Smart Plastics, LLC v. Abrams

2026 IL App (1st) 250919-U

• Court: Appellate Court of Illinois
• Decided: March 9, 2026
• Docket: 1-25-0919
• Status: Unpublished

Opinion

2026 IL App (1st) 250919-U

FIRST DIVISION March 9, 2026

No. 1-25-0919

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

SMART PLASTICS, LLC and ) Appeal from the SMART PLASTICS II, LLC, ) Circuit Court of ) Cook County. Plaintiffs/Counter-Defendants-Appellees, ) ) v. ) No. 22 L 11206 ) ROBERT S. ABRAMS, ) Honorable ) Patrick J. Sherlock, Defendant/Counter-Plaintiff-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court of Cook County striking defendant’s jury demand, striking defendant’s affirmative defenses of waiver of estoppel, rejecting defendant’s affirmative defense of unconscionability, and finding in favor of plaintiffs on plaintiffs’ complaint to enforce a promissory note and against defendant on a counterclaim of breach of contract.

¶2 Plaintiffs, Smart Plastics, LLC and Smart Plastics II, LLC (Smart Plastics) filed a

complaint for breach of a promissory note against defendant, Robert S. Abrams. Defendant

initially filed a petition to remove the case to federal court on diversity grounds. In April 2023,

after considering the petition for removal, a district court judge remanded the case to the circuit

court of Cook County and terminated the proceedings in federal court. 1-25-0919

¶3 On May 23, 2023, two attorneys filed two separate general appearances with the Clerk of

the Circuit Court on behalf of defendant in this case. Neither general appearance form filed by

the two attorneys checked the box on the form indicating the party was demanding a jury trial

and neither attorney paid a jury fee. Defendant subsequently filed an answer to the complaint

which demanded trial by jury, raised affirmative defenses, and stated counterclaims. However,

defendant never paid the required jury fee.

¶4 Plaintiff filed a motion to strike the jury demand which the trial court granted. The court

also granted plaintiffs’ motion to dismiss two of defendant’s affirmative defenses. Following a

bench trial, the trial court entered judgment in favor of plaintiffs on their breach of promissory

note claim and judgment against defendant and in favor of plaintiffs on defendant’s counterclaim

for breach of a contract underlying the issuance of the promissory note. Defendant appeals the

order striking the jury demand, striking two of defendant’s affirmative defenses, denying

defendant’s affirmative defense of unconscionability of the promissory note, and entering

judgment against defendant on his counterclaim.

¶5 For the following reasons, we affirm the trial court’s judgment.

¶6 BACKGROUND

¶7 Defendant, Robert S. Abrams, was the manager of CV Holdings, L.L.C., a Delaware

limited liability company (CVH). Defendant held a majority interest in CVH and owned all of

the Class A common interests of the company. Plaintiffs were members of CVH and held a

minority interest in the company in the form of preferred interests. CVH was governed by an

operating agreement. CVH was the parent company of several subsidiaries. One such subsidiary

made and sold proprietary glucose test strips used by diabetics. After demand for CVH’s test

strips greatly diminished, CVH lost a significant portion of its revenue and faced the prospect of

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going out of business. Defendant, as manager, began to look for a buyer for CVH. Defendant

secured an offer to purchase all of the interests in CVH for approximately $360 million. Time

was of the essence for the sale, which required the consent of all of CVH’s members, including

its five minority owners holding preferred interests, like plaintiffs.

¶8 On November 12, 2014, defendant sent a letter to plaintiffs stating the terms of the sale

and asking plaintiffs to sign a purchase agreement. At the time, CVH held an option to purchase

all of the stock of a separate company, SiO2 Medical Products, Inc., for $1.00. Defendant was

the sole owner of SiO2. The November 12, 2014, letter stated that before the sale closed, CVH

would reorganize and cancel its option on SiO2, and defendant would reduce the amount he

would otherwise be entitled to receive as a result of the sale. The letter estimated the value of the

option on SiO2 to be approximately $26-$30 million. The letter also requested that plaintiffs

waive a clause in the “Go-Along Provision” in the operating agreement that gave plaintiffs the

right to request an opinion on the fairness of the proposed sale from a financial perspective, and

included an agreement to amend the operating agreement accordingly. Finally, the letter asked

plaintiffs to waive any claims of breach of fiduciary duty against defendant based on the sale.

¶9 The letter stated that “the [sale] is being effected in accordance with the Go Along

Provision set forth in section 14.4 of the *** Operating Agreement of the Company.” The letter

proposed that “Section 14.4(a) of the LLC Agreement is hereby amended to waive the option of

the *** Preferred Members to obtain any additional opinions or material with respect to the

[sale.”]. The letter stated that by signing and returning the letter its “shall become a binding

agreement between the Company, the Class A Common Representative and the undersigned

Member.”

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¶ 10 The “Go-Along Provision” in section 14.4 of the operating agreement reads, in pertinent

part, as follows:

“[E]ach Class B Common Member and Preferred Member agrees for the benefit

of the Company and the Class A Common Member that if (i) the Class A

Common Members shall propose to consummate any sale of all of the Class A

Common Interests held by them ***and (ii) at the option of the Class B Common

Members and the Preferred Members, [they] shall have received from a nationally

recognized investment banking firm or public account firm, selected by [them]

and not affiliated with [them] and not otherwise involved in the proposed sale, a

written opinion *** stating that the consideration or net proceeds to be received

by such Class B Common Members and Preferred Members in connection with

such proposed sale is fair to such Class B Common Members and the Preferred

Members from a financial point of view, then *** each Class B Common Member

and Preferred Member shall be obligated severally to dispose of all its ***

Interests to the Go-Along Person on the same terms and conditions as the Class A

Common members *** and to take any actions reasonably requested by the Class

A Common Members necessary or desirable to effect such proposed sale ***.”

¶ 11 Based on the interests plaintiffs held in CVH, plaintiffs would receive approximately

$17.5 million as a result of the sale. Defendant asked plaintiffs to respond within two days.

¶ 12 After receiving the November 12 letter, plaintiffs’ representative, Boufis, began

negotiating with defendant. Boufis ran the private equity group that formed Smart Plastics to

invest in CVH and Boufis later became a member of Smart Plastics. On November 17, 2014,

Boufis emailed defendant as “part of the negotiations *** where [Boufis] and [defendant] were

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discussing what [Boufis] believe[d] Smart Plastics should receive from the sale.” Boufis’s

November 17 email offered “two exit scenario options I believe should work for either you

[(defendant)] and the [Smart Plastics] investors.” One option increased the cash consideration

from the sale from approximately $17 million to $22 million and the other option maintained the

cash consideration around $17 million but retained an interest in SiO2. Neither included

additional cash from defendant personally. On November 18, 2014, defendant wrote to plaintiffs

and in exchange for agreeing to the terms stated in the November 12 letter, including waiving the

option in SiO2, waiving any claims against defendant, and waiving the fairness opinion,

defendant would personally sign a promissory note in favor of plaintiffs for an additional

$5,366.589 in addition to the $17.5 million from the sale. Boufis testified that defendant’s

November 18 letter resulted from his conversations with defendant. Plaintiffs agreed and

provided defendant the necessary signatures. After plaintiffs consented to the sale, defendant

obtained the final two consents needed to complete the sale. The sale of CVH proceeded and

plaintiffs received $17.5 million from the sale.

¶ 13 After an agreed upon extension, the promissory note had a maturity date of October 1,

2015. The parties also modified the note to remove a pledge of SiO2 stock as security. At trial,

Boufis testified about “conversations in the summer of 2019 where [defendant] *** asked to

forbear collection of [the] note.” Boufis testified that defendant “said he didn’t have the

economic means to service the loans.” Boufis testified: “We said, ‘look, it’s been a number of

years. Can you at least begin to service it, pay something?’ At which point [defendant] said he

didn’t have the economic means to do it, and we said, ‘Can you sort of help me validate that?’ ”

Later, on redirect examination, Boufis testified that when he met with defendant “in 2018 and

2019, defendant told Boufis, “ ‘Don’t worry. I’m going to pay you.’ ” When asked whether

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“that’s why the lawsuit wasn’t filed earlier,” Boufis responded, “I trusted him, yes, sir.”

Plaintiffs took no further action until December 19, 2022, when plaintiffs filed the complaint in

this case.

¶ 14 On May 23 2023, defendant’s attorneys filed a “General Appearance” on a circuit court

of Cook County “Appearance/Jury Demand” form. Defendant’s attorneys “checked the box”

labeled “Appearance—Fee Paid.” However, the attorneys did not check the box labeled

“Appearance & Jury Demand” to indicate defendant demanded a jury trial or that defendant paid

the required jury fee.

¶ 15 On August 3, 2023, plaintiffs filed a First Amended Complaint For Breach Of

Promissory Note. (Plaintiffs’ stated purpose for filing the amended complaint was to allege facts

demonstrating consideration for the note based on defendant’s motion to dismiss the original

complaint. Consideration for the note is not at issue in this appeal.) Plaintiffs’ first amended

complaint alleged, as it pertains to this appeal, that “[t]he consideration given for *** [the] note,

*** included Plaintiffs’ signing and delivery of” the November 12 and 18, 2014 letters, and

plaintiffs’ “signatures on the proposed purchase agreement.” Plaintiffs alleged that by signing the

November 12 and 18 letters and purchase agreement, “Plaintiffs accepted Defendant’s offer” in

the November 18, 2014 letter, committed to the sale of CVH, and “[w]aived rights under the CV

Holdings operating and other agreements, including a right to a fairness opinion;” “[a]pproved a

stated range value for SiO2” and “[c]onsented *** to the proposed pre-closing

termination/transfer to Defendant of a CV holdings option to acquire ownership of SiO2, and

refrained from demanding interests in assets proposed to be transferred by CV Holding to

Defendant;” “[c]onsented *** to treating the proposed sale transaction as a ‘Go Along’

transaction;” and “[p]romised to authorize legal fees and to indemnify Defendant *** and to

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release Defendant regarding the closed sale transaction as well as regarding his pre-sale

operation of CV Holdings and its pre-closing restructuring.”

¶ 16 On September 15, 2023, defendant filed an Answer, Affirmative Defenses, And

Counterclaims To Plaintiffs’ First Amended Complaint. On December 21, 2023, defendant filed

an Amended Answer, Affirmative Defenses, And Counterclaims To Plaintiffs’ First Amended

Complaint. On January 18, 2024, plaintiffs filed a motion pursuant to section 2-615 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2022)) to dismiss defendant’s amended

affirmative defenses and counterclaims. On April 3, 2024, the trial court entered a written order,

based on the parties’ pleadings, on plaintiffs’ motion to dismiss defendant’s affirmative defenses

and counterclaims.

¶ 17 As it pertains to this appeal, the trial court denied plaintiffs’ motion to strike defendant’s

fourth affirmative defense of unconscionability and granted defendant leave to replead, inter

alia, affirmative defenses of estoppel and waiver “with relevant factual rather than conclusory

allegations for each separate and distinct equitable theory.” The court found that defendant

adequately pleaded defendant’s first counterclaim for breach of the “Go Along Provision” in the

operating agreement; and dismissed defendant’s fifth counterclaim based on the implied

covenant of good faith and fair dealing because it was unclear whether defendant was

“attempting to plead a breach of contract claim or arguing that plaintiffs breached the covenant

of good faith and fair dealing embedded in every contract.”

