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Farid Karimi and Mahmobah Kashani v. 401 North Wabash Venture

July 26, 2011

FARID KARIMI AND MAHMOBAH KASHANI,
PLAINTIFFS-APPELLANTS,
v.
401 NORTH WABASH VENTURE, LLC, A DELAWARE LIMITED LIABILITY COMPANY; TRUMP CHICAGO MANAGING MEMBER LLC, A DELAWARE LIMITED LIABILITY COMPANY; AND DEUTSCH BANK TRUST COMPANY AMERICAS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 2009 CH 37433 Judge Presiding.

The opinion of the court was delivered by: Justice Harris

The Honorable Peter Flynn,

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

Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs Farid Karimi and Mahmobah Kashani appeal the trial court's dismissal of their first amended complaint pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS No. 1-10-2670 5/2--615 (West 2006)). On appeal, plaintiffs contend the trial court erred in dismissing counts I through VI of their complaint.*fn1 In their complaint, plaintiffs sought a declaration that the condominium purchase agreement they entered into with defendants was still in effect when defendants sold the condominium unit to a third party and that defendants improperly retained as liquidated damages the earnest money and earned interest. Plaintiffs also alleged breach of contract, unjust enrichment, and conversion. Plaintiffs further argued that the liquidated damages provision in the purchase agreement is unenforceable because it fails to set a certain sum as liquidated damages and effectively operates as a penalty. For the reasons hereinafter set forth, we affirm.

¶ 2 JURISDICTION

¶ 3 The trial court entered a final judgment in the instant case on August 5, 2010, and plaintiffs filed their notice of appeal on September 3, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶ 4 BACKGROUND

¶ 5 The following facts are taken from plaintiffs' first amended complaint and attached exhibits. On or about September 25, 2003, plaintiffs entered into an agreement with defendants to purchase condominium 46A (later renamed 47A) and parking spaces 253, 254 and 255 at the Trump International Hotel and Tower. The total purchase price was $2,188,464 and pursuant to the purchase agreement, plaintiffs deposited $328,269.60 (15% of the purchase price) as earnest money. The agreement provided an anticipated closing date of late 2008.

¶ 6 On September 5, 2008, defendants notified plaintiffs that the unit would be substantially completed and ready to close on October 6, 2008. However, the closing was extended to May 15, 2009, due to plaintiffs' inability to obtain financing. Plaintiffs failed to close on May 15, 2009, and in a letter dated July 6, 2009, defendants declared: "The time and date for closing and the applicable cure period per the default notice has elapsed and Purchaser has not closed on the unit. Therefore, Purchaser is in breach of and in default under the Purchase Agreement. Consequently, Seller hereby terminates the Purchase Agreement."

Whereupon, defendants retained the earnest money and earned interest as liquidated damages. In November, 2009, defendants subsequently sold the unit and one less parking space to a third party for $2.5 million.

ΒΆ 7 Plaintiffs filed a seven-count first amended complaint. Count I alleged that the purchase agreement was still in effect and sought a declaration of the parties' rights under the agreement; count II alleged breach of contract; count III sought a declaration that the earnest money deposit should be returned; count IV sought a declaration, in the alternative, that the liquidated damages clause is unenforceable; count V alleged unjust enrichment; count VI alleged conversion; and count VII alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practice Act (815 ILCS 505/1 et seq. (West 2006)). Defendants filed a motion to ...


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