Background
Potomac Group contracted to sell 25 vacant residential lots in Olympia Fields for $750,000 to Brian Sak or his nominee, with David Pezzola signing for the buyer and $50,000 placed in escrow. Potomac did not yet own the lots, but had a separate agreement to buy them from their owner, Otoniel Sanchez. The buyers canceled the scheduled March 21, 2019 closing while seeking different lots.
The parties then pursued a proposed April transaction involving different lots. Pezzola later asserted that he terminated that agreement because he could not obtain financing and sought return of the $50,000 deposit. Potomac sued for breach of the March contract; Pezzola counterclaimed for the deposit and contractual fees. The Cook County circuit court entered summary judgment for Pezzola, ordered return of the deposit, and awarded $136,016.21 in fees and costs.
The Court’s Holding
The appellate court reversed summary judgment for Pezzola on Potomac’s complaint. A real-estate seller need not own the property when the contract is executed; the pertinent question was whether Potomac could have conveyed title at the scheduled closing. Because the buyers canceled before Potomac’s performance was due, and the record did not conclusively establish that Potomac could not have performed on March 21, factual issues remained.
The court affirmed denial of Potomac’s own summary-judgment motion because factual questions remained about whether Potomac waived or excused the buyers’ cancellation by continuing negotiations over different lots. It also reversed summary judgment on Pezzola’s counterclaim, finding unresolved issues about the parties’ respective breaches and the April contract’s validity and relationship to the March contract. The fee award was vacated as premature.
Key Takeaways
- A seller’s lack of title when a real-estate contract is signed does not itself establish breach.
- Cross-motions for summary judgment do not eliminate genuine disputes of material fact.
- Contractual attorney fees cannot be finally awarded while the underlying breach claims remain unresolved.
Why It Matters
The decision underscores that courts must focus on whether a seller could perform when performance was due, not on later events, when assessing an alleged failure to convey title. It also preserves factual disputes over anticipatory breach, waiver, earnest money, and the parties’ later attempt to restructure the transaction.