CFC Investment, L.L.C. v. McLean

900 N.E.2d 716, 387 Ill. App. 3d 520, 326 Ill. Dec. 819, 2008 Ill. App. LEXIS 1289
CourtAppellate Court of Illinois
DecidedDecember 22, 2008
Docket1-08-0161
StatusPublished
Cited by20 cases

This text of 900 N.E.2d 716 (CFC Investment, L.L.C. v. McLean) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CFC Investment, L.L.C. v. McLean, 900 N.E.2d 716, 387 Ill. App. 3d 520, 326 Ill. Dec. 819, 2008 Ill. App. LEXIS 1289 (Ill. Ct. App. 2008).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

CFC Investment sued Daniel McLean for breach of a contract to purchase CFC’s interest in a real estate venture. McLean answered that he never offered to buy CFC’s interest. That is, there was no contract. The trial court entered judgment on the jury’s verdict in favor of McLean. On appeal, CFC contends the trial court erred by (1) allowing parol evidence, (2) disallowing an admission McLean made at his deposition, (3) disallowing evidence of mismanagement, (4) refusing a proposed instruction on agency, (5) answering the jury’s question, and (6) denying CFC’s motion for a new trial or a judgment notwithstanding the verdict. We affirm.

FACTS

Some factual detail is required for an analysis of the jury’s verdict.

In 1997 Peer Pedersen and Daniel McLean formed River East LLC, to build residential and commercial buildings on land north of the Chicago River near Lake Michigan in Chicago. A separate corporation, River East, Inc., with Daniel McLean as its president, managed River East LLC. Those corporations set up a number of subsidiaries to develop separate parcels of the large tract. We will refer to the various River East entities collectively as River East.

River East paid various fees for management, development, marketing, leasing, and construction on the land to corporations McLean owned. Craig Duchossois and his father, Richard Duchossois, formed CFC Investments in 1997 to invest $10 million in River East. McLean, Peer Pedersen, Howard Warren, John Melk, and several others also invested in River East.

Pedersen and McLean convened a meeting of the investors on March 14, 2001. Pedersen and McLean assured the investors the development was proceeding well, with new investors seeking to participate. Craig offered to sell CFC’s interest. Pedersen tried to persuade Craig that he should keep his investment in River East. But, according to Craig’s notes from the meeting, Pedersen said he, Melk, and McLean, along with others, would be willing to buy out CFC’s shares.

Craig wrote to Pedersen in April 2001, asking him to “consider this letter as [CFC’s] request to initiate steps that would let us look at such a transaction.” At the rate of return Pedersen and McLean said they expected, CFC’s shares should have had a value of $25 million. Craig repeated his request to sell CFC’s interest in River East in a letter to Pedersen sent in June 2001. Craig added, “I understand *** that Dan [McLean] expressed an interest in joining with a group to acquire [CFC’s] interest.”

McLean, on July 31, 2001, wrote to Craig:

“Your ownership interest of 12.3% equates to a current value of $14,897,317 ***.
I recognize your desire to sell your interest in the River East development and I will work toward this goal. However, it is unlikely that an investor would pay the $25.2 million value requested in your letter. ***
*** I can pursue a buyout of your interest.”

Craig telephoned McLean, and that call initiated further discussions about an appropriate price for CFC’s interest in River East. They arrived at a price, and McLean confirmed that valuation in writing. On August 30, 2001, McLean wrote to Craig:

“I am willing to arrange for the purchase of your interest in the River East LLC for a price of $16,700,000. If this is acceptable to you please sign below. I will then commence to secure the capital for a closing date of November 30, 2001.
Sincerely,
/s/ Dan McLean.”

On September 21, 2001, Robert Fealy and David Filkin, acting on behalf of CFC Investments, met with McLean’s representative, Kevin Augustyn, to discuss the details of the proposed transaction. Following the meeting Craig wrote, in a letter dated September 26, 2001:

“On behalf of CFC Investments, we accept your offer to acquire all of our interest in the River East project for $16,700,000. *** We also understand that, as part of this transaction, you will assist with having us removed as guarantors of the JP Morgan loan ***.

*** [W]e expect to close this transaction before November 15.” On September 28, 2001, McLean responded:

“I am happy to know you would like to accept our acquisition offer. ***
*** [W]e are hoping to close this transaction as quickly as possible. However, as both Peer Pedersen and I stated originally, we require 90 days from the date of your acceptance of our offer. This would give us up to January 1, 2002 if you acknowledge this letter by October 1, 2001. ***
Of course we understand your interest in being released as guarantor of the JP Morgan loan. We expect to do this with the repayment of your $5,000,000 pro-rata share of this loan, out of the proceeds you receive.
Assuming these two points are acceptable, please acknowledge by signing this letter below and returning it to me *** to effectuate this transaction.”

Craig sent back a copy of the letter with his signature, along with a separate letter in which he said CFC agreed to the 90-day period “with the understanding that your group will do everything reasonable to accelerate closure.”

Craig heard no word of progress over the following months. On March 29, 2002, he wrote to McLean, demanding performance of McLean’s “contractual commitments.” McLean did not respond. CFC hired an accounting firm to investigate the finances of River East.

On April 2, 2003, all of the investors in River East sold their interests to Mitsui Sumitomo Insurance Company for a total of $17 million. CFC received a little over $2.5 million for its share.

On January 2, 2004, CFC sued McLean for breach of contract. The court denied the parties’ cross-motions for summary judgment. The court held that a trier of fact must decide whether the parties had reached a binding contract.

At a deposition, McLean testified that when he said he was “willing to arrange” for the purchase of CFC’s interest, he meant that he would try to find a group of investors to purchase the shares. He did not intend to offer to buy all of CFC’s shares himself. CFC’s attorney asked:

“Can arrange mean I am willing to arrange to get money so I can purchase your shares?
I mean, that’s one possible interpretation of that language, isn’t it?”

McLean answered, “I am sure it could be, somebody could interpret it that way.”

CFC sought to introduce the statement in its case-in-chief as an admission. The court granted McLean’s motion in limine to bar use of that response in CFC’s case-in-chief, but the court added, “As far as what you may do on cross-examination that may be another issue.”

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Bluebook (online)
900 N.E.2d 716, 387 Ill. App. 3d 520, 326 Ill. Dec. 819, 2008 Ill. App. LEXIS 1289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cfc-investment-llc-v-mclean-illappct-2008.