CFC Investment, L.L.C. v. McLean ( 2008 )

FIRST DIVISION
December 22, 2008
No. 1-08-0161
CFC INVESTMENT, L.L.C., ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
) No. 04 L 24
DANIEL E. MCLEAN, individually and )
doing business as MCL COMPANIES, ) Honorable
) Daniel J. Kelley,
Defendant-Appellee. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
CFC Investment sued Daniel McLean for breach of a contract to
purchase CFC's interest in a real estate venture. McLean answered
that he never offered to buy CFC's interest. That is, there was no
contract. The trial court entered judgment on the jury's verdict in
favor of McLean. On appeal, CFC contends the trial court erred by
(1) allowing parol evidence, (2) disallowing an admission McLean
made at his deposition, (3) disallowing evidence of mismanagement,
(4) refusing a proposed instruction on agency, (5) answering the
jury's question, and (6) denying CFC's motion for a new trial or a
judgment notwithstanding the verdict. We affirm.
FACTS
Some factual detail is required for an analysis of the jury's
verdict.
In 1997 Peer Pedersen and Daniel McLean formed River East, LLC,
to build residential and commercial buildings on land north of the
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Chicago River near Lake Michigan in Chicago. A separate
corporation, River East, Inc., with Daniel McLean as its president,
managed River East, LLC. Those corporations set up a number of
subsidiaries to develop separate parcels of the large tract. We
will refer to the various River East entities collectively as River
East.
River East paid various fees for management, development,
marketing, leasing, and construction on the land to corporations
McLean owned. Craig Duchossois and his father, Richard Duchossois,
formed CFC Investments in 1997 to invest $10 million in River East.
McLean, Peer Pedersen, Howard Warren, John Melk, and several others
also invested in River East.
Pedersen and McLean convened a meeting of the investors on
March 14, 2001. Pedersen and McLean assured the investors the
development was proceeding well, with new investors seeking to
participate. Craig offered to sell CFC's interest. Pedersen tried
to persuade Craig that he should keep his investment in River East.
But, according to Craig's notes from the meeting, Pedersen said he,
Melk, and McLean, along with others, would be willing to buy out
CFC's shares.
Craig wrote to Pedersen in April 2001, asking him to "consider
this letter as [CFC's] request to initiate steps that would let us
look at such a transaction." At the rate of return Pedersen and
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McLean said they expected, CFC's shares should have had a value of
$25 million. Craig repeated his request to sell CFC's interest in
River East in a letter to Pedersen sent in June 2001. Craig added,
"I understand *** that Dan [McLean] expressed an interest in joining
with a group to acquire [CFC's] interest."
McLean, on July 31, 2001, wrote to Craig:
"Your ownership interest of 12.3% equates to a current
value of $14,897,317 ***.
I recognize your desire to sell your interest in the
River East development and I will work toward this goal.
However, it is unlikely that an investor would pay the
$25.2 million value requested in your letter. ***
*** I can pursue a buyout of your interest."
Craig telephoned McLean, and that call initiated further discussions
about an appropriate price for CFC's interest in River East. They
arrived at a price, and McLean confirmed that valuation in writing.
On August 30, 2001, McLean wrote to Craig:
"I am willing to arrange for the purchase of your
interest in the River East LLC for a price of $16,700,000.
If this is acceptable to you please sign below. I will
then commence to secure the capital for a closing date of
November 30, 2001.
Sincerely,
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/s/ Dan McLean."
On September 21, 2001, Robert Fealy and David Filkin, acting on
behalf of CFC Investments, met with McLean's representative, Kevin
Augustyn, to discuss the details of the proposed transaction.
Following the meeting Craig wrote, in a letter dated September 26,
2001:
"On behalf of CFC Investments, we accept your offer to acquire
all of our interest in the River East project for $16,700,000.
*** We also understand that, as part of this transaction, you
will assist with having us removed as guarantors of the JP
Morgan loan ***.
*** [W]e expect to close this transaction before November
15."
