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Halpern v. Titan Commercial LLC

Court of Appeals of Illinois, First District, First Division

November 7, 2016

CHARNA HALPERN, Plaintiff-Appellant and Counterdefendant-Appellant,
TITAN COMMERCIAL LLC and BEN ROSENFIELD, Defendants-Appellees and Counterplaintiffs-Appellees.

         Appeal from the Circuit Court of Cook County, No. 13-CH-17139; the Hon. Raymond Mitchell, Judge, presiding.


          Kevin Q. Butler, Cornelius E. McKnight, Bryan T. Butcher, and Nathan P. Karlsgodt, of McKnight, Kitzinger & Pravdic LLC, of Chicago, for appellant.

          Tyler Manic, of Schain, Banks, Kenny & Schwartz, Ltd., of Chicago, for appellees.

          Panel JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Harris and Mikva concurred in the judgment and opinion.


          SIMON, JUSTICE

         ¶ 1 This case arises out of a dispute over a real estate broker's commission. Defendants Titan Commercial LLC (Titan) and its principal Ben Rosenfield filed a broker's lien against a property. Plaintiff Charna Halpern filed a complaint to extinguish the lien as improper. In turn, defendants filed a counterclaim seeking payment of their real estate broker's commission. Following a bench trial, the trial court awarded defendants a $50, 000 commission and denied plaintiff's claim for attorney fees. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff is the owner of iO Theatre, a comedy club that she leased near Wrigley Field for nearly 25 years. Plaintiff was looking to purchase a building to continue to operate her club at a different location. In May 2010, plaintiff began working with defendants who specialize in off-market properties. An off-market property, also known as a pocket listing, is a property not marketed to the public for sale, but known to the broker based on the broker's preexisting relationship with the owner or landlord. Generally, when dealing with an off-market property, the broker approaches the building owner, explores the owner's inclination to sell, and builds up a relationship that leads up to the owner's willingness to sell the property. Other brokers do not know about the availability of these properties. Defendants informed plaintiff about the confidential nature of an off-market property and how they would be the only broker involved in the transaction.

         ¶ 4 Defendants showed plaintiff a number of properties. On June 22, 2010, defendants showed plaintiff an off-market property at 1501 N. Kingsbury (Kingsbury property) in Chicago. Defendants had several meetings with the owner of the Kingsbury property a few months prior to speaking with plaintiff about it. At the end of the showing, plaintiff and the owner of the Kingsbury property discussed a potential transaction and a selling price. The owner requested that plaintiff submit an offer to him.

         ¶ 5 Following the showing, defendants assisted plaintiff to find a parking solution in the event that she would purchase the Kingsbury property. Defendants arranged another showing on June 25, 2010, where plaintiff's architect toured the property to evaluate the costs of converting the building into a theater. Defendants also obtained the full set of plans for the building on the property, information about the existing leases, and researched whether the zoning was appropriate for her comedy club. These efforts allowed plaintiff and her architect to determine that the Kingsbury property was financially feasible for plaintiff's needs.

         ¶ 6 On July 15, 2010, plaintiff, through Titan, submitted a letter of intent containing plaintiff's offer of $1.7 million to purchase the Kingsbury property. The letter stated that Titan would receive a commission and that the seller would be responsible for the payment of it to Titan. In the beginning of October 2010, plaintiff increased the offer to $2.8 million. Plaintiff intended to purchase the property vacant without the tenants. Rosenfield advised plaintiff that if she wanted the property vacant, based on his conversations with the owner, she could not purchase the property until the middle of 2012.

         ¶ 7 After submitting the offer, plaintiff instructed defendants to maintain contact with the owner and to make sure that no one else would buy the property. From 2010 to 2012, defendants stayed in contact with the owner of the Kingsbury property and showed him several properties the owner could potentially purchase with the proceeds from his sale of the Kingsbury property to plaintiff. In December 2010, plaintiff assured Rosenfield in an e-mail that she understood that the Kingsbury property was Titan's deal and no other broker's.

         ¶ 8 Plaintiff looked at various properties using other brokers, but she continued to maintain her interest in purchasing the Kingsbury property. Throughout 2012, she continued to negotiate the purchase of the Kingsbury property with the assistance of Justin Cozart, an employee of the Private Bank. In an e-mail from May 2012, he advised her, "[p]lease try to keep this quiet until we have our deal ...

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