                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




   Triple R Development, LLC v. Golfview Apartments I, L.P., 2012 IL App (4th) 100956




Appellate Court            TRIPLE R DEVELOPMENT, LLC, an Illinois Limited Liability
Caption                    Company; and COLLIERS BENNETT & KAHNWEILER, INC., an
                           Illinois Corporation, Plaintiffs-Appellees, v. GOLFVIEW
                           APARTMENTS I, L.P., an Illinois Limited Partnership, Defendant-
                           Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0956


Filed                      January 23, 2012


Held                       In an action alleging that defendant defaulted on a real estate contract and
(Note: This syllabus       that plaintiff was entitled to the deposit made by defendant, the trial court
constitutes no part of     properly entered summary judgment for plaintiff and the escrow agent
the opinion of the court   was ordered to pay the deposit to plaintiff along with interest from the
but has been prepared      date of deposit to the date of disbursal, since defendant failed to terminate
by the Reporter of         the contract during the due diligence period and the contract provided
Decisions for the          that, in such circumstances, a portion of the deposit would be
convenience of the         nonrefundable.
reader.)


Decision Under             Appeal from the Circuit Court of Champaign County, No. 10-MR-312;
Review                     the Hon. Michael Q. Jones, Judge, presiding.



Judgment                   Affirmed and remanded.
Counsel on                 Michael D. Leroy and Richard F. Friedman (argued), both of Neal &
Appeal                     Leroy, LLC, of Chicago, for appellant.

                           Jeffrey W. Tock (argued), of Harrington & Tock, of Champaign, for
                           appellees.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justice Steigmann concurred in the judgment and opinion.
                           Justice Pope dissented, with opinion.




                                             OPINION

¶1          On May 3, 2010, Triple R Development, LLC (Triple R), and Colliers, Bennett and
        Kahnweiler, Inc. (CB&K), filed a complaint against Golfview Apartments I, L.P. (Golfview),
        stating that Golfview had defaulted on a real estate contract, and Triple R was entitled to the
        $230,000 deposit made by Golfview. On August 4, 2010, Triple R filed a motion for
        summary judgment. On August 17, 2010, Golfview filed its answer and affirmative defenses
        and then on September 2, 2010, filed a countermotion for summary judgment. A hearing on
        Triple R’s motion for summary judgment was held on September 27, 2010. On October 27,
        2010, the court entered its order granting Triple R’s motion for summary judgment. The
        court reserved the issue of attorney fees, set forth in count II of Triple R’s complaint, but
        made a finding, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), that
        there is no just reason to delay either enforcement or appeal. Golfview appeals. We affirm
        and remand.

¶2                                        I. BACKGROUND
¶3          The trial court determined there was no dispute as to the following facts. Triple R and
        Golfview entered into a contract on May 7, 2007, for the sale of real estate commonly known
        as Golfview Village Apartments, for $21 million. The closing on the sale was to occur within
        150 business days of May 7, 2007. Pursuant to paragraph 4.A. of the contract, Golfview
        deposited $230,000 with CB&K, as escrow agent. An introductory clause in the contract
        recites that “Seller understands that Buyer intends to finance the acquisition and construction
        of said premises through the use of 1) tax exempt bonds issued by Illinois Housing
        Development Authority (IHDA) and/or the City of Rantoul, and 2) tax exempt bond credit
        enhancement financing.” There is no dispute that Golfview did not obtain tax exempt bond
        and tax exempt bond credit financing.
¶4          The contract was for the purchase of approximately 76.62 acres containing 96 buildings

