Morse v. Donati

2019 IL App (2d) 180328
Nos. 2-18-0328 & 18-0686 cons.
Opinion filed August 8, 2019
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

HARTWELL P. MORSE III and DEBORAH ) Appeal from the Circuit Court
B. MORSE, ) of Du Page County.
)
Plaintiffs-Appellants, )
)
v. ) No. 15-CH-2123
)
ANTHONY DONATI and CONCETTA )
DONATI, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Hutchinson and Hudson concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Hartwell P. Morse III and Deborah B. Morse, sued defendants, Anthony

Donati and Concetta Donati, for breach of contract arising from a real estate transaction. In

appeal No. 2-18-0328, plaintiffs appeal the judgment of the circuit court of Du Page County

awarding them only $3608 plus costs. In appeal No. 2-18-0686, plaintiffs appeal the order

denying Hartwell’s petition for attorney fees. This court consolidated the appeals. We now

affirm.

¶2 I. BACKGROUND
2019 IL App (2d) 180328

¶3 Plaintiffs owned property commonly known as 282 Stonegate in Clarendon Hills (the

property). The property was encumbered by two mortgages. Chase Bank held the first mortgage.

PNC Bank (the bank) held the second mortgage. Plaintiffs defaulted on both mortgages.

¶4 In August 2015, plaintiffs entered into a contract for the sale of the property to defendants

for $410,000. That contract contained a “short sale addendum,” meaning that plaintiffs were

selling the property for less than they owed. The sale was contingent upon plaintiffs’ obtaining

the bank’s consent. 1 On September 22, 2015, the bank agreed to the short sale, provided that the

bank received all of the proceeds and that plaintiffs received $0 at closing. The bank also agreed

not to pursue a deficiency judgment against plaintiffs.

¶5 On December 21, 2015, defendants refused to close, because of a dispute with their

lender. On December 28, 2015, Hartwell, an attorney, filed suit on behalf of himself and

Deborah against defendants, for specific performance. On April 12, 2016, plaintiffs sold the

property to Susan Kolinger for $375,000, $35,000 less than defendants’ contract price. That sale

was also a short sale that was approved by the bank on the same terms as outlined above. On July

28, 2016, plaintiffs filed an amended one-count complaint against defendants for breach of

contract. Defendants, in their original and amended answers, denied that plaintiffs were

damaged.

¶6 On July 26, 2017, plaintiffs filed a motion for summary judgment. Before that motion

was heard, plaintiffs filed a 43-page motion (omnibus motion) seeking $35,000 in discovery

sanctions against defendants and their counsel. On August 11, 2017, defendants filed a

cross-motion for partial summary judgment, arguing that plaintiffs suffered no damages as a

1
Because Chase Bank ultimately was paid in full, its consent for the short sale was not

required.

-2-
2019 IL App (2d) 180328

result of the sale to Kolinger. Plaintiffs then filed a second motion for sanctions against

defendants on the ground that the defenses raised in defendants’ cross-motion for summary

judgment had not been disclosed in response to plaintiffs’ interrogatories. Defendants did not file

responses to either motion for sanctions. Those motions were continued for hearing to November

29, 2017, along with the cross-motions for summary judgment.

¶7 At the beginning of the hearing, Hartwell stated that he was putting the sanctions motions

aside and would be arguing the merits of plaintiffs’ summary-judgment motion. The court then

twice inquired whether Hartwell was arguing the motions for sanctions or the motion for

summary judgment. Hartwell replied: “The motion for sanctions, Your Honor, is not being

argued at this moment. I put that aside.” He never returned to the motions for sanctions, and the

court did not rule on them.

¶8 The court found that defendants breached the contract. However, the court ruled that

whether plaintiffs sustained damages was an issue of fact, to be resolved at trial. Prior to trial,

attorney Gregory Vacala filed his appearance as cocounsel for plaintiffs.

