2021 IL App (1st) 200838-U No. 1-20-0838 Order filed November 12, 2021 Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ CROWN SERIES, LLC, 168 N. MICHIGAN SERIES, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 2017 L 4629 ) DANIEL P. COFFEY & ASSOCIATES, LTD., ) Honorable ) Thomas R. Mulroy, Defendant-Appellee. ) Judge, presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Daniel Pierce and Justice Sheldon Harris concurred in the judgment
ORDER
¶1 Held: We affirm where: (1) the trial court did not err in admitting evidence of profits at trial for breach of contract; (2) defense counsel’s statements regarding profits during closing arguments did not constitute error; and (3) the trial court did not err in denying plaintiff’s motion for a new trial.
¶2 Plaintiff Crown Series LLC, 168 N. Michigan Series’ (Crown) sued defendant Daniel P.
Coffey & Associates, Ltd. (Coffey Associates) for breach of contract. Following a jury trial, the
trial court entered judgment in favor of defendant Coffey Associates. On appeal Crown contends No. 1-20-0838
that: (1) the trial court erred when it allowed profits to be introduced into evidence; (2) the trial
court erred when it allowed Coffey Associates to continuously make improper comments
regarding said profits; and (3) the trial court erred when it denied Crown’s motion for a new trial
because the evidence at trial demonstrated that Coffey Associates breached the contract. For the
following reasons, we affirm.
¶3 I. BACKGROUND
¶4 A. Pretrial
¶5 At the time of pretrial, Crown was an Illinois limited liability company that owned a 12-
story office building located at 168 North Michigan Avenue, Chicago, Illinois (subject property).
Musa Tadros, a member of Crown LLC 1, was the primary contact for the subject property. Coffey
Associates, an Illinois corporation, assigned architects Daniel P. Coffey (Coffey) and Fred
Romano to work on the subject property. On April 30, 2013, the parties entered into an American
Institute of Architects (AIA) contract whereby Coffey Associates would provide architectural
services for the design and construction of the subject property for use as a hotel.
¶6 On December 31, 2013, the city of Chicago’s department of buildings (city) denied
Crown’s permit application because the attached design, plans, and drawings (plans) did not
demonstrate that the south-facing rooms would be guaranteed to receive natural light as required
by the Municipal Code of Chicago (Chicago Municipal Code §13-172- 060(a) (added April 29,
1998))2. The plans showed that the subject building was adjacent to the property line of the
adjoining property located at 150 South Michigan Avenue (adjoining property). The city
1 Although LLC’s typically consist of multiple members, plaintiff’s brief does not include who those members are. 2 Chicago Municipal Code §13-172- 060(a)(added April 29, 1998), was repealed on August 1, 2019. -2- No. 1-20-0838
expressed concern that without an easement, the owner of adjoining property could construct a
building that would ultimately obstruct the light in the south facing rooms.
¶7 On November 1, 2017, Crown filed the within complaint against Coffey alleging breach of
contract and indemnification. In support of its breach of contract claim, Crown alleged that it
would not have entered into other contracts for the hotel if Coffey Associates had notified them
about the natural light requirement, and by failing to do so, Crown accrued damages in excess of
$2 million for those respective contracts and agreements. Crown claimed that it decided to sell the
subject property because of the financial drain the project was experiencing. Crown also sought
indemnification pursuant to §8.1.3 of the AIA contract which provided that Coffey Associates was
to indemnify Crown for acts of negligence or omissions that resulted in litigation against Crown.3
¶8 On December 17, 2017, Coffey Associates filed an answer and affirmative defenses
pleading that: (1) Coffey Associates was entitled to a setoff; (2) Crown failed to mediate its
damages; (3) Crown’s damages were consequential, and it was not entitled to those because their
agreement explicitly waived them in §8.1.4; and (4) Crown was prohibited from seeking recovery
from Coffey Associates for breach of the contract pursuant to §5.5 and §5.9 of their contract.
¶9 On January 28, 2019, the trial court granted Crown’s motion to voluntarily dismiss its
indemnity claim.
¶ 10 On March 5, 2019, Crown filed a motion in limine to bar Coffey Associates from
introducing evidence of Crown’s sale price for the subject property. Crown argued that the sales
price was not relevant because it did not prove or disprove the loss caused by Crown’s reliance on
3 As of the time of filing, Crown had been sued by Central Building in December of 2015 under case number 15 CH 18405 for work done on the subject property’s hotel conversion project, and by Holiday Hospitality in May 2016 under Georgia case number 16 A60083-2 to recover liquidated damages as a result of the termination of the contract.
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the contract it had with Coffey Associates. Further, Crown argued that Coffey Associates did not
present opinion testimony that the property’s value increased because of the work that Coffey
Associates put into it.
