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FIRST DIVISION

November 27, 2002

JUSTICE GORDON delivered the opinion of the court:

Plaintiffs LeRoy O'Shield and Beverly O'Shield (plaintiffs) appeal from the trial court'sorder denying their motion for reconsideration of a prior order granting summary judgment todefendants Lakeside Bank, 5350 South Shore, L.L.C., Horwitz & Co., and Tem Horwitz(defendants) in relation to a real estate purchase contract. Plaintiffs ask that we order specificperformance of the contract or, alternatively, that we reverse the trial court's grant of summaryjudgment and remand this cause. Because we find that plaintiffs' exclusive remedy was return oftheir earnest money, we affirm.

BACKGROUND

In November 1996, plaintiffs entered into a contract for the purchase a townhouse beingbuilt by defendants⁽¹⁾ in the development known as 5350 South Shore Drive Townhomes. Thecontract signed by plaintiffs and defendants contained the following provisions:

"3. Date of Completion. *** If the Townhouse has not been substantially completed within one hundred eighty (180) days after the Estimated Completion Date ***, then Purchaser may, as its sole remedy, terminate this Agreement upon five (5) days prior written notice to Seller and the Earnest Money, and all interest which may have been earned thereon, and all other sums paid by Purchaser to Seller shall be refunded to Purchaser, whereupon this Agreement shall be null and void without further liability to Seller.

***

14. Defaults and Termination. ***

If Seller fails to perform any of Seller's obligations under this Agreement and such failure continues for ten (10) days after Purchaser delivers to Seller written notice of such failure, Purchaser's only remedy shall be to terminate this Agreement by written notice delivered to Seller. Upon such termination resulting from Seller's failure to perform any of its obligations under this Agreement, all payments made by Purchaser to Seller under this Agreement shall be returned to Purchaser and thereupon this Agreement shall be null and void, and of no further force and effect, and neither party shall have any further rights or obligations thereunder."

During construction of the townhouse, plaintiffs made two earnest money payments todefendants, for a total of $48,050. However, once it was built, defendants, in breach of contract,refused to complete the sale of the townhouse to plaintiffs.

Plaintiffs thereupon filed a one-count complaint against defendants for specificperformance of the sales contract. Defendants moved to dismiss. Before any determination wasmade on this motion, plaintiffs were granted leave to file an amended complaint, adding a secondcount for money damages for interest on the earnest money and a third count for intentionalinfliction of emotional distress. Defendants again moved to dismiss, stating that the exclusiveremedies provisions found in paragraphs 3 and 14 of the contract barred specific performance. Plaintiffs obtained leave to further amend their amended complaint, whereupon they included,among other contentions, allegations of racial bias and specific allegations of individual liabilitywith respect to Tem Horwitz as president of Horwitz & Co. in a separate count. Defendants'motion to dismiss was denied.

After discovery was conducted, defendants moved for partial summary judgment,asserting that the contract's provisions mandated summary judgment with respect to plaintiffs'claim for specific performance, that the count for individual liability against Tem Horwitz shouldbe dismissed with prejudice, and that summary judgment should be granted on the issue of racialbias. The trial court granted defendants' motion in part and denied it in part. First, the courtgranted summary judgment to defendants on the question of racial bias, finding that plaintiffsfailed to adequately demonstrate their claim. Second, the court denied summary judgment inrelation to Tem Horwitz's individual liability, finding that plaintiffs had alleged sufficient facts inthis regard. Finally, as to specific performance, the court granted defendants' motion forsummary judgment, finding that there were no genuine issues of material fact. The court heldthat the contract's terms, as exemplified in paragraphs 3 and 14, were clear and unambiguous thatplaintiffs' "only remedy in case of nonperformance by the [d]efendants is to void the contract andhave all payments returned." (Emphasis in original.) Therefore, concluded the court, becauseplaintiffs "failed to show that there are genuine issues of material fact in dispute as to whether the[contract] bars specific performance from being sought as a remedy," summary judgment fordefendants on this count was proper.

Plaintiffs then filed an emergency motion to vacate the trial court's order as to its findingsregarding specific performance only. Alternatively, plaintiffs asked the court to enter SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)) language allowing for appeal. This motion was adoptedby the court, with the parties' agreement, as a motion for reconsideration. The court deniedplaintiffs' motion and certified the issue of specific performance for interlocutory appeal.

