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October 11, 2005.

BOB FOUNTAIN, a citizen of the United Kingdom, Plaintiff,
PAMELA H. LOHAN, an Illinois resident, Defendant.

The opinion of the court was delivered by: AMY ST. EVE, District Judge


Plaintiff Bob Fountain ("Plaintiff") brought a two-count complaint against Defendant Pamela Lohan ("Lohan") for breach of contract and specific performance. Defendant now moves for summary judgment, contending that she was entitled to cancel the sales contract in issue and that Plaintiff is not entitled to lost profits. For the reasons discussed below, the Court denies Defendant's motion.


  I. Parties and Jurisdiction

  Plaintiff is a citizen of the United Kingdom, residing in Beamish County, Durham. (R. 31-; First Am. Compl. at ¶ 1.) Plaintiff has owned the Aston Workshop since 1986. The Aston Workshop is a business in Great Britain that restores and resells Aston Martin automobiles. (R. 32-1; Exs. F-J Pl.'s Stmt. Uncont. Mat. Facts Local Rule 56.1(b)(3)(A) and (B) ("Exs. F-J Pl.'s Facts"), Ex. G at ¶ 2.) Defendant is a citizen of the State of Illinois, residing in the City of Chicago, County of Cook. (R. 3-1; First Am. Compl. at ¶ 2.) At the time the parties entered into the contract in issue, Plaintiff owned a 1966 Aston Martin Volante convertible (the "Car"). (R. 23-1; Def.'s Stmt. Mat. Facts ("Def.'s Facts") at ¶ 3.)

  The Court has subject matter jurisdiction over this action through diversity of citizenship. See 28 U.S.C. § 1332(a).

  II. Pre-Contractual Correspondence and Negotiations

  Lars Lohan ("Lars") is the son from a previous marriage of Defendant's ex-husband, Dirk Lohan. (R. 28-1; Pl.'s Affirmative Stmt. Facts Local Rule 56.1(b)(3)(B) ("Pl.'s Facts") at ¶ 3.) The Internet website that listed the Car for sale listed Lars as the designated contact. (R. 321-; Exs. F-J Pl.'s Facts, Ex. G at ¶¶ 3, 5.) On or about June 30, 2004, Plaintiff contacted Lars regarding purchasing the Car. (Id. at ¶ 5.) Over the next several weeks, Plaintiff and Lars exchanged a series of e-mails negotiating that purchase. (Id. at 5.)

  On July 19, 2004, after Defendant and Mr. Lohan obtained a divorce, Defendant sent Lars an e-mail stating that she would like him to continue selling the Car and thanking Lars for handling the sale. (R. 28-1; Pl.'s Facts at ¶ 6.) On July 30, 2004, Defendant sent Lars an e-mail confirming that she would pay Lars a 10% commission of the final sales price for the Car if Lars sold the Car for more than $100,000. (Id. at ¶ 7.) In that same chain of e-mails, Lars notified Defendant that Plaintiff was a prospective buyer who restored Aston Martin automobiles and was "in a position to fix the [C]ar and still make some money from a resale." (Id. at ¶ 18.)

  III. The Contract

  On or about August 4, 2004, Plaintiff entered into a written agreement with Defendant to purchase the Car for $140,000 (the "Contract"). (R. 23-1; Def.'s Facts at ¶¶ 4, 5.) The Contract contains an exclusivity provision, which states that Defendant will reserve the Car for sale to Plaintiff through August 16, 2004, provided that Plaintiff pay Defendant a deposit of $10,000 by August 13, 2004. (R. 3-1; First Am. Compl., Ex. A.) The Contract also states that Plaintiff had until August 16, 2004 to inspect the Car; if Plaintiff was not satisfied with the condition of the Car, then Defendant would refund the $10,000 deposit. (Id.) Additionally, the Contract specifies that "[u]pon receipt of payment in full by Buyer, all title and interest in the vehicle shall transfer to Buyer." (Id.) The Contract does not set forth a date upon which total payment is due, nor does it contain any terms regarding delivery. (Id.) Lars drafted the Contract.*fn1 (R. 28-1; Pl.'s Facts at ¶ 19.)

  On or about August 12, 2004, the parties formally amended the Contract through an addendum, which "extends the time allowed for Buyer . . . to inspect the vehicle . . . [to] August 23rd, 2004." (R. 3-1; First Am. Compl., Ex. A.) Lars prepared the text of that August 12, 2004 addendum (the "Addendum"). (R. 28-1; Pl.'s Facts at ¶ 20.)

  IV. Post-Contractual Negotiations, Correspondence and Actions

  On August 5, 2004, Lars sent Defendant an e-mail setting forth a procedure for transferring ownership of the Car. (R. 28-1; Pl.'s Facts at ¶ 14.) The e-mail described the procedure as follows: (1) Defendant will deliver the Car to Plaintiff's shipping agent; (2) Plaintiff's shipping agent will notify Plaintiff of his receipt of the Car; (3) upon that notification, Plaintiff will send Defendant the remaining $130,000; and (4) Defendant will release the Car to be shipped to the United Kingdom once she confirms that she has received ...

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