Opinion
1-22-0860
09-29-2023
MERLISSA NICOLETTE FREEMAN, Plaintiff-Appellant/Cross-Appellee, v. STEPHEN CALK and CHICAGO TITLE LAND TRUST COMPANY, Defendants-Appellees/Cross-Appellants
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 21 CH 4868 Honorable Sophia H. Hall, Claire J. Quish, Judges Presiding
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.
ORDER
ELLIS JUSTICE
¶ 1 Held: Affirmed. Court did not err in granting defendant summary judgment on action for specific performance. Court did not err in award of attorney fees.
¶ 2 Plaintiff, Merlissa Nicollette Freeman, contracted to purchase a single-family home in Northfield from the seller, a land trust whose sole beneficiary was Steven Calk (defendants). During the attorney-review period, defendants terminated the contract for an undisclosed reason. Freeman pushed back and asserted that they had a valid contract because she had accepted their proposed modifications. After Freeman filed suit for specific performance, defendants agreed to withdraw their termination and go forward with the sale.
¶ 3 But Freeman was unable to obtain financing before the mortgage-contingency date in the sales contract. So defendants terminated the contract once more, this time based on that failure. Defendants then moved for summary judgment in this specific-performance action, arguing that Freeman's inability to comply with the financing condition meant that she could not satisfy an element of her claim. The circuit court entered summary judgment for defendants.
¶ 4 Now victorious, defendants sought attorney fees under a fee-shifting provision of the contract. Freeman objected, arguing that this provision had been negotiated out of the sales contract. The court agreed with defendants and awarded fees but struck several days' entries of fees. Both parties appeal-Freeman, claiming the entry of summary judgment was improper and the awarding of any fees at all erroneous, and defendants as cross-appellants, seeking the full amount of attorney fees they sought, including those struck by the trial court.
¶ 5 We find no error. Freeman was not entitled to specific performance, as she could not establish that she was able to comply with the loan-approval condition in the contract. Defendants were entitled to attorney fees, as that right was not amended out of the contract. But the court did not abuse its discretion in denying certain portions of the fee petition. We thus affirm the judgment in all respects.
¶ 6 BACKGROUND
¶ 7 Defendants owned a valuable single-family home in Northfield, Illinois (Property). The Property was in a land trust, administered by Chicago Title Land Trust, of which Calk was the sole beneficiary. On August 31, 2021, Freeman entered into a standard form real estate contract with Calk to purchase the Property for $3.25 million.
¶ 8 Among those standard provisions was a familiar mortgage-contingency provision. The contract required Freeman to obtain a purchase-money loan "[n]ot later than forty-five (45) days after Date of Acceptance or (5) Business Days prior to date of Closing, whichever is earlier." If she was unable to obtain financing, the agreement allowed for either party to terminate without penalty. This right was not without limitation: "A Party causing delay in the loan approval process shall not have the right to terminate under this subparagraph."
¶ 9 The contract also contained a standard "Attorney Review" provision that allowed the parties' attorneys to review the terms of the contract and negotiate modifications. Broadly speaking, after review, the parties could approve the contract, modify it, or disapprove it, though "disapproval shall not be based solely upon the Purchase Price."
¶ 10 On September 7, defendants' attorney sent a letter suggesting several modifications to the contract. We will discuss one of those changes later, as it is relevant to the dispute over attorney fees. The other relevant modification related to the mortgage-contingency provision. First, it changed the general 45-day deadline for Freeman to obtain a mortgage to a requirement that Freeman provide defendants with an "unconditional commitment and clear to close" by October 6, 2021. The amended language also provided that "[i]f any extension of the mortgage commitment or clear to close date" were sought by Freeman, she would be required to "provide authorization to her lender to directly communicate with [defendants'] attorney so that [their] attorney may properly communicate to her client all outstanding conditions and feasibility of [Freeman's] ability to obtain such a loan."
¶ 11 On September 13, 2021, Freeman responded with her own suggestions but agreed to each of the proposed modifications in the September 7 letter (other than a slight comment on a provision not relevant to this appeal).
¶ 12 Unbeknownst to Freeman, however, defendants received another offer to purchase the Property on the same day that Freeman had accepted the changes. According to the agent representing these new potential purchasers, their "offer will be much stronger than the offer you currently are negotiating." Indeed, the record shows that the second buyers offered roughly $500,000 more than the contract amount to which defendants and Freeman agreed.
¶ 13 The next day, September 14, defendants' attorney sent a letter to Freeman's counsel, stating that "[after review and further conferring with my client, the contract is not approved pursuant (sic) as written and modified. Accordingly, pursuant to paragraph 10 c) the contract is cancelled, null and void." That same day, Freeman's counsel responded to this purported termination by stating that
"Buyer does not agree that Seller has a right to terminate based upon disapproval of the Contract. You have already provided your proposed changes, and Buyer has now agreed to all. See attached signed letter. Further, Buyer withdraws any proposed modifications to the Contract.
Buyer is ready, willing and able to proceed per the terms of the original contract, with your proposed modifications accepted. Please confirm Seller will proceed on the original terms."
¶ 14 On September 23, Freeman filed the suit before us, a one-count, verified complaint for specific performance. She alleged that defendants breached their sales contract by terminating it after she had agreed to their modifications. (It does not appear that she knew, at this time, that defendants had received the second offer to purchase the property.) She thus prayed for the enforcement of the contract as written and modified.
