Real Estate Law

In a mortgage foreclosure action involving a deceased mortgagor, a beneficiary of the decedent’s estate brought a motion to vacate the judgment of foreclosure and order approving the sale of the home, arguing that she was not properly served. The plaintiff argued that the beneficiary was a permissive, rather than a necessary, defendant. The appellate court affirmed in part and reversed in part, finding that the beneficiary was entitled to have the judgment vacated as to her because she was never properly served but that because she was a non-necessary party and because the estate was properly served, the trial court was properly vested with jurisdiction to foreclose on the mortgage and that the beneficiary failed to demonstrate an interdependence of the parties’ rights such that the judgment must be vacated as to all of them. (ODEN JOHNSON and NAVARRO, concurring)

Petitioner, an investment company, appealed after the trial court granted a motion by respondent that vacated a prior order issuing a property tax deed to the petitioner. The trial court vacated the property tax deed after finding that respondent’s due process rights were violated and that the petitioner committed fraud. The appellate court reversed and remanded, finding that petitioner was not required to provide notice to a prior tax purchaser and, as a result, due process did not require petitioner to identity who had previously paid taxes on the property. The appellate court further held that the circuit court erred in finding that petitioner committed fraud because there were no facts in the record that supported a finding that petitioner failed to disclose any information known to it at the time of the prove-up hearing. (BRENNAN, concurring and McDADE, concurring in part and dissenting in part)

Defendants were found liable for breach of contract and violation of the Uniform Fraudulent Transfer Act in connection with a failed real estate contract and the trial court entered an award in the amount of earnest money that the plaintiff had paid pursuant to the contract. The trial court denied plaintiff’s request for damages due to lost profits, punitive damages, and specific performance and plaintiff appealed, arguing that the trial court erred in failing to award these damages. The appellate court affirmed in part and reversed in part, finding that the trial court erred in finding that punitive damages were not available under the UFTA claims but that the trial court properly denied damages based on lost profits as plaintiff failed to establish such damages with reasonable certainty. The appellate court remanded for calculation of new damages consistent with the opinion. (VAN TINE and D.B. WALKER, concurring and specially concurring)

Plaintiff, a member and manager of a condominium building, filed a one-count complaint against defendants, owners of one condo unit, for specific performance, seeking a court order requiring the defendants to fulfill the terms of a sales contract plaintiffs entered into to sell the condominium building. The circuit court granted summary judgment in favor of the defendants and plaintiff appealed. The appellate court affirmed, finding that the meeting where the sales contract was approved was invalid for lack of proper notice and that plaintiff failed to demonstrate that there was any genuine issue of material fact regarding the defendants’ affirmative defenses that defeated plaintiff’s complaint for specific performance. (C.A. WALKER and TAILOR, concurring)

Plaintiff filed a lawsuit alleging that the defendant’s proposed construction of a gymnasium annex to an existing elementary school violated the restrictive covenants on the land of the proposed building site. Defendant filed a motion to dismiss and the trial court dismissed the complaint with prejudice finding that it was barred by res judicata because the plaintiff previously had sought to prevent the construction of the elementary school on the same grounds. Plaintiff appealed, arguing that the trial court erred when it found res judicata applied to the current lawsuit, in dismissing the complaint with prejudice, in dismissing the complaint without ruling on a zoning ordinance violation claim in a proposed amended complaint, and in denying the plaintiff’s motion for reconsideration. The appellate court affirmed, finding that the trial court did not err in dismissing the complaint on res judicata grounds, explaining that construction of the annex was an extension of the decision the circuit court previously made regarding the legality of construction of the school. (MITCHELL and MIKVA, concurring)