FOURTH DIVISION
September 23, 2010
No. 1-09-3044
MARYBELLE MANDEL, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 07 CH 35077
)
THOMAS E. HERNANDEZ, ) The Honorable
) Nancy J. Arnold,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff, Marybelle Mandel, appeals the trial court’s denial of her request to receive
monetary damages for a breach of contract claim involving the sale of real estate to her from
defendant Thomas Hernandez finding that such damages were inconsistent with the award of
specific performance. Mandel first claims that the trial court erred in holding that it could not
award both monetary damages and specific performance for a breach of contract claim. Mandel
also claims that the trial court erred in denying Mandel’s request to amend her complaint
postjudgment to conform to the proofs pursuant to section 2-616(c) of the Illinois Code of Civil
Procedure (735 ILCS 5/2-616(c) (West 2002)). Mandel further claims that the trial court erred
in denying her request to amend the complaint to add a new cause of action and that the trial
court should have conducted a subsequent and separate hearing or a new trial to determine
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monetary damages resulting from the delay in Hernandez’s performance of the contract. For the
reasons that follow, we affirm.
Background
On March 29, 2007, Mandel and Hernandez entered into a written contract whereby
Hernandez agreed to sell to Mandel residential property located at 731 West 61st Place, Summit,
Illinois, that Hernandez owned. The residential real estate contract, containing the signatures of
both parties and identifying the subject property, was admitted into evidence without objection.
The contract provided for a fixed purchase price of $50,000, earnest money in the amount of
$1,000 to be paid within 15 days of acceptance, and a closing date of May 20, 2007, or sooner.
Hernandez refused to proceed to closing and Mandel subsequently filed a two count complaint
against Hernandez. In count I, Mandel sought specific performance and damages incidental to
specific performance. Alternatively, Mandel sought damages for breach of contract under count
II. Hernandez raised the following four affirmative defenses: (1) that he was elderly and ill and
thus unable to comprehend the nature of the contract; (2) that Mandel failed to disclose that she
was a licensed real estate broker and thus took advantage of him; (3) that the terms of the
contract were unconscionable; and (4) that Mandel failed to timely deliver the earnest money
and appear at closing.
The record on appeal does not include deposition testimony, but the trial court’s written
findings after trial are included in the record, which discusses the party’s testimony. The
following facts are based in part on the trial court’s written findings after trial. Mandel is in the
business of buying real estate properties, renovating the properties, and then reselling them.
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Mandel communicated her involvement in the real estate business to Hernandez when the parties
first met. Mandel expected the renovation work on the property to be completed within 90 days
and anticipated the resale value of the property to be between $210,000 and $240,000. Mandel’s
husband, who was also involved in the business of renovating and reselling properties, testified
that renovation of the property would entail replacing the exterior siding, insulation, roof and
interior walls, as well as gutting the kitchen.
Hernandez, who was 80 years old at the time, testified that the property had been vacant
for some time and that he hoped to get rid of it. According to Hernandez, Mandel’s husband
inquired about an asking price after hearing that Hernandez hoped to dispose of the property.
Hernandez asked for $50,000 and Mandel’s husband said, “Sold.”
Mandel claims that the parties discussed a price at a later time while viewing the
property. Hernandez told Mandel that the first person who offered him $50,000 for the house
could have it. According to Mandel, after agreeing upon the price, Hernandez requested a
written agreement. The parties proceeded to sign a standard form real estate contract at
Hernandez’s house. Mandel testified that the parties acknowledged each line of the contract and
together completed the appropriate blanks. Hernandez denied having seen the real estate
contract and stated that he did not remember signing it.
The parties also disputed delivery of the earnest money. Mandel testified that she mailed
Hernandez a check for the earnest money on March 29, 2007, and later contacted him to confirm
receipt. According to Mandel, Hernandez stated that he had not received the check. Mandel
subsequently sent a second check by overnight mail, return receipt requested. The second check
was returned to Mandel, and when she contacted Hernandez, he informed her that he was
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unwilling to complete the transaction. Two checks were admitted into evidence, one dated
March 29, 2007, and the other dated April 11, 2007.
