Opinion
4-21-0233
05-27-2022
ROGER W. MILLER, Plaintiff-Appellant and Cross-Appellee, v. WILLIAM G. FOSSER, Defendant-Appellee and Cross-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Champaign County No. 13L28, Honorable Jason Matthew Bohm, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.
ORDER
TURNER, JUSTICE
¶ 1 Held: Trial court's award of damages and attorney fees is affirmed.
¶ 2 After a bench trial in this breach of contract case, the trial court found defendant, William G. Fosser, breached the contract he and Stephen Kirby, who is now deceased, entered into with plaintiff, Roger W. Miller, for the sale of pizza-making equipment. However, the trial court found Miller failed to establish the value of the pizza-making equipment at the time he repossessed it on January 8, 2013. The court also found Miller failed to mitigate his damages. The court ordered Fosser to pay economic damages of $7534.24. Because Fosser had possession of the property for a little over two months, the court ordered Fosser to pay an additional $2400 for the depreciated value of the equipment. Later, the court awarded Miller attorney fees of $27, 642.04.
¶ 3 Miller filed this appeal, arguing the trial court misinterpreted the contract between the parties, erred by not making him "whole" after finding Fosser breached the contract, and erred in declining to order Fosser to pay interest Miller claimed Fosser owed pursuant to the contract and notes signed by Fosser. Fosser filed a cross-appeal but abandoned it in his brief. We affirm the judgment of the trial court.
¶ 4 I. BACKGROUND
¶ 5 On July 28, 2016, the trial court allowed Miller's motion for leave to file a second amended complaint in this case. Attached to the complaint was the agreement to sell pizza-making equipment, which was made effective as of October 31, 2012, from Miller to Fosser and Kirby. The purchase price of the equipment was $100,000. Miller acknowledged receiving $1000 from Fosser and Kirby and credited Fosser and Kirby $2500. Fosser paid an additional $6500 at closing. The contract required the equipment to be kept at the pizza shop at 508 East Green Street in Champaign. The equipment could not be removed from that location without Miller's written consent before it was paid for in full. Fosser and Miller were required to pay the remaining $90,000 for the equipment pursuant to a $10,000 note and an $80,000 note attached to the contract. The notes were both dated November 1, 2012.
¶ 6 Fosser and Kirby were required to pay to store the equipment at 508 East Green Street by paying Miller the monthly sums Miller was due to pay under a lease agreement dated January 25, 2011. As an additional storage fee, the contract required Fosser and Kirby to fulfill other responsibilities Miller had. Fosser and Kirby agreed they were buying the pizza-making equipment in its "as is" condition. Exhibit A to the agreement listed the 12 pieces of equipment being sold by Miller to Fosser and Kirby.
¶ 7 On August 22, 2019, Fosser filed a motion for summary judgment. On October 1, 2019, the trial court held a hearing on defendant's motion. The court found summary judgment was not appropriate but further stated:
"I do think that the issues are much more narrow, though, than perhaps our conversation today indicated. The issues really are what is Miller owed for the failure to pay between November first and January 8th, and what damages is he owed for when he recoups the collateral that is the loan here? What was the state of it? The fact that six years later after it sat in storage it has a lesser value isn't the critical question.
The question is what was the value of it at the time that the locks were changed? I think that is an issue that will have to be resolved at trial, not by summary judgment, so the motion for summary judgment I think has to be denied at this time, and the case will continue to the bench trial on October the 15th."
¶ 8 The bench trial was not held until July 14, 2020. Plaintiff, Roger Miller, who was 82 years old, testified on his own behalf that he had known Stephen Kirby for 15 or 20 years when, in October 2012, Kirby and a business partner wanted to meet Miller at the pizza store. When Miller arrived, Kirby and Fosser were there. About two weeks after that meeting, Miller, Fosser, and Kirby signed the "Agreement for Sale of Equipment" at issue here.
¶ 9 Miller said Fosser was in a big hurry to get into the pizza business. He met with both Fosser and Kirby two times and answered any questions they had. At the time, he was very busy running Miller Enterprises and the pizza store at issue here. According to Miller, he trusted Kirby because he had dealt with him before. Miller indicated he probably would have sold the business to Fosser alone but would have checked Fosser out more than he did if Kirby was not involved. However, he later testified he would not have sold the store to Fosser if Kirby had not been involved. Miller stated he relied on Kirby and did not know about Fosser's ability to run a business.
