Ocean Atlantic Devmt v. Aurora Christian , 322 F.3d 983 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2239
OCEAN ATLANTIC
DEVELOPMENT CORPORATION,
Plaintiff-Appellant,
v.
AURORA CHRISTIAN SCHOOLS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8160—Charles P. Kocoras, Chief Judge.
____________
ARGUED NOVEMBER 26, 2001—DECIDED MARCH 14, 2003
____________
No. 01-3400
OCEAN ATLANTIC CHICAGO CORPORATION,
Plaintiff-Appellant,
v.
DALE KONICEK, WAYNE KONICEK,
LOIS KONICEK, and ISENSTEIN-
PASQUINELLI, L.L.C.
Defendants-Appellees.
____________
2 Nos. 01-2239 & 01-3400
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 00 C 5677—James F. Holderman, Judge.
____________
SUBMITTED JANUARY 23, 2002—DECIDED MARCH 14, 2003
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
ROVNER, Circuit Judge. In these two cases, which we
have consolidated for decision, the Ocean Atlantic De-
velopment Corporation and the Ocean Atlantic Chicago
Corporation (“Ocean Atlantic”) tendered letter offers to
the owners of undeveloped land that Ocean Atlantic
wished to purchase and the owners signed those offers.
Each offer expressly anticipated that the parties would,
in due course, sign a contract for the purchase and sale
of the properties. As it turned out, however, the ensuing
negotiations did not produce a final contract in either
case. From the property owners’ perspective, this meant
that they had no obligation to sell their properties to
Ocean Atlantic. But Ocean Atlantic, believing otherwise,
filed suit, contending that the signed offers themselves
constituted binding agreements that entitled the company
to purchase the properties on the terms stated in those
offers. In Ocean Atlantic’s suit against Aurora Christian
Schools (“Aurora Christian”), now-Chief Judge Kocoras
granted summary judgment in favor of Aurora Christian,
reasoning that the unambiguous language of the offer
revealed no intent by the parties to be bound by its
terms. Subsequently, in Ocean Atlantic’s suit against
Dale, Wayne, and Lois Konicek and Isenstein-Pasquinelli,
L.L.C., Judge Holderman adopted Judge Kocoras’s rea-
soning, likewise concluded that the offer did not amount
to a binding agreement, and granted summary judgment
in favor of the defendants on that basis. Because we
Nos. 01-2239 & 01-3400 3
agree that in neither instance did the offer constitute a
binding agreement to sell the land to Ocean Atlantic, we
affirm.
I.
A. Aurora Christian Schools
Ocean Atlantic is a real estate development company
that is incorporated in Virginia and maintains its prin-
cipal place of business in Alexandria, Virginia. Ocean
Atlantic has purchased and developed land in DuPage,
Kane, and Will Counties—three of the suburban “collar”
counties that surround Chicago and Cook County.
In April 1999, Ocean Atlantic commenced discussions
with Aurora Christian about purchasing land that Aurora
Christian owned in Kane County near Aurora, Illinois.
Aurora Christian is an Illinois not-for-profit corpora-
tion that provides Christian-oriented education to stu-
dents in kindergarten through the twelfth grade. By let-
ter offer dated June 9, 1999, Ocean Atlantic proposed to
buy 116 acres of land from Aurora Christian at $35,000
per acre, for a total of $4,060,000. Aurora Christian App.
A117.1 Aurora Christian rejected the offer and, among
1
Nearly all of the pertinent documents, transcripts, and other
record evidence in these appeals have been collected in the sep-
arate appendices filed by Ocean Atlantic and Aurora Christian
in No. 01-2239 and by Ocean Atlantic in No. 01-3400. For ease
of reference, we shall for the most part cite the appendices
themselves as needed. References to the consecutively pagi-
nated appendices filed by Ocean Atlantic and Aurora Christian
in No. 01-2239 shall be indicated by “Aurora Christian App.
A___,” whereas references to the appendix filed by Ocean Atlantic
in No. 01-3400 shall be indicated by “Konicek App. A___.” The
district judges’ opinions, along with documents not included
(continued...)
4 Nos. 01-2239 & 01-3400
other things, sought an increase in the per-acre purchase
price as well as a decrease in the acreage to be sold. On
August 2, Ocean Atlantic submitted a revised offer to
purchase 78 acres of land from Aurora Christian at $42,000
per acre for a total of $3,276,000. Aurora Christian App.
A125. Aurora Christian again rejected the offer, still de-
manding a higher price. Three days later, on August 5,
Ocean Atlantic tendered yet another offer to Aurora
Christian proposing a per-acre purchase price of $45,000,
for a total of $3,510,000. Aurora Christian App. A131.
Aurora Christian found the third offer to its liking and on
August 6, 1999, Aurora Christian President Paul House
signed the offer. Aurora Christian App. A134. Later that
same day, Aurora Christian Treasurer Keith Gibson
faxed a copy of the signed offer to Ocean Atlantic along
with a cover letter stating that “your captioned letter
offer has been accepted” and “we look forward to an excel-
lent relationship.” Aurora Christian App. A141.
The opening sentence of the August 5 offer that Aurora
Christian signed indicated that “[t]his Letter Offer . . . will
serve to set forth some of the parameters for an offer
from Ocean Atlantic Development Corp.” to purchase
from Aurora Christian the 78 acres of land identified in
the letter’s caption and in an exhibit attached to the
letter. Aurora Christian App. A131. The offer then pro-
ceeded to identify the following parameters:
(1) Ocean Atlantic would purchase the property at a
per-acre price of $45,000 for a total of $3,510,000,
subject to verification of the total acreage.
1
(...continued)
in these appendices, shall be referenced by their record num-
ber designations. “Aurora Christian R.___” shall refer to opin-
ions and documents in No. 01-2239, and “Konicek R.___” shall
refer to opinions and documents in No. 01-3400.
Nos. 01-2239 & 01-3400 5
(2) Ocean Atlantic would pay for the land wholly in
cash on the closing date.
(3) The purchase of the land would be subject to a 90-
day inspection period that would commence on
the date that the parties signed a contract of
purchase and sale. During that inspection period,
Ocean Atlantic would have the right to enter
the property in order to conduct soil, environmen-
tal, engineering, and other studies in order to
determine whether the property was suitable for
Ocean Atlantic’s intended use.
(4) Within five business days after the parties exe-
cuted a contract of purchase and sale, Ocean At-
lantic would deposit into escrow $25,000 in ear-
nest money toward the purchase of the property.
In the event that Ocean Atlantic decided to
terminate the contract during the inspection
period, the deposit would be returned to Ocean
Atlantic. However, if Ocean Atlantic elected upon
expiration of the inspection period to proceed with
the acquisition of the property, it would increase
the earnest money deposit to a total of $100,000.
This deposit was to serve as “full and complete
liquidated damages” to Aurora Christian in the
event that Ocean Atlantic defaulted on any of its
obligations under the contract of purchase and
sale.
(5) Upon satisfactory completion of the inspection
period, Ocean Atlantic would have a six-month
“entitlement period” in order to make arrange-
ments with the appropriate municipal author-
ities for (a) rezoning and final plat approval for
development of the property, (b) sufficient sani-
tary sewer and water capacity, and (c) necessary
on- and off-site public improvements. The letter
6 Nos. 01-2239 & 01-3400
provided for a 60-day extension of the entitlement
period in the event that Ocean Atlantic had
completed its applications for rezoning and final
plat approval within six months but was still
waiting for approval or denial by local authori-
ties. Ocean Atlantic also had the right to pur-
chase additional 30-day extensions of the entitle-
ment period for $5,000 each if it was still await-
ing approvals.
(6) Closing of the purchase and sale was to occur
within 30 days after Ocean Atlantic secured an-
nexation, rezoning, and final plat approval for
the property. Title to the property “shall be mar-
ketable and good of record and in fact and insur-
able as such at ordinary rates by a recognized
title insurer free and clear of all liens and encum-
brances or unacceptable exceptions.”
(7) Ocean Atlantic had the right of first refusal with
respect to the purchase of two additional, adja-
cent parcels of Aurora Christian property iden-
tified in the exhibit to the letter.
(8) Aurora Christian represented that it “will not
further encumber the Property or negotiate, or
agree to, its sale,” that it would make no com-
mitments or representations to other property
owners or governmental authorities that would
bind Ocean Atlantic or interfere with its ability to
develop the property, and that it had no notice
of any pending or threatened litigation, petition,
proceeding or zoning application that would in-
terfere with Ocean Atlantic’s development plans.
(9) Ocean Atlantic and Aurora Christian warranted
to one another that neither had a deal with any
agent, broker, or finder other than the two brok-
ers identified in the letter. Aurora Christian
Nos. 01-2239 & 01-3400 7
would pay a commission to those two brokers by
separate agreement upon closing.
(10) “Upon such acceptance and return of this Offer,
Purchaser shall prepare and present to the Sell-
er a Contract of Purchase and Sale in accor-
dance with the terms and provisions hereof.
Purchaser and Seller shall work diligently to
execute the Contract within Thirty (30) days of
the execution of this Offer.”
(11) The offer would become “null and void” if not
executed by both Ocean Atlantic and Aurora
Christian within 10 days.
Aurora Christian App. A131-34. Because it is the Au-
gust 5 offer that Ocean Atlantic contends amounts to a
binding agreement for the purchase and sale of Aurora
Christian’s property, we have reproduced the full text of
the letter at Appendix A to this opinion.
After Aurora Christian signed the offer, Ocean Atlantic
set to work drafting a contract for the purchase and sale
of the land as called for in the offer. On August 25, 1999,
Ocean Atlantic tendered a proposed contract to Aurora
Christian, but the discussion and drafting process con-
tinued as the parties attempted to resolve outstanding
issues. Aurora Christian App. A148. On October 29, Ocean
Atlantic transmitted a final revised draft of the proposed
contract to Aurora Christian. Aurora Christian App.
A168. The terms of that draft were for the most part
consistent with the parameters identified in the August
5, 1999 letter, but the draft contract also spelled out the
terms of the purchase and sale in considerably greater
detail. For example, the draft contract disclosed that it
was Ocean Atlantic’s intent to develop 30 acres of town-
homes and 45 acres of single-family homes on the prop-
erty and called for the parties to jointly prepare a master
plan reflecting that and all other intended uses for the
8 Nos. 01-2239 & 01-3400
property. Aurora Christian App. A172-73 ¶ 5(a). Provisions
were made for the examination and transfer of title to
the property. Aurora Christian App. A176-78 ¶ 7. Ocean
Atlantic and Aurora Christian each made a number of
representations, warranties, and covenants not included
in the offer. Aurora Christian App. A180-83 ¶¶ 10, 11.
Additional provisions also were included for the alloca-
tion of closing costs, compliance with governmental or-
ders, defaults by either Ocean Atlantic or Aurora Chris-
tian, the possibility of condemnation, notices between the
parties, and some 16 other miscellaneous topics. Aurora
Christian App. A183-91 ¶¶ 14-17, 19, 21, 23. And in at
least one respect, the terms of the draft contract also
departed from those of the offer. Whereas the offer pro-
vided that upon expiration of the 90-day inspection peri-
od, the increased earnest money deposit of $100,000
would become non-refundable (Aurora Christian App.
A132 ¶ 4(b)), the October contract created an exception
allowing a refund of the $100,000 to Ocean Atlantic in
the event that Ocean Atlantic extended the entitlement
period but failed to obtain annexation and final plat
approval from local authorities and on that basis de-
cided to terminate the contract. Aurora Christian App.