Hernandez’s daughter testified that Hernandez received a check for the earnest money.
His daughter determined that the check arrived late according to the contract’s terms and
returned the money to Mandel. Hernandez later informed Mandel’s attorney that he had no
intention of proceeding with the contract.
Mandel testified that she was ready, willing, and able to perform the contract and that she
deposited the cash and closing documents in an escrow account. Hernandez did not appear at
closing or accept the purchase money and the purchase money was returned to Mandel a month
later.
At trial, both parties presented testimony regarding the property’s approximate value at
the time of contract. Michael Kaput, testifying on Hernandez’s behalf, estimated that the
property’s listing price at the time of the contract would have been between $139,000 and
$149,000 based on four properties that he considered comparables. Mandel offered the
testimony of a licensed real estate broker, Opal Fabien, and a certified appraiser, Elizabeth
Hohn. Fabien considered four different properties as comparables and offered the opinion that at
the time of the contract an appropriate listing price for the property would have been $80,000.
Considering three other comparable sales, Hohn offered her opinion that at the time of the
contract, the market value of the property was $80,000. None of the testifying real estate experts
used the same comparables in arriving at their estimates. Both Hohn and Fabien testified that
beginning in 2007, real estate values began to decline and Mandel would not likely obtain the
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benefit of her bargain as originally thought in 2007. Mandel also presented expert testimony that
renovation costs to make the property habitable and marketable totaled $50,000.
At the conclusion of trial, the trial court found that the parties had entered into a valid
real estate contract, that Mandel had fully performed her contractual obligations and was at all
times ready, willing, and able to close the transaction, and that Hernandez breached the contract
by failing to deliver the deed. The trial court ordered Hernandez to specifically perform the
contract, but declined to award monetary damages for the delay in performance ruling that an
award of monetary damages is inconsistent with the award of specific performance. The trial
court ruled that damages for lost profits could not be recovered along with an order for specific
performance. The trial court stated that Mandel pursued her claim for specific performance over
the alternative claim for damages for breach of contract. The trial court also stated that Mandel
sought recovery of her expected profits had Hernandez completed the sale when the real estate
market still allowed for a substantial profit upon resale. The trial court held that Mandel could
not recover those lost expected profits consistently with specific performance.
Mandel filed a posttrial motion to reconsider and a motion to amend the complaint to
conform the pleadings to the proofs. The posttrial motion alternatively requested a hearing to
address the issue of damages incident to the delay in performance. The trial court denied
Mandel’s posttrial motion. Mandel timely appealed.
Standard of Review
The decision to award or deny monetary damages in addition to specific performance
rests within the sound discretion of the trial court. Yonan v. Oak Park Federal Savings & Loan
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Ass’n, 27 Ill. App. 3d 967, 97-78 (1975), citing Fleming v. O’Donohue, 306 Ill. 595, 601-02
(1923). The decision to allow an amendment to a complaint also rests within the sound
discretion of the trial court, and absent an abuse of discretion, we will not disturb the trial court’s
decision. Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 331 (2008). A trial
court abuses its discretion when “ ‘no reasonable person would take the view adopted by the trial
court.’ ” Compton, 382 Ill. App. 3d at 331-32, quoting, Keefe-Shea Joint Venture v. City of
Evanston, 364 Ill. App. 3d 48, 61 (2005).
Analysis
Mandel first contends that the trial court erred in ruling that monetary damages for a
breach of contract are inconsistent with an order for specific performance of the contract.
Mandel cites Talerico v. Olivarri, 343 Ill. App. 3d 128 (2003), and Rotogravure Service, Inc. v.
R.W. Borrowdale Co., 77 Ill. App. 3d 518 (1979), as support for her position that a trial court
may award monetary damages incidental to a defendant’s delay in performance in addition to
ordering specific performance. Although we agree with Mandel that monetary damages
incidental to a delay in performance may be awarded in addition to specific performance, we
conclude that the trial court did not abuse its discretion in finding that the lost resale profits that
Mandel seeks here are not recoverable.