¶ 15 Due to Freeman's complaint, defendants backed down from their position and agreed to go forward with the sale of the property. On September 27, defendants' counsel emailed Freeman's attorney:
"Your stated position has been that the buyer accepted the seller's September 7 modifications, and that the parties therefore have a contract on the terms of the original contract with those modifications. The seller has now acquiesced to that position. The mortgage contingency deadline is October 6 and the closing deadline is October 14. I fail to see how anything that has occurred has slowed down your client's ability to get a decision on her loan application or to close. In fact, we have been advised by your client's brokers that your client has been actively pursuing her loan with Guaranteed Rate. Please provide information to indicate otherwise?"
¶ 16 The record does not reveal that Freeman ever responded to that email with any claim that she was unable to secure financing by October 6, nor does it appear she requested an extension of time to do so. In any event, Freeman was unable to secure financing by the October 6 deadline. On October 7, defendants' attorney notified Freeman that the contract was again terminated-this time for failure to comply with the financing provision.
¶ 17 Freeman persisted with her specific-performance claim. Less than a month after the termination for lack of financing, on November 1, defendants moved for summary judgment. They argued that Freeman was not entitled to specific performance because she "never provided evidence of loan approval" and thus could not establish an element of her claim-that she was ready, willing, and able to perform her side of the contract. In support, defendants provided affirmative evidence that Freeman had actually been denied financing by more than one lender.
¶ 18 That is, defendants included affidavits from three mortgage bankers who had worked on various applications submitted by Freeman. First, Bryan Landman stated that The Federal Savings Bank denied Freeman's loan application on September 21, 2021. Similarly, Gino Russo said that Rocket Mortgage denied Freeman's application on September 27, 2021. Each of these affiants stated that the reason for denial was related to either credit problems or insufficient funds.
¶ 19 The third affidavit came from Jon Goldman of Guaranteed Rate, who swore that Freeman applied for a loan on September 20 but withdrew it on September 23, as she was pursuing financing with another lender. Attached to his affidavit was an email exchange with Freeman confirming the same. Goldman swore that Freeman reapplied for a loan with Guaranteed Rate on October 6-the mortgage-contingency deadline-but as of the date of the affidavit's execution (October 29), Guaranteed Rate had not made a determination on approval.
¶ 20 Thus, argued defendants, the fact that Freeman could not demonstrate that she was capable of securing financing "constitutes a complete defense" to her claim of specific performance.
¶ 21 Freeman filed her response in early December, nearly two months after the defendants terminated the contract for the second and final time. She argued that defendants' initial termination of the contract caused a delay in her ability to obtain financing, which contractually barred defendants from relying on the mortgage-contingency provision. She included her own affidavit with the response.
¶ 22 In that affidavit, Freeman swore that she was "actively pursuing" a loan with Jon Goldman of Guaranteed Rate, but "[o]nce [defendants] terminated the Contract on September 14, 2021, I paused all efforts to pursue loan approval." She stated that Goldman "stopped working on my file as the Contract was now terminated." She swore that "I am was [ sic ] unable to obtain mortgage approval to purchase the property due to Seller's termination of the Contract and Seller's delay." She admitted that she had "inquire[d]" about loans with Rocket Mortgage and First Federal Savings Bank but claimed they "did not have the loan product to fit my financing needs." She also acknowledged that she never got a determination from Guaranteed Rate but stated that this was "due to Seller's delay and refusal to allow access for an appraisal." ¶ 23 The court granted defendants' motion for summary judgment. We have neither a memorandum opinion nor a report of proceedings for that decision.
¶ 24 Defendants then sought attorney fees under Section 28 of the contract. Freeman objected, arguing that the parties had removed the fee-shifting provision in the attorney-review amendments. She also challenged several of the fee entries as impermissible "block billing." ¶ 25 The court, a different judge, in a written order, found that the September 7 modification letter did not remove the parties' right to seek attorney fees, as the language of the letter "was not inconsistent and did not conflict with the contract's fee-shifting provision." The court also noted that Freeman had admitted, in her verified complaint, that the contract contained a valid feeshifting provision.
¶ 26 While it found that the agreement allowed for fee-shifting, the court agreed with Freeman that certain days were not recoverable. Specifically, Freeman challenged entries from September 20-24, 27, 29, and October 22. The court struck these entries because "Defendants' entries on these dates constitute impermissible block billing" and because they were not sufficiently specific. The court was not persuaded by counsel's attempt to rehabilitate those entries.
¶ 27 Freeman now timely appeals the grant of summary judgment and award of fees. Defendants cross-appeal to recover those fees denied by the trial court.
¶ 28 ANALYSIS
¶ 29 Freeman claims the circuit court erred in granting summary judgment, as there is a question of fact regarding whether defendants' actions caused a delay in her obtaining financing. She also repeats her argument that the parties "replaced" the fee-shifting provision when they amended the contract. Defendants defend both decisions but additionally argue that the court abused its discretion in reducing their fees.
¶ 30 I. Specific Performance
¶ 31 We begin with Freeman's claim that the court erred in entering summary judgment on her specific-performance claim, as a reversal of that judgment would moot the attorney-fee issues.