A176 ¶ 6.2. Ultimately, Aurora Christian refused to sign
the contract.
On December 15, 1999, Ocean Atlantic filed a verified
complaint against Aurora Christian in the district court
invoking the court’s diversity jurisdiction. Aurora Chris-
tian App. A14. Ocean Atlantic asserted that the signed
August 5 offer “unambiguously contains all of the ele-
ments of the terms of parties’ bargain” (Aurora Christian
App. A16 ¶ 8) and as such constituted a binding agree-
ment for the purchase and sale of Aurora Christian’s
property. Aurora Christian had breached that agreement,
according to Ocean Atlantic, by failing to make a good
faith effort to arrive at a final contract of purchase and
Nos. 01-2239 & 01-3400 9
sale and by refusing to execute that contract even after
all apparent points of disagreement between the parties
had been resolved. Aurora Christian App. A19 ¶ 19. By
way of relief, Ocean Atlantic asked the district court to
enter (1) a declaratory judgment holding the August 5
offer to constitute a valid and binding contract for the
purchase and sale of the property, (2) a judgment of spe-
cific performance requiring Aurora Christian to fulfill its
obligations under the August 5 offer by, inter alia, finaliz-
ing and executing a final contract for the purchase and
sale of the property, (3) preliminary and permanent in-
junctive that would bring an end to Aurora Christian’s
refusal to execute a final contract and that would pro-
hibit Aurora Christian from selling or taking other steps
with respect to the property that might prevent it from
honoring its purported obligations under the August 5
offer, and (4) alternatively, money damages for breach of
contract in the event that equitable relief culminating
in the sale of the land to Ocean Atlantic were not possible.
Aurora Christian App. A19-23. The suit was assigned to
Judge Kocoras.
Contending that the material facts were not in dispute,
Ocean Atlantic subsequently filed a motion for partial
summary judgment asserting that the August 5, 1999
offer amounted to a “binding, fully enforceable contract”
(Aurora Christian App. A277) for the purchase and sale
of Aurora Christian’s property. Aurora Christian App.
A268-78. Aurora Christian opposed the motion, contending
that “the August 5 Letter was merely an offer to make
an offer and the language of the Letter clearly demo-
nstrates that the parties did not intend the August 5
Letter to be a binding enforceable contract . . . .” Aurora
Christian App. A195. In addition to the language of the
offer itself, Aurora Christian also cited the circum-
stances surrounding the parties’ negotiations, including
the conduct of the parties both prior to and after the Au-
10 Nos. 01-2239 & 01-3400
gust 5 letter, as evidence that the parties did not intend
to be bound by the offer. See Aurora Christian App. A199-
203. Judge Kocoras subsequently denied Ocean Atlantic’s
motion in a written opinion. Aurora Christian R.17. In
relevant part, that opinion stated:
[W]e find that the Letter contains ambiguities that
present a disputed fact precluding summary judg-
ment. Specifically, we believe factual questions re-
main as to whether Aurora Christian intended to be
bound by the Letter. The very first sentence of the
Letter undermines Ocean Atlantic’s contention that it
was a definitive offer. That sentence reads, “This Letter
Offer (‘Offer’) will serve to set forth some of the para-
meters for an offer from the Ocean Atlantic Develop-
ment Corp. (‘Purchaser’) to purchase the above-refer-
enced property . . . .” (Pl. Ex. B. at 1) (emphasis added).
One could reasonably construe these words as indicat-
ing that Ocean Atlantic may have intended to put
together a complete offer at some later time but
stopped short of doing so in the Letter.
In addition, the Letter appears to omit several crit-
ical items that one would expect to find in a definitive
offer pertaining to a multi-million dollar land sale
transaction. See Chicago Investment Corp. v. Dolins,
481 N.E.2d 712, 715-16 (Ill. 1985) (upholding trial
court’s conclusion that writing’s omission of several
items normally included in real estate contracts, as
well as other factors, indicated that writing was unen-
forceable). The Letter does not broach the topic of a
consummation date for the sale, nor does it refer to
tax prorations or the form of conveyance. In addition,
the Letter makes no prospective purchaser or seller
warranties and only limited seller representations
related to zoning. One would expect to find these
terms set forth in a transaction of this magnitude. Like
Nos. 01-2239 & 01-3400 11
the first sentence of the letter, these omissions raise
factual questions as to whether Aurora Christian
intended to be bound when its representative signed
the Letter.
Aurora Christian R.17 at 4-5. At a hearing conducted on
the day that he issued his written opinion, Judge Kocoras
informed the parties’ counsel that “you are facing a trial
because I think the case deserves an elucidation of evi-
dence, both whatever the writings were and anything
that attends those writings, to decide whether you have
a binding contract.” Aurora Christian App. A57. “[T]he
material facts are in dispute,” he emphasized. Aurora
Christian App. A58.
Several months later, after the parties had engaged in
limited, written discovery, Aurora Christian itself asked
the court to enter summary judgment, positing that, as
a matter of law, the offer did not amount to a binding
and enforceable contract. Aurora Christian App. A213.2
In the first instance, Aurora Christian argued, the letter
“omits or lacks certainty as to many material terms
which are essential to a complex, multi-million dollar
commercial real estate transaction.” Aurora Christian
App. A214. These included terms relating to the dates
on which the sale would be consummated and Ocean
Atlantic would take possession of the property, the prora-
tion of taxes, the form of conveyance to Ocean Atlantic,
purchaser and seller warranties, forms of notice to the
parties, and a guarantee title policy. Aurora Christian
App. A216-22. Secondly, in Ocean Atlantic’s view, the
letter did not manifest an intent by the parties to be
bound. The opening sentence of the letter, which noted
2
Aurora Christian made a number of alternative arguments
that we need not delve into here.
12 Nos. 01-2239 & 01-3400
that it served “to set forth some of the parameters for an
offer,” suggested that it was merely an offer to make an
offer rather than a binding agreement. Aurora Christian
App. A225. At the same time, the letter called for the
preparation of a formal contract of purchase and sale
and tied the sale of the property to the execution of that
contract. Aurora Christian App. A225-26. Subsequently
prepared drafts of the formal contract, and the continu-
ing negotiations attending those contracts, confirmed
that the offer did not amount to a binding agreement.
Aurora Christian App. A226-30.
Judge Kocoras granted Aurora Christian’s motion,
agreeing that “the collective or cumulative terms of the
Letter frustrate any notion of enforceability.” R.29 at 8.
Most important in the judge’s mind was that the terms
of the letter rendered the agreement for the purchase
and sale of the property contingent upon the execution of
a formalized contract.
Five provisions make this conclusion unambiguous.
First, Ocean Atlantic furnished no earnest money at
the time it submitted the Letter to Aurora Christian.
Nor was earnest money due if Aurora Christian elected
to sign the Letter. Rather, the earnest money was
due only upon execution of the purchase contract.
(Letter ¶ 4(a).) Second, the inspection period would
ensue only after the purchase contract was executed.
(Id. ¶ 3.) Third, because the six-month period during
which Ocean Atlantic would seek local government
approval for rezoning and final plat approval began
upon completion of the inspection period, it too was
contingent on the execution of a contract. (Id. ¶ 5.)
Fourth, because inspection and local government ap-
proval were prerequisites to closing, the closing too
was contingent upon the purchase contract. Fifth,
the default provision referred only to Ocean Atlantic’s
Nos. 01-2239 & 01-3400 13
obligations under the anticipated purchase contract,
not to any arising under the Letter. (Id. ¶ 4.)
R. 29 at 9. Furthermore, as the drafts of the never-exe-
cuted contract revealed, the letter offer itself lacked a
number of important terms that one would expect to find
in an agreement governing a transaction of this magnitude,
including a date for the consummation of the sale, provi-
sions for tax proration and the form of conveyance, and
warranties between the purchaser and seller. Id. at 10.
Finally, the language found in the opening sentence of
the letter “is the language of a preliminary negotiation
tool, not a definitive offer.” Id. at 10-11.
At a hearing called for the purpose of issuing his deci-
sion, Judge Kocoras explained why he had changed his
mind about the ambiguity of the August 5, 1999 offer.
Judge Kocoras indicated that after reviewing the parties’
conduct—in particular, the subsequent drafting of a
contract containing terms that the offer lacked—he revis-
ited the language of the offer and concluded that “neither
side ever intended this letter [offer] to be the final, defini-
tive agreement[—]that what was going to follow was
an elaborate document setting forth everything.” Aurora
Christian App. A115; see also id. at A114-15. Contrary to
his initial impression, then, he concluded that the offer
was not ambiguous. Based on the terms of the offer itself,
and in light of events that followed, he found the record
to be clear that the parties did not mean for the offer to
bind them. Aurora Christian App. A114.
B. The Koniceks
Approximately one year after it first proposed to buy
Aurora Christian’s property, Ocean Atlantic commenced
14 Nos. 01-2239 & 01-3400
negotiations with Dale, Wayne, and Lois Konicek3 to
purchase approximately 158 acres of farm land that they
owned in Kendall County, Illinois. By letter offer dated
April 20, 2000, Ocean Atlantic proposed to purchase the
property for a total of $3,768,000, or $24,000 per acre.
Konicek App. A39. That offer was not acceptable to the
Koniceks and they did not sign the letter. On April 26,
Ocean Atlantic submitted a revised offer which reflected
a higher purchase price of $25,000 per acre, for a total of
$3,925,000; this second offer also incorporated other
modifications that the Koniceks had requested. Konicek
App. A43. Again, however, the Koniceks declined the
offer, demanding a higher purchase price as well as other
changes to the offer. On May 4, 2000, Ocean Atlantic ten-
dered a third offer. This one proposed a total purchase
price of $3,976,200, or roughly $25,225 per acre4; other
modifications were also incorporated in this offer at the
Koniceks’ request. Once again, however, the Koniceks
held out for more money; their attorney also demanded
the inclusion of provisions regarding insurance coverage
and crop damage. On May 24, 2000, Ocean Atlantic tend-
ered a fourth offer which upped the proposed per-acre
price by $100 to $25,325, resulting in a total proposed
purchase price of $3,992,233; the requested provisions
for insurance coverage and crop damage were also in-
cluded in this offer. Konicek App. A55. Apparently, the
Koniceks were at last satisfied with these terms; they
signed the offer one week later. Konicek App. A59, 61.
3
Wayne and Lois Konicek are husband and wife. They held a
50 percent ownership interest in the property that Ocean Atlan-
tic wishes to buy, and Dale Konicek, Wayne’s brother, held
the other 50 percent interest in the property.
4
The offer itself indicates that Ocean Atlantic was offering to
buy the Koniceks’ property at a price of $25,325 per acre. Konicek
App. A49 ¶ 1. However, the total proposed purchase price of
$3,976,200 corresponds to a per-acre price of just under $25,225.
Nos. 01-2239 & 01-3400 15
Because Ocean Atlantic apparently employed a form
document for its offers, the terms of its May 24, 2000 offer
to the Koniceks were identical in many respects to the
August 5, 1999 offer that Ocean Atlantic made to Aurora
Christian. Thus, the opening sentence of the May 24 offer
states that “[t]his Letter Offer . . . will serve to set
forth some of the parameters for an offer from Ocean
Atlantic Chicago Corp.” to purchase the Koniceks’ land.
The letter went on to identify the following parameters:
(1) Ocean Atlantic would purchase the property for a
total of $3,992,233, subject to verification of the
total acreage and based upon a purchase price
of $25,325 per acre.
(2) Ocean Atlantic would pay for the land wholly in
cash on the closing date.