On September 28, 2001, McLean responded:
"I am happy to know you would like to accept our acquisition
offer. ***
*** [W]e are hoping to close this transaction as quickly
as possible. However, as both Peer Pedersen and I stated
originally, we require 90 days from the date of your acceptance
of our offer. This would give us up to January 1, 2002 if you
acknowledge this letter by October 1, 2001. ***
Of course we understand your interest in being released as
guarantor of the JP Morgan loan. We expect to do this with the
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repayment of your $5,000,000 pro-rata share of this loan, out
of the proceeds you receive.
Assuming these two points are acceptable, please
acknowledge by signing this letter below and returning it to me
*** to effectuate this transaction."
Craig sent back a copy of the letter with his signature, along with
a separate letter in which he said CFC agreed to the 90-day period
"with the understanding that your group will do everything
reasonable to accelerate closure."
Craig heard no word of progress over the following months. On
March 29, 2002, he wrote to McLean, demanding performance of
McLean's "contractual commitments." McLean did not respond. CFC
hired an accounting firm to investigate the finances of River East.
On April 2, 2003, all of the investors in River East sold their
interests to Mitsui Sumitomo Insurance Company for a total of $17
million. CFC received a little over $2.5 million for its share.
On January 2, 2004, CFC sued McLean for breach of contract.
The court denied the parties' cross-motions for summary judgment.
The court held that a trier of fact must decide whether the parties
had reached a binding contract.
At a deposition, McLean testified that when he said he was
"willing to arrange" for the purchase of CFC's interest, he meant
that he would try to find a group of investors to purchase the
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shares. He did not intend to offer to buy all of CFC's shares
himself. CFC's attorney asked:
"Can arrange mean I am willing to arrange to get money so I can
purchase your shares?
I mean, that's one possible interpretation of that
language, isn't it?"
McLean answered, "I am sure it could be, somebody could interpret it
that way."
CFC sought to introduce the statement in its case-in-chief as
an admission. The court granted McLean's motion in limine to bar
use of that response in CFC's case-in-chief, but the court added,
"As far as what you may do on cross-examination that may be another
issue."
McLean also moved to bar use of information derived from the
2002 investigation into the finances of River East. According to
CFC's written offer of proof, it would show that McLean changed the
plan to the detriment of other investors, he used corporate funds
for personal expenses, he improperly accelerated payment of
exorbitant fees to corporations he owned, he overvalued certain
assets, he defaulted on some loans, and he artificially manipulated
reported profits. CFC contended that the evidence helped establish
that "CFC reasonably believed McLean himself offered to purchase
CFC's interest because McLean wanted to keep his gross mismanagement
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of the River East Project under wraps." The circuit court allowed
CFC to present any evidence of mismanagement that surfaced before
January 2, 2002, the date of the alleged breach, but it granted the
motion to preclude any evidence of mismanagement that did not come
to light until after that date.
CFC moved to exclude parol evidence at trial. The court denied
the motion. The court noted for the record CFC's standing objection
to all evidence admitted or disallowed due to rulings adverse to CFC
on motions in limine.
Craig testified River East never sent him any of the promised
annual audited financial reports. When River East again in 2001
failed to provide the statements Craig requested, he "had run out of
patience, and [he] was convinced that [McLean] was not forthright."
McLean had arranged for River East to pay above market fees to the
corporations McLean owned. Because of his reservations about
McLean, Craig sought to sell CFC's shares.
According to Craig's testimony, he believed McLean himself
intended to purchase CFC's shares in River East. McLean had not
identified any other investors intending to buy parts of CFC's
interest. Craig had no doubt that by the letter of August 30, 2001,
McLean offered to buy CFC's shares for $16.7 million. Craig
understood the letter to mean McLean was willing to arrange
financing for his own purchase of the shares.
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McLean testified that in his correspondence from July through
September 2001, he sought to establish a price CFC would accept for
its shares so that he could approach potential investors with a
specific proposal. He never said he would buy CFC's shares. McLean
said Pedersen and Melk had expressed interest in buying some of
CFC's shares.