¶ 18 On May 31, 2024, defendant filed his Second Amended Answer, Affirmative Defenses,

And Counterclaims To Plaintiffs’ First Amended Complaint. Defendant’s Second Amended

Counterclaims repleaded the same counterclaim for breach of the implied covenant of good faith

and fair dealing in the operating agreement that the trial court had dismissed “to preserve it for a

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reviewing court.” On June 21, 2024, plaintiffs replied to defendant’s affirmative defenses and

answers and filed affirmative defenses to defendant’s counterclaims in defendant’s second

amended answer, affirmative defenses, and counterclaims; and plaintiffs filed a separate motion

pursuant to section 2-615 of the Code to dismiss defendant’s third, fourth, fifth, and sixth

affirmative defenses.

¶ 19 Plaintiff’s motion to dismiss defendant’s second amended affirmative defenses argued, as

it pertains to this appeal, that defendant failed “to follow the Court’s instructions” when

repleading, inter alia, the affirmative defenses of estoppel (defendant’s third affirmative defense)

and waiver (defendant’s fourth affirmative defense) because defendant failed “to allege facts

supporting the elements of each of those defenses.”

¶ 20 On August 26, 2024, the trial court entered a written order on plaintiffs’ motion to

dismiss defendant’s affirmative defenses. As it pertains to this appeal, the trial court agreed with

plaintiffs that defendant’s “affirmative defense of estoppel fails to allege factual particularity as

it relates to either any statement or conduct which constitutes a misrepresentation and which

[defendant] relied upon to his detriment.” The court concluded that defendant “pled no facts to

support his conclusion that [he] ‘adversely changed his position’ assuming that plaintiff[s] would

not seek to enforce the terms of the Note” and granted plaintiffs’ motion to strike defendant’s

third affirmative defense. The court also granted plaintiffs’ motion to strike defendant’s fourth

affirmative defense of waiver. The court found that defendant failed to allege any facts in support

of his wavier defense. The court found that defendant’s fourth affirmative defense of waiver

“contains no facts that would constitute anything close to the conduct which would constitute an

intentional, knowing relinquishment of the right to enforce the note.” The court found that

defendant’s allegations “fall[] short of establishing a viable waiver affirmative defense. ***

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Merely alleging that certain conduct of delaying assertion of rights constitutes a waiver is

insufficient as a matter of law.”

¶ 21 On November 4, 2024, plaintiffs filed a Motion To Strike Defendant’s Jury Demand.

Plaintiffs’ motion moved to strike defendant’s jury demand “contained in his pleadings” but

argued that defendant “did not pay a jury fee when his initial pleading was filed as required by

735 ICS 5/2-1105.” Plaintiffs argued that unless defendant can show timely payment of the jury

fee defendant it not “entitled” to a jury and “the case must be tied by the court” pursuant to 705

ILCS 105/27.1b(e).

¶ 22 On November 21, 2024, defendant filed a response to plaintiffs’ motion to strike

defendant’s jury demand. Defendant’s response had attached a “Declaration of Timothy R.

Farrell As to [Defendant’s] Jury Demand (‘Farrell Declaration’),” and incorporated the factual

assertions and legal arguments in the declaration into defendant’s response to plaintiffs’ motion

to strike defendant’s jury demand. The response concluded: “Although law cited in the Farrell

Declaration indicates that no additional fees are required under these circumstances for the

assertion of [defendant’s] jury demand, [defendant] is ready and willing to pay whatever fee the

Cook County Circuit Clerk requires.” Farrell was one of defendant’s former attorneys who, in

October 2024, received leave to withdraw as defendant’s counsel. The declaration stated that

defendant has asserted his jury demand “numerous times in his pleadings, and his jury demand

was never met with any objection or motion to strike by Plaintiffs.”

¶ 23 The Farrell Declaration recounts defendant’s effort to remove this case to federal district

court and states that defendant demanded trial by jury in that court, which does not require a jury

fee with the filing of a jury demand. When the federal district court remanded the case to the

circuit court of Cook County, defendant’s attorneys filed general appearances because plaintiffs

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had not requested a jury and there was “no pleading yet due” by defendant. Defendant then

moved to dismiss plaintiffs’ complaint but withdrew the motion when plaintiffs received leave to

amend and filed their first amended complaint. Thereafter, defendant filed his answer,

affirmative defenses, and counterclaims and included a jury trial demand in defendant’s

counterclaims. Defendant’s then-attorneys did not file an amended appearance; “[n]evertheless,

the clerk of the Circuit Court accepted the Counterclaim including the Jury Trial Demand as

filed.” Plaintiffs then moved to dismiss the counterclaims but “did not move to strike

Defendant’s jury demand with the motion.” Defendant obtained leave to file an amended answer,

affirmative defenses, and counterclaims and “again included his Jury Trial Demand.” Again,

plaintiffs moved to dismiss, and again “did not move to strike Defendant’s jury demand with that

motion.” After the ruling on that motion defendant filed a second amended answer, affirmative

defenses, and counterclaims which included a jury trial demand. Plaintiffs replied to the second

amended answer, affirmative defenses, and counterclaims, but “did not include a reply to,

address, or even copy over from the Second Amended Counterclaim, Defendant’s jury demand.”

Plaintiffs’ subsequent motion to strike certain affirmative defenses did not include a motion to

strike defendant’s jury demand.

¶ 24 Farrell asserted that defendant has maintained his jury trial demand throughout this

litigation, plaintiffs pursued several motions “without ever addressing Defendant’s jury trial

demand,” and “the Clerk of the Circuit Court of Cook County, Illinois has repeatedly accepted

for filing Defendant’s amended pleadings containing his jury demand.” Farrell argued plaintiff

had waived the issue and then attempted to frame the question as “how to treat a jury demand

made in federal court on remand,” then analogized that situation to a remand to the circuit court

from the appellate court—at which time “[p]arties shall have the same right to a jury trial on

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remand and reinstatement that they had before the appeal, and no additional or new fee or charge

shall be made for a jury trial after remand.” 705 ILCS 105/27.1b(i) (West 2022). Farrell did not

pursue that argument further but instead implied the time for paying the jury fee should be

extended pursuant to 735 ILCS 5/2-1007 and/or Illinois Supreme Court Rule 183 1. Farrell

concluded, “Plaintiffs have been on notice of Defendant’s consistently asserted jury demand for

many months and cannot reasonably claim inconvenience or prejudice.”

¶ 25 On November 25, 2024, the trial court entered a written order on, inter alia, plaintiffs’

motion to strike defendant’s jury demand. The trial court granted the motion without comment.

¶ 26 Following a bench trial, the trial court entered judgment in favor of plaintiffs on

plaintiffs’ complaint for breach of the promissory note and against defendant on defendant’s

counterclaims. The trial court entered judgment awarding plaintiffs $12,605,353.40 as principal

on the note, interest, attorney fees, and costs.

¶ 27 This appeal followed.

¶ 28 ANALYSIS

¶ 29 This is an appeal from a judgment following a bench trial on claims for breach of

contract. “A promissory note is a contract, subject to the law of contracts.” 11 Am. Jur. 2d Bills

and Notes § 2. “Also, generally, an LLC operating agreement is to be enforced according to

1 “On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” 735 ILCS 5/2- 1007 (West 2022).

“The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” Ill. S. Ct. R. 183 (eff. Feb. 16, 2011).

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general contract principles, unless it conflicts with a statute.” In re Marriage of Schlichting, 2014

IL App (2d) 140158, ¶ 63.

“The standard of review following a bench trial is whether the trial court’s

order or judgment is against the manifest weight of the evidence. [Citation.] A

judgment is against the manifest weight of the evidence only when the findings

appear to be unreasonable, arbitrary, or not based on evidence or when an

opposite conclusion is apparent. [Citation.] *** The appellate court *** does not

substitute its judgment for that of the trial court regarding the credibility of

witnesses, the weight to be given to evidence, or the inferences to be drawn.

[Citation.] Accordingly, the trial court’s judgment will be affirmed provided the

record contains any evidence supporting it. [Citation.]

However, to the extent that issues in a bench trial involve the

interpretation of contracts, such rulings are conclusions of law that the appellate

court reviews de novo. [Citations.] Factual findings pertaining to the interpretation

of that contract are given deference on review and are subject to reversal only

when they are against the manifest weight of the evidence. [Citation.] The

primary goal of contract interpretation is to give effect to the parties’ intent by

interpreting the contract as a whole and applying the plain and ordinary meaning

to unambiguous terms. [Citation.]” Bank of New York Mellon as Trustee for

Certificateholders of CWALT, Inc., Alternative Loan Tr. 2006-OA21 Mortgage

Pass-Through Certificates, Series 2006-OA21 v. Fiorentino, 2022 IL App (1st)

210660-U, ¶¶ 29-30.

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¶ 30 On appeal defendant argues (1) the trial court erred in striking defendant’s jury demand,

(2) the trial court erred in striking defendant’s affirmative defenses of estoppel and waiver, and

(3) the trial court erred in ruling against defendant on defendant’s counterclaim for breach of the

operating agreement.

¶ 31 (1) Jury Demand

¶ 32 Defendant argues the trial court abused its discretion in striking defendant’s jury demand

where defendant sought to pay the statutorily required jury fee after plaintiff filed a motion to

strike the jury demand for non-payment. We review the trial court’s judgment for an abuse of

discretion. Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1091 (1993) (“The trial court’s ruling

on a motion to file a late jury demand will not be disturbed absent an abuse of discretion.”). An

abuse of discretion occurs when a court enters an order that no reasonable court would enter or

enters an arbitrary or capricious order. McNulty on Behalf of McNulty v. McNulty, 2022 IL App

(1st) 201239, ¶ 42.

¶ 33 The right to a jury trial is enshrined in our constitution. “The right of trial by jury as

heretofore enjoyed shall remain inviolate.” Ill. Const. 1970, art. I, § 13. However, “the

Constitutional right of trial by jury in civil actions at law is one which may be waived unless a

written demand for trial by jury is filed pursuant to the provisions of the statute.” Wickiser v.

Powers, 324 Ill. App. 130, 138 (1944). “A defendant desirous of a trial by jury must file a

demand therefor not later than the filing of his or her answer. Otherwise, the party waives a

jury.” 735 ILCS 5/2-1105(a) (West 2022). Additionally, the Clerks of Courts Act provides that:

“The clerk shall collect *** a sum not to exceed $212.50, as a fee for the

services of a jury in every civil action not quasi-criminal in its nature and *** in

every other action wherein the right of trial by jury is or may be given by law. The

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jury fee shall be paid by the party demanding a jury at the time of filing the jury

demand. If the fee is not paid by either party, no jury shall be called in the action

or proceeding, and the action or proceeding shall be tried by the court without a

jury.” 705 ILCS 105/27.1b(e) (West 2022).

