Kazemi v. Maron Electric Co.

• Court: Appellate Court of Illinois
• Decided: March 31, 2026
• Docket: 1-25-0908
• Status: Published

Opinion

2026 IL App (1st) 250908

SECOND DIVISION March 31, 2026

No. 1-25-0908

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 JUDICIAL DISTRICT

ALAN KAZEMI, ) ) Plaintiff-Appellee, ) ) v. ) ) Appeal from MARON ELECTRIC COMPANY and ERIC NIXON, ) the Circuit Court ) of Cook County Defendants-Appellants ) __________________________________________________ ) 20L11306 ) MARON ELECTRIC COMPANY, ) Honorable ) Scott D. McKenna, Counterplaintiff-Appellant, ) Judge Presiding ) v. ) ) ALAN KAZEMI, ) ) Counterdefendant-Appellee. )

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Van Tine and Justice D.B. Walker concurred in the judgment.

ORDER

¶ 1 Held: Judgment on breach of contract and breach of fiduciary duty claims which included punitive damages against closely-held company and majority owner/CEO affirmed where majority owner/CEO manipulated company valuation to entirely negate minority shareholder’s buyout. Manifest weight of evidence did not support company’s counterclaim that minority shareholder had breached his fiduciary duty by soliciting an employee to join him at a competing company. 1-25-0908

¶2 The majority owner and CEO of Maron Electric Company, Jerrold H. “Jerry” Nixon, was

terminally ill when he implemented a succession plan for his closely-held commercial

contracting business in which his son, Eric Nixon, and a long term, key employee, Alan Kazemi,

would be the majority and minority shareholders. A shareholders’ agreement provided that if

Kazemi continued working for at least five full years, the company would pay him some of its

net worth when he left. Ten years later, Maron was highly successful, Kazemi was entitled to

millions, and Kazemi resigned. However, at Eric’s direction, Maron’s CFO, Donald J. Schwartz,

secretly spent weeks “brainstorm[ing]” with the company’s accountants to invent “contingent

liabilities” that reduced Kazemi’s buyout to $0. Kazemi sued for breach of contract and breach of

fiduciary duty. Maron and Eric denied any wrongdoing, contending that Maron complied with its

obligation under the shareholders’ agreement to “direct” its accountants to perform a “binding

and conclusive” valuation. Maron also countersued, claiming that Kazemi solicited a Maron

employee to resign from the company with him. The claims were tried, Kazemi prevailed, and he

was awarded $6.3 million in compensatory damages pursuant to the buyout formula and $4.1

million in punitive damages, which consisted mostly of attorney fees. Maron and Eric present

more than a dozen reasons for us to vacate and enter judgment in their favor.

¶3 Kazemi testified that he immigrated from Iran in his teens, completed high school and then

earned a degree in electrical engineering. He was toiling as an entry-level electrical draftsman

during the construction of 900 North Michigan Avenue when his hard work was noticed by one of

Maron’s employees. Maron was a preeminent commercial electrical contractor in the Chicago area

and its CEO, Jerry, was “an icon in the industry.” Maron gave Kazemi a 40% pay raise and with

Jerry as his mentor, Kazemi moved up through the ranks at Maron. The company had focused

-2- 1-25-0908 almost entirely on new construction, but when Kazemi was promoted to project manager and had

to bring in clients, he pursued remodeling work or what the industry termed as interior work. His

efforts were very profitable for Maron and by 2002, he was an executive vice president.

¶4 In 2008, Jerry told Maron’s executives that he had incurable cancer and a succession plan

for when he and CFO Schwartz were no longer running the company. Jerry wanted his son, Eric,

and Kazemi to head Maron. He also wanted Kazemi to have a minority ownership interest in the

business (like Schwartz) and a financial incentive to stay long term. Jerry did not consult with his

son about offering these terms to Kazemi. In February 2009, when Kazemi was 47 years old, he,

Jerry, Schwartz, and attorney Robert Neiman, as trustee and on behalf of other trustees, signed the

“Menlo Agreement” which sold 25 shares of stock (10% of the company) to Kazemi for $150,000.

Jerry died six days later.

¶5 The Menlo Agreement included formulas for calculating the repurchase price of Kazemi’s

shares when he “cease[d] to be an employee of the Company, for any reason.” During the first five

years of the contract, the company’s only obligation was to buy back its shares for $150,000:

“In the event that Kazemi shall cease to be an employee of the Company, for any

reason, other than a sale of the Company, in the first five years of his becoming a

Shareholder hereunder, the Company shall purchase all (and not less than all) of the stock

then owned by Kazemi for the amount he has actually paid in cash, payable within one

hundred twenty (120) days after the termination date.”

¶6 During the sixth year, however, Kazemi was entitled to the $150,000 and 50% of the value

of his shares, and in each subsequent year, he was entitled to an additional 10% of the value, with

the compensation capping out at 100%. The shareholders’ agreement stated:

-3- 1-25-0908 “In the event that Kazemi shall cease to be an employee, any time after the first five

years, the Company shall purchase all (and not less than all) of the stock then owned by

Kazemi. The purchase price per share shall be fifty percent of the computation of the Value

Per Share set forth below (the ‘Net Worth’) plus ten percent (10%) of the Net Worth

multiplied by the number of full years that have passed since the 5th anniversary date;

provided that in no event shall the purchase price per share be more than one hundred

percent (100%) of the Net Worth. In the event of a termination of employment, the

Company shall direct its regularly employed accountants to perform the calculations

necessary to determine the Value Per Share. The Value Per Share determined pursuant to

this Agreement shall be binding and conclusive upon all parties hereto. Payment shall be

made to Kazemi in three equal annual installments.

Computation of the Value Per Share. The ‘Value Per Share’ shall mean the quotient of

(x) the Net Worth of the Company as of the termination date (‘Valuation Date’), divided

by (y) the number of issued and outstanding Shares of the Company as of the Valuation

Date. The term ‘Net Worth’ shall be an amount equal to the amount of the Company’s

assets, less the amount of its liabilities as disclosed by the Company’s books of account

regularly maintained in accordance with generally accepted accounting principles

consistently applied but adjusted as follows:

***

(2) No adjustment shall be made on account of any event occurring subsequent to the

Valuation Date ***;

(3) Reserves for contingent liabilities shall be treated as liabilities[.]”

-4- 1-25-0908 ¶7 Kazemi had purchased 10% of the company’s shares and his percentage increased

gradually to 11.27% as Schwartz retired his shares over approximately 10 or 11 years.

¶8 In 2018, which was the last full year before Kazemi resigned, Maron’s financial statements

showed annual revenues of over $84 million. The shareholders’ agreement had been in effect for

more than 10 years and Kazemi had grown unhappy at Maron under Eric’s leadership, so he

decided to find a new job during the summer of 2019. Between April and July 2019, Kazemi was

drafting employment agreements for himself and a Maron project manager, Jason Pore, to join a

newly formed company called Gurtz Interiors. Frank Gurtz’s existing company, Gurtz Electric,

was one of Maron’s long term competitors. Kazemi was also preparing Maron’s bid for a Goldman

Sachs project in which Pepper Construction would be the general contractor. After 33 years with

Maron, he gave notice to Eric on Friday, August 9th and proposed that they keep quiet about the

resignation while Maron was bidding on a project for Bank of America. On the following Monday,

however, Eric began questioning Maron employees one-on-one about whether they were also

leaving and learned that Pore would also be resigning. The Bank of America bid was completed

on Thursday, August 22nd, and Kazemi left the next day. The following Monday he was working

at the new remodeling company. He prepared Gurtz Interiors’ competing bid for the Goldman

Sachs project and it won the $2.6 million contract.

¶9 After Kazemi left, Schwartz repeatedly tried to get him to sign a shareholders’ agreement

that did not include any compensation for Maron’s net worth, would change the payment schedule

from three years to 10 years, and added noncompete and nonsolicitation language. Schwartz had

actually been trying to get Kazemi’s signature since January 2019, just before Kazemi’s 10th year

as a shareholder started.

-5- 1-25-0908 ¶ 10 Katie Benson testified that the contract that Schwartz was trying to get Kazemi to sign in

early 2019 had its genesis in the late summer or early fall of 2018. Benson was Eric’s assistant at

the time and he asked her to set up a call between himself, Schwartz and Mike Lee, who was a

Maron finance officer. Benson overheard the conversation while she continued working. She did

not actively listen to the whole conversation, but her ears perked up when she heard them

discussing Kazemi and how much Maron would owe him under the existing shareholders’

agreement. Benson did not recall the amount, but the size of Kazemi’s buyout infuriated Eric. She

heard Eric tell Schwartz: “There’s no f***ing way that we are going to pay him that amount of

money. You f***ed this up. You better f***ing fix it.”

¶ 11 When Kazemi would not sign a new agreement, Maron began trying to read their existing

contract as favorably to itself as it could. On October 2nd—more than a month after Kazemi left

Maron—his attorney sent a demand letter to Maron stating that it was in breach of contract and

owed Kazemi $6.4 million (Kazemi later sued for $6.2 million). Maron and the firm’s accountants

at FGMK then exchanged e-mails and phone calls about Kazemi’s buyout and the incorporation

of “contingent liabilities” totaling more than $3.9 million.

¶ 12 More specifically, on December 5th, Lee sent an e-mail to Eric, Schwartz, Maron’s

attorneys, and Mario J. Donato, who was the managing partner of FGMK, with the subject line

“Contingent Liabilities @ 8/23/19.” Lee attached a PDF entitled “Contingent Liabilities @ 001”

and said that his attachment was “For our discussion today at 11:30.” Schwartz sent an e-mail on

December 9th to Lee and Donato, attaching a PDF regarding “Kazemi Contingent Liabilities” and

said, “The total of the contingent liabilities is $3,947,000.00.” Schwartz noted, “It is possible you

will be asked to verify that these items are properly designated as such.” On December 9th, Donato

-6- 1-25-0908 e-mailed Schwartz, cc’d Lee and several FGMK personnel, and asked Schwartz for a copy of the

shareholders’ agreement “so they can read it and understand how the amounts are to be

determined.” Donato added, “I would recommend that we all either meet or have a conference call

to brainstorm.” Schwartz said in an e-mail to Eric, Lee, and Maron’s attorneys on December 11th,

that they had figured out how to reduce the value by “several million” and that FGMK was willing

to testify in court. Schwartz also said that he wanted to have a conference call on December 12th

and that FGMK would be joining the call. Donato e-mailed his partner Bill Polash, who specialized

in disputed resolutions. On December 28th, Eric sent an e-mail to Lee about a stock transaction

with a different employee and complained that it was the “[s]tupidest thing ** ever *** other than

[letting] Kazemi buy stock for a fraction of what it cost.” On January 23, 2020, Schwartz e-mailed

Polash and attached “an adjusted worksheet [that Schwartz] prepared offering a suggested starting

point for the valuation process.”

