concurring:
I agree with the result reached by the majority. I cannot, however, agree with that portion of the majority’s opinion relative to the question of the good faith of the Authority’s $1,022,000 offer. Under these facts, the trial court correctly found the Authority’s offer, which was approximately 66% of the pending Homart offer, to be inadequate and not made in good faith. While recognizing that the question of value is ordinarily one of fact, where an offer such as we have here is so grossly inadequate compared to a pending offer, the question should be properly disposed of as a matter of law.
Value is that which a willing buyer will pay and a willing seller will accept in a voluntary transaction. (See In re Marriage of Parker (1991), 216 Ill. App. 3d 672, 575 N.E.2d 938.) As the trial court recognized, no rational seller would accept $1,022,000 from a buyer for the same commodity for which another buyer is willing to pay $1,556,000. To hold otherwise would be to substitute an artificial rule of law for the time tested and proven commercial practice that the highest bidder wins the sale. I can only ask rhetorically the extent of the hue and cry from the public if a governmental body were to attempt to sell a public asset to a bidder at a price substantially below that bid by another similarly situated party.
If it is assumed, as the majority opinion concludes, that Homart did not act as the Authority’s agent, then Homart and the Authority were two separate bodies working in concert to purchase the same property. Under such a circumstance, it is critical to the correct resolution of this case to note that Homart’s $1,556,000 offer was still on the table at the time the Authority offered $1,022,000. It is also significant that the trial court specifically found that the Authority knew Homart was offering $1,556,000 for the land at the time it made its inferior offer. Clearly, neither the Authority nor any other reasonable person would expect the defendants to accept $1,022,000 for their property in the face of an offer from another ready, willing and able buyer to purchase the property for more than U/a times the Authority’s bid. The Authority, in making its inadequate bid, attempted to adhere to the form required by the law, but failed to conform to either its substance or spirit. Such attempt does not rise to the level of good-faith negotiation.
Under Illinois law, a condemnor’s offer may be so inadequate as to constitute bad faith. (Forest Preserve District v. Marquette National Bank (1991), 208 Ill. App. 3d 823, 826-28, 567 N.E.2d 635; Department of Transportation v. Walker (1980), 80 Ill. App. 3d 1039, 1043, 400 N.E.2d 956; see also Department of Transportation ex rel. People v. Brownfield (1991), 221 Ill. App. 3d 565, 569, 582 N.E.2d 209.) Under these facts, I would affirm the trial court on all grounds.