                               Illinois Official Reports

                                       Appellate Court



                  Westlake Financial Group, Inc. v. CDH-Delnor Health System,
                                   2015 IL App (2d) 140589



Appellate Court           WESTLAKE FINANCIAL GROUP, INC., Plaintiff-Appellant, v.
Caption                   CDH-DELNOR HEALTH SYSTEM, f/k/a Delnor Community
                          Health System, Defendant-Appellee.


District & No.            Second District
                          Docket No. 2-14-0589


Filed                     January 6, 2015


Held                       The trial court’s dismissal of plaintiff’s complaint for breach of
(Note: This syllabus contract arising from a brokerage agreement under which defendant
constitutes no part of the hired plaintiff to act as defendant’s insurance broker to procure
opinion of the court but benefits for defendant’s employees was reversed, since the trial court
has been prepared by the erred in determining that a termination clause in a separate contract
Reporter of Decisions between the parties permitted defendant to terminate the contract at
for the convenience of issue without cause and that plaintiff’s damages were barred by a
the reader.)               limitation-of-liability clause, especially when the two contracts dealt
                           with different subject matter and the termination clauses did not
                           equally apply to both contracts, and the limitation-of-liability clause
                           barred only consequential damages from lost profits, not direct
                           damages from lost profits.



Decision Under            Appeal from the Circuit Court of Lake County, No. 13-L-747; the
Review                    Hon. Diane E. Winter, Judge, presiding.



Judgment                  Reversed and remanded.
     Counsel on               Robert S. Reda and Kristina A. McClure, both of Reda & Des Jardins,
     Appeal                   Ltd., of Lake Forest, for appellant.



                              Alison C. Conlon and Colleen J. Balek, both of Barnes & Thornburg
                              LLP, of Chicago, for appellee.




     Panel                    JUSTICE SPENCE delivered the judgment of the court, with opinion.
                              Justices McLaren and Hudson concurred in the judgment and opinion.




                                               OPINION

¶1          Plaintiff, Westlake Financial Group, Inc. (Westlake), appeals from the trial court’s
       dismissal of its amended breach-of-contract complaint against defendant, CDH-Delnor
       Health System, f/k/a Delnor Community Health System (Delnor). Westlake argues that the
       trial court erred in ruling that: (1) a termination clause in a separate contract allowed Delnor
       to terminate the agreement at issue without cause; and (2) all of Westlake’s damages were
       barred under a limitation-of-liability clause. We conclude that, while the contracts should be
       construed together, their termination clauses do not equally apply to both contracts, which
       cover different subject matter. We also conclude that the limitation-of-liability clause bars
       only consequential damages from lost profits and not direct damages from lost profits. We
       therefore reverse and remand.

¶2                                         I. BACKGROUND
¶3         Westlake filed its initial complaint on October 2, 2013. The trial court granted Delnor’s
       motion to dismiss the complaint, and Westlake was given leave to amend its complaint.
       Westlake filed an amended complaint on March 18, 2014, alleging as follows in relevant
       part. On January 1, 2008, Westlake and Delnor entered into a brokerage agreement (General
       Service Agreement or GSA) whereby Delnor hired Westlake to, inter alia, act as its
       insurance broker and procure benefits for its employees. Westlake agreed to create and/or
       provide the following: a confidential and secure website branded and coded for Delnor’s
       employees to manage their healthcare and benefits; use of Westlake’s “Online Enrollment
       System” software through the Delnor website; confidential and secure administration of
       benefits; a benefit call center; and confidential and secure access to and use of Westlake’s
       “WITS Program,” subject to a “WITS Program Service Agreement” (WITS Agreement),
       through which Delnor employees could track the resolution of issues concerning their
       individual benefits and claims. In exchange for its services, Westlake would be paid certain




