IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT CHAMPAIGN COUNTY, ILLINOIS

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1 FILED Sixth Judicial Circuit 8/31/2017 2:38 PM Katie M. Blakeman Clerk of the Circuit Court Champaign County, Illinois By: GF IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT CHAMPAIGN COUNTY, ILLINOIS JOHN E. MAGGIO, and REMAX REALTY ASSOCIATES, Plaintiffs, Case #: 2013-L-183 vs. RANDY PEIFER, a/k/a/ RANDALL L. PEIFER, and SIGNATURE HOMES OF BLOOMINGTON, LLC, d/b/a SIGNATURE HOMES, Defendants. MOTION TO RECONSIDER NOW COME Defendants, RANDY PEIFER, a/k/a Randall L. Peifer, and SIGNATURE HOMES OF BLOOMINGTON, L.L.C., by their attorneys Lietz Banner Ford LLP, and ask the Court to reconsider its Order of August 2, 2017, which granted Judgment in favor of Plaintiffs. In support of this Motion, Defendants state: 1. This Motion is brought under 735 ILCS 5/ The Court entered a Judgment in favor of the Plaintiffs for $52, plus statutory interest at 5% from December 7, That Judgment should be vacated or modified for the following reasons: a. Plaintiffs Complaint fails to state a cause of action against Defendant Signature Homes of Bloomington, L.L.C. b. Signature Homes of Bloomington, L.L.C. is not a party to the contested Contract. Randall Peifer alone signed the Contract on June 26, Signature Homes of Bloomington, L.L.C., an Illinois limited liability company,

2 was created on November 10, 2004, by filing articles of organization with the Illinois Secretary of State. Indeed, Plaintiffs acknowledged and pleaded the formation of Signature Homes of Bloomington, L.L.C. on November 10, 2004, in paragraph 5 of the Common Allegations of Plaintiffs Complaint. Defendant Signature Homes of Bloomington, L.L.C. simply did not exist at the date of contract formation as a legal entity capable of making a contract, and thus could not have been and was never a party to the Contract at issue. No allegation of assignment or novation of the Contract making Defendant Signature Homes of Bloomington, L.L.C. a party to the contract or an obligor for the fee claimed by Plaintiffs was pleaded by Plaintiffs. c. The Contract at issue stated that Plaintiffs be paid 2% OF THE SELLING PRICE BY THE BUYERS WHEN THE VARIOUS LAND TRACTS ARE SOLD THROUGH TIME TO THE DEVELOPERS WORKING WITH RANDY PEIFER. d. Signature Homes of Bloomington, L.L.C. is neither a developer working with Defendant Randall Peifer nor a company which purchased the real estate for which Plaintiffs claimed a commission. Signature Homes of Bloomington, L.L.C. is not once listed as the grantee on any of the deeds contained as exhibits to Plaintiffs Complaint. Signature Homes of Bloomington, L.L.C. is in fact a limited liability company which buys platted lots, builds homes on the platted lots, and sells each platted lot improved with a newly constructed home to people. Such activity is not covered by the contested Contract. e. Defendant Randall Peifer, in his sworn Affidavit filed in opposition to Plaintiffs Motion for Summary Judgment stated that 1 Signature Homes of Bloomington, L.L.C. is a company whose general business is construction of residences within the State of Illinois; and 2 Signature Homes of Bloomington, L.L.C. did not participate in and was not the buyer in any of the purchase 2

3 transactions described in Plaintiffs Complaint, and 3 Signature Homes of Bloomington, L.L.C. does not develop residential subdivisions. Defendants have consistently in their pleadings denied that Defendant Signature Homes of Bloomington, L.L.C. owes Plaintiffs the fee claimed. f. Judgment is improper against Defendant Randall Peifer because material facts alleged in Plaintiffs Complaint were contested by Defendant Randall Peifer s sworn Affidavit. g. Respectfully, judgment is improper against Defendant Randall Peifer as the Court improperly applied the Real Estate License Act of 2000 by failing to determine that the contested Contract was a brokerage agreement and therefore void for lack of an automatic expiration date. The Court suggested that a separate agency agreement should or might have been signed in addition to the contested Contract, but one contract which encompassed the agency was all that was created and required. The Court rejected the evidence provided in Defendants Memorandum in Support of their Motion for Summary Judgment that Plaintiff John Maggio several times, in no uncertain terms, informed the owners/potential sellers of real estate that he was serving as a buyer s agent on an ongoing basis for Defendant Randall Peifer. h. Respectfully, the Court improperly rejected Defendant Randall Peifer s sworn statement that he understood and expected that Plaintiff John Maggio would serve as his agent. One contract indeed encompassed the parties rights and duties, which contract included the essential agency which required of Plaintiff Maggio an obligation to perform future services. The parties actions after execution of the contested Contract ratified the agency relationship created under the one Contract. An express statement of agency within the contested Contract was not required; the parties ratified the agency by their actions. 3

4 i. Review of Plaintiff John Maggio s correspondence contained in Defendants Memorandum in Support of their Motion for Summary Judgment illustrated not just that Plaintiff Maggio believed and announced to the owners/potential sellers of the real estate that he was acting as Defendant Randall Peifer s agent; such evidence also shows that the parties communicating with Plaintiff Maggio also understood him to be the Defendant Randall Peifer s agent. And no evidence was provided by Plaintiff John Maggio that he renounced the agency. Reconsider. 3. Defendant asks the Court for a briefing schedule on this Motion to WHEREFORE, Defendants RANDY PEIFER, a/k/a Randall L. Peifer, and SIGNATURE HOMES OF BLOOMINGTON, L.L.C., by their attorneys, pray that the Court will reconsider its Order entering Judgement in favor of Plaintiffs and against Defendants and will modify or vacate such order. Respectfully submitted, RANDY PEIFER, a/k/a Randall L. Peifer and SIGNATURE HOMES OF BLOOMINGTON, LLC, Defendants, BY: /s/ Kelly E. Ford One of their attorneys Kelly E. Ford Lietz Banner Ford LLP Suite S. State Street Champaign, IL Telephone: ( Facsimile: ( kford@lbflaw.com 4

5 CERTIFICATE OF SERVICE The undersigned, being first duly sworn, upon oath deposes and says that she did, on the 31 st day of August, 2017, at or about the hour of 5:00 p.m., deposit in the United States mails at the U. S. Post Office Box in the Champaign, Illinois, an envelope containing a copy of the within Defendants Motion to Reconsider and addressed to each of the addressees below, bearing postage fully prepaying the same to the addressees and also bearing the return address of Lietz Banner Ford LLP, 1605 S. State Street, Suite 103, Champaign, IL, John T. Phipps John T. Phipps Law Offices, P.C. 44 Main Street P.O. Box 1220 Champaign, IL /s/ Kelly E. Ford Kelly E. Ford Lietz Banner Ford LLP Suite S. State Street Champaign, IL Telephone: ( Facsimile: ( kford@lbflaw.com 5