Court of Appeals of Illinois, First District, Third Division
ELLIOT S. WICZER and WICZER AND ZELMAR, LLC, Plaintiffs,
LARRY WOJCIAK, DETAILS, LLC, GEORGE PAPPAS, STEVEN KOLBER, STEVEN WINOKUR, TIMOTHY OPFER, JAMES STUCKMANN, and MICHAEL KRABBE, Defendants (Steven Kolber, Steven Winokur, Timothy Opfer, James Stuckmann, and Details, LLC, Cross-Plaintiffs-Appellees; Larry Wojciak, Cross-Defendant-Appellant)
Appeal from the Circuit Court of Cook County. No. 09 CH 41384. The Honorable LeRoy K. Martin, Jr., Judge Presiding.
FOR CROSS-DEFENDANT-APPELLANT: Foreman Friedman, PA, Northbrook, IL, OF John M. Sheldon.
FOR CROSS-PLAINTIFFS-APPELLEES: Bruce R. Entman, Buffalo Grove, IL, OF Bruce R. Entman.
PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.
PUCINSKI, PRESIDING JUSTICE.
[¶1] At issue in this case is the disposition of earnest money held by plaintiff Elliot Wiczer pursuant to the sale of assets and real estate by cross-plaintiff-appellee, Details, LLC (Details), which is an Illinois limited liability company. Details is a car wash business and also owns the real estate at the site of the car wash. Plaintiff
Elliot Wiczer was at all relevant times an attorney licensed in Illinois and held the funds. Plaintiff Wiczer & Zelmar, LLC, is a law firm in which Wiczer is a partner. Defendant and cross-defendant-appellant Larry Wojciak sought to purchase Details. Plaintiff Wiczer was the attorney for Wojciak and " Details Acquisition, LLC," which was an entity to be formed by Wojciak and listed as the purchaser. Attorney Bernard Wiczer was also Wojciak's and Details Acquisition's attorney. Cross-plaintiff-appellees Steven Kolber, Steven Winokur, Timothy Opfer, and James Stuckmann were all members of Details and individual depositors of the funds held by Wiczer.
[¶2] An escrow agreement was executed by the individual Details member defendants but not by Details, LLC, and was not executed by Wojciak individually or on behalf of any entity owned or managed by him. This escrow agreement provided that Details, LLC, would provide the earnest money, even though it was the seller, because the business was in distress and owed more money than Wojciak was willing to pay for the property and the business. The individual Details member defendants deposited the earnest money with Wiczer as temporary escrow agent. The asset purchase agreement for the real estate and car wash business was executed later and was executed by Details, LLC, as seller, and by Wojciak on behalf of " Details Acquisition, LLC," an entity not in existence at that time and later formed under another name, as the buyer. The asset purchase agreement provided that the buyer would deposit all of the earnest money in accordance with an escrow agreement to be attached to the contract, but no escrow agreement was ever attached to the contract. Wojciak canceled the contract and the transaction never closed. Wojciak did not deposit any of the earnest money held by Wiczer. The circuit court ordered that Wiczer return the earnest money to the individual Details defendants who had deposited the earnest money. Wojciak claims entitlement to the funds under the escrow agreement.
[¶3] We hold that the asset purchase agreement was properly executed by the buyer and seller and it incorporated by reference an escrow agreement, but (1) the escrow agreement was never fully executed by the correct parties to the transaction; (2) the terms of the escrow agreement conflicted with the escrow provision in the asset purchase agreement; and (3) the conditions of the escrow were never satisfied. Thus, there was no effective earnest money escrow agreement, yet the individual Details member defendants deposited earnest money in escrow and there was no breach of the sales contract, as the buyer decided to cancel ...