                                                  -2-
     fees and receive certain commissions. The terms of the agreement were to begin on January
     1, 2010, and terminate on December 31, 2014.1
¶4       Westlake further alleged as follows. It performed all of its duties under the General
     Service Agreement and the WITS Agreement, as well as a “Non-Disclosure Agreement,”
     excepting only performance prevented by Delnor’s actions. The termination clause in
     paragraph 3.2 of the GSA stated:
                 “Termination by Delnor. Delnor may terminate this Agreement at any time upon
             sixty (60) days prior written notice if (i) WestLake[ 2 ] is unable to fulfill its
             responsibilities under this Agreement, or WestLake is otherwise in material breach of
             any provision of this Agreement, and (ii) Delnor has given WestLake written notice
             of such failure or breach and WestLake has not cured such deficiency during such
             sixty (60) day period.”
     The WITS Agreement also had a termination clause, but its integration clause stated that the
     termination clause was limited to the WITS Agreement only. On about March 31, 2011,
     Delnor breached the GSA’s termination clause by one or more of the following acts: (1)
     notifying Westlake in a letter dated April 18, 2011, that it had replaced Westlake as its
     insurance broker effective March 31, 2011; (2) merging into CDH-Delnor Health System and
     ceasing to exist as a separate corporate entity; and (3) hiring another company to provide it
     brokerage services. Delnor confirmed the March breach on December 30, 2011, by
     discontinuing use of Westlake’s brokerage services, switching to another broker, and
     refusing to make any further payments under the GSA. As a direct result, Westlake suffered
     the loss of at least 24 months of commissions on benefits as guaranteed by the GSA, leading
     to damages exceeding $350,000. The costs saved by Westlake in not having to perform the
     remainder of the agreement were nominal because it had already completed the Delnor
     website and because Westlake’s support center and WITS program were already staffed as
     fixed costs of Westlake’s operations. Alternatively, Westlake lost “the value of creating and
     providing the Delnor Website and the WITS Service,” which Westlake believed exceeded
     $100,000.
¶5       On April 15, 2014, Delnor filed a motion to dismiss the amended complaint under section
     2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). It argued that,
     based on the GSA’s integration clause and the fact that the parties contemporaneously
     executed both the GSA and the WITS Agreement, the agreements should be read together
     and thus Delnor properly terminated the GSA by giving Westlake more than 60 days’ written
     notice under the WITS Agreement’s termination clause, which stated:
                 “Term: Termination. This Agreement will commence on January 1, 2008, and
             continue for a five year period until December 31, 2012, unless terminated earlier in
             accordance with this Section 5 of the Agreement [(the same paragraph)]. Either party
             may terminate this Agreement by written notice if the other party materially defaults
             in the performance of any of its material duties or obligations hereunder, and such
             default is not substantially cured within sixty (60) days after written notice from the

         1
            The GSA actually stated that it was effective through December 31, 2012, as Westlake
     acknowledges in its brief’s statement of facts.
          2
            The contract refers to Westlake as “WestLake,” but we use the spelling Westlake applies to itself
     in its briefs.

                                                    -3-
               other party describing the material default. Either party may terminate this Agreement
               for any reason by providing sixty (60) days prior written notice to the other party.”
               (Emphasis added.)
       Delnor alternatively argued that Westlake could not recover for breach of contract because its
       damages claim was uncertain, speculative, and limited by the GSA’s clear language.
¶6         The trial court granted Delnor’s motion to dismiss on May 21, 2014. The trial court found
       as follows. The GSA and the WITS Agreement were to be read together, as they were
       executed at the same time and by the same parties as part of the same transaction. Further,
       the agreements’ termination clauses were not inconsistent or contradictory. Delnor was
       allowed to terminate the contracts without cause by giving at least 60 days’ notice to
       Westlake. Moreover, Westlake failed to sufficiently allege its damages, as lost profits were
       not recoverable under the GSA’s limitation-of-liability clause.
¶7         Westlake timely appealed.

¶8                                            II. ANALYSIS
¶9                                        A. Standard of Review
¶ 10       On appeal, Westlake argues that the trial court erred in granting Delnor’s motion to
       dismiss under section 2-615 of the Code. A section 2-615 motion to dismiss attacks the legal
       sufficiency of the complaint. DeHart v. DeHart, 2013 IL 114137, ¶ 18. In ruling on a section
       2-615 motion, a court must accept as true all well-pleaded facts in the complaint as well as all
       reasonable inferences. Id. A cause of action should not be dismissed under section 2-615
       unless no set of facts can be proved entitling the plaintiff to recover. Id. The central inquiry is
       whether the allegations, when construed in the light most favorable to the plaintiff,
       sufficiently state a cause of action upon which relief can be granted. Id. We review de novo
       an order granting a section 2-615 motion to dismiss. Id.
¶ 11       This case also involves the interpretation of contracts. In construing a contract, the
       primary objective is to give effect to the parties’ intent, and we will first look to the
       contract’s language to determine that intent. Thompson v. Gordon, 241 Ill. 2d 428, 441
       (2011). We construe a contract as a whole, viewing each provision in light of other
       provisions. Id. If the contract’s words are clear and unambiguous, they will be given their
       plain, ordinary, and popular meaning. Id. We review a contract’s interpretation de novo. Carr
       v. Gateway, Inc., 241 Ill. 2d 15, 20 (2011).