¶ 13 Coincidentally, on the same day that the “brainstorming” session occurred, Kazemi’s

attorney e-mailed Maron’s attorney to propose that the parties seek a valuation from Maron’s

historic accountants, and that, in the interest of transparency, they copy each other on all of their

communications with the accounting firm. Kazemi and his lawyer had no idea that Maron and

FGMK had already been discussing the valuation.

¶ 14 Schwartz testified that the only reason that he approached Kazemi with a new agreement

in 2019 was because, embarrassingly, Schwartz had forgotten that an agreement was in place. The

2009 Menlo Agreement was named for the company that owned Maron when Kazemi became a

shareholder. In 2014, the Menlo Agreement was incorporated into the “Maron Agreement” and

the Menlo organization ceased to exist. Then the CFO forgot about the 2014 shareholders’

-7- 1-25-0908 contract. This was Schwartz’s belief in 2018 when he and Eric were discussing Schwartz’s gradual

retirement and a succession plan. Eric was frustrated by the lack of a shareholders’ agreement, and

Eric’s assistant at the time, Benson, overheard some of what Eric said. At the time, Kazemi had

no plans to leave. Later, when Schwartz and Eric shared their proposed shareholders’ agreement

with Kazemi, they had no idea that he was considering leaving the company. Schwartz testified

that “brainstorming” with the accountants was not a “secretive method,” it was a discussion or

conversation in which “[e]verybody comes up with their ideas.” Under the shareholders’

agreement, he was permitted to “give [the accountants his] thoughts on how to *** interpret the

agreement” and he had “the right to voice [his] opinion.”

¶ 15 FGMK accountant William A. Polash signed a report in April 2020 indicating that although

Maron’s annual revenues were approximately $90 million, Kazemi’s part ownership was

worthless. Polash determined that (1) all of Maron’s $11.2 million net worth was negated by the

$15 million that the company would have to spend to complete its existing contracts and (2) none

of the clients would pay their bills. Polash testified that he was the chair of FGMK’s dispute

consulting and valuation practice, 70% of his current work was to perform valuations, and he had

been involved in approximately 50 lawsuits. He acknowledged that although FGMK had been

Maron’s accountant for approximately 30 years, he had never previously worked for Maron or

communicated with its CFO. He first looked at the account when his partner Mario Donato gave

him the project and said that Kazemi had already left the company. Polash was contractually

engaged by Maron and he did not consider Kazemi to be his client. He had a phone conversation

with Schwartz in which they went through specific parts of the shareholders’ agreement and

discussed having Maron’s attorney speak with Polash about it. There was no attempt to include

-8- 1-25-0908 Kazemi on the call. Polash also exchanged e-mails with Schwartz and Maron’s attorneys. No one

told Polash about the genesis of the agreement or that Maron’s former president, Jerry, had put it

together and wanted Kazemi to have the shares. Polash’s calculations might have been different if

Schwartz had said that the shareholders’ agreement was intended to incentivize Kazemi to remain

at Maron by offering an increasing payout over time. Generally, under a vesting schedule, the

longer the employee stays, the better the payout. However, under this agreement, if Kazemi left in

the first five years, he would receive his money back and in the subsequent years, he “might get

wiped out.” Polash called Schwartz to confirm that the intent of the agreement was to protect the

company. Polash was engaged to make a calculation, not to determine if the agreement made sense.

¶ 16 Gary J. Levin testified that he became a CPA in 1982 and had recently retired as a partner

at Deloitte. Prior to his retirement, he was leading Deloitte’s litigation and dispute practice, initially

for the United States and later for Deloitte’s global practice, and he had experience as an expert

and an arbitrator. He also had experience teaching and writing about accounting standards and the

rules regulated by the American Institute of Certified Public Accountants (AICPA). Levin had

considerable experience with “golden handcuffs” agreements, which he described as contracts that

compensate a key employee for “past services” and the value that the person created. Levin said

in his report that “FGMK’s $15.8 million downward adjustment to the value of the company’s net

worth in its calculation of value per share is inconsistent with both the Maron agreement and

AICPA valuation standards.” The agreement specified how to perform the calculation. Levin

specifically disagreed with FGMK’s determination that contingent liabilities were not subject to

GAAP and with its disregard for the agreement’s statement that “[n]o adjustment shall be made

on account of any event occurring subsequent to the Valuation Date.” Levin calculated Kazemi’s

-9- 1-25-0908 buyout to be $6,259,499. Levin started his calculations with the company’s undisputed net worth

of $11,251,000, multiplied that by Kazemi’s 11.27% of the company’s shares, and arrived at

$633,994. Levin followed the exact wording of the shareholders’ agreement. The agreement also

required the calculation of a second figure, so Levin took 10% of the $11,251,000 net worth,

multiplied by the number of years of service since 2014, which was five additional years, and

calculated $5,625,505. The sum of $633,994 and $5,625,505 was $6,259,499.

¶ 17 Eric testified that he was not involved in drafting the shareholders’ agreement and that his

father created it shortly before he died. Because Schwartz’s shares were fully retired, Eric and

Kazemi were currently Maron’s sole shareholders. Eric had nothing to do with identifying or

preparing the contingent liabilities for the purposes of Kazemi’s buyout. He did not engage in any

brainstorming. He was not involved in any phone calls. He did not try to have anyone at Maron

“influence FGMK to make adjustments or make any choices.” The shareholders’ agreement was

a form of “golden handcuffs” or a financial incentive to keep a key employee. Eric was “happy”

for Kazemi’s “sweetheart deal,” but he acknowledged sending an e-mail to the new CFO, Mike

Lee, on December 28, 2020 stating that Kazemi’s agreement was “the stupidest thing the company

has ever done.” Benson misunderstood the phone conversation that she overheard in 2018. Eric

wanted a succession plan for when he and Kazemi were ready to retire. This was the origin of the

new shareholders’ agreement that Schwartz tried to get Kazemi to sign. Eric had entirely forgotten

that the 2014 agreement was in place. Eric was “shocked” and “sad” when Kazemi resigned

because Eric thought that the two of them were going to retire from Maron at the same time. Also,

if Eric had known that Pore was unhappy enough to quit the company because of Luke Fenner’s

management, then Eric would have tried to improve the relationship and then considered letting

- 10 - 1-25-0908 Fenner go. Pore was more important to Maron because he had “the accounts and the ability to, you

know, make our way into the data center market.”

¶ 18 Sheila A. Enriquez, a partner at the CPA and accounting firm Crowe, LLP, reviewed Polash

and Levin’s opinions. She agreed with Polash’s method and disagreed with Levin’s. Levin misread

the shareholders’ agreement to mean that the contingent liability adjustments had to be in

accordance with GAAP. Levin’s interpretation was incorrect because the agreement provided that

the company’s books had to be maintained in accordance with GAAP, then adjustments were to

be made. Levin deemed FGMK’s adjustments to be “nonsensical,” but Enriquez considered them

to be “reasonable under the circumstances.” FGMK had been retained for a calculation

engagement, meaning that its assignment was determined between the client and the analyst. It

had not been retained for a valuation engagement in which it would have determined the fair

market value of the company. This shareholders’ agreement was “essentially a golden handcuff,”

incentivizing an executive to stay because “the longer he stays, the more that he would get.” While

working for another client recently, Enriquez had calculated a zero value because the shareholder

was leaving before a particular period. The agreement encouraged the key employee to stay

because it would cost the key employee to leave. Levin thought it was nonsensical that the

estimated cost to complete projects was one of Polash’s contingent liabilities, because that figure

would vary depending on how many projects were in progress and could potentially be zero.

Enriquez, however, thought that Polash’s interpretation of the agreement was reasonable because

if there were many projects underway, then the company was at greater risk when the key

employee left. Polash’s calculation was “neutral,” “independent,” and did not favor either party.

Levin made two mistakes. The first of which was to exclude the $15 million contingent liability

- 11 - 1-25-0908 that Polash calculated. The second of which was “nonsensical” and “grossly incorrect” because

Levin, in effect, multiplied Kazemi’s $150,000 stock purchase by 42 and determined that Kazemi

was entitled to $6.3 million, which was a much greater figure than Kazemi’s investment and was

more than half the company’s $11 million value. “It just [did] not make sense” that Kazemi could

take that much of Maron’s entire net worth.

¶ 19 Enriquez had a different methodology that did not require deducting any contingent

liabilities. She calculated Kazemi’s buyout by starting with the company’s net worth on August

23, 2019, which was $11,251,000; she divided the net worth by the number of outstanding shares,

which was 656.66, and she arrived at a value per share of $16,902. The shareholders’ agreement

used the term “value per share.” Following the formula specified in the agreement, she then

reduced the $16,902 value per share by 50%, which resulted in $8,451 per share. She also

calculated 10% of the net worth, multiplied that figure by five years and arrived at $4,226. Next,

she added $8,451 to $4,226, which netted $12,678 value per share. Then she multiplied $12,678

by the number of Kazemi’s shares, which was 11.27% of the company or 75 shares when he

resigned, and determined that Kazemi’s buyout was $950,740. Her figure was $5,308,760 less than

Levin had calculated.

