Amy L. Anderson has Summary Judgment affirmed on appeal by First District


Amy L. Anderson and Sheldon Brenner represented an attorney who had acted as an Escrow Agent in an Articles of Agreement for Deed transaction for the purchase of a home health business and some associated real estate.  The transaction required a down payment of $100,000 be paid at an initial closing with the purchaser then taking over the business, making additional payments for the business and property over time.  The original contract called for an escrow agent to hold the deed and stock certificates for the business until the payments had been made and a final closing occurred.  The purchaser, with the assistance of his attorney, added an escrow agreement to the contract at the initial closing, that called for the purchaser to deposit the down payment at the initial closing and for the escrow agent to hold the deposit and documents.  The language further stated that the deposit will be directly issued upon closing to the seller after approval of the documentation.  The escrow agreement also included an exculpatory clause that found the escrow agent could not be liable except for willful misconduct or gross negligence. The purchaser brought a check for $100,000 made payable to the seller at the initial closing.  After the initial closing, the purchaser took over the business, but the deal ultimately fell apart.  The purchaser then sued the escrow agent for breach of contract and breach of fiduciary duty for failing to hold the $100,000 in escrow. The trial court granted summary judgment in favor of the escrow agent, finding that the purchaser failed to plead or provide evidence that the escrow agent acted with willful misconduct or gross negligence. Following oral argument, the appellate court affirmed the summary judgment and found the exculpatory clause was enforceable in the contract.