¶ 12                                    B. Termination Clauses
¶ 13       Westlake notes that, in Delnor’s April 18, 2011, letter, Delnor stated that effective March
       31, 2011, Delnor Community Health System officially merged with Central Du Page Health
       to form a new, yet-to-be-named health system. The letter stated that the new health system
       had “engaged Towers Watson to facilitate and serve as Broker of Record for the benefits
       integration process from this date forward.” The letter stated that any changes to the existing
       program, including vendor relationships, would become effective January 1, 2012. Westlake
       argues that the merger with another company, under which Delnor Community Health
       System ceased to exist, and the replacement of Westlake with Towers Watson as broker of
       record breached paragraph 3.2 of the GSA.


                                                    -4-
¶ 14        As Westlake recognizes, Delnor does not argue that the termination was proper under
       paragraph 3.2 of the GSA, under which there must have been a material breach with notice
       and a 60-day opportunity to cure. Rather, Delnor relies on paragraph 5 of the WITS
       Agreement, which allows termination with or without cause with 60 days’ notice. The issue
       is whether the termination clause in the WITS Agreement also applies to the GSA.
¶ 15        Westlake points out that Delnor relied on Tepfer v. Deerfield Savings & Loan Ass’n, 118
       Ill. App. 3d 77 (1983), among other cases, in the trial court. There, the court stated: “The
       general rule is that in the absence of evidence of a contrary intention, where two or more
       instruments are executed by the same contracting parties in the course of the same
       transaction, the instruments will be considered together and construed with reference to one
       another because they are, in the eyes of the law, one contract.” (Emphasis added.) Id. at 80.
       Westlake argues that the crucial point here is that the instruments must not disclose a
       contrary intention. Westlake notes that the Tepfer court stated that, where separate documents
       are executed as part of a mortgage transaction, a stipulation or condition in one but not the
       other is an effective part of the parties’ contract, as long as there is no necessary
       inconsistency. Id. at 81. Westlake maintains that, if there is an inconsistency or contrary
       intention in the documents, the limiting term will be given effect, as shown by the Tepfer
       court’s statement that “[c]onstruing contemporaneous instruments together means simply that
       if there are any provisions in one instrument limiting, explaining, or otherwise affecting the
       provisions of another, they will be given effect.” Id. at 80.
¶ 16        Westlake argues that the two instruments here disclose obvious and contrary intentions of
       the parties, as the GSA requires a material breach, notice, and a 60-day opportunity to cure,
       whereas the WITS Agreement is much broader, allowing termination with or without cause.
       Westlake argues that under Tepfer the court must give effect to the limiting termination
       clause in the GSA and Delnor cannot rely on the unrestricted clause in the WITS Agreement.
       Westlake argues that to reject the GSA’s limitations on termination would also violate the
       principle that a court will not interpret a contract in a manner that would nullify provisions or
       render them meaningless. See Thompson, 241 Ill. 2d at 442.
¶ 17        Westlake additionally argues that Delnor cannot rely on the contracts’ integration clauses
       to support dismissal. Westlake argues that an integration clause is intended to prevent parties
       from using parol evidence outside of the four corners of a contract (see W.W. Vincent & Co.
       v. First Colony Life Insurance Co., 351 Ill. App. 3d 752, 758 (2004) (where contract contains
       an integration clause, the court will not consider parol evidence of prior negotiations to create
       an extrinsic ambiguity)), but that here the two termination clauses are inconsistent on their
       face.
¶ 18        The GSA’s integration clause states, in pertinent part:
                   “Entire Agreement. This Agreement is the complete and exclusive agreement
               between the parties with respect to the subject matter hereof, superseding and
               replacing any and all prior agreements, communication, and understandings (both
               written and oral) regarding such subject matter except for (i) that certain WITS
               Program Service Agreement dates as of an even date herewith by and between
               WestLake and Delnor and (ii) that certain Mutual NonDisclosure Agreement dates as
               of an even date herewith by and between WestLake and Delnor. This Agreement may
               be modified, or any rights under it waived, only by a written document executed by