As established in Rotogravure and Talerico, when a decree of specific performance does
not provide complete relief, the injured party is entitled to those damages that will make him
whole, including monetary damages incidental to and caused by a delay in performance.
Rotogravure, 77 Ill. App. 3d at 527; Talerico, 343 Ill. App. 3d at 132; see also Industrial Steel
Construction, Inc. v. Mooncotch, 264 Ill. App. 3d 507, 512 (1994). The injured party is entitled
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to damages incurred between the time of breach and the time of performance if those damages
arose naturally from the breach or were reasonably foreseeable at the time the contract was
executed. Talerico, 343 Ill. App. 3d at 132-33; Madigan Brothers, Inc. v. Melrose Shopping
Center Co., 198 Ill. App. 3d 1083, 1089 (1990). Lost profits may be recovered as damages
resulting from a breach of contract if both parties at the time of entering into the contract
contemplated that such profits would be lost if the contract was breached. Spangler v.
Holthusen, 61 Ill. App. 3d 74, 80 (1978). A trial court will award lost profits “only if: their loss
is proved with a reasonable degree of certainty; the court is satisfied that the wrongful act of the
defendant caused the loss of profits; and the profits were reasonably within the contemplation of
the defaulting party at the time the contract was entered into.” Milex Products, Inc. v. Alra
Laboratories, Inc., 237 Ill. App. 3d 177, 190 (1992).
Here, Mandel sought damages that did not directly result from Hernandez’s delay in
performance. Rather, Mandel’s lost resale opportunity was contingent upon a string of uncertain
collateral transactions, such as the renovation of the property within budget, the placement of the
property on the market within 90 days of purchase, the fortuitous appearance of a prospective
buyer, an agreement to pay the projected resale price and the completion of the resale
transaction. Hernandez cannot be held responsible for lost profits that were contingent on
collateral transactions of which he had no specific knowledge at the time of contract. See
Spangler, 61 Ill. App. 3d at 82 (holding that lost profits from a proposed collateral sale arising
after execution of the real estate sales contract could not be imposed upon the sellers of the real
estate when the collateral sale was unknown to the sellers). Moreover, even if Hernandez had
general knowledge that Mandel was in the real estate business, such knowledge is insufficient to
charge him with the knowledge necessary to sustain a claim for lost resale profits. See Spangler,
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61 Ill. App. 3d at 82 (holding that damages for the loss of future resale profits could not be
recovered because defendant’s general knowledge that plaintiff developed land was insufficient
to place defendant on notice). Since Mandel’s asserted monetary damages for the lost resale
opportunity were not reasonably within Hernandez’s contemplation at the time of contract, the
trial court did not abuse its discretion in finding that those damages were not recoverable.
Next, Mandel claims that she should have been granted leave to amend her complaint to
conform the pleadings to the proofs pursuant to section 2-616(c). Mandel’s proposed amended
complaint added a request for monetary damages to count I, which was the specific performance
count, modified count II to claim lost resale profits rather than general monetary damages, and
added count III to request monetary damages in addition to specific performance. Mandel
claims that her proposed amended complaint would cure the defects of the original complaint by
circumventing the limitations that arise when pleading alternative causes of action in a
complaint.
We disagree with Mandel that the trial court abused its discretion in denying leave to
amend her complaint pursuant to section 2-616(c). After final judgment, a party may amend
pleadings only to conform the pleadings to the proofs as provided by section 2-616(c).
According to section 2-616(c):
“A pleading may be amended at any time, before or after judgment, to conform
the pleadings to the proofs, upon terms as to costs and continuances that may be just.”
735 ILCS 5/2-616(c) (West 2002).
We note that although this court encourages a liberal construction of section 2-616(c) as applied
to prejudgment motions, it has recognized a separate discretionary standard for allowing
amendments after judgment. Compton, 382 Ill. App. 3d at 332 (noting that a trial court’s
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decision to allow amendments before judgment is reviewed differently than a trial court’s
decision to allow amendments after judgment); Colgan v. Premier Electrical Construction Co.,
92 Ill. App. 3d 407, 412 (1981) (noting that different discretionary standards exist for permitting
postjudgment amendments).
