Kaplan, Robert B. v. Shure Bros Inc ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4027
Robert B. Kaplan,
Plaintiff-Appellant,
v.
Shure Brothers, Incorporated,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 982--John F. Grady, Judge.
Argued May 11, 2001--Decided September 4, 2001
Before Bauer, Diane P.Wood, and Evans,
Circuit Judges.
Bauer, Circuit Judge. Robert Kaplan
appeals the district court’s award of
summary judgment to defendant Shure
Brothers, Inc. on his contract claim for
breach of warranty. The district court
found as a matter of law that Kaplan
lacked standing to sue on the real estate
contract at issue. We affirm.
BACKGROUND
On July 14, 1987, Shure entered into a
real estate purchase agreement with RBK
Furniture, Inc. ("RBK"), in which it
agreed to sell to RBK a parcel of land
located at 3635 West Touhy Avenue in
Lincolnwood, Illinois for $2,857,000. In
the contract, Shure made a number of rep
resentations regarding the land,
including a statement that Shure had not
used the property for the production and
storage of any hazardous substances, and
that to Shure’s knowledge the land had
never been used as a landfill or a waste
dump. The contract stated that all of
Shure’s representations and warranties
would survive the closing and that RBK
would be entitled to money damages in the
event that Shure breached any of its
promises. Moreover, the contract provided
that it was "binding upon and shall inure
to the benefit of the parties hereto and
their respective successors and assigns."
American National Bank and Trust Company
of Chicago, Illinois ("ANB") agreed to
finance RBK’s purchase of the site from
Shure. In November of 1987, a Land Trust
was created naming ANB as trustee and RBK
as sole beneficiary. RBK and ANB executed
a note in the principal amount of
$2,875,000 payable to ANB, and a first
mortgage in favor of ANB. As security for
the note, Kaplan executed a personal
guarantee and signed an agreement with
ANB pledging $575,000 as collateral for
any indebtedness and obligations of
Kaplan to ANB. When the sale closed on
December 2, 1987, Shure conveyed title to
the site by warranty deed to ANB as
trustee, at the direction of RBK.
In April of 1988, The Fidelity Mutual
Life Insurance Company ("Fidelity")
agreed to lend the Land Trust $4 million
to refinance the ANB loan and to fund the
renovation of the site. ANB executed a
note in the principal amount of $4
million payable to Fidelity, and a first
mortgage in favor of Fidelity. To secure
this loan, Kaplan executed a guarantee
which provided that he would be liable
for 25% of the outstanding principal. In
addition, RBK assigned its entire
beneficial interest in the Land Trust to
Kaplan, and Kaplan accepted the
assignment. RBK then provided Fidelity
with an estoppel certificate in which RBK
represented that it claimed no right or
interest in any contract involving the
sale of the site. The Trust then leased
the land to RBK, which used the site as
a retail furniture showroom, warehouse,
and office until it ceased operations and
voluntarily assigned its assets for the
benefit of creditors in 1991. RBK was
involuntarily dissolved on July 1, 1995.
After the Trust defaulted on the
mortgage and the note, Fidelity filed
suit seeking foreclosure and sale of the
site, an assignment of rents, and a
deficiency judgment against Kaplan. The
district court found that Kaplan was
liable on the guarantee, and Kaplan paid
Fidelity $1,107,238.85 on June 30, 1995
pursuant to a settlement agreement.
Before Fidelity filed its complaint, the
Trust entered into an option-to-purchase
agreement with Wal-Mart Stores, Inc.
("Wal-Mart"). Wal-Mart conducted an
environmental examination of the site and
discovered contamination. Subsequently,
Wal-Mart chose not to proceed with the
purchase. (The parties dispute whether
the discovery of contamination was the
impetus for Wal-Mart’s decision.
Moreover, Kaplan claims that he attempted
to sell the property after the Wal-Mart
deal collapsed, but that it was
unmarketable due to the contamination.)
In addition, in December of 1994,
Illinois Tool Works ("ITW"), which owned
property adjacent to the site, sued RBK
and (eventually) Kaplan, claiming that
its property was contaminated with
hazardous substances released or
threatened to be released from land owned
by Kaplan and operated by RBK. ITW sought
a declaration that Kaplan and RBK were
required to clean up the contamination at
the site, as well as any contamination
migrating to ITW’s property, and that
they were liable for past and future
costs that ITW incurred in addressing the
problem. ITW’s suit was settled.