                                                   -5-
                both parties. This Agreement may be executed in any number of counterparts, all of
                which taken together shall construe a single instrument.” (Emphasis added.)
       The WITS Agreement’s integration clause states:
                    “Entire Agreement. This Agreement is the complete and exclusive agreement
                between the parties with respect to the subject matter hereof, superseding and
                replacing any and all prior agreements, communication, and understandings (both
                written and oral) regarding such subject matter. This Agreement may be modified, or
                any rights under it waived, only by a written document executed by both parties. This
                Agreement may be executed in any number of counterparts, all of which taken
                together shall construe a single instrument.” (Emphasis added.)
¶ 19       Westlake argues that the WITS Agreement’s integration clause shows that the parties
       clearly intended its provisions to apply only to the subject matter therein. According to
       Westlake, the integration clauses do not allow Delnor to use the broad termination language
       from the WITS Agreement to override the parties’ clear intent to restrict the termination of
       the GSA to material breaches, with notice and a 60-day opportunity to cure.
¶ 20       For its part, Delnor argues that the GSA and the WITS Agreement must be construed
       together as one agreement because (1) the GSA specifically incorporates the WITS
       Agreement, and (2) the agreements were executed simultaneously by the same parties as part
       of the same transaction. Regarding contractual language, Delnor notes that the GSA states
       that it incorporates the WITS Agreement, as follows:
                    “WITS Service. WestLake shall allow the Delnor employees to participate in,
                access, and use the WestLake Issue Tracking System (the ‘WITS Program’), as
                further described in, and on the terms and conditions set forth in the WITS Program
                Service Agreement. A copy of the WITS Program Service Agreement between
                WestLake and Delnor is attached hereto as Exhibit B and incorporated herein by
                reference.” (Emphases added.)
       Delnor cites Wilson v. Wilson, 217 Ill. App. 3d 844, 853 (1991), where the court stated that, if
       a contract shows an intent to incorporate another document by reference, the “additional
       provisions become as much a part of the contract as if they were expressly written in it.”
       Delnor also argues that the GSA’s integration clause confirms the parties’ intent to
       incorporate the WITS Agreement’s terms into the GSA, because the integration clause
       explicitly excludes the WITS Agreement from its statement that its provisions represent the
       entire agreement. Cf. W.W. Vincent & Co., 351 Ill. App. 3d at 758-59 (where integration
       clause referenced other documents as part of the main agreement, it was apparent that the
       parties intended that their agreement include the subject matter of the additional documents).
¶ 21       Regarding the timing of the transaction, Delnor argues that the parties executed the GSA
       and the WITS agreement at the same time, through the same representatives, and as part of
       the same transaction to provide insurance brokerage services. Therefore, according to Delnor,
       the contracts must be construed together in their entirety. Cf. In re Estate of Mayfield, 288 Ill.
       App. 3d 534, 541 (1997) (where two or more instruments are executed by the same parties as
       part of the same transaction, they will be considered together and construed with reference to
       one another because the law views them as one contract).
¶ 22       We agree with Delnor that the GSA’s language shows that the parties intended that it be
       construed together with the WITS Agreement, as the aforementioned language in the GSA


                                                   -6-
       expressly incorporates the WITS Agreement and the GSA integration clause states that it
       contains the entire agreement but explicitly makes an exception for the WITS Agreement.
       Based on this express intention, we do not need to reach the issue of whether the timing of
       the transaction and the content of the documents would independently allow the documents
       to be construed together. For this reason, Westlake’s arguments based on Tepfer are
       unavailing, as the contracts in that case did not contain the same explicit incorporation
       provisions present here. Even otherwise, Tepfer stated that, where there is no “contrary
       intention,” documents signed at the same time by the same parties as part of the same
       transaction would be construed together (Tepfer, 118 Ill. App. 3d at 80), and here the parties’
       clear intention through their express language was that the agreements be construed together.
¶ 23        Although we agree with Delnor that the parties intended that the GSA and the WITS
       Agreement be construed together, that intention does not establish that the WITS
       Agreement’s termination clause serves as a means to terminate the GSA. Westlake argues
       that the termination provisions cannot overlap because they are inconsistent, in that the GSA
       requires a material breach, notice, and a 60-day opportunity to cure, whereas the WITS
       Agreement is much broader, allowing termination with or without cause.
¶ 24        Indeed, the principle that the agreements should be “considered together and construed
       with reference to one another” (id.) does not mean that provisions relating to one subject
       automatically apply to every subject. The parties chose to make the WITS Agreement a
       separate document, attached as an exhibit to the GSA. The GSA provision incorporating the
       WITS Agreement specifically refers to the terms and conditions set forth in that agreement as
       governing the WITS service, rather than the parties’ entire agreement. See 11 Richard A.
       Lord, Williston on Contracts § 30:25 (4th ed. 2014) (“[W]hen incorporated matter is referred
       to for a specific purpose only, it becomes a part of the contract for that purpose only, and
       should be treated as irrelevant for all other purposes.”).
¶ 25        Also, as Westlake points out, the WITS Agreement’s integration clause states that the
       agreement is the entire agreement between the parties with respect to its “subject matter.”
       That subject matter is exclusively Delnor’s use of Westlake’s issue-tracking system, while
       the GSA’s subject matter is Westlake’s serving as insurance broker for Delnor’s employees.
       In this manner, this situation is distinguishable from the cases relied on by Delnor, as the
       multiple contracts in those cases referred to exactly the same subject matter. See In re Estate
       of Mayfield, 288 Ill. App. 3d at 536-37 (involving original and supplemental agreements);
       Wilson, 217 Ill. App. 3d at 846-48 (involving original and restated agreements). We agree
       with Westlake’s argument that, logically, Delnor could terminate the WITS Agreement at
       any time without interrupting employee access to insurance benefits under the GSA.
¶ 26        Construing the plain language of both agreements as a whole, we conclude that the WITS
       Agreement’s termination provision does not apply to the GSA. Such an interpretation is
       consistent with the principle that when possible a court should give meaning and effect to
       every provision and not nullify provisions or render them meaningless (see Board of
       Managers of Hidden Lake Townhome Owners Ass’n v. Green Trails Improvement Ass’n, 404
       Ill. App. 3d 184, 190 (2010)), in that it is the only interpretation that gives effect to the
       parties’ stated intentions in both agreements. In other words, the parties chose to include
       different termination language in the WITS Agreement and the GSA, and the aforementioned
       interpretation gives effect to the distinction. As such, the trial court erred in granting the