¶ 20 Enriquez acknowledged that Maron’s financial statements did not include reserves for

uncompleted contracts. She also acknowledged that the shareholders’ agreement did not increase

Kazemi’s compensation in any way and that if he left during the first five years of the agreement,

his $150,000 purchase was simply refunded. Under her definition of net worth, however, the

additional 10% in year six and every year after was ineffective and Kazemi would never receive

more compensation than he would receive in the fifth year.

- 12 - 1-25-0908 ¶ 21 Jason Pore testified that he was a Maron project executive, and assisted with bidding and

procuring work, ran construction sites, and oversaw other project managers. Pore started working

in the industry in 2001 and joined Maron in 2012. Pore was promoted in 2017, but in early 2019,

he told Fenner and Kazemi that he was considering leaving Maron because of the work

environment that Fenner was creating. Fenner lacked “decorum and [sufficient] knowledge in the

construction industry,” had an “aggressive personality,” and was “very overbearing and Type A.”

Pore did not have a new employer in mind, but was “leaving [Maron] one way or the other.” In

April 2019, he and Kazemi began negotiating their employment with Gurtz. Pore resigned on

August 12th, right after the company’s regular Monday morning meeting, by staying in the

meeting room to give his resignation letter to Eric. Pore chose this timing because he was leaving

to take his kids on vacation before they went back to school. Their conversation was sad, not

contentious. Eric asked if there was anything that would change his mind and Pore said “no.” Pore

would have considered staying, however, if Fenner was let go. After their conversation, Eric began

calling the other project managers into the conference room, one by one. Eric fired Fenner two

days later. Pore was an at-will employee and did not have a noncompete agreement. Pore received

a job offer from Kazemi on August 29th, which he accepted on August 31st. Kazemi had been

saying for years that his buyout from Maron would be $1.3 to $1.4 million. Maron tried to get

Kazemi to sign a new contract in the spring of 2019 that would have added noncompete and

nonsolicitation terms. Maron’s offer made Kazemi angry. Pore subsequently returned to his old

job at Maron, with an increase in compensation.

¶ 22 Chris Farrington was the last trial witness. He testified that in 2019 he worked for Pepper

Construction managing interior projects for downtown and suburban commercial office space. His

- 13 - 1-25-0908 company won the bid to be the general contractor on a Goldman Sachs remodeling project for

three floors at 71 South Wacker. Farrington sought subcontractors, including bids from six to eight

electric subcontractors that Pepper Construction typically worked with. Gurtz Interiors was a new

company, but Farrington had known Kazemi for 20 years and also knew Pore from his many years

in the industry. Maron’s bid was not competitive. Only the three lowest bidders, Gurtz Interiors,

Titan Electric, and Terrance Electric, were invited to interview with Goldman Sachs. Goldman

Sachs preferred Titan Electric, but selected Gurtz Interiors because its bid was the lowest. Pore

was well liked and respected at Pepper Construction, but his role as the project manager was not a

determinative factor because Goldman Sachs was the decision maker and ultimately chose based

on price. Gurtz Interiors’ bid was $2.6 million, Titan Electric’s bid was about $200,000 higher,

and Maron’s bid was roughly $600,000 to $800,000 higher.

¶ 23 The jury found in favor of Kazemi on his breach of contract claim (Count I), and on January

17, 2025, the circuit court entered a judgment of $6,259,499 on the jury verdict. On February 5,

2025, the court resolved Kazemi’s claims for breach of fiduciary duty against Eric (Count III), an

accounting against both defendants (Count IV), and Maron’s counterclaim against Kazemi for

breach of fiduciary duty (Count I of the counterclaim). Regarding the claim against Eric, the court

ruled that Eric “did act in a willful and wanton manner by setting in motion a series of events ***

with the express intent of depriving [Kazemi] of an honest and fair repurchase price for his stock.”

The court determined that an award of “$1,500,000 in punitive damages against Eric Nixon to be

appropriate, fair and consistent with the evidence in this case. Additionally, the Court awards

[attorney] fees to the Plaintiff against Eric Nixon for this breach, and Plaintiff has leave to file a

Petition by 2/19/25 itemizing such fees if he so chooses.” As for the accounting claim, the court

- 14 - 1-25-0908 ruled that it was mooted by the jury’s award and that an accounting “could not render the Plaintiff

any more whole than he has already been made in this case.” With respect to Maron’s counterclaim

for breach of fiduciary duty, in which it claimed that “Kazemi, as an officer of Maron, unlawfully

poached Jason Pore and unlawfully commenced competition with Maron while still an officer,”

the court found that Maron did not sustain its burden of proof. On May 6, 2025, the court denied

the defendants’ motion for a new trial and remittitur, defendants’ motion to reconsider its judgment

on the non-jury counts, and Eric’s motion to modify the judgment (remittitur). That same day, the

court also granted and denied in part Kazemi’s petition for attorney fees and costs, and awarded

$2,621,299.42 in attorney fees against Eric. This appeal followed.

¶ 24 Maron first argues that the circuit court erred in denying Maron’s motion to dismiss or

motion for summary judgment on Kazemi’s amended Count I, breach of contract, because Kazemi

could not prove that the shareholders’ agreement was breached.

¶ 25 As a general rule, when the circuit court denies a defendant’s motion to dismiss a complaint

and the defendant then files an answer to the complaint, the defendant has waived any defect in

the pleading. Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994). Furthermore, when a defendant

allows an action to proceed to verdict, the verdict cures “not only all formal and purely technical

defects and clerical errors in a complaint,” but it also cures “any defect in failing to allege or in

alleging defectively or imperfectly any substantial facts which are essential to a right of action.”

Id. at 60-61 (cleaned up). This is known as the doctrine of aider by verdict. Id. at 60. Another

general rule is the merger doctrine, which provides that the denial of summary judgment is not

reviewable after a jury trial because the order merges with the judgment. Young v. Alden Gardens

of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 42. The merger doctrine exists because a

- 15 - 1-25-0908 “subsequent verdict is necessarily based on a more complete presentation of the evidence than was

the motion for summary judgment.” Davis v. International Harvester Co., 167 Ill. App. 3d 814,

819 (1988). All of these principles are applicable here.

¶ 26 The circuit court denied Maron’s motion to dismiss, then Maron filed an amended answer

to Kazemi’s amended complaint. By answering, Maron waived its ability to complain about the

alleged insufficiency of the amended complaint. Adcock, 164 Ill 2d at 62.

¶ 27 Next, the entry of judgment after the jury trial triggered the doctrine of aider by verdict that

precludes Maron’s challenge to any factual or technical defects in the amended complaint. Id. at

61.

¶ 28 And finally, as the merger doctrine recognizes, it makes little sense to now quibble over

whether Kazemi had sufficient evidence to create a genuine issue of material fact in opposition to

the motion for summary judgment when he has since proven his case by a preponderance of the

evidence. Arguing that Kazemi was not going to be able to prove breach of contract, when he has

proven breach of contract, is pointless. An exception to the merger doctrine is made when the issue

raised in the summary judgment motion presents a question of law that would not be decided by

the jury. Young, 2015 IL App (1st) 131887, ¶ 42; Moy v. Ng, 371 Ill. App. 3d 957, 959 (2007). In

that circumstance, the denial of summary judgment does not merge with the judgment and may be

reviewed de novo. Id. Maron tries to bring the issue within this exception, by incorrectly stating

that Kazemi’s breach claim was grounded on (1) an accountant’s error, for which Maron cannot

be liable and (2) fraud, which is subject to heightened standards of pleading and proof that Kazemi

did not attempt to meet. Kazemi, however, did not sue over FGMK’s error or fraud. He claimed

that Maron had an express contractual obligation to “direct its regularly employed accountants to

- 16 - 1-25-0908 perform the calculations necessary to determine the Value Per Share;” that the accountants’

assignment was supposed to be performed “independent[ly];” and that rather than permitting

FGMK to form its own conclusions, Maron interfered in the process. Kazemi claimed that this

conduct was in breach of the shareholders’ agreement and in breach of the duty of good faith and

fair dealing that was inherent in Maron’s task. Diamond v. United Food & Commercial Workers

Union Local 881, 329 Ill. App. 3d 519, 526 (2002) (a duty of good faith and fair dealing is implicit

in every contract as a matter of law); Schwinder v. Austin Bank of Chicago, 348 Ill. App. 3d 461,

473-74 (the implied promise of good faith and fair dealing between the parties emphasizes

faithfulness to an agreed common purpose and the justified expectations of the other party).

Maron’s mischaracterization of the factual basis for the suit does not persuade us to review whether

it was entitled to summary judgment. The denial of Maron’s motion for summary judgment has

merged into the judgment that was entered after the jury trial and it is not reviewable. Young, 2015

IL App (1st) 131887, ¶ 42; Davis, 167 Ill. App. 3d at 819 (1988); Moy, 371 Ill. App. 3d at 959.

¶ 29 Maron contends it was denied a fair trial because the circuit court committed numerous

errors during the proceedings.

¶ 30 The first claimed trial error was using Kazemi’s tendered jury instructions Numbers 8 and

9 when they did not accurately convey the law. These instructions concerned the duty of good faith

and fair dealing in the performance of a contract. Number 8 instructed the jury that there is an

“obligation which is implied in the law that both parties will perform their respective duties ***

in good faith” and “will refrain from doing anything which will have the effect of *** destroying

the right of the other party to receive the fruits or benefits of the contract.” Number 9 stated that

“[a] breach of the covenant of good faith and fair dealing is a breach of the contract.”

- 17 - 1-25-0908 ¶ 31 Maron contends that the instructions or verdict forms should have required the jury to “find

that Maron had contractual discretion or that such discretion was exercised inappropriately or

capriciously.” Maron contends that when the jury was not asked to make a finding about Maron’s

discretion, the jury was being told there had been a per se breach of contract. “[E]very party has

the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the

jury with substantial accuracy so that it may not be misled to the prejudice of the party.” Sims v.

Chicago Transit Authority, 7 Ill. App. 2d 21, 29-30 (1955). Maron is posing a question of law that

is addressed de novo. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13. “A reviewing court

ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the

jury and resulted in prejudice to the appellant.” Schultz v. Northeast Regional Commuter R.R.

Corp., 201 Ill. 2d 260, 274 (2002).