¶ 32 Summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Wells Fargo Bank, N.A. v. McCondichie, 2017 IL App (1st) 153576, ¶ 10; see also 735 ILCS 5/2-1005(c) (West 2022). When a movant supplies facts entitling it to summary judgment, the non-moving party must rebut those facts. McCondichie, 2017 IL App (1st) 153576, ¶ 10. The non-movant need not prove its case but must present some facts that, if true, would entitle it to judgment or at least defeat defendant's argument. Id.
¶ 33 We review the circuit court's decision on summary judgment de novo, meaning we sit in the same shoes as the trial court. Sameer v. Butt, 343 Ill.App.3d 78, 85 (2003). We may affirm summary judgment on any basis in the record. In re Marriage of Buck, 318 Ill.App.3d 489, 497 (2000). We review the court's judgment, not its reasoning. Id. That is why, though we would prefer to have some basis for the court's reasoning in the transcript of proceedings or the written judgment order, we may proceed in our review without either. Fields v. Schaumburg Firefighters' Pension Board, 383 Ill.App.3d 209, 223 (2008).
¶ 34 Specific performance is a common remedy for real estate contracts, given the uniqueness of land and homes. Schwinder v. Austin Bank of Chicago, 348 Ill.App.3d 461, 477-78 (2004). Specific performance requires a plaintiff to show: "(1) the existence of a valid, binding, and enforceable contract; (2) compliance by the plaintiff with the terms of the contract, or proof that the plaintiff was ready, willing, and able to perform the terms of the contract; and (3) the failure or refusal of the defendant to perform its part of the contract." Lobo IV, LLC v. VLand Chicago Canal, LLC, 2019 IL App (1st) 170955, ¶ 64. "[T]o be entitled to specific performance, a party need not have performed according to the terms of the contract if he can establish that he was ready, willing and able to perform but was prevented, and thus excused, from doing so by the acts of the other party." Djomlija v. Urban, 107 Ill.App.3d 960, 965 (1982).
¶ 35 Defendant's argument is that, because Freeman could never obtain financing, not even after the October 6 deadline, she cannot demonstrate the second element cited above, that she was able to perform her part of the contract. Generally speaking, Freeman's response can be categorized into two arguments. We will take them in turn.
¶ 36 A. Claim that Repudiation Excused Freeman's Performance
¶ 37 Freeman's initial response is straightforward: Defendants repudiated the contract when they initially terminated the contract for an improper reason. Thus, defendants had no right to retract their repudiation and insist on her compliance with the mortgage-contingency provision. We agree with defendants, however, that Freeman's position misses the mark. It is not that the legal arguments she advances are incorrect in general but that she applies them incorrectly to the circumstances of this case. We explain below.
¶ 38 An anticipatory repudiation is "a clear manifestation of an intent not to perform the contract on the date of performance." In re Marriage of Olsen, 124 Ill.2d 19, 24 (1988). "That intention must be a definite and unequivocal manifestation that he will not render the promised performance when the time fixed for it in the contract arrives." Id. Whether a party has repudiated the contract is determined on a case-by-case basis. Kelly v. Orrico, 2014 IL App (2d) 130002, ¶ 27.
¶ 39 It is abundantly clear that defendants initially repudiated the contract here. Their communication to Freeman on September 14 that "the contract is cancelled, null and void" is about as unequivocal as could be. We have been made aware of no other communication between that point and September 23, when Freeman filed her complaint for specific performance, that would suggest that defendants' position changed in the interim. (If anything, the few email exchanges in the record confirm the hardening of the parties' positions over the following days.) Nor do defendants deny that their actions constituted a repudiation.
¶ 40 Likewise, there is a triable question that the sole reason that defendants repudiated the contract was because they were dissatisfied with the purchase price-a polite way of saying they had secretly secured a higher offer from another buyer. The attorney-review provision, however, did not permit defendants to break the contract solely based on price.
¶ 41 With all of this, we agree with Freeman. And as we read defendants' brief, they do not contest as much, either.
¶ 42 But what happened next-after defendant's repudiation-is where the logic of Freeman's position breaks down. As she herself correctly notes, it is long settled that a party facing a repudiation may elect from various remedies:
"Upon receiving an anticipatory repudiation by the promissor, the promisee has a choice of pursuing three alternative remedies. The promisee may (1) rescind the contract and seek quasi-contractual relief; (2) attempt to keep the contract in force by awaiting time for the promissor's performance and then bringing suit; or (3) elect to treat the repudiation as a breach putting an end to the contract for all purposes of performance." Builder's Concrete Co. of Morton v. FredFaubel& Sons, Inc., 58 Ill.App.3d 100, 104
(1978) (citing Lake Shore &Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 80 (1894)); accord Tower Investors, LLC v. 111E. Chestnut Consultants, Inc., 371 Ill.App.3d 1019, 1031-32 (2007).
¶ 43 Freeman fails to appreciate the choice that she made and the consequences of that decision. Freeman says that she "chose option number three" above in that, days after defendants' repudiation, she "filed the underlying specific performance action to enforce the terms of the Contract."
¶ 44 But that is not the legal effect of what she did. She did not "treat the repudiation as a breach, putting an end to the contract for all purposes ofperformance." (Emphasis added.) Builder's Concrete, 58 Ill.App.3d at 104. She did not elect to treat the contract as at an end, ceasing all duty of performance. Had she done so, her suit would have been one for breach of contract. Her suit would have alleged, quite simply, that defendants breached the contract by improperly terminating it, entitling her to damages of one kind or another.
