                                                                              FOURTH DIVISION
                                                                              September 23, 2010




No. 1-09-3044


MARYBELLE MANDEL,                                     )        Appeal from the
                                                      )        Circuit Court of
        Plaintiff-Appellant,                          )        Cook County
                                                      )
        v.                                            )        No. 07 CH 35077
                                                      )
THOMAS E. HERNANDEZ,                                  )        The Honorable
                                                      )        Nancy J. Arnold,
        Defendant-Appellee.                           )        Judge Presiding.


       PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

       Plaintiff, Marybelle Mandel, appeals the trial court’s denial of her request to receive

monetary damages for a breach of contract claim involving the sale of real estate to her from

defendant Thomas Hernandez finding that such damages were inconsistent with the award of

specific performance. Mandel first claims that the trial court erred in holding that it could not

award both monetary damages and specific performance for a breach of contract claim. Mandel

also claims that the trial court erred in denying Mandel’s request to amend her complaint

postjudgment to conform to the proofs pursuant to section 2-616(c) of the Illinois Code of Civil

Procedure (735 ILCS 5/2-616(c) (West 2002)). Mandel further claims that the trial court erred

in denying her request to amend the complaint to add a new cause of action and that the trial

court should have conducted a subsequent and separate hearing or a new trial to determine
1-09-3044



monetary damages resulting from the delay in Hernandez’s performance of the contract. For the

reasons that follow, we affirm.



                                             Background

        On March 29, 2007, Mandel and Hernandez entered into a written contract whereby

Hernandez agreed to sell to Mandel residential property located at 731 West 61st Place, Summit,

Illinois, that Hernandez owned. The residential real estate contract, containing the signatures of

both parties and identifying the subject property, was admitted into evidence without objection.

The contract provided for a fixed purchase price of $50,000, earnest money in the amount of

$1,000 to be paid within 15 days of acceptance, and a closing date of May 20, 2007, or sooner.

Hernandez refused to proceed to closing and Mandel subsequently filed a two count complaint

against Hernandez. In count I, Mandel sought specific performance and damages incidental to

specific performance. Alternatively, Mandel sought damages for breach of contract under count

II. Hernandez raised the following four affirmative defenses: (1) that he was elderly and ill and

thus unable to comprehend the nature of the contract; (2) that Mandel failed to disclose that she

was a licensed real estate broker and thus took advantage of him; (3) that the terms of the

contract were unconscionable; and (4) that Mandel failed to timely deliver the earnest money

and appear at closing.

        The record on appeal does not include deposition testimony, but the trial court’s written

findings after trial are included in the record, which discusses the party’s testimony. The

following facts are based in part on the trial court’s written findings after trial. Mandel is in the

business of buying real estate properties, renovating the properties, and then reselling them.

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Mandel communicated her involvement in the real estate business to Hernandez when the parties

first met. Mandel expected the renovation work on the property to be completed within 90 days

and anticipated the resale value of the property to be between $210,000 and $240,000. Mandel’s

husband, who was also involved in the business of renovating and reselling properties, testified

that renovation of the property would entail replacing the exterior siding, insulation, roof and

interior walls, as well as gutting the kitchen.

        Hernandez, who was 80 years old at the time, testified that the property had been vacant

for some time and that he hoped to get rid of it. According to Hernandez, Mandel’s husband

inquired about an asking price after hearing that Hernandez hoped to dispose of the property.

Hernandez asked for $50,000 and Mandel’s husband said, “Sold.”

        Mandel claims that the parties discussed a price at a later time while viewing the

property. Hernandez told Mandel that the first person who offered him $50,000 for the house

could have it. According to Mandel, after agreeing upon the price, Hernandez requested a

written agreement. The parties proceeded to sign a standard form real estate contract at

Hernandez’s house. Mandel testified that the parties acknowledged each line of the contract and

together completed the appropriate blanks. Hernandez denied having seen the real estate

contract and stated that he did not remember signing it.

        The parties also disputed delivery of the earnest money. Mandel testified that she mailed

Hernandez a check for the earnest money on March 29, 2007, and later contacted him to confirm

receipt. According to Mandel, Hernandez stated that he had not received the check. Mandel

subsequently sent a second check by overnight mail, return receipt requested. The second check

was returned to Mandel, and when she contacted Hernandez, he informed her that he was

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unwilling to complete the transaction. Two checks were admitted into evidence, one dated

March 29, 2007, and the other dated April 11, 2007.