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     with rental apartments, for a purchase price of $21 million. The contract required Golfview
     to make a deposit of $230,000 upon the execution of the agreement. Under paragraph 5.A.
     of the contract, “[a]fter the expiration of the Due Diligence Review and the review period
     for the survey without termination by the Buyer, $230,000 of the deposit shall be non-
     refundable to Buyer except in the event of Seller’s default.” Under paragraph 14, Golfview
     had 30 days to perform its due diligence review after Triple R delivered certain items, which
     Triple R was obligated to do within 20 or 30 business days after the date of the contract.
     Paragraph 5.A. gave Golfview the power to direct the return of the deposit “provided such
     direction is given” during the 30-day due diligence review. In its verified answer to the
     complaint, Golfview admitted “that it did not terminate the Contract during the due diligence
     period; however the contract automatically terminated upon the Closing date set forth in the
     Contract because [Golfview] had not determined its eligibility to receive tax credits for the
     Premises.”
¶5       Paragraph 10.F. of the contract and the concluding paragraph of paragraph 10 provided
     as follows:
             “Buyer will not be obligated to consummate the transaction unless and until:
                                              ***
                 (iii) Buyer has determined its eligibility to receive tax credits for the Premises.
                 ***
         If any of the above requirements to Closing are not satisfied as of Closing, this
         Agreement shall automatically terminate on the Closing date and the Earnest Money,
         together with all interest earned thereon, shall be refunded to Buyer and the parties shall
         have no further liability to each other, except for such obligations as expressly survive
         termination under this Agreement, unless Buyer waives the unsatisfied items.”
     The closing date was set out in paragraph 3:
             “Closing. If Seller shall have complied with all of its obligations contained herein,
         and Buyer has not otherwise terminated this Contract pursuant to the terms hereof and
         the Buyer obtains the financing and/or government approvals set forth in this Contract,
         then the purchase and sale contemplated herein shall close (the ‘Closing’) at the office
         of the Title Company within one hundred and fifty (150) business days from the date of
         this Contract.”
     Paragraph 5.A. added that “in the event closing does not occur within the time specified
     under Section 3 through no fault of Buyer,” Buyer could obtain a 30-day extension by
     depositing “$100,000 as additional earnest money,” and a second and final 30-day extension
     by depositing “an additional $100,000 earnest money.”

¶6                                        II. ANALYSIS
¶7        Summary judgment is proper only where the pleadings, depositions, and admissions on
     file, together with the affidavits, if any, show that no genuine issue as to any material fact
     exists and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
     (West 2008). A circuit court’s entry of summary judgment is subject to de novo review.

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       Virginia Surety Co. v. Northern Insurance Co. of New York, 224 Ill. 2d 550, 556, 866 N.E.2d
       149, 153 (2007). It is sometimes more difficult for a plaintiff to prevail on a motion for
       summary judgment than it is for a defendant. Where a plaintiff has moved for summary
       judgment, the materials relied upon must establish the validity of the plaintiff’s factual
       position on all the contested elements of the cause of action. General Motors Corp. v.
       Douglass, 206 Ill. App. 3d 881, 885, 565 N.E.2d 93, 96 (1990) (citing 4 Richard A. Michael,
       Illinois Practice § 38.5, at 229 (1989) (Civil Procedure Before Trial)). The issue in this case,
       however, is raised by defendant as an affirmative defense. “Contract construction and
       interpretation are generally well suited to disposition by summary judgment.” William Blair
       & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324, 334, 830 N.E.2d 760, 769 (2005).
¶8          Golfview attached the affidavit of Vince Lane, a consultant it had hired to manage and
       arrange financing for the project, to its response to Triple R’s motion for summary judgment.
       Lane stated that closing “was conditioned upon [Golfview] obtaining tax exempt bond and
       credit financing, which was codified in the Recital Section and Section 10(F)(iii) of the
       Agreement.” The trial court was critical of the Lane affidavit. “Mr. Lane states in his
       Affidavit that [Golfview] was not able to obtain ‘tax exempt bond and credit financing,’ but
       he is silent as to whether or not [Golfview] had, prior to Closing, ‘determined its eligibility
       to receive tax credits for the Premises’ as stated in paragraph 10.F.”
¶9          The Internal Revenue Code provides for a “low-income housing credit” calculated in part
       by determining the building’s “eligible basis.” 26 U.S.C. § 42(d) (2006). “Eligible basis” for
       an existing building is determined in part, for example, by determining if the building was
       purchased, has been out of service for at least 10 years, and was not previously placed in
       service by the taxpayer or a relative. 26 U.S.C. § 42(d)(2) (2006). Eligibility for tax credits
       does not mean, however, that the tax credits will be received. Eligible premises would
       actually receive tax credits only if selected by the Illinois Housing Development Authority.
       26 U.S.C. § 42(m) (2006).
¶ 10        The affidavit of Alan Nudo, member and manager of Triple R, stated that he had received
       an appraisal from Lane. The appraisal was prepared by Appraisal Research Counselors.
       Nudo’s affidavit attached pages 95 to 102 of that appraisal. Page 102 stated the “value of low
       income housing tax credits” to be $9,100,000. Page 99 set out the tax credit calculations,
       stating “We have made no independent verification of the eligible basis provided–we assume
       the basis quoted to be correct. The estimated tax credit percentage and value per $1 were
       taken from the developer’s [Golfview’s] pro forma.” Page 100 stated, “Reportedly, a sale of
       the tax credits is being negotiated with Century Pacific. The price has not yet been finalized;
       however, it was estimated at $9,073,521, or $0.90 per tax credit dollar, by the developer.”
       “Based on the survey data, we have concluded the developer’s figure of $0.90 per tax credit
       dollar to be reasonable. This results in an estimated value of $9,073,521. This figure,
       rounded, totals $9,100,000.”
¶ 11        Golfview argues that the contract automatically terminated on the closing date set forth
       in paragraph 3, because Golfview had not “determined its eligibility to receive tax credits”
       as required by paragraph 10.F. Golfview quotes the concluding language of paragraph 10:
       “If any of the above requirements to Closing are not satisfied as of Closing, the Agreement
       shall automatically terminate on the Closing date and the Earnest Money, together with all