¶ 32 Maron cites a portion of the jury instruction conference in which it purportedly objected to

Numbers 8 and 9, but that passage does not indicate that Maron raised its specific current objection,

tendered alternative instructions to correct the alleged error and tendered an alternative verdict

form. Maron tries to sidestep its inaction by arguing that “there was no possible cure for the

improper instructions since the contract did not vest Maron with any discretion.” Maron, however,

could have tendered an instruction and verdict forms which indicated that discretion was

necessary. Accordingly, we find that Maron has forfeited its new argument about instructions

Numbers 8 and 9 and the contents of the verdict forms. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,

2020) (the brief “shall contain the contentions of the appellant and the reasons therefor, with

citation of the authorities and the pages of the record relied on” or the argument is forfeited); K&K

Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st) 133688, ¶ 25 (argument that has not been

- 18 - 1-25-0908 raised in the circuit court is forfeited and may not be raised for the first time on appeal); Compton

v. Ubilluz, 353 Ill. App. 3d 863, 869 (litigant forfeits appellate argument about given instructions

or verdict forms when litigant has not made specific objection during jury instruction conference;

and even when litigant properly objects to an instruction or verdict form, the litigant must also

submit a remedial instruction then or verdict form to the circuit court); Deal v. Byford, 127 Ill. 2d

192, 203 (1989) (same).

¶ 33 Maron next contends it was error to determine that the contract was ambiguous, which

permitted the use of parol evidence. Kazemi argued that the terms “Net Worth” and “contingent

liabilities” were ambiguous. Maron countered that their meaning was clear, but that “Net Worth”

had two different meanings within the agreement. Maron contends that during oral argument on

Maron and Eric’s motion in limine to bar parol evidence, the circuit court not only erroneously

deemed the terms to be ambiguous, but also erred by finding ambiguity in the additional term

“Reserves” in the phrase “Reserves for contingent liabilities” and ambiguity as to “whether the

adjustment for reserves [for] contingent liabilities was to be performed in conformance with

GAAP.” Whether contract language is ambiguous and requires extrinsic evidence for

interpretation is a question of law that is reviewed de novo. Installco, Inc. v. Whiting Corp., 336

Ill. App. 3d 776, 783 (2002). The circuit court should examine the instrument as a whole before

considering any extrinsic evidence. Id. A contract is not ambiguous simply because the parties

disagree about its meaning. Id. It is ambiguous when its terms can reasonably be interpreted in

more than one way. Id.

¶ 34 Maron’s own brief illustrates the ambiguity as to “Net Worth.” Maron contends that the

term was used twice in the same paragraph to mean “two different things.” Maron devotes a full

- 19 - 1-25-0908 page of its brief to explaining the two different meanings and then concludes “there is no ambiguity

here because the separate meanings [are] plain.” According to Maron, the first instance of “Net

Worth” describes Kazemi’s vesting schedule whereby after five years of tenure he would be

entitled to only 50% of the Value Per Share, but then he would start to accumulate an additional

10% of 50% of the Value Per Share (i.e., 5%), so that by year 16, he would finally be fully vested

and entitled to 100% of the Value Per Share. Then the second instance of “Net Worth” appears in

the sentence that defines the term as “an amount equal to the amount of the Company’s assets, less

the amount of its liabilities as disclosed by the Company’s books of account regularly maintained

in accordance with [GAAP] consistently applied but adjusted” for “Reserves for contingent

liabilities.” As the circuit court observed, the terms “Net Worth” and “contingent liabilities” do

not have definitive and universal meanings apparent on their face” and “Just the fact that we’re

spending this amount of time talking about [there being ambiguities] is indicative [that there are

ambiguities].” When the court subsequently ruled on Maron’s motion for a new trial, the court

commented that the ambiguity in “Net Worth” and “contingent liabilities” had been confirmed by

the “differing interpretations of those terms provided by the respective accounting experts.” The

fact that one of the most crucial material terms in the agreement is subject to two entirely different

meanings constitutes an ambiguity. When contract language is ambiguous, its meaning becomes a

question of fact and extrinsic evidence is admissible to determine what the parties intended.

Installco, 336 Ill. App. 3d at 783. The parties’ accounting experts calculated the value of Kazemi’s

shares based on the competing definitions and testified about their methodology. Kazemi used

cross-examination to demonstrate mathematically that Maron’s definition of “Net Worth” could

not be correct and the jury agreed with Kazemi’s definition. The record does not substantiate

- 20 - 1-25-0908 Maron’s contention that “Net Worth” was unambiguous and did not warrant the admission of parol

evidence so that the jury could resolve its meaning.

¶ 35 We also reject Maron’s concern that the court remarked that ambiguity pervaded the

contract (“There are ambiguities all over the place.”), including the meaning of “Reserves for

contingent liabilities” and “whether the adjustment for reserves to contingent liabilities was to be

performed in accordance with GAAP.” Maron is arguing a red herring. Kazemi did not argue that

“Reserves for contingent liabilities” was ambiguous. Furthermore, he did not argue that the

contingent liabilities were supposed to be calculated according to GAAP. Rather, Kazemi’s

argument was that regardless of whether GAAP was used, Maron breached the shareholders’

agreement by reducing the value of his shares to nothing. For instance, he presented evidence that

it was absurd to apply every conceivable liability, such as the assumption that Maron would incur

all the expenses on every pending client contract and would complete all of the contracted work,

despite never receiving any client payments. The issue was not whether these contingent liabilities

conformed with GAAP. The issue was whether encouraging the accountants to adopt an absurd

view of “contingent liabilities”—liabilities for which there were no “reserves” on Maron’s

books—was more than “direct[ing]” the accountants to calculate Kazemi’s buyout.

¶ 36 Another claimed trial error is that the circuit court refused to submit jury instructions for

the affirmative defenses of “waiver,” “estoppel” and “express terms defeat contract” which would

have overcome Kazemi’s breach of contract claim. Maron cites six pages of jury instructions in

the record on appeal, but the instructions are not marked as having been agreed to, objected to,

allowed, or disallowed. Nevertheless, the trial transcript indicates that Maron argued for these

instructions, Kazemi countered that Maron was mislabeling its defense as affirmative defenses,

- 21 - 1-25-0908 and the circuit court rejected the concepts as not relevant to the evidence before the jury. Whether

to provide a particular jury instruction is within the circuit court’s sound discretion and its decision

will be reversed only for an abuse of discretion. York v. Rush-Presbyterian-St. Luke’s Medical

Center, 222 Ill. 2d 147, 203 (2006). There is no abuse of discretion when “ ‘taken as a whole, the

instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles.’ ”

Id. (quoting Schultz, 201 Ill. 2d at 273-74).

¶ 37 We agree with Kazemi that Maron has been using incorrect terminology and that its

defenses of “waiver,” “estoppel” and “express terms” were not affirmative defenses. “ ‘An

affirmative defense is one that admits the allegations in the complaint, but avoids liability, in whole

or in part, by new allegations of excuse, justification or other negating matters.’ ” Reed v. Columbia

St. Mary’s Hospital, 915 F.3d 473, 477 n.1 (7th Cir. 2019) (quoting Divine v. Volunteers of

America of Illinois, 319 F. Supp. 3d 994, 1003 (N.D. Ill. 2018)). In other words, an affirmative

defense admits the factual allegations of the complaint but adds some other reason why the

defendant is not liable. Vroegh v. J&M Forklift, 165 Ill. 2d 523, 530 (1995) (an affirmative defense

“assumes that the defendant would otherwise be liable, if the facts alleged are true, but asserts new

matter by which the plaintiff’s apparent right to recovery is defeated”); Instituto Nacional De

Comercializacion (Indeca) v. Continental Illinois National Bank & Trust Co., 575 F. Supp. 985,

991 (N.D. Ill. 1983) (quoting 2A Moore’s Federal Practice ¶ 8.27 [4], at 8-260) (“ ‘a true

affirmative defense raises matters outside the scope of plaintiff’s prima facie case and such matter

is not raised by a negative defense’ ”). In contrast, a negative defense denies a plaintiff’s allegations

and “is the equivalent of a defendant saying, ‘I did not do it.’ ” Federal Trade Comm’n v. Think

All Publishing, L.L.C., 564 F. Supp. 2d 663, 665-66 (E.D. Tex. 2008). The “mere denial of an

- 22 - 1-25-0908 element of a cause of action, without asserting any new matter, does not constitute an affirmative

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

¶ 38 Waiver is either an express or implied voluntary and intentional relinquishment of a

known and existing right. Wells v. Minor, 219 Ill. App. 3d 32, 45 (1991). Maron’s proposed

“waiver” instruction was: “the plain terms of the [shareholders’ agreement] provided that the Value

Per Share is to be determined by [Maron’s] regularly employed accountants, which calculation

shall be binding on the parties” and Kazemi “demanded that [Maron] have its accountants perform

the calculation pursuant to the [shareholders’ agreement].” Maron did not identify any right that

Kazemi relinquished when he demanded that Maron ask FGMK to perform the accounting task.

Maron did not introduce any new matter. It was not stating an affirmative defense of waiver.

¶ 39 “Estoppel arises when a party, by his word or conduct, intentionally or through culpable

negligence, induces reasonable reliance by another on his representations and thus leads the other,

as a result of that reliance, to change his position, to his injury.” Byron Community Unit School

No. 226 v. Dunham-Bush, Inc., 215 Ill. App. 3d 343, 348 (1991). Maron’s proposed “estoppel”

instruction was that Maron “relied on [Kazemi’s] demand to have FGMK perform the calculation.”

Maron did not specify any way in which Maron changed its position and suffered an injury. Maron

failed to state an affirmative defense of estoppel.

¶ 40 Maron’s proposed “express terms defeat contract” instruction was: “The [shareholders’

agreement] requires that [Maron] use its regularly employed accountants to calculate the Value

Per Share and that such calculation shall be binding and conclusive on the parties. [Maron]

maintains that [its] adherence to the terms of the [shareholders’ agreement] cannot be a breach of

the contract.” In other words, defendant Maron was professing, “I did not do it.” This was the

- 23 - 1-25-0908 epitome of a negative defense rather than an affirmative defense. Federal Trade Comm’n, 564 F.