         Hernandez’s daughter testified that Hernandez received a check for the earnest money.

His daughter determined that the check arrived late according to the contract’s terms and

returned the money to Mandel. Hernandez later informed Mandel’s attorney that he had no

intention of proceeding with the contract.

         Mandel testified that she was ready, willing, and able to perform the contract and that she

deposited the cash and closing documents in an escrow account. Hernandez did not appear at

closing or accept the purchase money and the purchase money was returned to Mandel a month

later.

         At trial, both parties presented testimony regarding the property’s approximate value at

the time of contract. Michael Kaput, testifying on Hernandez’s behalf, estimated that the

property’s listing price at the time of the contract would have been between $139,000 and

$149,000 based on four properties that he considered comparables. Mandel offered the

testimony of a licensed real estate broker, Opal Fabien, and a certified appraiser, Elizabeth

Hohn. Fabien considered four different properties as comparables and offered the opinion that at

the time of the contract an appropriate listing price for the property would have been $80,000.

Considering three other comparable sales, Hohn offered her opinion that at the time of the

contract, the market value of the property was $80,000. None of the testifying real estate experts

used the same comparables in arriving at their estimates. Both Hohn and Fabien testified that

beginning in 2007, real estate values began to decline and Mandel would not likely obtain the




                                                  4
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benefit of her bargain as originally thought in 2007. Mandel also presented expert testimony that

renovation costs to make the property habitable and marketable totaled $50,000.

       At the conclusion of trial, the trial court found that the parties had entered into a valid

real estate contract, that Mandel had fully performed her contractual obligations and was at all

times ready, willing, and able to close the transaction, and that Hernandez breached the contract

by failing to deliver the deed. The trial court ordered Hernandez to specifically perform the

contract, but declined to award monetary damages for the delay in performance ruling that an

award of monetary damages is inconsistent with the award of specific performance. The trial

court ruled that damages for lost profits could not be recovered along with an order for specific

performance. The trial court stated that Mandel pursued her claim for specific performance over

the alternative claim for damages for breach of contract. The trial court also stated that Mandel

sought recovery of her expected profits had Hernandez completed the sale when the real estate

market still allowed for a substantial profit upon resale. The trial court held that Mandel could

not recover those lost expected profits consistently with specific performance.

       Mandel filed a posttrial motion to reconsider and a motion to amend the complaint to

conform the pleadings to the proofs. The posttrial motion alternatively requested a hearing to

address the issue of damages incident to the delay in performance. The trial court denied

Mandel’s posttrial motion. Mandel timely appealed.



                                        Standard of Review

       The decision to award or deny monetary damages in addition to specific performance

rests within the sound discretion of the trial court. Yonan v. Oak Park Federal Savings & Loan

                                                  5
1-09-3044

Ass’n, 27 Ill. App. 3d 967, 97-78 (1975), citing Fleming v. O’Donohue, 306 Ill. 595, 601-02

(1923). The decision to allow an amendment to a complaint also rests within the sound

discretion of the trial court, and absent an abuse of discretion, we will not disturb the trial court’s

decision. Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323, 331 (2008). A trial

court abuses its discretion when “ ‘no reasonable person would take the view adopted by the trial

court.’ ” Compton, 382 Ill. App. 3d at 331-32, quoting, Keefe-Shea Joint Venture v. City of

Evanston, 364 Ill. App. 3d 48, 61 (2005).



                                                Analysis

        Mandel first contends that the trial court erred in ruling that monetary damages for a

breach of contract are inconsistent with an order for specific performance of the contract.

Mandel cites Talerico v. Olivarri, 343 Ill. App. 3d 128 (2003), and Rotogravure Service, Inc. v.

R.W. Borrowdale Co., 77 Ill. App. 3d 518 (1979), as support for her position that a trial court

may award monetary damages incidental to a defendant’s delay in performance in addition to

ordering specific performance. Although we agree with Mandel that monetary damages

incidental to a delay in performance may be awarded in addition to specific performance, we

conclude that the trial court did not abuse its discretion in finding that the lost resale profits that

Mandel seeks here are not recoverable.

