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September 29, 2004.

OCEAN ATLANTIC WOODLAND CORPORATION, a Virginia Corporation, Plaintiff,
DRH CAMBRIDGE HOMES, INC., a California Corporation, COWHEY, GUNDMUNDSON, LEDER, LTD., an Illinois Corporation, and PUGSLEY & LAHAIE, LTD., an Illinois Corporation, Defendants.

The opinion of the court was delivered by: RONALD GUZMAN, District Judge


Ocean Atlantic Woodland Corporation ("Ocean Atlantic") has sued DRH Cambridge Homes, Inc. ("Cambridge"), Cowhey, Gundmundson, Leder, Ltd. ("Cowhey"), and Pugsley & LaHaie, Ltd ("Pugsley") alleging copyright infringement, deceptive trade practices and consumer fraud, conversion, false designation of origin, and unjust enrichment. Before the Court is Defendants' joint motion for summary judgment based on several affirmative defenses. For the reasons provided in this Order, the Court denies Defendants' summary judgment motion.


  The following facts are either undisputed or deemed admitted due to a party's noncompliance with Local Rule 56.1. In 1994, owners of farm land located in unincorporated Will County adjacent to the Village of Plainfield, Illinois ("the Village") entered into a contract with Mid-America Financial Development, Inc. ("MAF"), a residential developer, for the purchase of the farm land (Defs.' LR 56.1(a)(3) ¶¶ 20, 22.) MAF's name for the proposed development was "Sweetwood." (Id. ¶ 23.)

  MAF made substantial progress toward its goal of having the Village annex the farm land (Id. ¶ 29.) The Village required a party petitioning for annexation to prepare and submit, among other things, a Preliminary Plat showing the plans for such things as street locations, lot configurations and relative lot sizes, and Preliminary Engineering showing such things as the plans for locations of sanitary sewers, storm water drainage systems, and detention basins. (Id. ¶ 16.)

  MAF hired Roake & Associates ("Roake"), a land surveying and engineering firm, to create a Preliminary Plat and Preliminary Engineering and to assist in the development efforts. (Id. ¶ 24.) The Preliminary Plat and Preliminary Engineering were both submitted to the Village, and the Village planning commission recommended that the Village board approve them. (Id. ¶ 30.) The farmers, MAF, and the Village then entered into an annexation agreement, the terms of which were agreed to by the parties. (Id. ¶ 31.) However, the last required stage, board approval, did not occur. (Id. ¶¶ 30, 32; Defs.' Ex. 15, Philipchuck Dep. at 18-19.) MAF decided not to proceed with its acquisition and development of the farm land (Defs.' LR 56.1(a)(3) ¶ 32.) MAF paid Roake in full for all of the services it performed on MAF's behalf. (Id. ¶ 46.) Either MAF or Roake then provided copies of the Preliminary Plat and Preliminary Engineering to the owners to show that MAF or Roake had pursued the project in good faith and to allow the owners to show potential buyers the work that had progressed to date in order to induce them to purchase the land and to continue to use Roake. (Id. ¶ 33; Philipchuck Dep. at 115-16.)

  In 1997, within months after MAF and Roake's collaboration of work had ended, the Farmers entered into an agreement to sell the farm land to Ocean Atlantic. (Id. ¶ 37.) At some point in time, Ocean Atlantic stated that it intended to develop the farm land into a residential subdivision named "Farmington Village." (Pl.'s LR 56.1(b)(3)(B) ¶ 4.) The agreement required Ocean Atlantic to close on November 15, 1997*fn1 and to complete rezoning and annexation of the farm land into the Village prior to the closing date. (Defs.' LR 56.1(a)(3) ¶¶ 41, 42.) The farmers gave all engineering, preliminary plats, soil tests, studies, and due diligence conduct by MAF to Ocean Atlantic. (Id. ¶ 44.) Mr. Michael Ferraguto, president of Ocean Atlantic, does not recall whether Ocean Atlantic was asked to reimburse MAF for any work Roake had done prior to Roake's retention by Ocean Atlantic. (Id. ¶ 46.) Ocean Atlantic wanted to proceed with a plan similar to the MAF plan and wanted to take the MAF documents and start the ball rolling again. (Id. ¶ 39.)