¶ 11 On March 5, 2019, Coffey Associates responded to Crown’s motion in limine, seeking its
denial and arguing that there was no evidence that the city would not have denied the building
permit if Crown had secured the easement from the adjoining property owner. Coffey Associates
asserted that evidence of the sale price was relevant to its affirmative defense regarding a right to
setoff.
¶ 12 At the hearing on the motion in limine, Crown argued that it spent over $2 million in
reliance damages to convert the subject property from an office building to a hotel. Crown
acknowledged that it purchased the property for $9 million and sold it for $21 million, due to an
upward fluctuation of the housing market. Crown argued that a setoff could not be established
without expert evidence, and it was too prejudicial in nature. Coffey Associates argued that it
intended to prove a setoff at trial and that Crown was unable to demonstrate reliance damages
because the property was not rendered useless, in fact, it was the easement that made the property
more valuable.
¶ 13 The trial court ruled that the evidence of the value of the property was excluded, however,
if one of Crown’s witnesses “opened the door” to the value of the property, then it would have to
let Coffey Associates cross examine on it. The trial court stated that something along the lines of
mentioning how much money Tadros lost or how much the building lost would trigger evidence
of the value of the property coming in. The trial court also determined that if Coffey Associates
raised a claim of setoff it would have to be in a counterclaim and needed to be proven.
¶ 14 B. Trial
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¶ 15 At trial, Coffey was called as an adverse witness in Crown’s case-in-chief. Coffey testified
that it was his responsibility to identify building code issues. However, when dealing with
buildings from the 1920’s or older, the code becomes more discretionary to the city. Coffey
recalled that he would often schedule meetings with the city in order to resolve issues. Between
2012 and 2014, Coffey primarily worked with Asif Rahman (Rahman), a city employee, in regard
to building code issues. Coffey stated that he knew that the building code required that a hotel
must have natural lighting in each hotel room and acknowledged that he knew Crown would be
hiring other professionals in preparation for the construction of the hotel.
¶ 16 Coffey further testified that he and Romano met with the building department on several
occasions where they asked questions and went into detail about carious code requirements. Coffey
testified that he knew there was nothing preventing the adjoining property from building on the
gangway, but, if they did it would be unlawful because the hotel would not be getting sufficient
natural light. Coffey testified that he knew that Crown needed to get an easement from the
adjoining property because of the December 31, 2013, meeting. Coffey claimed that they all knew
something was going to be needed to get access for other matters and he believed that Tadros was
working on obtaining access, but he was not privy to those conversations. Coffey specifically
recalled a previous occasion when Tadros needed access to the gangway and received it from the
adjoining property owner. Coffey informed the court that sometime after the meeting with the city,
Tadros told him that he would get the easement because he felt it was his job. Thus, Coffey was
not involved with the negotiations for the easement.
¶ 17 Instead of solely conducting a cross examination, the trial judge allowed Coffee Associates
to begin its case-in-chief by combining its cross examination and direct examination of Coffey.
During examination, Coffey recalled that he had met with Rahman on more than one occasion,
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and they would always discuss the requirements for the subject property. Rahman did not bring up
the easement issue until the December 31, 2013, meeting where Tadros was present.
¶ 18 Coffey testified that he was under the belief that Tadros knew of the easement requirement
because the contract stated that all of the issues dealing with ownership, perimeter and legal matters
were the owner’s responsibility. Coffey stated that it was his understanding that easements tended
to be legal issues that attorneys dealt with. Coffey recounted that there was a total of three
architects and Tadros was in charge of coordinating them: namely, Coffey Associates, Knauer who
worked on the hotel interiors, and Delf Gusitus who worked on the exterior of the building. Coffey
recalled receiving a termination letter from Tadros with an effective date of December 7, 2015,
and Tadros personally told Coffey that he sold the building, however, Coffey could not recall if he
was personally informed before or after receiving the termination letter. On cross examination,
Coffey denied that having to tell Crown about the easement was within the scope of their
agreement.
¶ 19 Next, Crown elicited Tadros’ testimony. Tadros testified that Coffey told him they could
get permits before the end of 2012 which contributed to Crown’s decision to hire Coffey and
Associates. Tadros identified the August 17, 2012, proposal that Coffey gave him and indicated
that he accepted the terms contained therein and paid $25,000 for Coffey and Associates to begin
work. Tadros testified that he had entered into many contracts in anticipation of opening the subject
property as a hotel and that Coffey was aware of this because of the many meetings they had. He
did not recall being told that he needed an easement by Coffey Associates and would have never
entered into those agreements had he known.
