{ "id": 4302950, "name": "DOROTHEA L. BERGGREN, as Trustee Under Declaration of Trust Dated November 21, 2003 and Known as the Dorothea L. Berggren Revocable Trust, as Amended, as Assignee, Plaintiff-Appellant, v. EMILY J. HILL et al., Defendants-Appellees", "name_abbreviation": "Berggren v. Hill", "decision_date": "2010-05-18", "docket_number": "No. 1\u201409\u20142567", "first_page": "475", "last_page": "482", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 475" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "240 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5137652 ], "year": 1993, "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0737-01" ] }, { "cite": "75 Ill. App. 3d 549", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3275297 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0549-01" ] }, { "cite": "174 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515601 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "506" }, { "page": "506" }, { "page": "505" }, { "page": "507" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0504-01" ] }, { "cite": "182 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2619401 ], "weight": 12, "year": 1989, "pin_cites": [ { "page": "861" }, { "page": "861" }, { "page": "861" }, { "page": "861" }, { "page": "861" }, { "page": "862" }, { "page": "860" }, { "page": "860" }, { "page": "860-61" }, { "page": "861" }, { "page": "861" }, { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0859-01" ] }, { "cite": "76 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3282278 ], "year": 1979, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0138-01" ] }, { "cite": "234 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623740 ], "year": 2009, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0381-01" ] }, { "cite": "234 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3623781 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "396" }, { "page": "396" }, { "page": "396" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/234/0393-01" ] }, { "cite": "166 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198913 ], "year": 1995, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0095-01" ] }, { "cite": "228 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706478 ], "year": 2008, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0095-01" ] } ], "analysis": { "cardinality": 680, "char_count": 16513, "ocr_confidence": 0.767, "pagerank": { "raw": 4.9082751341173264e-08, "percentile": 0.30921049837268505 }, "sha256": "a19f85efc29d81a71c440b7c1240815a24ba9ad265e733891027452abb2a3345", "simhash": "1:486f6de35bcb7c35", "word_count": 2734 }, "last_updated": "2023-07-14T16:03:46.574655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DOROTHEA L. BERGGREN, as Trustee Under Declaration of Trust Dated November 21, 2003 and Known as the Dorothea L. Berggren Revocable Trust, as Amended, as Assignee, Plaintiff-Appellant, v. EMILY J. HILL et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nPlaintiff Dorothea L. Berggren appeals from the circuit court\u2019s order dismissing her claims against defendants Emily J. Hill and Emily J. Hill, as trustee of the estate of Roger Hill, for breach of a contract for the sale of real estate. Plaintiff filed a two-count complaint that contained one prayer for relief. In count I, plaintiff asserted a claim for specific performance of the contract for sale of the property. In count II, plaintiff alleged that she sustained actual damages for costs such as real estate taxes, insurance and maintenance. Plaintiff initially sought relief in the form of an order directing defendants to fulfill their obligations pursuant to the contract, including paying plaintiff the full purchase price, and awarding her actual damages. The circuit court dismissed plaintiffs claims and plaintiff timely appealed. After plaintiff filed the notice of appeal, however, she sold the property that was the subject of her claims. We find that plaintiff abandoned her claim for specific performance and that the liquidated damages provision in the contract precludes an award for actual damages. Therefore, we affirm.\nBACKGROUND\nThe relevant facts are not in dispute. Plaintiff entered into a contract on June 23, 2008, with Emily Hill and her husband Roger Hill, who subsequently passed away, pursuant to which they were to buy a condominium from plaintiff for $1,650,000. The closing date was set for February 12, 2009. Upon the Hills\u2019 execution of the contract, they deposited a personal check for $1,000 with the listing broker as the initial earnest money. According to the form contract, the earnest money was to be increased to 10% of the purchase price within two business days after the expiration of the attorney approval period. The parties crossed out the preprinted \u201c10%\u201d and wrote in by hand \u201c5%.\" The Hills subsequently increased the earnest money as required by the contract.