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FOURTH DIVISION
July 29, 2004

This appeal concerns, inter alia, the validity of aliquidated damages clause in a real estate brokerage contractunder which a broker sought to recover damages against a sellerwho prematurely terminated an exclusive listing agreement withthe broker. For the following reasons, we hold that theprovision is valid and affirm the judgment of the circuit court.

BACKGROUND

In March 1998, defendant Lewis Kostiner hired plaintiffJameson Realty Group (Jameson) to sell the remaining condominiumunits in an apartment building located at 850 West Adams Avenuein Chicago. According to the "Exclusive Listing Agreement"(Agreement), Jameson received the "sole and exclusive right tosell" the units from April 1, 1998, until March 31, 1999. Jameson was to receive a commission of 5% in the event itproduced a buyer "ready, willing, and able" to purchase theunits. "Anna Robertson/Carl Mandenberg, sales associatesaffiliated with Jameson," were listed as Kostiner's "exclusivedesignated legal agents."

The Agreement contained two clauses that are relevant hereon appeal. The first, a liquidated damages clause, stated:

"If Broker's authority to sell is revoked or saidproperty is withdrawn from the market during the periodof Broker's authority to sell hereunder, Seller shallpay Broker upon such revocation or withdrawal, not as apenalty, but as liquidated damages, an amount equal tothe commission payable on the full price listed above.

No amendment or alteration with respect to theamount of commission or time of payment of commissionshall be valid or binding unless made in writing andsigned by the parties hereto."

The Agreement itself did not contain any "full price" upon whichto base Jameson's commissions. Instead, it referred to anattached list, which was signed and dated by Kostiner andcontained the price for each individual unit.

The Agreement also contained an arbitration clause, whichstated:

"The parties hereby agree that any dispute,controversy, or claim arising out of or relating tothis exclusive listing agreement, or any breach thereofby either party, shall be resolved by arbitration inaccordance with the Code of Ethics and ArbitrationManual of the National Association of REALTORS, asamended from time to time, through the facility of theChicago Association of REALTORS. The parties agree tobe bound by any award rendered by any professionalstandards arbitration hearing panel of the ChicagoAssociation of REALTORS and further agree that judgmentupon any award rendered by a professional standardarbitration hearing panel of the Chicago Association ofREALTORS may be entered in any court havingjurisdiction thereof. The parties agree to execute anyarbitration agreements and documents as may be requiredby the Chicago Association of REALTORS to facilitateany arbitration."

Kostiner signed the agreement and, in the space labeled"Seller," provided his home and work telephone numbers as well ashis social security number. Nothing in the Agreement indicatedthat Kostiner was acting as an agent for another entity.

A few days after signing the Agreement, an incident occurredbetween Kostiner and Anna Robertson. After the incident, Ms.Robertson told Jameson's president, Charles Huzenis, thatKostiner had been "abusive and rude" to her and that she refusedto work on the project. When Mr. Huzenis told Kostiner that Ms.Robertson she had quit, "[Kostiner] laughed like he didn't evenunderstand; that he was just laughing about it. He said, 'fine;let's go on, get somebody else.'" As a result, Jameson assignedanother agent, Chris Anderson, to take Ms. Robertson's place.

Five and one-half months later, after four units had beensold and thirteen units were still unsold, Kostiner terminatedthe Agreement. On December 10, 1998, seeking to have the matterarbitrated before a grievance committee of the ChicagoAssociation of Realtors (Committee), Jameson filed a complaintrequesting commissions for the 13 unsold units and 14 unsoldparking spaces, marketing expenses, and commissions for the fourunits that had been sold prior to the termination. The "Requestand Agreement to Arbitrate" Jameson filed with the Committeestated:

"I request and consent to arbitration through the Boardin accordance with its Code of Ethics and ArbitrationManual ***, and I agree to abide by the arbitrationaward and to comply with it promptly.

In the event I do not comply with the arbitrationaward and it is necessary for any party to thisarbitration to obtain judicial confirmation andenforcement of the arbitration award against me, Iagree to pay the party obtaining such confirmation thecosts and reasonable attorney's fees incurred inobtaining such confirmation and enforcement."

On June 16, 1999, the Committee informed Jameson that "[i]t wasthe decision of [the] Committee to dismiss this case as it failsto merit further consideration."

On June 29, 1999, Jameson appealed the Committee's decision. Granting the appeal, the Committee allowed Jameson to file anamended complaint regarding only three of the four units thatwere sold prior to the termination. In its amended complaint,Jameson reserved "its right to file a Complaint in the CircuitCourt of Cook County regarding the claims in its initial Requestfor Arbitration which the Chicago Association of Realtors [would] not consider," which it did later that same day, filing acomplaint for breach of contract against Kostiner in the circuitcourt.

On January 20, 2000, Kostiner filed a motion to dismissJameson's complaint. Kostiner argued that Jameson's claims hadbeen dismissed by the Committee, Jameson had failed to properlyappeal that decision, and Jameson's complaint was not timelyfiled pursuant to the Illinois Administrative Review Law (735ILCS 5/3-101 et seq. (West 2000). The circuit court deniedKostiner's motion.

Meanwhile, the Committee set an arbitration hearing date ofMarch 16, 2000. Two days before the arbitration was to takeplace, however, Kostiner's attorney sent a letter to theCommittee declining to participate in the arbitration. Theletter stated:

"[T]his matter [the pending arbitration] is to be heardon a voluntary basis. If I correctly understand this,Mr. Kostiner must therefore voluntarily submit to thearbitration. To date, he has not done so; and we donot anticipate, at this time, submitting to sucharbitration.

***

It may be that my client will, at a later time, decideto voluntarily submit to the arbitration request, andwe reserve the right to do so; but until such time, wemust respectfully decline the current invitation toarbitrate this matter."

According to Jameson's brief, after receiving this letter, theCommittee cancelled the arbitration hearing and "closed thematter."

On April 5, 2000, Jameson filed a five-count amendedcomplaint against Kostiner for breach of contract in which itsought recovery under the liquidated damages clause of theAgreement (count I), commissions for three units it had soldprior to the termination of the Agreement (counts II through IV),and reimbursement for its marketing expenses (count V). Thecircuit court ordered Kostiner to file an answer and anycounterclaim on or before May 29, 2000. On May 30, 2000,Kostiner filed his answer, which did not contain a counterclaim.

On July 10, 2001, the circuit court granted Jameson's motionfor partial summary judgment, finding that the liquidated damagesclause was enforceable.

On September 19, 2001, nearly 1