In February of 1996, Kaplan brought suit
in the Northern District of Illinois
asserting a breach of contract claim
against Shure, together with other claims
not relevant to this appeal. Kaplan
asserted that Shure had breached its
warranty that contaminating substances
were never used at the site. On Shure’s
motion, the district court dismissed the
claim pursuant to Fed. R. Civ. P. 12(b)(6)
without prejudice, finding that Kaplan’s
allegations failed to indicate that he
had the authority to bring the contract
action against Shure, since he was not a
party to the contract between Shure and
RBK and he had not adequately pled that
he was a third-party beneficiary of that
contract. However, the court gave Kaplan
leave to re-plead the claim on a third-
party beneficiary theory. Kaplan filed a
first and second amended complaint, and
the defendants again moved to dismiss.
The district court granted the
defendants’ motion with prejudice,
rejecting Kaplan’s third-party
beneficiary arguments and his claim that
he was RBK’s "successor" under the
contract by virtue of RBK’s assignment of
its beneficial interest in the Land
Trust. Kaplan appealed to this Court, and
we reversed the dismissal of his claim
against Shure, reasoning that his
complaint adequately put Shure on notice
that Kaplan was claiming to be in privity
of contract with RBK, thereby satisfying
the liberal pleading requirements of Fed.
R. Civ. P. 8(a)(2).
On remand, the district court decided to
address the threshold question of whether
there was any evidence that Kaplan had
standing to bring his breach of contract
action against Shure. The parties
provided the district court with a
written stipulation of facts relevant to
this question. Shure then moved in limine
for a ruling that Kaplan was neither an
assignee of nor a successor in interest
to RBK’s rights under the contract, and
that Kaplan therefore lacked standing to
bring the claim. The district court
treated Shure’s motion in limine as a
motion for partial summary judgment on
the issue of standing, and, rejecting
Kaplan’s arguments, it entered summary
judgment against Kaplan for lack of
standing. Kaplan moved for
reconsideration, arguing that he was not
provided with an opportunity to conduct
meaningful discovery on the standing
issue. In response, the court allowed him
to conduct and file additional discovery
and to file a supplemental memorandum
containing any new evidence that he was
able to unearth on the issue. Taking
advantage of this opportunity, Kaplan
filed an additional memorandum. In
support of his motion for
reconsideration, Kaplan filed an
affidavit stating that he was the
majority shareholder and an officer and
director of RBK, and that it was RBK’s
intent, as well as his intent, that the
assignment of RBK’s entire beneficial
interest in the Land Trust to Kaplan
include all of the rights and interests
that RBK possessed under the real estate
sales contract with Shure. As further
support for this claim, Kaplan submitted
the estoppel certificate that RBK had
provided to Fidelity the day after it had
assigned its beneficial interest to
Kaplan. According to Kaplan, the estoppel
certificate (together with Kaplan’s
personal guarantee) was meant to induce
Fidelity to provide a $4 million loan to
the Trust. The estoppel certificate
concerned the lease agreement in effect
at the time between RBK and ANB, and in
it RBK (as Lessee) stated:
The Lease represents the entire agreement
between the parties thereto as to the
leased premises, and Lessee neither has
nor claims any right or interest in or
under any contract, option or agreement
involving the sale or transfer of the
leased premises.
Upon reviewing all of this evidence, the
district court found no triable issue as
to whether there was an assignment to
Kaplan of RBK’s rights under the contract
with Shure, and, accordingly, entered a
final judgment dismissing Kaplan’s claim
for lack of standing. Kaplan appealed.
DISCUSSION
We review a district court’s grant of
summary judgment de novo, viewing all
facts and drawing all reasonable
inferences in the non-moving party’s
favor. Summary judgment is warranted only
if "there is no genuine issue as to any
material fact and [ ] the moving party is
entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c).
Under Illinois law, a cause of action
based on a contract may be brought only
by a party to that contract, by someone
in privity with such a party, see White
Hen Pantry, Inc. v. Cha, 214 Ill. App. 3d
627, 574 N.E.2d 104, 109 (1st Dist.
1991), or by an intended third-party
beneficiary of the contract, see Altevogt
v. Brinkoetter, 85 Ill. 2d 44, 52-55, 421
N.E.2d 182, 186-87 (Ill. 1981). Privity
of contract has been defined as "mutual
or successive relationship to the same
rights of property." See Collins Co.,
LTD. v. Carboline Co., 125 Ill. 2d 498,
511, 532 N.E.2d 834, 839 (Ill. 1988)
(emphasis added) (citations omitted).