(3) The purchase of the land would be subject to a 90-
day inspection period that would commence on
the date that the parties signed a contract of pur-
chase and sale. During that inspection period,
Ocean Atlantic would have the right to enter the
property in order to conduct soil, environmental,
engineering, and other studies in order to deter-
mine whether the property was suitable for
Ocean Atlantic’s intended use.
(4) Within five business days after the parties exe-
cuted a contract of purchase and sale, Ocean
Atlantic would deposit into escrow $50,000 in
earnest money toward the purchase of the prop-
erty. In the event that Ocean Atlantic decided to
terminate the contract during the inspection
period, the deposit would be returned to Ocean
Atlantic. However, if Ocean Atlantic elected upon
expiration of the inspection period to proceed with
the acquisition of the property, it would increase
16 Nos. 01-2239 & 01-3400
the earnest money deposit to a non-refundable
total of $100,000 and instruct the escrow agent to
release $50,000 of the deposit to the Koniceks.
The $100,000 deposit was to serve as “full and
complete liquidated damages” to Aurora Chris-
tian in the event that Ocean Atlantic defaulted on
any of its obligations under the contract of pur-
chase and sale.
(5) Upon satisfactory completion of the inspection
period, Ocean Atlantic would have a six-month
“entitlement period” in which to make arrange-
ments with the appropriate municipal author-
ities for (a) rezoning and final plat approval for
development of the property, (b) sufficient sani-
tary sewer and water capacity, and (c) necessary
on- and off-site public improvements. The letter
provided for a 60-day extension of the entitlement
period in the event that Ocean Atlantic had
completed its applications for rezoning and final
plat approval within six months but was still
waiting for approval or denial by local authori-
ties. Ocean Atlantic also had the right to pur-
chase additional 30-day extensions of the entitle-
ment period for $5,000 each if it was still await-
ing approval.
(6) Closing of the purchase and sale was to occur
within 30 days after Ocean Atlantic secured an-
nexation, rezoning, and final plat approval for the
property. Title to the property “shall be market-
able and good of record and in fact and insurable
as such at ordinary rates by a recognized title
insurer free and clear of all liens and encum-
brances or unacceptable exceptions.”
(7) The Koniceks represented that they “[would] not
further encumber the Property or negotiate, or
Nos. 01-2239 & 01-3400 17
agree to its sale,” that they would make no com-
mitments or representations to other property
owners or governmental authorities that would
bind Ocean Atlantic or interfere with its ability
to develop the property, and that they had no no-
tice of any pending or threatened litigation,
petition, proceeding or zoning application that
would interfere with Ocean Atlantic’s develop-
ment plans; and that they, along with Ocean
Atlantic, would keep the terms of the offer confi-
dential.
(8) Ocean Atlantic and the Koniceks warranted to
one another that they had not dealt with any
agent, broker, or finder other than the two
individuals identified in the letter. Ocean Atlantic
would pay a commission to those two persons by
separate agreement upon closing.
(9) Ocean Atlantic, before initiating ingress or egress
to the property, would obtain liability insurance
in the amount of $1 million naming the Koniceks
as additional insured parties. The Koniceks, in
turn, would provide evidence of their own liabil-
ity coverage to Ocean Atlantic.
(10) In the event that the crops on the land were
damaged during inspection, Ocean Atlantic
would reimburse the Koniceks at a rate of $350
per acre, with the affected acreage to be deter-
mined by an independent surveyor.
(11) Ocean Atlantic agreed to cooperate with the
Koniceks to effect a “Like-Kind Exchange” as
defined by section 1031 of the Internal Revenue
Code, with the costs associated with that ex-
change to be borne by the Koniceks.
(12) “Upon such acceptance and return of this Offer,
Purchaser shall prepare and present to the
18 Nos. 01-2239 & 01-3400
Sellers a Contract of Purchase and Sale in ac-
cordance with the terms and provisions hereof.”
(13) The offer would become “null and void” if not ex-
ecuted by both Ocean Atlantic and the Koniceks
within 5 days.
Konicek App. A55-59. Because it is the May 24 offer that
in Ocean Atlantic’s view amounts to a binding agreement
for the purchase and sale of the Koniceks’ property, we
have reproduced the full text of the letter at Appendix B
to this opinion.
In a cover letter to Ocean Atlantic’s broker enclosing
the signed offer, the Koniceks’ attorney, Louis Neuendorf,
wrote that “[t]he inspection period, per the letter [offer],
commences from the date of the letter to-wit, May 31,
2000, and extends for a period of 90 days from said date,
or to August 31, 2000.” Konicek App. A61. Neuendorf
also enclosed evidence of the Koniceks’ current liability
coverage. Konicek App. A62.
After the Koniceks signed the May 24 letter, Ocean
Atlantic set about drafting a contract for the purchase
and sale of the land. On or about June 21, 2000, Ocean
Atlantic’s attorney, Kevin Gensler, forwarded a first
draft of the contract to the Koniceks. Konicek App. A64.
On July 12, 2000, Neuendorf, on the Koniceks’ behalf,
wrote a four-page letter to Gensler requesting some 20
revisions to the terms of the proposed contract. Konicek
App. A83. Gensler modified the proposed contract in
response to Neuendorf’s suggestions and returned a re-
vised draft to Neuendorf on or about August 2, 2000.
Konicek App. A87.
However, soon after the modified draft was sent to the
Koniceks’ attorney, the Koniceks received another offer
to purchase their property from Isenstein-Pasquinelli,
L.L.C., an Illinois corporation based in south-suburban
Chicago. On August 8, 2000, Neuendorf informed Gensler
Nos. 01-2239 & 01-3400 19
by letter that the Koniceks had received another offer for
their land that exceeded by more than $500,000 Ocean
Atlantic’s proposed purchase price. Konicek App. A108.
After outlining the other terms of the offer, Neuendorf
advised Gensler that if Ocean Atlantic “[would] enter
into a contract with the same terms and conditions as
the proposed contract of the other Purchaser, the Koniceks
would proceed to sell the property to your client.” Konicek
App. A108-09. One week later, Gensler wrote back to
Neuendorf rejecting the Koniceks’ invitation to sweeten
Ocean Atlantic’s offer:
The purchase price has been agreed upon by the par-
ties in the May 24, 2000 letter agreement. Ocean
Atlantic Chicago Corp. expects the Koniceks to ne-
gotiate in good faith and in compliance with the letter
agreement executed between all the parties. Paragraph
7A of the Agreement specifies that the Sellers will not
further [e]ncumber or negotiate for the sale of the
subject property. Please issue comments as to the lat-
est draft of the agreement submitted for your review.
Konicek App. A115. On the following day, August 16, 2000,
Neuendorf faxed a letter back to Gensler rejecting the
notion that the May 24 offer constituted a binding agree-
ment between the parties. Neuendorf wrote:
I do not consider a letter containing statements such
as “this letter will serve to set forth some of the para-
meters for an offer from Ocean Atlantic,” or that “pur-
chaser and sellers agree to keep the terms and condi-
tions, and all negotiations regarding this letter offer
confidential” to result in a binding agreement to sell
and purchase real estate.
Konicek App. A116 (emphasis in original). Neuendorf
also averred in the letter that when he had received the
May 24 offer, he had suggested to Gensler that rather
than having the Koniceks execute a letter of intent to
20 Nos. 01-2239 & 01-3400
sell the property, the parties should simply proceed di-
rectly to the preparation and execution of a real estate
contract. Id. But according to Neuendorf, Gensler had
insisted on having a signed letter of intent before he would
prepare a draft of the contract. Id. Gensler, who claims
never to have spoken with Neuendorf, denies that this
exchange ever took place. Konicek App. A130 ¶ 5, A131 ¶ 8.
Neuendorf reiterated that the Koniceks were prepared
to proceed with the sale to Ocean Atlantic provided that
Ocean Atlantic was prepared to match the terms of
the competing offer they had received, Konicek App. A116-
17, but Ocean Atlantic, believing that it had already had
a deal with the Koniceks, declined. Talks between the
parties came to an end, and Ocean Atlantic and the
Koniceks never executed the contract for the purchase
and sale of the Koniceks’ property that the May 24 offer
envisioned.
Lured by the more attractive offer, the Koniceks agreed
to sell their property to Isenstein-Pasquinelli. On August
21, 2000, the Koniceks and Isenstein-Pasquinelli exe-
cuted both a real estate sales contract and a rider to that
contract. Konicek App. A124. Isenstein-Pasquinelli was
aware that the Koniceks had signed Ocean Atlantic’s May
24 offer; and both parties anticipated that Ocean Atlantic
might file suit to enforce that offer. An addendum to the
sales agreement and rider, also executed on August 21,
provided:
The Seller [sic] has advised Purchaser that a letter
of intent was entered into with Ocean Atlantic but
no contract was ever executed, and that Seller has
legal right to enter this contract with Purchaser.
If Ocean Atlantic should sue seller then Purchaser
shall defend said lawsuit and pay costs of said defense
but shall not be responsible if there are damages
assessed against Seller. In the event such lawsuit is
Nos. 01-2239 & 01-3400 21
filed prior to time of closing then the time of closing
shall be extended to a date thirty days after final
adjudication of said lawsuit.
Konicek App. A128.
Ocean Atlantic filed suit against the Koniceks on Sep-
tember 15, 2000, seeking the same relief as to its May 24,
2000 offer to the Koniceks that it sought with respect to
the August 5, 1999 offer to Aurora Christian. The case
was assigned to Judge Holderman. Citing its contract to
purchase the property from the Koniceks, Isenstein-
Pasquinelli sought and obtained leave to intervene in the
suit. Ocean Atlantic subsequently amended its com-
plaint to include claims against Isenstein-Pasquinelli
for tortious interference with contract and tortious interfer-
ence with prospective economic advantage. Konicek R.14.
Isenstein-Pasquinelli promptly moved to dismiss those
claims, as well as all of the claims against the Koniceks,
arguing that the May 24 offer on its face did not consti-
tute an enforceable contract. Konicek App. A248. Al-
though Judge Holderman dismissed the claim against
Isenstein-Pasquinelli for tortious interference with prospec-
tive economic advantage, he denied the balance of the
motion to dismiss, allowing the tortious interference with
contract claim, along with all of the claims against the
Koniceks, to stand. Konicek R.24, 34.
After the parties had conducted some amount of dis-
covery, Isenstein-Pasquinelli, joined by the Koniceks,
moved for summary judgment, in relevant part contend-
ing (again) that the May 24 offer was not an enforceable
contract. Konicek App. A264. Among other authorities,
they relied on Judge Kocoras’s summary judgment ruling
in favor of Aurora Christian, arguing that because the
terms of the offer between the Koniceks and Ocean Atlan-
tic did not materially differ from the terms of the offer
between Aurora Christian and Ocean Atlantic, Judge
22 Nos. 01-2239 & 01-3400
Holderman should likewise conclude that the May 24
offer was not enforceable. After receiving Ocean Atlantic’s
response to the motion, Judge Holderman granted the
motion in an oral ruling:
I have had an opportunity to review Ocean Atlantic’s
response to the defendants’ motion for summary judg-
ment and have reviewed carefully Judge Kocoras’
decision in the Ocean Atlantic versus Aurora Christian
Schools, and it seems to me that the distinctions be-
tween the two contracts are really not material.
The fact that this land that these parties were in-
volved with was crop land and had provisions for crop
damage and insurance coverage really does not ma-
terially change the impact of the language.
Plus, I have reviewed the deposition testimony, and
it seems to me, looking at the intent of the parties
as well as the language and substance of the letter
agreement, that the deal was entirely contingent upon
the execution of a purchase contract.