¶ 45 Instead, she did the polar opposite-she sued for specific performance. She did anything but treat the contract as terminated; she wanted it to continue. Her lawsuit sought to force defendants to continue performing their end of the contract. What's more, it worked-defendants backed off their repudiation and agreed to continue forward with the sale of the Property per the contract. To again quote defendants' communication to Freeman four days after she filed the lawsuit: "Your stated position has been that the buyer accepted the seller's September 7 modifications, and that the parties therefore have a contract on the terms of the original contract with those modifications. The seller has now acquiesced to that position." (Emphasis added.)
¶ 46 At that point, as even Freeman's cited decision provides, once defendants withdrew their repudiation, the contract was back in force. See id. at 105 ("[a] continued willingness upon the part of the injured party to receive performance is an indication that, if the repudiator will withdraw his repudiation, but not otherwise, the contract may proceed."). Freeman had managed to revive the contract, with both parties resuming their obligations and duties.
¶ 47 To that end, in the same correspondence in which defendants stated that they were withdrawing their repudiation, they reminded Freeman of the October 6 deadline for the mortgage contingency. They stated that they expected that Freeman could still make this October 6 deadline, given that she had already begun to seek financing, and asked Freeman to indicate otherwise:
"The mortgage contingency deadline is October 6 and the closing deadline is October 14. I fail to see how anything that has occurred has slowed down your client's ability to get a decision on her loan application or to close. In fact, we have been advised by your client's brokers that your client has been actively pursuing her loan with Guaranteed Rate. Please provide information to indicate otherwise?"
¶ 48 Freeman at no time indicated otherwise. Nor did she communicate that she intended to deem the contract rescinded; quite obviously, given her lawsuit, she wanted to proceed and had just succeeded in coercing defendants to proceed, too.
¶ 49 Yet Freeman argues, rather remarkably, that despite the contract being back in force, she was no longer required to comply with the mortgage-contingency clause of the contract-or for that matter, any other contractual obligations placed on her. Because of defendants' repudiation, she says, she "had no obligation to perform any further buyer obligations under the Contract or provide notice of loan approval." In her view, then, she could force the contract back into existence and demand that defendants perform their end of the agreement-but she, herself, was excused from performing her end of the deal.
¶ 50 She cites Kelly v. Orrico, 2014 IL App (2d) 130002, ¶ 27, for the proposition that" [w]hen one party repudiates a contract, the non-repudiating party is excused from performing or may continue to perform and seek damages for the breach." (Emphasis added.) That statement is accurate but inapplicable here, because she did not seek to rescind the contract and excuse her performance.
¶ 51 To be sure, had Freeman chosen that course-to consider the contract terminated, rescinded, and refuse to perform further-she could have claimed that she was excused from further performance. If, in that scenario, defendants had sued her for breach, she could have used defendants' repudiation as a defense. See Tower Investors, 371 Ill.App.3d at 1032 ("if the party who repudiated the contract subsequently sues the non-repudiating party for failing to perform, the plaintiff's repudiation is a defense.").
¶ 52 Nor, for that matter, did she "continue to perform and seek damages for the breach." Kelly, 2014 IL App (2d) 130002, ¶ 27. She claims no damages for breach here; her only cause of action is specific performance.
¶ 53 Instead, to repeat, Freeman opted to continue moving forward with the contract, with defendants' acquiescence. She cannot now turn around and claim that defendants were required to perform their end of the contract, but she was excused from performing hers. She cannot mix-and-match her remedies in that way. She cites no decision remotely suggesting that she could. Once defendants withdrew their repudiation at Freeman's demand, the contract resumed as a valid, enforceable contract. Her obligations under the contract did not change in any way. Builder's Concrete, 58 Ill.App.3d at 104. It would border on the absurd to allow a party to demand performance from one side but disclaim any responsibility whatsoever from performing one's own duties under the contract.
¶ 54 To be clear: if defendants' initial repudiation somehow interfered with her ability to perform her contractual obligations, she would certainly have the right to raise that complaint. In fact, she does so, and we will consider it below. But she cannot claim some overall immunity generally excusing her from performing her own obligations in the contract, including the mortgage-contingency clause, simply because at some time in the past, defendants had repudiated the contract.
¶ 55 To the contrary, she was still required to perform her own contractual obligations. And indeed, her claim for specific performance cannot lie unless she can establish that she was "ready, willing, and able" to do so. Lobo IV, 2019 IL App (1st) 170955, ¶ 64.
¶ 56 B. Claim that Defendants Interfered with Freeman's Compliance
¶ 57 Freeman's second argument in response to defendants' claim that she was not ready, willing and able to satisfy the mortgage-contingency provision is that the delay caused by defendants' initial repudiation prevented her from doing so. If she is correct, or if she can at least raise a triable question of fact that she was capable of fulfilling the mortgage contingency but for this delay attributable to defendants, then summary judgment for defendants would be inappropriate. See, e.g., Jones v. Seiwert, 164 Ill.App.3d 954, 958 (1987) (buyer demonstrated capacity to obtain conditional mortgage commitment but for seller's actions; summary judgment for buyer was thus inappropriate); Djomlija, 107 Ill.App.3d at 965 (buyers entitled to specific performance, even though they did not tender purchase money at closing; evidence at trial showed buyers could have tendered funds but for actions of seller and thus demonstrated "they were ready, willing and able to close at virtually all times").
