Franklin v. Nanavati

2020 IL App (2d) 190710

176 N.E.3d 919

448 Ill.Dec. 382

The John FRANKLIN and Dorothy Bickmore Living Trust, John Franklin Bickmore, and Dorothy Bickmore, Plaintiffs-Appellees,

v.Asha NANAVATI and Vimal Nanavati, Defendants-Appellants.

No. 2-19-0710

Appellate Court of Illinois, Second District.

Modified opinion filed November 17, 2020

C. Jeffrey Thut, of Noonan, Perillo & Thut, of Waukegan, for appellants.

Paul N. Bonadies and Christopher J. Miller, of Dahl & Bonadies, LLC, of Chicago, for appellees.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Asha Nanavati and Vimal Nanavati, the defendants named in a three-count complaint brought by John Franklin Bickmore, Dorothy Bickmore, and the John Franklin and Dorothy Bickmore Living Trust (Trust)¹ after a failed real estate transaction, appeal from the trial court's award of damages, fees, and costs to the Bickmores under one breach-of-contract count of the complaint. The Nanavatis first contend that the contract for the sale of the real estate was invalid because only Asha signed it though both she and Vimal owned the property; hence, the finding of breach was contrary to law. Consistent with the rule in Crum v. Krol , 99 Ill. App. 3d 651, 54 Ill.Dec. 864, 425 N.E.2d 1081 (1981), we hold that Asha, as part-owner of the property, could sign a binding contract to sell both her interest and the share she did not own. We hold that, contrary to the Nanavatis' contention, Crum is consistent with the holding in Dineff v. Wernecke , 27 Ill. 2d 476, 190 N.E.2d 308 (1963). The Nanavatis also contend that, because the court found for them on one count of the complaint, the court should have deemed that they were prevailing parties as to that count and were entitled to fees. We hold that the Nanavatis have forfeited this claim by failing to provide a record on appeal sufficient to support their claim of error. We therefore affirm the trial court's award of damages and fees.

¶ 2 I. BACKGROUND

¶ 3 On September 18, 2017, the Bickmores and the Trust filed their three-count complaint against the Nanavatis. Count I was for breach of contract (specific performance), count II was for breach of contract (money damages), and count III was for common-law fraud. The suit arose from a contract for the sale of the Nanavatis' property at 2540 Highmoor Road in Highland Park (Highmoor property) to the Trust. The Nanavatis answered, denying the core allegations of each count. The Bickmores voluntarily dismissed count I, and the remaining counts were tried to the bench. The court included detailed findings of fact in its June 5, 2019, memorandum judgment, and none of the parties contest those findings.

¶ 4 According to the court's findings, Vimal lived in California, where he worked as a physician. Asha frequently visited Vimal but lived alone in the Highmoor property. Asha took out a new mortgage on the Highmore property in 2012. On July 5, 2012, she quitclaimed the property from herself alone to herself and Vimal to facilitate Vimal's cosigning of the mortgage and note. The quitclaim deed was not recorded.

¶ 5 Vimal knew that the mortgage documents identified him as a borrower. However, until August 2017, he was under the impression that Asha had sole title to the Highmoor property.

¶ 6 In April 2017, Vimal participated in having the Highmoor property listed for sale with real estate agent Brent Rosenbower. Rosenbower understood that Vimal would be his primary contact and that Asha relied on Vimal for advice on the sale. Nevertheless, Asha told Rosenbower that she owned the property, and Rosenbower had noted that Lake County property tax records listed her as the owner. Rosenbower also learned that, over the last 15 years, the Highmoor property was listed for sale 13 times at prices ranging from $700,000 to more than $1 million.

¶ 7 In April 2017, Rosenbower prepared a comparative market analysis for the property and sent it to Vimal. Vimal wanted to list the property for $797,000, the median price for properties in the area. Rosenbower recommended a listing price of $679,000. Asha signed a listing agreement with Rosenbower's agency on April 28, 2017; the listing price was $659,900. Vimal helped Asha sign the document electronically.

¶ 8 On June 11, 2017, the Bickmores signed a contract to sell their Glencoe residence. The contract specified an August 18, 2017, closing, but allowed the Bickmores to retain possession until January 2018, if they paid $5400 a month in rent.

¶ 9 On June 17, 2017, the Bickmores offered Asha $600,000 for the Highmoor property. They increased their offer to $652,000 on June 22, 2017, and proposed an August 18, 2017, closing. Vimal asked Rosenbower to get a later closing date or a higher price, and the Bickmores agreed to give Asha more time to move her belongings.