¶ 20 Tadros admitted that he, Rahman, Rahman’s assistant, and Romano were all present for
the December 31, 2013, permit meeting. Tadros testified that at the meeting, a discussion about
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the use of the hotel ensued and Rahman did not want to proceed with the application because they
had not obtained an easement for the adjoining property. Tadros recalled Romano stating that he
was not aware that they needed an easement and he appeared shocked. Tadros testified that after
the meeting he spoke with Romano who informed him that he would speak to Coffey about the
matter and that he might know how to work around the issue. Tadros recalled that in the first week
of January of 2014, he, Romano, and Coffey had a meeting where Romano informed him that
neither he nor Coffey knew of the easement requirement. Tadros testified that he was seeking an
easement from the adjoining property to either purchase the gangway that was between the two
properties or to purchase the air above the gangway to restrict the owners from building on it.
Tadros recalled that they never discussed an easement prior to the December 31, 2013, meeting
with Rahman, however, some of Tadros’ representatives were in contact with the adjoining
property for other matters outside of the easement. Tadros testified that when he had previously
worked with architects who outlined what was needed and worked with the city to see what was
required of him. Tadros recalled one of the first meetings with Coffey Associates in August 2012,
where Coffey assured Tadros that there was no need for him to meet with the city because the
property was already zoned as a hotel.
¶ 21 Tadros testified that he called the adjoining property owner and then, at the owner’s
request, sent a formal letter on January 17, 2014, providing details of the project. Tadros stated
that the adjoining property owner made many requests, and they were in constant correspondence
and negotiations with each other from January 2014 until immediately prior to the sale of the
subject property on December 5, 2014. By the time the easement was finally obtained, Tadros had
sold the subject property out of fear that Crown would never obtain the easement and he was
continually spending money along the way. Consequently, all of the agreements with other
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contractors terminated effective December 7, 2015. Tadros also stated that in an attempt to settle
pending matters, sometimes Crown, an entity of Crown, or he paid the bills.
¶ 22 On cross examination, Tadros testified that as the owner it was his responsibility to obtain
an easement and provide legal services pursuant to §5.5 of the AIA contract. Tadros understood
that part of an architect’s job was to provide plans. Tadros clarified that he was already in contact
with the adjoining property about getting access and after the meeting on December 31, 2013, he
additionally requested the easement. Tadros confirmed that he did not have Romano and Coffey
assist him in getting the easement and that he undertook that himself.
¶ 23 At this point, outside of the presence of the jury, Coffey Associates argued that Tadros
opened the door for evidence of the sale price of the subject property to be introduced when Tadros
testified about value and how he and the building lost money. Coffey Associates contended that
because a profit was made from the sale there were no damages. Coffey Associates insisted that
because Tadros’ testimony to the jury that he lost so much money was inherently untrue: he
actually made a $10 million profit. Crown asserted that the previous decision barring the value of
the sale of the property should be upheld because it was possible to still be profitable even though
it lost profits. Further, Crown argued that the amount of the sale was not relevant. The trial court
expressed concern that the information was just being offered to prejudice Crown. Coffey
Associates, however, argued that since Crown made a lot of money and a setoff was requested in
the affirmative defense, the sales amount and profits were admissible. Additionally, Coffey
Associates argued that Tadros made it appear that he was poor and did not make any money from
the subject property and had to use his own money to pay bills thereby bringing his credibility into
question. The trial court expressed its concern that the impression from the testimony did appear
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that Crown “lost his shirt.” Therefore, the trial court took the arguments of the parties under
advisement while the cross examination of Tadros continued.
¶ 24 Tadros testified that he was damaged by having to waste a lot of money and that it was
Coffey Associates’ fault. Tadros stated that the sale of the subject property was conditioned on
Crown obtaining the easement from the adjoining property. Tadros denied that the easement was
obtained faster at the prospect of the sale, and he insisted that the subject property and the adjoining
property were in negotiations for the easement for approximately two years.
¶ 25 Anthony Fenton, a forensic architect, testified that he was hired by Crown, and, in his
opinion, Coffey Associates did not perform its services within the standard of professional skill
and care required by the parties’ contract. Fenton assessed that an easement was required for the
south wall in order for it to be compliant with the building code and Coffey Associates failed to
identify the need for an easement. Fenton explained that Coffey Associates should have gone
through a process as outlined by the AIA that provided a best practices approach. Fenton concluded
that Coffey Associates’ drawings were not in compliance with the building code because it did not
contain an easement, resulting in a denial of the building permit.
¶ 26 On cross examination, Fenton testified that it was his understanding that it was the owner’s
responsibility to negotiate and secure the easement and that under the AIA contract Coffey
Associates was not obligated to obtain such agreements. Fenton affirmed that he did not actually
work in the field, but only researched and wrote reports in preparation for providing expert witness
testimony. Fenton also admitted he did not know why it took two years to get the easement but
acknowledged that Tadros took it upon himself to do so. Fenton also acknowledged that even
amongst city employees, interpretation of the code can vary, and negotiations can result in
approval of a plan.