¶9 On March 23, 2018, plaintiffs filed a motion to bar defendants’ “anticipated defenses” at

trial, as a discovery sanction. That motion referenced the omnibus motion, but it did not

specifically incorporate it. Vacala argued that defendants had not raised as an affirmative defense

plaintiffs’ failure to mitigate damages, or the so-called “short-sale defense.” The court ruled that

damages had earlier been explored and argued “at great length” and that plaintiffs were not taken

by surprise.

¶ 10 At the bench trial on April 2, 2018, Hartwell was the only witness. He testified that the

sale to defendants was a short sale, for which plaintiffs would not receive any money at closing.

Hartwell admitted that the bank would have been entitled to the additional $35,000 if defendants

-3-
2019 IL App (2d) 180328

had closed. Hartwell then detailed the expenses that he claimed plaintiffs incurred between the

breach on December 21, 2015, and the Kolinger closing on April 12, 2016 (the breach period). In

all, plaintiffs claimed damages of $48,881.70. Hartwell admitted that he had no paid receipts or

canceled checks for many of the utility bills and other charges for which plaintiffs demanded

reimbursement. Hartwell testified that he was required to pay $1658.93 toward Coldwell

Banker’s brokerage fees at closing. Hartwell also claimed that Chase Bank and the bank charged

an additional $10,239 in interest during the breach period. Hartwell admitted that plaintiffs did

not pay any of that interest.

¶ 11 Defendants argued that plaintiffs were not damaged, because the bank suffered the

$35,000 loss. To counter that argument, plaintiffs contended that the “collateral source rule”

should apply to allow plaintiffs to recover damages despite having no out-of-pocket loss. The

collateral-source rule, generally applied in tort cases, provides that an injured party who receives

benefits from a collateral source, such as an insurance company, may still recover full damages

from the tortfeasor. Robert Hernquist, Arthur v. Catour: An Examination of the Collateral

Source Rule in Illinois, 38 Loy. U. Chi. L.J. 169, 175 (2006). Defendants argued that the bank

bore the loss and was not a collateral source. The court declined to apply the collateral-source

rule.

¶ 12 The court found that plaintiffs proved out-of-pocket damages of $3608 plus costs. The

court arrived at that figure by adding the amounts of the bills paid during the breach period to the

$1658.93 that plaintiffs paid at closing. The court attributed the additional $1658.93 to title

charges occasioned by the interest that Chase Bank billed during the breach period. The court

entered its written judgment on April 16, 2018. The court also gave the parties 30 days to file

petitions for attorney fees. Vacala filed a fee petition for $6428.80, and Hartwell filed a fee

-4-
2019 IL App (2d) 180328

petition for $82,500. Defendants filed a fee petition for $10,950. On August 22, 2018, the court

granted Vacala’s petition plus the costs of filing the complaint and serving summons. The court

denied defendants’ and Hartwell’s petitions.

¶ 13 On May 2, 2018, plaintiffs filed a timely notice of appeal from the court’s judgment of

April 16, 2018. Plaintiffs also filed a timely notice of appeal from that part of the August 22,

2018, order denying Hartwell’s petition for attorney fees. As noted, this court consolidated the

appeals.

¶ 14 II. ANALYSIS

¶ 15 Plaintiffs argue that they are entitled to damages of $35,000—the difference between the

two contract prices—even though they realized no actual loss. Plaintiffs assert that the

collateral-source rule should apply when sellers have no out-of-pocket damages due to a short

sale. In failing to apply this rule, plaintiffs argue, the court treated the damages assessment

differently than it would in a breach-of-contract case that does not involve a short sale.

¶ 16 Before we consider these arguments, we must address certain deficiencies in plaintiffs’

brief and appendix. Illinois Supreme Court Rules 341(h)(6) and (h)(7) (eff. May 25, 2018)

require that the statement of facts and argument contain appropriate citations to pages of the

record. Plaintiffs, however, cite their appendix, in violation of the rules. See Estate of Prather v.