Supp. 2d at 665-66 (“a negative defense is the equivalent of a defendant saying, ‘I did not do it.’

”)

¶ 41 Maron essentially argued to the jury that it complied with Kazemi’s demand pursuant to

the shareholders’ agreement to have FGMK perform the buyout calculation, was contractually

permitted to communicate directly with FGMK, and accepted FGMK’s results as “binding and

conclusive” pursuant to the agreement. This was an argument that Maron performed the contract

as required—that Maron did not breach—rather than an admission that it did breach but had an

excuse or justification for why it failed to perform its duties. Maron’s defense did not include an

affirmative defense. It was denying an essential element of Kazemi’s claim, the breach element,

and the jury rejected the defense. See Rohr Burg Motors, 2014 IL App (1st) 131664, ¶ 64 (“the

statement that Kulbarsh returned the vehicle after receiving payment simply denies Rohr Burg’s

allegation that Kulbarsh remained in possession of the vehicle after receiving the funds due to him

under the General Release. *** [T]his does not constitute a separate affirmative defense[.]”).

¶ 42 Furthermore, Maron has not stated how it was prejudiced by the circuit court’s refusal to

give these three (irrelevant) instructions and to instead instruct the jury consistent with the parties’

evidence. See Marsh, 2020 IL App (4th) 190314, ¶ 36 (giving faulty instructions does not warrant

reversal unless the instructions clearly misled the jury and prejudiced the appellant). The circuit

court remarked in its judgment order on the bench/nonjury claims, “The greater substance of the

affirmative defenses were argued to the jury by the Defendant in seeking a finding of no liability

on Count I, and further in seeking a judgment against Plaintiff on tortious interference.” The record

shows that Maron also argued in closing that it did not breach the shareholders’ agreement. Despite

- 24 - 1-25-0908 Maron’s vigorous denials that it breached, the circuit court noted that “[t]he jury quite clearly and

quite roundly rejected these defenses and arguments, as does this Court.” Maron put on a negative

defense that did not include evidence that would warrant giving instructions for the so-called

affirmative defenses of waiver, estoppel and compliance with the contract’s express terms. A party

has a right to have the jury instructed on his theory of a case provided there is a sufficient

evidentiary basis for that instruction, but it is reversible error to instruct the jury on a principle that

is not supported by the evidence. Falkenthal v. Public Building Comm’n of Chicago, 111 Ill. App.

3d 703, 709 (1982). Accordingly, we do not find that the circuit court abused its discretion by

rejecting those particular instructions. Studt, 2011 IL 108182, ¶ 13.

¶ 43 The fourth alleged trial error occurred when the circuit court granted Kazemi’s motion for

a directed finding as to Maron’s affirmative defense that Kazemi committed a prior material breach

of the shareholders’ agreement when he solicited another Maron employee, Pore, to also leave

Maron. Maron contended that this first breach precluded Kazemi from suing for breach of the

shareholders’ agreement. The hearing transcript discloses that Kazemi opposed the affirmative

defense by arguing that he was an at-will employee without a written contract that prohibited his

speech. As the proceedings continued, Maron acknowledged that there was no written employment

contract. The circuit court responded, “[Y]ou’re asking me to say that there was an oral contract

and some implicit agreement not to look for another job or [if you did look for other employment]

not to *** see if others were maybe interested in the same job.” The court also said that there had

to be a “specific contractual provision preventing that happening,” otherwise anyone that was

“employed by somebody else then can be subject to a breach of contract [claim] for simply asking

someone if they want to come work for another company.” The circuit court rejected Maron’s prior

- 25 - 1-25-0908 breach theory as not being relevant to the breach of contract claim that was before the jury. Maron

contends that the ruling was in error and warrants a new trial.

¶ 44 This is another argument that is forfeited because it is insufficiently briefed. Maron does

not cite authority addressing the affirmative defense of prior breach of a contract. In fact, Maron

does not cite any authority at all. Supreme Court Rule 341(h)(7) is the briefing rule that prevents

an appellant from depriving the appellee of an opportunity to respond to the appellant’s argument

in writing. Ill. S. Ct. R. Rule 341(h)(7) (eff. Oct. 1, 2020) (appellant must cite authority or forfeit

the contention on appeal); Fortech, L.L.C. v. R.W. Dunteman Co., Inc., 366 Ill. App. 3d 804, 818

(2006) (a party’s failure to cite relevant authority violates Rule 341 and can cause the party to

forfeit consideration of the issue); Eberhardt v. Village of Tinley Park, 2024 IL App (1st) 230139,

¶ 25 (same). We will not create an argument on Maron’s behalf as to whether its affirmative

defense of prior breach should have been presented to the jury.

¶ 45 Maron next argues that the circuit court should have granted a new trial after erroneously

admitting testimony about Maron’s “profits,” “revenues” and potential sale “value” that was “not

relevant,” was “confus[ing],” and “seriously prejudiced” Maron by “impassion[ing] the jury to

believe that Maron has enormous assets.” Maron contends that testimony about its financial ability

to pay Kazemi was not relevant and should not have been allowed. Kazemi responds that Maron

forfeited this argument by failing to make contemporaneous objections in the circuit court.

¶ 46 According to Kazemi, Maron made only fleeting objections on the grounds of speculation

or form and did not ask for limiting instructions. See First National Bank of LaGrange v. Lowrey,

375 Ill. App. 3d 181, 211 (2007) (where defendant’s failure to make contemporaneous objection

resulted in forfeiture of the issue on appeal). We need not confirm whether Maron made an

- 26 - 1-25-0908 adequate objection in the trial court, because, as Kazemi also points out, “Notably, in its one-

paragraph argument, Maron makes no effort to explain how any of the testimony it cites was either

irrelevant, inflammatory, or prejudicial.” The briefing rule we cited above, Rule 341 (Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020)), obligates the appellant to present reasoned argument rather than bare

contentions and an appellant should not expect this court to fill in the gap. Furthermore, Maron

has failed to cite and discuss authority which substantiates its argument that this evidence was not

relevant and only served to “confuse and impassion the jury.” Maron cites—but does not bother

to discuss—precedent in which a surgeon was permitted to testify over objection that his father

was a minister, which was deemed an irrelevant and inadmissible fact in a medical malpractice

action involving a patient’s alleged lack of informed consent to surgery. Downey v. Dunnington,

384 Ill. App. 3d 350, 387 (2008). The case is, at best, tangentially relevant to Maron’s argument

and surely there was at least one case in which irrelevant financial information was admitted over

objection. It is not our role to research and argue for an appellant. Maron has forfeited its argument

by failing to adequately support it with argument and with relevant authority Gakuba v. Kurtz,

2015 IL App (2d) 140252, ¶ 19 (quoting Skidis v. Industrial Comm’n, 309 Ill. App. 3d 720, 724

(“ ‘[T]his court will not become the advocate for, as well as the judge of, points an appellant seeks

to raise.’ ”)).

¶ 47 Maron’s sixth and last trial error is that the circuit court struck a potential juror for having

general knowledge about accounting principles because the person had worked in finance, even

though he affirmed that he “would rely on what that evidence and testimony is and judge the

credibility of that, and not bring in [his] own experiences.”

¶ 48 “Impartiality is a state of mind.” People v. Cole, 54 Ill.2d 401, 413 (1973).

- 27 - 1-25-0908 “A person is not competent to sit as a juror if his state of mind is such that with him as

a juror a party will not receive a fair and impartial trial. [Citation.] The determination of

impartiality is not purely objective. The trial court may consider a juror’s statements as

evidence of his state of mind. [Citation.] The determination of whether a prospective juror

is capable of giving the parties a fair and impartial trial rests in the sound discretion of the

trial judge, whose determination should not be set aside unless it is against the manifest

weight of the evidence. [Citation.]” Magna Trust Co. v. Illinois Central R. Co., 313 Ill.

App. 3d 375, 390 (2000).

¶ 49 The trial transcript includes the following passage:

“MR. SWEENEY [(plaintiff’s attorney)]: I think he did a fine job of keeping himself

afloat for most of it. It was until we got to the reserve issue.

THE COURT: I agree. I think he’s way too close to the situation, certainly a

knowledgeable [person]. I would have to dismiss him. I think he would overrun the jury

here, so [he] is going to be dismissed.

MR. SPARKS [(defense attorney)]: Judge, just for the record, I object on that. I think

that he’s—what is described there is fair and that he would be able to do it without

prejudice.

THE COURT: Understood. Sometimes I have to look past that and check the tenor of

their answers. And I just think that’s too close to the situation at hand.”

¶ 50 Thus, the record indicates that the trial judge struck the potential juror for two reasons. The

first reason was that the circuit court “[had] to look past that [assurance of impartiality] and check

the tenor of [his] answers” and the second reason was that the person’s accounting expertise and

- 28 - 1-25-0908 experience in the ultimate issues in this case put him “too close to the situation at hand” and would

cause him to “overrun the jury.”

¶ 51 This potential juror’s voir dire examination shows that the circuit court did not abuse its

discretion by excusing this person for cause. The person was trained and worked in the field of

finance and accounting and had considerable experience with issues that directly related to the

issues in this case. As an actuary, he was familiar with GAAP, did “mostly liability valuation” and

“some financial valuation work,” and was also “valuat[ing] reserves.” The potential juror

expressed his impartiality about certain topics, but when asked about his impartiality on what

constituted a reserve, he answered that it would be “difficult” to remove what he knew about the

topic from his work experience. He was not rehabilitated on that point. A trial judge is in a superior

position to evaluate the meaning that a potential juror intends to convey when there are

inconsistencies in that person’s responses. People v. Taylor, 166 Ill. 2d 414, 422 (1995). The circuit

court considered this person’s testimony and demeanor and determined that he should be

dismissed. The record does not suggest that the decision was contrary to the manifest weight of

the evidence. Magna Trust, 313 Ill. App. 3d at 390.

