GEORGE KUGLER et al., Plaintiffs-Appellees, v. SOUTHMARK REALTY PARTNERS III, a California Limited Partnership, n/k/a McNeil Real Estate Fund XXIII, et al., Defendants-Appellants (I.R.E. Real Estate Income Fund, a Florida Limited Partnership, and BFC Financial Corporation, a Florida Corporation, as its Successor in Interest, et al., Defendants).
No. 1-98-2982
First District (2nd Division)
December 14, 1999
308 Ill. App. 3d 790
Reversed.
GORDON and McBRIDE, JJ., concur.
Opinion filed December 14, 1999.
William Stevens, of McBride, Baker & Coles, of Chicago, and Stephen C. Schoettmer and Julia Jones, both of Thompson & Knight, P.C., of Dallas, Texas, for appellants.
Stephen B. Diamond, David J. Philipps, and Mary E. Philips, all of Beeler, Schad & Diamond, P.C., of Chicago, for appellees.
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
A consolidated complaint was filed against several entities, including the limited partnership of Southmark Realty Partners III, Ltd. (SRP III), and SRP III‘s general partner, Southmark PS, Inc. (SPS), formerly known as Southmark Investment Group 85, Inc. (SIG 85). Therein, class representatives (plaintiffs) sought to rescind their purchases of limited partnership interests in SRP III. Upon plaintiffs’ motion, the circuit court entered summary judgment in plaintiffs’ favor on the issue of liability. Thereafter, plaintiffs filed a motion seek
For the reasons that follow, we affirm.
BACKGROUND
On May 20, 1988, class representatives, on behalf of hundreds of individuals who purchased an interest in several limited partnerships during the years of 1985 and 1986, filed a class action suit for securities rescission in the circuit court of Cook County against 16 defendants who used the services of unregistered brokers in violation of the
On September 11, 1995, a consolidated class action amendment to complaints for rescission pursuant to the Securities Law was filed, as directed by this court in Hess, reasserting the class allegations from the original complaint through new class representatives. The consolidated complaint was brought against several entities2; however, the instant appeal concerns purchasers of interest in only one of the limited partnerships delineated therein, SRP III, as well as its general partner, SPS (formerly known as SIG 85).
On January 20, 1998, plaintiffs filed a motion seeking to have judgment entered on the rescission claim for which they had been granted summary judgment in 1996, relying solely on the affidavit of one of the class counsel‘s paralegals, Jeanne Krejci. Based on Krejci‘s calculations from computer records and distribution data supplied to the class by defendants through their prior counsel, Arnstein & Lehr, plaintiffs contended that SPS’ liability under
On April 22, 1998, SPS filed its response to plaintiffs’ motion to enter judgment against it, contending, inter alia, that plaintiffs’ motion should be denied “because the motion does not establish that the amount sought by the Class is the proper amount of judgment.” In addition, on April 24, 1998, SPS filed an amended motion to strike the Krejci affidavit, arguing therein that plaintiffs failed to establish the authenticity, admissibility or completeness of the data used to calculate SPS’ liability. SPS further asserted that the letter relied upon by Krejci in making her calculations was neither produced by SPS pursuant to discovery, written by Arnstein & Lehr in its capacity as SPS’ counsel, nor represented an admission against SPS’ interest.
On May 11, 1998, following a hearing on the matter, the circuit court entered a judgment order against SPS in the amount of $902,759.48, as to the liability for plaintiffs’ claims for rescission, pursuant to
On June 10, 1998, SPS filed its motion to reconsider and modify or vacate the judgment order, arguing, inter alia, that the calculation of damages was inaccurate in that “newly discovered evidence” established that two class members redeemed their investments in SRP III on December 31, 1995. These distributions, which totaled $12.50, as well as interest thereon in the amount of $2,952.05, had not been deducted from the total amount of the judgment entered.
On July 20, 1998, plaintiffs filed their response to SPS’ motion to reconsider, contending, inter alia, that the issue regarding the calculation of interest had been previously decided on November 12, 1996, by Judge Margaret S. McBride, a judge whom SPS and other named defendants in the consolidated class action suit were previously before. There, the I.R.E. defendants argued the same proposition for the deduction of accrued interest as was argued by SPS; however, Judge
On June 18, 1998, during the hearing on SPS’ motion to reconsider, SPS asserted that, although the present action was consolidated, Judge McBride‘s ruling regarding the calculation of interest concerned judgments in a separate lawsuit to which SPS was not a party. Moreover, SPS posited that, while
On July 13, 1998, the circuit court entered an order finding that plaintiffs’ calculation of interest followed the plain reading of the language of the Securities Law (
On August 12, 1998, SPS timely filed its notice of appeal.
DISCUSSION
I
Initially, we note that it is undisputed that plaintiffs’ motion for entry of judgment is akin to a motion for summary judgment. Thus, the granting of such a motion is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986); Arthur v. Lutheran General Hospital, Inc., 295 Ill. App. 3d 818, 822, 692 N.E.2d 1238, 1240 (1998).
In the instant case, the circuit court granted summary judgment in favor of plaintiffs as to liability for their claims of rescission. Thereafter, on January 20, 1998, plaintiffs filed a motion to set the amount of judgment against SPS pursuant to
Supreme Court Rule 191 provides that an affidavit:
“shall be made on the personal knowledge of the affiant[]; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” 145 Ill. 2d R. 191.