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¶ 27 Counsel for Crown read into the record an excerpt from Romano’s deposition in which he
acknowledged that from the onset of the project, he knew any land to the south of the subject
property was owned by the adjoining property. Romano testified that after being informed of the
easement requirement, the next step was to get the easement and Tadros said he would do that.
Romano testified that Tadros learned about the easement requirement when they attended a
meeting with Rahman.
¶ 28 Crown rested its case-in-chief. Coffey Associates moved for a directed verdict and was
denied.
¶ 29 Coffey Associates called Daniel Schuman who testified that he was a project manager for
Central Building and Preservation (Central) from 2012 to 2013, which provided masonry work to
Crown. Schuman testified that Central’s contract with Crown required that the owner was to obtain
access for the neighboring buildings on the south and north of the subject property. Schumann
stated that it was the standard practice for owners and that Central required this to ensure that its
employees would not be arrested for trespassing.
¶ 30 Outside the presence of the jury, the trial court decided that based on the previous
arguments of the parties the sale price would not be introduced to the jury because it would be too
prejudicial and irrelevant. However, the trial court found that it was important that the jury knew
that Crown did not lose money, which the testimony at that point was beginning to indicate.
Therefore, the trial court offered to instruct the jury that plaintiff made a profit from the sale of the
subject property. Coffey Associates, however, sought to publish the information to the jury by
recalling Tadros and eliciting said information from his testimony. Crown did not agree with either
approach. Ultimately, the trial court would allow Tadros to be recalled to testify.
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¶ 31 Mark Dewitt, an architect, testified that he was hired by Coffey Associates and concluded
that it met its standard of care and their contractual obligations. Dewitt stated that the permit
process could require a lot of back and forth between the applicant and the city and it was
impossible to anticipate all of what the city would require in one submission. Dewitt testified that
when an easement was required, it was the responsibility of the owner to provide because it was a
legal document that was outside of the scope of an architect. Dewitt maintained that under the AIA
contract, it was Crown’s responsibility to meet the legal needs in order to develop the subject
property. Dewitt testified that it was outside the scope of an architect to evaluate an easement.
Dewitt stated that it was his opinion that an easement with the adjoining property could have been
obtained quickly had Crown complied with the adjoining property owner’s checklist, but Crown
did not comply. On cross examination, Dewitt acknowledged that while working as an architect,
he would not expect his client to know about an easement requirement. Crown Associates rested
its case-in-chief.
¶ 32 Based on the trial court’s previous ruling admitting evidence regarding profits, Tadros was
recalled. On redirect examination Tadros testified that he typically looked for long-term income
producing properties. Tadros stated that the hotel was originally supposed to open on March 15,
2014, and that at no point prior to the sale did it generate income. Tadros clarified that, because he
spent money but did not produce any money from the project, this meant he lost money. Tadros
also testified that none of the money that was used to pay bills came directly from his personal
account. Tadros concluded that he did not lead the jury to believe that he lost money on the project
and acknowledged that he “made some” profit.
¶ 33 Prior to closing arguments, the trial court informed the jury as follows: “[a] closing
argument is given at the conclusion of the case and is a summary of what an attorney contends the
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evidence has shown. If any statement or argument of an attorney is not supported by the law or the
evidence, you should disregard that statement.” During closing arguments defense counsel made
the following statements that are relevant to our review:
“He waited until the very last day of trial, and what does he do, he gets on that stand and
finally tells you the truth.
***
He sat on that stand and finally told us the truth, he made money. Why so late? The last
witness on the last day.
And did you notice his demeanor change? Did you notice that when I was able to question
him that his demeanor changed? Yes, he now was a confident [sic], raising his voice real
estate developer. He was no longer sitting there going, oh, I paid this and I paid that and
Mr. Coffey's so smart. Two different people Tuesday and Wednesday to yesterday.
I think lawsuits are about right and wrong. They're not about making money. They're not
about getting your costs back. It's about right and wrong. It really is that simple. He made
a profit.
And so, what does he say, the dominant person in this relationship between a developer
and architect, is I want my money back. I want all of my costs. I want a windfall. That's
not what this is about. We don't ask you to come in and give public service here so I get a
windfall.”
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¶ 34 Crown made objections to the first two statements but was overruled. The jury then
rendered its verdict in favor of Coffey Associates finding that it did not breach the contract.