Such a relationship may arise by
operation of law, by descent, or by
voluntary or involuntary transfer. See
id. Privity accompanies the valid assign
ment of rights under a contract because
it puts the assignee in the shoes of the
assignor--"because the assignor was in
privity with the opposite contracting
party, so is the assignee." See Collins,
125 Ill. 2d at 512, 532 N.E.2d at 839-40.
Kaplan contends that the district court
erred in determining that he was not in
privity with Shure, and argues that he
attained such privity as mater of law by
accepting RBK’s assignment of its entire
beneficial interest in the Land Trust,
which (he claims) included RBK’s rights
in the real estate contract with Shure.
Moreover, Kaplan argues that in
interpreting the assignment agreement and
in determining its scope, a court must
ascertain the intent of the parties to
the assignment, and in doing so must
consider not just the language of the
assignment but also the "surrounding
circumstances." He argues that the
district court improperly restricted its
inquiry to the language of the
assignment, and neglected to consider
other evidence demonstrating that the
parties intended for the assignment to
include RBK’s contract rights (namely,
Kaplan’s affidavit, wherein he states
that both he and RBK intended the
assignment to include RBK’s contract
rights, and the estoppel certificate that
RBK provided to Fidelity immediately
after the assignment, wherein RBK stated
that it had no claim in any contract
involving the sale or transfer of the
site). Kaplan asserts that the available
evidence demonstrates that he has
standing to sue Shure on the real estate
contract as a matter of law, or in the
alternative, that the issue of whether
the assignment included RBK’s contract
rights was at the very least a question
of fact which the district court
improperly resolved on summary judgment.
We disagree. First, Kaplan’s argument
that RBK’s assignment of its entire
beneficial interest in the Land Trust to
Kaplan gave him standing as a matter of
law to sue on the real estate contract
between RBK and Shure finds no support in
Illinois law. Kaplan does not claim that
he was either a party to or an intended
third-party beneficiary of the original
real estate contract between RBK and
Shure. Rather, he claims that he came
into privity with RBK and attained
standing to enforce the real estate
agreement against Shure when RBK assigned
to him its entire beneficial interest in
the Land Trust. In support of this
theory, Kaplan points to paragraph 9B of
the sales contract, which provides that
the warranties and representations
regarding the quality of the land were
remade at closing and survived the
closing (thus were not merged with the
deed), and to paragraph 28, which
provides that the contractual warranties
"shall be binding upon and shall inure to
the benefit of the parties hereto and
their respective successors and assigns."
However, Kaplan has stipulated that he
was not the corporate successor to RBK,
and it is difficult to see how he could
otherwise succeed to RBK’s rights in the
contract unless those rights had been
expressly and validly transferred to him
by some instrument. Kaplan asserts that
the assignment was that instrument, but
neither the assignment itself nor the
Land Trust Agreement to which it refers
mentions anything about RBK’s rights in
the real estate contract. Moreover,
Kaplan does not allege that the trustee
(ANB) ever received RBK’s contract rights
at any time,/1 so Kaplan’s power as the
assignee beneficial interest holder to
direct the trustee in dealing with Trust
property would not seem to include the
power to enforce the real estate
agreement against Shure. In short, Kaplan
has not established that RBK transferred
its contract rights either to the Trust
or to Kaplan, and his conclusory
assertion that RBK’s assignment of its
beneficial interest in the Land Trust by
itself accomplished such a transfer is
contrary to Illinois law. See Carlyle v.
Jaskiewicz, 124 Ill. App. 3d 487, 499-
500, 464 N.E.2d 751, 760 (1st Dist. 1984)
(holding that a mother’s assignment of a
50% beneficial interest in a land trust
to her son did not operate as an
assignment of the benefits due her under
a contract with her daughter or as an
assignment of her cause of action against
her daughter for breach of contract). Cf.
Standard Brands, Inc. v. Millard, 273
F.2d 882, 883-84 (7th Cir. 1960).
Finally, Kaplan merely begs the question
when he relies on paragraph 28’s
provision that the contract warranties
shall inure to the benefit of the parties
"assigns," because this language clearly
contemplates the assignment of the
contract, and the very question at issue
is whether RBK’s assignment of its
beneficial interest in the Land Trust
functioned also as an assignment of its
contract rights. Therefore, paragraph
9B’s language regarding the rights of the
parties’ assigns cannot serve as evidence
of the legal effect of the later
assignment.
