{ "id": 511432, "name": "PARKSIDE SENIOR SERVICES, L.L.C., Plaintiff-Appellant, v. NATIONAL DEVELOPMENT AND CONSULTANTS, LTD., Defendant-Appellee", "name_abbreviation": "Parkside Senior Services, L.L.C. v. National Development & Consultants, Ltd.", "decision_date": "1999-03-23", "docket_number": "No. 1\u201498\u20140943", "first_page": "1022", "last_page": "1028", "citations": [ { "type": "official", "cite": "303 Ill. App. 3d 1022" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "728 F.2d 1215", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 57610 ], "year": 1984, "pin_cites": [ { "parenthetical": "where parties entered into leases and spent valuable time and money in establishing and developing property, benefits obviously flowed to franchisor and promissory estoppel argument was inapplicable" } ], "opinion_index": 0, "case_paths": [ "/f2d/728/1215-01" ] }, { "cite": "18 F. Supp. 2d 409", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11683011 ], "year": 1998, "pin_cites": [ { "parenthetical": "no evidence was presented that plaintiff expended significant resources and interest expenses in reliance on promise that would justify protection of promissory estoppel" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/18/0409-01" ] }, { "cite": "772 F. Supp. 770", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3719451 ], "year": 1991, "pin_cites": [ { "parenthetical": "if the size of the payment is trivial when contrasted with overall resources, detrimental reliance defense is inadequate" } ], "opinion_index": 0, "case_paths": [ "/f-supp/772/0770-01" ] }, { "cite": "492 N.Y.S.2d 921", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1985, "pin_cites": [ { "parenthetical": "change of position not a defense when defendant used money to discharge debt or make expenditures otherwise required" } ], "opinion_index": 0 }, { "cite": "128 Misc. 2d 1068", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 840278 ], "year": 1985, "pin_cites": [ { "parenthetical": "change of position not a defense when defendant used money to discharge debt or make expenditures otherwise required" } ], "opinion_index": 0, "case_paths": [ "/misc2d/128/1068-01" ] }, { "cite": "781 F. Supp. 328", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3751047 ], "year": 1991, "pin_cites": [ { "parenthetical": "investment of substantial amounts of time and money into improvements on property was not detrimental reliance as plaintiff's actions did not result in the loss of any money" } ], "opinion_index": 0, "case_paths": [ "/f-supp/781/0328-01" ] }, { "cite": "358 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "542" }, { "page": "542" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136622 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "544" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0540-01" ] }, { "cite": "263 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "299 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575281 ], "year": 1980, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0484-01" ] }, { "cite": "140 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "772" } ], "opinion_index": 0 }, { "cite": "264 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570301 ], "year": 1965, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0033-01" ] }, { "cite": "286 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "578" }, { "page": "578" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527754 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "640-41" }, { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0638-01" ] }, { "cite": "32 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "224 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611363 ], "year": 1944, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0628-01" ] }, { "cite": "293 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "754" }, { "page": "755" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "306 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571066 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "425" }, { "page": "426" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0417-01" ] }, { "cite": "304 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 10805 ], "weight": 3, "year": 1938, "pin_cites": [ { "page": "464" }, { "page": "1466" }, { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/us/304/0458-01" ] }, { "cite": "55 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1949, "pin_cites": [ { "page": "461" }, { "page": "461" }, { "page": "461" }, { "page": "461" } ], "opinion_index": 0 }, { "cite": "230 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631590 ], "weight": 7, "year": 1949, "pin_cites": [ { "page": "639" }, { "page": "639-40" }, { "page": "640" }, { "page": "640" }, { "page": "640" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0636-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "1209" }, { "page": "1209" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "102" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "871" }, { "page": "871" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "240" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 789, "char_count": 15040, "ocr_confidence": 0.789, "pagerank": { "raw": 