¶ 10 Miller testified he was selling the pizza shop, not just the equipment, to Fosser and Kirby. Miller claimed the pizza shop made a profit of around $30,000 per month. When asked why he agreed to sell such a profitable business, Miller testified he was running eight other Papa John's stores and did not want to run this one odd pizza store. Miller did not show Fosser and Kirby how the business ran. According to Miller, based on his 35 years in the pizza business, it was customary to simply list the major items when a store was sold and allow the rest of the business to continue to run with the additional items not listed. Miller stated it was a gentleman's agreement.
¶ 11 After the agreements and notes were signed on October 31, 2012, and November 1, 2012, respectively, Miller said he did not recall or have any record of Kirby or Fosser making any payments. Miller said the first time he went back to the pizza shop after the contract was signed was when he was told by an employee of the pizza shop that no one was at the store but the back door was open. According to his testimony, when he got to the store,
"The back door was open. The compressor unit on the cooler was being dismantled. The mixer was missing. There was no food in the building. There was [sic] wire racks and some of-part of the stuff out of the store that was in the-in the parking lot. The telephone system was gone. The computer system was gone. Basically there was a lot of trash and that most of the-anything with value pretty well was gone. I called the attorney while I was standing there in the parking lot on my cell phone and he said get it locked up right now and that's what I did."Neither Fosser nor Kirby were at the store. Miller locked up the store and called Fosser on the advice of his attorney. According to Miller, he did not know when this occurred but thought it might have been the beginning of February 2013. Miller said he called three times and never got an answer. He later talked to Kirby who said Fosser had thrown him out of the business a week or two into the situation. Miller's attorney said Kirby had still signed the notes, which is why Miller also filed suit against Kirby. Miller stated Fosser never returned his calls and never requested a key to get back into the pizza store.
¶ 12 Miller testified he never received anything from Kirby or Fosser for the pizza shop's rent. Further, Miller had not received any of the payments due on the notes. According to Miller, he changed the locks at the pizza shop in February 2013. Fosser never contacted him. However, Miller continued to have contact with Kirby. Kirby never requested a key to reopen the business or store. Neither Kirby nor Fosser ever notified him they wanted to cancel the $80,000 note as provided in the $80,000 note and the agreement to sell the equipment.
¶ 13 When Miller entered the agreement with Kirby and Fosser, the pizza store was in working condition, and pizzas were being sold from the store at that time. With regard to the equipment when he retook possession in February 2013, Miller claimed:
"The Wolf oven had been taken apart and they-basically part of the oven that control the oven was missing and other parts are missing. The hood was just like it was when I had the store. The save and seal tables, there was only one of them left in there that I recall. The make table was there like it was before. The cut table was not there. The walk-in cooler was partially taken apart. Some of the-it's a prefab unit. Some of the sections was missing. The shelving and racking, most of that was gone. Telephone system was completely gone. The three-compartment sink was there, and it went into storage. The hand sinks was
there and they went into storage, and a new mixer was gone."
He testified the counters had been taken apart but were there and fixable.
¶ 14 On cross-examination, Miller stated he entered verbal agreements with Kirby and Fosser regarding the sale of the business in addition to the agreement for the sale of the 12 pieces of equipment listed on the written agreement. He said part of what he sold was access to customers who walked into the store at 508 East Green Street. Fosser and Kirby had access to these customers by being inside of the pizza store. According to Miller, defendants had the responsibility to obtain a lease from the owners of the building. He also claimed Fosser abandoned the building.
¶ 15 When Miller was asked how he knew the value of the items sold to Fosser and Kirby on November 1, 2012, Miller said he relied on his 30 years of experience in the pizza business. He valued the Wolf pizza oven at $20,000 even though it was used. He admitted he had no idea how many years it had been used. Miller said a new pizza oven costs $38,000, and it did not matter how many years it had been used because it was working and in good shape when he sold it to Fosser and Kirby. Miller admitted the Wolf pizza oven was still in the store when he locked Fosser and Kirby out but said some parts were missing.
