension until December 22, 1998. However, the sellers never signed the extension request, and there was no closing on December 22, 1998. According to Mr. Forloine, M & M informed him that the sellers still wished to pursue the transaction with ICC even though there was no formal contract. Mr. Forloine further acknowledged that, in his May 27, 1998, letter to Mr. Harris, he agreed to waive the 30-day period ICC had to do a physical inspection of the property and a review of all of the books and records, in order to receive an extension of the contract. While Mr. Forloine admitted that ICC had accessed the escrow funds, he explained that it had been done by accident, and once the mistake was discovered, the funds were restored.

[22]   Greg Moyer testified as an adverse witness as follows.

[23]   According to Mr. Moyer, there was no written escrow agreement. He acknowledged writing the April 12, 1999, letter to Mr. Forloine requesting that he authorize the distribution of the escrowed funds. He admitted that he never received a signed authorization from Mr. Forloine agreeing to the disbursement of the escrowed funds. He further admitted receiving Mr. Forloine's April 16, 1999, letter in which Mr. Forloine indicated that he objected to the disbursement of the escrowed funds.

[24]   In making the decision to disburse the escrowed funds, Mr. Moyer reviewed the purchase contract and the addenda, which removed various contingencies, including the inspection and financing contingencies, and increased the earnest money, which was to be considered nonrefundable, liquidated damages in the event of a buyer default. Prior to releasing the funds, Mr. Moyer requested and the sellers signed an indemnification agreement.

[25]   Although Mr. Moyer believed that he had a sufficient basis to distribute the escrowed funds, he requested Mr. Forloine's consent as a courtesy; he did not think that Mr. Forloine would sign it. He ignored Mr. Forloine's April 16, 1999, letter because the extensions of the contract had long since expired and because Mr. Forloine had stated that the funds were liquidated damages and nonrefundable. Mr. Moyer admitted that the word "nonrefundable" did not appear in Mr. Forloine's October 16, 1998, letter. However, that letter was one of a series of letters associated with the contract.

[26]   Mr. Moyer did not recall receiving a demand letter from the sellers in September 1998. He obtained the indemnification agreement from the sellers as a good business practice, although he did not obtain one in every case. Based on Mr. Forloine's April 16, 1999, letter, Mr. Moyer was aware that there was a dispute between Mr. Forloine and himself, but he did not consider that it had any merit. Mr. Moyer denied having an obligation as escrowee to further determine what objection Mr. Forloine had to the release of the escrowed funds. Mr. Moyer did acknowledge that M & M held the funds for the mutual benefit of the parties. However, he denied having any responsibility to Mr. Forloine in disbursing the funds.

[27]   According to Mr. Moyer, there was usually a notice of termination from a seller. In this case, there was a September 3, 1998, notice of termination. Mr. Moyer did not know if the sellers sent a notice of default to Mr. Forloine.

[28]   Adam Sarauskas testified as follows.

[29]   Mr. Sarauskas was one of the owners of the property that was the subject of the contract in this case. Edward Streit had sold the property to Messrs. Sarauskas and Butch on contract. Mr. Sarauskas had signed the hold-harmless agreement prepared by M & M. It was his understanding that ICC had waived all of the contingencies, including that of title and financing. Mr. Sarauskas thought that he had provided written notice of the termination of the contract to Mr. Forloine but acknowledged that the negotiations were handled through the broker.

[30]   On cross-examination, Mr. Sarauskas testified that he had never been notified by anyone representing Mr. Forloine that Mr. Sarauskas was not authorized to sell the property. He was present and signed at the closing when the property was finally sold. Mr. Sarauskas was ready, willing and able to deliver title to the property on December 15, 1998.

[31]   At the conclusion of the trial, the court found that the facts were basically not in dispute: there was $40,000 in escrowed earnest money funds, the sale never closed and the $40,000 was ...


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