¶ 35 C. Posttrial
¶ 36 On November 25, 2019, Crown filed a motion for a new trial because: (1) the trial court
erred in admitting testimony from Tadros that Crown made a profit from selling the subject
property; (2) the timing of the ruling was prejudicial to Crown since it was done mid-trial and that
the sale of the property was irrelevant; (3) the trial court erred when it allowed Coffey Associates
to repeatedly argue, in closing, over Crown’s objections, that Crown did not disclose having made
a profit until the last day of trial; and (4) the verdict was against the manifest weight of the evidence
when the Coffey and Dewitt testified to breaching the contract.
¶ 37 On January 10, 2020, Coffey Associates responded arguing that Tadros “opened the door”
to the evidence of profits when he continuously testified that he lost money on the subject property.
Coffey Associates maintained that the verdict was not against the manifest weight of the evidence
because witnesses Fenton, Coffey, and Dewitt, all testified that Coffey Associates performed its
services consistently with the professional skill and care required under the contract.
¶ 38 On July 6, 2020, the trial court entered an order denying Crown’s motion for a new trial.
On July 30, 2020, Crown filed this timely appeal.
¶ 39 II. ANALYSIS
¶ 40 On appeal, Crown contends that: (1) the trial court erred when it allowed profits to be
introduced into evidence; (2) the trial court erred when it allowed Coffey Associates to
continuously make improper comments in regard to the profits; and (3) the trial court erred when
it denied Crown’s motion for a new trial because the evidence at trial demonstrated that Coffey
Associates breached the contract.
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¶ 41 A. Profits
¶ 42 Crown argues that the trial court should have sustained its previous pretrial ruling where it
found that it was Coffey Associates’ burden to refute or reduce Crown’s reliance damages by
showing how they “added value” or contributed to the sales prices of the subject property citing
MC Baldwin Financial Co. v. DiMaggio, Rosario, Veraja, LLC., 364 Ill. App. 3d 6, 14 (2006), as
support. Crown asserts that the evidence of profits would not have been relevant unless Coffey
Associates helped contribute to it. Crown contends that after the testimony of Tadros, the court
allowed Coffey Associates to mitigate its breach by allowing evidence of profits without requiring
them to first provide proof of how its services contributed to the increased value of the subject
property. Crown maintains that the evidence of the profits was so prejudicial, that it rendered a
jury verdict in favor of Coffey Associates despite the overwhelming evidence to the contrary that
was presented at trial.
¶ 43 Both parties allege an abuse of discretion standard should be utilized, however, Crown
asserts that damages are relevant to the evidentiary ruling, while Coffey Associates asserts that the
matter is solely an evidentiary issue Coffey Associates further asserts that the issue that Crown
raises about profits is not relevant because the jury found Coffey Associates not liable and errors
concerning the extent of damages are generally not reversible, citing Castillo v. Stevens, 2019 IL
App (1st) 172958, ¶ 46, as support.
¶ 44 We review the admission of evidence using an abuse of discretion standard. Clayton, 346
Ill. App. 3d at 377. An abuse of discretion occurs when the trial court adopts a view that no
reasonable person would make. Id. However, before we address the evidentiary ruling, we will
address Crown’s contentions regarding damages because the existence of damages is relevant to
the evidence entered at trial.
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¶ 45 In order to show a breach of contract, a plaintiff must show that: (a) a contract exists
between plaintiff and defendant, (b) plaintiff performed its obligations under the contract, (c)
defendant did not perform its obligations under the contract, and (d) damages resulted from the
breach. Walker v. Ridgeview Const. Co., Inc., 316 Ill. App. 3d 592, 595-96 (2000).
¶ 46 In a breach of contract action, the basic theory of damages requires that in order for a
plaintiff to recover they must establish an actual loss or measurable damages resulting from the
breach. In re Illinois Bell Telephone Link-Up II, 2013 IL App (1st) 113349, ¶ 19. “The proper
measure of damages for a breach of contract is the amount of money necessary to place the plaintiff
in a position as if the contract had been performed.” Id. Plaintiff should not be placed in a better
position and obtain a windfall recovery. Id. Damages which “naturally and generally result from a
breach are recoverable.” Id. If damages are not the proximate cause of the breach, they are not
allowed. Id. Damages are an essential element of a breach of contract action and a plaintiff’s failure
to prove damages entitles the defendant to judgment as a matter of law. Id.
¶ 47 Even if this court assumed that Crown presented all of the elements needed to demonstrate
a breach of contract outside of damages; it still failed to prove damages. Damages in general
require that the breach be the proximate cause of it in order to be recoverable. In re Illinois Bell,
2013 IL App (1st) 113349, ¶ 19. Although Crown presented evidence of contracts it entered into,
the sale of the property appeared to be the proximate cause of why the parties did not continue to
proceed with those contracts, not Coffey Associates’ failure to notify Crown of the easement
requirement. Accordingly, Crown failed to demonstrate that they suffered any loss from Coffey
Associates’ alleged failure to comply with the AIA contract. Id. Crown could have proceeded with
the project, which was evidenced when it eventually obtained the easement. Instead, the evidence
demonstrated that Crown chose to terminate its AIA contract with Coffey Associates and others
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when it sold the property. Thus, Crown may not receive a windfall by selling the subject property,
terminating its contracts, and getting refunded from Coffey Associates. Id.