¶ 10 On June 27, 2017, Asha, with Vimal's assistance, electronically signed a contract accepting the Bickmores' offer of $652,000 for the sale of the Highmoor property and setting August 18, 2017, as the date for closing and possession. The contract identified Asha as the sole seller, and only Asha signed the contract. The contract provided that the seller would convey good and merchantable title to the buyers by warranty deed. It also provided that, in any litigation "with respect to this Contract," the "prevailing party * * * shall be entitled to collect reasonable attorney fees and costs from the non-prevailing party as ordered by a court of competent jurisdiction."

¶ 11 Shortly after Asha signed the agreement, Asha and Vimal became dissatisfied with the sales price of $652,000; Vimal believed the price should have been closer to $750,000. Vimal testified that, hours after he helped Asha electronically sign the contract, he texted Rosenbower to state, " ‘I'm retracting the offer [sic ] * * * I have the right within 24 hrs of signature.’ " Rosenbower could not confirm that he received the text, but in any event, the contract did not give the seller the right to rescind the contract.

¶ 12 On July 2, 2017, Vimal told Rosenbower that Asha could not move out by August 18, 2017, and that he would pull out of the sale if the Bickmores did not agree to an October 30 possession date. The Bickmores agreed to change the closing and possession date to September 15, 2017.

¶ 13 On August 10, 2017, or thereabout, Vimal told Sean Weppler, an attorney whom he had retained for the transaction, that he was an obligor under the mortgage. Weppler recognized that this meant that Vimal was probably also on the title, but he found that the last recorded deed showed Asha alone as the owner. On August 14, 2017, Weppler obtained the unrecorded quitclaim deed from the mortgage company that showed Vimal was an owner. Weppler believed that Vimal's interest in the property gave the Nanavatis a basis for renegotiating the sales price.

¶ 14 On August 14, 2017, Weppler sent the following e-mail to the Bickmores' attorney:

"Sorry to spring this on you. Thank you for taking some time to speak with me this morning. Please see attached Mortgage for the subject property. As we discussed, it was at the time of this mortgage that the property was transferred from Asha Nanavati to Asha Nanavati and Vimal Nanavati. Dr. Vimal Nanavati is looking for the purchase price to be $750,000 to transfer his interest in the property. Please let me know if you would like to discuss this further or how you would like to proceed."

¶ 15 The sale of the Bickmores' Glencoe house closed, as expected, on August 18, 2017.

¶ 16 On August 18, 2017, the Bickmores informed the Nanavatis that they had financing for the purchase of the Highmoor property. Vimal responded through Weppler that he had not signed the contract and would do so only if the Bickmores agreed to pay $725,000 and accepted a September 26, 2017, closing.

¶ 17 On August 28, 2017, Weppler informed the Bickmores that Asha was prepared to convey her interest in the Highmore property for the contract price, but Vimal would not do so unless the Bickmores met his conditions.

¶ 18 No closing occurred, and, as of the trial date, the Nanavatis still owned the Highmoor property.

¶ 19 In the analysis portion of its order, the trial court found that, despite the quitclaim deed in July 2012, when Asha signed the contract in June 2017, neither Vimal nor Asha were aware (or remembered) that Vimal had an interest in the Highmoor property. The court further found that both Vimal and Asha believed that Asha was signing a binding contract to sell the Highmoor property. Moreover, because the grantor of real estate need not have title when the contract is made, that belief was correct. Thus, Asha breached her obligation to provide " ‘good and merchantable title * * * by recordable Warranty Deed.’ " The court further found that, when Vimal discovered that he was on the title, Vimal believed that he had an opportunity to negotiate more favorable terms for the sale.

¶ 20 The court entered a judgment for damages of $70,283.74 in the breach-of-contract claim against Asha. It entered judgment for the Nanavatis on the fraud claim on the basis that, as neither of the Nanavatis had made any direct representations to the Bickmores, no fraud had occurred. The court ruled that the Bickmores were, despite the judgment for the Nanavatis on one count, entitled to fees and costs under the paragraph of the sales contract providing for fees and costs to the prevailing party in litigation regarding the contract. Further, it stated that it had "also resolved all other credibility determinations and specific disputed facts in favor of the findings above and the decision reached below." The court denied the Nanavatis' petition for attorney fees. The Bickmores' fee petition remained pending, with deadlines set for the Nanavatis' response and the Bickmores' reply.

¶ 21 Rather than file a conventional response to the fee petition challenging the reasonableness of the Bickmores' $50,350.60 fee request, the Nanavatis filed what they called a ...