¶ 34 Defendant argues he complied with section 1105(a) of the Code but admits he did not

comply with section 27.1b(e) of the Clerks of Courts Act which requires payment of the fee at

the time the jury demand is filed. Defendant argues the trial court abused its discretion by not

allowing defendant to come into compliance with section 27.1b(e) by making a late payment of

the jury fee. First, defendant argues the trial court had the discretion to allow the late payment of

the fee. Second, defendant argues that the trial court abused that discretion in ruling on plaintiffs’

motion to strike defendant’s jury demand because (i) late payment of the fee would not have

caused prejudice to plaintiffs’ rights, (ii) late payment of the fee would have imposed no

inconvenience on the parties or on the trial court, and (iii) defendant showed good cause to make

late payment.

¶ 35 In Hernandez v. Power Construction Co., 73 Ill. 2d 90 (1978), the defendant argued that

the plaintiff “waived his right to a jury trial by not filing a demand therefore at the time that the

action was commenced.” Id. at 94. The Hernandez court discussed the right to trial by jury and

the power of the trial court to grant additional time “for the doing of any act.” The court found:

“[G]ood cause must be established in order to obtain an extension of time

in which to file a late jury demand. ([Citation.]) In addition to the requirement of

good cause, the court will consider inconvenience to the parties and the court, and

any possible prejudice to the rights of the opposing party. ([Citation.]) The

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decision is made in the discretion of the trial court, and its decision will not be

reversed unless there is an abuse of discretion. ***

Because the right to jury trial is of constitutional dimension, courts will

liberally construe statutes which regulate exercise of the right. ‘(T)he inclination

of the court should be to protect and enforce the right.’ [Citations.]” Hernandez,

73 Ill. 2d at 95.

¶ 36 The Hernandez court wrote: “Once the plaintiff established good cause for an extension

of time in which to demand a jury trial, the trial court, in its discretion, could nonetheless deny

the motion.” Hernandez, 73 Ill. 2d at 97. “In the exercise of that discretion,” the trial court

should consider “the fact that a constitutional right [is] at stake” and the presence or absence of

any “inconvenience or prejudice *** if the motion [is] granted.” Id. The court cautioned,

however, that “[t]he standard of review on appeal is not whether the appellate court would have

allowed the motion, but whether the action was a reasonable exercise of sound discretion.

[Citation.]” Id. at 95.

¶ 37 In this case, defendant argues that he showed good cause “to make a late payment”

because plaintiffs forfeited the issue by not raising it sooner, plaintiffs only moved to strike the

jury demand after defendant discharged his former counsel (who failed to tender the fee) and the

actions of defendant’s former counsel “show mistake, inadvertence or neglect,” and because

given the constitutional nature of the right at issue the trial court should have “jealously guarded”

that right by liberally construing the statutes to allow late payment of the fee. Defendant also

argues that a late payment would have “comported squarely with the purpose of the pertinent

statutes.”

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¶ 38 Plaintiffs do not dispute that a trial court has the discretion to allow the late payment of a

jury fee. However, plaintiffs argue that defendant “never made a threshold showing of ‘good

cause,’ ” therefore, the trial judge’s “discretion to consider allowing a late filed jury demand was

never invoked.

¶ 39 Plaintiffs respond that defendant’s response to plaintiffs’ motion to strike defendant’s

jury demand “never argued how or why he had ‘good cause’ to cure his failure to properly

demand a jury” nor does the Farrell Declaration “even attempt to establish ‘good cause.’ ”

Plaintiffs argue that even if defendant’s response to plaintiffs’ motion to strike is construed as a

motion “to file and pay for a late demand, [defendant] did not show ‘good cause.’ ” Plaintiffs

argue that defendant did not argue that his former attorney “made a mistake or inadvertently

failed to pay the requisite fee.” Regardless, plaintiffs argue, this court may deny a jury demand

“when the excuse for failing to act is misapprehension of the facts, mistake, and inadvertence.”

¶ 40 The Hernandez court found that “[t]he absence of inconvenience or prejudice *** does

not alone establish good cause. The moving party must assert some independent ground for

granting his late demand.” Hernandez, 73 Ill. 2d at 96. The court’s opinion in Hernandez, which

itself found its earlier decision in Stephens v. Kasten, 383 Ill. 127 (1943), “instructive as to what

constitutes good cause” (Hernandez, 73 Ill. 2d at 96), instructs that a court should determine each

case “on its own facts” (id. at 99) to determine the fairness to the party seeking a jury of denying

a late jury demand. See id. at 96-97.

¶ 41 Additionally, plaintiffs cite First Bank of Oak Park v. Carswell, 111 Ill. App. 3d 71

(1982), and Pechan, 251 Ill. App. 3d 1072, in support of their position. In Pechan, the court

found that “[a] showing of lack of prejudice is not a showing of good cause. ([Citation.]) Neither

is inadvertence a basis for good cause. ([Citation.]).” Pechan, 251 Ill. App. 3d at 1091. The

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Pechan court cited Greene v. City of Chicago, 73 Ill. 2d 100 (1978), in which the motion for

leave to file a late jury demand explicitly stated that “the failure to file a jury demand with [the]

defendant’s original pleading was the result of ‘inadvertence and oversight of the assistant

corporation counsel who was handling the case at that time.’ ” Id. at 104. The trial court denied

the motion for leave to file a late demand for jury trial. Id. at 104. Our supreme court found that,

“[i]n this instance the allegation that the failure to file the demand was the result of inadvertence

of an assistant corporation counsel does not furnish the basis for holding that the trial court

abused its discretion.” Greene, 73 Ill. 2d at 108.

¶ 42 In First Bank of Oak Park, a case involving an action for forcible entry and detainer, the

defendant was required “to file his jury demand by the time he [was] required to appear,” “which

he did not do.” First Bank of Oak Park, 111 Ill. App. 3d at 72-73. The defendant “blame[d] his

previous attorney for his failure to appear [(and file a jury demand)] *** and claim[ed] that he

acted with alacrity” thereafter. Id. at 73. The court found:

“Our system of representative litigation has developed the general rule that

the acts or omissions of an attorney are binding upon his client in the conduct of

legal matters. ([Citations.]) No excuse has been offered or suggested in the

present case as to why no appearance was filed by [the] defendant’s attorney

within the prescribed period. Nor has there been any showing that good cause

existed for his failure to request a jury trial in apt time, a burden which [the

defendant] bore in the case before us. [Citation.]” First Bank of Oak Park, 111 Ill.

App. 3d at 73.

¶ 43 The defendant in First Bank of Oak Park cited our supreme court’s decision in Hudson v.

Leverenz, 10 Ill. 2d 87 (1957), in support of his position. However, the First Bank of Oak Park

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court found that the Hudson court found “that ‘misapprehension of the facts, mistake, and

inadvertence’ did not constitute sufficient ‘good cause’ to excuse the seasonable filing of a jury

demand.” First Bank of Oak Park, 111 Ill. App. 3d at 74 (citing Hudson, 10 Ill. 2d at 93). The

First Bank of Oak Park court found that by “by alleging only personal ignorance and the

negligence of counsel, whose acts or omissions are binding upon him, it appears that [the

defendant] merely has alleged the same misapprehension of facts, mistake, and inadvertence that

the supreme court dismissed as insufficient in Hudson.” Id.

¶ 44 In Hudson, our supreme court noted that the parties were represented when the case was

placed on the nonjury calendar and the request for a jury was made shortly before the trial date.

Hudson, 10 Ill. 2d at 94 (distinguishing Stephens, 383 Ill. at 135). The Hudson court found the

fact

“[t]hat the plaintiffs would be inconvenienced by the delay was not disputed, nor

did the defendants advance any reason or ‘good cause’ other than to say their

failure resulted from ‘misapprehension of the facts, mistake and inadvertence.’ On

this record, we do not believe the trial judge abused its discretion in refusing the

request for a jury trial. The defendants failed to comply with [now section 2-1105

of the Code,] and they do not show why their failure should be excused under

[now section 2-1007 of the Code] and [now Rule 183] of this court.” Hudson, 10

Ill. 2d at 94.

¶ 45 In this case, defendant’s reply asserts that “inadvertence constitutes good cause” and for

support relies on Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353 (2007), and Domino v.

Maltezos 2012 IL App (1st) 103599-U. Defendant argues that Vision Point of Sale, Inc. "opened

the door to inadvertence as good cause," and Domino “walked through it.” In Vision Point of

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Sale, Inc., our supreme court held that “in determining whether good cause exists under Rule 183

to support an extension of time allowing a party to comply with a deadline set forth in our rules,

the circuit court may not take into consideration facts and circumstances in the case that go

beyond the reason for noncompliance.” Vision Point of Sale, Inc., 226 Ill. 2d at 336. Our

supreme court addressed a line of appellate authority establishing, in effect, that “unless the

[moving] party can present evidence separate and apart from mistake, inadvertence, or attorney

neglect to support an argument that there was good cause for the initial delay in compliance, the

extension will not be granted.” Id. at 349.

¶ 46 The Vision Point of Sale, Inc. court stated that its earlier decision in Bright v. Dicke, 166

Ill. 2d 204 (1995), “did not hold—as the appellate court subsequently has—that there is a blanket

rule that mistake, inadvertence, or attorney neglect on the part of the moving party can never

form the basis of a good-cause argument that a Rule 183 time extension should be granted.”

Vision Point of Sale, Inc., 226 Ill. 2d at 350-51. The court concluded:

“The circuit court has the sound discretion to consider all objective,

relevant evidence presented by the delinquent party with respect to why there is

good cause for its failure to comply with the original deadline and why an

extension of time should now be granted. The circuit court may receive evidence

with respect to whether the party’s original delinquency was caused by mistake,

inadvertence, or attorney neglect, but may not engage in an open-ended inquiry

which considers conduct that is unrelated to the causes of the party's original

noncompliance. We decline, however, to specifically define what constitutes good

cause within this context, as that determination is fact-dependent and rests within

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the sound discretion of the circuit court.” Vision Point of Sale, Inc. v. Haas, 226

Ill. 2d 334, 353 (2007)

¶ 47 Thus, contrary to defendant’s argument, we find that our supreme court did not hold that

“inadvertence is good cause.” Rather, inadvertence, mistake, or attorney neglect are facts a trial

court may consider in determining whether good cause for failing to meet the deadline at issue

has been shown. Daniel v. Meyer, 2024 IL App (1st) 240235-U, ¶ 22 (“Mistake, inadvertence, or

neglect by the moving party’s attorney may be considered in evaluating good cause.”), see

Horlacher v. Cohen, 2017 IL App (1st) 162712, ¶ 67.

¶ 48 Defendant argues that in Domino, this court “affirmed an order accepting a late jury

demand where counsel freely admitted that he had failed to file that demand ‘through pure

inadvertence.’ ” To suggest that this court affirmed the trial court based solely on counsel’s

inadvertence is misleading. In Domino, this court noted the particular facts of that case, including

that the case had been voluntarily dismissed and refiled, both the plaintiff and the defendant had

made a jury demand in the original case but neither made a demand in the refiled case, the trial

court scheduled the case for a jury trial to commence the next day and itself noted the absence of

a jury demand, and the defendant filed an emergency motion for leave to file a late jury demand

on the day of trial.