¶ 58 We reiterate that, if the movant supplies facts entitling it to summary judgment, typically the non-movant must rebut those facts with counter-evidence of some kind. McCondichie, 2017 IL App (1st) 153576, ¶ 10. Affidavits in support of, or in opposition to, summary judgment are governed by the same rules as evidence at trial. Orr v. Fourth Episcopal Distract African Methodist Episcopal Church, 2018 IL App (4th) 170469, ¶ 61. Hearsay statements or unsupported conclusions, opinions, or speculation cannot raise a genuine issue of material fact; only facts within the personal knowledge of the affiant are proper. Id.
¶ 59 Defendants, the movants, put forth three affidavits establishing that Freeman was unable to obtain financing, a necessary element of her specific performance claim. First, the affidavit of Bryan Landman, a loan officer with The Federal Savings Bank, who swore that his bank denied Freeman's loan application in an email to her dated September 21, 2021. Attached to Landman's affidavit, itself dated September 14, was a "Statement of Credit Denial, Termination or Change" that listed the reasons for the denial of the loan. Those reasons were "Delinquent credit obligations" and "Garnishment, attachment, foreclosure, repossession, or collection action or judgment." That document also included credit reports from Experian, Transunion, and Equifax. All these documents were part of the notification sent to Freeman on September 21.
¶ 60 Defendants' second affidavit came from Gina Russo, a mortgage banker with Rocket Mortgage. Russo swore that, on September 27, she notified Freeman that Rocket was denying her loan application. She attached the letter of denial, which listed the reasons for denial as "Insufficient Cash: Insufficient funds to close" and "Product/Program not available."
¶ 61 And third, an affidavit from Jon Goldman, a loan officer with Guaranteed Rate. He swore in his affidavit that Freeman first applied for a mortgage on September 20, 2021, but Freeman informed Goldman on September 23 "that she had applied for a mortgage with a different lender and would not be proceeding with Guaranteed Rate." Attached to Goldman's affidavit was an email exchange dated September 23, in which Freeman confirmed with Goldman that she was no longer seeking financing from Guaranteed Rate.
¶ 62 In his affidavit, Goldman stated that Freeman once again applied for a mortgage loan with them on October 6, 2021-the mortgage-contingency deadline. As of the date that Goldman's affidavit was executed-October 29, 2021-Guaranteed Rate had not made a final decision on Freeman's new loan application.
¶ 63 The evidence put forth by defendants established that Freeman had been affirmatively turned down by the two lenders from whom she had sought financing; she had voluntarily withdrawn a third alternative (Guaranteed Rate) before renewing her application with that lender on the deadline of the mortgage contingency. Nor was there the slightest indication that any delay or uncertainty in the sales contract contributed in any way to these denials. For example, the Landsman affidavit, regarding the denial by The First Savings Bank, shows the document denying Freeman's loan application was generated on September 14-the same day that defendants first repudiated the contract (before backing down on September 27). Landsman apparently waited a week before notifying Freeman of this denial, but there is no indication that it had anything to do with the uncertain status of the sales contract.
¶ 64 The same is true of the Russo affidavit and Rocket Mortgage's denial. Rocket's stated reasons for denial on September 27 (after the contract was revived) had nothing to do with any delay; she was denied because she had insufficient funds to close and because Rocket could not find a product for her loan.
¶ 65 Finally, the Goldman affidavit established (with an email confirmation from Freeman) that Freeman, herself, withdrew the application with Guaranteed Rate on September 23-not because of any delay or uncertainty regarding the sale contract but because she was seeking financing with another company (presumably Rocket Mortgage). And though we know from the other affidavits that Freeman was denied by The First Savings Bank on September 21 and by Rocket on September 27, Freeman did not re-apply for a loan with Guaranteed Rate until October 6.
¶ 66 In other words, the evidence defendants submitted established that Freeman had failed to obtain financing for the purchase of the property and thus was not "ready, willing and able" to proceed with the purchase of the Property. Lobo IV, 2019 IL App (1st) 170955, ¶ 64. And any delay or uncertainty caused by defendants' initial repudiation played no role in that failure whatsoever.
¶ 67 It was thus incumbent on Freeman to counter this evidence and demonstrate that there was at least a genuine issue of material fact regarding her ability to satisfy the mortgagecontingency provision. Freeman's only response was her own affidavit, dated December 1, 2021. It is worth quoting in full. Freeman swore as follows:
"1) Prior to Seller's termination of the contract, on September 14, 202, I was actively pursuing a loan to purchase the property with my loan officer Jon Goldman at Guaranteed Rate.
2) Once Seller terminated the Contract on September 14, 2021, I paused all efforts to pursue loan approval as the Contract was now terminated.
3) Once Seller terminated the Contract on September 14, 2021, my loan officer, Jon Goldman, stopped working on my file as the Contract was now terminated.
4) After the termination of the Contract, the Seller refused access to the property so that the appraiser could conduct an appraisal of the property.