Kaplan asserts that under an Illinois
land trust, the holder of the beneficial
interest enjoys all aspects of ownership
of the real estate except title, see
Cagan v. Intervest Midwest Real Estate
Corp., 774 F. Supp. 1089, 1094 (N.D. Ill.
1991), and therefore that the transfer of
the entire beneficial interest in a land
trust is indistinguishable in substantive
terms from a sale of the property itself.
See Oak Trust Sav. Bank v. Chicago Title
& Trust Co., 129 Ill. App. 3d 250, 252,
472 N.E.2d 497, 498 (3d Dist 1984). It is
not clear that this aids his argument.
Kaplan points to no Illinois authority--
nor have we found any--for the
proposition that the sale of real estate
transfers from vendor to purchaser the
vendor’s rights in an earlier real estate
contract involving the property, when the
purchaser was neither a party to the
original contract, in privity with such a
party, or an intended third-party
beneficiary of the original contract.
In addition, we reject Kaplan’s argument
that factual evidence extrinsic to the
language of the assignment demonstrates
that both he and RBK intended for the
assignment to include RBK’s contract
rights. As an initial matter, it is not
entirely clear that it is proper under
Illinois law for us to consider Kaplan’s
affidavit or the estoppel certificate in
construing the assignment. We have
previously held (while applying Illinois
law) that assignments are to be
interpreted just like any other contract,
see Lowrance v. Hacker, 888 F.2d 49, 51
(7th Cir. 1989), and ordinary contract
principles counsel against looking beyond
the language of the assignment under the
circumstances presented in this case. In
construing the provisions of a contract
"the court’s primary objective is to give
effect to the intent of the parties at
the time the contract was made." Owens v.
McDermott, Will & Emery, 316 Ill. App. 3d
340, 344, 736 N.E.2d 145, 150 (1st Dist.
2000). However, if the contract language
is clear and unambiguous, the parties’
intent must be ascertained exclusively
from the plain language of the contract
as a matter of law. See Air Safety, Inc.
v. Teachers Realty Corp., 185 Ill. 2d 457,
462, 706 N.E.2d 882, 884 (Ill. 1999);
Owens, 316 Ill. App. 3d at 344, 736
N.E.2d at 150. If a contract is
unambiguous, "any particular
interpretation that one of the parties
may have had at the time the contract was
executed is immaterial," and in
interpreting the contract the court will
not consider any claimed undisclosed
intent on the part of one of the parties
drafting the contract. American Nat’l
Trust Co. of Chicago v. Kentucky Fried
Chicken of S. Cal., Inc., 308 Ill. App.
3d 106, 119, 719 N.E.2d 201, 211 (1st
Dist. 1999). So, while Kaplan points to
his affidavit and to the estoppel
certificate as evidence that both he and
RBK intended the assignment to include
RBK’s rights under the real estate
contract with Shure, according to general
principles of contract construction we
may not consider this evidence unless we
find the written assignment to be
ambiguous.
Whether a contract is clear or ambiguous
is a question of law. See Frydman v. Horn
Eye Center, LTD., 286 Ill. App. 3d 853,
858, 676 N.E.2d 1355, 1359 (1st Dist.
1997). Courts will not find ambiguity in
contractual language where none exists,
see In re Estate of Powless, 315 Ill.
App. 3d 859, 864, 734 N.E.2d 111, 116
(5th Dist. 2000), and contract language
will only be found ambiguous when it is
reasonably susceptible to different
constructions, not merely when the
parties disagree as to its proper
construction or application. See Allied
Asphalt Paving Co. v. Village of
Hillside, 314 Ill. App. 3d 138, 144, 731
N.E.2d 425, 429 (1st Dist. 2000);
Spectramed Inc. v. Gould Inc., 304 Ill.
App. 3d 762, 771, 710 N.E.2d 1, 7 (1st
Dist. 1998). Applying these principles
and limiting ourselves to the language of
the written assignment, we find no
ambiguity. The assignment states:
For value received, Assignor hereby
sells, assigns, transfers, and sets over
unto Robert Kaplan all (100%) undivided
interest including the power of direction
in, to and under that certain Trust
Agreement, dated the 20th day of
November, A.D. 1987, and known as Trust
Number 067952-07 of AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, as
Trustee.