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       interest earned thereon, shall be refunded to Buyer and the parties shall have no further
       liability to each other ***.” Interestingly, Golfview does not set out the language which
       immediately follows: “except for such obligations as expressly survive termination under this
       Agreement.” Paragraph 5.A. contains such an exception: “After the expiration of the Due
       Diligence Review and the review period for the survey without termination by the Buyer,
       $230,000 of the Deposit shall be non-refundable to Buyer except in the event of Seller’s
       default.” (Emphasis added.) The buyer’s default here did not justify a refund of the deposit.
       A down payment in a contract for the sale of real estate is recognized as an assurance to the
       seller that the buyer will perform. Bamberg v. Griffin, 76 Ill. App. 3d 138, 144, 394 N.E.2d
       910, 915 (1979). Even if the buyer is relatively blameless, the seller may incur expenses if
       the deal falls through. This was a big project, involving 96 buildings with rental apartments.
       Triple R was obligated to produce a number of items, including a survey, copies of utility
       bills, tax bills, leases, service contracts, a complicated “rent roll,” and a title insurance
       commitment. Golfview admits that it did not terminate the contract during the due diligence
       period.
¶ 12        The trial court did not reach the question whether paragraph 5.A.’s provision that the
       deposit was nonrefundable to Buyer after the expiration of the due diligence period fit in the
       category of “such obligations as expressly survive termination under this Agreement.”
       Instead, the court determined that Golfview had in fact “determined its eligibility to receive
       tax credits” and therefore was compelled to close on the purchase of the premises under
       paragraph 10.F. The Appraisal Research Counselors appraisal relied on the information
       supplied by Golfview as to its eligibility to receive tax credits. Not only did Golfview supply
       that information to Appraisal Research Counselors, Golfview began negotiations for the sale
       of those credits. Golfview did not file any counteraffidavit disputing the fact that it had
       determined its eligibility to receive tax credits. While the movant always has the burden of
       persuasion on a motion for summary judgment, the burden of production can shift to the
       nonmovant. Once the movant has met its initial burden of production, the burden shifts to
       the nonmovant. At this point, the nonmovant cannot rest on its pleadings to raise genuine
       issues of material fact. Helfers-Beitz v. Degelman, 406 Ill. App. 3d 264, 267-68, 939 N.E.2d
       1087, 1091 (2010). The trial court properly concluded that Golfview had “determined its
       eligibility to receive tax credits.”
¶ 13        Golfview argues that “Mr. Nudo’s affidavit did not name the author of the appraisal, the
       purpose for which it was prepared, for whom it was prepared or even the date that the
       appraisal was prepared.” Golfview also argues that the appraisal excerpt was hearsay and
       should not have been admitted. The trial court did not rule on these objections because they
       were not made in the trial court. See Cordeck Sales, Inc. v. Construction Systems, Inc., 382
       Ill. App. 3d 334, 383, 887 N.E.2d 474, 521 (2008) (sufficiency of affidavits cannot be tested
       for the first time on appeal). Nudo’s affidavit states that he received the appraisal from Lane,
       whom Golfview admits was its consultant whom it had hired to manage and arrange
       financing for Golfview Apartments. It is inconsistent for Golfview to deny the validity of the
       appraisal and then argue that “Both the appraisal and the pro forma were valuation exercises
       based on the assumption that such tax credits would be available. This assumption was
       appropriate since the availability of such financing was central to Defendant’s ability to