¶ 52 Maron’s third main argument on appeal is that the jury’s verdict was against the manifest

weight of the evidence. The entire argument consists of three sentences:

“A verdict is against the manifest weight of the evidence where the opposite conclusion

is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based

upon any of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992). For all of the

reasons stated above, the jury’s verdict is against the manifest weight of the evidence. (See

§§ V, VI(A)(1)(a)-(b), supra.) These errors, alone or in combination, resulted in an

- 29 - 1-25-0908 unreasonable and arbitrary verdict, which is not supported by relevant evidence.”

¶ 53 Maron is citing Section V of its brief, which is its complete Statement of Facts, and

Sections VI(A)(1)(a)-(b) of its brief, which contain its challenges to the denial of the motion for

summary judgment (which was not reviewable on appeal) and motion to dismiss (which Maron

waived by filing an answer). Maron is disregarding its obligations as an advocate for its theories

of reversal. It is proposing that we review the amended complaint, the arguments for summary

judgment, and all the evidence that was presented to the jury during the week-long trial. However,

it is not our responsibility to search through the record on Maron’s behalf. And, as we stated above,

it is not our responsibility to craft arguments and gather the relevant authority. Maron has again

violated Rule 341, which governs the contents of appellate briefs and required Maron to present

its theories of reversal, supporting reasoned argument, citation to supporting authority, and citation

to the relevant pages of the record. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (the opening brief

“shall contain the contentions of the appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on” or the argument is forfeited); K&K Iron Works,

2014 IL App (1st) 133688, ¶ 25 (argument that has not been raised in the circuit court is forfeited

and may not be raised for the first time on appeal). Arguments that violate Rule 341 do not merit

consideration and can be rejected solely for that reason. Maun v. Department of Professional

Regulation, 299 Ill. App. 3d 388, 399 (1998). This argument is forfeited due to lack of citation to

the record, argument, and citation and discussion of pertinent authority.

¶ 54 In the alternative, Maron’s fourth main argument is that the circuit court erred by failing to

grant remittitur of the jury’s $6.3 million award on the breach of contract count, when the award

lacked a factual basis in the record. Maron contends that the only basis for that figure is the

- 30 - 1-25-0908 testimony of Kazemi’s accounting expert, Levin, who disregarded Kazemi and Schwartz’s

personal calculations in 2019 that Kazemi’s shares were worth $1.4 million. According to Maron,

if Schwartz and Kazemi estimated the same amount when Kazemi quit in 2019 and Kazemi sued

for the much higher figure in 2020 (after speaking with an accountant and a lawyer), then (1) there

was no meeting of the minds when the contract was executed in 2009, (2) there was no enforceable

contract, and (3) Kazemi’s remedy is the $150,000 that he paid for the shares. Alternatively, the

actual value was calculated to be $950,470 by Maron’s accounting expert, Enriquez, when she

corrected Polash’s errors and properly applied Maron’s “[r]eserves for contingent liabilities.”

¶ 55 We review the ruling on a motion for remittitur under the abuse of discretion standard.

Binkowski v. International Health Systems, Inc., 2024 IL App (1st) 221557, ¶ 95. We will find an

abuse of discretion only if the ruling was arbitrary or ignored recognized principles of law, or if

no reasonable person would take the circuit court’s position. Id. Despite Maron’s contention that

the jury’s award exceeded the proven damages, Levin’s testimony was competent and credible

evidence that supported the jury’s figure. Remittitur is appropriate only when a jury’s award

“exceeds the necessarily flexible limits of fair and reasonable compensation or is so large that it

shocks the judicial conscience” or is “so excessive that it indicates that the jury was moved by

passion or prejudice.” Binkowski, 2024 IL App (1st) 221557, ¶ 96. A reviewing court gives great

deference to a jury’s award of damages. Id. Where the jury’s verdict falls within the flexible range

of conclusions reasonably supported by the evidence, remittitur should not be granted. Id.

¶ 56 Levin gave factual reasons for his opinion that Kazemi’s direct damages were $6.3 million.

Levin is a professional accountant who utilized the standards of the American Institute of Certified

Public Accountants. He testified that the calculation methodology he used “comes actually from

- 31 - 1-25-0908 the agreement itself” and represented “the exact wording from the agreement.” He applied the

express formula that called for “fifty percent of the computation of the Value Per Share *** plus

ten percent (10%) of the Net Worth multiplied by [Kazemi’s years of service since 2014].” He also

analyzed the flaws in Maron’s “contingent liabilities” adjustment. Thus, there was a rational

connection between the evidence that was presented and the damages that were awarded.

¶ 57 Maron contends that Levin’s calculation was wrong because he did not correctly adjust for

reserves for contingent liabilities. However, a pillar of Kazemi’s case was that in order for a reserve

for a contingent liability to be included in the calculation, there actually had to be a reserve in the

company’s regularly maintained accounts. The evidence showed that Maron did not have reserves

for all of the figures that Maron’s accounting experts Polash and Enriquez were willing to deduct

when calculating Kazemi’s buyout. The jury was entitled to credit Levin’s analysis and adopt his

expert opinion over the other opinions that were given. As the finder of fact, the jury “listen[ed] to

the competing expert testimony, weigh[ed] the evidence presented, determine[d] the credibility of

all the witnesses, and determine[d] whose testimony to accept or reject.” Bosco v. Janowitz, 388

Ill. App. 3d 450, 462 (2009); Lisowski v. MacNeal Memorial Hospital Ass’n, 381 Ill. App. 3d 275,

282 (2008) (same); Binkowski, 2024 IL App (1st) 221557, ¶ 78 (the jury is qualified to resolve

conflicting expert testimony). The record does not substantiate that Maron was entitled to

remittitur.

¶ 58 After the jury trial, the remaining equitable claims that were directed at Eric and Kazemi

were addressed at a bench trial. Eric contends that the circuit court should have granted summary

judgment against Kazemi’s Count II, breach of fiduciary duty, because he neither owed nor

breached fiduciary duties to Kazemi. As discussed above, the denial of summary judgment is not

- 32 - 1-25-0908 reviewable after an evidentiary trial, as any error in the denial merges into the subsequent trial.

Young, 2015 IL App (1st) 131887, ¶ 42; Davis, 167 Ill. App. 3d at 819 (1988); Moy, 371 Ill. App.

3d at 959. Nevertheless, we may review Eric’s contentions in the context of the judgment that was

entered against him, which he contends was contrary to the manifest weight of the evidence. “A

judgment is against the manifest weight of the evidence only if the opposite conclusion is apparent

or when findings appear to be arbitrary, unreasonable, or not based on the evidence.” Moy, 371 Ill.

App. 3d at 959.

¶ 59 Eric has a multitude of arguments. He contends that he and Kazemi were parties to a

contract (Eric does not specify which contract) and that contracting parties do not stand in a

fiduciary relationship to each other. See Colmar, Ltd. v. Fremantlemedia North America, Inc., 344

Ill. App. 3d 977, 994 (2003) (“It is well-established that parties to a contract do not stand in a

fiduciary relationship to one another.”). Furthermore, “[n]ormal trust between friends or

businesses, plus a slightly dominant business position, do not operate to turn a formal, contractual

relationship into a confidential or fiduciary relationship.” Carey Electric Contracting, Inc. v. First

National Bank of Elgin, 74 Ill. App. 3d 233, 238 (1979). We reject this argument outright because

Kazemi’s claim against Eric was not based on a contractual relationship. Eric argues that while

“directors or officers of a corporation occupy a confidential or fiduciary relationship to the

corporation and its shareholders,” “the duties and obligations incident to this relationship are owed

to the corporation and not to the shareholders individually.” Poliquin v. Sapp, 72 Ill. App. 3d 477,

482 (1979). In a variation of the “express terms” argument that we introduced above, Eric next

contends that as Maron’s CEO, he did not owe a fiduciary duty to Kazemi to reject FGMK’s

valuation, as it was contractually “binding” on the parties; he could not have breached the

- 33 - 1-25-0908 shareholders’ agreement by following its terms; and he actually would have breached his fiduciary

duties to Maron if he had caused the company to reject the report. He states that Kazemi’s injury

was caused by his own rejection of the FGMK report, although Eric does not explain how rejecting

a $0 valuation harmed Kazemi. Eric also contends he could not have caused any damages to

Kazemi, because it was FGMK that calculated the share price and any mistake that FGMK made

cannot be attributed to Maron or Eric. See Herlehy v. Marie V. Bistersky Trust Dated May 5, 1989,

407 Ill. App. 3d 878, 897 (2010) (to state a cause of action for breach of a fiduciary duty, a plaintiff

must show that the breach is a proximate cause of the damage). Additionally, Eric contends that

Kazemi’s breach of contract claim prevented him from obtaining a “duplicate recovery” against

Nixon for breach of fiduciary duty based on the same set of facts. This is another argument that

we reject outright because Eric does not explain what the single set of facts was. His lack of

argument results in forfeiture. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in

the opening brief are considered forfeited and may not be raised in a reply brief, at oral arguments,

or in a petition for rehearing); Robinson v. City of Chicago, 2025 IL App (1st) 232174, ¶ 39.

¶ 60 The contention that Eric did not owe Kazemi fiduciary duties is incorrect for two reasons:

Eric was Maron’s controlling shareholder with 88.73% of the outstanding shares and Eric was the

president and CEO with ultimate control over the company. Individuals who control corporations

owe a fiduciary duty to the corporation and the shareholders. Anest v. Audino, 332 Ill. App. 3d

468, 476 (2002); ICD Publications, Inc. v. Gittlitz, 2014 IL App (1st) 133277, ¶ 66 (“Gittlitz, as

president and shareholder of ICD, undoubtedly owed fiduciary duties to his fellow shareholders,

Evans and Palcek.”).

¶ 61 Eric counters that it was error to find that Maron was a close corporation and therefore its

- 34 - 1-25-0908 majority shareholder owed fiduciary duties to its minority shareholder despite Maron never

formally electing close corporation status under Article 2A of the Business Corporation Act of

1983. 805 ILCS 5/2A (West 2018) (Act). According to the definitions section of the Act, “a ‘close

corporation’ means a corporation organized under or electing to be subject to Article 2A of this

Act.” 805 ILCS 5/1.8(s) (West 2018). Eric points out that there is no documentary evidence

indicating that Maron is a close corporation.