¶ 49 This court found that “[u]nder these circumstances, *** the court did not abuse its

discretion in accepting the late jury demand.” Domino, 2012 IL App (1st) 103599-U, ¶ 7. This

court found that “inadvertence by the party seeking leave (or by his counsel) is not irrelevant to

the determination of good cause” and additionally relied on its prior finding in another case

finding “no abuse of discretion where leave to file a late demand was based upon the court’s

order scheduling a jury trial and the parties' assumption that there would be a jury trial.” Domino,

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2012 IL App (1st) 103599-U, ¶ 7. In sum, this court considered counsel’s inadvertence in the

specific context of that case: where counsel demanded a jury trial in the original filing, through

inadvertence failed to demand a jury in the refiled case, and nonetheless the trial court scheduled

the matter for a jury trial.

¶ 50 On this legal backdrop turning to this case, first, defendant’s argument that plaintiffs

forfeited their argument that the trial court should not allow late payment of the jury fee is

inapposite. The statute requires that the fee be paid for the matter to be heard by a jury. 705 ILCS

105/27.1b(e) (West 2022) (“If the fee is not paid by either party, no jury shall be called in the

action or proceeding, and the action or proceeding shall be tried by the court without a jury.”).

Defendant does not dispute that he did not timely pay the fee; therefore any payment of the fee

would be pursuant to section 2-1007 of the Code or Rule 183. Any allowance of an extension of

time would require the trial court to find good cause for the extension. Johnson v. Sabben, 7 Ill.

App. 3d 238, 241 (1972) (“normally, a person seeking to file a late demand for a jury [pursuant

to section 2-1007] is required to show good cause why the leave should be granted”), Vision

Point of Sale, Inc., 226 Ill. 2d at 353 (“the plain language of Rule 183 specifically makes good

cause a prerequisite to relief”).

¶ 51 Second, we reject defendant’s argument that we should reverse the trial court’s judgment

because the court “gave no reasons for rejecting Defendant’s effort to make a late payment.”

“[C]ontrary to [defendant’s] suggestion, the fact that the trial court issued this ruling without

explaining its reasoning *** is of no consequence. ‘[T]he trial court is not required to state all

findings of fact relevant to its decision.’ [Citation.]” Smith v. Purple Frog, Inc., 2019 IL App

(3d) 180132, ¶ 23 (reviewing grant of summary judgment), see Illinois Founders Insurance Co.

v. Williams, 2015 IL App (1st) 122481, ¶ 56. Courts rely on the moving party’s arguments in the

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trial court to determine whether the trial court abused its discretion in denying a motion to extend

the time for the doing of any act.

¶ 52 Here, defendant’s response to plaintiffs’ motion to strike argued that defendant’s “initial

jury demand was asserted in the federal district court” and “re-asserted *** numerous times in

his pleadings.” Defendant claimed to have preserved his right to a jury trial “with the filing of the

Federal Answer.” Throughout defendant’s response, defendant blames plaintiffs for not moving

to strike or otherwise addressing defendant’s jury demand in his answer, affirmative defenses,

and counterclaims sooner, and the Clerk of the Circuit Court of Cook County for accepting those

pleadings without the payment of the jury fee.

¶ 53 Rather than explain his own failure to pay the jury fee, defendant’s former attorney (1)

made an unsupported attempt to analogize the failure of his attempt to remove the case to federal

court to a remand from an interlocutory appeal to this court, which would not require an

additional fee for a jury trial after remand (assuming the fee had been paid in the first place—

which it was not (see 705 ILCS 105/27.1b(i) (West 2022))), (2) merely states the existence of

section 2-1007 and Rule 183 without elaboration, and (3) asserts plaintiffs were on notice of

defendant’s jury demand “and cannot reasonably claim inconvenience or prejudice.” The

absence of inconvenience or prejudice to plaintiffs is irrelevant because defendant has not

asserted “some independent ground for granting his late [ payment request.”] Hernandez, 73 Ill.

2d at 96. We agree with plaintiffs that “[n]o excuse has been offered or suggested in the present

case as to why no [jury fee] was [paid] by defendant’s attorney within the prescribed period. Nor

has there been any showing that good cause existed for his failure to [pay the fee] in apt time, a

burden which the defendant bore.” First Bank of Oak Park, 111 Ill. App. 3d at 73.

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¶ 54 Defendant argues that the circumstances demonstrate good cause because he discharged

his attorney who failed to pay the jury fee and that prior counsel’s actions show “mistake,

inadvertence or neglect.” As noted above, defendant’s prior attorney never claimed mistake,

inadvertence, or neglect in failing to pay the jury fee. Defendant’s prior counsel took the position

that defendant’s right to a jury trial was properly preserved or, in effect, the issue of the jury fee

was procedurally forfeited. Moreover, unlike in Stephens, although defendant discharged his

attorney who failed to pay the jury fee, there is no evidence of any divided loyalty on the part of

defendant’s prior attorney nor any facts provided to demonstrate that defendant was

“dissatisfied” with counsel. Compare Stephens, 383 Ill. at 130 (in support of motion for

extension of time appellants’ new attorney filed an affidavit stating that the appellants nor their

original attorney never “intended to waive the right to a trial by jury and that the appellants had

never authorized such a waiver’).

¶ 55 Furthermore, in this case, defendant’s allegation that he asserted his right to a jury in

federal court is unavailing. This case is not like Pechan, where the “mistake” at issue was a

mistake in interpreting section 2-1105 of the Code when a complaint seeks both equitable and

legal relief. Pechan, 251 Ill. App. 3d at 1091. In this case, defendant’s former attorney did not

contend that he misconstrued federal or state law to not require payment of the jury fee after the

case was returned to state court. Defendant’s former counsel properly followed Illinois law by

demanding a jury in the answer but simply failed to pay the required fee. It appears that counsel

developed his analogy to section 27.1(b)(i) as a means for the court to address that failure rather

than a reason for it. Nor does the attempt to pursue this case in federal court make this case like

the refiled action in Domino. The case in the circuit court of Cook County was not “refiled” and

defendant does not argue the trial court ever set the matter for a jury trial. As plaintiffs’ argue,

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the circuit court’s case summary lists the case type as “Breach of Contract—Non Jury.”

Therefore, this is case is also distinguishable from Domino.

¶ 56 We find that the totality of the circumstances before the trial court do not demonstrate

mistake, inadvertence, or neglect that this court has found sufficient to establish good cause.

Defendant has not alleged a mistaken belief about the jury fee nor would such a mistake, by

itself, likely be sufficient to show good cause. See Hudson, 10 Ill. 2d at 90, 94 (finding failure to

demonstrate good cause despite fact that the attorneys averred that they erroneously assumed

prior counsel had demanded a jury and another defense counsel averred that he ‘was under the

impression that the plaintiffs had demanded a jury trial). In Hernandez, our supreme court found

that the “element of unfairness” in that case “constitute[d] good cause for granting [the]

plaintiff’s late jury demand and that, under the facts of [that] case, the trial judge abused his

discretion in denying plaintiff’s demand.” Hernandez, 73 Ill. 2d at 97.

¶ 57 We find no similar “unfairness” to defendant in this case. Compare Hernandez, 73 Ill. 2d

at 97 (noting the defendant’s last minute withdrawal of his jury demand and that the plaintiff’s

efforts to support his late demand “were frustrated by the trial court’s denial of his motion”

resulting in denying the plaintiff both the benefit of an early adjudication and the advantage of a

jury trial), see Greene, 73 Ill. 2d at 108 (“[i]n this instance the allegation that the failure to file

the demand was the result of inadvertence of an assistant corporation counsel does not furnish

the basis for holding that the trial court abused its discretion”).

¶ 58 An abuse of discretion occurs when a court enters an order no reasonable court would

enter. McNulty on Behalf of McNulty, 2022 IL App (1st) 201239, ¶ 42. On this record there has

been no showing of good cause for failing to timely pay the jury fee on any ground. Therefore

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we cannot say that no reasonable judge would enter the same order as the trial court, denying the

late filing. Therefore, we do not find an abuse of discretion.

¶ 59 The trial court’s judgment striking defendant’s jury demand is affirmed.

¶ 60 (2) Counterclaim for Breach of Contract

¶ 61 Next, defendant argues that plaintiffs breached the operating agreement. Defendant

argues that plaintiffs breached the operating agreement, specifically the “Go Along Provision” in

the operating agreement, by exercising its discretion under that provision to “go along” with

defendant’s proposed sale of CVH “only after extracting the $5.3 million Note from Defendant,

in addition to the amount due under the Operating Agreement.” Defendant does not argue that

plaintiffs breached an express term of the contract (although defendant argues that plaintiffs’’

alleged breach of an express term in the contract lends support to his argument), but rather that

plaintiffs’ conduct breached the covenant of good faith and fair dealing implied in all contracts.

Defendant argues that plaintiffs’ conduct was “opportunistic advantage taking” of “changed

economic circumstances” in order to “reap gains in excess of those expected at the time of

contracting.” Defendant argues that under the circumstances, that conduct constitutes a breach of

the covenant of good faith and fair dealing.

¶ 62 As previously noted, an operating agreement is to be enforced according to general

contract principles (In re Marriage of Schlichting, 2014 IL App (2d) 140158, ¶ 63), and the

standard of review following a bench trial is whether the findings of the trial court are against the

manifest weight of the evidence (Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002)). If the trial

court “also construed and ruled on the legal effect of documents” (Eychaner, 202 Ill. 2d at 252),

requiring review of the trial court’s conclusions of law (see Midwest Electronics Gaming, LLC v.

Illinois Gaming Board, 2025 IL App (1st) 241076, ¶ 25), “we apply a de novo standard of

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review” (Eychaner, 202 Ill. 2d at 252). “Whether a breach of contract occurred *** is a question

of fact, and the [trial] court’s finding will not be disturbed on appeal unless it was against the

manifest weight of the evidence. [Citation.] The elements of a breach of contract claim are (1)

the existence of a valid and enforceable contract, (2) performance by the plaintiff, (3) breach of

contract by defendant, and (4) resultant injury to the plaintiff.” Zahdan v. Frontline Business

Enterprise Inc., 2024 IL App (1st) 221351, ¶ 31. “A plaintiff sustains a cause of action for

breach of contract for abuse of discretion based on a violation of the implied covenant of good

faith and fair dealing by alleging that defendant ‘exercised its discretion in a manner contrary to

the reasonable expectations of the parties.’ [Citation.]” McCleary v. Wells Fargo Sec., L.L.C.,

2015 IL App (1st) 141287, ¶ 21.

¶ 63 In support of his argument, defendant relies, in part, on RBS Citizens, National Ass’n v.

RTG-Oak Lawn, LLC, 407 Ill. App. 3d 183, 190 (2011). There, this court explained:

“Claims revolving around a duty of good faith and fair dealing occur

‘when one party is given broad discretion in performing its obligations under the

contract.’ [Citation.] The duty is implied in every contract and requires a party

vested with contractual discretion to exercise it reasonably, and not arbitrarily,

capriciously, or in a manner inconsistent with the reasonable expectations of

parties. [Citation.] Its purpose is to ensure that parties do not take advantage of

each other in a way that could not have been contemplated at the time the contract

was drafted or do anything that will destroy the other party’s right to receive the

benefit of the contract. [Citation.]” RBS Citizens, National Ass’n, 407 Ill. App. 3d

at 190-91 (RBS Citizens).