1.1566736808495421e-07, "percentile": 0.5830924891760099 }, "sha256": "273b48f383f84a8b7ce1063d5fadf124d7579ad72d4753ce8d867af2b197e79f", "simhash": "1:bb3890b2347dacca", "word_count": 2388 }, "last_updated": "2023-07-14T16:41:17.679955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PARKSIDE SENIOR SERVICES, L.L.C., Plaintiff-Appellant, v. NATIONAL DEVELOPMENT AND CONSULTANTS, LTD., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nThis appeal stems from a breach of contract claim by plaintiff, Parkside Senior Services, L.L.C. (Parkside), against defendant, National Development & Consultants, Ltd. (National). Both parties filed motions for summary judgment and, on February 20, 1998, the trial court denied Parkside\u2019s motion and granted National\u2019s motion. On appeal, Parkside contends the trial court erred in granting National\u2019s motion for summary judgment and denying its motion for summary judgment.\nBACKGROUND\nOn April 14, 1995, Parkside and National agreed to jointly develop approximately 215 acres of property in Greensboro, North Carolina (the North Carolina property), for the purpose of developing, marketing and managing a health care complex for senior citizens. The North Carolina property was the subject of a purchase and sales agreement entered into between the seller, Jefferson-Pilot Life Insurance Company (Jefferson-Pilot), and the buyer, Sedgefield Retirement Community, Inc. (Sedgefield), and required Sedgefield to make a down payment of $100,000 to Jefferson-Pilot.\nOn May 23, 1995, Parkside and National entered into an indemnification agreement wherein they agreed to pay the down payment on behalf of Sedgefield. The down payment was to be placed in escrow with Commonwealth Title Insurance Company. Paragraph 2 of the indemnification agreement provided:\n\u201c2. Parkside Demand Right. Parkside, within forty (40) days of the execution of the contract to purchase the Real Property between Sedgefield and Jefferson-Pilot, shall have the unilateral right to have National return to Parkside, within five (5) days, Park-side\u2019s fifty percent (50%) share of any and all deposits paid to Jefferson-Pilot under the contract to purchase the Real Property. Should Parkside exercise this demand right, the parties shall have no obligations to each other thereafter. This right shall lapse forty (40) days after the date of execution of the aforementioned contract, and after that date, Parkside shall have no right to demand from National its fifty percent (50%) share of any and all deposits paid to Jefferson-Pilot. Notwithstanding the preceding sentence, if Park-side has not received any of its deposit back to date, Parkside shall have the right to receive fifty percent (50%) of any and all deposits that it provided an[d] which are returned to Sedgefield and/or National because of a failure of closing on the purchase of the Real Property requiring Jefferson-Pilot to return any and all deposits received under the Purchase and Sales Agreement.\u201d\nThe agreement further provided that \u201c[n]o change, termination or attempted waiver of any of the provisions of this Agreement shall be binding, unless in writing signed by both parties.\u201d\nIn a letter dated June 19, 1995, Michael S. McCarthy, Parkside\u2019s chairman and chief executive officer, advised National that, pursuant to paragraph 2 of the indemnification agreement, Parkside was exercising its right to demand repayment of its $50,000 deposit. No monies were ever remitted to Parkside.\nOn October 16, 1996, Parkside filed suit in the circuit court of Cook County as a result of National\u2019s refusal to pay. Therein, it alleged National breached the indemnification agreement by failing to return to Parkside its $50,000 deposit.\nOn March 27, 1997, National pleaded the affirmative defense of waiver. It alleged that for at least six months after June 19, 1995, Parkside continued in its efforts to jointly develop the North Carolina property with National. As such, National argued that Parkside waived its right to the return of its deposit.\nThe parties moved for summary judgment on September 11, 1997,' and October 21, 1997, respectively. Attached to and incorporated in National\u2019s cross-motion was the affidavit of Flanders O\u2019Neal, a consultant working with National in its efforts with Parkside to develop the North Carolina property. Mr. O\u2019Neal stated that he contacted Mr. McCarthy upon receipt of the June 19, 1995, letter. During their telephone conversation, Mr. McCarthy allegedly told Mr. O\u2019Neal to ignore the June 19, 1995, letter and further assured Mr. O\u2019Neal that the work Parkside was doing on the project would continue.\nIn response to this affidavit, Parkside filed the affidavit of Mr. McCarthy, attesting that the above-referenced phone call and conversation never took place. Rather, Mr. McCarthy stated that Mr. O\u2019Neal asked Parkside to continue its participation in the project in order to enable National to obtain funds to pay Parkside its $50,000 deposit, as demanded in the June 19, 1995, letter.\nOn December 12, 1997, after a hearing on the matter, the circuit court denied Parkside\u2019s motion and granted National\u2019s motion, finding that Parkside had waived its right to repayment under paragraph 2 of the indemnification agreement.