\nGeneral provision E of the contract governs the disposition of the earnest money in the event of a default. It states, in relevant part:\n\u201cDisposition of Earnest Money. In the event of default by Buyer, the Earnest Money, less expenses and commission of the listing broker, shall be paid to Seller. If Seller defaults, the Earnest Money, at the option of Buyer, shall be refunded to Buyer, but such refunding shall not release Seller from the obligations of this Contract.\u201d\nThe parties subsequently entered into a letter agreement to modify general provision E:\n\u201cGeneral Provisions, Paragraph E (\u2018Disposition of Earnest Money\u2019) shall be revised to replace \u2018In the event of default by Buyer, the Earnest Money, less expenses and commission of the listing broker, shall be paid to Seller\u2019 with \u2018In the event of default by Buyer, the Earnest Money shall be paid to Seller.\u2019 \u201d\nThe parties also entered into a letter agreement extending the closing date until April 30, 2009. However, by letter dated April 3, 2009, defendants informed plaintiff that they would not purchase the property and, in fact, defendants did not close the transaction.\nPlaintiff filed her complaint for breach of contract. Although defendants did not file an answer and counterclaim, they moved to dismiss the complaint pursuant to section 2 \u2014 619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2006)) and requested relief from the circuit court in the form of an order: (1) finding liquidated damages were equal to $81,500; (2) awarding that sum to plaintiff as her damages; and (3) dismissing plaintiff\u2019s complaint. In response, plaintiff argued that provision E was not an exclusive remedy. The court granted defendants\u2019 motion and dismissed plaintiff\u2019s complaint. Despite the fact that the order dismissed all counts with respect to all parties, the order contained a statement that \u201c[t]here is no just cause to delay the enforcement of or appeal from this order.\u201d\nPlaintiff filed a timely notice of appeal from this order and asserted that this court has jurisdiction to review the order pursuant to Supreme Court Rule 304(a) or, alternatively, Rule 303. 210 Ill. 2d Rs. 303, 304. Defendants moved to dismiss the appeal as moot because plaintiff sold the property that was the subject of her claim for specific performance. In opposition, plaintiff conceded that specific performance is no longer available to her as a remedy and, for the first time, argued that her claim for actual damages included a claim for the difference between the contract price and the subsequent lower sale price. This court denied defendants\u2019 motion to dismiss the appeal.\nDefendants then filed their response brief in which they argued that: (1) retention of the earnest money is plaintiffs sole contractual remedy; (2) specific performance is no longer available because plaintiff has sold the property; and (3) provision E is a valid liquidated damages provision. In reply, plaintiff admitted that her sale of the property \u201ccame to light\u201d when defendants moved to dismiss the appeal, but argued that: (1) the trial court erroneously treated provision E as liquidated damages; and (2) the contract is ambiguous because the parties have presented conflicting interpretations of one provision and, therefore, the issues could not be resolved on a motion to dismiss.\nANALYSIS\nBefore we consider the merits of plaintiffs appeal, we must determine whether jurisdiction is proper. People v. Smith, 228 Ill. 2d 95, 104 (2008). Plaintiff\u2019s complaint contains two claims against defendants, both of which were dismissed on defendants\u2019 section 2 \u2014 619(a)(9) motion to dismiss. Therefore, this court has jurisdiction to review the order in this case because it is a final order disposing of all claims against all parties. 155 Ill. 2d R. 301; 210 Ill. 2d R. 303; In re Estate of French, 166 Ill. 2d 95, 101 (1995). The inclusion of the language to satisfy Rule 304 is mere surplusage because there were no claims left for the circuit court to adjudicate.\nThis court reviews de novo a grant of dismissal pursuant to section 2 \u2014 619. Doe v. Diocese of Dallas, 234 Ill. 2d 393, 396 (2009). A motion to dismiss under section 2 \u2014 619(a)(9) asserts that plaintiffs claims against the defendant are \u201cbarred by other affirmative matter avoiding the legal effect of or defeating the claim[s].\u201d 735 ILCS 5/2\u2014 619(a)(9) (West 2006); see also Diocese of Dallas, 234 Ill. 2d at 396. When reviewing an order granting dismissal on this basis, we may consider \u201call facts presented in the pleadings, affidavits, and depositions found in the record.\u201d Diocese of Dallas, 234 Ill. 2d at 396. \u201cThe pleadings and supporting documents must be interpreted in the light most favorable to the nonmoving party.\u201d Diocese of Dallas, 234 Ill. 2d at 396.