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¶ 64 In RBS Citizens, the plaintiff sued to enforce a note, and the defendants filed affirmative

defenses and counterclaims based on, inter alia, the duty of good faith and fair dealing. RBS

Citizens, 407 Ill. App. 3d at 185. Specifically, with regard to the duty of good faith and fair

dealing, the defendants argued that the plaintiff exercised discretion to calculate interest “in a

manner that charged *** more interest than [the] Defendants reasonably expected.” (Internal

quotation marks omitted.) Id. at 191. Before reaching that argument this court addressed the

defendants’ waiver of defenses in the parties’ agreements. Id. at 186-87. Notably, for purposes of

this appeal, this court found that “the waiver of defenses in this case was essentially part of the

consideration that [the plaintiff] received in exchange for [the] agreement. To allow [the]

defendants to be the sole party to enjoy the benefit of the *** agreement would be contrary to

Illinois’ public policy favoring the enforcement of contracts. [Citation.]” RBS Citizens, 407 Ill.

App. 3d at 187.

¶ 65 In this case, plaintiffs respond (1) defendant forfeited the argument that plaintiffs

breached the implied covenant of good faith and fair dealing, and (2) defendant and plaintiffs

“negotiated the November 18 Agreement at arms-length and Plaintiffs did not breach the

Operating Agreement in doing so.” Plaintiffs also argue that defendant failed to introduce

evidence of damages and that defendant forfeited the argument that the Go Along Provision

exists for defendant’s benefit. On the issue of breach, plaintiffs argue that pursuant to the Go

Along Provision in the operating agreement plaintiffs could require a fairness opinion that the

sale price was “fair” from an economic point of view before plaintiffs had any obligation to go

along with the transaction; therefore, plaintiffs “did not have a contractual duty to ‘Go Along’

with whatever deal [defendant] suggested.” Plaintiffs argue that the implied covenant of good

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faith and fair dealing “cannot be used to overrule or modify express terms that parties are entitled

to enforce.”

¶ 66 We note that defendant’s opening brief 2 raised the argument that plaintiffs breached an

express term of the operating agreement—specifically that plaintiffs “had an obligation to act

‘for the benefit’ of the Company and Defendant”—as support for defendant’s argument that

plaintiffs breached the implied covenant of good faith and fair dealing. We construe this

argument only so far as it might support defendant’s argument that plaintiffs breached the

operating agreement by breaching the implied covenant of good faith and fair dealing.

¶ 67 As for the argument defendant forfeited the argument that plaintiffs breached the implied

covenant, defendant replies that the argument that plaintiffs breached the implied covenant of

good faith and fair dealing in the Go Along Provision is an argument in support of the issue of

whether plaintiffs breached the operating agreement, and cites the rule that “[w]e require parties

to preserve issues or claims for appeal; we do not require them to limit their arguments here to

the same arguments that were made below.” Brunton v. Kruger, 2015 IL 117663, ¶ 76. Plaintiffs

argued that defendant never “argued below that Plaintiffs breached any implied terms, much less

a breach of an implied covenant of good faith and fair dealing.” Defendant concedes he did not

argue this theory in the trial court by arguing in his reply brief to this court that the alleged

breach of the implied covenant of good faith and fair dealing is “an additional argument *** to

2 “Failure to provide argument in the opening brief results in that argument being forfeited. [Citation.] (‘Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.’).” Shrock v. Meier, 2024 IL App (1st) 230069, ¶ 11.

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establish” breach of contract. (Emphasis omitted.) 3 “A party's ‘[f]ailure to raise an issue before

the trial court forfeits review of that issue on appeal.’ [Citation.]” In re Marriage of Gabriel &

Shamoun, 2020 IL App (1st) 182710, ¶ 72, also see Ontiveroz v. Khokhar, 2023 IL App (3d)

220446, ¶ 22 (“petitioner failed to raise this specific argument in the trial court and has,

therefore, forfeited this argument on appeal”), reversed on other grounds, 2025 IL 130316. We

find defendant forfeited the issue of whether plaintiffs breached the operating agreement by

breaching the covenant of good faith and fair dealing in exercising their discretion pursuant to

the fairness opinion clause. We find that Brunton does not aid defendant.

¶ 68 In Brunton, the issue involved a privilege that prevented the disclosure of information

obtained by an accountant. Brunton, 2015 IL 117663, ¶ 14. The trial court found that the

accountant waived the privilege by disclosing information to a party. Id. ¶ 71. On appeal, it was

argued that the accountant had not waived the privilege because the disclosure “was made to a

party with a common interest, not to an adverse party.” Id. ¶ 73. In response, it was argued that

the accountant “forfeited the claim of common interest by not raising it in the circuit court.” Id. ¶

75. Our supreme court rejected the forfeiture claim, finding that the waiver issue was preserved

in the lower courts. Our supreme court additionally found that, “[e]ven if he did not make a

common interest argument in the circuit court, he disputed the issue of waiver.” Brunton, 2015

IL 117663, ¶ 76. Similarly, this court, in Cigal Concepts, Inc. v. True RCM Sols., Inc., 2020 IL

3 Defendant’s second amended affirmative defenses and counterclaims pleaded a separate counterclaim for breach of the operating agreement based on a breach of the Go Along Provision, and repleaded the dismissed counterclaim alleging breach of the implied covenant of good faith and fair dealing “to preserve [it] for a reviewing court.” Defendant’s repleading of the stricken count preserved the dismissal of the counterclaim for review. Ottawa Sav. Bank v. JDI Loans, Inc., 374 Ill. App. 3d 394, 399 (2007) (“A plaintiff desiring to preserve for appeal the previous dismissal of claims either must stand on the dismissed counts and challenge the ruling at the appellate level or reallege or incorporate the dismissed counts in subsequent complaints.”). However, defendant did not appeal the order dismissing that counterclaim. - 29 - 1-25-0919

App (1st) 191990-U, ¶ 28. found that the plaintiff “did not raise a ‘whole new theory of liability,’

but merely an additional basis to establish the privity required for its breach of contract claim.”

Cigal Concepts, Inc., 2020 IL App (1st) 191990-U, ¶ 28.

¶ 69 In this case, however, the issue of whether plaintiffs breach the implied covenant of good

faith and fair dealing was not preserved in the trial court because it presents a “whole new

theory” of liability. In Slyce Coal Fired Pizza Co. v. Metropolitan Square Plaza, LLC, 2025 IL

App (1st) 221279 (Slyce Pizza), the plaintiff sued for breach of the parties’ lease, among other

theories of recovery, and the defendant counterclaimed for the plaintiff’s alleged separate

breaches of specific terms in the lease. Slyce Pizza Co., 2025 IL App (1st) 221279, ¶¶ 44-45. In a

“posttrial submission,” the plaintiff argued that the defendant breached the lease “by failing to

use its best efforts to jointly coordinate its work with [the plaintiff.]” Id. ¶ 113. On appeal, the

plaintiff argued that it could not be held liable because the defendant materially breached the

lease in several ways, only one being that the defendant failed to coordinate and communicate its

work. Id. ¶ 137. The plaintiff also argued that it should not be liable on the defendant’s

counterclaim for its breach of the contract because the defendant “breached ‘the covenant of

quiet enjoyment’ of the leased premises,” under the “wrongful prevention doctrine” and “under

either the doctrine of commercial impracticability or commercial frustration.” Slyce Pizza, 2025

IL App (1st) 221279, ¶¶ 158-59, 165. This court found that these arguments were not presented

to the trial court and were thus forfeited. Id. (citing Jameson Real Estate, LLC v. Ahmed, 2018 IL

App (1st) 171534, ¶ 75 (“ ‘“It is well settled that issues not raised in the trial court are deemed

forfeited and may not be raised for the first time on appeal.’ ”). This court did not find that the

defendant’s alleged breaches of implied covenants in the parties’ lease were simply “arguments”

in support of the “issue” of the defendant’s alleged breach of the lease. This court treated those

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matters as new theories of recovery that were forfeited on the ground they were not raised in the

trial court.

¶ 70 In Wiersema v. Workman Plumbing, Heating & Cooling, Inc., 87 Ill. App. 3d 535 (1980),

the plaintiff sued the defendant for breach of a written contract to install a septic system.

Wiersema, 87 Ill. App. 3d at 535. The trial court entered judgment “against the plaintiff and in

favor of the defendant *** both on [the] plaintiff’s complaint and on [the] defendant’s

counterclaim.” Id. On appeal, the plaintiff questioned “whether the defendant fulfilled his

obligation under and implied warranty of habitability.” Id. at 536. The court first found that

“[t]he plaintiff did not urge the applicability of the implied warranty of habitability in the trial

court and raises this theory for the first time on appeal.” Id. at 536. The court held, “We agree

with the defendant’s position that [the] plaintiff failed to raise the issue of the existence of an

implied warranty of habitability in the trial court and accordingly should be prohibited from

changing and/or adding to his theory of the case on review.” Wiersema, 87 Ill. App. 3d at 536.

See Monday v. Ace Home Improvement Services, Inc., 248 Ill. App. 3d 481, 485 (1993) (“all of

[the] plaintiff’s contentions in support of rescission [of the contract] pertained to [a] failure to

begin work in keeping with the second paragraph of clause 10. It is only on appeal that she

argues her entitlement to rescind based on paragraph one. *** As [the] plaintiff did not properly

advance this theory at trial, it is waived for purposes of appeal.”).

¶ 71 Although the Wiersema court found that the applicability of an implied warranty of

habitability could not be argued for the first time on appeal, the court engaged in “a limited

discussion of its applicability” (id.) and concluded that the implied warranty should not apply

because the defendant was not the builder-vendor of the home (id. at 537). Nonetheless, the

court’s latter holding is inapposite to its conclusion that the plaintiff forfeited its “theory” of

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breach of contract based on the implied warranty forfeited because the plaintiff raised it for the

first time on appeal. The court’s latter finding is dicta. Nationwide Advantage Mortg. Co. v.

Ortiz, 2012 IL App (1st) 112755, ¶ 30 (“ ‘Obiter dicta’” is defined as comments in a judicial

opinion that are unnecessary to the disposition of the case.”), Barnai v. Wal-Mart Stores, Inc.,

2021 IL App (1st) 191306, ¶ 49 (“judicial dicta involve an issue briefed and argued by the

parties and thus ‘have the force of a determination by a reviewing court and should receive

dispositive weight in an inferior court.’ ”). (Nothing in Wiersema suggests whether the defendant

briefed the issue or only argued that it was forfeited.).

¶ 72 Based on the foregoing authorities we find that the breach of the implied covenant of

good faith and fair dealing is a new theory of liability; and we find that defendant forfeited his

claim that plaintiffs breached the implied covenant of good faith and fair dealing by failing to

raise it below.

¶ 73 Forfeiture aside, we find RBS Citizens instructive. In RBS Citizens, this court found that

as to the defendants’ “reasonable expectations” and the plaintiff’s “exercise of discretion,” the

court is “required to consult the Note itself.” Id. at 191. This court concluded that “[b]ecause the

Note’s interest provision is unambiguous, we cannot logically find that [the] defendants’

reasonable expectations were violated given that the interest computations that occurred could

have been contemplated during the drafting of the contract.” Id. This court also found that

because the Note unambiguously provided for the method of computing interest, it “cannot find

that [the plaintiff] exercised any degree of broad discretion as required for a claim of a breach of

the duty of good faith and fair dealing,” RBS Citizens, 407 Ill. App. 3d at 191.