                                                 -5-
       complete the transaction.” (Emphasis in original.) Golfview has not submitted any affidavits
       denying that it employed Appraisal Research Counselors to make an appraisal, denying that
       it supplied Appraisal Research Counselors with a pro forma, denying that it determined its
       eligibility to receive tax credits, or denying that it entered into negotiations with Century
       Pacific. All those matters were particularly within the knowledge of Golfview. Triple R
       introduced sufficient evidence so that Golfview was required to respond or accept the facts
       set out in Triple R’s affidavit as true. Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d
       867, 871-72 (1986).
¶ 14        The argument is made that the trial court’s finding that the “parties did not bind
       themselves [under paragraph 3] to consummate the transaction if [Golfview] was not able
       to obtain tax exempt bond and tax exempt bond credit enhancement financing” (emphasis
       added) is inconsistent with its finding that the “parties did bind themselves pursuant to
       paragraph 10.F. of the Contract whereby [Golfview] would consummate the transaction if
       [Golfview] determined prior to Closing its eligibility to receive tax credits” (emphasis
       added). We disagree. Paragraph 3 provides a method for determining the closing date “if”
       certain events have occurred; paragraph 10.F. spells out when Golfview is “obligated” to
       consummate the transaction. The two paragraphs are alternatives; occurrence of the events
       spelled out in either paragraph would require Golfview to consummate the transaction. As
       the trial court found, “Paragraph 3 and paragraph 10.F. are not the same and they do not
       conflict with each other.”
¶ 15        An earnest money deposit in a real estate transaction is designed to protect the seller. It
       provides assurance to the seller that the buyer will perform and not walk away from the
       contract. Bamberg, 76 Ill. App. 3d at 144, 394 N.E.2d at 915. What is the purpose of a
       deposit if it is returned to the buyer whenever the buyer chooses not to proceed? Sometimes
       the parties do make their contract dependent on financing. Financing contingency clauses are
       common in real estate contracts. See, e.g., Barnes v. Brown, 193 Ill. App. 3d 604, 607, 550
       N.E.2d 34, 36 (1990). No such language appears in this contract. Instead, the parties made
       the contract contingent on a determination of eligibility under the Internal Revenue Code, 26
       U.S.C. § 42(d)(2). Forfeitures of contracts are not favored, and a party will be relieved from
       a technical forfeiture if an injustice would result. Denis F. McKenna Co. v. Smith, 302 Ill.
       App. 3d 28, 32, 704 N.E.2d 826, 830 (1998). There was more than a technical forfeiture here.
       This was a major project where the buyer was required to make prompt decisions, not wait
       until the last minute. The intent of the parties was clearly set out in paragraph 5.A.: “After
       the expiration of the Due Diligence Review *** without termination by the Buyer, $230,000
       of the Deposit shall be non-refundable to Buyer except in the event of Seller’s default.”
       Paragraph 10.F. did entitle Golfview to a refund if it was unable to determine its eligibility
       to receive tax credits, but there is a difference between the words “eligible” and “obtained.”
       Golfview was eligible for tax credits under 26 U.S.C. § 42(d), and the trial court properly
       found there was no genuine issue as to the fact that Golfview had determined that eligibility
       prior to June 7, 2007, the date of the Appraisal Research Counselors appraisal.
¶ 16        In response to the dissenting opinion, “A plaintiff may carry his burden of production
       with respect to affirmative defenses in the way a movant that does not have the burden of
       proof at trial may.” 4 Richard A. Michael, Illinois Practice § 40.3, at 381 n.7 (2d ed. 2011)