                                                  -7-
       section 2-615 motion to dismiss on the basis that the without-cause termination provision in
       the WITS Agreement applied to the GSA as well.

¶ 27                                            C. Damages
¶ 28                                 1. Limitation-of-Liability Clause
¶ 29       The trial court also granted the section 2-615 motion to dismiss on the alternative basis
       that Westlake failed to adequately allege damages. The trial court reasoned that lost profits
       were not recoverable under the GSA’s limitation-of-liability clause, which states:
                   “Limitation of Liability. Except with respect to the indemnification and
               confidentiality obligations contained in this Agreement or any Exhibit hereunder,
               without limitation to the foregoing, under no circumstances shall either party be liable
               to the other party for any indirect, incidental, consequential, special, punitive or
               exemplary damages, even if either party has been advised of the possibility of such
               damages, arising from this Agreement, such as, but not limited to, loss of revenue or
               anticipated profits or lost business.” (Emphases added.)
¶ 30       Contract damages are measured by the amount of money needed to place the plaintiff in
       the same position as if the contract had been performed. In re Illinois Bell Telephone Link-Up
       II & Late Charge Litigation, 2013 IL App (1st) 113349, ¶ 19. Clauses limiting damages are
       enforced due to the strong public policy favoring freedom of contract, but such clauses are
       not favored and will be strictly construed against a benefitting party. Hicks v. Airborne
       Express, Inc., 367 Ill. App. 3d 1005, 1011 (2006). Damages are an essential element of a
       breach-of-contract claim, so a plaintiff’s failure to prove damages entitles the defendant to
       judgment as a matter of law. In re Illinois Bell Telephone Link-Up II, 2013 IL App (1st)
       113349, ¶ 19; see also Palmolive Tower Condominiums, LLC v. Simon, 409 Ill. App. 3d 539,
       547 (2011) (affirming trial court’s dismissal of counterclaims for failing to sufficiently allege
       damages).
¶ 31       Westlake notes that there is a distinction between direct damages and consequential
       damages. “Direct damages,” also called “general damages,” are “[d]amages that the law
       presumes follow the type of wrong complained of.” Black’s Law Dictionary 394 (7th ed.
       1999). “Consequential damages” are losses or injuries that do not flow directly and
       immediately from a party’s wrongful act but rather result indirectly from the act. Hartford
       Accident & Indemnity Co. v. Case Foundation Co., 10 Ill. App. 3d 115, 124 (1973); Black’s
       Law Dictionary 394 (7th ed. 1999); see also 24 Richard A. Lord, Williston on Contracts
       § 64:12 (4th ed. 2014) (general damages are those that naturally flow from the breach while
       consequential damages were not the invariable result of such a breach but were reasonably
       foreseeable or contemplated by the parties as a probable result of a breach when the contract
       was entered).
¶ 32       Westlake further notes that lost profits can be categorized as either direct or
       consequential damages, depending on the situation. For example, in Midland Hotel Corp. v.
       Reuben H. Donnelley Corp., 118 Ill. 2d 306, 319 (1987), the supreme court stated that, as a
       matter of law, the plaintiff’s lost profits from the defendant’s breach of an oral contract to
       properly include it in the first issue of a newly published telephone directory were a direct
       result of the defendant’s breach. On the other hand, lost profits were deemed consequential



