specially concurring:
I concur in the reversal of the trial court by the majority opinion and its statements of law as general principles. However, the issues discussed by the majority opinion need never have been reached had it focused on the pivotal question, albeit not addressed by the trial court or the parties, whether the real estate sales contract continued to exist throughout the course of the dealings between the parties. My firm conviction in the appropriateness of this approach compels me to state my views.
It is uncontroverted that the original contract was modified to provide a contingency for rezoning, i.e.:
"[T]his contract must be subject to zoning for commercial purposes with the cost burden upon the Purchaser and said rezoning completed within 150 days. If the property is not rezoned, the contract shall be Null and Void.” (Emphasis added.)
The plain meaning of this contract provision is that the contract becomes null and void if the rezoning does not occur within the time frame agreed upon. This contract provision is self-executing by operation of law and does not require either of the parties to perform any act. The only inquiry necessary to determine if the contract became null and void under this provision is whether the property was rezoned prior to the expiration of the time agreed upon. It is uncontroverted that this did not occur. Hence, the contract became null and void by operation of law and was unenforceable.
There is no language in the contract placing the burden of attempting to obtain the rezoning on the purchaser or seller. The trial court’s conclusion that the rezoning contingency evaporated because the purchaser never applied for rezoning is erroneous. The trial court impermissibly added a nonexistent term to the contract, i.e., the purchaser had a legal obligation to file a petition for the rezoning. Under the provisions in the contract, the purchaser was not required to file, reasonably pursue or even pray for the rezoning. We cannot speculate, create or infer terms or conditions not present in the written contract between the parties. (Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co. (1929), 334 Ill. 281, 290, 165 N.E. 793 (where a written contract purports on its face to be a complete expression of the whole agreement, it is presumed that the parties introduced into it every material item and term, and a court, in construing it, will not add thereto another term about which the agreement is silent); see also Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 1088, 537 N.E.2d 809, appeal denied (1989), 125 Ill. 2d 564; La Salle National Bank v. City of Warrenville (1982), 105 Ill. App. 3d 643, 647-48, 434 N.E.2d 549; Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 859, 410 N.E.2d 258.) The failure to specify that one of the parties had an obligation to attempt to obtain the rezoning does not make an otherwise clear and unambiguous provision ambiguous.
It is my conclusion that the contract became null and void. Therefore, the trial court’s order granting summary judgment and awarding a monetary judgment in favor of plaintiffs should be reversed and this matter remanded to the trial court for entry of judgment in favor of defendant and against plaintiffs.