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Palmolive Tower Condominiums, LLC, A Delaware Limited Liability Company v. Mary Simon

May 16, 2011

PALMOLIVE TOWER CONDOMINIUMS, LLC, A DELAWARE LIMITED LIABILITY COMPANY,
PLAINTIFF-APPELLEE
v.
MARY SIMON, AS TRUSTEE OF THE MARCY SIMON REVOCABLE TRUST DATED SEPTEMBER 19, 1991, AND
MARC SIMON
DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 09 CH 01399 HONORABLE STUART E. PALMER JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

FIRST DIVISION

cons.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Presiding Justice Hall and Justice Lampkin concurred in the judgment and opinion.

OPINION

The defendants, Mary and Marc Simon, appeal from the circuit court judgments dismissing their counterclaims against the plaintiff, Palmolive Tower Condominiums, LLC, and granting the plaintiff judgment on the pleadings on count I of its complaint. For the reasons that follow, we affirm the trial court's judgment dismissing the defendants' counterclaims, and we dismiss the defendants' appeal of the trial court's judgment on count I of the plaintiff's complaint.

In its complaint, the plaintiff alleged that it and the defendants entered into a condominium purchase agreement in July 2003, before the plaintiff had finished construction on the site.

That agreement provided as follows:

"4(c)(i) If Seller fails to substantially complete the Unit on or before December 31, 2005 ***, Purchaser, as its sole remedy for such failure, shall have the right to terminate this Agreement ***. In the event Purchaser exercises its Right to Terminate hereunder, Purchaser shall be only entitled to a refund of the Earnest Money and all interest earned thereon and this Agreement shall terminate. ***

(ii) Notwithstanding the foregoing, if the Closing does not occur by August 31, 2005, Seller shall, as compensation for the delay, at Purchaser's option, (A) pay to Purchaser [$7,500] per month ***, or (B) provide to Purchaser [an apartment and parking]. If Purchaser is entitled to receive

(A) or (B) under this paragraph ***, such shall be provided by Seller from July 1, 2005[,] through and including the earlier of *** the Closing Date *** or *** the effective date of the Purchaser's termination of [the Agreement]."

According to the plaintiff's complaint, on January 17, 2006, it and the defendants entered into a closing agreement, which provided as follows, in relevant part:

"Whereas, Seller has not yet completed construction of the *** Building ***; and

Whereas, *** purchaser is not obligated to close the purchase of the Premises until such [construction] has been Whereas, the parties have agreed to close the purchase and sale of the Premises in accordance with and in material reliance upon the provisions of this Closing Agreement.

Now, therefore, the parties agree as follows:

2. At closing, [part of] the sales proceeds shall [be deposited into escrow]. Seller represents and warrants to Purchaser that Seller has completed construction *** except for construction to be performed on [two floors of the building on which the plaintiffs' condominium is not located] ***. The escrowed funds shall be held in escrow until [the construction is completed, in which case the seller will receive the funds, or until three years pass, in which case the purchaser will receive the funds]. ***

3. Seller represents and warrants to Purchaser that Seller has heretofore closed the sale of three *** condominium units in the Building, has signed contracts with no less than 10% earnest money deposited for the sale of [83] condominium units and there are no more than [15] condominium units remaining unsold.

4. Seller represents and warrants to Purchaser that it is Seller's good faith belief that construction of no less than 25% of the condominium units in the Building will be completed by March 1, 2006, 50% by June 1, 2006, ...


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