                                                   -8-
       damages in Burrus v. Itek Corp., 46 Ill. App. 3d 350, 358 (1977) (consequential damages
       incurred where defective printing press caused decrease in output).
¶ 33       Delnor argues that there is no distinction in Illinois between direct and consequential lost
       profits and that lost profits can form only consequential damages. It argues that Midland
       Hotel Corp. is inapposite because that case involved an oral contract without a
       limitation-of-liability clause. While we agree that the types of contracts involved are
       distinguishable, Midland Hotel Corp., 118 Ill. 2d at 319, clearly held that the lost profits were
       a direct result of the defendant’s breach of contract, thus supporting the proposition that lost
       profits can be labeled as direct damages in some circumstances.
¶ 34       Having determined that lost profits can be categorized as either direct or indirect
       damages, depending on the situation, we turn to the issue of whether the GSA’s
       limitation-of-liability clause excluded any damages from lost profits. Westlake argues that
       the ordinary and customary meaning of the phrase “such as, but not limited to,” which is
       contained in the clause, is “for example.” We agree that this is the plain meaning of the
       phrase. Cf. People v. Greene, 96 Ill. 2d 334, 339 (1983) (phrase “ ‘such as, but not limited
       to’ ” provided guidance on the kinds of explosive devices prohibited by a statute).
¶ 35       Westlake argues that, while there is no Illinois authority directly on point regarding the
       language contained in the limitation-of-liability clause, cases in other jurisdictions show that
       the clause should be interpreted to prohibit only indirect damages from lost profits and allow
       direct damages from lost profits. Westlake first cites cases with the phrase “including, but not
       limited to,” which Westlake maintains is analogous. In Penncro Associates, Inc. v. Sprint
       Spectrum, L.P., 499 F.3d 1151, 1156 (10th Cir. 2007), the court stated that direct damages
       were the benefit of the bargain that the party lost from the contract itself, while consequential
       damages were economic harm beyond the contract’s immediate scope. The contract at issue
       prohibited the recovery of “ ‘consequential damages,’ specifying that they ‘include, but are
       not limited to, lost profits, lost revenues and lost business opportunities.’ ” Id. at 1155-56.
       The defendant argued that the language meant that any lost profits were consequential
       damages and thus prohibited. Id. at 1156. The Tenth Circuit rejected this argument, stating
       that the “more general term informs the subsequently listed examples, not the other way
       around, and so lost profits here refer only to those that are ‘a part or component’ of the larger
       group or class of consequential damages.” Id. It concluded that the language barred the
       recovery of only consequential lost profits, not direct lost profits. Id. Specifically, it stated:
       “We hold that, in keeping with plain meaning and legal norms, where parties to an agreement
       exclude liability only for consequential damages, profits lost as a direct result of a breach
       may be recovered.” Id. at 1162.
¶ 36       Westlake also cites other cases applying analogous reasoning to clauses containing
       similar language. See In re First Magnus Financial Corp., No. AZ-10-1006-JuMkKi, 2010
       WL 6452904, at *6 (B.A.P. 9th Cir. Aug. 31, 2010) (limitation clause prohibiting
       consequential damages including lost profits did not apply to direct loss of anticipated profits
       arising from the debtor’s breach of contract); Peter Kiewit Sons’ Inc. v. ATSER, LP, No.
       8CV541, 2010 WL 1417811, at *3 (D. Neb. Apr. 1, 2010) (lost profits and lost revenue were
       not, by definition, consequential damages); Claredi Corp. v. SeeBeyond Technology Corp.,
       No. 4:04CV1304 RWS, 2010 WL 1257946, at *6 (E.D. Mo. Mar. 26, 2010) (plain reading of
       limitation clause limited only indirect loss of profits and not profits that were direct
       damages).

