Thompson v. Jones

2023 IL App (1st) 221183-U

• Court: Appellate Court of Illinois
• Decided: September 26, 2023
• Docket: 1-22-1183
• Status: Unpublished

Opinion

2023 IL App (1st) 221183-U No. 1-22-1183 Second Division September 26, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

) Appeal from the THEODORE THOMPSON, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 21 MI 117212 ) TONNETTE JONES, ) ) Honorable Defendant-Appellant. ) James T. Derico, Jr. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Howse and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: Trial court’s judgment in favor of the plaintiff for breach of contract is affirmed where the record on appeal does not include a transcript of the trial court proceedings and the court’s denial of defendant’s motion for reconsideration of the judgment was not an abuse of discretion.

¶2 Plaintiff, Theodore Thompson, filed a complaint for small claims in the circuit court of

Cook County against defendant, Tonnette Jones, alleging breach of a construction or home

improvement contract. Following a bench trial, the trial court entered judgment for plaintiff. No. 1-22-1183

Defendant subsequently filed a motion to reconsider the judgment, which was denied by the court.

On appeal, defendant contends that the court erred in denying her motion to reconsider, and that

the trial court’s ultimate judgment for breach of contract against her was in error. For the reasons

that follow, we affirm.

¶3 I. BACKGROUND

¶4 The factual background is derived from the limited record on appeal, which includes the

common law record and a transcript of the brief proceedings on defendant’s motion to reconsider.

¶5 On June 12, 2021, plaintiff and defendant entered into a contract for the removal and

installation of new vinyl siding on various parts of defendant’s residential property in Cook

County, Illinois. 1 The projected cost of the work was $16,448.50. 2

¶6 Work on the property began on July 1, 2021, and was completed on July 5. On the date of

completion, plaintiff presented defendant with an invoice for labor costs estimated at $10,248.50.

On July 6, 2021, defendant paid plaintiff $2000. On July 25, 2021, defendant paid an additional

$2500 on the invoice, leaving a remaining balance of about $5748.50.

¶7 On August 1, 2021, plaintiff sent defendant an email entitled “Demand for Balance.” The

e-mail stated that this was a “final attempt to collect monies owed” and further served as a “Notice

of Intent to place a [l]ien against” defendant’s property. The e-mail further advised defendant that

1 Throughout the record and in their briefs, both parties reference a contract between them that was apparently signed on June 12, 2021. However, no such signed contract appears in the record; what does appear is an exhibit entitled “Terms and Conditions.” Notably, a paragraph within this exhibit entitled “Scope of Work” indicates that the contractor was to provide “all services, materials, labor, tools, and equipment needed for completion of services.” (Emphasis added.) Additionally, in that same exhibit within a paragraph entitled “Change Order,” the following text appears: “Any deviation from the above quote involving a change in the scope of work or any additional costs will be executed only with a written change order signed and dated by both the Company and Customer.” (Emphasis added.) 2 It was further alleged that sometime in June 2021, defendant purchased her own materials for the project.

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she had ten business days to pay the remaining balance of $5748.50 before plaintiff would seek

legal action.

¶8 On August 16, 2021, plaintiff filed a complaint for breach of contract against defendant,

seeking the remaining balance due under the contract, as well as court costs. Attached to the

complaint as exhibits were plaintiff’s two-page quote for the proposed work on the property; a list

of “terms and conditions”; the e-mailed “Demand for Balance”; and a copy of a text message dated

June 12, 2021, from defendant to plaintiff, wherein defendant stated that she signed the quotes and

returned them to plaintiff.

¶9 On August 27, 2021, defendant filed a pro se appearance. No answer to the complaint

appears in the record. The record does contain a variety of exhibits apparently filed by defendant,

including copies of various receipts and invoices from the Home Depot in the amount of $2324.96;

photographs of her property; and an e-mail dated July 15, 2021, between defendant and a

representative from her insurance company, Travelers Insurance, which discussed the

representative’s concerns for the high cost of the project.

¶ 10 Trial was set for February 24, 2022, via “Zoom” 3 On February 28, 2022, the trial court

entered a written order, marked “final and appealable,” indicating that trial had been held and that

judgment was entered for the plaintiff in the amount of $5398.50, with each party to bear their own

costs.

