Potomac Group, Inc. v. Pezzola

Potomac Group sued Pezzola for breach of a real estate contract after a failed closing, and Pezzola counterclaimed for return of his $50,000 earnest money deposit. The circuit court denied Potomac's summary judgment motion, granted summary judgment to Pezzola on Potomac's third amended complaint (finding Potomac breached by being unable to convey title), denied Potomac leave to amend its pleadings, granted summary judgment to Pezzola on his counterclaim, and awarded Pezzola over $136,000 in attorney fees under a prevailing-party provision in a contract rider.

The Illinois Appellate Court, First District, reversed the grant of summary judgment for Pezzola on the original complaint, holding that a seller need not hold title at contract execution but only be able to tender a deed at the specified closing time; because the buyers cancelled before the March 21, 2019 closing date, there was no record evidence establishing Potomac's inability to convey title at that time. The court affirmed denial of Potomac's own summary judgment motion, finding factual disputes over whether the buyers' cancellation was a material breach or was excused or waived by the parties' subsequent conduct in continuing to negotiate. The court also reversed summary judgment on Pezzola's counterclaim, since the finding that Potomac breached first (which had excused Pezzola's nonperformance) was undermined, and additional fact issues existed regarding a separate April contract underlying the counterclaim.

Because the fee award depended on Pezzola's status as the prevailing party, the court vacated it as premature. The court declined to reach the amendment issues, leaving them open for remand. This unpublished Rule 23 decision is instructive for attorneys litigating real estate breach claims, anticipatory repudiation, waiver through continued negotiation, and contractual attorney fee provisions tied to prevailing-party status.