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       (Civil Procedure Before Trial volume, discussing the effect on the burdens of persuasion and
       production). An affirmative defense basically confesses the plaintiff’s case but asserts a new
       matter that avoids liability. The only contested issue is the affirmative defense; the elements
       of the cause of action are no longer contested. Whether the movant is the plaintiff or the
       defendant, the burden of production may shift to the party opposing a motion for summary
       judgment. Michael, supra, § 40.3, at 381. Once the movant produces evidence that, if
       uncontradicted, would entitle it to a directed verdict at trial, the burden of production shifts
       to the party opposing the motion. The nonmovant may not simply rely on his pleadings to
       raise issues of material fact. Larson v. Decatur Memorial Hospital, 236 Ill. App. 3d 796, 801,
       602 N.E.2d 864, 868 (1992). Nor is mere argument enough to raise an issue of material fact.
       Larson, 236 Ill. App. 3d at 801, 602 N.E.2d at 868. Triple R introduced persuasive evidence
       here, evidence that Golfview’s pro forma acknowledged a determination of its eligibility and
       that Golfview had entered into negotiations for the sale of tax credits. If that evidence were
       presented at trial, and Golfview failed to present evidence to contradict it, Triple R would
       be entitled to a directed verdict. Golfview’s failure to file a counteraffidavit warranted
       summary judgment in this case.

¶ 17                                    III. CONCLUSION
¶ 18       For the reasons stated, we affirm the trial court’s granting of summary judgment ordering
       CG&K to pay to Triple R the entire deposit of $230,000, plus any and all interest accrued
       thereon from the date of deposit to the date of disbursal. We remand for consideration of the
       attorney fees issue reserved by the court.

¶ 19      Affirmed and remanded.

¶ 20        JUSTICE POPE, dissenting:
¶ 21        I respectfully dissent from the majority’s decision.
¶ 22        As our supreme court has made clear, summary judgment is a drastic means of disposing
       of litigation. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163, 862 N.E.2d 985, 991
       (2007). For summary judgment to be appropriate, the movant’s right must be clear and free
       from doubt. Bagent, 224 Ill. 2d at 163, 862 N.E.2d at 991.
¶ 23        When a trial court rules on a motion for summary judgment or an appellate court reviews
       a trial court’s decision, the courts must remember the party moving for summary judgment
       is the burdened party (see North American Insurance Co. v. Kemper National Insurance Co.,
       325 Ill. App. 3d 477, 482, 758 N.E.2d 856, 860 (2001)), and the moving party must meet
       both the initial burden of production and the ultimate burden of proof. See Pecora v. County
       of Cook, 323 Ill. App. 3d 917, 933, 752 N.E.2d 532, 545 (2001); Wortel v. Somerset
       Industries, Inc., 331 Ill. App. 3d 895, 900, 770 N.E.2d 1211, 1214 (2002); Williams v.
       Covenant Medical Center, 316 Ill. App. 3d 682, 688-89, 737 N.E.2d 662, 668 (2000); see
       also Barbara A. McDonald, The Top 10 Ways to Avoid Losing a Motion for Summary
       Judgment, 92 Ill. B.J. 128, 128-29 (2004).