¶ 48 We will now address the issue of the trial court’s evidentiary ruling that allowed Crown’s
profits into evidence. Evidence that is irrelevant is not admissible. McHale v. W. D. Trucking, Inc.,
2015 IL App (1st) 132625, ¶ 89. “[E]vidence is relevant if it has any tendency to make the existence
of a fact that is of consequence to the determination of the action either more or less probable
[than] it would be without the evidence.” Id.
¶ 49 Indeed, Crown is correct, this court has consistently held that a setoff must be pleaded as a
counterclaim. Nadhir v. Salomon, 2011 IL App (1st) 110851, ¶ 37. At trial, Coffey Associates did
not present a counterclaim, therefore, the profits were not allowed to be entered on that basis.
However, we do not find the trial court’s ultimate decision to admit the sale price to be an abuse
of discretion. The admission of the evidence of profits went to the facts testified to by Tadros, who
continuously expressed that he and the subject building were at a loss because of Coffey
Associates’ alleged breach. The trial court decided that Crown was giving the jury the impression
that “he lost his shirt,” and therefore, instead of admitting this evidence based on the affirmative
defense of a setoff, the trial court admitted it in an effort to balance the jury’s impression of
Crown’s financial standing after the sale. In continuing to strike a balance that was not prejudicial
to Crown, the trial court decided to exclude the admission of the exact amount of the profits, and
instead only allow the sale price. Given this balance that the trial court sought and maintained, we
do not find the introduction of profits into evidence was an abuse of discretion. Clayton, 346 Ill.
App. 3d at 377. Accordingly, we do not find that the trial court reversing its decision to bar the
evidence of profits pursuant to the motion in limine to be an abuse of discretion given the facts, it
was within its sound discretion to do so. McHale, 2015 IL App (1st) 132625, ¶ 89.
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¶ 50 B. Closing arguments
¶ 51 Crown contends that defense counsel made an improper closing argument regarding profits
by not basing the argument on actual evidence and implying that Tadros was attempting to hide
evidence, which is impermissible citing Cancio v. White, 297 Ill. App 3d 422, 435 (1998). Crown
asserts that Coffey Associates knew why Tadros did not speak about the profits until the end of
trial; because of the trial court’s reversal. Of its initial decision. In addition, Crown contends that
defense counsel painted Tadros as being voracious for money and one who was seeking a windfall.
Crown asserts that this depiction was improper because it referred to Tadros’ financial position.
Next, Crown contends that the statements from defense counsel regarding Tadros wanting a
windfall and not being moral in pursing this lawsuit were inflammatory and incited prejudice.
Lastly, Crown asserts that a new trial is warranted since defense counsel made accusations of
dishonesty and bad character throughout the closing argument.
¶ 52 Coffey Associates contend that Crown has forfeited raising certain objections because it
failed to object to all but two of the statements made by defense counsel in closing. Coffey
Associates contend that defense counsel made reasonable comments based on the evidence, as it
related to the statements regarding the profit realized from the sale of the building. In its reply
brief, Crown contends that it was not required to make any further objections because the trial
court had made its position abundantly clear on the matter citing, Sharbono v. Hilborn, 2014 IL
App 3d 120597, ¶ 29, as support.
¶ 53 During closing arguments, attorneys are afforded wide latitude to comment and argue on
the evidence and any inference that may be fairly drawn from that evidence. Clarke v. Medley
Moving and Storage, Inc., 381 Ill. App. 3d 82, 95 (2008). Improper comments by an attorney will
constitute reversible error only where the comments are so prejudicial as to deprive the other party
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of the right to a fair trial. Id. “Issues concerning the prejudicial effect of comments made during
closing argument are within the discretion of the trial court, and determinations regarding such
issues will not be reversed absent a clear abuse of discretion.” Id. We may not substitute our
judgment for that of the trial court, while determining whether an abuse of discretion occurred. Id.
¶ 54 We disagree with Crown; it was not abundantly clear that the trial court would have
overruled the statements that defense counsel made because they are not the same. The first two
statements that were objected to were in regard to the admission of the profit and timing, whereas
the remaining statements go into detail about Tadros’ demeanor, defense counsel’s opinion on
right and wrong, and the relationship dynamic between Tadros and Coffey Associates. Throughout
the proceedings, the trial court continuously demonstrated that it sought to strike a balance of
fairness between the parties. Although its stance was clear in regard to the admission of profits,
the trial court was adamant that nothing more outside of its ruling should be introduced, which is
why the actual sales price was never introduce. Thus, the trial courts position on the remaining
statements were not clear. Id.