Under the section entitled
"(ACCEPTANCE)," Kaplan provided his
signature under the phrase, "I, the
undersigned, being the assignee [ ] above
mentioned, hereby accept the foregoing
assignment subject to all of the terms
and provisions of said Trust Agreement."
Nowhere does the document purport to
assign RBK’s rights in the real estate
contract with Shure, and nothing in the
language of the assignment manifests an
intention to assign anything other than
ANB’s interests and powers under the Land
Trust Agreement. Those interests and
powers, in turn, are clearly set out in
the first paragraph of the Trust
Agreement, which provides:
It is understood and agreed between the
parties hereto, and by any person or
persons who may become entitled to any
interest under this trust, that the
interest of any beneficiary hereunder
shall consist solely of a power of
direction to deal with the title to said
real estate and to manage and control
said real estate as hereinafter provided,
and the right to receive the proceeds
from rentals and from mortgages, sales or
other disposition of said real estate,
and that such right in the avails of said
real estate shall be deemed to be
personal property, and may be assigned
and transferred as such; . . . and that
no beneficiary now has, and that no
beneficiary hereunder at any time shall
have any right, title or interest in or
to any portion of said real estate as
such, either legal or equitable, but only
an interest in the earnings, avails and
proceeds as aforesaid.
Clearly, the rights and powers that ANB
possessed as the sole beneficiary of the
Land Trust as defined by the Trust
Agreement (which was all that it assigned
to Kaplan by the unambiguous terms of the
assignment), did not expressly include
its rights under the real estate
contract. Therefore, we find the language
of the assignment unambiguous as a matter
of law.
Ordinarily, such a conclusion would end
the matter, and would preclude us from
considering any extrinsic evidence in a
further effort to construe the contract.
However, Illinois courts have at times
departed from this rigid rule and have
more liberally availed themselves of
extrinsic evidence when construing
assignments, as opposed to other types of
contracts. See Service Adjustment Co.,
Inc. v. Underwriters at Lloyd’s London,
205 Ill. App. 3d 329, 334, 562 N.E.2d
1046, 1049 (1st Dist. 1990) (ruling that
"[t]he creation and existence of an
assignment is determined according to the
intention of the parties and that
intention is a question of fact derived
from the instruments executed as well as
the surrounding circumstances"); Heritage
Bank of Bolingbrook v. Recreational
Retail Builders, Inc., 97 Ill. App. 3d
748, 752-53, 423 N.E.2d 573, 576-77 (3d
Dist. 1981) (looking to extrinsic
evidence of the surrounding circumstances
to determine the parties’ intent and the
scope of the assignment). Also, Illinois
courts have held that the parol evidence
rule only applies to the parties to the
written agreement, and that ". . . parol
evidence can be used to vary or
contradict a contract when the litigation
is between a party to the contract and a
stranger thereto . . . even where the
evidence is offered by the party to the
contract." Quality Lightning, Inc. v.
Benjamin, 227 Ill. App. 3d 880, 887, 592
N.E.2d 377, 382 (1st Dist. 1992)
(citation and quotation omitted); see
also In re Vic Supply Co., Inc. v. Bank
One Illinois, N.A., 227 F.3d 928, 933
(7th Cir. 2000). One of the parties to
the controversy before us (Shure) is a
stranger to the assignment at issue.
Finally, in our previous panel opinion in
this case, we tacitly assumed that Kaplan
could rely on extrinsic evidence in
attempting to prove his claim when we
declined to dismiss his claim as a matter
of law. Therefore, we will consider the
extrinsic evidence offered by Kaplan,
despite the absence of an ambiguity in
the assignment.
Unfortunately for Kaplan, this does not
alter our conclusion regarding the scope
of the assignment. The estoppel
certificate merely establishes that, in
order to induce Fidelity to provide a
loan to Kaplan, RBK renounced all of its
rights or interests in the real estate
contract with Shure. It does not, either
by its terms or by implication, transfer
such rights and interests to Kaplan or
suggest that Kaplan already held RBK’s
former rights in the contract by virtue
of the prior assignment. In short, the
fact that RBK relinquished its rights in
the contract does not imply either that
it assigned its contract rights to Kaplan
or that it intended to do so. Indeed, as
the district court noted, it seems
somewhat implausible that Kaplan and RBK
would have been thinking about Shure’s
obligations under the real estate
contract at the time that the assignment
and the estoppel certificate were drafted
in 1988, given that the contamination of
the site was not discovered until 1992.