Sherman Hospital Systems, 2015 IL App (2d) 140723, ¶ 31 (it is a violation of Rule 341(h) to

cite the appendix rather than the record). Plaintiffs also violate Illinois Supreme Court Rule

341(h)(3) (eff. May 25, 2018) in that they do not include a standard of review for their argument

that the court should have awarded them the difference in the contract prices. Further, plaintiffs’

appendix does not list the pages of the record on which the witness’s direct examination,

cross-examination, and redirect examination begin, in violation of Illinois Supreme Court Rule

-5-
2019 IL App (2d) 180328

342(3) (eff. July 1, 2017). Most important, the exhibits that were admitted at trial are not in the

record, but plaintiffs nonetheless included them in the appendix and refer to them in their brief. If

materials are not taken from the record, they may not be placed before us in an appendix and will

be disregarded. Oruta v. B.E.W. & Continental, 2016 IL App (1st) 152735, ¶ 32. We remind

counsel that the Illinois Supreme Court rules are not mere suggestions; they have the force of

law, and we may strike portions of a brief or dismiss an appeal when the circumstances warrant

such sanctions. Estate of Prather, 2015 IL App (2d) 140723, ¶ 32. Here, the record is not

voluminous and defendants include appropriate citations to the record, so our review is not

hindered. Accordingly, we will consider the merits of the appeal.

¶ 17 We first address whether the court applied an erroneous measure of damages. A

reviewing court will not reverse the damages assessed by a trial court in a bench trial unless its

judgment is against the manifest weight of the evidence. Royal’s Reconditioning Corp., Inc. v.

Royal, 293 Ill. App. 3d 1019, 1022 (1997). A damages assessment is against the manifest weight

of the evidence when the court ignored the evidence or used an incorrect measure of damages.

Royal, 293 Ill. App. 3d at 1022.

¶ 18 To recover damages in a breach-of-contract action, a plaintiff must establish an actual

loss resulting from the breach. In re Illinois Bell Telephone Link-up II & Late Charge Litigation,

2013 IL App (1st) 113349, ¶ 19. The measure of the “actual loss” is the damages that are

compensatory, in restitution for the harm caused, and that make the plaintiff whole again, but do

not place him or her in a better position than if the contract had been performed. Wanderer v.

Plainfield Carton Corp., 40 Ill. App. 3d 552, 556 (1976). “Damages are an essential element of a

breach of contract action and a claimant’s failure to prove damages entitles the defendant to

judgment as a matter of law.” In re Illinois Bell, 2013 IL App (1st) 113349, ¶ 19.

-6-
2019 IL App (2d) 180328

¶ 19 We conclude that the collateral-source rule is not implicated here, because (1) the bank

absorbed the loss, (2) the loan forgiveness was not a payment to plaintiffs but a necessary

condition for plaintiffs to sell the property, (3) the bank did not confer a benefit on plaintiffs, but

acted in its own commercial interest, and (4) plaintiffs agreed, as a condition of obtaining the

bank’s assent to the short sale and its debt forgiveness, to walk away from the transaction with

$0.

¶ 20 Our analysis begins with the collateral-source rule. As noted, the collateral-source rule is

rooted in tort recovery. The fundamental premise of tort law is to justly compensate for any “loss

or injury proximately caused by the tortfeasor.” Clark v. Children’s Memorial Hospital, 2011 IL

108656, ¶ 29. Historically, tort law provided the principal, if not sole, source of compensation for

injuries suffered. John G. Fleming, The Collateral Source Rule and Loss Allocation in Tort Law,

54 Calif. L. Rev. 1478 (1966). However, today, some or all of a tort victim’s losses are likely

covered by benefits that are paid before the injured party receives a recovery in tort. Fleming,

supra, at 1480 (1966). Those benefits implicate the collateral-source rule. Arthur v. Catour, 216

Ill. 2d 72, 80 (2005). To reiterate that rule: in Illinois, it is well established that benefits an

injured party received from a source independent of and collateral to the tortfeasor will not

diminish the damages that are otherwise recoverable from the tortfeasor. Muranyi v. Turn Verein

Frisch-Auf, 308 Ill. App. 3d 213, 215 (1999).