  Ocean Atlantic retained Roake to continue work in connection with the annexation process and retained attorney John Philipchuck to assist in the annexation process. (Id. ¶ 43.) Ocean Atlantic also retained The Lannert Group ("Lannert") as the landscape architect to create a Preliminary Landscaping Plan for Farmington Village. (Id. ¶ 49.) By the time Ocean Atlantic retained Lannert, the creative portion of the project had been pretty much settled. (Id. ¶ 51.)

  The Village conducted new hearings regarding the farm land because the last step in the process, board approval, had not occurred. (Id. ¶ 55.) Roake and Lannert revised the Preliminary Plat that had been prepared for MAF's Sweetwood subdivision in response to comments by Village officials and requests by Ocean Atlantic. (Id. ¶ 56.) The record before the Court does not make it clear to what degree the revised Preliminary Plat changed the original plan. The Preliminary Landscape Plan, Preliminary Engineering, as well as the revised Preliminary Plat were each approved by the Village board. (Id. ¶ 58.)

  In August 1998, Ocean Atlantic, the Village, and the farmers entered into an annexation agreement ("Annexation Agreement") which incorporated the Preliminary Landscape Plan and revised Preliminary Plat as exhibits. (Id. ¶ 59.) The version of the Preliminary Plat, which shows only Lannert as its drafter, was based on the preliminary plat drafted by Roake for MAF. (Id. ¶ 61.)

  At that time, the Village board adopted Ordinances 1804 and 1805. (Id. ¶ 66.) Ordinance 1804 authorized the Village President and Village to execute the Annexation Agreement and incorporated by reference the agreement, which included the Preliminary Plat and Preliminary Landscape Plan as exhibits, which is attached to the ordinance. (Id.) Ordinance 1805 annexed the farm land to the Village. (Id.) None of the documents submitted to the Village in connection with the annexation process by Ocean Atlantic or Roake and Lannert contained any limitation on redistribution. (Id. ¶ 75.)

  Despite its development efforts, Ocean Atlantic did not close on the property at any time in 1998. (Id. ¶ 81.) By fall 1998, the farmers had "accused Ocean Atlantic of dragging its feet by refusing to draft a final engineering plan, which, upon approval by the Board, would have triggered a mandatory closing date within thirty days." Arnhold, 284 F.3d at 696. The farmers "expressed frustration over Ocean Atlantic's repeated proposals to renegotiate the purchase price of the land" Id.; (see Defs.' LR 56.1(a)(3) ¶ 84). The farmers "retaliated by refusing to execute any annexation petition unless Ocean Atlantic accelerated the first closing date to December 31, 1998." Arnhold, 284 F.3d at 696.

  "[U]nbeknownst to the Sellers, Ocean Atlantic filed a federal lawsuit in November 1998, asking the court to order the Sellers to sign the requisite annexation petition. The Sellers, on their own accord, did execute the document on December 1, 1998." Id. This mooted Ocean Atlantic's lawsuit. Id. "Nevertheless, . . . Ocean Atlantic proceeded to serve the Sellers in January 1999 with its now moot lawsuit for specific performance. Three months later, Ocean Atlantic voluntarily dismissed its suit and dropped its demand for a price reduction." Id. "The parties subsequently agreed to a second extension of the contract, which pushed back the initial date of closing to November 30, 1999." Id.

  In early November 1999, "Ocean Atlantic sought to delay the initial closing for a third time." Id.; (see Defs.' LR 56.1 ¶ 87). On November 22, 1999, the farmers filed a federal suit against Ocean Atlantic "seeking a declaratory judgment that the contract would be terminated if the closing did not occur by November 30, 1999." Arnhold, 284 F.3d at 696; (see Defs.' LR 56.1 ¶ 88). Ocean ...

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