¶ 74 In this case, no party has argued that the fairness opinion clause in the operating

agreement is ambiguous. Further, the parties could contract for plaintiffs not to enforce the

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fairness opinion clause. Traditional contract principles allow parties to modify their contract, if

there is consideration to support the modification. Doyle v. Holy Cross Hospital, 289 Ill. App. 3d

75, 79 (1997) (citing De Fontaine v. Passalino, 222 Ill. App. 3d 1018, 1030 (“It was defendant

who suggested the *** modification.”)), see Martin v. Federal Life Insurance Co., 109 Ill. App.

3d 596, 601 (1982), abrogation on other grounds recognized by Church Yard Commons Limited

Partnership v. Podmajersky, Inc., 2017 IL App (1st) 161152, ¶ 32 (“The essential element of

consideration is a bargained-for exchange of promises or performances, and may consist of *** a

forbearance, or the *** modification *** of a legal relation. (Restatement (Second) of Contracts

§ 71 (1981).)

¶ 75 We cannot logically find that defendant’s reasonable expectation was violated given that

plaintiffs’ exercise of their right to a fairness opinion in the event of a proposed sale of the

company, and the parties’ subsequent negotiation of an agreement for plaintiffs to forbear

enforcing that right, could have been contemplated during the drafting of the operating

agreement. See RBS Citizens, 407 Ill. App. 3d at 191. Nor do we find that plaintiffs exercised

“broad discretion” in this case. Compare McCleary v. Wells Fargo Securities, L.L.C., 2015 IL

App (1st) 141287, ¶ 25 (the “defendant had unfettered discretion to determine a bonus amount”).

The only discretion involved was whether plaintiffs would or they would not exercise their right;

plaintiffs did not exercise “unfettered” discretion to determine when or how to exercise their

right to a fairness opinion. Plaintiffs’ decision was necessarily within defendant’s reasonable

expectation when the agreement was entered.

¶ 76 Furthermore, the fairness opinion was essentially part of the consideration plaintiffs

received for agreeing to the Go Along Provision. To allow defendant to be the sole beneficiary of

the Go Along Provision would be contrary to Illinois’ public policy favoring the enforcement of

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contracts. [Citation.]” RBS Citizens, 407 Ill. App. 3d at 187, see Northern Trust Co. v. VIII South

Michigan Associates, 276 Ill. App. 3d 355, 367 (1995) (“Parties to a contract, however, are

entitled to enforce the terms of the contract to the letter and an implied covenant of good faith

cannot overrule or modify the express terms of a contract.”).

¶ 77 Defendant replies plaintiffs never actually exercised their discretionary right to a fairness

opinion but instead used the threat of such an exercise to take opportunistic advantage of the

circumstances to extort $5 million more than they were due under the operating agreement. The

evidence at trial, wherein the trial court was “in a position superior to a court of review to

observe the conduct of the witnesses while testifying, to determine their credibility , and to

weigh the evidence and determine the preponderance thereof” (Greene, 73 Ill. 2d at 110), belies

that contention. Defendant asserts plaintiffs engaged in opportunistic advantage taking simply

because they sought more money than defendant offered. Defendant’s argument fails to

adequately consider the context of the negotiations. There is no evidence plaintiffs did not have a

relevant, rational basis for their negotiations or that negotiations were unrelated to the fairness of

the sale. There is evidence to the contrary.

¶ 78 At trial, Boufis provided testimony regarding his concerns with defendant’s valuation and

discussions with defendant regarding the sale. Boufis testified that the November 12, 2014 letter

from defendant stated that plaintiffs would waive any option it had to obtain a fairness opinion

“to vet or test whether what [defendant was] proposing in the November 12th letter was fair to

[plaintiffs.]” Boufis testified he had conversations with defendant about the terms of the

November 12th letter. Boufis testified that he communicated plaintiffs’ position about the terms

of the November 12 letter to defendant. Boufis summarized “a series of conversations.” In sum,

Boufis testified that in 2010, defendant was considering a sale of the company and at that time

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Boufis constructed an economic analysis for all of the members of CVH; and “[w]hat we looked

at was the 17 and a half million that was initially sort of come to.” Boufis continued, “Fast

forward, that is a few years later, the operating agreement allowed for an accrued interest rate of,

I believe, 10 percent on the preferred note. So there was a misunderstanding because [defendant]

*** didn’t understand the inner working of the financial calculations.” Boufis went back to

defendant with a proposal as to what plaintiffs would accept “to waive the fairness opinion, grant

the releases, and give consent to the CV Holdings deal.” That proposal resulted in the November

18, 2014 letter as to what Boufis “proposed to go back to [defendant] with in exchange for those

pieces of consideration.”

¶ 79 The trial court could accept and credit Boufis’s testimony. Nelson v. Quarles & Brady,

LLP, 2018 IL App (1st) 171653, ¶ 155 (“the circuit court plainly accepted [witness’s] testimony

on this issue. Such a decision was within the discretion of the circuit court ***.”). Based on the

testimony, the trial court could find that the note resulted from plaintiffs’ ability and desire to

determine whether defendant’s proposal was “fair” to plaintiffs from a financial standpoint,

Boufis’s determination of what would be “fair” to plaintiffs, and defendant’s agreement to

additional consideration in exchange for waiving plaintiffs’ option to obtain an independent

fairness opinion. Defendant argues that this court should not analyze the trial evidence because

the trial court allegedly “made no effort to justify its decision.” “Whether we might have reached

the same conclusion is not the test of whether the circuit court's factual finding is against the

manifest weight of the evidence, the appropriate test is whether there is any evidence in the

record to support its finding.” Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 12.

In this case, there is evidence to support the trial court’s judgment in favor of plaintiffs.

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¶ 80 We also find that the Go Along Provision and the fairness opinion clause are

unambiguous. “A contract term is ambiguous if it can reasonably be interpreted in more than one

way due to the indefiniteness of the language or due to it having a double or multiple meaning.

[Citation.] However, a contract is not ambiguous if the court can ascertain its meaning from the

general contract language. [Citation.]” West Bend Mutual Insurance Co. v. Athens Construction

Co., Inc., 2015 IL App (1st) 140006, ¶ 27. There is no ambiguity created by the fact that (a) the

Go Along Provision was included for the benefit for the Class A members, but (b) as a result of

the fair opinion clause the Class A members may have to wait or lose a sale. There is no

“conflicting language” in the operating agreement. Compare Reserve at Woodstock, LLC v. City

of Woodstock, 2011 IL App (2d) 100676, ¶ 45. The meaning of the provision is clear: the

provision gave plaintiffs the discretion to obtain a fairness opinion or not. That in some

circumstances the exercise of that discretion might be inconvenient to the Class A member does

not make the provision susceptible to more than one meaning or indefinite in its expression. In

this case plaintiffs merely negotiated with the Class A member not to exercise their contractual

right. We cannot find the contract ambiguous for creating a discretionary right because that right

exists for the benefit of one party. To do so in this case would nullify the provision altogether.

ESP Global, LLC v. Northwest Community Hospital, 2020 IL App (1st) 182023, ¶ 21 (“we will

not interpret a contract in a manner that would nullify or render provisions of it meaningless”).

¶ 81 Plaintiffs did not act in a way that could not have been contemplated at the time the

contract was drafted, destroy defendant’s right to receive the benefit of the contract, nor act

inconsistently with defendant’s rights under the operating agreement. Compare Reserve at

Woodstock, LLC, 2011 IL App (2d) 100676, ¶¶ 42, 44 (the defendant violated the duty of good

faith and fair dealing; city would not be allowed to “sit back and wait, to [the

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plaintiff’s]detriment, and then surprise [the plaintiff] by playing its ‘trump card’ in the eleventh

hour [in defiance of] reasonable expectations.”), and McCleary, 2015 IL App (1st) 141287, ¶¶

22, 26 (the plaintiff adequately pleaded cause of action for breach of covenant of good faith and

fair dealing where the plaintiff accused the defendant of “arbitrarily changing the length of

service during the plan year to six months, *** [the plaintiff] did not reasonably contemplate this

when he entered the Plan[, and] [t]his was a retroactive change that was adverse to [the

plaintiff’s reasonable expectation in violation of the Plan’s [change] provision.”).

¶ 82 Although defendant forfeited the issue, we find that plaintiffs did not breach the operating

agreement by breaching the implied covenant of good faith and fair dealing.

¶ 83 (3) Affirmative Defenses

¶ 84 Defendant argues the trial court erred in striking his affirmative defenses of waiver and

estoppel. The trial court granted plaintiffs’ motion to dismiss defendant’s affirmative defenses

pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)).

“The facts establishing an affirmative defense must be pleaded with the

same degree of specificity required by a plaintiff to establish a cause of action.

([Citation.]) A motion to dismiss an affirmative defense pursuant to section 2–

615, as with all section 2-615 motions, admits all well-pleaded facts constituting

the defense, and attacks only the legal sufficiency of those facts. ([Citation.])

Where the well-pleaded facts of an affirmative defense raise the possibility that

the party asserting them will prevail, the defense should not be stricken.”

International Insurance Co. v. Sargent & Lundy, 242 Ill. App. 3d 614, 630-31

(1993).

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“We review the dismissal of an affirmative defense de novo.” U.S. Bank, N.A. v. Kosterman,

2015 IL App (1st) 133627, ¶ 7.

¶ 85 A. Waiver

¶ 86 “Waiver” is an affirmative defense to an action to enforce a contract. R & B Kapital

Development, LLC v. N. Shore Community Bank & Trust Co., 358 Ill. App. 3d 912, 921 (2005)

(“Waiver and equitable estoppel are affirmative defenses and under Illinois law must be

affirmatively pled or they are waived.”).

“Waiver is the voluntary and intentional relinquishment of a known right

by conduct inconsistent with an intent to enforce that right. [Citation.] Waiver can

arise either expressly or by conduct inconsistent with an intent to enforce that

right. [Citation.] *** Parties to a contract have the power to waive provisions

placed in the contract for their benefit, and such a waiver may be established by

conduct indicating that strict compliance with the contractual provisions will not

be required. ]Citation.] In order to determine the applicability of waiver, one

must focus on the conduct of the nonbreaching party. [Citation.]” In re Nitz, 317

Ill. App. 3d 119, 130 (2000).

¶ 87 Defendant argues that he pleaded sufficient facts to state the defense of waiver in that he

pleaded facts from which a reasonable fact-finder could find that plaintiffs engaged in conduct

that was (a) inconsistent with an intent to enforce the note and/or (b) indicated that plaintiffs

would not require compliance with the note. Defendant argues that he pleaded “more than mere

delay” in enforcing the note and, on appeal, defendant relies on the allegation that “the parties

communicated,” defendant explained his position on the note, and plaintiffs wrote off the note

and received a tax benefit. Defendant argues that taking his allegations as true a fact-finder could

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conclude that plaintiffs voluntarily and intentionally relinquished their rights “by conduct

inconsistent with an intent to enforce [their] rights.”