Melk and Pedersen contradicted that part of McLean's testimony.
Melk swore he never discussed with McLean the possibility of joining
a group to purchase CFC's interest. Pedersen also testified he had
no such conversations with McLean. In fact he specifically told
McLean he and Warren did not wish to participate in any further
acquisition offer.
Fealy and Augustyn testified about their meeting on September
21, 2001. Fealy and Augustyn agreed on the $16.7 million price, and
they agreed Pedersen would complete the legal work for the
transaction. According to Fealy, no one at the meeting mentioned
any group of buyers, but Fealy admitted that Augustyn mentioned
Pedersen and Warren as investors who might participate in purchasing
CFC's shares.
Augustyn testified he and Fealy agreed Pedersen would contact
the other investors in River East to see if they had any interest in
increasing their stakes in the venture by buying out CFC. If those
investors showed no interest, according to Augustyn, then McLean and
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CFC would look to outside investors.
CFC asked the court to instruct the jury:
"An agent who signs his name to a contract but does not
disclose the principal he is representing (which can be a
person or a group) is personally liable for the obligations set
forth in the contract that he has signed."
The circuit court refused the instruction. The court submitted a
verdict form asking jurors: "Did CFC prove there was an offer by
McLean to buy CFC's interest in River East, LLC for $16.7 million?"
During deliberations, the jurors sent the judge the following
question:
"[W]hen you say did CFC prove there was an offer by
McLean, does McLean have to mean McLean as an
individual?"
Over CFC's objection, the court answered, "Yes." Shortly thereafter
the jury returned a verdict in favor of McLean.
DECISION
I. Parol evidence
CFC contends the court erred when it denied the motion to bar
parol evidence. McLean answers that CFC waived this and all other
objections to rulings at trial. We find CFC preserved the issues
with its argument on the motions in limine and by making a standing
objection at the outset of trial. See People v. Jefferson, 227 Ill.
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App. 3d 491, 505, 592 N.E.2d 134 (1992). Insofar as CFC may have
technically forfeited review of some issues, we choose to exercise
our discretion to address them on the merits. See Sinclair v.
Berlin, 325 Ill. App. 3d 458, 468-69, 758 N.E.2d 442 (2001). We
review the court's decision concerning the admissibility of evidence
for abuse of discretion. Chapman v. Hubbard Woods Motors, Inc., 351
Ill. App. 3d 99, 105, 812 N.E.2d 389 (2004).
Illinois courts have adopted Corbin's statement of the parol
evidence rule:
" 'When two parties have made a contract and have expressed it
in a writing to which they have both assented as the complete
and accurate integration of that contract, evidence, whether
parol or otherwise, of antecedent understandings and
negotiations will not be admitted for the purpose of varying or
contradicting the writing.' " Kelrick v. Koplin, 73 Ill. App.
2d 63, 68, 219 N.E.2d 758 (1966), quoting 3 Corbin on Contracts
§573.
To determine whether the parol evidence rule applies to a
particular document, the court must first determine whether the
document is a contract. Kelrick, 73 Ill. App. 2d at 68. A leading
commentator explained:
"If the parol evidence rule rests on the rationale that a
later written agreement has supplanted prior negotiations, it
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follows that the rule does not come into play until the
existence of an enforceable written agreement has been shown.
Evidence of the negotiations between the parties should
therefore be admissible to show that no agreement was reached."
E. Farnsworth, Contracts §7.4, at 461-62 (1982).
If the parties have made a contract, the parol evidence rule
applies if, but only if, the parties " 'assent[ed] to a particular
writing as the complete and accurate "integration" of that
contract.' " Kelrick, 73 Ill. App. 2d at 68, quoting 3 Corbin on
Contracts §573. "Thus, our assessment of whether the parol evidence
rule applies so as to exclude any extrinsic evidence depends upon a
preliminary determination that the *** letter was a complete
integration of the parties' agreement." Eichengreen v. Rollins,
Inc., 325 Ill. App. 3d 517, 524, 757 N.E.2d 952 (2001).
