respectfully dissenting in part:
I respectfully dissent. I believe this appeal is frivolous and subject to sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)).
The majority opinion resolved the merits of the first trial court’s ruling, but did not resolve the merits of the second trial court’s ruling. I believe the appeal, dependent upon reversing the trial court’s second ruling, is frivolous and is nothing more than a feeble attempt to force a large peg into a smaller square hole. The following is the entire argument of appellant regarding the trial court’s second ruling. The appellant’s brief states as follows:
“THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW THAT THE TAKING BY CONDEMNATION, EVEN IF A SALE WITHIN THE MEANING OF THE TERMINATION AGREEMENT, DID NOT TAKE PLACE WITHIN THE TIME REQUIRED BY THAT AGREEMENT.
As part of the basis of its judgment in favor of Brook-wood, the trial court concluded that the transfer of title of the Property through the process of condemnation did not ‘fall within the time limitations of the agreement.’ (SR. C187, App. 2). Simply stated, there is absolutely no basis for this reading of the Termination Agreement.
It is irrelevant that the condemnation award was not made and the monies not paid by the District until after March 1988, so long as the condemnation petition was filed before that date. [(Emphasis added.)] The time limits in the Termination Agreement refer only to the date of contracting and sets [sic] no deadline as to when the transaction must actually be concluded in order for NHP to be entitled to a portion of the proceeds.
By its express terms, the Termination Agreement contemplates that the ultimate sale might be consummated after March 1, 1988. Thus, paragraph 2(d) of the Termination Agreement provides:
‘If no Subsequent Contract [for the sale of the Property] is entered into by March 1, 1988, or if one previously entered into is terminated prior to its consummation after March 1, 1988, then this agreement shall terminate and be of no further force or effect ***. [APP. 48]’ (Emphasis added.)
The trial court simply misread the Termination Agreement in concluding that the condemnation was not timely.”
The appellant’s reply brief states as follows:
“THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW THAT THE TAKING BY CONDEMNATION, EVEN IF A SALE WITHIN THE MEANING OF THE TERMINATION AGREEMENT, DID NOT TAKE PLACE WITHIN THE TIME REQUIRED BY THAT AGREEMENT.
Without explanation, the trial court concluded that the transfer of title of the Property through the process of condemnation did not ‘fall within the time limitations of the agreement.’ Brookwood now attempts to justify this misreading of the Termination Agreement by noting that the condemnation judgment was entered on the jury’s verdict well after the contract deadline of March 1, 1988. Brookwood ignores the fact, however, that this deadline refers not to consummation of the sale, but to the execution of a contract.
As noted in NHP’s initial brief (and ignored by Brook-wood), the Termination Agreement, by its express terms, contemplates that the ultimate sale might be consummated after March 1, 1988. Hence the key date is tied not to a sale, but to the execution of a contract for sale:
‘If no Subsequent Contract [for the sale of the Property] is entered into by March 1, 1988, or if one previously entered into is terminated prior to its consummation after March 1, 1988, then this agreement shall terminate and be of no further force or effect *** (emphasis added).’
This provision also renders irrelevant Brookwood’s argument that the Forest Preserve District could have, after March 1, 1988, discontinued its efforts to obtain the property. If that happened, and if the sale was never consummated, the Termination Agreement would be deemed terminated and NHP would have no claim thereunder. The same would be true, under the above referenced language, if a private purchaser terminated its efforts to obtain title to the property prior to consummation of the sale after March 1, 1988. The parties clearly contemplated that a sale might fall apart in mid-stream, and that such an occurrence would negate NHP’s rights. Of course, this did not happen, and the District did in fact purchase the Property.”
The argument wholly fails to establish, let alone address, that the filing of the condemnation suit by the adverse third party is the equivalent of a “subsequent contract entered into by March 1, 1988.” This equivalency is an essential element of appellant’s theory of reversing the trial court’s ruling and its final judgment. As it fails, so does the entire appeal. The appellant knew or ought to have known that a successful appeal was dependent upon reversal of the trial court’s second ruling. The failure to properly address the second ruling resulted in a frivolous appeal.
By analogy, a trial court finds no liability in tort because there is no duty on the part of the defendant and the statute of repose has run. An appeal as to the existence of a duty may arguably be valid. However, the failure to properly address the ruling of the statute of repose ought to result in sanctions for a frivolous appeal pursuant to Supreme Court Rule 375(b). In this case, the appellant has failed to properly address the termination of the contract, under its own terms, prior to liability for breach of contract arising. Therefore, I would grant sanctions pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) and therefore dissent as to the portion of the opinion denying sanctions.