¶ 16 Miller had no personal knowledge that Fosser had damaged any of the 12 items Miller sold to Fosser and Kirby. According to Miller, he took pictures of the damage at the time but did not know where those pictures were. He also admitted he neither called the police nor notified the owners of the building to report what happened.
¶ 17 William Fosser testified he was 59, had a two-year degree from Parkland College, and served 13 years in the military. According to Fosser, Miller twice told him he should not speak with the landlord of the building about the arrangement between Miller and Fosser and Kirby. After signing the agreement with Miller, the restaurant and equipment was dirty and not in "good serviceable shape." However, Fosser acknowledged the pizza shop continued operating until November 27, 2012. Fosser purchased cleaning supplies and started to clean the shop. Fosser and Kirby had an automobile business together and were also working on a few houses together. After they signed the agreement with Miller, Kirby decided he did not want to be involved in the pizza business.
¶ 18 Shortly after Fosser and Kirby signed the agreement to purchase the equipment, the health department shut down the business after an inspection. After the business was closed, Fosser continued to work on cleaning the equipment almost every day. Fosser did not make the payments due on December 1, 2012, or January 1, 2013.
¶ 19 Fosser had experience cleaning and working on conveyor type ovens. In late November or early December, because the Wolf conveyor oven was very dirty, he started a thorough cleaning process. On January 8, 2013, he had the conveyors pulled out of the oven for cleaning purposes, not knowing he was going to be locked out of the restaurant. He estimated he had spent between 30 and 40 hours cleaning the oven. He paid $400 to repair the make table. In addition, he cleaned the cooler in the shop but had not repaired it yet. The walk-in cooler and the make table had been cited by the health department. The walk-in cooler was in the same condition (only cleaner), the shelving units were also still in the store and were in the same condition (only cleaner), and the Hobart dough mixer was in the store and working on January 8, 2013.
¶ 20 On January 8, 2013, the last day Fosser had access to the pizza shop before the locks were changed, Fosser went to the pizza store in the morning and left at 11:45 a.m. to get lunch. When he returned about 12:30 p.m., Miller was in the basement of the store with another man. Miller came upstairs and demanded Fosser's key to the shop, saying it was time for Fosser to leave. Fosser said no, explaining he was trying to reopen the shop. Miller then called his attorney, Roger Marsh, and gave Fosser the phone. Fosser refused to give Miller the key. Fosser stated he locked the doors to the store when he left that day.
¶ 21 On January 9, 2013, Fosser returned to the pizza shop at 10 a.m. His key would no longer open the doors. He never saw or had any knowledge of looters going into the store and denied abandoning the store.
¶ 22 In rebuttal, Miller testified he put into storage everything he found in the store. However, he testified a lot of items were missing from the store. He denied telling Fosser not to speak with anyone at the landlord's office. Miller said he did not try to sell the equipment from the pizza shop, which he repossessed, because his attorney said it technically belonged to Fosser.
¶ 23 When issuing its decision, the trial court noted its statement at the summary judgment hearing that the issues were what Miller was owed for defendant's failure to make payments between November 1, 2012, and January 8, 2013, and what damages Miller was owed after he recouped the collateral that is the subject of the loan. The court stated the critical question was not what the equipment was worth after sitting in storage for six years but what the value of the equipment was when Miller repossessed it and locked Fosser out of the shop. The court then asked if there was any evidence as to the value of the equipment on January 8, 2013, when Miller took control of it. Miller's counsel acknowledged no specific testimony on that issue was presented. However, Miller's counsel argued the court should assume the equipment had the same value then as it did in 2019 after being stored for six years because "[t]here was no suggestion or testimony that those items had been moved or used by anyone else."
¶ 24 The trial court found Fosser clearly breached the contract for the sale of the equipment. However, the court indicated the question of what damages Miller was entitled was more difficult. The court noted a plaintiff cannot recover damages from a contractual breach if the losses could have been reasonably avoided. According to the court, when Miller took possession of the equipment and locked Fosser out of the pizza shop on January 8, 2013, Miller acquired a duty to mitigate his damages, which he did not do. Instead, he put the equipment in storage and allowed it to deteriorate to the point it had only scrap value. The court found this was not a reasonable means of mitigating Miller's damages. Because Miller did not mitigate his damages, the court indicated it needed to reduce his damages. Further, the court again noted Miller failed to present evidence of the value of the equipment on January 8, 2013.