        As established in Rotogravure and Talerico, when a decree of specific performance does

not provide complete relief, the injured party is entitled to those damages that will make him

whole, including monetary damages incidental to and caused by a delay in performance.

Rotogravure, 77 Ill. App. 3d at 527; Talerico, 343 Ill. App. 3d at 132; see also Industrial Steel

Construction, Inc. v. Mooncotch, 264 Ill. App. 3d 507, 512 (1994). The injured party is entitled

                                                    6
1-09-3044

to damages incurred between the time of breach and the time of performance if those damages

arose naturally from the breach or were reasonably foreseeable at the time the contract was

executed. Talerico, 343 Ill. App. 3d at 132-33; Madigan Brothers, Inc. v. Melrose Shopping

Center Co., 198 Ill. App. 3d 1083, 1089 (1990). Lost profits may be recovered as damages

resulting from a breach of contract if both parties at the time of entering into the contract

contemplated that such profits would be lost if the contract was breached. Spangler v.

Holthusen, 61 Ill. App. 3d 74, 80 (1978). A trial court will award lost profits “only if: their loss

is proved with a reasonable degree of certainty; the court is satisfied that the wrongful act of the

defendant caused the loss of profits; and the profits were reasonably within the contemplation of

the defaulting party at the time the contract was entered into.” Milex Products, Inc. v. Alra

Laboratories, Inc., 237 Ill. App. 3d 177, 190 (1992).

       Here, Mandel sought damages that did not directly result from Hernandez’s delay in

performance. Rather, Mandel’s lost resale opportunity was contingent upon a string of uncertain

collateral transactions, such as the renovation of the property within budget, the placement of the

property on the market within 90 days of purchase, the fortuitous appearance of a prospective

buyer, an agreement to pay the projected resale price and the completion of the resale

transaction. Hernandez cannot be held responsible for lost profits that were contingent on

collateral transactions of which he had no specific knowledge at the time of contract. See

Spangler, 61 Ill. App. 3d at 82 (holding that lost profits from a proposed collateral sale arising

after execution of the real estate sales contract could not be imposed upon the sellers of the real

estate when the collateral sale was unknown to the sellers). Moreover, even if Hernandez had

general knowledge that Mandel was in the real estate business, such knowledge is insufficient to

charge him with the knowledge necessary to sustain a claim for lost resale profits. See Spangler,

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1-09-3044

61 Ill. App. 3d at 82 (holding that damages for the loss of future resale profits could not be

recovered because defendant’s general knowledge that plaintiff developed land was insufficient

to place defendant on notice). Since Mandel’s asserted monetary damages for the lost resale

opportunity were not reasonably within Hernandez’s contemplation at the time of contract, the

trial court did not abuse its discretion in finding that those damages were not recoverable.

       Next, Mandel claims that she should have been granted leave to amend her complaint to

conform the pleadings to the proofs pursuant to section 2-616(c). Mandel’s proposed amended

complaint added a request for monetary damages to count I, which was the specific performance

count, modified count II to claim lost resale profits rather than general monetary damages, and

added count III to request monetary damages in addition to specific performance. Mandel

claims that her proposed amended complaint would cure the defects of the original complaint by

circumventing the limitations that arise when pleading alternative causes of action in a

complaint.

       We disagree with Mandel that the trial court abused its discretion in denying leave to

amend her complaint pursuant to section 2-616(c). After final judgment, a party may amend

pleadings only to conform the pleadings to the proofs as provided by section 2-616(c).

According to section 2-616(c):

               “A pleading may be amended at any time, before or after judgment, to conform

       the pleadings to the proofs, upon terms as to costs and continuances that may be just.”

       735 ILCS 5/2-616(c) (West 2002).

We note that although this court encourages a liberal construction of section 2-616(c) as applied

to prejudgment motions, it has recognized a separate discretionary standard for allowing

amendments after judgment. Compton, 382 Ill. App. 3d at 332 (noting that a trial court’s

                                                  8
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decision to allow amendments before judgment is reviewed differently than a trial court’s

decision to allow amendments after judgment); Colgan v. Premier Electrical Construction Co.,

92 Ill. App. 3d 407, 412 (1981) (noting that different discretionary standards exist for permitting

postjudgment amendments).