¶ 11 On March 25, 2022, defendant timely filed a motion to reconsider. Therein, after first

setting forth the proper basis for a motion for reconsideration, defendant argued that the court had

3 The record does not include a transcript of the trial proceedings.

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“made two errors when applying existing law to the facts” of her case. 4 Defendant claimed that

the trial court had failed to consider evidence that the plaintiff had also not substantially complied

with the terms of the contract. Specifically, according to defendant, plaintiff had failed to “change

the corners, J-channels, and edge flashing” as delineated within the contract, and that, although

plaintiff had instructed her to purchase and pick up various materials from Home Depot and

Menard’s, plaintiff had failed to delineate other needed materials. Therefore, without such

materials, plaintiff had failed to complete remaining parts of the job.

¶ 12 Arguing that it was plaintiff who had actually breached the contract, defendant additionally

contended that plaintiff had provided substandard workmanship for which defendant had to incur

further expenses to correct the work. Defendant asserted that she had consulted with another

contractor regarding the state of her property, and she had been quoted an additional $8500 in labor

costs alone. In support of her motion, defendant attached various exhibits, including new and

previously filed receipts from Home Depot and Menard’s, various pages of the quotes and invoices

between plaintiff and herself, and a letter from another contractor dated March 4, 2022, detailing

her new expected costs.

¶ 13 Plaintiff filed a response, arguing that the court’s judgment was not in error, and that

defendant’s motion merely presented the same arguments made at trial and therefore did not

constitute newly discovered evidence. Plaintiff further argued that, because defendant had

“decided to buy her own material[,]” plaintiff had only been contracted for “labor purposes” to

replace the damaged vinyl siding on the south and east sides of the property. Plaintiff also pointed

4 Although defendant’s motion for reconsideration charges the trial court with having made two errors, the motion appears to only argue one basis for error, namely that the court failed to consider various evidence at trial.

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out that defendant’s insurance company, Travelers, had inspected the work on the home once

completed, and had subsequently issued two checks to defendant thereafter, indicating that the job

had been successful. In support of his response, plaintiff attached, among other items, the

previously filed “terms and conditions” of the project.

¶ 14 On June 23, 2022, a hearing was held over Zoom on defendant’s motion to reconsider. The

brief transcript indicates that defendant was provided some time for argument. In addition to

reiterating the contents of her motion, defendant also pointed out, for what appeared to be the first

time, that the terms and conditions of the project required that, for “any deviation” from the original

quote which involved a “change in the scope of the work or any additional cost,” such change had

to be executed with a “written change order” that was signed and dated by both the parties.

Defendant asserted that this had never happened after she bought her own materials for the project.

¶ 15 After hearing argument, the trial court orally denied the motion. The court stated that

although there “may have been some evidence that was not admissible” at trial, it had nevertheless

“considered all admissible evidence” and “judged the credibility of the witnesses.” With regard to

defendant’s argument about the scope and quality of the work, the court observed that defendant

had not introduced “any type of professional expert who would basically testify to the deficiencies

in the work[,]” which it considered to be “one of the major flaws in [the] case.” As such, the court

held that, “for the reasons *** stated, as well as the reasons outlined at trial[,]” the motion was

denied.

¶ 16 On July 12, 2022, the trial court issued a written order denying defendant’s motion to

reconsider. Subsequently, defendant, proceeding pro se, filed this timely appeal.

¶ 17 II. ANALYSIS

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¶ 18 On appeal, defendant contends that reversal of the trial court’s judgment is required for

two reasons. First, she argues that the court erred in denying her motion to reconsider. In that

regard, she cites specifically to the court’s ruling in which the court allegedly commented that

expert testimony was required to determine whether plaintiff had failed to perform pursuant to the

parties’ contract. She maintains that the court erred as expert testimony was not necessary to

determine whether plaintiff failed to fulfill its obligation. Because the trial court erred in its

application of existing law to the facts, defendant argues reversal of the court’s denial of the motion

for reconsideration is required.

¶ 19 Second, she contends that plaintiff breached the contract. In that regard, she argues that

plaintiff failed to replace the siding in a workman-like manner. She points out that plaintiff’s failure

to substantially perform under the contract will require her to expend additional dollars to properly

complete the work. Thus, she maintains, reversal is required.

¶ 20 In his response brief, plaintiff does not respond to either of defendant’s contentions on

appeal. Instead, utilizing our supreme court’s Approved Standardized Form for appellee’s briefs,

he provides a statement of facts, attaches an exhibit consisting of his response to plaintiff’s motion

for reconsideration, and concludes with a request that the trial court’s judgment be affirmed, the

appeal dismissed, and he be awarded monetary relief and court costs.