Citing authorities that involve prejudgment amendments, Mandel fails to persuade this
court that a trial court should exercise its discretion liberally in favor of allowing amendments
after final judgment. Mandel cannot restructure her original complaint after judgment by
labeling it as a section 2-616(c) amendment to conform the pleadings to the proofs. In her
original complaint, Mandel elected to request monetary damages resulting from the breach of
contract in the alternative to obtaining specific performance of the contract. Mandel in her
proposed amended complaint pleads monetary damages in addition to specific performance to
cure the limitations resulting from pleading in the alternative in a complaint. Seeking to remedy
the implications of requesting relief in the alternative in a complaint, however, is not a proper
basis to amend a complaint to conform to the proofs at trial.
Also, Mandel contends that in reviewing the trial court’s decision to deny leave to
amend, this court should consider whether the amendment would cure the defective pleading,
whether the amendment would prejudice Hernandez and whether the amendment is timely.
Although these factors are among the factors that a reviewing court considers in deciding
whether the trial court properly ruled on a motion to amend, these factors do not apply to
amendments proposed after final judgment. Compton, 382 Ill. App. 3d at 332; see also
Kupianen v. Graham, 107 Ill. App. 3d 373, 377 (1982) (first articulating these factors in the
context of a motion to amend during the pleading stage). Even if those factors were applicable
to postjudgment motions to amend, Mandel would still not prevail in her claim because she had
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previous opportunities prior to final judgment to amend her complaint to eliminate the
alternative form of pleading. A section 2-616(c) motion is improper where, after judgment, the
moving party seeks to add claims or causes of action that were available at the time of the
original complaint. See Vanderplow v. Krych, 332 Ill. App. 3d 51, 58 (2002) (holding that a
request to add new causes of action was not a valid postjudgment motion); see generally Stringer
Construction Co. v. Chicago Housing Authority, 206 Ill. App. 3d 250, 260 (1990) (holding that
an amendment is inappropriate after the trial has begun if the issues could have been raised in the
original pleading and no excuse is given for failing to raise those issues earlier). Where a
moving party had previous opportunities to cure the asserted defect, the trial court does not
abuse its discretion by denying leave to amend. See Kostecki v. Dominick’s Finer Foods, Inc.,
361 Ill. App. 3d 362, 373-74 (2005) (holding that the trial court did not abuse its discretion by
denying leave to amend where it had already permitted amendment).
Mandel relies on Talerico to support her position that a party may amend a complaint
after judgment to recover additional relief. In Talerico, the trial court permitted the plaintiff to
file a first amended complaint for damages but then dismissed the complaint pursuant to section
2-619(c) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(c) (West 2002)) after finding
that the damages were inconsistent with the grant of specific performance and were not
reasonably foreseeable. Talerico, 343 Ill. App. 3d at 129. Concluding that the trial court erred
in dismissing the complaint because the plaintiff could recover monetary damages in addition to
specific performance and a jury could find the damages reasonably foreseeable, this court
reversed and remanded. Talerico, 343 Ill. App. 3d at 132-33. The Talerico court, however, did
not consider whether it is appropriate to grant a postjudgment motion to amend. Thus, Talerico
is not dispositive on this issue and Mandel’s reliance on the case is not persuasive.
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Moreover, although Mandel claims damages for lost resale profits caused by
Hernandez’s delay in performance as a separate count in the proposed amended complaint, the
original complaint may not be amended postjudgment to add that new count. Mandel submitted
exhibits and testimony regarding lost resale profits during the trial. Thus, Mandel could have
requested the lost profit relief and pled the cause of action in the original complaint or requested
permission from the trial court to amend the pleadings prior to final judgment because the basis
for recovering the monetary damages did not relate to any evidence that was not known when the
litigation commenced. We note that Mandel in her motion to amend the complaint stated in part
that “Mandel further established these damages through her own testimony, corroborated by
expert witnesses, and uncontoverted [sic] by the defendant.” Even though Mandel did not
specify in detail what the content of the proofs at trial were, she indicated that her testimony
constituted proof, which supports a conclusion that the matter she seeks to amend the complaint
with was within her knowledge when the litigation began and during the proceedings.