5) I am was [ sic ] unable to obtain mortgage approval to purchase the property due to Seller's termination of the Contract and Seller's delay.
6) That I did inquire with a few lenders to obtain financing, namely Rocket Mortgage and First Federal Savings Banks, but these lenders did not have the loan product to fit my financing needs.
7) That I never received a determination of loan approval from Guaranteed Rate due to Seller's delay and refusal to allow access for an appraisal."
Freeman neither referenced nor attached any documents to her affidavit.
¶ 68 We agree with defendants that Freeman's affidavit did not create a triable issue of fact regarding her inability to obtain financing or the role any delay caused by defendants might have played. As we noted above, there is no evidence-not even testimony from Freeman-that The First Savings Bank and Rocket denied her application because of timing or any uncertainty regarding the sales contract. The loan officers swore in their affidavits that she was denied because of credit and delinquency problems or insufficient funds; she testified it was because they "did not have the loan product to fit [her] financing needs." But nobody, not even Freeman, claimed that anything regarding the sales contract or any delay contributed to the denials.
¶ 69 The contested facts regarding the loan application with Guaranteed Rate are admittedly puzzling but, in the end, not materially so. Freeman says she was actively pursuing a loan with Guaranteed Rate but "paused all efforts" on September 14, when defendants repudiated; Goldman swore that Freeman first applied on September 20 but withdrew the application on September 23 because she was turning to another company. Goldman says Freeman reapplied on October 6 but, as of the date Goldman executed the affidavit (October 29), Guaranteed Rate had not made a determination on her application. Freeman said nothing about her reapplication but also testified that she had yet to hear from Guaranteed Rate on her loan application.
¶ 70 Critically, however, Freeman's affidavit is dated December 1, 2021-nearly two months beyond the October 6 deadline. Even by then, she had not obtained financing. Whatever delay had been caused by defendants' repudiation, which lasted all of thirteen days (September 14 to 27), surely could not be the cause of her inability to obtain financing nearly sixty days past the October 6 deadline.
¶ 71 And more to the point, we can think of no reason why Freeman could not have continued to pursue financing while the status of the contract was in flux during those thirteen days; Freeman has given us no reason why that would be the case; and most notably, the affidavits of the three loan officers show without contradiction that (1) the loan-approval process was taking place during that window of time and (2) no uncertainty in the status of the sales contract had anything whatsoever to do with their rejection of her loan application.
¶ 72 We finally note the claim in Freeman's affidavit that "After the termination of the Contract, the Seller refused access to the property so that the appraiser could conduct an appraisal of the property." Defendants say that this allegation could not possibly have been from Freeman's personal knowledge, nor does she claim to have such knowledge. Indeed, say defendants, nowhere in the affidavit does Freeman claim to have personal knowledge of any of the facts she alleges. See Orr, 2018 IL App (4th) 170469, ¶¶ 61, 79 (affidavits in support of summary judgment must be made on personal knowledge).
¶ 73 That is all true, but we would add more simply that none of the denials of financing Freeman received had anything to do with their inability to inspect the property to perform an appraisal. On that there can be no dispute. Freeman did not contest or contradict those loan officers' affidavits in any way. And if there were other lenders out there who encountered this problem with inspecting the property, it was Freeman's obligation to present that counterevidence to us. Nothing stopped her from doing so.
¶ 74 Had Freeman been able to present evidence that she was able to secure financing at any time, we would be open to the notion that the wrench defendants threw into the matter with their repudiation might have contributed to her failure to meet the October 6 deadline. But nearly sixty days later, she still could not show that she was able to get financing. And none of the loan officials attributed denials to any problems that could have possibly been caused by defendants. So any notion that a thirteen-day delay was responsible is a non-starter. Regardless of any deadline, Freeman could not present any evidence that she was able to perform her loan-approval obligation under the contract. She is thus not entitled to specific performance. Summary judgment in favor of defendant was appropriate.
¶ 75 II. Award of Fees
¶ 76 We now turn to the question of whether defendants, as the prevailing party, were entitled to contractual attorney fees. Freeman argues that they were not, as the original fee-shifting language in the contract was amended-and eliminated-by the September 7 modification letter to which Freeman agreed. Defendants say the language of the September 7 letter did not override the original fee-shifting language because it did not conflict with, nor was it inconsistent with, their right to attorney fees. This is a dispute over contractual language, a question of law we review de novo. Gallagher v. Lenart, 226 Ill.2d 208, 219 (2007).
¶ 77 Where possible, we give the words in a contract their natural and ordinary meaning. Premier Electrical Construction Co. v. American National Bank of Chicago, 276 Ill.App.3d 816, 828 (1995). In doing so, we assume that each provision was inserted deliberately and must give it effect. Kasper v. McGill Management Inc., 2019 IL App (1st) 181204, ¶ 39. We will not interpret a contract in a way that renders provisions meaningless. Thompson v. Gordon, 241 Ill.2d 428, 442 (2011).
¶ 78 Section 28 of the contract, entitled "Performance," originally provided: "In any action with respect to this Contract, the Parties are free to pursue any legal remedies at law or in equity and the prevailing party in litigation shall be entitled to collect reasonable attorney fees and costs from the non-prevailing party as ordered by a court of competent jurisdiction."
