Appeal from Circuit Court of Champaign County No. 10MR312 Honorable Michael Q. Jones, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
JUSTICE COOK delivered the judgment of the court, with opinion. Justice Steigmann concurred in the judgment and opinion.
Justice Pope dissented, with opinion.
¶ 1 On May 3, 2010, Triple R Development, LLC (Triple R), and Colliers, Bennett and Kahnweiler, Inc. (CB & K), filed a complaint against Golfview Apartments I, L.P. (Golfview), stating that Golfview had defaulted on a real estate contract, and Triple R was entitled to the $230,000 deposit made by Golfview. On August 4, 2010, Triple R filed a motion for summary judgment. On August 17, 2010, Golfview filed its answer and affirmative defenses and then on September 2, 2010, filed a countermotion for summary judgment. A hearing on Triple R's motion for summary judgment was held on September 27, 2010. On October 27, 2010, the court entered its order granting Triple R's motion for summary judgment. The court reserved the issue of attorney fees, set forth in count II of Triple R's complaint, but made a finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), that there is no just reason to delay either enforcement or appeal. Golfview appeals. We affirm and remand.
¶ 3 The trial court determined there was no dispute as to the following facts. Triple R and Golfview entered into a contract on May 7, 2007, for the sale of real estate commonly known as Golfview Village Apartments, for $21 million. The closing on the sale was to occur within 150 business days of May 7, 2007. Pursuant to paragraph 4.A. of the contract, Golfview deposited $230,000 with CB & K, as escrow agent. An introductory clause in the contract recites that "Seller understands that Buyer intends to finance the acquisition and construction of said premises through the use of 1) tax exempt bonds issued by Illinois Housing Development Authority (IHDA) and/or the City of Rantoul, and 2) tax exempt bond credit enhancement financing." There is no dispute that Golfview did not obtain tax exempt bond and tax exempt bond credit financing.
¶ 4 The contract was for the purchase of approximately 76.62 acres containing 96 buildings with rental apartments, for a purchase price of $21 million. The contract required Golfview to make a deposit of $230,000 upon the execution of the agreement. Under paragraph 5.A. of the contract, "[a]fter the expiration of the Due Diligence Review and the review period for the survey without termination by the Buyer, $230,000 of the deposit shall be non-refundable to Buyer except in the event of Seller's default." Under paragraph 14, Golfview had 30 days to perform its due diligence review after Triple R delivered certain items, which Triple R was obligated to do within 20 or 30 business days after the date of the contract. Paragraph 5.A. gave Golfview the power to direct the return of the deposit "provided such direction is given" during the 30-day due diligence review. In its verified answer to the complaint, Golfview admitted "that it did not terminate the Contract during the due diligence period; however the contract automatically terminated upon the Closing date set forth in the Contract because [Golfview] had not determined its eligibility to receive tax credits for the Premises."
¶ 5 Paragraph 10.F. of the contract and the concluding paragraph of paragraph 10 provided as follows:
"Buyer will not be obligated to consummate the transaction unless and until:
(iii) Buyer has determined its eligibility to receive tax credits for the Premises.
If any of the above requirements to Closing are not satisfied as of Closing, this Agreement shall automatically terminate on the Closing date and the Earnest Money, together with all interest earned thereon, shall be refunded to Buyer and the parties shall have no further liability to each other, except for such obligations as expressly survive termination under this Agreement, unless Buyer waives the unsatisfied items."
The closing date was set out in paragraph 3:
"Closing. If Seller shall have complied with all of its obligations contained herein, and Buyer has not otherwise ter- minated this Contract pursuant to the terms hereof and the Buyer obtains the financing and/or government approvals set forth in this Contract, then the purchase and sale contemplated herein shall close (the 'Closing') at the office of the ...