ANALYSIS

Before addressing the substantive issue presented in this cause, we first clarify theapplicable standard of review. As noted above, plaintiffs appeal from the trial court's denial oftheir motion to reconsider its prior order granting summary judgment to defendants. Plaintiffsclaim in their memorandum in support of their motion to reconsider that the court erred in itsapplication of the law when it granted defendants' motion for partial summary judgment on theissue of specific performance. Defendants assert that we should review the court's denial ofplaintiffs' motion for reconsideration under an abuse of discretion standard. We disagree, as it isunquestionable that the standard of review applicable to this cause is de novo. A motion toreconsider based on the submission of new matters, such as additional facts or new arguments orlegal theories not presented during the pendency of the original motion for summary judgment, isreviewed under an abuse of discretion standard. See, e.g., Delgatto v. Brandon Associates, Ltd.,131 Ill. 2d 183, 195 (1989) (submitting a new matter on a motion to reconsider after summaryjudgment motion has already been granted "lies in the discretion of the trial court"). Such amotion asks the trial court to allow the losing party a "second bite of the apple," i.e., requiring thecourt to determine whether it should admit these new matters into evidence and, in turn,reconsider its prior decision based upon them. That determination is subject to the trial court'sdiscretion. See Delgatto, 131 Ill. 2d at 195; see also Korogluyan v. Chicago Title & Trust Co.,213 Ill. App. 3d 622, 627 (1991) (general rule is that motion to reconsider based on new mattersnot presented during prior motion is for the trial court's discretion). However, whether or not thenew matters are admitted through the motion to reconsider, the standard used to review the trialcourt's application of existing law, namely, its application of law to the facts presented, alwaysremains de novo. See Sacramento Crushing Corp. v. Correct/All Sewer Inc., 318 Ill. App. 3d571, 577 (2000), quoting Korogluyan, 213 Ill. App. 3d at 627 (" 'a motion to reconsider an ordergranting summary judgment raises the question of whether the judge erred in his previousapplication of existing law. Whether the court has erred in the application of existing law is notreviewed under an abuse-of-discretion standard.' [Citation.] As with any question regarding theapplication of existing law, we review the denial of such a motion de novo"). A party cannotconvert the de novo standard applicable to the original motion into an abuse of discretionstandard simply by asking the court to reconsider its previous ruling. See Sacramento CrushingCorp., 318 Ill. App. 3d at 577; Korogluyan, 213 Ill. App. 3d at 627. In the instant case, plaintiffs'motion to reconsider does not rest on the presentation of new matters nor on a determination ofwhether any new facts or arguments should be reconsidered with respect to the original motionfor summary judgment. Rather, plaintiffs assert error on the part of the trial court with respect toits application of substantive law when it first granted defendants' motion for summary judgmentand, in effect, asks the court to rethink what it already thought. Accordingly, this issue, whichbrings into question the propriety of the trial court's application of substantive law to the factspresented before it, merits de novo review. See Sacramento Crushing Corp., 318 Ill. App. 3d at577; Korogluyan, 213 Ill. App. 3d at 627.

We now turn to the substantive issue in this case; namely, whether the trial court erred indismissing plaintiffs' count for specific performance based on those provisions of the contractwhich purport to limit their remedy to a recovery of their earnest money. As noted above,paragraph 3 of the real estate purchase contract signed by plaintiffs and defendants states thatplaintiffs' "sole remedy" upon defendants' failure to complete construction of the townhouse ontime is a refund of plaintiffs' earnest money. Paragraph 3 also states that upon payment of thissum, the contract is terminated and "shall be null and void without further liability to"defendants. In addition, paragraph 14 of this same contract, dealing with all other grounds fordefault and termination, repeats that if defendants fail to perform, plaintiffs' "only remedy shallbe to terminate" the contract, whereupon defendants must return to plaintiffs "all paymentsmade" by them. Paragraph 14 then concludes, as did paragraph 3, that upon this repayment, thecontract "shall be null and void, and of no further force and effect, and neither party shall haveany further rights or obligations thereunder."

Where a contract is unambiguous, its express provisions govern and its language, as awhole, is to be given its plain and ordinary meaning. See Omnitrus Merging Corp. v. IllinoisTool Works, Inc., 256 Ill. App. 3d 31, 34 (1993). The intent of the parties is ascertained fromthis clear language. See Omnitrus, 256 Ill. App. 3d at 34. Moreover, the parties' rights under thecontract are limited by the terms expressed therein. See Klemp v. Hergott Group, Inc., 267 Ill.App. 3d 574, 581 (1994); Lake County Trust Co. v. Two Bar B, Inc., 182 Ill. App. 3d 186, 192(1989) ("[p]arties to a contract may limit their rights, duties, and obligations by expressagreement"). The parties may go so far as to contract for an exclusive remedy under the contract. See Omnitrus, 256 Ill. App. 3d at 34; Lake County Trust, 182 Ill. App. 3d at 192. Once madeand agreed upon, this remedy provision is binding on the parties and will be recognized andenforced by our courts. See Omnitrus, 256 Ill. App. 3d at 34 (exclusive remedy provisions arerecognized by our courts and enforced); Lake County Trust, 182 Ill. App. 3d at 192. The remedyprovision will be deemed exclusive if the contract warrants this interpretation, even if the word"exclusive" does not expressly appear within the contract. See Intrastate Piping & Controls, Inc.v. Robert-James Sales, Inc., 315 Ill. App. 3d 248, 256 (2000) ("Illinois courts have recognizedand enforced exclusive remedy provisions, even without the word 'exclusive,' when the contractas a whole warrants such a construction").