¶ 79 The September 7 letter, proposed by defendants and accepted by Freeman, amended this provision as follows:
"Seller and Buyer agree that in the event of a default by either party, the other party shall, prior to taking any such action as may be available to it, and except as otherwise expressly provided herein, provide written notice to the defaulting party stating the default and giving the defaulting party three (3) business days within which to cure such default. The non-defaulting party shall not be required to tender performance to the defaulting party as a condition precedent to holding the defaulting party in default. No notice of default shall be required if the default is the failure to close on the sale of the property on the Closing Date. If Seller defaults in the performance of its obligations hereunder[,] Buyer may at its option elect to (a) receive a full refund of the earnest money upon receipt of which by Buyer this contract shall terminate and neither party shall have any liability hereunder, or (b) seek specific performance of this agreement. If Buyer defaults in the performance of its obligations hereunder[,] Seller may retain the Earnest Money which shall be automatically forfeited by the Buyer and payable to the beneficiary of the Seller Trust as both Seller and Buyer agree that damages are difficult to ascertain, and the earnest money represents a reasonable and fair estimation of Seller's
damages as liquidated damages and shall be Seller's sole and exclusive remedy."
¶ 80 As a final but critical caveat, the September 7 letter explained, in bolded and underlined text, that "The terms of this letter as agreed shall supersede any conflicting or inconsistent terms contained in the Contract."
¶ 81 So the question is whether the language in the September 7 modification conflicted with, or was inconsistent with, the original language in section 28, which allowed for attorney fees to the prevailing party. The court ruled that there was no conflict based on its reading of the language. The court also noted that Freeman had admitted, in her verified complaint, that the contract contained a valid fee-shifting provision.
¶ 82 In Freeman's view, the September 7 modification sharply limited the available remedies, only allowing the forfeiture of earnest money as "Seller's sole and exclusive remedy," and thus did not allow for the award of fees to the prevailing party. In effect, Freeman equates a "remedy" with an award of attorney fees. Outside of this contract, we could probably have a lively debate on that point. Some statutes provide for the award of attorney fees to a prevailing party and could be considered part of a remedy; it is least a debatable proposition.
¶ 83 But not so in this contract, our only concern here. We agree with defendants and the trial court that the original contractual language in section 28 made a distinction between "remedies" and attorney fees. Again, section 28 permitted the parties "to pursue any legal remedies at law or in equity and the prevailing party in litigation shall be entitled to collect reasonable attorney fees and costs from the non-prevailing party as ordered by a court of competent jurisdiction." (Emphasis added.)
¶ 84 The September 7 modification made changes to the available remedies, limiting the causes of action they could seek and the damages they could recover. But the modification contained no language abrogating the prevailing party's right seek to attorney fees in such an action. Given the distinction made in the original contract between remedies and fees, and the absence of any mention of fees in the September 7 modification letter, we see no conflict between the original fee-shifting language and the modification that limited only the parties' available remedies at law or equity. We thus affirm the trial court's ruling that an award of attorney fees in this matter was warranted under the terms of the contract.
¶ 85 III. Cross-Appeal
¶ 86 We now turn to defendants' cross-appeal. The circuit court, having agreed with defendants that they were entitled to fees generally, then agreed with Freeman that certain billing entries should be disallowed. Specifically, Freeman challenged entries from September 20-24, 27, 29, and October 22. One of the reasons the court struck these entries was that "Defendants' entries on these dates constitute impermissible block billing." The court found that "each of these entries include multiple different activities (emailing, phone conversations, research, analysis, reviewing pleadings, drafting discovery, etc.) within a single entry with no indication as to how much time was spent on each activity."
¶ 87 Although defendants tried to rehabilitate the billing entries, the court found their affidavit was not credible, as it "was not made contemporaneously with the billing entries and was not a record maintained during the litigation, but was created solely in response to Plaintiff's challenge to Defendants' Fee Petition." Defendants challenge this ruling in their cross-appeal.
¶ 88 The party seeking attorney fees bears the burden of presenting sufficient evidence to support the reasonableness of those fees. Harris Trust and Savings Bank v. American National Bank and Trust Company of Chicago, 230 Ill.App.3d 591, 595 (1992). "A properly supported fee petition must specify the services performed, by whom, the time expended and the rate charged." Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 102. A critical consideration is whether the fee petition contains contemporaneous, detailed entries describing the services rendered. Id. ¶ 103.
¶ 89 Determining the reasonableness of attorney fees rests in the sound discretion of the trial court. Sampson v. Miglin, 279 Ill.App.3d 270, 281 (1996). We will not reverse a judgment on attorney fees unless we determine that the fee award was" 'so inadequate as to amount to a clear abuse of discretion by the court.'" Id. (quoting Warren v. LeMay, 142 Ill.App.3d 550, 582 (1986)). A court abuses its discretion when no reasonable person would adopt the view of the trial court. Fennell v. Illinois Central Railroad Co., 2012 IL 113812, ¶ 21. The abuse-of-discretion standard is "the most deferential standard of review-next to no review at all." In re D.T., 212 Ill.2d 347, 356 (2004).
¶ 90 "Block billing" refers to a time entry that combines several individual tasks without specifying the amount of time spent on each task. See, e.g., Gibson v. City of Chicago, 873 F.Supp.2d 975, 986 (N.D. Ill. 2012). For example, one time entry might list multiple discrete tasks-legal research, telephone calls, email correspondence with co-counsel, and a court appearance-with one time entry of 4.2 hours without specifying the amount of time spent on each component part.