¶ 88 Plaintiffs initially respond that defendant stated his affirmative defenses “on information

and belief” and that such allegations do not allege “facts” and “cannot support defenses.” Thus,

plaintiffs argue, defendant pleaded “no facts” to support the affirmative defenses of waiver or

estoppel. On the merits of the waiver defense, plaintiffs argue that defendant’s allegations do not

show an “intent to renunciate or relinquish” defendant’s liability on the note. Rather, plaintiffs

argue, demanding payment and filing suit within the applicable statute of limitations is consistent

with an intent to enforce the note. Plaintiffs argue the alleged write off of the note is not properly

pleaded (as it is made “on information and belief”) and, regardless, is inapposite to the question

of waiver.

¶ 89 Defendant replies that even striking the allegations in the affirmative defense made on

information and belief, the allegations are sufficient to state a claim of waiver. Defendant argues

that the issue on a motion to strike an affirmative defense is whether the allegations, taken as true

with all reasonable inferences drawn in favor of the pleader, is whether the allegations are

sufficient to state the defense. Defendant argues that under this standard plaintiffs assertion they

demanded payment cannot be considered as it does not appear on the face of the pleading, and

the court cannot draw the inference in favor of plaintiffs that the alleged conduct “may permit an

inference of an intention other than to waive a right.” Instead, defendant argues, the proper

inference from the facts alleged is the one in favor of defendant: that plaintiffs relinquished their

known rights by conduct inconsistent with an intent to enforce those rights.

¶ 90 The material allegations in defendant’s affirmative defense of waiver, absent the sole

allegation made on information and belief, are that plaintiffs “knowingly waived any rights they

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might have had to recover on the Note by, among other actions, declining for almost eight years

to exercise their purported contractual rights under the Note to demand payment,” and that

“[w]hen Plaintiffs’ previous counsel contacted [defendant] regarding the Note in or about June

2019, after [defendant’s counsel] explained the factual circumstances of the Note’s execution in

the context of the [sale] and [defendant’s consistent position that it was unenforceable, Plaintiffs’

previous counsel refrained from pursuing the matter further.”

¶ 91 Defendant purports to state a defense of implied waiver. “A party asserting implied

waiver must show a ‘clear, unequivocal, and decisive act of the party who is alleged to have

committed waiver.’ ” Norman v. U.S. Bank National Ass’n as Trustee for Structured Asset

Mortgage Investments II, Inc., 2020 IL App (1st) 190765, ¶ 24. “An implied waiver arises when

conduct of the person against whom waiver is asserted is inconsistent with any intention other

than to waive it.” State Farm Mutual Automobile Insurance Co. v. Easterling, 2014 IL App (1st)

133225, ¶ 23. “Although waiver may be implied, it nonetheless requires that an intention to

waive be clearly inferred from the circumstances.” Lavelle v. Dominick’s Finer Foods, Inc. of

Illinois, 227 Ill. App. 3d 764, 771 (1992).

¶ 92 We find that the allegations in defendant’s affirmative defense are insufficient as a matter

of law to state the defense of waiver. Defendant has failed to allege “a clear, unequivocal, and

decisive act of [plaintiffs] manifesting an intention to waive its rights” or “conduct indicating

that strict compliance with the contractual provisions will not be required.” In re Nitz, 317 Ill.

App. 3d 119, 130 (2000). The conduct of plaintiffs alleged in the affirmative defense is not

inconsistent with “any intention other than to waive” their rights under the note. Easterling, 2014

IL App (1st) 133225, ¶ 23. We find that the alleged conduct is not “inconsistent with any

intention other than to waive it.” State Farm Mutual Automobile Insurance Co., 2014 IL App

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(1st) 133225, ¶ 23. Taking defendant’s allegations as true and drawing all reasonable inferences

in defendant’s favor, plaintiffs’ conduct is consistent with an intent not to waive their rights

under the note. Therefore, we find that defendant has failed to plead a waiver of plaintiffs’ rights

under the note. Id. We do not believe that waiver can “be clearly inferred from the

circumstances.” Lavelle, 227 Ill. app. 3d at 771.

¶ 93 The trial court did not err in granting plaintiffs’ motion to dismiss defendant’s affirmative

defense of waiver.

¶ 94 B. Estoppel

¶ 95 Defendant also argues that he adequately pleaded equitable estoppel.

“Equitable estoppel may be defined as the effect of the person’s conduct

whereby the person is barred from asserting rights that might otherwise have

existed against the other party who, in good faith, relied upon such conduct and

has been thereby led to change his or her position for the worse. [Citations.]

To establish equitable estoppel, the party claiming estoppel must

demonstrate that: (1) the other person misrepresented or concealed material facts;

(2) the other person knew at the time he or she made the representations that they

were untrue; (3) the party claiming estoppel did not know that the representations

were untrue when they were made and when they were acted upon; (4) the other

person intended or reasonably expected that the party claiming estoppel would act

upon the representations; (5) the party claiming estoppel reasonably relied upon

the representations in good faith to his or her detriment; and (6) the party claiming

estoppel would be prejudiced by his or her reliance on the representations if the

other person is permitted to deny the truth thereof. [Citation.]

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[T]he representation need not be fraudulent in the strict legal sense or done

with an intent to mislead or deceive. [Citation] Although fraud is an essential

element, it is sufficient that a fraudulent or unjust effect results from allowing

another person to raise a claim inconsistent with his or her former declarations.

[Citation.]” Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 314 (2001).

¶ 96 Defendant argues that the allegations permit the reasonable inference that plaintiffs

misrepresented that they would not enforce the note or concealed that they would; defendant

reasonably believed plaintiffs would not enforce the note; and based on that reliance defendant

changed his position to his detriment by ordering his financial and business affairs assuming the

absence of liability on the note. Defendant argues that the affirmative defense alleges that the

representation that plaintiffs would not seek to enforce the note was made in June 2019.

Specifically, defendant points to the following allegation in the estoppel affirmative defense:

“When Plaintiffs’ previous counsel contacted [defendant] regarding the

Note in or about June 2019, after [defendant’s counsel] explained the factual

circumstances of the Note’s execution in the context of the [sale] and

[defendant’s] consistent position that it was unenforceable, Plaintiffs’ previous

counsel refrained from pursuing the matter further.”

¶ 97 Plaintiffs respond defendant failed to allege facts supporting estoppel because defendant

“never alleged facts showing statements or actions by Plaintiffs that could have reasonably led

him to believe that he was excused from paying” the note.

¶ 98 “Because Illinois is a fact pleading jurisdiction, we must disregard conclusions of fact or

law that are unsupported by specific factual allegations. [Citation.] Conclusions of fact or law are

insufficient *** regardless of whether they generally inform the defendant of the nature of the

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[defense] against him.” Northbrook Bank & Trust Co., 2015 IL App (1st) 133426, ¶ 23. “[T]he

principle that all possible inferences and interpretations of the facts are to be drawn in favor of

the [non-movant] is not triggered by conclusory and incomplete allegations. [Citation.]

Northbrook Bank & Trust Co., 2015 IL App (1st) 133426, ¶ 26. We may “disregard ***

conclusions of fact or law not supported by allegations of specific fact.” Northbrook Bank &

Trust Co., 2015 IL App (1st) 133426, ¶ 26.

¶ 99 Defendant argues that plaintiffs’ conduct was a “misrepresentation” or a “concealment”

of their intent to enforce the note on which defendant reasonably relied to change his position

based on the belief plaintiffs would not enforce the note. Defendant argues that he sufficiently

pleaded that an “unjust effect” would result from allowing plaintiffs to raise this claim on the

note, which he argues is “inconsistent with [their] former declarations.” Geddes, 196 Ill. 2d at

314. The question is whether, based on the allegations in the affirmative defense, a fact finder

could find that it was reasonable for defendant to rely on plaintiffs’ inaction, including after a

conversation between the parties, to act as if defendant would have no liability on the note.

¶ 100 We find that defendant has not alleged specific facts as to how this conduct allegedly

misled defendant to believe plaintiffs would not pursue the note. At the outset we note that

defendant does not rely solely on plaintiffs’ delay in enforcing the note to argue that plaintiffs are

estopped from enforcing the note. Wilson v. Illinois Benedictine College, 112 Ill. App. 3d 932,

939 (1983) (“Although an intent to mislead is not required, the reliance must be reasonable.

([Citation.]) The mere passage of time without action by one party does not by itself bring this

doctrine into effect.”). Based on defendant’s arguments, defendant relies upon plaintiffs’

knowledge of the note, delay in enforcement, the conversation between the parties, and

plaintiffs’ alleged “write off” of the note. Although plaintiffs argue that any alleged write off

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would not discharge defendant’s debt, we agree with defendant that he does not assert a defense

of discharge. Rather, in the context of defendant’s estoppel argument, defendant offers the

alleged write off as an alleged misrepresentation or concealment related to plaintiffs’ intentions

regarding enforcing the note. Nonetheless, we find that the facts pled in the affirmative defense

fail to raise the possibility that defendant will prevail.

¶ 101 In Geddes, on which defendant relies, the court found that the plaintiffs were equitably

estopped from filing a complaint against a golf course adjacent to their property based on “errant

golf balls hit onto their property.” Geddes, 196 Ill. 2d at 303-04. The defendants claimed

equitable estoppel based on the fact the plaintiffs agreed to the layout of the golf course adjacent

to their property “and made other requests that [were] granted,” and the golf course was

redesigned accordingly at great expense to defendants. Id., at 312. The Geddes court found that

the plaintiffs, “by their conduct, induced or encouraged [the] defendants to design and build the”

portion of the course adjacent to the plaintiffs’ property, and for the plaintiffs to assert their

claims now would be inequitable. Id.

¶ 102 This case is distinguishable. In this case, unlike in Geddes, defendant does not allege that

he and plaintiffs negotiated and agreed that plaintiffs would not enforce the note and defendant

proceeded to “order his finances” accordingly, but now plaintiffs are seeking to enforce the note.

Geddes, 196 Ill. 2d at 315 (“The record clearly and unequivocally shows that [the] plaintiffs

knowingly agreed to the placement of the fairway.” (Emphasis in original.)), id. at 317 (“The

creation of the golf course, specifically the [adjacent hole,] required considerable negotiation

with *** [the] plaintiffs.”). There is no allegation of a written agreement between defendant and

plaintiffs regarding enforcement of the note. Compare id. (the “plaintiffs signed [an] agreement,

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which refers throughout to a golf course, and once specifically to ‘the golf course fairway that

borders the [plaintiffs’] western property line.’ ”).

¶ 103 We find that the allegations in the equitable estoppel affirmative defense are inadequate

to plead that defendant “reasonably relied upon the representations in good faith to his ***

detriment.” “In determining whether a claim for estoppel can be established, the reasonableness

of the ***reliance must be examined.” Young v. Allstate Insurance Co., 351 Ill. App. 3d 151,

163-64 (2004). “A party can invoke the doctrine of equitable estoppel only when she reasonably

relies on another party’s conduct or representations ***.” In re Marriage of Mancine and

Gansner, 2014 IL App (1st) 111138-B, ¶ 53. “To prevail on an estoppel theory, ‘the plaintiff

must have “had no knowledge or means of knowing the true facts.” ’ [Citations.]” Young, 351 Ill.