¶ 21 Courts frequently apply the rule where a defendant seeks a reduction in damages because

of insurance payments that the plaintiff has received. Arthur, 216 Ill. 2d at 79. In that typical

case, the injured party’s expenses are paid so that he or she has no actual loss. Arthur, 216 Ill. 2d

at 80. However, one justification for the rule is that the wrongdoer should not benefit from

expenditures that the injured party made or take advantage of contracts or other relations that

-7-
2019 IL App (2d) 180328

exist between the injured party and third persons. Arthur, 216 Ill. 2d at 79 (citing Wilson v. The

Hoffman Group, Inc., 131 Ill. 2d 308, 320 (1989)). Another justification for the rule is that the

collateral source will typically have a lien or a subrogation right that prevents a double recovery.

Wills v. Foster, 229 Ill. 2d 393, 399 (2008). The rule operates as both a rule of damages and a

rule of evidence. Arthur, 216 Ill. 2d at 79-80. Regarding evidence, the rule prevents juries from

hearing about a collateral source that could cause them to deny the plaintiff a full recovery.

Arthur, 216 Ill. 2d at 80.

¶ 22 From the foregoing, we see that the collateral-source rule does not come into play unless

(1) the victim suffers an actual loss (2) for which he or she has been compensated by sources

other than the tortfeasor. At trial, in their appellate briefs, and at oral argument in this case,

plaintiffs admitted that they suffered no out-of-pocket loss and that the loss was borne by the

bank. Plaintiffs posit that the bank’s agreement not to pursue a deficiency judgment against them

was a payment to compensate them for the difference in contract prices, but that argument is

specious in light of their admission that they suffered no actual loss.

¶ 23 Even if we could say that plaintiffs suffered a loss, the bank’s forgiveness of their debt

was not compensation for such loss. It was strictly a commercial arrangement dictated by the

unfortunate fact that a job loss caused plaintiffs to default on their mortgage. To forestall

foreclosure, plaintiffs agreed to sell the property to defendants for less than they owed to the

bank. Quite simply, to make the sale possible, plaintiffs needed the bank’s agreement to accept

less than the mortgage loan balance.

¶ 24 Nor was plaintiffs’ arrangement with the bank collateral to the sales contract with

defendants. This case involved four contracts, not just the two real estate sales contracts. The

first contract was the mortgage between plaintiffs and the bank. The second was the contract

-8-
2019 IL App (2d) 180328

between plaintiffs and defendants. The third was the contract between plaintiffs and Kolinger.

The fourth was the short-sale agreement between plaintiffs and the bank, in which the bank

agreed to cancel plaintiffs’ debt in consideration for plaintiffs’ agreement (1) to pay the sale

proceeds to the bank and (2) to net $0 at closing. We cannot set aside as irrelevant plaintiffs’

short-sale agreement with the bank, as plaintiffs suggest we should, because the short-sale

addendum was part of the real estate contracts and affected the amount that plaintiffs could

legally realize from the transaction, which was $0. In other words, plaintiffs’ short-sale

agreement with the bank was not collateral to the transaction with defendants, but was integral

thereto.

¶ 25 Plaintiffs argue that the bank’s agreement not to pursue a deficiency judgment was

collateral to the contract with defendants, because the short-sale addendum required only that

plaintiffs obtain the bank’s permission to do a short sale. We disagree. In exchange for the

bank’s forgiveness of the total debt, plaintiffs agreed to walk away with $0 at closing. The

advantage to the bank was that it received a substantial amount of the mortgage balance quickly

versus having to go through the costly foreclosure process. See Tracie R. Porter, The Quagmire

of Mortgage Short Sale Transactions Under Current Homeownership Tax Policy in a Time of

Crisis, 49 Akron L. Review 813, 816 (2015). Thus, the bank was protecting its own interests.

More important, plaintiffs were obligated to pay all of the proceeds of the sale to the bank. Thus,

as plaintiffs admit, the loss of $35,000 in sale proceeds was the bank’s loss, not plaintiffs’.

¶ 26 Further, we reject plaintiffs’ rationale for applying the collateral-source rule here.