       Citing authorities that involve prejudgment amendments, Mandel fails to persuade this

court that a trial court should exercise its discretion liberally in favor of allowing amendments

after final judgment. Mandel cannot restructure her original complaint after judgment by

labeling it as a section 2-616(c) amendment to conform the pleadings to the proofs. In her

original complaint, Mandel elected to request monetary damages resulting from the breach of

contract in the alternative to obtaining specific performance of the contract. Mandel in her

proposed amended complaint pleads monetary damages in addition to specific performance to

cure the limitations resulting from pleading in the alternative in a complaint. Seeking to remedy

the implications of requesting relief in the alternative in a complaint, however, is not a proper

basis to amend a complaint to conform to the proofs at trial.

       Also, Mandel contends that in reviewing the trial court’s decision to deny leave to

amend, this court should consider whether the amendment would cure the defective pleading,

whether the amendment would prejudice Hernandez and whether the amendment is timely.

Although these factors are among the factors that a reviewing court considers in deciding

whether the trial court properly ruled on a motion to amend, these factors do not apply to

amendments proposed after final judgment. Compton, 382 Ill. App. 3d at 332; see also

Kupianen v. Graham, 107 Ill. App. 3d 373, 377 (1982) (first articulating these factors in the

context of a motion to amend during the pleading stage). Even if those factors were applicable

to postjudgment motions to amend, Mandel would still not prevail in her claim because she had

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previous opportunities prior to final judgment to amend her complaint to eliminate the

alternative form of pleading. A section 2-616(c) motion is improper where, after judgment, the

moving party seeks to add claims or causes of action that were available at the time of the

original complaint. See Vanderplow v. Krych, 332 Ill. App. 3d 51, 58 (2002) (holding that a

request to add new causes of action was not a valid postjudgment motion); see generally Stringer

Construction Co. v. Chicago Housing Authority, 206 Ill. App. 3d 250, 260 (1990) (holding that

an amendment is inappropriate after the trial has begun if the issues could have been raised in the

original pleading and no excuse is given for failing to raise those issues earlier). Where a

moving party had previous opportunities to cure the asserted defect, the trial court does not

abuse its discretion by denying leave to amend. See Kostecki v. Dominick’s Finer Foods, Inc.,

361 Ill. App. 3d 362, 373-74 (2005) (holding that the trial court did not abuse its discretion by

denying leave to amend where it had already permitted amendment).

       Mandel relies on Talerico to support her position that a party may amend a complaint

after judgment to recover additional relief. In Talerico, the trial court permitted the plaintiff to

file a first amended complaint for damages but then dismissed the complaint pursuant to section

2-619(c) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(c) (West 2002)) after finding

that the damages were inconsistent with the grant of specific performance and were not

reasonably foreseeable. Talerico, 343 Ill. App. 3d at 129. Concluding that the trial court erred

in dismissing the complaint because the plaintiff could recover monetary damages in addition to

specific performance and a jury could find the damages reasonably foreseeable, this court

reversed and remanded. Talerico, 343 Ill. App. 3d at 132-33. The Talerico court, however, did

not consider whether it is appropriate to grant a postjudgment motion to amend. Thus, Talerico

is not dispositive on this issue and Mandel’s reliance on the case is not persuasive.

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       Moreover, although Mandel claims damages for lost resale profits caused by

Hernandez’s delay in performance as a separate count in the proposed amended complaint, the

original complaint may not be amended postjudgment to add that new count. Mandel submitted

exhibits and testimony regarding lost resale profits during the trial. Thus, Mandel could have

requested the lost profit relief and pled the cause of action in the original complaint or requested

permission from the trial court to amend the pleadings prior to final judgment because the basis

for recovering the monetary damages did not relate to any evidence that was not known when the

litigation commenced. We note that Mandel in her motion to amend the complaint stated in part

that “Mandel further established these damages through her own testimony, corroborated by

expert witnesses, and uncontoverted [sic] by the defendant.” Even though Mandel did not

specify in detail what the content of the proofs at trial were, she indicated that her testimony

constituted proof, which supports a conclusion that the matter she seeks to amend the complaint

with was within her knowledge when the litigation began and during the proceedings.