I agree with Judge Kocoras’ analysis. Basically, that
analysis could be laid on all fours with the facts
here subject to those immaterial distinctions. Conse-
quently, applying the analysis that Judge Kocoras
used in the Aurora Christian Schools case, which deal
with the same contract, somewhat in the same area,
it seems to me that there was no contract between
the parties in the letter agreement, that the letter
agreement did contemplate a further contract be-
ing entered into which never was. And so, consequently,
the defendants’ motion for summary judgment will
be granted here from the bench, adopting all of Judge
Kocoras’ analysis and with the minor distinctions
that I have commented on here.
Konicek R.74 at 2-3. In response to follow-up questions
and argument from Ocean Atlantic’s counsel, Judge Hold-
Nos. 01-2239 & 01-3400 23
erman made two additional observations. First, although
the parties had engaged in discovery and the judge had
reviewed the deposition testimony submitted in connec-
tion with the summary judgment motion, Judge Holder-
man was relying on the language of the May 24 offer it-
self to conclude that the letter did not amount to a bind-
ing contract. Konicek R.74 at 5. Second, although there
was deposition testimony suggesting that the parties be-
lieved some terms of the May 24 offer—in particular, those
governing the inspection of the property and any crop
damage that might result from such inspection—would
take effect before a sales contract was negotiated and
finalized, the judge did not believe that this extrinsic
evidence raised a question of fact as to whether or not
the parties had a binding contract for the purchase and
sale of the property. Konicek R.74 at 7. Even if the parties
had a binding agreement with respect to such matters
as crop damage that might result from an inspection of
the property, the judge reasoned, that did not establish
that they had reached an agreement as to the purchase
and sale of the property. Id. at 9-10.
II.
In granting summary judgment in favor of the sellers,
Judges Kocoras and Holderman each concluded that no
reasonable finder of fact could conclude that the offer
amounted to a binding contract between Ocean Atlantic
and the sellers. We review the district judges’ decisions
de novo, construing the facts in a light favorable to Ocean
Atlantic. E.g., Stone v. Hamilton, 308 F.3d 751, 754 (7th
Cir. 2002).
A.
The substantive law of Illinois governs the resolution
of these diversity cases, as the parties agree. See Erie
24 Nos. 01-2239 & 01-3400
R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938);
Abbott Labs. v. Alpha Therapeutic Corp., 164 F.3d 385,
387 (7th Cir. 1999). Illinois conditions the enforceability of
a putative contract on two predicates: a sufficiently con-
crete expression of the essential terms of the agreement,
as well as an intent to be bound by that agreement. See
Academy Chicago Publishers v. Cheever, 578 N.E.2d 981,
983 (Ill. 1991); Ceres Illinois, Inc. v. Illinois Scrap Proc-
essing, Inc., 500 N.E.2d 1, 4-5 (Ill. 1986); Morey v. Hoffman,
145 N.E.2d 644, 647-48 (Ill. 1957); IK Corp. v. One Fin.
Place P’ship, 558 N.E.2d 161, 169 (Ill. App. Ct. 1990). For
the reasons that follow, we find, primarily from the face
of each offer, that the parties did not intend for the offer
to constitute a binding agreement for the purchase and
sale of either property.
As we recognized in Empro Mfg. Co. v. Ball-Co Mfg., Inc.,
870 F.2d 423, 424 (7th Cir. 1989), it is a common commer-
cial practice for two negotiating parties to sign a letter of
intent or an agreement in principal, signaling that they
have come to a tentative agreement on the general out-
lines of a deal without having nailed down all of the de-
tails. Not infrequently, the negotiations that follow the
execution of this document break down, prompting the
disappointed party to sue on the theory that the prelimi-
nary document is binding. Id. Whether in fact the writ-
ing reflects a binding agreement between the parties, we
explained, turns not on what the parties subjectively
believed, but on what they expressly manifested in their
writing. Id. at 425. As we went on to hold, a letter of in-
tent or a similar preliminary writing that reflects a tenta-
tive agreement contingent upon the successful comple-
tion of negotiations that are ongoing, does not amount to
a contract that binds the parties. Id. at 425-26. See also
Murray v. Abt Assocs., Inc., 18 F.3d 1376, 1378-79 (7th
Cir. 1994).
Nos. 01-2239 & 01-3400 25
Again in Abbott Labs., we emphasized that it is the
parties’ objective intent as revealed by what they wrote,
that determines whether or not they had come to a bind-
ing agreement:
Whether the parties had a “meeting of the minds” is
determined not by their actual subjective intent, but
by what they expressed to each other in their writ-
ings. Thus, the parties decide for themselves whether
the results of preliminary negotiations bind them, and
they do so through their words. See Empro Mfg. Co. v.
Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989)
citing Chicago Inv. Corp. v. Dolins, 107 Ill.2d 120, 89
Ill. Dec. 869, 481 N.E.2d 712, 715 (1985).
164 F.3d at 387. See also Venture Assocs. Corp. v. Zenith
Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993); Dresser
Indus., Inc. v. Pyrrhus AG, 936 F.2d 921, 926 (7th Cir. 1991).
If the parties’ written words “do not show a clear intent
to be bound,” then they will not be held to a preliminary
agreement. Abbott Labs., 164 F.3d at 388.
Thus, in deciding whether the offers at issue here con-
stitute binding agreements for the purchase and sale of
the two properties, our focus first and foremost is on
what parties said in those offers. Id. at 387. If the terms
of the offers unambiguously indicate that they were
merely tentative agreements to agree, leaving material
terms unresolved, then there was no binding contract
and the district court in each case properly granted sum-
mary judgment in favor of the sellers. E.g., id. If, on the
other hand, the offers appear to include all terms essen-
tial to the deal and manifest the parties’ mutual intent
to be bound by those terms, or at the least are ambiguous
in that respect, then whether or not a binding agree-
ment exists is a question that must be resolved at trial. See,
e.g., Magallanes Inv., Inc. v. Circuit Sys., Inc., 994 F.2d
1214, 1218-19 (7th Cir. 1993).
26 Nos. 01-2239 & 01-3400
B.
One question that we must address at the outset
is whether Ocean Atlantic’s offer to the Koniceks is neces-
sarily a nullity because the Koniceks did not sign it until
the offer, by its own terms, had already expired. The offer
specified that if not signed and returned to Ocean Atlan-
tic within five days, it “shall be null and void.” Konicek
App. A59 ¶ 13. The offer was dated May 24, 2000, but
the Koniceks did not sign it and return it to Ocean At-
lantic until May 31, 2000—two days beyond the deadline
for acceptance. See id. at A59. Isenstein-Pasquinelli and
the Koniceks assert that this alone renders the offer
unenforceable. See Waterman v. Banks, 144 U.S. 394, 402,
12 S. Ct. 646, 648 (1892) (“There can be no question but
that when an offer is made for a time limited in the offer
itself, no acceptance afterwards will make it binding.”)
(internal quotation marks and citation omitted); Fisher
Iron & Steel Co. v. Elgin, Joliet & E. Ry. Co., 101 F.2d
373, 374-75 (7th Cir. 1939); Johnson v. Whitney Metal
Tool Co., 96 N.E.2d 372, 377 (Ill. App. Ct. 1951). But as
Ocean Atlantic aptly points out, a provision of this sort
serves to protect the offeror, and the offeror may, should
it so choose, elect to waive strict compliance with the
time limit. See WILLISTON ON CONTRACTS § 5.5, at 656
(4th ed. 1990). Here it would appear that notwithstanding
the Koniceks’ failure to sign and return the offer within
the time provided, Ocean Atlantic was nonetheless pre-
pared to overlook their tardiness and proceed with the
preparation of a contract. Under these circumstances, we
cannot say, as a matter of law, that the offer was null
and void simply because the Koniceks did not sign it in
a timely fashion. We must instead look beyond the expira-
tion provision to the other terms of each offer to determine
whether the offer binds either the Koniceks or Aurora
Christian.
Nos. 01-2239 & 01-3400 27
C.
In both cases, the opening language of the offer suggests
strongly that the parties did not intend for the offer to
constitute a binding agreement. Each of the offers states
that it “will serve to set forth some of the parameters for
an offer . . . .” (Emphasis supplied.) Aurora Christian
App. A131; Konicek App. A55. As Judge Kocoras ob-
served, “This is the language of a preliminary negotia-
tion tool, not a definitive offer.” Aurora Christian R.29 at
10-11. It is tentative language, suggestive of ongoing
negotiations rather than a meeting of the minds: the term
“parameters” suggests the establishment of negotiating
boundaries rather than final terms, and use of the word
“some” suggests that any number of terms—including
perhaps material terms—remained subject to negotiation.
Cf. Abbott Labs., 164 F.3d at 388 (letter from party that
reiterated “general terms” of proposal then on table, and
attempting to identify “essential terms” from that party’s
perspective, gives rise to strong implication that letter
author expected other party to counter with essential terms
of its own); Empro Mfg., 870 F.2d at 425 (letter’s recita-
tion that it contains the “general terms and conditions”
implies that each side retained the right to make (and
stand on) additional demands); Chicago Inv. Corp. v.
Dolins, 481 N.E.2d 712, 716 (Ill. 1985) (fact that docu-
ment was entitled “Letter of Intent” “suggests prelimi-
nary negotiations, as opposed to a final and binding con-
tract”).
Consistent with the proposition that negotiations were
ongoing, and that the parties had not yet committed
themselves to the purchase and sale of the property, is
the express anticipation in each offer that a contract of
purchase and sale would be executed. Aurora Christian
App. A134 ¶ 10; Konicek App. A59 ¶ 12. It is true, as
we recognized in Abbott Labs., that “anticipation of a
more formal future writing does not nullify an otherwise
28 Nos. 01-2239 & 01-3400
binding agreement,” 164 F.3d at 388, citing Dawson
v. General Motors Corp., 977 F.2d 369, 374 (7th Cir. 1992);
see also Magallanes Inv., 994 F.2d at 1218-19; Empro
Mfg., 870 F.2d at 425. Nonetheless, when the parties make
clear that their mutual obligations are dependent upon
the execution of a final contract, their preliminary writ-
ing will not be deemed a binding agreement. See Venture
Assocs., 987 F.2d at 432-33; IK, 558 N.E.2d at 166;
Interway, Inc. v. Alagna, 407 N.E.2d 615, 618 (Ill. App. Ct.
1980). In this case, the parties’ announced intent to pre-
pare a contract serves to confirm that the offer itself
did not constitute a binding agreement for the purchase
and sale of the property.
Notably, under the terms of each offer, several key
obligations and events with respect to the anticipated
sale of the property, beginning with the inspection period,
were to be triggered by the execution of the anticipated
contract, rather than by the offer itself. The period during
which Ocean Atlantic was to inspect each property and
confirm that it was fit for the company’s purposes did
not begin to run until the contract for purchase and sale
of the property had been signed. Aurora Christian App.
A131 ¶ 3; Konicek App. A55-56 ¶ 3.5 Ocean Atlantic
notes that counsel for the Koniceks understood that the
inspection period would start once the offer itself had
5
With respect to the Aurora Christian purchase, the never-
executed draft contract also provided that within 60 days of
signing the contract, the parties would jointly prepare a master
development plan for the property. That plan would provide
not only for the townhouses and single family homes that
Ocean Atlantic intended to construct on the purchased property,
but also for ingress and egress through Aurora Christian’s
remaining adjacent properties and for Aurora Christian’s in-
tended use of those properties. See Aurora Christian App. A172-
73.