Moreover, if they did intend Kaplan to
receive RBK’s contract rights, it seems
reasonable to expect that they would have
affirmatively manifested their intention
in some way (even if not in the
assignment itself). In any event, without
some positive indication that Kaplan and
RBK intended Kaplan to succeed to RBK’s
rights in the real estate contract, we
cannot grant Kaplan the relief he seeks.
The mere negative implication that Kaplan
draws from RBK’s renunciation of its
contract rights in the estoppel
certificate is not enough to raise a
genuine fact issue on the matter. Aside
from Kaplan’s self-serving affidavit, the
record is devoid of any facts which would
warrant the inference that Kaplan and RBK
intended the assignment to include RBK’s
contract rights under the real estate
agreement with Shure. Accordingly, there
is no genuine issue of fact on the
matter, and Shure is entitled to summary
judgment.
One final point bears mentioning. In
contending that he is in privity of
contract with RBK by virtue of the
assignment, Kaplan relies on certain
language in our previous opinion in this
case. In that opinion, we stated:
Kaplan alleges that RBK assigned its
whole interest in the Trust to him; this
assignment would seem to have included
RBK’s rights in the land purchase
agreement. Additionally, as beneficiary
of the Trust, Kaplan may well have
succeeded to RBK’s rights in the
agreement by virtue of the flow-through
nature of the Trust. The dismissal of his
claims at this stage of the litigation
was erroneous.
Kaplan v. Shure Bros., Inc., 153 F.3d
413, 419 (7th Cir. 1998).
Kaplan reads this passage as an
endorsement of his argument that the
assignment of RBK’s beneficial interest
could, by itself, effect the transfer of
RBK’s contract rights. However, when read
in its proper context, the passage is of
little help to Kaplan. First, we made the
above statements in deciding Shure’s
motion to dismiss Kaplan’s claim under
Fed. R. Civ. P. 12(b)(6), and we held
merely that Kaplan’s complaint put Shure
on sufficient notice of Kaplan’s claim to
be in privity with RBK to survive a
motion to dismiss. At the time of our
decision, no evidence had been submitted
on the issue of standing. While we
acknowledged that Kaplan’s "allegations
with respect to privity [were] relatively
thin," we concluded that "we cannot say
at this time that Kaplan could prove no
set of facts consistent with his
allegations which would entitle him to
relief." Id. Citing the liberal notice-
pleading standards of Fed. R. Civ. P.
8(a)(2), we found that the district court
erred in suggesting that Kaplan needed to
plead facts showing that he was in
privity with RBK in order to forestall
the dismissal of his claim. We concluded
that Kaplan’s claim survived a motion to
dismiss because it put Shure on notice
that Kaplan was claiming to be in privity
of contract with RBK, and that dismissal
at that stage of the litigation would
have been inappropriate. Seen against
this background, the passage quoted above
stands for the proposition that Kaplan’s
claims regarding privity could not be
dismissed at the pleadings stage as a
matter of law; it does not convey the
much stronger proposition that the
assignment put Kaplan in privity of
contract with RBK as a matter of law (or
that Kaplan need not produce any factual
proof other than the assignment itself in
order to survive a motion for summary
judgment on the issue of standing).
Moreover, while our speculation that the
assignment might have included RBK’s
contract rights and that Kaplan might
have succeeded RBK’s rights in the real
estate contract "by virtue of the flow-
through nature of the Trust" gave Kaplan
an opportunity to prove either of these
things by producing evidence, it did not
decide either issue in his favor. Kaplan
has failed to produce evidence that RBK
assigned its contract rights either to
Kaplan or to the trustee sufficient to
raise a genuine issue on the question of
standing. Overwhelmingly, the evidence
suggests that the Land Trust contained
only the real property (and not the real
estate contract rights), and that the
assignment transferred only the rights
under the Trust Agreement. Therefore,
Kaplan cannot successfully argue that any
rights to the real estate contract
"flowed through" the Trust to him as the
beneficial interest holder.
AFFIRMED.
FOOTNOTE
/1 Kaplan has not claimed that RBK ever assigned its
rights in the real estate contract to the trust-
ee. In addition, he concedes in his brief that
Shure’s contractual warranties and representa-
tions to RBK were not implied in the warranty
deed from Shure to the Land Trust. Therefore,
Shure cannot claim that the land trustee received
Shure’s warranties with conveyance of the deed,
nor by any other means.