¶ 62 This argument is unpersuasive for multiple reasons. First, the definitions section to which

Eric refers was defining terms for purposes of the Act, but the Act was not at issue in this litigation

and its definitions were not controlling. See 805 ILCS 5/1.8 (West 2918) (“As used in this Act,

unless the context otherwise requires, the words and phrases defined in this Section shall have the

meanings set forth herein.”). Second, the term “close corporation” is commonly understood to

mean “a corporation whose stock is not freely traded and is held by only a few shareholders (often

within the same family).” Corporation, Black’s Law Dictionary (12th ed. 2024)). Illinois courts

have used the term in this way regardless of statutory election. See Galler v. Galler, 32 Ill. 2d 16,

17 (1964) (indicating that a close corporation is one in which the stock is not or only rarely bought

or sold and is held “in a few hands, or in a few families,” and that the organization before the court

which was owned by two siblings and their spouses was a close corporation); Hagshenas v.

Gaylord, 199 Ill. App. 3d 60, 62 (1990) (“Bruce, as a 50% shareholder in this closely held

corporation, owed a fiduciary duty similar to a partner to Imperial and its shareholders”). Third,

Eric is ignoring settled law and the trial evidence. Illinois courts have consistently held that

fiduciary duties arise in closely held corporations regardless of statutory election, because the

nature of the relationship is like a partnership. Levy v. Markal Sales Corp., 268 Ill. App. 3d 355,

- 35 - 1-25-0908 364-65 (1994) (three shareholders who owned 40%, 40%, and 20% of the corporation owed

fiduciary duties and had mutual obligations that were similar to those of partners); Hagshenas, 199

Ill. App. 3d at 71; Illinois Rockford Corp. v. Kulp, 41 Ill.2d 215, 222 (1968) (50% shareholders of

a company owed fiduciary duties to each other similar to that of partners). Thus, the Maron

organization qualified as a close corporation under the commonly understood definition that has

been used in precedent and by this trial judge, and, Eric, as the person who controlled this close

corporation, owed fiduciary duties to Kazemi, as a shareholder.

¶ 63 Eric argues that the undisputed trial evidence showed, however, that there were three, not

two, shareholders when Kazemi resigned, including Eric, Kazemi, and CFO Schwartz, whose

tenure with the company dated to when Jerry ran Maron. Kazemi acknowledges that the evidence

was conflicting as to how many shareholders there were in 2019, because the shareholders’

agreement that Schwartz tried to get Kazemi to sign at that point indicated that only Eric and

Kazemi were shareholders. The distinction that Eric is trying to draw is irrelevant because even if

there were three shareholders, Eric’s role as Maron’s president and CEO meant that he controlled

the close corporation and owed Kazemi fiduciary duties. Anest, 332 Ill. App. 3d at 476; ICD

Publications, 2014 IL App (1st) 133277, ¶ 66.

¶ 64 Eric also argues that the evidence of his breach was lacking because the terms of the

agreement were followed and FGMK performed the calculation. A reviewing court defers to the

circuit court’s findings of fact unless they are contrary to the manifest weight of the evidence. Moy,

371 Ill. App. 3d at 960. A decision is against the manifest weight of the evidence “only if the

opposite conclusion is apparent or when findings appear to be arbitrary, unreasonable, or not based

on the evidence.” Id. Here, after listening to all the evidence and assessing the credibility of

- 36 - 1-25-0908 witnesses, the circuit court found that Eric breached his fiduciary duty “by setting in motion a

series of events *** with the express intent of depriving Plaintiff of an honest and fair repurchase

price for his stock.”

¶ 65 Eric’s arguments to the contrary are about the witnesses’ credibility. He argues there was

no evidence that he personally took any action to influence FGMK or the valuation it produced.

He argues there was no testimony that he directed Schwartz or Maron’s other finance person, Lee,

to influence FGMK or Polash’s calculations. Eric cites his own testimony that he did not influence

the accountants’ work. Eric also cites Polash’s testimony that Polash alone determined what to

include under the category of reserves for contingent liabilities and that Polash did not speak to

anyone at Maron until after issuing the valuation report. Eric also argues that the “brainstorming”

e-mails with FGMK were taken out of context because Maron was negotiating a settlement amount

with Kazemi and Maron was not contractually prohibited from speaking with its accountants about

the terms of the shareholders’ agreement. Eric contends that the circuit court, however,

“improper[ly]” relied on the incredible testimony of his former assistant, Benson, as evidence that

Eric had Schwartz communicate with FGMK in order to rig FGMK’s work. According to Eric, not

only were the “brainstorming” e-mails part of Schwartz’s innocent and permissible work to reach

a settlement with Kazemi, but also, the phone conversation that Benson testified she overheard

“could not possibly have anything to do with FGMK’s calculation *** since the purported

conversation occurred more than a year prior to Kazemi resigning from Maron.” Eric emphasizes

Benson’s testimony that she was not actively listening to the conversation as she went about her

work tasks. Also, Schwartz and Eric testified that they were actually talking about the need for a

shareholders’ agreement with Kazemi, because they mistakenly believed at the time that he had

- 37 - 1-25-0908 no contract, and their testimony was corroborated by the fact that a shareholders’ agreement was

drafted for his signature. Eric concludes these are numerous reasons to disregard Benson’s

testimony entirely.

¶ 66 Eric’s argument is essentially that the defense witnesses were more credible than the

plaintiff’s witnesses. When findings of fact are based on the circuit court’s credibility

determinations, a reviewing court will defer to those findings unless they are against the manifest

weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002). Eric has not met that

standard. Unlike the other witnesses, Benson was a disinterested party with no stake in the outcome

of the proceedings. Although she testified that she did not actively listen to the initial portion of

the phone conversation in 2018, she testified that she did pay attention to what Eric said to

Schwartz later in the conversation. She was listening when Eric told Schwartz that “there was no

way he was going to pay” Kazemi the amount that he was entitled to under the shareholders’

agreement and that Schwartz was going to “fix it.” The circuit court assessed Benson’s demeanor

and found her to be “very credible” and that her testimony was corroborated by other evidence.

The court also stated that even if it were to set aside Benson’s testimony, “there was sufficient

credible and compelling evidence indicating that [Eric] initiated the process to artificially deflate

the value of Kazemi’s shares.” The court concluded that Eric had indeed “created and promoted a

campaign to ‘rig’ the stock evaluation process by having *** Schwartz communicate and

‘brainstorm’ with the supposed independent accountants at FGMK to inflate ‘contingent liabilities’

in an unreasonable and improper manner so as to artificially eliminate the ‘net worth’ of Maron.”

Furthermore, neither the jury nor the judge apparently believed Schwartz’s explanation that he

“forgot” that there was an existing shareholders’ agreement with Kazemi and so had a new one

- 38 - 1-25-0908 drafted. Instead, this was seen as Schwartz’s first attempt to “rig” Kazemi’s buyout if he left the

company. The circuit court also indicated that Schwartz’s testimony added credibility to Benson’s

testimony, given that he admitted that items that were included as contingent liabilities in FGMK’s

valuation had never previously been treated in that way. The contemporaneous e-mails confirmed

that Schwartz was talking with FGMK about ways to use contingent liabilities in order to unfairly

reduce the stock price. This evidence supported the circuit court’s finding that Eric encouraged

Schwartz to mislead the accountants so that they would “torture[]” the meaning of “Net Worth” in

order to produce an absurd result, and that this conduct justified punitive damages. Polash likewise

testified that if Schwartz had told him that the intent of the shareholders’ agreement was not to

“protect the company” as Schwartz had informed him, then Polash would have thought about the

calculation differently and might have changed his analysis. This was further evidence of Eric’s

role in manipulating what was supposed to be an independent and neutral process. Eric has failed

to show that the manifest weight of the evidence is contrary to the trial judge’s finding that Eric

breached his fiduciary duty to Kazemi “by setting in motion a series of events *** with the express

intent of depriving [Kazemi] of an honest and fair repurchase price for his stock.” In short, the

record does not substantiate Eric’s contention that he neither owed nor breached fiduciary duties

to Kazemi.

¶ 67 Maron argues that it was entitled to summary judgment on its counterclaim that Kazemi

breached his fiduciary duties to the company by soliciting Maron employee Pore to join him at his

new firm and by winning the bid for the Goldman Sachs project that Kazemi worked on while at

Maron. As discussed previously, the denial of summary judgment has merged into the judgment

after the trial and is not reviewable, but we may review Maron’s arguments regarding the manifest

- 39 - 1-25-0908 weight of the evidence. Moy, 371 Ill. App. 3d at 359-60. Maron’s contention that Kazemi breached

a fiduciary duty to Maron by “winning a bid for the Goldman Sachs project” is a bare statement

without any subsequent supporting argument. Maron factually develops the argument in its reply

brief. However, an appellant forfeits review of issues that are insufficiently presented in the

opening brief. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in the opening brief

are considered forfeited and may not be raised in a reply brief, at oral arguments, or in a petition

for rehearing); Robinson, 2025 IL App (1st) 232174, ¶ 39. Accordingly, this contention is forfeited.