¶ 25 The trial court awarded Miller $2400 for the depreciated value of the equipment during the period between October 1, 2012, and January 8, 2013, when Fosser had the equipment. The court then explained:
"Now, I understand that there is also loss value to Mr. Miller based on the fact that the oven was in disarray. He testified some of the equipment was missing and there would have also been expenses associated with posting the equipment for sale and other associated expenses with mitigating his damages. The problem is the Court just doesn't have any evidence on what those numbers would be, and it does fall on the Plaintiffs burden to give the Court evidence as to what the damages would have been. Particularly when the Plaintiff was told on October 1st, 2019, that it needed to provide this evidence at trial and then admittedly gave little evidence I-I simply cannot speculate as to what the amount would be. I have to base my decision only on the evidence presented here at trial."The court also awarded Miller $7543.24 in economic damages and later $27, 642.04 in attorney fees.
¶ 26 This appeal followed.
¶ 27 II. ANALYSIS
¶ 28 On appeal, Miller argues the trial court erred with regard to the damages it awarded him. Miller contends Fosser should have been ordered to pay $89,700 along with other payments and interest. Miller reaches the $89,700 number by deducting the $300 value of the equipment in March 2019 from the $90,000 Fosser owed pursuant to the two notes he signed as part of the agreement to purchase the equipment. "[A] trial court's finding of damages will not be disturbed unless it was against the manifest weight of the evidence. [Citation.] A damages assessment is against the manifest weight of the evidence when the court ignored the evidence or used an incorrect measure of damages." Mayster v. Santacruz, 2020 IL App (2d) 190840, ¶ 32, 163 N.E.3d 246.
¶ 29 Part of Miller's argument is the trial court misinterpreted the contract for the sale of the equipment as a matter of law. Citing Erlenbush v. Largent, 353 Ill.App.3d 949, 952, 819 N.E.2d 1186, 1189 (2004), Miller argues this court should review the contract independently without giving deference to the trial court's interpretation. According to Miller, the unrebutted evidence was that the parties valued the equipment listed in the agreement for sale of equipment at $100,000. However, the trial court did not interpret the contract differently. The issue for the trial court was not what the equipment was worth when the contract was executed. Instead, the question for the court was what the equipment was worth when Miller retook possession of it in January 2013.
¶ 30 Miller quotes the following language from Jensen v. Chicago and Western Indiana R.R. Co., 94 Ill.App.3d 915, 936, 419 N.E.2d 578, 595 (1981): "In determining the value of property that cannot be restored, the finder of fact may consider the purchase price as a basis for valuation, as well as any other evidence that is material to the issue of value." According to defendant, because the equipment at issue in this case cannot be restored, the trial court should have valued the equipment at $100,000 instead of calculating the damages as if there had been a gradual decrease in the value of the equipment. However, if that is the case, Miller does not explain why the court should not have considered the property was worth $100,000 when Miller repossessed it a little over two months after the contract was signed.
¶ 31 "The measure of damages for a breach of contract is the amount that will compensate the aggrieved party for the loss that the breach entailed." Mayster, 2020 IL App (2d) 190840, ¶ 31. The purpose of damages in a breach of contract case is to put the nonbreaching party in the position he would have been in if the contract had been performed, not a better position. Mayster, 2020 IL App (2d) 190840, ¶ 31. "Where the contract pertains to something that is obtainable in the market, the measure of damages is the difference between the contract price and the fair market value at the time of the breach." Mayster, 2020 IL App (2d) 190840, ¶ 31.
¶ 32 A claimant must establish his damages to a reasonable degree of certainty based on evidence that is not remote, speculative, or uncertain. In re Illinois Bell Telephone Link-Up II, 2013 IL App (1st) 113349, ¶ 23, 994 N.E.2d 553. The evidence must provide a basis to compute the damages with a fair degree of probability. Illinois Bell, 2013 IL App (1st) 113349, ¶ 23.