                                                   -9-
¶ 37       Westlake argues that the same result has been reached with another analogous term,
       “including, without limitation.” Westlake cites Optimal Interiors, LLC v. HON Co., 774 F.
       Supp. 2d 993 (S.D. Iowa 2011). There, the contract stated that there would be no liability for
       “ ‘SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING,
       WITHOUT LIMITATION, LOST PROFITS OR REVENUES.’ ” (Emphasis omitted.) Id. at
       1008. The court stated that lost profits or revenues as used in the clause were illustrative of
       the types of special, incidental, or consequential damages that were disclaimed, and that the
       clause did not preclude the recovery of direct lost profits. Id. at 1010.
¶ 38       Westlake argues that the above examples are readily distinguishable from the contract
       language found in Quicksilver Resources, Inc. v. Eagle Drilling, L.L.C., No. H-08-868, 2009
       WL 1312598, at *5 (S.D. Tex. May 8, 2009), which stated that the parties would hold each
       other harmless for special, indirect, or consequential damages, which “ ‘shall be deemed to
       include, without limitation, the following: loss of profit or revenue.’ ” The court
       distinguished that language from the phrase “ ‘includ[ing], but *** not limited to, lost
       profits,’ ” which it stated implied that other, unlisted damages also might be consequential
       damages. (Emphasis omitted.) Id. at *6-7. The court stated that, in contrast, the agreement
       before it “manifest[ed] a clear intent by the parties to modify the legal meaning and breadth
       of the term ‘consequential damages,’ ” such that the specifically enumerated types of
       damages were barred from recovery. Id. at *7.
¶ 39       Delnor counters that Reuben H. Donnelley Corp. v. Krasny Supply Co., 227 Ill. App. 3d
       414 (1991), controls here. In that case, the plaintiff sued the defendant for failing to pay the
       cost of an advertisement it placed in the plaintiff’s telephone yellow pages directory. The
       defendant filed a counterclaim for consequential damages from lost profits on the basis that
       the plaintiff had erroneously printed the advertisement with the phone number of the
       defendant’s competitor. The contract contained an exculpatory clause stating that the plaintiff
       “[u]nder no circumstances shall *** be liable for special consequential or exemplary
       damages.” (Internal quotation marks omitted.) Id. at 417. The trial court ruled that the clause
       barred the counterclaim, and it entered partial summary judgment for the plaintiff. Id. at 416.
       The appellate court agreed with the trial court’s reasoning and affirmed. Id. at 421.
¶ 40       Delnor argues that it agreed to pay commissions to Westlake under the GSA and that the
       lost commissions Westlake now seeks are considered lost profits under Illinois law. See
       Equity Insurance Managers of Illinois, LLC v. McNichols, 324 Ill. App. 3d 830, 837 (2001)
       (equating lost commissions to lost profits). Delnor argues that, as in Reuben H. Donnelley
       Corp., the limitation-of-liability clause plainly shows the parties’ intent to bar the recovery of
       lost profits.
¶ 41       As for the federal cases relied on by Westlake, Delnor points out that lower federal court
       decisions are not binding on Illinois courts. See Wilson v. County of Cook, 2012 IL 112026,
       ¶ 30. Delnor also argues that Westlake’s reliance ignores the GSA’s plain language in favor
       of cases involving very different circumstances and very different state laws. It contends that,
       even if we were to consider the cases persuasive, each is distinguishable in that: (1) Penncro
       Associates, Inc., 499 F.3d 1151, and In re First Magnus Financial Corp., 2010 WL 6452904,
       each involved a party’s promise to pay fixed minimums during the contract term, the loss of
       which the court construed as direct damages, but here there were no fixed minimums or
       guaranteed commissions; (2) the court in Claredi Corp., 2010 WL 1257946, held that lost
       profits may be direct damages under California law, but there was a question of fact about