Generally, a trial court should not allow an amendment “after trial has begun if the proposed
amendment raises matters of which the pleader had full knowledge at the time of interposing the
original pleading and there is no excuse for failing to raise those matters in the original
pleading.” Stringer Construction Co., 206 Ill. App. 3d at 260. Mandel did not provide an
excuse as to why the request for monetary damages was not brought as a separate cause of action
in the originally filed complaint. Accordingly, the trial court did not abuse its discretion in
denying Mandel’s postjudgment motion to amend the pleadings to conform to the proofs at trial.
Finally, we are not persuaded by Mandel’s alternative claim that the trial court should
have allowed the filing of the proposed amended complaint and conducted a separate hearing or
trial regarding the damages that Mandel incurred as a result of the delay in Hernandez’s
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performance. Mandel contends that the trial court erred in denying her motion to amend her
complaint to state a new cause of action for damages incident to the delay in specific
performance of the contract. Mandel claims that a cause of action for damages incident to a
delay in specific performance does not ripen and accrue until the award of specific performance
is entered.
In essence, Mandel’s claim is that she requested leave to amend the complaint
postjudgment to add a new cause of action and the trial court erred in denying that request.
Amendments to pleadings to add a new cause of action may be allowed at any time before final
judgment. 735 ILCS 5/2-616(a) (West 2002). A complaint “may only be amended after
judgment to conform the pleadings to the proofs.” Witvoet v. Fireman’s Fund Insurance, Inc.,
317 Ill. App. 3d 915, 920 (2000). Amending a complaint to add a new cause of action is not a
proper postjudgment motion. Fleisch v. First American Bank, 305 Ill. App. 3d 105, 110 (1999).
Moreover, if the trial court enters a final judgment in a case, a plaintiff has no statutory right to
amend a complaint. Compton, 382 Ill. App. 3d at 332. In this alternative claim on appeal,
Mandel maintains that the trial court erred in denying the motion to amend to add a new cause of
action and in not conducting a separate hearing or a new trial regarding the damages issue.
Mandel’s request fails to adhere to the well-settled law that a complaint may not be amended
postjudgment. Fleisch, 305 Ill. App. 3d at 110. Accordingly, the trial court did not abuse its
discretion in denying Mandel’s motion to amend the complaint and conduct a separate hearing or
new trial to address the damages issue.
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Conclusion
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in
denying Mandel’s request for relief consisting of both specific performance and estimated lost
resale profits that were uncertain and not contemplated at the time of contract. The trial court
also did not abuse its discretion in denying Mandel’s request in a posttrial motion to amend the
pleadings to conform to the proofs at trial because the information supporting the requested
relief was available at the time of the original complaint and after the proceedings commenced.
Finally, the trial court did not abuse its discretion in denying the request to amend the pleadings
to add a new cause of action and hold an evidentiary hearing or new trial addressing the
monetary damages claim because amendments to a complaint postjudgment other than to
conform to the proofs are not permitted.
Affirmed.
O’MARA FROSSARD, and NEVILLE, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each case)
________________________________________________________________________
MARYBELLE MANDEL,
Plaintiff-Appellant,
v.
THOMAS E. HERNANDEZ,
Defendant-Appellee.
________________________________________________________________________
No. 1-09-3044
Appellate Court of Illinois
First District, Fourth Division
September 23, 2010
________________________________________________________________________
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PRESIDING JUSTICE GALLAGHER delivered the opinion of the court.
O’MARA FROSSARD and NEVILLE, JJ., concur.
________________________________________________________________________
Appeal from the Circuit Court of Cook County.
Honorable Nancy J. Arnold, Judge Presiding.
________________________________________________________________________
For APPELLANT, Lawrence G. Zdarsky, Woodridge, IL (Lawrence G. Zdarsky, of
counsel)
For APPELLEE, Gerald P. Nordgren and Marie C. Fahnert, Chicago, IL (Gerald P.
Nordgren, Marie C. Fahnert, of counsel)
15