¶ 55 “Both an objection at trial and a written post-trial motion raising the issue are necessary to
preserve an error for appellate review.” Orzel v. Szewczyk, 391 Ill. App. 3d 283, 287 (2009).
Further, this court has held that the failure to object to allegedly improper comment will result in
forfeiture of the objection and forfeiture of the issue on appeal. Babikian v. Mruz, 2011 IL App
(1st) 102579, ¶ 13. Accordingly, Crown’s failure to object to the statements and include them in a
posttrial motion results in forfeiture of those issues and will not be discussed here. We will,
however, address the statements that Crown has preserved for appeal regarding evidence of the
profits.
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¶ 56 This court has held that a statement made in closing argument is improper if it implies a
party is hiding evidence. Cancio, 297 Ill. App 3d at 435. See also Rutledge v. St. Anne’s Hospital,
230 Ill. App. 3d 786, 791 (1992) (a comment by defense counsel in a closing argument that implied
plaintiff did not want the jury to hear a witness was found misleading and improper when the
parties previously agreed by stipulation that the same witness was unavailable). The Cancio case
involved an improper statement in a closing argument relating to evidence that was never
introduced to that court, the implication being that it was not presented because the opposing party
had failed to produce it in order to hide it. Id. In this case, the statements that defense counsel
objected to did imply that there was an attempt to hide the evidence of the profits from the jury.
Given that the motion in limine and the subsequent ruling of the trial court to allow the evidence
of profits in were heard outside of the jury, this left the jury with the implication that this maneuver
was due to something sinister on Tadros’ account. Additionally, defense counsel gave the jury the
implication that Tadros attempted to hide evidence by waiting until the last day of trial to divulge
the profits, when actually it was the trial court’s late ruling, at Coffee Associates’ urging, regarding
the admission of the evidence that led to the late disclosure. We find that, given the facts as
supported by the record herein, defense counsel’s closing statements regarding the purported
withholding of evidence were improper.
¶ 57 While defense counsel’s closing statements were indeed improper, we do not find the
statements to be so significant as to deprive Crown of a fair trial. Lauman v. Vandalia Bus Lines
Inc., 288 Ill. App. 3d 1063, 1071 (1997). Given the evidence presented by both parties it cannot
be said that these comments changed the outcome of the trial. We find that the jury reasonably
relied on the evidence presented by Coffey Associated demonstrating that it had no prior
knowledge of the easement requirement. Further, Coffey Associates had reason to believe that
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Crown was handling matters regarding the easement just as it had regarding access to the gangway
for the other architects on the project. Finally, the jury may have reasoned that the evidence of
profits demonstrated that Crown was not damaged even if Coffey Associates did breach the AIA
contract. As such, the verdict does not demonstrate any undue influence or prejudice based on the
improper statements. Coffey Associates presented evidence that, if accepted by the jury, would
lead to a verdict in its favor. Further, the trial court admonished the jury that closing arguments
summarized evidence and if that was not supported by law or evidence, it should be disregarded.
In sum, Crown has not shown that it was substantially prejudiced or unduly affected to the extent
that a new trial would be warranted. Lauman, 288 Ill. App. 3d at 1071.
¶ 58 C. New Trial
¶ 59 Next, Crown contends that the trial court erred in denying it’s motion for a new trial. Crown
maintains that the evidence at trial demonstrated that Coffey Associates breached the following
sections of the AIA contract:
Ҥ2.2. The Architect shall perform its services consistent with the professional skill and
care ordinarily provided by architects practicing in the same or similar locality under the same
or similar circumstances. The Architect shall perform its services as expeditiously as is
consistent with such professional skill and care and the orderly progress of the Project.
§3.16. The Architect shall, at appropriate times, contact the governmental authorities required
to approve the Construction Documents and the entities providing utility services to the
Project. In designing the Project, the Architect shall respond to applicable design requirements
imposed by such governmental authorities and by such entities providing utility services.
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§3.4.2. The Architect shall incorporate into the Construction Documents the design
requirements of governmental authorities having jurisdiction over the Project.”
According to Crown, breach of the aforementioned sections was supported by the testimony of
Coffey Associates expert, thereby making the verdict against the manifest weight of evidence
citing Mizowek v. De Franco, 64 Ill. 2d 303 (1976), as support. Crown contends that Coffey
Associates knew about the noncompliance along the south side of the property but failed to advise
them and failed to arrange a meeting with the city in order to discuss compliance issues.