Nos. 01-2239 & 01-3400 29
been signed. See Konicek App. A61 (May 31, 2000 letter to
Ocean Atlantic’s broker from Konicek’s counsel, asserting
that 90-day inspection period commenced upon Koniceks’
execution of offer). But that understanding is contrary to
the plain terms of the offer itself—the offer states unequivo-
cally that the inspection period would “commenc[e] upon
the date that a Contract of Purchase and Sale (“Contract”)
has been executed by the parties hereto . . . .” Konicek
App. A55 ¶ 3; see also Aurora Christian App. A131 ¶ 3.
Several other important obligations were in turn depend-
ent upon the running of the inspection period. Only “[u]pon
the expiration of the Inspection Period and election of
Purchaser to proceed with the acquisition of the Prop-
erty” did Ocean Atlantic’s deposit of earnest money be-
come non-refundable. Aurora Christian App. A132 ¶ 4(b);
Konicek App. A56 ¶ 4(b).6 Indeed, the terms of the offer
indicate that only a default by Ocean Atlantic under the
contract, as opposed to the offer, would be compensable
by a forfeiture of that earnest money. See Aurora Chris-
tian App. A132 ¶ 4 (last grammatical paragraph); Konicek
App. A56 ¶ 4 (last grammatical paragraph). Moreover,
not until the inspection period was “successfully” completed
did the six-month entitlement period for Ocean Atlantic
to obtain approvals and commitments as to such matters
as the property’s zoning, sewer and water capacity, and on-
and off-site public improvements begin. Aurora Christian
App. A132 ¶ 5; Konicek App. A56 ¶ 5. In turn, not until
those government approvals had been obtained would
the closing on the purchase and sale occur. Aurora Chris-
tian App. A133 ¶ 6(a); Konicek App. A57 ¶ 6(a).
6
At the same time, Ocean Atlantic became obligated to in-
crease the amount of the earnest money deposit upon comple-
tion of the inspection period. Aurora Christian App. A26 ¶ 4(b);
Konicek App. A56 ¶ 4(b).
30 Nos. 01-2239 & 01-3400
Indeed, prior to the execution of a contract for the pur-
chase and sale of the property, Ocean Atlantic had an
unqualified right to walk away from the deal at no cost
to itself. The offers imposed no obligation upon Ocean
Atlantic to make a deposit of earnest money until a contract
was signed; once a contract had been executed, Ocean At-
lantic had five business days to make the initial, refundable
deposit of earnest money. Aurora Christian App. A132
¶ 4(a); Konicek App. A56 ¶ 4(a). Even then, the deposit
remained fully refundable to Ocean Atlantic pending
the completion of the 90-day inspection period which, as
we have noted, would not begin until the contract had
been signed. See Aurora Christian App. A132 ¶ 4(a) (“In
the event that Purchaser elects to terminate the con-
tract during the inspection period, the deposit shall be
returned to the Purchaser by the escrow agent.”); Konicek
App. A56 ¶ 4(a) (same).7 It was, therefore, the execution of
the contract that would initiate the sequence of events
by which Ocean Atlantic would incur a binding obligation
to purchase the two properties.
True enough, as Ocean Atlantic is at pains to point out,
neither of the offers contains a “subject to” clause expli-
citly stating that the parties’ prospective agreement
was conditioned upon the execution of a contract and/or
that the offer itself was not binding. Such clauses are
7
Our point is not that there could be no binding agreement
between Ocean Atlantic and the sellers without a deposit of
earnest money. See Magallanes Inv., 994 F.2d at 1218. Rather, the
fact that Ocean Atlantic was not obligated to make such a de-
posit until a contract had been signed, against the backdrop of
an offer that tied other key events and processes to the execu-
tion of a contract, is yet one more signal that the parties in-
tended for the contract, rather than the offer, to bind them. See
Berco Invs., Inc. v. Earle M. Jorgensen Co., 861 F. Supp. 705, 707
(N.D. Ill. 1994).
Nos. 01-2239 & 01-3400 31
often found in letters of intent and the like, and the
cases occasionally cite them as the “clincher” (to use Judge
Kocoras’ word) in finding that preliminary agreements
lack binding force. Aurora Christian R.29 at 8; see, e.g.,
Venture Assocs., 987 F.2d at 432-33; Berco Invs., Inc. v.
Earle M. Jorgensen Co., 861 F. Supp. 705, 708 (N.D. Ill.
1994); IK, 558 N.E.2d at 167; Interway, 407 N.E.2d at 619-
20. However, just as language anticipating the execution
of a final contract does not rule out the possibility that
the parties intended for their preliminary writing to bind
them, see Magallanes Inv., 994 F.2d at 1218-19; Empro
Mfg., 870 F.2d at 425, neither does the absence of a “sub-
ject to” clause carry talismanic significance. The parties
may through other means make clear that they do not
intend to be bound until a contract is executed. See
Abbott Labs., 164 F.3d at 388-39. In this case, by making
such key events as the inspection period dependent upon
the subsequent execution of a contract for the purchase
and sale of the properties, Ocean Atlantic and the sellers
made clear that the offers were not to have binding force.
The terms of the offers are therefore inconsistent with
the proposition that Ocean Atlantic and the sellers had
reached final agreements. By tying material obligations
vis à vis the purchase and sale to the subsequent execu-
tion of a contract, the offers suggest that the putative
agreements were tentative and inchoate. As we recog-
nized in Empro, contracting parties can and often do
approach agreement by stages, 870 F.2d at 426, and here
the offers on their face bespeak an agreement to come
to terms at a later date rather than a binding agreement
to sell the two properties to Ocean Atlantic.
D.
At the same time, and as Judge Kocoras pointed out, the
offers omit terms one would expect to find in a multi-million
32 Nos. 01-2239 & 01-3400
dollar contract for the sale of real property. Aurora Chris-
tian R.29 at 10. Without undertaking to identify all such
terms or to rank their relative importance, we cite sev-
eral examples that strike us as potentially significant.
First, the offers standing alone do not establish a closing
date for the consummation of either sale; on the contrary,
under the express terms of the offers, a closing could
not occur without the execution of a contract. As we have
noted, the closing date was contingent in each case upon
a number of other events: the successful completion of
the six-month period for obtaining local government
approvals as to zoning and other matters, which in turn
was dependent upon the successful completion of the 90-
day inspection period (and Ocean Atlantic’s election to
proceed with the acquisition), which in turn was depen-
dent upon the execution of a contract for the purchase
and sale of the property. Second, the offers contain no
warranties on behalf of Ocean Atlantic or the sellers; only
limited seller representations with respect to the current
zoning status of the properties are included. See Aurora
Christian App. A134 ¶ 8(c); Konicek App. A58 ¶ 7(c). Third,
beyond stating that “[t]itle to the Property at Closing
shall be marketable and good of record and in fact,” Aurora
Christian App. A133 ¶ 6(a)(ii); Konicek App. A57 ¶ 6(a)(ii),
the offers do not make the typical provisions for convey-
ance of either property, including the form in which title
was to be conveyed, title insurance, a title commitment,
or which party was to pay the costs of curing any defects
in the title. Fourth, neither offer makes any mention of
taxes on the property or as to how responsibility for
those taxes might be assigned. Fifth, the offers make no
provision for the forms of notice to be used by the par-
ties. Given the sums of money involved, the significant
periods of time that the offers provided for the inspection
of the properties and the solicitation of government ap-
provals, Ocean Atlantic’s right to extend the entitlement
period, and Ocean Atlantic’s right to back out of the pur-
Nos. 01-2239 & 01-3400 33
chases in the event that the inspection period or the
entitlement period did not yield satisfactory results, one
would expect a binding agreement to spell out the means
by which the parties were to notify one another of contrac-
tually significant events.
We note that these were all subjects that were ad-
dressed in the draft contracts that Ocean Atlantic prepared.
Although the contracts left a closing date contingent
upon successful completion in turn of the inspection and
government approval periods, upon execution the con-
tracts would have made the timing and probability of
a closing more ascertainable by causing these two peri-
ods, in turn, to commence. See Aurora Christian App. A152
¶ 5 (“The acquisition of the Property by the Purchaser
shall be subject to a feasibility period (“Study Period”) . . .
commencing upon the Contract Effective Date and shall
expire ninety (90) days after the date of the contract.”), id.at A173 ¶ 5(b) (same); Konicek App. A67 ¶ 5 (same); id. at
A90 ¶ 5 (same). Moreover, the draft contracts for the
purchase of the Koniceks’ property gave both parties the
right to opt out of the transaction if the closing had not
occurred within one year of the contract’s effective date,
a provision that provides a much firmer sense of how
long the parties were willing to wait for closing to occur.
Konicek App. A71 ¶ 8 (last grammatical paragraph), id.at A94-95 ¶ 8 (last grammatical paragraph). Buyer and
seller warranties were set forth at length. Aurora Chris-
tian App. A157-60 ¶¶ 10, 11; id. at A180-83 ¶¶ 10, 11;
Konicek App. A72-75 ¶¶ 10, 11; id. at A95-98 ¶¶ 10, 11. A
title report was to be prepared and provided to Ocean
Atlantic following execution of the contract, and at clos-
ing, title (in the same form and condition as during the
inspection or “Study” period) was to be conveyed by “the
usual Warranty Deed, with convenant of further assurances
and the right to convey.” Aurora Christian App. A154-55
¶ 7, A156 ¶ 8(e), A157 ¶ 9; id. at A176-77 ¶ 7, A179 ¶¶ 8(e)
34 Nos. 01-2239 & 01-3400
& 9; Konicek App. A68-70 ¶ 7, A71 ¶ 8(f), A72 ¶ 9; id. at
A91-93 ¶ 7, A94 ¶ 8(f), A95 ¶ 9. Real estate taxes were to
remain the responsibility of the sellers until the closing
date, at which time the taxes would be adjusted pro rata
and Ocean Atlantic would assume responsibility for them.
Ocean Atlantic App. A158 ¶ 10(f), A160 ¶ 14; id. at A181
¶ 10(f), A184 ¶ 14; Konicek App. A73 ¶ 10(g), A75 ¶ 14; id.at A96 ¶ 10(g), A98-99 ¶ 14. Finally, notices between the
parties were to be conveyed to specified individuals and
addresses by means of hand delivery, Federal Express or
an equivalent courier, or by first class mail with return
receipt requested. Aurora Christian App. A163-64 ¶ 21;
id. at A187-88 ¶ 21; Konicek App. A78-79 ¶ 21; id. at A102-
03 ¶ 21.
But are these terms material, such that the offers would
be unenforceable without them, even if the parties meant
for the signed offers to bind them? See Academy Chicago
Publishers v. Cheever, supra, 578 N.E.2d at 983 (“[even
if] the parties may have had and manifested the intent
to make a contract, if the content of their agreement is
unduly certain and indefinite, no contract is formed”).
Dolins, 481 N.E.2d at 715-16, suggests that such terms
might be material vis à vis the purchase and sale of real
estate, but the opinion stops short of saying that they
are inevitably material.8 After a lengthy bench trial, the
trial court in Dolins had concluded that a letter of intent
regarding the purchase of real estate did not constitute
a binding agreement, and among the circumstances that
it cited in support of that determination was the omission
8
See also Morey v. Hoffman, supra, 145 N.E.2d at 648 (no
enforceable contract for the sale of apartment hotel building
where parties had not yet resolved such matters as possession,
inventory, interim management, and disposition of interim
profits).