According to plaintiffs, its application would equalize damages assessments between parties who

suffer actual damages and those who do not. Plaintiffs maintain that, if the sale had not been a

short sale, they could have proved actual damages. Pared to its essence, plaintiffs’ argument is

-9-
2019 IL App (2d) 180328

that damages should be presumed in a short sale, to alleviate the economic hardship attendant to

homeowners who owe more than their properties are worth. We recognize the financial distress

of such homeowners. However, plaintiffs stand the law on its head, because an award of $35,000

would better their position.

¶ 27 Plaintiffs argue that defendants should not be able to take advantage of the bank’s

forgiveness of plaintiffs’ debt. But defendants did not take advantage of anything. Defendants

offered a price that plaintiffs accepted. To sell the property at that price, plaintiffs were legally

obligated to obtain the bank’s agreement, because it was the bank that would absorb the loss. As

a condition of that agreement, in which the bank cancelled all of the debt, plaintiffs were legally

bound to pay all of the sale proceeds to the bank and to walk away from the closing with $0. It

turned out that, because of Chase Bank’s additional interest, plaintiffs had to pay approximately

$1600 at closing. The court awarded plaintiffs that amount, thus returning them to $0. Plaintiffs

are in the exact position that they bargained for.

¶ 28 In their reply brief, plaintiffs argue for the first time that defendants’ breach was

“willful.” Although plaintiffs alleged in their amended complaint that defendants’ breach was

willful, they did not specifically argue that point in their opening brief (or at trial). Generally,

arguments raised for the first time in a reply brief are deemed forfeited. People v. Miranda, 2018

IL App (1st) 170218, ¶ 27. Forfeiture aside, our supreme court held in Valfer v. Evanston

Northwestern Healthcare, 2016 IL 119220, ¶ 27, that the tort concept of “wilful and wanton” has

“no application to a nontort claim such as a routine breach of contract action.” “A breach of

contract is not considered a tort because intent or the willfulness of the breach is not relevant

***.” Valfer, 2016 IL 119220, ¶ 27. 2 Here, plaintiffs brought a one-count breach-of-contract

2
Plaintiffs rely on the First District’s opinion in American Fidelity Fire Insurance Co. v.

- 10 -
2019 IL App (2d) 180328

action based on defendants’ failure to close on the real estate contract. Plaintiffs did not bring

additional counts alleging any tortious conduct. Further, the substantive component of the

collateral-source rule is a rule of damages (Arthur, 216 Ill. 2d at 80), and plaintiffs admit that

they did not suffer an actual loss. Accordingly, we hold that the trial court’s measure of damages

was not against the manifest weight of the evidence.

¶ 29 Plaintiffs next contend that they proved damages in the form of additional interest

charges of $10,239 that their lenders billed during the breach period. Plaintiffs admit that they

did not pay either lender during that period. The court found that the increased title charges of

$1658.93 that plaintiffs paid at closing were attributable to the interest that Chase Bank billed

during the breach period, and it awarded plaintiffs that amount in damages. Again, we will not

disturb the court’s finding unless it is against the manifest weight of the evidence. Royal, 293 Ill.

App. 3d at 1022.

¶ 30 Plaintiffs argue that the court ignored Hartwell’s testimony that the $1658.93 was paid

toward Coldwell Banker’s brokerage fees rather than Chase Bank’s interest. We fail to

understand how plaintiffs’ argument is anything other than spurious. Plaintiff’s argument—that

if they paid $0 toward those interest charges, they are entitled to over $10,000 in damages—is

General Ry. Signal Co., 184 Ill. App. 3d 601, 617 (1989), where the court stated that the

collateral-source rule applies in contract cases “only where there is an element of fraud, tort, or

wilfulness.” To the extent that the court might have implied that willfulness is relevant to a breach

of contract, we believe that American Fidelity is no longer good law in light of Valfer. We note that

the Fourth District cited American Fidelity in Jiles v. Spratt, 195 Ill. App. 3d 354, 358 (1990), and

stated that the collateral-source rule applies to willfulness in breaching a contract. We believe that

Jiles is also no longer good law on that point.