If, from the document as a whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there is a reasonable inference that the affiant could competently testify to its contents at trial, Rule 191 is satisfied. Burks Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 569, 575, 442 N.E.2d 648, 654 (1982). Further, courts must accept an affidavit as true if it is uncontradicted by counteraffidavit or other evidentiary materials (Lindahl v. City of Des Plaines, 210 Ill. App. 3d 281, 299, 568 N.E.2d 1306, 1318 (1991)), and whether to grant a motion to strike an affidavit submitted in support of a summary judgment motion is a question within the sound discretion of the circuit court (Cincinnati Cos. v. West American Insurance Co., 287 Ill. App. 3d 505, 514, 679 N.E.2d 91, 97, (1997)).
In the affidavit at issue, Krejci attested that she reviewed the computer records derived from those persons who sold the limited partnership interests in SRP III to plaintiffs, which specifically indicated the dates and amounts of each class member‘s purchase of interest during 1985 and 1986 and were further attached to the affidavit as an exhibit. The information was used along with distribution data supplied to the class by SPS’ prior counsel3 to prepare calculations “showing the amount paid by each class member for each partnership interest, plus accrued simple interest at a rate of 10% per year from the date of sale to February 3, 1998, minus credits for distributions as indicated by distribution data on individual investors provided [by] the Defendants.” After Krejci‘s calculations, plaintiffs posited that the amount of partnership claims for which SPS was liable totaled $891,672.25, with a per diem increase of $114.30.
As SPS neither disputes that members of the class invested the amounts claimed nor contends that data upon which Krejci relied for the calculation of liability was inaccurate, we agree with the circuit
II
SPS next contends the circuit court erred in refusing to deduct accrued interest from the judgment where two members of the class sold their interests in SRP III prior to the entry of judgment. Specifically, it argues that the Securities Law is “unclear” on the issue and does not address the accrual of interest when the purchaser no longer owns the security. We disagree.
“(1) for the full amount paid, together with interest from the date of payment for the securities sold at the rate of the interest or dividend stipulated in the securities sold (or if no rate is stipulated, then at the rate of 10% per annum) less any income or other amounts received by the purchaser on the securities, upon offer to tender to the seller or tender into court of the securities sold or, where the securities were not received, of any contract made in respect of the sale; or
(2) if the purchaser no longer owns the securities, for the amounts set forth in clause (1) of this subsection A less any amounts received
by the purchaser for or on account of the disposition of the securities.” (Emphasis added.) 815 ILCS 5/13(A)(1) ,(A)(2) (West 1996) .
In construing the statute, the court must look primarily to the words of the statute as evidence of the legislature‘s intent. Lemont-Bromberek Combined School District No. 113(a) v. Walter, 279 Ill. App. 3d 847, 849, 665 N.E.2d 548, 550 (1996). However, judicial construction is only necessary when the statute is unclear or ambiguous. Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill. App. 3d 506, 511, 575 N.E.2d 556, 559 (1991). Additionally, while courts construe statutes to give effect to legislative intent as expressed therein (Schuler v. Beers, 157 Ill. App. 3d 97, 101, 510 N.E.2d 48, 49-50 (1987)):
“Construction and interpretation of a statute is a question of law for the court, and regardless of the court‘s opinion regarding the desirability of the results surrounding the operation of the statute, the court must construe the statute as it is and may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute.” Buckellew, 215 Ill. App. 3d at 511.
See also Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956).
In our view, the language of the Securities Law is neither unclear nor ambiguous, as asserted by SPS. See Buckellew, 215 Ill. App. 3d at 511. Rather, the plain language of the statute provides that the two class members whose interests are at issue should receive, as rescission damages, the full amount paid for their interests, plus accrued interest from the date of payment of the securities at 10% per annum, less any income or other amounts received upon the disposition of the securities. See
While the statute is not unclear in regard to the calculation of damages, it does not provide for the calculation of accrued interest after the date of sale, as correctly asserted by defendants. There is no provision in the statute that would cut off an individual‘s right to recover interest after the security is sold. See
In light of the foregoing, the decision of the circuit court is affirmed.
Affirmed.
McNULTY, J., concurs.
JUSTICE GORDON, specially concurring:
While I agree with the result reached by the majority, I cannot agree with their reasoning concerning the interest charge until the date of judgment against the full amount paid for a security which was sold prior to judgment. Clearly, interest can be charged against the amount paid to the seller up to the time of the purchaser‘s resale. Moreover, contrary to the seller‘s contention, I agree that interest may further be charged to the date of judgment upon the difference between the original amount paid by the purchaser and the amount recouped on resale. Thus, where as here, the purchaser originally paid in excess of $7,000 for the securities which he ultimately resold for $12.50, the interest on the securities which were the subject of the resale may continue to accrue to the date of judgment on the difference between the original purchase price and the amount recouped on resale since, under the statute, the seller is obligated to make restitution for that difference. However, contrary to the majority, I cannot agree that interest may be charged from the date of recovery against the money actually recovered by the purchaser from the resale. Since the purchaser has the use of the money received from the resale, any interest received against that sum would constitute a windfall and an effective double recovery to the purchaser.
Contrary to the majority, I do not agree that such construction is compelled under the provisions of
Notwithstanding the above, in this cause, the overcharge of interest is minimal, given the fact that the amount recovered on resale was $12.50. The amount is so minuscule that it can be considered to be de minimus and would, therefore, not mandate a remand or adjustment. But the point, nevertheless, has to be made in the event that sums become large enough to warrant further action.