Nos. 01-2239 & 01-3400 35
of the types of terms we have cited here. “While all of
the foregoing omissions are not equally material,” the
Illinois Supreme Court observed in summarizing the low-
er court’s holding, “the trial judge specifically found that
cumulatively they were significant.” Id. at 716. Without
undertaking to endorse each aspect of the trial court’s
analysis, the state’s high court concluded that the trial
judge’s ultimate determination that the parties had not
entered into an enforceable contract, “was not against
the manifest weight of the evidence.” Id. As such, the
court’s opinion supplies scant support for the proposi-
tion that the omission of terms establishing a closing
date, buyer and seller warranties, form of title, proration
of taxes, and forms of notice render a real estate sales
agreement unenforceable as a matter of law. For its part,
Ocean Atlantic contends that these types of terms were
of relatively minor importance here, and their omission
would not prevent a court from enforcing the essential
provisions spelled out in the offers, supplementing them
as necessary by consulting terms customarily used in real
estate transactions.
We need not, and do not, decide whether the omission of
any of the terms we have discussed—singly or collec-
tively—renders either of the two offers unenforceable. See
IK, 558 N.E.2d at 169 (“even where essential terms have
been agreed upon, if the clear intent of the parties is that
neither will be bound until the execution and delivery of
a written [contract], no contract exists until execution
and delivery”). We do, however, take the opportunity to
reiterate one point that has to do with the absence of a
specified closing date from either of the offers. We agree
with Ocean Atlantic that the omission of a date certain
for closing would not necessarily be fatal to the enforce-
ability of an agreement. Where, as here, the consumma-
tion of the contract is contingent upon the satisfactory
completion of intermediate processes, the length and
36 Nos. 01-2239 & 01-3400
outcome of which cannot be predicted in advance, it may
well be impossible for the parties to name a particular
date for closing. What they can do is identify the prerequi-
sites to closing, specify the length of time that they will
allow for those prerequisites to be satisfied, and so forth.
That is what the parties did here. But, once again, the
prerequisites that they identified in each offer make clear
that the execution of a contract for the purchase and sale
of the property was indispensable to consummation of
the transactions: closing of each purchase and sale was
contingent upon the successful completion of the entitle-
ments period, which in turn was contingent upon the
satisfactory completion of the inspection period, which in
turn did not commence until the parties had executed the
contract.
In sum, the express terms of the offers make plain that
the parties did not intend for those offers to constitute
binding agreements for the purchase and sale of the two
properties. Key milestones in the progress toward con-
summation of each purchase and sale were made con-
tingent upon the subsequent execution of a formal con-
tract. Because the parties never executed such a contract,
Ocean Atlantic lacks an enforceable right to purchase
the properties.
E.
Ocean Atlantic contends that the offers are, at the
least, intrinsically ambiguous as to the parties’ intent,
thereby necessitating a trial at which the finder of fact
could sort out those ambiguities. It notes, for example,
that each offer contains all of the terms necessary (in
its view) to enforce a contract for the purchase and sale
of real estate—including the names of the purchaser
and seller(s), the price, the central terms and conditions
Nos. 01-2239 & 01-3400 37
of the sale, and a description of the property, see Santo
v. Santo, 497 N.E.2d 492, 494 (Ill. App. Ct. 1986) (to be
specifically enforceable, letter agreement for sale of land
must contain essential terms such as these), citing Inland
Real Estate Corp. v. Christoph, 437 N.E.2d 658, 661 (Ill.
App. Ct. 1981)—and that the offers use the words “offer”
and “acceptance,” which are classic contractual terms that
indicate a meeting of the minds, see Magallanes Inv., 994
F.2d at 1219. It also points out that each offer contains
a provision stating that it will be “null and void” unless
“accepted” within a specified time. See Inland Real
Estate at 660-61 (concluding that “null and void” clause
gave rise to ambiguity as to parties’ intent because it was
consistent with intent to be bound). Aurora Christian and
the Koniceks alike signaled their acceptance by signing
and returning the offer to Ocean Atlantic (although, as
discussed earlier, the Koniceks failed to do so within the
specified time limit). Finally, Ocean Atlantic reiterates
that neither offer contains a “subject to” clause indicating
that the subsequent execution of a more comprehensive
contract was essential to purchase and sale of the prop-
erty. See supra at 30-31; Magallanes Inv., 994 F.2d at
1218; Evans, Inc. v. Tiffany, 416 F. Supp. 224, 239 (N.D.
Ill. 1976) (failure to include such a clause suggests intent
to be bound). Each of these circumstances suggests to Ocean
Atlantic that the parties shared an intent to be bound by
the offer.
As the foregoing analysis makes plain, however, we
discern no ambiguity in the offers vis à vis the parties’
intent. The offers no doubt reveal that the parties had
come to terms on “some of ” the parameters for the pur-
chase and sale of the two properties—perhaps even the
most important terms. At the same time, the offers admit-
tedly lack language making Ocean Atlantic’s agreement
to purchase the properties, and the owners’ agreement
to sell the land, contingent upon the execution of a final
38 Nos. 01-2239 & 01-3400
contract. But by postponing until execution of such a
contract the inspection and entitlement periods on which
consummation of the two transactions hinged, the of-
fers make plain that they did not represent definitive
agreements between Ocean Atlantic and the sellers. The
parties structured each of the transactions in such a way
that preparation and execution of a more comprehen-
sive contract was a signally important prerequisite to
the ultimate purchase and sale of the land. By doing so,
the parties made plain that they did not mean to be
bound to the terms set forth in the offer.
F.
Ocean Atlantic also invites the court’s attention to a
series of circumstances beyond four corners of the offers
themselves which it believes gives rise to an extrinsic
ambiguity as to whether the offers were binding. It notes,
in the first instance, that each offer was the product
of months of negotiations with the prospective sellers.
Indeed, in both cases, Ocean Atlantic submitted multiple
offers, each reflecting revisions it made in response to the
sellers’ demands, before securing acceptance from Aurora
Christian and the Koniceks: Aurora Christian had negoti-
ated for both increases in the purchase price as well as
a decrease in the acreage to be sold; and the Koniceks
had asked for increases in the purchase price, the addi-
tion of provisions for crop damage and insurance cov-
erage, and the addition of signature lines for Wayne and
Lois Konicek (the original offer had named Dale Konicek
alone as the property owner). The extent and substance
of these interchanges suggest to Ocean Atlantic that the
parties viewed the offer as the embodiment of their agree-
ment and not just an interim summary of negotiations
that were ongoing. Consistent with this view, Ocean
Atlantic points to minutes from an Aurora Christian
Nos. 01-2239 & 01-3400 39
board of directors meeting indicating that the board
had chosen to pursue Ocean Atlantic’s offer from among
several it had received on its property, that the board
weighed and rejected various changes it might ask Ocean
Atlantic to make to the offer, and that it considered what
effect its acceptance of Ocean Atlantic’s offer would have
on Aurora Christian’s other development plans. See Aurora
Christian App. A122-23. When Aurora Christian’s presi-
dent signed Ocean Atlantic’s third offer, Aurora Chris-
tian’s treasurer returned it to Ocean Atlantic with a note
indicating that “your . . . letter offer has been accepted.”
Aurora Christian App. A141. Aurora Christian subse-
quently informed another bidder that it had reached
an agreement with Ocean Atlantic. Aurora Christian App.
A147. Each of these facts suggests to Ocean Atlantic
that Aurora Christian understood and treated the ac-
cepted offer as a binding contract. In a like vein, Ocean
Atlantic highlights testimony from the Koniceks to the
effect that they wanted terms regarding insurance and
crop damage included in the offer so that those provi-
sions would be in place in the event that the inspec-
tion period began immediately upon acceptance of the offer.
See Konicek App. A165 (deposition of Wayne Konicek),
A151 (deposition of Dale Konicek). Indeed, when the
Koniceks’ attorney returned the signed offer to Ocean At-
lantic, his cover letter indicated that “per the letter [offer],”
the inspection period was to commence immediately, as
of the date the offer was signed; he also enclosed proof
of the Koniceks’ liability insurance coverage. See Konicek
App. A61. That understanding is, as we have noted, incon-
sistent with the terms of the offer itself, but Ocean Atlan-
tic argues that the court is bound to consider it as proof
that the offers are not as clear as they might at first
blush appear. And, lest we view all of this evidence as
insufficient to establish an extrinsic ambiguity in the of-
fers, Ocean Atlantic contends that it should be given
40 Nos. 01-2239 & 01-3400
the opportunity to engage in further discovery so that
it might marshal additional evidence.
None of the evidence to which Ocean Atlantic has pointed
us, however, constitutes admissible evidence of an extrin-
sic ambiguity in either offer. An extrinsic ambiguity is
one that is not apparent from the face of a document, one
that requires evidence from other sources to establish.
See, e.g., United States v. Rand Motors, 305 F.3d 770, 774-
75 (7th Cir. 2002); Air Safety, Inc. v. Teachers Realty Corp.,
706 N.E.2d 882, 885 (Ill. 1999). Whereas we have con-
strued the offers to constitute preliminary, non-binding
writings that conditioned the purchase and sale of the
properties upon the subsequent execution of more com-
plete contracts, Ocean Atlantic points to extrinsic evi-
dence of the kind we have just discussed as proof that
the parties themselves believed that the offers bound
them. But the general rule in Illinois is that only objec-
tive evidence supplied by disinterested third parties
may establish an extrinsic ambiguity in a contract. See
AM Int’l, Inc. v. Graphic Mgmt. Assocs., Inc., 44 F.3d
572, 575 (7th Cir. 1995); but see also Dispatch Automation,
Inc. v. Richards, 280 F.3d 1116, 1121 (7th Cir. 2002) (assum-
ing that written admission by opposing party as to mean-
ing of contract might constitute objective evidence of
external ambiguity). Ocean Atlantic’s proof, by contrast,
focuses on the parties’ own, subjective construction of
the offers and whether or not they were binding. The
evidence does not suggest that the terms of the offers
carried a unique, contextual meaning not apparent from
the face of each offer, nor does it give us reason to ques-
tion what the offers plainly said. See AM Int’l, 44 F.3d
at 575. As such, this evidence does not create doubt
about the meaning of the offers, nor does it demonstrate a
need for further discovery. Our focus remains within the
four corners of the offers, and within those boundaries
Nos. 01-2239 & 01-3400 41
we discern no ambiguity.9
G.
Ocean Atlantic seizes upon Judge Holderman’s observa-
tion that the Koniceks and Ocean Atlantic might have
reached an agreement that was binding in certain re-
spects—in particular, as to Ocean Atlantic’s right to in-
spect the property and its liability for any crop damage
resulting from the inspection—as yet another signal that
the terms of the Konicek offer, at least, are ambiguous
9
In both cases, Ocean Atlantic also notes that its practice has
been to insist on a signed letter offer before it starts work on
drafting a contract. Drafting a contract for the purchase of
properties worth in excess of $1 million “is a time-consuming
and costly process,” its president notes. Aurora Christian App.
A143 ¶ 9 (deposition of Michael Ferraguto, Jr.). Making sure by
way of a signed offer that the parties are of one mind on the
essential terms of the deal before they set to work on writing the
contract “assures Ocean Atlantic that its time and financial
investment [are] not wasted, particularly in an improving real
estate market.” Aurora Christian App. A144 ¶ 10; see also
Konicek App. A131 ¶ 9 (affidavit of Kevin Gensler) (“[t]he purpose
of such letter agreements is to bind the parties to the major
business terms of the sale prior to expending money on legal
and other fees to negotiate the minor details of the more for-
mal contract”). Ocean Atlantic’s desire to avoid wasting its
time and resources negotiating a contract that a seller might or
might not sign is understandable. Even so, the expenditures
of time and money that Ocean Atlantic made in an effort to
finalize agreements with Aurora Christian and the Koniceks
are hardly so significant or unusual as to raise doubt about
whether the parties intended for the offers to be binding. As we
observed in Empro Mfg., “[o]utlays of this sort cannot bind the
other side any more than paying an expert to tell you whether
the painting at the auction is a genuine Rembrandt compels
the auctioneer to accept your bid.” 870 F.2d at 426.