Generally, a trial court should not allow an amendment “after trial has begun if the proposed

amendment raises matters of which the pleader had full knowledge at the time of interposing the

original pleading and there is no excuse for failing to raise those matters in the original

pleading.” Stringer Construction Co., 206 Ill. App. 3d at 260. Mandel did not provide an

excuse as to why the request for monetary damages was not brought as a separate cause of action

in the originally filed complaint. Accordingly, the trial court did not abuse its discretion in

denying Mandel’s postjudgment motion to amend the pleadings to conform to the proofs at trial.

       Finally, we are not persuaded by Mandel’s alternative claim that the trial court should

have allowed the filing of the proposed amended complaint and conducted a separate hearing or

trial regarding the damages that Mandel incurred as a result of the delay in Hernandez’s

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performance. Mandel contends that the trial court erred in denying her motion to amend her

complaint to state a new cause of action for damages incident to the delay in specific

performance of the contract. Mandel claims that a cause of action for damages incident to a

delay in specific performance does not ripen and accrue until the award of specific performance

is entered.

        In essence, Mandel’s claim is that she requested leave to amend the complaint

postjudgment to add a new cause of action and the trial court erred in denying that request.

Amendments to pleadings to add a new cause of action may be allowed at any time before final

judgment. 735 ILCS 5/2-616(a) (West 2002). A complaint “may only be amended after

judgment to conform the pleadings to the proofs.” Witvoet v. Fireman’s Fund Insurance, Inc.,

317 Ill. App. 3d 915, 920 (2000). Amending a complaint to add a new cause of action is not a

proper postjudgment motion. Fleisch v. First American Bank, 305 Ill. App. 3d 105, 110 (1999).

Moreover, if the trial court enters a final judgment in a case, a plaintiff has no statutory right to

amend a complaint. Compton, 382 Ill. App. 3d at 332. In this alternative claim on appeal,

Mandel maintains that the trial court erred in denying the motion to amend to add a new cause of

action and in not conducting a separate hearing or a new trial regarding the damages issue.

Mandel’s request fails to adhere to the well-settled law that a complaint may not be amended

postjudgment. Fleisch, 305 Ill. App. 3d at 110. Accordingly, the trial court did not abuse its

discretion in denying Mandel’s motion to amend the complaint and conduct a separate hearing or

new trial to address the damages issue.




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                                             Conclusion

       For the foregoing reasons, we conclude that the trial court did not abuse its discretion in

denying Mandel’s request for relief consisting of both specific performance and estimated lost

resale profits that were uncertain and not contemplated at the time of contract. The trial court

also did not abuse its discretion in denying Mandel’s request in a posttrial motion to amend the

pleadings to conform to the proofs at trial because the information supporting the requested

relief was available at the time of the original complaint and after the proceedings commenced.

Finally, the trial court did not abuse its discretion in denying the request to amend the pleadings

to add a new cause of action and hold an evidentiary hearing or new trial addressing the

monetary damages claim because amendments to a complaint postjudgment other than to

conform to the proofs are not permitted.

       Affirmed.

       O’MARA FROSSARD, and NEVILLE, JJ., concur.




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               REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

                           (Front Sheet to be Attached to Each case)

      ________________________________________________________________________



      MARYBELLE MANDEL,



                  Plaintiff-Appellant,



      v.



      THOMAS E. HERNANDEZ,



                  Defendant-Appellee.



      ________________________________________________________________________



                                           No. 1-09-3044



                                    Appellate Court of Illinois

                                  First District, Fourth Division



                                         September 23, 2010

      ________________________________________________________________________

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               PRESIDING JUSTICE GALLAGHER delivered the opinion of the court.



                         O’MARA FROSSARD and NEVILLE, JJ., concur.



       ________________________________________________________________________



                           Appeal from the Circuit Court of Cook County.



                             Honorable Nancy J. Arnold, Judge Presiding.

       ________________________________________________________________________



       For APPELLANT, Lawrence G. Zdarsky, Woodridge, IL (Lawrence G. Zdarsky, of

counsel)



       For APPELLEE, Gerald P. Nordgren and Marie C. Fahnert, Chicago, IL (Gerald P.

Nordgren, Marie C. Fahnert, of counsel)




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