App. 3d at 164. “The test is whether, considering all the circumstances of the case, conscience

and honest dealing require that the [party] be estopped.” Franke v. Geyer, 209 Ill. App. 3d 1009,

1013 (1991).

¶ 104 In effect, defendant alleged conduct from which he claims he inferred plaintiffs would

not pursue the note. Defendant’s allegations are insufficient to state equitable estoppel as a

defense because defendant failed to allege specific facts to support that inference. Defendant

makes this allegation as a conclusion that is not supported by specific facts related to defendant’s

alleged reliance, which is insufficient to adequately plead the defense. Northbrook Bank & Trust

Co., 2015 IL App (1st) 133426, ¶ 26. Therefore, defendant’s reliance eon Geddes for the

proposition that it is enough that an unjust effect would result from allowing plaintiffs to raise a

claim that is inconsistent with their former declarations is misplaced. Defendant has not alleged

sufficient specific facts that plaintiffs’ pursuit of the note is inconsistent with their former

declarations.

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¶ 105 While we acknowledge and agree that defendant never raised discharge as a defense, we

recognize that defendant does not allege that plaintiffs destroyed or returned the note. Therefore,

defendant knew the truth: that plaintiffs could still enforce the note. We believe these

observations weigh against the reasonableness of defendant’s alleged reliance. See

Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 520-21 (2009)

(“Because reliance on a representation must be reasonable, an express reservation of rights

weighs heavily against a finding of estoppel.”), McCue v. Colantoni, 80 Ill. App. 3d 731, 737

(1980) (” A party claiming the benefit of an estoppel must prove that he reasonably relied upon

representations and conduct of the party against whom the estoppel is alleged ([citation]) and did

not close his eyes to the obvious ([citation])), Wilson, 112 Ill. App. 3d 932, 939 (1983) (“to claim

reliance on the conduct of another, which could be silence or statements, the party must have

acted without knowledge of the truth of the matter relied upon”).

¶ 106 Furthermore, defendant failed to allege any facts to demonstrate why or how plaintiffs

intended or reasonably expected defendant to order his finances based on the absence of the note

obligation. Defendant only argues that “[f]rom [plaintiffs’] lengthy delays, a fact-finder can

conclude that plaintiffs reasonably expected that Defendant would act upon the representations

that Plaintiffs would not seek to enforce the Note.” Defendant’s allegations is a mere conclusion

unsupported by specific facts. This situation is unlike the situation in Geddes. Geddes, 196 Ill. 2d

at 316. Whereas the contract in Geddes was a specific fact evincing that the person to be

estopped (the plaintiffs in that case) expected that the person claiming estoppel (the golf course

builder) would act in reliance on the non-movant’s conduct (id.); in this case, defendant has not

pled specific facts from which to reasonably infer that plaintiffs expected that defendant would

act in reliance on their conduct.

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¶ 107 We find that the trial court properly granted plaintiffs’ motion to dismiss defendant’s

affirmative defense of equitable estoppel.

¶ 108 (4) Unconscionability

¶ 109 Finally, defendant argues that the note is procedurally and substantively unconscionable

and, therefore, unenforceable; therefore, the trial court erred in its judgment on defendant’s

affirmative defense of unconscionability. “Generally, a court of review will not disturb a trial

court’s finding unless its judgment is against the manifest weight of the evidence;” including its

finding that the defendant “failed to establish [an] affirmative defense.” First National Bank of

Elgin v. St. Charles National Bank, 152 Ill. App. 3d 923, 934 (1987), Hongsermeier v. Cooper B-

Line, Inc., 2026 IL App (5th) 240790-U, ¶ 64 (“the circuit court’s determination that [the

defendant] did not carry the burden of proving its affirmative defense was not against the

manifest weight of the evidence.”). “Unconscionability can be either ‘procedural’ or

‘substantive’ or a combination of both.” (Internal quotation marks omitted.) Fuqua v. SVOX AG,

2014 IL App (1st) 131429, ¶ 36. “An unconscionable bargain is one which no person in his

senses would make and which no fair and honest person would accept. ([Citation]) The term

unconscionable encompasses the absence of meaningful choice by one of the parties as well as

contract terms which are unreasonably favorable to the other party.” Hartford Fire Insurance Co.

v. Architectural Management, Inc., 194 Ill. App. 3d 110, 116 (1990). “Although the fact that one

party had limited bargaining power may affect a court’s interpretation of contractual provisions,

the relative bargaining power of parties to a contract is only one factor to be considered in

determining whether the enforcement of a [contract] would be unconscionable.” Architectural

Management, Inc., 194 Ill. App. 3d at 115-16.

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“The fact that an agreement ‘merely favors one party over another does

not make it unconscionable.’ [Citation.] ‘To rise to the level of being

unconscionable, the [agreement] must be improvident, totally one-sided or

oppressive.’ [Citation.] ***

To determine whether an agreement is unconscionable, we must consider

two factors: (1) the conditions under which the agreement was made; and (2) the

economic circumstances of the parties that result from the agreement. [Citation.]”

In re Marriage of Bielawski, 328 Ill. App. 3d 243, 251 (2002).

¶ 110 “Procedural unconscionability results from some impropriety during the process of

forming the contract that deprives a party of a meaningful choice.” Dick-Ipsen v. Humphrey,

Farrington & McClain, P.C., 2024 IL App (1st) 241043, ¶ 27. Procedural unconscionability

“also takes into account the disparity of bargaining power between the [parties.] [Citation.]

When deciding whether a contract or a provision thereof is procedurally unconscionable, courts

may consider ‘all the circumstances surrounding the transaction including the manner in which

the contract was entered into [and], whether each party had a reasonable opportunity to

understand the terms of the contract ***.’ [Citation.]” Id.

¶ 111 Defendant argues that the note is procedurally unconscionable because defendant had no

“meaningful choice” due to the fact plaintiffs had “domineering bargaining power” while

defendant “had none” as a result of the impending failure of CVH, the urgency to complete the

sale, and the necessity of plaintiffs’ consent to do so. Plaintiffs’ respond, in pertinent part to this

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appeal 4, that defendant has failed to “point to testimony or documents that support the

conclusion that [defendant] had no choice but to sign the Note.” Plaintiffs argue that defendant

was represented by counsel and, regarding surprise, that the record reflects that defendant

understood the note and negotiated a change in its terms. Plaintiffs argue that defendant’s

concerns about the sale are not evidence of unconscionability, and the fact one party has

bargaining power does not make a bargained-for agreement unconscionable. Finally, plaintiffs

argue that in negotiating plaintiffs’ consents and waivers to facilitate the sale, plaintiffs offered

defendant alternatives that did not include defendant’s note, but defendant chose to offer the

note. Defendant replies that his duties to the company and the need to complete the sale severely

undercut his bargaining power; therefore, the general rule that a lack of bargaining power does

not establish procedural unconscionability does not apply. We find that the trial court’s implicit

finding that the agreement between the parties is not “one which no reasonable person would

make, and no honest person would accept” is not against the manifest weight of the evidence.

¶ 112 Defendant cites no authority in support of the proposition that negotiating on behalf of

another to whom a fiduciary duty is owed undercuts that party’s bargaining power. Defendant

has not pointed to evidence to demonstrate that the bargaining power between the parties in this

case was “vastly unequal.” Fuqua, 2014 IL App (1st) 131429, ¶ 38. Rather, defendant “was an

active participant in the negotiations and the terms of the [note.”] See id. ¶ 38. We find that

defendant’s motivation to complete the sale is not evidence of procedural unconscionability

4 In deference to a potential de novo standard of review of defendant’s affirmative defense of unconscionability, plaintiffs responded to arguments defendant plead in support of the affirmative defense but which defendant has not pursued in this appeal. For our purposes, points not argued in the appellant’s opening brief are forfeited and do not merit review.” In re Estate of Sippel, 2025 IL App (3d) 230227, ¶ 65 n2.

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where defendant negotiated and agreed to terms that are not greatly imbalanced in their mutual

obligations. See In re Marriage of Prill, 2021 IL App (1st) 200516, ¶¶ 19-23 (noting inter alia

that the appellant signed the postnuptial agreement “because she wanted to complete the

agreement so she could move out of the house and end the marriage”). “Thus, procedural

unconscionability is not a factor under these facts.” Fuqua, 2014 IL App (1st) 131429, ¶ 38.

¶ 113 Furthermore, a finding that defendant was not unfairly surprised is not against the

manifest weight of the evidence. In Zuniga, the court wrote that “the mere fact that both parties

are businessmen [does not] justify the utilization of unfair surprise to the detriment of one of the

parties ***. [Citation.] *** Rather, freedom to contract is enhanced by a requirement that both

parties be aware of the burdens they are assuming.” Zuniga, 2021 IL App (1st) 201264, ¶ 14.

Defendant has pointed to no evidence he was unaware of any terms contained in the note. On the

contrary, defendant negotiated and agreed to the terms of the note. We cannot find that “unfair

surprise” is clearly evident; therefore, the trial court’s judgment on this point is not against the

manifest weight of the evidence. Best v. Best, 223 Ill. 2d 342, 350 (2006) (“A finding is against

the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the

finding itself is unreasonable, arbitrary, or not based on the evidence presented.”).

¶ 114 Next, defendant argues that the note is substantively unconscionable because there is “

‘an overall imbalance in the obligations and rights imposed by” the note. On the question of

substantive unconscionability, plaintiffs note that in exchange for their receipt of the note,

defendant received their consent to the sale, plaintiffs’ agreement to waive their right to a

fairness opinion, a release of any claims against defendant related to the sale, and the

cancellation of CVH’s interest in SiO2, and defendant received valuable assets of CVH in the

pre-sale restructuring of the company. Plaintiffs argue that “there is simply no unconscionability

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in the trade-offs [defendant] offered, contracted to make, and received,” therefore the trial court’s

judgment should be affirmed. Defendant merely replied that the “evidence established an overall

imbalance in the parties’ rights and duties ***.” We agree with plaintiffs.

¶ 115 In Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 28 (2006), our supreme court adopted

the “definition of substantive unconscionability” stated by the Arizona Supreme Court. Kinkel,

223 Ill. 2d at 28.

“ ‘Substantive unconscionability concerns the actual terms of the contract

and examines the relative fairness of the obligations assumed. [Citation.]

Indicative of substantive unconscionability are contract terms so one-sided as to

oppress or unfairly surprise an innocent party, an overall imbalance in the

obligations and rights imposed by the bargain, and significant cost-price

disparity.’ [Citation.]” Id.

¶ 116 A finding that the obligations under the note are not “so one-sided as to oppress or

unfairly surprise” defendant is not against the manifest weight of the evidence. There is ample

evidence that both parties benefitted from the execution of the note and that there is not an

“overall imbalance in the obligations and rights imposed by the bargain.” As noted by plaintiffs,

defendant received the benefit of completing the transaction as well as other financial gains, and

plaintiffs received the compensation they thought was fair for their interest in the company and

other concessions to defendant. The substantive unconscionability of the note is not “clearly

evident” from the evidence and the trial court’s judgment is reasonable. Therefore, the trial

court’s judgment is affirmed. Best, 223 Ill. 2d at 350.

¶ 117 CONCLUSION

¶ 118 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

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¶ 119 Affirmed.

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