Mandel v. Hernandez

936 N.E.2d 1079, 404 Ill. App. 3d 701, 344 Ill. Dec. 322, 2010 Ill. App. LEXIS 1015
Appellate Court of Illinois·Decided September 23, 2010·No. 1-09-3044·Published·Cited by 21 cases

Opinion

PRESIDING JUSTICE GALLAGHER

delivered the opinion of the court:

Plaintiff, Marybelle Mandel, appeals the trial court’s denial of her request to receive monetary damages for a breach of contract claim involving the sale of real estate to her from defendant Thomas Hernandez, finding that such damages were inconsistent with the award of specific performance. Mandel first claims that the trial court erred in holding that it could not award both monetary damages and specific performance for a breach of contract claim. Mandel also claims that the trial court erred in denying Mandel’s request to amend her complaint postjudgment to conform to the proofs pursuant to section 2 — 616(c) of the Illinois Code of Civil Procedure (735 ILCS 5/2 — 616(c) (West 2002)). Mandel further claims that the trial court erred in denying her request to amend the complaint to add a new cause of action and that the trial court should have conducted a subsequent and separate hearing or a new trial to determine monetary damages resulting from the delay in Hernandez’s performance of the contract. For the reasons that follow, we affirm.

Background

On March 29, 2007, Mandel and Hernandez entered into a written contract whereby Hernandez agreed to sell to Mandel residential property located at 731 West 61st Place, Summit, Illinois, that Hernandez owned. The residential real estate contract, containing the signatures of both parties and identifying the subject property, was admitted into evidence without objection. The contract provided for a fixed purchase price of $50,000, earnest money in the amount of $1,000 to be paid within 15 days of acceptance, and a closing date of May 20, 2007, or sooner. Hernandez refused to proceed to closing and Mandel subsequently filed a two count complaint against Hernandez. In count I, Mandel sought specific performance and damages incidental to specific performance. Alternatively, Mandel sought damages for breach of contract under count II. Hernandez raised the following four affirmative defenses: (1) that he was elderly and ill and thus unable to comprehend the nature of the contract; (2) that Mandel failed to disclose that she was a licensed real estate broker and thus took advantage of him; (3) that the terms of the contract were unconscionable; and (4) that Mandel failed to timely deliver the earnest money and appear at closing.

The record on appeal does not include deposition testimony, but the trial court’s written findings after trial are included in the record, which discusses the party’s testimony. The following facts are based in part on the trial court’s written findings after trial. Mandel is in the business of buying real estate properties, renovating the properties, and then reselling them. Mandel communicated her involvement in the real estate business to Hernandez when the parties first met. Mandel expected the renovation work on the property to be completed within 90 days and anticipated the resale value of the property to be between $210,000 and $240,000. Mandel’s husband, who was also involved in the business of renovating and reselling properties, testified that renovation of the property would entail replacing the exterior siding, insulation, roof and interior walls, as well as gutting the kitchen.

Hernandez, who was 80 years old at the time, testified that the property had been vacant for some time and that he hoped to get rid of it. According to Hernandez, Handel’s husband inquired about an asking price after hearing that Hernandez hoped to dispose of the property. Hernandez asked for $50,000 and Handel’s husband said, “Sold.”

Handel claims that the parties discussed a price at a later time while viewing the property. Hernandez told Handel that the first person who offered him $50,000 for the house could have it. According to Handel, after agreeing upon the price, Hernandez requested a written agreement. The parties proceeded to sign a standard form real estate contract at Hernandez’s house. Handel testified that the parties acknowledged each line of the contract and together completed the appropriate blanks. Hernandez denied having seen the real estate contract and stated that he did not remember signing it.

The parties also disputed delivery of the earnest money. Handel testified that she mailed Hernandez a check for the earnest money on Harch 29, 2007, and later contacted him to confirm receipt. According to Handel, Hernandez stated that he had not received the check. Handel subsequently sent a second check by overnight mail, return receipt requested. The second check was returned to Handel, and when she contacted Hernandez, he informed her that he was unwilling to complete the transaction. Two checks were admitted into evidence, one dated Harch 29, 2007, and the other dated April 11, 2007.

Hernandez’s daughter testified that Hernandez received a check for the earnest money. His daughter determined that the check arrived late according to the contract’s terms and returned the money to Handel. Hernandez later informed Handel’s attorney that he had no intention of proceeding with the contract.

Handel testified that she was ready, willing, and able to perform the contract and that she deposited the cash and closing documents in an escrow account. Hernandez did not appear at closing or accept the purchase money and the purchase money was returned to Handel a month later.

At trial, both parties presented testimony regarding the property’s approximate value at the time of contract. Hichael Kaput, testifying on Hernandez’s behalf, estimated that the property’s listing price at the time of the contract would have been between $139,000 and $149,000 based on four properties that he considered comparables. Handel offered the testimony of a licensed real estate broker, Opal Fabien, and a certified appraiser, Elizabeth Hohn. Fabien considered four different properties as comparables and offered the opinion that at the time of the contract an appropriate listing price for the property would have been $80,000. Considering three other comparable sales, Hohn offered her opinion that at the time of the contract, the market value of the property was $80,000. None of the testifying real estate experts used the same comparables in arriving at their estimates. Both Hohn and Fabien testified that beginning in 2007, real estate values began to decline and Mandel would not likely obtain the benefit of her bargain as originally thought in 2007. Mandel also presented expert testimony that renovation costs to make the property habitable and marketable totaled $50,000.

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Mandel v. Hernandez, 936 N.E.2d 1079, 404 Ill. App. 3d 701, 344 Ill. Dec. 322, 2010 Ill. App. LEXIS 1015 (Ill. Ct. App. 2010).

936 N.E.2d 1079 (Mandel v. Hernandez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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