Furthermore, the manifest weight of the evidence does not indicate that the circuit court erred in

determining that Kazemi did not breach a fiduciary duty to Maron with respect to Pore’s departure

from Maron. Maron contends that the circuit court “ignored” evidence that Pore told Kazemi that

he was unhappy working at Maron and that instead of telling Maron’s leadership that Pore was

disgruntled so that Maron could retain Pore, Kazemi began soliciting Pore to help him form a

competing business, in breach of Kazemi’s duties to Maron. Although Maron failed to cite the

location of its counterclaim in the record, we were able to locate it and confirm that Maron did not

allege that Kazemi breached by not informing Maron’s leadership that Pore was a disgruntled

employee. Rather, Maron alleged that Kazemi breached by “encouraging Maron’s employees,

while he was still employed and a fiduciary of Maron, to leave Maron and join a competitor

company which he was planning to join.” This was the allegation that the circuit court addressed

in the judgment order on appeal. After the jury trial, the circuit court ruled on the “remaining

Bench/Non-Jury Counts” and found in relevant part:

“As to Maron’s claim that Kazemi breach[ed] a fiduciary duty to Maron by recruiting

Jason Pore, the law is clear that an employee or shareholder can take steps to form a new

- 40 - 1-25-0908 company or to compete in the future with their company, as long as that employee does not

actively compete while still employed. The evidence was clear that Jason Pore, while he

discussed his unhappiness with Maron (and specifically his unhappiness with Luke Fenner)

and potential future plans with Kazemi while both were still employees of Maron, Pore

testified that he was extremely unhappy with Maron’s work environment and thinking of

leaving long before he found out Kazemi was thinking of leaving. There was credible

evidence that Pore was leaving Maron ‘one way or another,’ regardless of whether a job

with Gurtz Electric ever materialized. Therefore, Maron did not sustain its burden of proof

by the evidence to show that, more likely than not, Kazemi breached his fiduciary duty to

Maron. Accordingly, judgment is entered against Maron and for Kazemi on Count I of the

Counter-Claim.”

¶ 68 Thus, the circuit court did not “ignore” Maron’s actual allegation when ruling in Kazemi’s

favor on the counterclaim and Maron’s attempt to now argue evidence that is irrelevant to its actual

allegation is unpersuasive.

¶ 69 Alternatively, Eric argues that the circuit court improperly rejected his affirmative defenses

of “waiver,” “estoppel,” and “unclean hands,” stating that the jury had considered and rejected

them, when the circuit court had actually prevented the jury from ever considering them. We

rejected Maron’s presentation of the affirmative defenses of “waiver” and “estoppel” above and

we will not revisit them. As for the affirmative defense of “unclean hands,” Eric argues that

Kazemi breached his fiduciary duty to Maron and, therefore, Kazemi had “unclean hands” and

could not sue Eric for breach of fiduciary duty. This argument is forfeited because Eric has cited

an entire subsection of his Statement of Facts, rather than citing and discussing specific evidence

- 41 - 1-25-0908 in support of his argument. An appellant forfeits review of issues that are insufficiently presented.

Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in the opening brief are considered

forfeited and may not be raised in a reply brief, at oral arguments, or in a petition for rehearing);

Robinson, 2025 IL App (1st) 232174, ¶ 39.

¶ 70 Eric’s other alternative argument is that the $4,121,299.42 punitive damages award was

based on erroneous findings of wilful and wanton conduct. He essentially argues there is no

credible evidence that he rigged the valuation process.

¶ 71 Punitive damages are not favored and are to be awarded with caution. Glass v. Burkett, 64

Ill. App. 3d 676, 682 (1978). They may be ordered if a breach of fiduciary duty is accompanied by

“aggravating circumstances such as willfulness, wantonness, malice or oppression.” Id. at 683.

They are intended to punish the wrongdoer and deter that person and others from committing

similar offenses in the future. Id. They are an appropriate means to punish and deter conduct where

the defendant has engaged in an intentional breach of fiduciary duty. Obermaier v. Obermaier,

128 Ill. App. 3d 602, 610 (1984) (citing Glass, 64 Ill. App. 3d 676). The manifest weight of the

evidence standard applies to a circuit court’s findings in this instance. Linhart v. Bridgeview Creek

Development, Inc., 391 Ill. App. 3d 630, 641 (2009).

¶ 72 Eric’s challenge to the punitive damages award consists of protests that there is “no

evidence” that he influenced FGMK directly or indirectly and no evidence of any “rigging”

whatsoever. However, the circuit court thoughtfully set out detailed factual findings that support

its conclusion that Eric’s breach was intentional, and it reaffirmed those findings when it rejected

the post-trial motion and resolved the petition for attorney fees.

¶ 73 An abundance of evidence underpins the circuit court determination that Eric’s conduct in

- 42 - 1-25-0908 manipulating the share valuation process to Kazemi’s detriment was wilful, wanton, and

intentional. As the court explained, it found Benson to be “highly credible” and her testimony

provided direct evidence of Eric’s intent. Benson testified that Eric told Schwartz that there was

“no way” he was going to pay Kazemi what he was owed and “you f***ed this up, you f***ing

fix it.” The court determined that “several other pieces of circumstantial evidence indicat[ed] that

[Eric’s] statements were likely made in response to a question or concern as to what Kazemi’s

payout would be should he separate from the company.” Also, that Nixon’s statements to Schwartz

“indicated a direct intent that Schwartz should find a way to artificially deflate the value of

Kazemi’s shares.” (Emphasis added.) The court found that the evidence was “clear that Eric Nixon

created and promoted a campaign to ‘rig’ the stock evaluation process by having Maron personnel,

specifically Don Schwartz, communicate and ‘brainstorm’ with the supposed independent

accountants at FGMK to inflate ‘contingent liabilities’ in an unreasonable and improper manner

such as to artificially eliminate the ‘net worth’ of Maron *** [thus] depriving Plaintiff of an honest

and fair repurchase price for his stock.” Furthermore, the court expressly found that “this process

was, as shown by the evidence, intentionally done to deprive Plaintiff of an honest and fair

repurchase price for his stock.” The evidence led the circuit court to conclude: “Schwartz’s

communications with FGMK, and then FGMK’s actions in finding, bluntly, some ridiculous

scenarios to be a ‘contingent liability,’ all added up together to provide sufficient and reliable

evidence of willful and wanton conduct.”

¶ 74 The circuit court’s determination that Eric wilfully, wantonly and intentionally interfered

in the valuation process in order to deprive Kazemi of a fair repurchase price is well supported by

the manifest weight of the evidence. The record is “replete with testimony and exhibits supporting

- 43 - 1-25-0908 the *** finding that [Eric] acted intentionally” because his actions were “lacking in good faith,

underhanded, deceitful and sly.” Levy, 268 Ill. App. 3d at 380. This type of wilful breach of a

fiduciary duty supports the circuit court’s decision to award punitive damages. Id.

¶ 75 “A ruling is against the manifest weight of the evidence if it is arbitrary, unreasonable,

arbitrary and not based on the evidence, or when the opposite conclusion is clearly evident from

the record.” Tully v. McLean, 409 Ill. App. 3d 659, 670 (2011). We defer to the circuit court as the

finder of fact “because it is in the best position to observe the conduct and demeanor of the parties

and the witnesses.” Id. Furthermore, a reviewing court “may not substitute [its] judgment for that

of the trial court regarding the credibility of witnesses, the weight to be given to the evidence, or

the inferences to be drawn.” Id. Eric has not shown that the award of punitive damages was

contrary to the manifest weight of the evidence.

¶ 76 The next two contentions concern the attorney fees that were included in the punitive

damages award. The punitive damages consisted of $1.5 million and “an amount to be determined

should [Kazemi] choose to file an Attorney Fee Petition.” On the basis of Kazemi’s subsequent

attorney fee petition, Eric’s written response, and Kazemi’s written reply, the circuit court

determined that the following amounts totaling $2,621,299.42 were fair and reasonable: $16,728

for Kazemi’s first attorney, $2,555,667 for his second attorney, and $48,904.42 for the expenses

and costs.

¶ 77 The circuit court may consider an element of punitive damages to be the amount of the

plaintiff’s attorney fees. Glass v. Burkett, 64 Ill. App. 3d 676, 683 (1978).

“Wrongful conduct of the defendant, which has been characterized as either wilful,

wanton, malicious or oppressive, is the root of all cases where litigation expenses have

- 44 - 1-25-0908 been allowed as an exception to the general rule that litigation expenses are not allowable

to the successful party in the absence of a statute or in the absence of some agreement or

stipulation specifically authorizing them.” Id.

¶ 78 Eric contends that the court impermissibly awarded punitive damages twice. Attorney fees

cannot be awarded “as a separate entity distinct from punitive damages.” Id.; Russow v. Bobola, 2

Ill. App. 3d 837, 843 (1972) (“When an award of punitive damages is authorized, expenses and

attorney fees may be considered in estimating the amount of damages but are not allowable in

addition to the sum assessed as exemplary damages.”). However, the attorney fees were not a

second or separate award of punitive damages. The court ordered that punitive damages would

consist of two components, the first of which was $1.5 million and the second of which was “an

amount to be determined [on the basis of a fee petition].” Furthermore, Eric made the same

argument in response to the fee petition and the circuit court stated then that Eric “confuse[s] the

intent of this Court’s 2/25/25 Order *** which awarded attorneys’ fees and costs simultaneously

with the [1.5 million] award of punitive damages.” The circuit court also said:

“The only caveat separating the fees/costs from the punitive damages award was that

the Court would need to see a Petition establishing the foundation for any such fees, and

thus invited Plaintiff to file such a Petition if he so chose. The award of fees/costs was part

and parcel of the same finding of vexatious conduct on Defendant’s part and was not

separate and distinct. In the case cited by Defendants, Glass v. Burkett, that is exactly what

the appellate court did in inferring the intent of the trial court to award fees/costs

simultaneously with punitive damages as part of the same damages award. The only

difference in the Glass case was that the Court apparently had received competent evidence

- 45 - 1-25-0908 of the actual fees/costs at that point, but that is a distinction without a difference here.”

¶ 79 Thus, it is disingenuous of Eric to argue on appeal that the circuit court granted punitive

damages twice.

¶ 80 Eric’s second contention regarding the attorney fees is that it was improper to base some

of the award on Kazemi’s contingency fee agreement with counsel instead of applying the lodestar

method. This is the full extent of Eric’s argument, so it is forfeited due to his failure to develop it

with any supporting authority. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (arguments not raised in

the opening brief are considered forfeited and may not be raised in a reply brief, at oral arguments,

or in a petition for rehearing); Robinson, 2025 IL App (1st) 232174, ¶ 39.

¶ 81 Finally, Eric adopts Maron’s unpersuasive argument that the circuit court erred in denying

remittitur of the award against Eric. As discussed above, the circuit court did not err in denying

¶ 82 Having rejected all of the appellants’ arguments, we affirm the judgment on appeal.

¶ 83 Affirmed.

- 46 -