\nOn January 9, 1998, Parkside filed its motion for reconsideration, which was denied by the circuit court on February 20, 1998. Parkside appeals.\nWe reverse and remand.\nANALYSIS\nSummary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). As such, summary judgment is a drastic measure and should be granted only if the movant\u2019s right to judgment is free and clear from doubt. Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871. Where a reasonable person could draw divergent inferences from undisputed facts, summary judgment should be denied. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). Review in this court from summary judgment rulings is de novo. Outboard, 154 Ill. 2d at 102, 607 N.E.2d at 1209.\nParkside contends that the circuit court erred as a matter of fact and law when granting National\u2019s motion for summary judgment and denying its motion for summary judgment because National failed to prove waiver by estoppel. The parties agree that the indemnification agreement granted Parkside a right to reimbursement of its deposit within 40 days of the execution of the purchase and sales agreement between Sedgefield and Jefferson-Pilot. Parkside timely exercised that right but its deposit was not returned. Although the agreement provided that any waiver must be in writing signed by both parties, no written waiver was ever signed. Notwithstanding, National contends that Parkside\u2019s actions in participating in the development of the North Carolina property for at least six months after it requested the return of its deposit constitute waiver by estoppel or promissory estoppel. Parkside, however, argues that no evidence of detrimental reliance by National was shown that supports its waiver by estoppel argument.\nPursuant to the indemnification agreement, the law of North Carolina is controlling. Both Parkside and National rely on Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459 (1949). Under North Carolina law, \u201cwaiver\u201d is defined as \u201c \u2018an intentional relinquishment or abandonment of a known right.\u2019 \u201d Clement, 230 N.C. at 639, 55 S.E.2d at 461, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938); see also Wachovia Bank & Trust Co. v. Rubish, 306 N.C. 417, 425, 293 S.E.2d 749, 754 (1982).\n\u201cA person sui juris may waive practically any right he has unless forbidden by law or public policy. The term, therefore, covers every conceivable right \u2014 those relating to procedure and remedy as well as those connected with the substantial subject of contracts. Sometimes they partake of the nature of estoppel and sometimes of contract. *** No rule of universal application can be devised to determine whether a waiver does or does not need a consideration to support it. It is plain, then, that in the nature and occasion of the particular waiver must lie the answer as to whether or not it requires such consideration.\u201d Clement, 230 N.C. at 639-40, 55 S.E.2d at 461.\nIf the waiver is of a formal, as opposed to a substantial, right or privilege, then no consideration is needed to support it. Wachovia Bank, 306 N.C. at 426, 293 S.E.2d at 755. North Carolina law holds that mere conduct inconsistent with enforcement of a contract right does not establish waiver by estoppel. There must also be detrimental reliance, with the burden of proof on the party asserting the waiver. Clement, 230 N.C. at 640, 558 S.E.2d at 462. If a transaction is benevolent in nature, moves down a one-way street and takes nothing of value from the beneficiary, then no detriment is caused to the beneficiary. Clement, 230 N.C. at 640, 558 S.E.2d at 461-62.\nHere, National contends that Parkside\u2019s conduct naturally and justly led it to believe the provisions of the indemnification agreement were waived, as a written contract may be modified or waived by conduct \u201cwhich naturally and justly leads the other party to believe that the provisions of that contract are modified or waived *** even where the instrument provides for any modification of the contract to be in -writing.\u201d Whitehurst v. FCX Fruit & Vegetable Service, 224 N.C. 628, 636, 32 S.E.2d 34, 39 (1944). However, an agreement to waive a substantial right or privilege, thus altering the terms of the original contract, must be supported by additional consideration or an estoppel must be shown. Wachovia Bank, 306 N.C. at 426, 293 S.E.2d at 755.\n\u201cJudge Learned Hand observed, \u2018 \u201cpromissory estoppel\u201d is now a recognized species of consideration,\u2019 but however atypical in other respects, this kind of estoppel is analogous to the principle on which the more classical or ordinary estoppel is based in that it is required to make it effectual that the promisee in reliance upon the promise has been placed in a changed condition or position where detriment could only be avoided by enforcement of the promise. [Citation.] It must have induced definite and substantial action on the part of the promisee which can only thus be equitably avoided.\u201d Clement, 230 N.C. at 640, 55 S.E.2d at 461.