42 Nos. 01-2239 & 01-3400
with respect to the parties’ intent. We disagree. In a
colloquy with Judge Holderman, Ocean Atlantic’s counsel
highlighted some of the extrinsic evidence that we have
just finished discussing—specifically, that the Koniceks
as well as their attorney had believed that an inspection of
the property would or might take place before a contract
for the purchase and sale of the property was finalized,
and that provisions for such things as insurance and
crop damage had been included in the offer to account
for that possibility. See Konicek R.74 at 5-6. Judge Hold-
erman observed that evidence of this sort was immate-
rial to a determination of whether the parties had reached
a binding agreement for the purchase and sale of the
property. Id. at 6. The most that it might show, if read
favorably to Ocean Atlantic, was that the parties had
agreed to proceed with an inspection before signing a
contract; but an agreement to that limited extent did
not, in the judge’s view, suggest that the parties had also
bound themselves to the purchase and sale of the property:
Before someone purchases property, they usually
want to inspect it, they want to evaluate it. If it was
a car, you’d want to take it for a test-drive, but that
doesn’t mean you bought it.
Id. at 7. Notably, Judge Holderman did not find that the
subjective understanding of the parties gave rise to
any ambiguity in the offer itself, nor did he find that the
offer actually permitted an inspection prior to the execu-
tion of a contract for the purchase and sale of the prop-
erty. He was discussing what the extrinsic evidence, taken
alone, might establish, not what the written offer it-
self—on which he based his ruling (see id. at 5)—actually
provided. As our earlier discussion makes clear, the offer
on its face makes plain that an inspection would not
occur until the parties had first executed a contract, and
that condition was never satisfied. The apparent belief
of the Koniceks and their counsel that an inspection could
Nos. 01-2239 & 01-3400 43
or would occur in the absence of the contract envisioned
by the offer was flatly inconsistent with the offer itself.10
And because evidence of this belief does not constitute
proper evidence of an extrinsic ambiguity in the offer, it is
the language of the offer on which we rest rather than
the parties’ private expectations and assumptions.
H.
In the Aurora Christian case, Judge Kocoras ultimately
held that the terms of the offer between Ocean Atlantic
and Aurora Christian unambiguously revealed the lack
of an intent to be bound; for that reason, he entered
summary judgment in favor of Aurora Christian. Earlier
in the litigation, however, in denying Ocean Atlantic’s
own motion for partial summary judgment, the judge had
described the offer as ambiguous vis à vis the parties’
intent. Aurora Christian R.17 at 4-5. In view of that ruling,
as well as arguments that Aurora Christian asserted (suc-
cessfully) in opposition to Ocean Atlantic’s request for
summary judgment, Ocean Atlantic asserts that Aurora
Christian was foreclosed from subsequently arguing, and
Judge Kocoras was foreclosed from subsequently holding,
that the offer was unambiguous. In support of this con-
tention, Ocean Atlantic relies on the doctrines of judicial
estoppel, mend the hold, and law of the case.
10
Of course, the parties might have elected to proceed with
an inspection without first signing a contract as the offer speci-
fied. It is certainly not unusual for parties to depart from the
terms of their writings in practice (although that is not what
occurred here). The Koniceks’ anticipation of that possibility
does not undermine the offer’s explicit requirement that the
parties enter into a contract nor does it otherwise bestow bind-
ing force on the offer itself.
44 Nos. 01-2239 & 01-3400
Ocean Atlantic forfeited these arguments by failing
to assert them below, however. Its memorandum in op-
position to Aurora Christian’s summary judgment mo-
tion took passing note of the contentions that Aurora
Christian had previously made and noted as well that
the court had already deemed the offer to be ambiguous.
See Aurora Christian App. A279-80, 290. But nowhere in
the memorandum did Ocean Atlantic contend that the
arguments Aurora Christian was asserting in support of
its motion for summary judgment were barred by the
doctrines of judicial estoppel or mend the hold, nor did
Ocean Atlantic anywhere suggest that the law of the case
doctrine bound Judge Kocoras to his own prior ruling.
Although forfeited arguments typically remain subject
to review for plain error in criminal cases, the plain error
doctrine will rarely permit this court to reach forfeited
arguments in civil litigation. See, e.g., McKinney v. Indiana
Michigan Power Co., 113 F.3d 770, 774 (7th Cir. 1997). As
there is no extraordinary circumstance warranting
plain error review here, we do not address Ocean Atlan-
tic’s judicial estoppel, mend the hold, and law of the case
theories.
I.
In the Konicek litigation, Ocean Atlantic not only sought
relief in contract from the Koniceks, but relief on the theory
of tortious interference with contract from Isenstein-
Pasquinelli. To prevail against Isenstein-Pasquinelli, Ocean
Atlantic would have to prove that there was, in fact, a
binding agreement between the Koniceks and Ocean
Atlantic for the purchase and sale of the property. See, e.g.,
Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir. 1997);
Stafford v. Puro, 63 F.3d 1436, 1441 (7th Cir. 1995). We
have concluded otherwise, of course, and this dooms the
claims against Isenstein-Pasquinelli as well as those
against the Koniceks.
Nos. 01-2239 & 01-3400 45
J.
It is not hard to appreciate why Ocean Atlantic may
have thought that all but the formalities were over once
it had secured signatures on the offers it had extended
to Aurora Christian and the Koniceks. The offers argu-
ably covered the most salient aspects of Ocean Atlantic’s
proposed purchase of the two properties. All that remained
in each case was for Ocean Atlantic to draft and the par-
ties to execute a contract consistent with the parameters
specified in the offer and otherwise flesh out the logistics
of the purchase and sale. But each offer makes clear that
the execution of such a contract was no mere formality.
Each offer describes itself as a memorialization of “some
of the parameters” for Ocean Atlantic’s proposed pur-
chase of the property. Each offer also conditions the se-
quence of events that would culminate in the closing of
the purchase upon the execution of a separate contract.
Not until that contract was signed would Ocean Atlantic
undertake the inspection of the property in order to con-
firm that the land would suit its needs, and not until
that inspection was satisfactorily completed would Ocean
Atlantic begin to secure the approvals it needed from local
authorities to develop the property as it hoped. By con-
ditioning the purchase and sale of each property upon
the subsequent execution of a contract, the parties left
themselves room to walk away from the deal. This was
their right:
Illinois law recognizes the prerogative [of contracting
parties] to agree to further negotiations, even after
most essential contract terms have been settled, while
remaining free to back out of a pending deal until the
occurrence of some later event.
Venture Assocs., 987 F.2d at 432; see also Empro Mfg.,
870 F.2d at 426; Feldman v. Allegheny Int’l, Inc., 850 F.2d
1217, 1221 (7th Cir. 1988). In this case, it is true, the parties
46 Nos. 01-2239 & 01-3400
did not state expressly that their agreement was contin-
gent upon the subsequent execution of a contract. But
they might just as well have, given that key milestones
toward the purchase of each property, including the pre-
liminary and necessary step of inspecting the property,
were dependent upon the contract. The first and most
reliable indicator of the parties’ intent is what the par-
ties wrote, see, e.g., Venture Assocs., 987 F.2d at 432, and
here the terms of the offers disclose an intent to be
bound not by those preliminary writings but only by
the contracts that were never signed. It is therefore our
task to send Ocean Atlantic home disappointed. Empro
Mfg. Co., 870 F.2d at 426.
III.
We AFFIRM the judgments below.
Nos. 01-2239 & 01-3400 47
APPENDIX A
August 5, 1999
VIA FACSIMILE/FEDERAL EXPRESS
Aurora Christian Schools, Inc.
15 Blackhawk Street
Aurora, Illinois 60506
Re: Proposed Purchase and Sale of Approximately 78
Acres of Land Located on the West Side of Deerpath
Road, North of I-88 in Kane County, Illinois, and
Further Described as Parcel Number 1 on Exhibit “A”
(Attached).
Gentlemen:
This Letter Offer (“Offer”) will serve to set forth some of
the parameters for an offer from Ocean Atlantic Develop-
ment Corp., (“Purchaser”) to purchase the above-referenced
property (herein referred to as the “Property”) from the
Aurora Christian Schools, Inc. (“Seller”):
1.) PURCHASE PRICE. The purchase price shall be
THREE MILLION FIVE HUNDRED AND TEN THOU-
SAND DOLLARS ($3,510,000) subject to the verification of
acreage and based upon a prorata purchase price of $45,000
per acre (the “Purchase Price”).
2.) TERMS OF PAYMENT. The Purchaser shall pay the
entire Purchase Price, less the Deposit, in cash on the
Closing Date.
3.) INSPECTION PERIOD. The acquisition of the
Property by the Purchaser shall be subject to an inspection
period (“Inspection Period”) commencing upon the date that
a Contract of Purchase and Sale (“Contract”) has been
executed by the parties hereto and extending for a period of
ninety (90) days. During the Inspection Period, the Pur-
48 Nos. 01-2239 & 01-3400
chaser, at its sole cost and expense, will have complete
access to the Property for the purpose of conducting such
soil borings, engineering tests, environmental studies, and
other studies as required with respect to the Property in
order to determine if the Property is suitable for the Pur-
chaser’s intended use, provided, however, that Purchaser
will be responsible for restoring the Property to the condi-
tion as it existed when such tests commenced. Purchaser
agrees that it shall enter upon the Property at is own risk,
cost and expense, together with the liability responsibility
for itself, its agents and any other person or persons
involved in the inspection of the Property.
4.) DEPOSIT.
a) Within Five (5) business days of the execution of
the Contract of Purchase and Sale, the Purchaser shall
deliver to Chicago Title & Trust (“Escrow Agent”) a cash
deposit, in the amount of TWENTY-FIVE THOUSAND
DOLLARS ($25,000). In the event that Purchaser elects to
terminate the contract during the inspection period, the
deposit shall be returned to the Purchaser by the escrow
agent.
b) Upon the expiration of the Inspection Period and
election of Purchaser to proceed with the acquisition of the
Property, the earnest money deposit shall be increased
to a total of ONE HUNDRED THOUSAND DOLLARS
($100,000) and shall become non-refundable subject to the
provisions hereto.
In the event Purchaser defaults in the performance of
any of its obligations under the Contract of Sale, the above-
mentioned Deposit shall constitute full and complete
liquidated damages to the Seller on account of Purchaser’s
default and Seller shall have no other claims against
Purchaser.
5.) ENTITLEMENTS AND GOVERNMENT APPROV-
ALS. Upon the satisfactory completion of the Inspection
Nos. 01-2239 & 01-3400 49
Period, Purchaser shall have no more than six (6) months
to complete the following:
a) Apply to local municipality to obtain rezoning and
final plat approval for the development.
b) Reach an agreement with the local municipality
and all other applicable governing agencies to supply the
Property with sufficient sanitary sewer and water capacity
to accommodate the development.
c) Reach an agreement with the local municipality
on the requirements for all on-site and off-site public im-
provements required for the development of the Property,
as well as the amount of all fees that will be required.