Even when the parties have agreed to a written document as a
complete integration of their agreement, the court may admit parol
evidence, extrinsic to the document, to resolve ambiguities in the
document. See Quake Construction, Inc. v. American Airlines, Inc.,
141 Ill. 2d 281, 288, 565 N.E.2d 990 (1990); Lenzi v. Morkin, 103
Ill. 2d 290, 293, 469 N.E.2d 178 (1984).
CFC claims the parol evidence rule bars testimony concerning
the parties' intentions and the course of negotiations, as well as
evidence of correspondence between Craig and McLean's attorney,
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Pedersen, prior to the signed and countersigned letter of September
28, 2001. For three independent reasons, we uphold the trial
court's decision to admit parol evidence in this case: Parol
evidence helped the jury decide whether the parties reached a
contract; the documents relied on by CFC as the contract did not
indicate complete integration; and the documents left ambiguities
best resolved with the help of parol evidence.
CFC claims that McLean's signed letter of September 28, 2001,
which Craig countersigned on October 3, 2001, became a binding
contract for McLean to purchase CFC's shares in River East. McLean
contended at trial that the document was not a contract, that he
promised only to try to arrange for a group of investors to purchase
CFC's shares for the agreed sales price. Buttressing McLean’s
position is the Duchossois letter of October 2, 2001, where he said:
“Although neither Bob nor I were aware of any comments in regard to
a 90-day period to resolve this issue, we are agreeable to this with
the understanding that your group will do everything possible to
accelerate closure.” (Emphasis added.)
Nothing in the letters CFC construes as the contract shows an
intention to make that particular set of letters an integrated
agreement that would foreclose all reference to the course of
negotiation for a complete understanding of the September 28 letter.
The letter refers to "our acquisition offer," which, according to
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CFC, incorporated into the contract the proposed price of $16.7
million, stated in McLean's letter of August 30, 2001, for CFC's
interest in River East LLC. Craig's letter of September 26, 2001,
following the September 21 meeting, indicates that CFC agreed to
that price, although neither party mentions that price in the
September 28 letter. The letter of September 28 does not mention
River East or the nature of the proposed transaction.
The defendant in Lewis v. Loyola University of Chicago, 149
Ill. App. 3d 88, 500 N.E.2d 47 (1986), sought to exclude
correspondence that led to the signing of a written document, and
the signed document there, like the letter of September 28, 2001,
here, was not an integrated agreement because it lacked crucial
terms of the agreement. The appellate court held the trial court
correctly considered all prior correspondence leading to the written
document:
"Where a contract is not expressive of the complete agreement
and understanding of the parties, consideration of antecedent
proceedings does not serve to vary the contract terms but
exemplifies the terms of the agreement. Further, all relevant
evidence may be considered to determine whether a particular
writing is the complete agreement of the parties." Lewis, 149
Ill. App. 3d at 93.
Under the reasoning of Lewis, because the letters did not show an
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intent to make any particular set of documents a complete
integration of the agreement, the trial court here correctly
admitted into evidence testimony concerning the course of
negotiations that led to the September 28 letter.
Moreover, the court should admit parol evidence to explain
ambiguities in a written document presented as a contract. Harris
v. American General Finance Corp., 54 Ill. App. 3d 835, 840, 368
N.E.2d 1099 (1977). The letter of September 28 refers to "our
acquisition offer." McLean reminds Craig, "both Peer Pedersen and I
stated originally, we require 90 days from the date of your
acceptance of our offer." These phrasings introduce at least some
ambiguity as to whether McLean alone, or McLean with Pedersen and
some others, intended to make the acquisition offer. CFC itself
relied on extrinsic evidence concerning the role of Pedersen and
Augustyn to support its claim that McLean alone made the offer. By
using such evidence, extrinsic to the letter, CFC effectively
conceded the admissibility of parol evidence concerning the meaning
of the letters it poses as the contract.
The ambiguity of the letters separately justifies the trial
court's decision to admit parol evidence concerning the intentions
of the parties. Both parties had the right to present parol
evidence on the issue of whether the document qualified as an
enforceable contract for the sale of the shares. See Oldenburg v.