\nPlaintiff abandoned her appeal of the dismissal of count I for specific performance because she admitted that the remedy of specific performance is no longer available to her as a result of her sale of the property. Although plaintiff has not abandoned her appeal of the dismissal of count II, she has, however, forfeited two of her arguments. First, she forfeited the argument that her claim for actual damages includes the $425,000 difference between the contract price and the subsequent sale price because she did not raise this in her initial brief. 210 Ill. 2d R. 341(h)(7); Halpin v. Schultz, 234 Ill. 2d 381, 390 (2009). Plaintiff also forfeited the argument that the contract was ambiguous because she did not raise this until her reply brief. 210 Ill. 2d R. 341(h)(7). Finally, we can also dispense with plaintiffs remaining claim for actual damages for her expenses such as taxes, insurance and maintenance.\nIn the absence of an express provision to the contrary, a provision for the forfeiture of earnest money will be construed as a liquidated damages clause. Bamberg v. Griffin, 76 Ill. App. 3d 138, 144 (1979). \u201cLiquidated damages clauses do not limit a nondefaulting [party\u2019s] remedies, but instead provide an agreed upon measure of damages.\u201d Siegel v. Levy Organization Development Co., 182 Ill. App. 3d 859, 861 (1989). The nondefaulting party may choose not to demand the \u201camount or remedy set forth in the liquidated damages clause,\u201d but the failure to demand the contractual right \u201cdoes not create rights greater than those bargained for.\u201d Siegel, 182 Ill. App. 3d at 861. \u201cIf the nondefaulting party chooses to reject the liquidated damages clause, he does not have the right to seek a greater measure of damages than the amount bargained for.\u201d Siegel, 182 Ill. App. 3d at 861. Parties to real estate transactions often include a liquidated damages provision \u201cto avoid the difficulty of ascertaining and proving damages by such methods as market value, resale value or otherwise.\u201d Siegel, 182 Ill. App. 3d at 861. Liquidated damages provisions are enforceable unless they are determined to be a penalty. Siegel, 182 Ill. App. 3d at 861.\nWhether a provision is a valid liquidated damages clause is a question of law. Morris v. Flores, 174 Ill. App. 3d 504, 506 (1988).\n\u201cCourts will generally enforce a liquidated damages provision in a real estate contract where it can be shown (1) that the parties intended to establish an agreed upon amount of damages in the event of a breach; (2) that the amount provided as liquidated damages was reasonable at the time of contracting and bears some relation to the actual damages which might be sustained; and (3) that the actual damages would be difficult to prove and uncertain in amount.\u201d Morris, 174 Ill. App. 3d at 506.\nThe fact that the amount of liquidated damages stated in the provision does not equal a party\u2019s subsequent damages is not determinative of whether the provision is valid and enforceable. Siegel, 182 Ill. App. 3d at 862. Provision E satisfies this three-part test and, therefore, it is enforceable.\nThis court previously has upheld liquidated damages provisions as a seller\u2019s sole monetary remedy in factually similar cases. For example, in Siegel, the parties entered into a contract for the sale of a condominium for $1.6 million with a deposit of earnest money equal to 20% of the purchase price. Siegel, 182 Ill. App. 3d at 860. The buyer breached the contract and did not close the transaction. Siegel, 182 Ill. App. 3d at 860. The seller retained the earnest money and transferred the rights to the property to a third party, which eventually sold the unit to another purchaser for a significantly lower purchase price. Siegel, 182 Ill. App. 3d at 860-61. The buyer sued to recover his earnest money and the third party filed a counterclaim for $405,157, which represented the difference between the purchase price in the contract and the subsequent lower sale price (after allowing the buyer credit for the retained earnest money). Siegel, 182 Ill. App. 3d at 861. The circuit court dismissed the third party\u2019s counterclaim on the basis that the liquidated damages clause limited the seller\u2019s recovery to the earnest money. Siegel, 182 Ill. App. 3d at 861. This court affirmed and stated that the amount of the earnest money was reasonable in light of the losses that could be anticipated at the time of contracting and that it was reasonable for the parties to bargain for the inclusion of a liquidated damages clause to avoid the difficulty of ascertaining losses in the event of a breach. Siegel, 182 Ill. App. 3d at 862.\nSimilarly, in Morris, this court reversed the circuit court\u2019s award of monetary damages in addition to the retention of the earnest money, even though the contract specified that the liquidated damages provision \u201c \u2018shall not be the exclusive remedy of Seller, and Seller shall retain all monies deposited without prejudice to his other remedies.\u2019 \u201d Morris, 174 Ill. App. 3d at 505. This court stated that \u201c[i]t would be inconsistent to provide in the contract for liquidated damages and also allow a party to pursue other remedies for money damages.