If, after six (6) months, Purchaser has completed all
of its applications for rezoning and final plat approval, and
is only waiting for approval or denial, then Seller shall
grant Purchaser an additional sixty (60) day period to
satisfy conditions for Closing. If, after the additional sixty
(60) day extension period, Purchaser has not received
approval or denial, then the Purchaser shall have the option
to extend the Entitlement Period beyond the additional
sixty (60) day period for extended term intervals of thirty
(30) days each. Purchaser shall pay Seller a non-refundable
fee of FIVE THOUSAND DOLLARS ($5,000) for each thirty
(30) day extension that Purchaser seeks. Such extension fee
shall not be credited to the purchase price at closing.
6.) CLOSING.
a) The Closing shall occur with thirty (30) days of
the annexation, rezoning and final plat approval of the
Property, as defined in paragraph 5 hereto.
The Closing shall be subject to the satisfaction of the
following conditions:
i.) The conditions set forth in paragraph 5 hereto.
50 Nos. 01-2239 & 01-3400
ii.) Title to the Property at Closing shall be market-
able and good of record and in fact and insurable
as such at ordinary rates by a recognized title
insurer free and clear of all liens and encum-
brances or unacceptable exceptions.
7.) RIGHT OF FIRST REFUSAL. Purchaser shall have
the right of first refusal to purchase Parcel(s) 2 and/or 3 in
the event that Seller shall elect to sell either or both
parcels.
8.) SELLER’S REPRESENTATIONS.
a) Seller will not further encumber the Property or
negotiate, or agree to, its sale.
b) Seller will not make any written or oral commit-
ments or representations to the applicable govern-
mental authorities or any adjoining or surrounding
property owners which would in any manner be
binding upon Purchaser or interfere with Purchaser’s
ability to improve the Property.
c) Seller has no notice of any pending or threatened
suit, petition, proceeding or application to modify or
affect the zoning of the Property in a manner which
would prohibit or restrict the intended use as de-
scribed herein.
9.) BROKERAGE. Seller and Purchaser each warrant to
the other that neither has dealt with any agent, broker, or
finder with respect to the transaction contemplated by this
Offer, other than Anderson & Associates and Grubb & Ellis
who will be paid a commission by the Seller, under separate
agreement which commission shall be earned, due and
payable only in the event that closing occurs hereunder.
Seller and Purchaser shall indemnify each other against
any brokerage claims.
10.) CONTRACT OF SALE. Upon such acceptance and
return of this Offer, Purchaser shall prepare and present to
Nos. 01-2239 & 01-3400 51
the Seller a Contract of Purchase and Sale in accordance
with the terms and provisions hereof. Purchaser and Seller
shall work diligently to execute the Contract within Thirty
(30) days of the execution of this Offer.
11.) EXPIRATION. Unless this Offer is signed by Pur-
chaser and Seller, accepting and agreeing to its terms and
provisions, returned to and received by the Purchaser by
5:00 p.m., on the tenth day after the date hereof this Offer
shall be null and void.
IN WITNESS HEREOF, the parties hereto have set their
hands and seals this [6th] day of August, 1999.
SELLER: PURCHASER:
AURORA CHRISTIAN OCEAN ATLANTIC
SCHOOLS, INC. DEVELOPMENT CORP.
By: [Paul House] By: [John C. Carroll]
John C. Carroll
Executive Vice President
Its: [President]
Date: [8/6/99] Date: [8/5/99]
cc: Kevin Gensler, Esq. - Dommermuth, Brestal, Cobine &
West Ltd. (w/encl.) via facsimile
Kane Kiernan - Grubb & Ellis (w/encl.) via facsimile
52 Nos. 01-2239 & 01-3400
APPENDIX B
May 24, 2000
VIA FACSIMILE/FEDERAL EXPRESS
Mr. Dale Konicek
Mr. & Mrs. Wayne Konicek
c/o Jim Angelotti
CB Richard Ellis
1400 West 16th Street, Suite 350
Oak Brook, ILL [sic] 60523-1447
Re: Revised Proposal for the Purchase and Sale of
Approximately 157.64 acres of Land Located on
the North Side Ogden Avenue (Rt. 34) at its
Intersection with Bristol Road and South of
Kennedy Road, in Kendall County, Illinois as
Set Forth on: i.) Tax Map Numbers 02-14-352-
001, 02-15-477-001, 02-23-126-001; and, ii.)
Exhibit “A” Attached
Dear Mrs. Konicek and Mssrs Konicek:
This Letter Offer (“Offer”) will serve to set forth some of
the parameters for an offer from Ocean Atlantic Chicago
Corp., (“Purchaser”) to purchase the above-referenced
property (herein referred to as the “Property”) from Dale
Konicek, and Wayne and Lois Konicek (“Sellers”):
1.) PURCHASE PRICE. The purchase price shall be
THREE MILLION NINE HUNDRED NINETY TWO
THOUSAND TWO HUNDRED AND THIRTY-THREE
DOLLARS ($3,992,233) subject to the verification of acreage
and based upon a prorata purchase price of $25,325 per
acre (the “Purchase Price”).
Nos. 01-2239 & 01-3400 53
2.) TERMS OF PAYMENT. The Purchaser shall pay the
entire Purchase Price, less the Deposit, in cash on the
Closing Date.
3.) INSPECTION PERIOD. The acquisition of the
Property by the Purchaser shall be subject to an inspection
period (“Inspection Period”) commencing upon the date that
a Contract of Purchase and Sale (“Contract”) has been
executed by the parties hereto and extending for a period of
ninety (90) days. Until Closing, the Purchaser, at its sole
cost and expense, will have complete access to the Property
for the purpose of conducting such soil borings, engineering
tests, environmental studies, and other studies as required
with respect to the Property in order to determine if the
Property is suitable for the Purchaser’s intended use,
provided, however, that Purchaser will be responsible for
restoring the Property to the condition as it existed when
such tests commenced. Purchaser agrees that it shall enter
upon the Property at its own risk, cost and expense,
together with the liability responsibility for itself, its agents
and any other person or persons involved in the inspection
of the Property.
4.) DEPOSIT.
a) Within Five (5) business days of the execution of
the Contract of Purchase and Sale, the Purchaser shall
deliver to Chicago Title & Trust (“Escrow Agent”) a cash
deposit, in the amount of FIFTY THOUSAND DOLLARS
($50,000). In the event that Purchaser elects to terminate
the contract during the inspection period, the deposit shall
be returned to the Purchaser by the escrow agent.
b) Upon the expiration of the Inspection Period and
election of Purchaser to proceed with the acquisition of the
Property, the earnest money deposit shall be increased
to a total of ONE HUNDRED THOUSAND DOLLARS
($100,000) and shall become non-refundable subject to the
provisions hereto. Purchaser shall instruct the Escrow
54 Nos. 01-2239 & 01-3400
Agent to release FIFTY THOUSAND DOLLARS ($50,000)
of the Deposit to the Sellers.
In the event Purchaser defaults in the performance of
any of its obligations under the Contract, the above-men-
tioned Deposit shall constitute full and complete liquidated
damages to the Sellers on account of Purchaser’s default
and Sellers shall have no other claims against Purchaser.
5.) ENTITLEMENTS AND GOVERNMENT APPROV-
ALS. Upon the satisfactory completion of the Inspection
Period, Purchaser shall have no more than six (6) months
to complete the following:
a) Apply to local municipality to obtain rezoning and
final plat approval for the development.
b) Reach an agreement with the local municipality
and all other applicable governing agencies to supply the
Property with sufficient sanitary sewer and water capacity
to accommodate the development.
c) Reach an agreement with the local municipality
on the requirements for all on-site and off-site public im-
provements required for the development of the Property,
as well as the amount of all fees that will be required.
If, after six (6) months, Purchaser has completed all
of its applications for rezoning and final plat approval, and
is only waiting for approval or denial, then Sellers shall
grant Purchaser an additional sixty (60) day period to
satisfy conditions for Closing. If, after the additional sixty
(60) day extension period, Purchaser has not received
approval or denial, then the Purchaser shall have the option
to extend the Entitlement Period beyond the additional
sixty (60) day period for extended term intervals of thirty
(30) days each. Purchaser shall pay Sellers a non-refund-
able fee of FIVE THOUSAND DOLLARS ($5,000) for each
thirty (30) day extension that Purchaser seeks.
Nos. 01-2239 & 01-3400 55
6.) CLOSING.
a) The Closing shall occur within thirty (30) days of
the annexation, rezoning and final plat approval of the
Property, as defined in paragraph 5 hereto.
b) The Closing shall be subject to the satisfaction of
the following conditions:
i.) The conditions set forth in paragraph 5
hereto.
ii.) Title to the Property at Closing shall be
marketable and good of record and in fact and
insurable as such at ordinary rates by a
recognized title insurer free and clear of all
liens and encumbrances or unacceptable ex-
ceptions.
7.) SELLER’S REPRESENTATIONS.
a) Sellers will not further encumber the Property or
negotiate, or agree to, its sale.
b) Sellers will not make any written or oral commit-
ments or representations to the applicable governmental
authorities or any adjoining or surrounding property
owners which would in any manner be binding upon
Purchaser or interfere with Purchaser’s ability to improve
the Property.
c) Seller [sic] has no notice of any pending or
threatened suit, petition, proceeding or application to
modify or affect the zoning of the Property in a manner
which would prohibit or restrict the intended use as
described herein.
d) Purchaser and Sellers agree to keep the terms
and conditions and all negotiations regarding this Letter
Offer confidential.
8.) BROKERAGE. Sellers and Purchaser each warrant to
the other that neither has dealt with any agent, broker, or
56 Nos. 01-2239 & 01-3400
finder with respect to the transaction contemplated by this
Offer, other than Jim Angelotti and Tony Gange of CB
Richard Ellis who will be paid a commission by the Pur-
chaser, under separate agreement which commission shall
be earned, due and payable only in the event that closing
occurs hereunder. Sellers and Purchaser shall indemnify
each other against any brokerage claims.
9.) INSURANCE COVERAGE. Prior to the initiation of
any ingress or egress to the Property the Purchaser shall
obtain liability insurance in the amount of $1,000,000
naming the Seller [sic] as an additional insured party.
Similarly, the Seller shall provide evidence of current
liability coverage to the Purchaser.
10.) CROP DAMAGE. In the event that there is any
damage to existing crops, the Purchaser shall reimburse the
Seller [sic] $350 per acre, the acreage affected shall be
determined by an independent surveyor.
11.) LIKE-KIND EXCHANGE. Purchaser agrees to co-
operate with Sellers to effect a Like-Kind Exchange, as
defined within Internal Revenue Code 1031. All costs
associated with the Like-Kind Exchange shall be paid by
Sellers.
12.) CONTRACT OF SALE. Upon such acceptance and
return of this Offer, Purchaser shall prepare and present to
the Sellers a Contract of Purchase and Sale in accordance
with the terms and provisions hereof.
13.) EXPIRATION. Unless this Offer is signed by Pur-
chaser and Sellers, accepting and agreeing to its terms and
provisions, returned to and received by the Purchaser by
5:00 p.m., on the fifth day after the date hereof this Offer
shall be null and void.
IN WITNESS WHEREOF, the parties hereto have set
their hands and seals this [31st] day of May, 2000.
Nos. 01-2239 & 01-3400 57
SELLERS: PURCHASER:
OCEAN ATLANTIC
CHICAGO CORP.
[Dale Konicek] By: [John C. Carroll]
Dale Konicek John C. Carroll
Executive Vice President
Date: [5/31/2000] Date: [5/24/2000]
[Wayne Konicek]
Wayne Konicek
Date: [5-31-2000]
[Lois Konicek]
Lois Konicek
Date: [5-31-2000]
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-14-03