¶ 21 Notwithstanding the absence of a proper response, based upon our review, we find no basis

upon which to reverse either the trial court’s ultimate judgment following trial or its ruling on the

motion for reconsideration. We begin our analysis, first, with defendant’s second argument on

appeal, that reversal of the court’s judgment is required because plaintiff breached the contract by

failing to substantially comply with its terms.

¶ 22 A. Breach of Contract

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¶ 23 In this appeal, defendant argues that pursuant to the contract, plaintiff was required, but

failed, to change the “Corners, J-Channels and Edge Flashing.” As a result, defendant maintains,

she will incur additional costs to correct plaintiff’s work. Thus, defendant does not believe she

should be required to pay plaintiff any more money than that which she has already paid.

Accordingly, she contends that plaintiff “is not entitled to recover the breach of contract damages

he has requested.”

¶ 24 Typically, the standard of review in a bench trial is whether the judgment is against the

manifest weight of the evidence, and a reviewing court will not substitute its judgment for that of

the trial court unless “ ‘the opposite conclusion is apparent or when findings appear to be

unreasonable, arbitrary, or not based on evidence.’ ” Chicago’s Pizza, Inc. v. Chicago’s Pizza

Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008) (quoting Judgment Services Corp. v.

Sullivan, 321 Ill. App. 3d 151, 154 (2001)). The trial judge is the trier of fact and in the best position

to assess the credibility of witnesses and determine the weight of their testimony. Id. An appellate

court will not disturb the trial court’s factual findings unless a contrary finding is clearly apparent.

Id. “Where an award of damages is made after a bench trial, the standard of review is whether the

trial court’s judgment is against the manifest weight of the evidence.” 1472 N. Milwaukee, Ltd. v.

Feinerman, 2013 IL App (1st) 121191, ¶ 13. Thus, in overturning a damages award, “a reviewing

court must find that the trial judge either ignored the evidence or that its measure of damages was

erroneous as a matter of law.” Id.

¶ 25 That said, “[it] is well established that, on appeal, the party claiming error has the burden

of showing any irregularities that would justify reversal.” In re Linda B., 2017 IL 119392, ¶ 43.

“It is appellant’s burden to present a sufficiently complete record of the proceedings at trial to

support a claim of error, and any doubts that arise from the incompleteness of the record will be

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resolved against the appellant.” Id.; see Ill. S. Ct. R. 321 (eff. Oct. 1, 2021) (“The record on appeal

shall consist of the judgment appealed from, the notice of appeal, and the entire original common

law record. *** The record on appeal shall also include any report of proceedings prepared in

accordance with [Illinois Supreme Court] Rule 323.”); see Ill. S. Ct. R 323(a) (eff. July 1, 2017)

(“A report of proceedings may include evidence, oral rulings of the trial judge, [and] a brief

statement of the trial judge of the reasons for his [or her] decision[.] *** The report of proceedings

shall include all the evidence pertinent to the issues on appeal.”); see also Ill. S. Ct. R. 323(c), (d)

(eff. July 1, 2017) (“If no verbatim transcript of the evidence of proceedings is obtainable[,] the

appellant may prepare a proposed report of proceedings from the best available sources, including

recollection” or in the form of a bystander’s report or agreed statement of facts.).

¶ 26 Here, the record on appeal does not contain a transcript, or the equivalent of a transcript of

the trial proceedings. Particularly relevant here, “[a]n issue relating to a [trial] court’s factual

findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record

of the proceedings.” Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005). Because the

record before us is incomplete, we cannot conduct a “meaningful appellate review” of defendant’s

contentions. See Amos Financial, LLC v. Szydlowski, 2022 IL App (1st) 210046, ¶ 27. In the

absence of an adequate record, we must “presume that the [trial] court’s order had a sufficient

factual basis and that it conforms with the law.” Id. Accordingly, based on the record before us,

we must affirm the court’s judgment. See Foutch v. O’Bryant, 99 Ill. 2d 389, 393 (1984).