\u201d Morris, 174 Ill. App. 3d at 507. The court held that although the contract prohibited the seller from recovering actual money damages greater than the amount of the liquidated damages, the seller could pursue \u201cremedies other than money damages, such as injunctive relief.\u201d Morris, 174 Ill. App. 3d at 507.\nIn Curtin v. Ogbom, the seller and buyer deleted a portion of the earnest money provision in a form contract regarding the liability for the broker\u2019s fee and inserted a negotiated typewritten provision. Curtin v. Ogborn, 75 Ill. App. 3d 549, 555 (1979). The court found that this demonstrated their intent that the amount specified in the clause would constitute liquidated damages and found that the liquidated damages amount of just under 10% was reasonable. Curtin, 75 Ill. App. 3d at 555. The court held that the seller was not entitled to additional money damages because \u201ca seller is not entitled to any recovery in addition to the liquidated damages.\u201d Curtin, 75 Ill. App. 3d at 599.\nHere, both parties were represented by counsel during the negotiations. The seller and buyers modified the preprinted language of provision E through a letter agreement removing the language regarding seller\u2019s obligation to pay the listing broker\u2019s expenses and fees out of the earnest money and replacing it with language that upon buyers\u2019 default, the earnest money \u201cshall be paid\u201d to plaintiff. Provision E did not give plaintiff the option of retaining the earnest money or pursuing other damages. See, e.g., Grossinger Motorcorp, Inc. v. American National Bank & Trust Co., 240 Ill. App. 3d 737, 750 (1993) (stating that \u201cthe optional nature of the liquidated damages clause shows that the parties never intended to establish a specific sum to constitute damages in the event of a breach\u201d and holding that such a clause was unenforceable because it would only be invoked as a penalty when the liquidated damages exceeded the actual damages). Further, the parties agreed to reduce the amount of the earnest money from 10% of the purchase price, as stated in the form contract, to 5% of the purchase price. When considered in the light most favorable to plaintiff, these facts indicate that at the time of contracting, the parties intended the earnest money to be liquidated damages in the event of defendants\u2019 breach. The amount of 5% of the purchase price was reasonable at the time the parties signed the contract, and the fact that plaintiff subsequently sold the property for a lower price does not change that analysis. Finally, at the time of contracting, the potential damages to either party were uncertain and it was reasonable for them to bargain over the terms of provision E to avoid the difficulty of ascertaining losses in the event of a breach, especially given the nearly eight-month span between the signing of the contract and the initial closing date. Therefore, provision E is enforceable and precludes plaintiff\u2019s claim for actual damages.\nCONCLUSION\nFor the foregoing reasons, we find that plaintiff abandoned her appeal of the dismissal of count I for specific performance and that provision E precludes her claim in count II for actual damages. Therefore, we affirm the circuit court\u2019s dismissal of plaintiff\u2019s complaint.\nAffirmed.\nCUNNINGHAM, EJ., and KARNEZIS, J., concur.\nThe contract states that the initial earnest money shall be increased to 5% of the purchase price, which would equal a total of $82,500. The parties, however, each state in their briefs to this court that the amount of the final earnest money was $81,500.\nAlthough plaintiff did not provide this court with the full details, it appears that she sold the property before she filed her initial brief on appeal. Defendants filed as an exhibit to their response brief an affidavit with a copy of a deed transferring the property to a third party. The deed is dated November 12, 2009, which is about five weeks before plaintiff filed her brief. Despite the fact that plaintiff had sold the property, she filed her initial brief on December 21, 2009, and argued that specific performance was available as a remedy.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Warren Lupel and Jonathan L. Loew, both of Lupel Weininger LLfJ of Chicago, for appellant.", "Leo G. Aubel, of Deutsch, Levy & Engel, Chtrd., of Chicago, for appellees." ], "corrections": "", "head_matter": "DOROTHEA L. BERGGREN, as Trustee Under Declaration of Trust Dated November 21, 2003 and Known as the Dorothea L. Berggren Revocable Trust, as Amended, as Assignee, Plaintiff-Appellant, v. EMILY J. HILL et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201409\u20142567\nOpinion filed May 18, 2010.\nWarren Lupel and Jonathan L. Loew, both of Lupel Weininger LLfJ of Chicago, for appellant.\nLeo G. Aubel, of Deutsch, Levy & Engel, Chtrd., of Chicago, for appellees." }, "file_name": "0475-01", "first_page_order": 491, "last_page_order": 498 }