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Hagemann, 207 Ill. App. 3d 315, 326, 565 N.E.2d 1021 (1991).
II. McLean's admission
CFC contends the trial court should not have granted McLean's
motion to bar use in its case-in-chief of part of McLean's
deposition testimony. At the deposition CFC asked McLean a series
of questions about his statement in the letter of August 30 that he
was "willing to arrange for the purchase of [CFC's] interest in
River East LLC for a price of $16,700,000." McLean agreed it was
possible "somebody could interpret" the isolated sentence to mean
McLean would arrange financing so that he alone could purchase the
shares. CFC sought to introduce the testimony as an admission.
"Any oral or written out-of-court statement by a party to the
action *** which tends to establish or disprove any material fact in
a case is an admission and is competent evidence against that party
in the action." Ficken v. Alton & Southern Ry. Co., 291 Ill. App.
3d 635, 647, 685 N.E.2d 1 (1996). The admissibility of such
statements of fact rests on the presumption that courts can usually
rely on statements made against the speaker's interests. Felker v.
Bartelme, 124 Ill. App. 2d 43, 50, 260 N.E.2d 74 (1970). The
presumption does not make speculative or irrelevant statements
admissible. See Schall v. Forrest, 51 Ill. App. 3d 613, 615, 366
N.E.2d 1111 (1977); Moran v. Erickson, 297 Ill. App. 3d 342, 358,
696 N.E.2d 780 (1998). Nor does the presumption permit testimony
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about legal conclusions. National General Insurance Co. v. Ozella,
17 Ill. App. 3d 703, 706, 307 N.E.2d 745 (1974). "[C]omments as to
what 'might' have occurred *** generally are not admissions."
Schall, 51 Ill. App. 3d at 615.
McLean's statement at his deposition amounts to no more than
speculation as to how some reader might interpret one sentence in
one of his letters. The guess has no greater weight than any other
reader's guess about possible interpretations of the letter. The
court barred CFC from using the statement in its case-in-chief, but
specified the ruling did not foreclose use of the statement in
cross-examination of McLean. We cannot say the trial court abused
its discretion in imposing the limitation on the use of McLean's
speculative comment as to how some hypothetical reader might
interpret his letter. See Skonberg v. Owens-Corning Fiberglas
Corp., 215 Ill. App. 3d 735, 749, 576 N.E.2d 28 (1991) (trial court
did not abuse its discretion by restricting the defendant's use of
parts of the plaintiff's deposition to impeachment).
III. Evidence of mismanagement
The court disallowed CFC's evidence of mismanagement of River
East LLC because the evidence came to light after the date of the
alleged breach. The court permitted CFC to present any evidence it
had to support its theory that McLean made the offer in 2001 because
he knew of allegations he mismanaged the corporation. CFC sought to
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persuade the jury that McLean offered to buy out CFC in a desperate
effort to prevent investors from seeing the financial records that
proved his mismanagement.
In LaSalle Bank, N.A. v. C/HCA Development Corp., 384 Ill. App.
3d 806, 893 N.E.2d 949 (2008), the plaintiff sought to introduce
evidence that one of the defendants, a doctor, had a financial
incentive not to refer his patients to a cardiologist. Although the
doctor eventually referred the patient at issue to a cardiologist,
the plaintiff argued that the doctor delayed the referral due to the
financial incentives. The trial court disallowed the evidence. The
appellate court found no abuse of discretion, particularly because
the referral, coming shortly after the doctor first reviewed the
patient's chart (and the first time the examining doctor recommended
such a referral), showed that the financial incentive had little
effect on the doctor. LaSalle Bank, 384 Ill. App. 3d at 822. The
appellate court in Estate of Parks v. O'Young, 289 Ill. App. 3d 976,
980-81, 682 N.E.2d 466 (1997), and Werner v. Nebal, 377 Ill. App. 3d
447, 455-56, 878 N.E.2d 811 (2007), similarly affirmed the exclusion
of motive evidence where the potential of the evidence to confuse or
mislead the jury outweighed its probative value.