In the instant case, paragraphs 3 and 14 of the contract effectively make repayment bydefendants of the earnest money the exclusive remedy for plaintiffs in the case of defendants'nonperformance. The language contained in both these paragraphs unambiguously states that ifdefendants fail to perform under the terms of the contract, plaintiffs' "sole" and "only remedy" isto terminate the contract. According to the contract's terms, upon this termination, defendantsare required to return plaintiffs' earnest money, and once this has been done, the contractbecomes null and void and leaves the parties with no further rights or obligations. From thisunambiguous language, it is clear that the parties intended return of the earnest money to beplaintiffs' only remedy in the case of breach by defendants. Although the word "exclusive" doesnot appear in paragraphs 3 and 14, the remedy of returning the earnest money is described inthese paragraphs by the words "solely" and "only," and includes clauses stating that once thisrestitution is made, the contract terminates and leaves the parties with no other rights. Combined, it is clear that this language indicates that return of the earnest money is the onlyremedy available, to the exclusion of all others. By agreeing to include these paragraphs in thecontract, plaintiffs expressly agreed to limit their rights in the case of defendants'nonperformance to an acceptance of repayment of their earnest money only. Accordingly, theyare bound by the exclusive remedy provisions of paragraphs 3 and 14 and cannot maintain aclaim of specific performance against defendants under the contract.

Plaintiffs would have us treat paragraphs 3 and 14 as a liquidated damages provision. Defendants, in a single sentence without further support, assert that this is not a liquidateddamages provision but simply an exclusive remedy provision. Presumably, defendants may wellbe questioning whether a provision calling for restitution fits the definition of liquidateddamages, which ordinarily encompass more than the mere return of consideration by the seller tothe purchaser. They thus contend that the law dealing with exclusive contractual remediesgenerally, rather than liquidated damages, should control. For purposes of our analysis, however,the difference in this characterization is inconsequential. Whether or not the contract providesfor conventional liquidated damages, it purports to limit plaintiffs' monetary recovery to a fixedspecified sum-namely, their earnest money. This raises the issue here, as it does generally inliquidated damages agreements, as to whether the limitation of monetary recovery also precludesan alternate remedy of specific performance. As shall be demonstrated, the reasoning in makingthis determination is the same whether viewed as a liquidated damages issue or more genericallyas an exclusive remedy issue. Thus, as pointed out under our exclusive remedy analysis,plaintiffs here would be barred from seeking specific performance even if the recovery fit themold of liquidated damages.

When there is no misunderstanding or misrepresentation between a purchaser and sellerwho enter into a contract for the sale of real estate, specific performance is granted as a matter ofright and the fact that there is a provision in the contract that provides for liquidated damages inthe event of nonperformance does not, in and of itself, prevent the decree of specificperformance. See Kohrs v. Barth, 212 Ill. App. 3d 468, 471 (1991). Instead, the test is whetherthe contract "calls for a certain act to be done with a sum annexed as damages to secureperformance of the act or whether it provides that one of two things shall be done at the electionof the party who must perform, i.e., either the performance of the act or the payment of a sum ofmoney." Kohrs, 212 Ill. App. 3d at 471; see Koch v. Streuter, 218 Ill. 546, 552 (1905). If thecontract does the former, a provision for liquidated damages provided therein will not preventspecific performance. See Kohrs, 212 Ill. App. 3d at 471. However, if the contract does thelatter, payment of the agreed sum constitutes adequate performance of the contract and specificperformance as a remedy is barred. See Kohrs, 212 Ill. App. 3d at 471; see also Lyman v.Gedney, 114 Ill. 388, 398 (1885) ("[i]t is only where the contract stipulates for one of two thingsin the alternative,-the performance of certain acts, or the payment of a certain amount of moneyin lieu thereof,-that equity will not decree a specific performance of the first alternative").

Although there are no set or formulaic words, the purchaser and seller may effectuate acomplete bar to specific performance by including in the contract clear language indicating thatthe liquidated damages provision is to be the sole remedy in the event of nonperformance. SeeBrian McDonagh S.C. v. Moss, 207 Ill. App. 3d 62, 66 (1990); see also 5A A. Corbin, Corbin onContracts