Specifically, Crown maintains that Coffey Associates designed the plans without providing the
required access to natural light, and accordingly those plans were rejected by the city as
nonconforming. Crown contends that Coffey Associates knew that Crown would need to obtain
an agreement with the adjacent property owner ensuring that they would not build in the gangway
but never told Crown; instead, it was the city who informed Crown.
¶ 60 Coffey Associates, however, contend that it was reasonable to anticipate that the city would
approve their plans, and the jury’s verdict of no breach was entirely supported by the evidence
presented at trial. Coffey Associates assert that the evidence at trial demonstrated that it met with
the city on several occasions and there was no indication that there was a violation related to the
south-facing windows. Coffey Associates contends that the assertion that it knew it knew it was
not in compliance and kept that information from Crown is misleading. Coffey Associates
maintains that Coffey testified that he and Tadros learned for the first time that the city would
require an easement for the south-facing windows simultaneously at the project meeting with Asif
on December 31, 2013. Further, Coffey Associates assert that Dewitt testified that sometimes the
city could interpret the building code in unexpected ways and rejects Crown’s contention that
Coffey and Dewitt both admitted to Coffey breaching the contract. According to Coffey and
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Dewitt’s testimonies, there is no specific formula to be applied, there is no requirement for the
easement in the code, and easements are not commonly put in architects plans.
¶ 61 A trial court’s decision of whether to grant a new trial is reviewed for abuse of discretion.
Hana v. Illinois State Medical Inter-Ins. Exchange Mutual Ins. Co., 2018 IL App (1st) 162166, ¶
15. The trial court is in a superior position to consider errors that occurred, the fairness of the trial
to all parties, and whether substantial justice was accomplished. Id. “A court of review must take
into consideration not only the verdict of the jury, but also the fact that the trial judge, who saw
and heard the witnesses and arguments of counsel denied the moving party’s post-trial motions.”
Cadral Corp. v. Solomon, Cordwell, Buenz & Associates, Inc., 147 Ill. App. 3d 466, 483 (1986).
¶ 62 We note that the trial court denied the motion for a new trial without comment, and it
appears from the record that there was no hearing on the matter due to Covid-19 restrictions. That
being said, this reviewing court may affirm the trial court’s decision for any reason appearing on
the record even if it was not expressly stated by the trial court. People v. Sims, 167 Ill. 2d 483, 500
(1995).
¶ 63 As discussed previously, in order to show a breach of contract, a plaintiff must show a
contract exists, plaintiff performed, defendant did not perform, and damages that resulted. Walker,
316 Ill. App. 3d at 595-96. Based on the evidence, we cannot say that the jury’s verdict is contrary
to the evidence presented. The trial court heard the evidence and arguments presented to the jury
and proceeded to deny Crown’s motion for a new trial.
¶ 64 At trial, Crown presented evidence of the AIA contract wherein the parties agreed that
Coffey Associates would perform its services with the same professional skill as those within the
locality, get in contact with the appropriate governmental authority and respond to the
requirements requested of it, and incorporate the requirements of the jurisdiction. Crown presented
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the testimony of Fenton, who concluded that Coffey Associates failed to perform with the same
skill as those within the locality. Additionally, on cross examination, Coffey Associates’ expert,
Dewitt, testified that he would not expect his client to know that an easement was required of it.
Nevertheless, as we previously discussed, Crown was unable to establish damages as a result
thereof.
¶ 65 Contrary to Crown’s contention that Coffey’s testimony supported a finding in its favor,
Coffey never made any admission of wrongdoing when he testified. Instead, Coffey testified that
the easement was to be obtained by the owner and it was a legal document that needed to be drafted
by an attorney. Further, Coffey testified that to his knowledge Tadros was arranging access to the
gangway for other architects and he maintained that he was never privy to those decisions, before
or after they were notified of the easement requirement. Also, contrary to Crown’s contention,
Coffey testified that Coffey Associates did not know that the easement would be a requirement
until the December 31, 2013, meeting that Tadros also attended. Further, Coffey Associates
elicited testimony from Fenton that he had limited experience of architecture in general and
acknowledged that the city employees can all interpret the building code differently. Although
Crown presented evidence to show a breach in the AIA contract, Coffey Associates presented
evidence at trial in rebuttal. Therefore, based on the evidence presented, it would not be
unreasonable for the jury to find in favor of Coffey Associates when no damages were shown and
when the evidence presented, if believed by the jury, would lead to a verdict in its favor. We find
no error in the trial court’s decision to deny the motion for a new trial. Hana, 2018 IL App (1st)
162166, ¶ 15.
¶ 66 III. CONCLUSION
¶ 67 Based on the foregoing discussion, we affirm the judgement of the trial court.
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¶ 68 Affirmed.
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