CFC sought to introduce the evidence at issue to support its
theory that McLean, without any other investors, had a motive to
purchase all of CFC's shares. The theory faces the stubborn facts
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that McLean did not pursue the purchase and he did not obstruct
CFC's successful efforts to audit the financial records of River
East. According to CFC, McLean himself provided the records that
proved his mismanagement. The fact that McLean did not purchase the
shares makes this case similar to LaSalle Bank. McLean argued that
his corporations earned all fees River East paid them, and McLean
personally committed no misconduct. CFC's proposed evidence would
lead to a minitrial on a collateral issue that had strong potential
to confuse the jurors and distract them from the central issue in
the case. Here, as in Werner, the trial court permitted enough
relevant evidence (concerning the lack of financial reports and
Craig's suspicions) to allow the plaintiff to argue its theory to
the jury. We cannot say the trial court abused its discretion by
limiting the evidence of alleged misconduct to the matters known to
either party before the date of the alleged breach of contract.
IV. Jury instruction
The trial court refused CFC's proposed instruction concerning
an undisclosed principal. CFC assigns this ruling as reversible
error. The trial court has discretion to decide which instructions
to give the jury. We will not reverse the court's judgment unless
it abused its discretion and seriously prejudiced a party's right to
a fair trial. Frank v. Edward Hines Lumber Co., 327 Ill. App. 3d
113, 119, 761 N.E.2d 1257 (2001). The trial court should instruct
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the jury only on issues raised by the evidence. Mack v. Anderson,
371 Ill. App. 3d 36, 56, 861 N.E.2d 280 (2006).
In the case at bar, when asked on the verdict form, “did CFC
prove that there was an offer by McLean to buy CFC’s interest in
River East, LLC for $16.7 million?,” the jury replied, “no.” CFC
presented no evidence McLean worked for an undisclosed principal.
CFC consistently maintained McLean himself agreed to purchase its
interest in River East. Tellingly, CFC filed its complaint solely
against McLean and its steadfast theory throughout trial was that
McLean individually entered the contract. McLean, too, presented no
evidence that he acted as agent for any principal. He said he
tried, unsuccessfully, to arrange a group of investors to purchase
CFC's interest. No evidence supported the instruction CFC proposed;
the trial court correctly refused it.
V. Jury question
CFC objects to the answer the court gave to the question the
jury sent during deliberations.
"The general rule when a trial court is faced with a
question from the jury is that the court has a duty to provide
instruction to the jury when the jury has posed an explicit
question or requested clarification on a point of law arising
from facts about which there is doubt or confusion.
[Citation.]" People v. Millsap, 189 Ill. 2d 155, 160-61, 724
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N.E.2d 942 (2000).
The trial court followed the general rule. The jury asked
whether CFC had to prove McLean, as an individual, offered to
purchases CFC’s shares. Because CFC sought to hold McLean
personally liable, and it presented no evidence that he acted as
agent for an undisclosed principal, the jury could hold McLean
liable only on proof that McLean as an individual offered to
purchase CFC's interest in River East, LLC. We find no abuse of
discretion in the court's correct response to the question.
VI. Manifest weight of the evidence
Finally, CFC contends the evidence does not support the
verdict. It asks us to enter a judgment in favor of CFC, or to
remand for a new trial. This was a close case, but the evidence of
the negotiations and the exhibits supports the jury's verdict. The
jury could have found the purported contract for the sale lacked at
least one essential term: identification of the purchasers. See
WestPoint Marine, Inc. v. Prange, 349 Ill. App. 3d 1010, 1013, 812
N.E.2d 1016 (2004). The jury obviously found McLean never made a
binding offer to buy CFC's interest. We will not second-guess the
jury's verdict. We cannot say the manifest weight of the evidence
contradicts the jury's verdict.
For the reasons stated above, we affirm the judgment of the
trial court.
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Affirmed.
R. GORDON, P.J., and HALL, J., concur.
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