¶ 33 In a breach of contract case, the nonbreaching party has to make a reasonable effort to avoid damages which could result from the breach. Mayster, 2020 IL App (2d) 190840, ¶ 31. The doctrine of avoidable consequences states there can be no recovery for damages that might have been avoided by a reasonable effort on the injured person's part. Mayster, 2020 IL App (2d) 190840, ¶ 31.
¶ 34 In this case, Miller contracted to sell the equipment to Fosser for $100,000. When the contract was executed, Fosser paid $7500 and was given a $2500 credit against the $100,000. As a result, under the terms of the contract, Fosser still owed defendant $90,000 for the equipment. A little over two months later, Miller locked Fosser out of the pizza shop and reclaimed the equipment that the parties agreed was worth $100,000 two months earlier. At that point, Miller had control over the physical location of the store, the equipment in the store, and $7500 from Fosser. On the other hand, Fosser had been locked out of the pizza store and did not have access to the equipment he had contracted to purchase from Miller.
¶ 35 Because Miller failed to establish the value of the equipment when he repossessed it, he did not establish what value if any the equipment lost while Fosser had it. Regardless, the trial court assumed on Miller's behalf the equipment depreciated in value during the two-month period Fosser possessed the equipment, even though Miller did not establish this. The trial court also awarded Miller damages for the payments Fosser had not made, attorney fees, and interest. As previously noted, Fosser abandoned his cross-appeal and does not challenge the relief the trial court awarded to Miller.
¶ 36 Other than Miller's own self-serving testimony, he offered no evidence establishing any equipment was missing or the equipment was damaged when he locked Fosser out of the pizza shop. We note Miller did not call the police when he allegedly found the store ransacked, equipment missing, and other equipment damaged. Further, although Miller claimed he took photographs of the damaged property at the time the store was allegedly looted, he failed to present these photographs to the court.
¶ 37 On the other hand, Fosser admitted he had not made the required monthly payments due as required by the contract and notes. However, he testified all the equipment was at the store the day before he was locked out and in as good if not better condition than when he first signed the contract, except for the Wolf stoves which he had partially taken apart to clean.
¶ 38 The trial court did not make an explicit finding whether it found Fosser or Miller credible. The court also did not make an explicit finding some of the equipment was missing on January 8, 2013, when Miller reclaimed possession of the pizza shop and the equipment inside. However, the court did find Miller failed to establish what the value of the equipment was when Miller retook possession of it.
¶ 39 As noted earlier, although Miller claimed equipment was damaged or missing and the store looked like it had been looted, Miller failed to call the police to report what he allegedly found. He also did not present any evidence he hired anyone to repair the equipment or even sought any repair estimates. Instead, he simply moved all of the equipment out of the pizza shop and into storage even though he claimed he had been making $30,000 per month in profit before he entered the agreement with Fosser and Kirby. Based on this record, the trial court's decision is not against the manifest weight of the evidence.
¶ 40 Miller next argues the trial court erred by not ordering Fosser to pay interest Fosser allegedly owed pursuant to the contract and the two notes. We note the trial court did order Fosser to pay interest, late fees, and attorney fees as calculated by Miller's attorney on January 8, 2013. On the $10,000 note, the court ordered Fosser to pay interest of $200.55, late fees of $1100, and attorney fees of $600. On the $80,000 note, the court ordered Fosser to pay interest of $1604.39, late fees of $1100, and attorney fees of $600. Miller ignores this aspect of the trial court's order.
¶ 41 Based on Miller's brief, it is unclear whether Miller is arguing he is entitled to interest on the $89,700 or if he is entitled to more interest than what the trial court has already awarded for the period when Fosser was operating the pizza shop. Because Miller has failed to clearly define the issue, we find the issue forfeited. "An issue not clearly defined and sufficiently presented fails to satisfy the requirement of Rule 341(h)(7)" and is forfeited. Bublitz v. Wilkins Buick, Mazda, Suzuki, Inc., 377 Ill.App.3d 781, 787, 881 N.E.2d 375, 381 (2007).
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the trial court's judgment.
¶ 44 Affirmed.