- 11 -
2019 IL App (2d) 180328

essentially the same argument that we rejected above. We reiterate that a party must show an

actual loss. In re Illinois Bell, 2013 IL App (1st) 113349, ¶ 19. If the court mistakenly credited

the $1658.93 to the Chase Bank interest, that mistake worked in plaintiffs’ favor. Accordingly,

the court’s determination that plaintiffs were not entitled to additional damages was not against

the manifest weight of the evidence.

¶ 31 Next, plaintiffs contend that the court abused its discretion in not granting their omnibus

motion for discovery sanctions and the accompanying motion to strike defendants’ cross-motion

for summary judgment as a discovery sanction. Illinois Supreme Court Rule 219(c) (eff. July 1,

2002) provides that, if a party unreasonably fails to comply with discovery rules, the court may

impose a variety of sanctions. Rosen v. The Larkin Center, Inc., 2012 IL App (2d) 120589, ¶ 16.

The decision whether to impose sanctions is within the trial court’s discretion, and only an abuse

of that discretion will occasion a reversal. Rosen, 2012 IL App (2d) 120589, ¶ 16.

¶ 32 The record shows that plaintiffs abandoned the sanctions motions. After the motions were

filed, they were continued to the summary-judgment hearing on November 29, 2017. At that

hearing, the court noted that both types of motions were before it. Hartwell stated that he was

setting the sanctions motions aside to argue the merits of plaintiffs’ summary-judgment motion.

Defendants’ counsel inquired once, and the court inquired twice, whether Hartwell was arguing

the sanctions motions or the summary-judgment motion. Hartwell stated that he was arguing the

summary-judgment motion. He clearly stated that the sanctions motions were “not being argued

at this moment. I put that aside.” Hartwell never requested a ruling on the motions, either at that

hearing or before he filed the notice of appeal.

¶ 33 A party’s failure to obtain a ruling on a motion does not mean that the court denied the

motion. Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 432-33 (2007). It is

- 12 -
2019 IL App (2d) 180328

the moving party’s responsibility to request the judge to rule on his or her motion, and when no

ruling has been made, the party is presumed to have abandoned the motion, absent circumstances

indicating otherwise. Rodriguez, 376 Ill. App. 3d at 433. Filing a notice of appeal without first

obtaining a ruling on a motion constitutes abandonment of that motion. Rodriguez, 376 Ill. App.

3d at 433. Because plaintiffs never sought a ruling on the sanctions motions, we are unable to

review them.

¶ 34 Next, plaintiffs argue that the court abused its discretion when it denied their motion to

bar the “short-sale defense” at trial. That motion alleged that defendants failed to raise the

“short-sale defense” as an affirmative defense, in their answer to either the complaint or an

interrogatory. Plaintiffs thus asserted that they were taken by surprise. The court pointed out that

damages were extensively discussed at the summary-judgment hearing. However, plaintiffs

maintain that they did not know that defendants were contesting damages until defendants filed

their cross-motion for summary judgment. By then, plaintiffs assert, they had no opportunity to

conduct discovery on the “short-sale defense” or to file dispositive motions regarding that

defense. Again, the decision whether to impose sanctions is within the trial court’s discretion,

and we will reverse only where there was an abuse of that discretion. Rosen, 2012 IL App (2d)

120589, ¶ 16.

¶ 35 What plaintiffs call a “short-sale defense” was simply defendants’ denial that plaintiffs

suffered any actual damages. As discussed above, a contract for a short sale does not relieve a

plaintiff from having to prove an actual loss. Defendants denied plaintiffs’ allegations of

damages, in both their original and amended answers. Defendants were not also required to raise

the lack of damages as an affirmative defense. “[T]he mere denial of an element of a cause of

- 13 -
2019 IL App (2d) 180328

action, without asserting any new matter, does not constitute an affirmative defense.” Rohr Burg

Motors, Inc. v. Kulbarsh, 2014 IL App (1st) 131664, ¶ 63.