\nSee also Barrington v. Employment Security Comm\u2019n, 55 N.C. App. 638, 640-41, 286 S.E.2d 576, 578 (1982), quoting Bourne v. Lay & Co., 264 N.C. 33, 37, 140 S.E.2d 769, 772 (1965). Therefore, in order for promissory estoppel to apply, National must also demonstrate that its reliance on Parkside\u2019s conduct caused detriment. See Barrington, 55 N.C. App. at 641, 286 S.E.2d at 578; Clement, 230 N.C. at 640, 55 S.E.2d at 461; Thompson v. Soles, 299 N.C. 484, 487, 263 S.E.2d 599, 602 (1980). Whether or not detrimental reliance has occurred is determined according to the specific facts of each case. Home Electronic Co. v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C. App. 540, 544, 358 S.E.2d 539, 542 (1987).\nIn our view, the record of correspondence between Mr. McCarthy and other key players in the development of the property, along with the other indicia of participation memorialized in the six months following the June 19, 1995, demand letter and the affidavits of both Mr. O\u2019Neal and Mr. McCarthy, is consistent with National\u2019s view that Parkside was seeking to continue its efforts to develop the North Carolina property, as originally contemplated. Even so, we fail to find any evidence of detrimental reliance or change in position either in Mr. O\u2019Neal\u2019s affidavit or in the other correspondence relied upon by National. National asserts that its detrimental reliance was its continued allocation of time, money and research toward the project when Parkside could have \u201ckilled the deal\u201d if it had so chosen. However, while making these assertions, National fails to indicate either what or how much time, money and research National allocated toward the project. National fails to establish that Parkside\u2019s forbearance from \u201ckilling the deal\u201d was harmful to National.\nOn the one hand, National\u2019s allegation that it continued to allocate time, money and research toward the project after the June 19, 1995, demand letter does not establish the detrimental reliance required for promissory estoppel. As such, the assertions regarding detrimental reliance by National are insufficient to support the summary judgment because of lack of specificity. Other courts have taken similar views in holding that detrimental reliance was not established. See McCormick v. Camp Pocono Ridge, Inc., 781 F. Supp. 328 (M.D. Pa. 1991) (investment of substantial amounts of time and money into improvements on property was not detrimental reliance as plaintiff\u2019s actions did not result in the loss of any money); Castock Corp. v. Bailey, 128 Misc. 2d 1068, 492 N.Y.S.2d 921 (1985) (change of position not a defense when defendant used money to discharge debt or make expenditures otherwise required); Securities Settlement Corp. v. Jachera, 772 F. Supp. 770 (S.D.N.Y. 1991) (if the size of the payment is trivial when contrasted with overall resources, detrimental reliance defense is inadequate); Aircraft Inventory Corp. v. Falcon Jet Corp., 18 F. Supp. 2d 409 (D.N.J. 1998) (no evidence was presented that plaintiff expended significant resources and interest expenses in reliance on promise that would justify protection of promissory estoppel); cf. Walker v. KFC Corp., 728 F.2d 1215 (9th Cir. 1984) (where parties entered into leases and spent valuable time and money in establishing and developing property, benefits obviously flowed to franchisor and promissory estoppel argument was inapplicable).\nOn the other hand, however, the record does contain correspondence and affidavits that tend to indicate that investments were made in connection with a proposal for developing the North Carolina property. Nevertheless, the record and affidavits do not reflect the extent of the financial investment, if any, by National in its efforts to develop the North Carolina property. Although an expenditure of funds may be insufficient to constitute detriment, the facts of each case must be assessed independently. See Home Electronic Co., 86 N.C. App. at 544, 358 S.E.2d at 542.\nSince the record does not indicate the amount, if any, of expenditures and resources made by National, the amount of the loss of any money by National, or the value of any investment of resources by National after the written demand of June 19, 1995, we reverse and remand for further proceedings. On remand, if the proceedings establish that Parkside\u2019s actions after June 19, 1995, resulted in a consequential loss of money and/or resources to National, judgment should be entered for National; otherwise, judgment should be entered for Parkside.\nReversed and remanded.\nRAKOWSKI and McNULTY, JJ., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Marc Fogelberg and Elias N. Matsakis, both of McBride, Baker & Coles, of Chicago, for appellant.", "Mark C. Fedota and Mark J. Smith, both of Fedota, Childers & Rocca, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "PARKSIDE SENIOR SERVICES, L.L.C., Plaintiff-Appellant, v. NATIONAL DEVELOPMENT AND CONSULTANTS, LTD., Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1\u201498\u20140943\nOpinion filed March 23, 1999.\nMarc Fogelberg and Elias N. Matsakis, both of McBride, Baker & Coles, of Chicago, for appellant.\nMark C. Fedota and Mark J. Smith, both of Fedota, Childers & Rocca, P.C., of Chicago, for appellee." }, "file_name": "1022-01", "first_page_order": 1040, "last_page_order": 1046 }