¶ 27 B. Motion for Reconsideration

¶ 28 We next address defendant’s claimed error regarding the trial court’s denial of her motion

for reconsideration. Defendant first argues that the trial court “erred in its application of existing

law when ruling on plaintiff’s claim for breach of contract.” As support for her argument, she

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directs our attention to the trial court’s comments following her argument on the motion regarding

the absence of testimony from a professional expert. She then contends that the trial court

erroneously denied her motion for reconsideration on the basis that, at trial, she failed to present

any expert testimony concerning deficiencies in plaintiff’s work. Quoting Belluomini v. Zaryczny,

2014 IL App (1st) 122664, ¶ 20, she states, “where a motion to reconsider only asks the trial court

to reevaluate its application of the law to the case as it existed at the time of judgment, the standard

of review is de novo.” Having presumably framed the issue as one involving an application of law,

she entreats us to reverse the trial court’s order denying the motion as she was not required to

present expert testimony to prove plaintiff “failed to fulfill his obligations under the contract.”

¶ 29 “The purpose of a motion to reconsider is to bring to the court’s attention newly discovered

evidence that was not available at the time of the original hearing, changes in existing law, or

errors in the court’s application of the law.” Evanston Insurance Co. v. Riseborough, 2014 IL

114271, ¶ 36. The appellate court’s review of a trial court’s denial of a motion for reconsideration

following a bench trial is for abuse of discretion, although our review can lead to the application

of other standards of review, depending on whether the underlying issue being reconsidered is

legal or factual. 2460-68 Clark, LLC v. Chopo Chicken, LLC, 2022 Il App (1st) 210119, ¶ 35

(citing Shulte v. Flowers, 2013 IL App (4th) 120132, ¶ 24).

¶ 30 We note at the outset that, although defendant argued in her motion for reconsideration and

here on appeal that it was plaintiff who breached the contract, no counterclaim against plaintiff has

been filed in this case. Again, we note that there is no record of the trial proceedings provided for

our review. Thus, regardless of whether our review of the court’s denial of the motion is de novo

or for abuse of discretion, no different result would yield. For even if the court’s stated basis for

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its ruling on the motion was in error, and we hasten to add that it was not, there is nothing in this

record to support a finding that its ruling at trial was based on an erroneous application of the law.

¶ 31 At the hearing on the motion, the court inquired of defendant regarding what evidence she

did not have available at the time of trial that she thought would change the outcome. In response,

defendant stated that it was not the case that she did not have evidence, “but it was the evidence

that was not considered.” Defendant alluded to certain receipts she had presented at trial; argued

that certain work was not completed by plaintiff pursuant to the “original” contract; and, that

plaintiff made unilateral and unagreed to changes in the contract.

¶ 32 The court commented “I remember specifically noting that, unfortunately [defendant] did

not have any type of professional expert who would testify to the deficiencies in the work,” and

that “that was one of the major flaws in [defendant’s] case.” At the conclusion of the hearing, the

court stated that, at trial, it had “considered all the evidence and judged the credibility of the

evidence,” and that “for the reasons outlined at trial,” defendant’s motion was being denied.

¶ 33 Again, absent a complete record of the trial court proceedings, we cannot know the full

extent of the court’s reasons for its ruling at trial and we decline any speculation. It appears to us

that the court’s comments regarding expert testimony were no more than a reflection of its thoughts

during trial, apparently related to the scope and quality of plaintiff’s work. Given the whole of the

court’s comments at the hearing on the motion, we are not persuaded that the court’s judgment in

favor of plaintiff at trial hinged on defendant’s failure to present any expert testimony. Defendant

has presented nothing to support her claim of error in the court’s application of existing law.

¶ 34 Defendant’s motion for reconsideration presented no newly discovered evidence, no

change in existing law, and no error in the court’s application of existing law. Thus, we find no

abuse of discretion in the trial court’s denial of defendant’s motion for reconsideration.

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¶ 35 Last, we address the parties’ concerns for costs associated with this appeal. Plaintiff

tangentially notes in his response brief that he is pro se and has had to expend time to represent

himself during these proceedings, which “has resulted in a loss of income.” Defendant, also pro

se, makes a clearer request for costs in her reply brief. However, we grant neither request,

defendant’s, because her appeal has ultimately been unsuccessful, and plaintiff’s, because we do

not find defendant’s appeal to be frivolous and taken in bad faith. See Ill. S. Ct. R. 374(a) (eff. July

1, 2017) (if an appeal is dismissed, costs are assessed against the appellant unless otherwise agreed

to by the parties or excused by the court for good cause); see also Ill. S. Ct. R. 375(b) (eff. Feb. 1,

1994) (authorizing sanctions for frivolous or bad faith appeals).

¶ 36 III. CONCLUSION

¶ 37 Accordingly, the judgment of the trial court in favor of the plaintiff for breach of contract

is affirmed. Court costs to be borne by each party.

¶ 38 Affirmed.

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