¶ 36 Plaintiffs’ interrogatory asked defendants to list “all affirmative defenses.” Defendants

included “mitigation of damages” in their answer, but they did not list their denial that plaintiffs

suffered any actual loss. The disclosure requirements pursuant to Illinois Supreme Court Rule

213 (eff. Jan 1, 2018) are mandatory and necessitate strict compliance. Kovera v. Envirite of

Illinois, Inc., 2015 IL App (1st) 133049, ¶ 59. Because defendants’ denial that plaintiffs suffered

any damages was not an “affirmative defense,” defendants did not have to disclose it in response

to the interrogatory. However, even if the denial of damages had been subject to disclosure as an

affirmative defense, the failure to comply with Rule 213 does not automatically result in

exclusion of the noncomplying party’s evidence. Kovera, 2015 IL App (1st) 133049, ¶ 59. In

determining whether to bar testimony as a sanction, the court must consider (1) the surprise to

the adverse party, (2) the prejudicial effect of the testimony, (3) the nature of the testimony, (4)

the diligence of the adverse party, (5) the timeliness of the objection to the testimony, and (6) the

good faith of the party calling the witness. Kovera, 2015 IL App (1st) 133049, ¶ 59. Here, the

only factor that plaintiffs argued at trial was surprise.

¶ 37 We reject plaintiffs’ contention that they lacked notice that defendants were contesting

damages until defendants filed their cross-motion for summary judgment. As noted, defendants’

answers denied plaintiffs’ allegations of damages. It has ever been thus that issues are joined by

allegations and denials of fact. See Chicago G.W. Ry. Co. v. People, 79 Ill. App. 529, 531

(1898). Consequently, there is no such thing as a “short-sale defense” by which defendants could

have ambushed plaintiffs. Nothing in the form real estate contract between plaintiffs and

defendants distinguishes it from any other contract to sell real estate except a short-sale

- 14 -
2019 IL App (2d) 180328

contingency that the sellers obtain their lender’s approval. Yet, throughout this litigation,

plaintiffs have attempted to shapeshift an ordinary breach-of-contract case into a new species of

contract/tort as a means to reap a windfall. Moreover, plaintiffs could have obtained nothing in

discovery that they did not already have, because the facts surrounding the short sale were of

their own making.

¶ 38 Certainly, at the hearing on the cross-motions for summary judgment, which was well

before trial, damages became the sole issue. Defendants clearly argued that plaintiffs did not

have any out-of-pocket loss. The court observed the parties’ divergent views when it remarked

that plaintiffs focused on the difference in contract price as the measure of damages while

defendants focused on the “net to seller.” The court found that there were “significant questions

of fact” as to what the damages were. The court even listed the documents that it would need at

trial to assess the damages.

¶ 39 Plaintiffs further assert that the purported discovery violations enumerated in their

omnibus motion required the court to grant the motion to bar defendants’ defenses at trial. But

plaintiffs did not incorporate the omnibus motion into the motion to bar. While Vacala asked the

court to take judicial notice of the omnibus motion, and he argued that the court should consider

defendants’ numerous discovery violations, he did not ask for a ruling on the omnibus motion.

Thus, that motion is irrelevant to whether the court abused its discretion in denying the motion to

bar. Moreover, plaintiffs fail to cite any authority for their argument that the court should not

have allowed defendants to oppose the motion to bar, due to their prior alleged discovery

violations. As such, that argument is forfeited under Rule 341(h)(7) (requiring the appellant to

cite authorities in support of its argument). Accordingly, we determine that the court did not

abuse its discretion in denying the motion to bar.

- 15 -
2019 IL App (2d) 180328

¶ 40 Lastly, plaintiffs urge that we vacate the court’s award of attorney fees only if we hold

that they are entitled to additional damages. As we have determined that plaintiffs are not entitled

to additional damages, we affirm the award of attorney fees.

¶ 41 III. CONCLUSION

¶ 42 For the reasons stated above, the judgment of the circuit court of Du Page County is

affirmed.

¶ 43 Affirmed.

- 16 -