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            “If the movant has the burden of proof at trial, the movant must produce affirmative
            evidence that, if uncontradicted, would justify a directed verdict at trial to carry the
            original burden of production on the motion. [Webber v. Armstrong World Industries,
            Inc., 235 Ill. App. 3d 790, 601 N.E.2d 286 (1992); Venus v. O’Hara, 127 Ill. App. 3d 19,
            29, 468 N.E.2d 405, 411 (1984).] Because the party with the burden of proof at trial will
            normally be the plaintiff, if the plaintiff is the movant, the affirmative evidence must
            cover all essential elements of the cause of action not admitted in the pleadings
            [citations] and any affirmative defense raised by the defendant. [Citation.]” (Emphasis
            added.) 4 Richard A. Michael, Illinois Practice § 40.3, at 380-81 (2d ed. 2011) (Civil
            Procedure Before Trial volume, discussing effect of the burdens of persuasion and
            production).
       Judge McDonald explained this further in her article, The Top 10 Ways to Avoid Losing a
       Motion for Summary Judgment, stating “[w]hen a plaintiff files a summary judgment motion
       on her complaint, she meets her initial burden by presenting evidence which, as a matter of
       law, establishes each element of her claim, as well as negates, or demonstrates the
       defendant’s inability to prove an element of any affirmative defense. [West Suburban Mass
       Transit District v. Consolidated R. Corp., 210 Ill. App. 3d 484, 488, 569 N.E.2d 187, 190
       (1991).]” See McDonald, supra, at 130.
¶ 24        The majority ignores the plaintiffs’ burden with regard to Golfview’s first affirmative
       defense in this case. In its affirmative defense, Golfview alleged it was not obligated to
       consummate the contract by the closing date because it had not determined its eligibility to
       receive tax credits for the premises. According to Golfview: “The determination of
       [Golfview’s] eligibility to receive tax credits was a condition precedent to closing and the
       condition was not met[;] therefore the Agreement automatically terminated on the Closing
       Date and the Earnest Money, together with all interest earned, should have been refunded to
       [Golfview] with no further liability.” Plaintiffs did not meet their initial burden of production
       in this case. Plaintiffs did not present evidence demonstrating as a matter of law Golfview
       was unable to prove an element of its affirmative defense. In addition, plaintiffs did not
       present evidence negating as a matter of law that same affirmative defense. In this case, the
       record does not clearly establish Golfview made an eligibility determination.
¶ 25        The majority cites the First District Appellate Court’s opinion in General Motors Corp.
       v. Douglass, 206 Ill. App. 3d 881, 885, 565 N.E.2d 93, 96 (1990), which relied on section
       38.5 of Professor Michael’s treatise, Civil Procedure Before Trial (see 4 Richard A. Michael,
       Illinois Practice § 38.5, at 229 (1989)), as authority for what a plaintiff moving for summary
       judgment has to establish before summary judgment can be awarded. Interestingly, the most
       recent version of section 38.5 of Professor Michael’s treatise states:
            “The movant must analyze all the issues raised by the pleadings, and ensure that the
            materials relied on in the motion establish the truth of all the factual issues on which the
            movant must prevail in order to be entitled to judgment or at least, the nonmovant cannot
            prove those issues on which he or she has the burden of proof. Accordingly, if the
            movant is a plaintiff, the materials relied on must establish the validity of the plaintiff’s
            factual position on all the contested essential elements of the cause of action, and on all
            affirmative defenses raised by the defendant either that they are not true or the defendant

                                                  -8-
            cannot prove them.” (Emphasis added.) 4 Richard A. Michael, Illinois Practice § 38.5,
            at 320 (2d ed. 2011) (Civil Procedure Before Trial volume, discussing the procedure and
            operation of motions for summary judgment).
       As stated previously, plaintiffs did not present evidence negating Golfview’s affirmative
       defense as a matter of law. Further, plaintiffs did not present evidence establishing as a
       matter of law Golfview’s inability to prove an element of its affirmative defense. As a result,
       the burden of production never shifted to Golfview with regard to plaintiffs’ motion for
       summary judgment. In other words, based on the record in this case, Golfview did not have
       to present any affidavits or other information declaring it had not made an eligibility
       determination to survive summary judgment.
¶ 26        According to the majority, the trial court
            “determined that Golfview had in fact ‘determined its eligibility to receive tax credits’
            and therefore was compelled to close on the purchase of the premises under paragraph
            10.F. The Appraisal Research Counselors appraisal relied on the information supplied
            by Golfview as to its eligibility to receive tax credits. Not only did Golfview supply that
            information to Appraisal Research Counselors, Golfview began negotiations for the sale
            of those credits. *** The trial court properly concluded that Golfview had ‘determined
            its eligibility to receive tax credits.’ ” (Emphases added.) Supra ¶ 12.
       The majority’s choice of the words “determined” and “concluded” describe exactly what the
       trial court did with regard to this case. The trial court acted as a trier of fact and made a
       factual determination that Golfview must have made an eligibility determination based on
       its assessment of the evidence in the record. However, nothing in the record, neither the
       appraisal nor any affidavit, establishes as a matter of law that Golfview made an eligibility
       determination.
¶ 27        Finally, I note the majority, while discussing its interpretation of the meaning of the
       contract in this case and the general purpose for deposits in real estate contracts, ignores an
       important concession made by plaintiffs’ counsel. At oral argument, plaintiffs’ counsel
       conceded Golfview would be entitled to the return of its deposit pursuant to paragraph
       10.F.(iii) if it determined it was not eligible for tax credits on the premises.
¶ 28        Accordingly, for the reasons stated above, I respectfully dissent.




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