¶ 91 As defendants are quick to note, there is no per se ban on block billing. See Sampson, 279 Ill.App.3d at 281-282 ("While many entries included some aggregation of services, aggregation alone is not enough to require reversal of an award of fees."); Prior Plumbing and Heating Co. v. Hagins, 258 Ill.App.3d 683, 689 (1994) (no established per se rule). But doing so runs the risk that a trial court might deem the entry insufficiently detailed to award fees. See, A.L. Dougherty Real Estate Mgmt. Co., LLC v. Su Chin Tsai, 2017 IL App (1st) 161949, ¶ 50 (court did not abuse discretion in finding that certain block-billed entries were insufficiently detailed and thus disallowing those fees); Kaiser v. MEPC American Properties, Inc., 164 Ill.App.3d 978, 988 (1987) (noting that it was "impossible to determine exactly what amount of time was expended on each task listed because in most instances, the time for all work performed by an attorney on a given day was aggregated into a single hourly total for that day. Consequently, there is no completely objective manner by which to determine the reasonableness of the charges.").
¶ 92 We should also caution that, given the highly deferential standard of review on this question, comparisons to other cases are not always as helpful as they might appear. Defendants cite decisions where block-billed entries were compensated in the fee award, but in those cases the reviewing court merely refused to find that the trial court abused its discretion in allowing those fees. See Sampson, 279 Ill.App.3d at 281-282; Prior Plumbing, 258 Ill.App.3d at 68889; Harris Trust, 230 Ill.App.3d at 595-96.
¶ 93 Here, the trial court deemed the block-billed entries insufficiently detailed to warrant an award of fees for those entries. In some cases, as defendants note, an entire day was removed from the fee award. Defendants argue that, at a minimum, partial compensation was warranted. They write that "[n]o Illinois case or federal case applying Illinois law has ever held that attorney time for work performed on a given day is wholly non-compensable for the entire day solely because all tasks performed on the case by a particular attorney on that day are aggregated together with a single total for the day."
¶ 94 But of course no such decision exists. There is no bright-line rule here. Each case is unique. The court takes into account many factors, including "the skill and standing of the attorney employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation." Plambeck v. Greystone Mgmt. &Columbia National Trust Co., 281 Ill.App.3d 260, 273 (1996). And quite obviously, the specificity of the time entries submitted plays an integral role. Here, the court found the block-billed entries insufficiently detailed.
¶ 95 For example, on October 22, 2021, the petition sought 3.2 hours for "Reviewed documents produced today by Rocket Mortgage and exchange of e-mails re: same and re: deficiencies in production." Defendants insist that this is a single task and does not need to be separated out. But compare the stark difference between that billing entry and another one just two days earlier, where defendants sought 2.6 hours for:
"Phone conversation w/ Steve Calk (0.1); exchange of e-mails w/ Meg Sauser (0.1); reviewed documents produced by The Federal Savings Bank (0.3); drafted motion for expedited briefing schedule (0.2); worked on summary judgment motion and supporting affidavits (1.1); reviewed documents produced by Stone, Pogrund &Korey (0.5); e-mail to Judge Atkins' law clerk (0.1); phone conversation w/ Judge Atkins' clerk re: entry of substitution of judge order (0.1); phone conversation w/ John Mawicke (0.1).
¶ 96 Nor did the trial court limit its criticism to the block-billing alone, also noting the lack of specificity of entries within the blocks:
"Each of these entries include multiple different activities (emailing, phone conversations, research, analysis, reviewing pleadings, drafting discovery, etc.) within a single entry with no indication as to how much time was spent on each activity.
Additionally, the 8 billing entries lack sufficient detail. For example, many entries merely state 'phone conversation w/ Meg Sauser,' 'exchange of text messages w/ Steve Calk,' or
'e-mail to Dean Lurie, including legal research therefor' without any indication of the topic of the conversations or substance of the research conducted from which the Court could determine the reasonableness of the entries or whether and how the work performed was related to the defense of this litigation." (Emphasis added.)
¶ 97 We cannot say that no reasonable person would agree with the trial court. Nor did the court abuse its discretion in finding that counsel's non-contemporaneous affidavit failed to correct these failures. As noted, contemporaneous records are a critical component of fees petitions. Young, 2015 IL App (1st) 131887, ¶ 10. While attorneys can overcome their absence by presenting other evidence of a fee's reasonableness (In re Marriage of Shinn, 313 Ill.App.3d 317, 323 (2000)), the court found that the affidavit only partially rectified the problem; it still failed to "unbundle any of the time entries or cure the block billing issues within those entries." ¶ 98 The record shows that the court carefully reviewed the time entries and explained its reasoning in a ten-page memorandum opinion. The court rejected many claims raised by Freeman and agreed with a few. Overall, the court awarded $45,018.72 in attorney's fees and costs to defendants out of the $56,575.05 that defendants sought-roughly 80 percent of its fees. Given this result and given the court's detailed reasoning, we cannot say that no reasonable person would adopt the trial court's view. We thus uphold this ruling.
¶ 99 CONCLUSION
¶ 100 The judgment of the circuit court is affirmed.
¶ 101 Affirmed.