                                                   - 10 -
       damages; (3) in Peter Kiewit Sons’ Inc., 2010 WL 1417811, the court allowed the plaintiff to
       present to the jury its theory that lost profits were direct damages, but the actual language of
       the clause was not fully recited in the opinion; and (4) in Optimal Interiors, LLC, 774 F.
       Supp. 2d 993, the court ultimately characterized lost profits as consequential or indirect
       damages.
¶ 42        Delnor argues that Quicksilver Resources, 2009 WL 1312598, is the most factually
       analogous case. Delnor maintains that here, as in Quicksilver Resources, the parties agreed to
       a broadly worded limitation-of-liability clause that included all “loss of revenue or
       anticipated profits or lost business” as consequential damages. Delnor argues that, regardless
       of whether the result of the clause seems harsh, Westlake accepted the risk by preparing and
       executing the agreements.
¶ 43        Again, the GSA’s limitation-of-liability clause states that neither party shall “be liable to
       the other party for any indirect, incidental, consequential, special, punitive or exemplary
       damages, even if either party has been advised of the possibility of such damages, arising
       from this Agreement, such as, but not limited to, loss of revenue or anticipated profits or lost
       business.” (Emphases added.) As stated, we agree with Westlake that the plain meaning of
       the phrase “such as, but not limited to,” is “for example.” Supra ¶ 34. We further agree with
       the reasoning in the federal cases that Westlake cites, which construe similar language as
       prohibiting damages for consequential or indirect lost profits but not direct lost profits. While
       cases from lower federal courts are not binding, we may consider them as persuasive
       authority. Wilson, 2012 IL 112026, ¶ 30.
¶ 44        Delnor’s attempts to distinguish these cases fall flat. Contrary to Delnor’s argument,
       Peter Kiewit Sons’ Inc. did include the agreement’s language, in a footnote; the agreement
       stated that the parties would not “be liable for consequential, incidental, indirect or special
       damages, including but not limited to lost profits,” which is similar to the language at issue
       here. Peter Kiewit Sons’ Inc., 2010 WL 1417811, at *3 n.1. Regarding the remaining cases,
       Delnor largely focuses on the courts’ ultimate conclusions as to whether the plaintiffs proved
       that they suffered lost profits as direct damages. Such an inquiry is premature here, as the
       trial court dismissed the amended complaint on the basis that the limitation clause barred any
       damages from lost profits. We recognize that in Optimal Interiors, LLC, 774 F. Supp. 2d at
       1012-13, the court ultimately determined that Iowa law categorized all lost profits as
       consequential damages, but the same is not true in Illinois. See Midland Hotel Corp., 118 Ill.
       2d at 319.
¶ 45        We also find without merit Delnor’s argument that this case is most akin to Quicksilver
       Resources, 2009 WL 1312598, at *5, as the language there stated that the parties would hold
       each other harmless for special, indirect, or consequential damages, which “ ‘shall be deemed
       to include, without limitation, the following: loss of profit or revenue.’ ” (Emphasis added.)
       The “without limitation” language is not present here, and not all courts even agree with the
       interpretation there. See, e.g., Optimal Interiors, LLC, 774 F. Supp. 2d at 1010 (disagreeing
       with Quicksilver Resources and stating that there is no material distinction between the
       phrases “including, but are not limited to” and “includ[ing], without limitation”);
       cf. Gardensensor, Inc. v. Stanley Black & Decker, Inc., No. 12-CV-03922 NC, 2014 WL
       4764628, at *2 (N.D. Cal. Sept. 24, 2014) (clause precluding liability for indirect damages,
       “including without limitation” lost profits, did not bar recovery of direct damages for lost
       profits). Delnor’s reliance on Reuben H. Donnelley Corp., 227 Ill. App. 3d at 416, also does

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       not change our result, as the party there sought only consequential damages in the first
       place.3
¶ 46       The plain language of the GSA’s limitation-of-liability clause bars “indirect, incidental,
       consequential, special, punitive or exemplary damages,” and it provides examples of
       subcategories of these groups, like lost profits. As in Penncro Associates, Inc., 499 F.3d at
       1156, the “more general term informs the subsequently listed examples, not the other way
       around, and so lost profits here refer only to those that are ‘a part or component’ of the larger
       group or class of consequential damages.” Therefore, the limitation-of-liability clause does
       not bar direct damages from lost profits, which are, at a minimum, arguably present here, so
       the trial court erred in relying on the clause as an alternative basis to grant the section 2-615
       motion to dismiss.

¶ 47                                      2. Term of Damages
¶ 48       Implicitly recognizing that we may affirm the trial court’s judgment on any basis
       provided by the record, regardless of whether the trial court relied on that basis or whether its
       reasoning was correct (Bjorkstam v. MPC Products Corp., 2014 IL App (1st) 133710, ¶ 23),
       Delnor argues that, even if the limitation-of-liability clause is inapplicable, Westlake’s
       request for 24 months of commissions is not supported by the agreements as a matter of law,
       because the unambiguous termination letter and a confirmation e-mail demonstrate that the
       termination was effective January 1, 2012. Therefore, argues Delnor, when it terminated
       Westlake effective January 1, 2012, only one more year remained under the five-year
       contract. However, as stated, a cause of action should not be dismissed under section 2-615
       unless no set of facts can be proved entitling the plaintiff to recover. DeHart, 2013 IL
       114137, ¶ 18. Therefore, even if Westlake miscalculated the exact timeframe for which it
       could obtain damages, it would not serve as a basis for a section 2-615 dismissal, as dismissal
       would be appropriate on this basis only if no damages could be proven.

¶ 49                             3. Whether Damages Are Speculative
¶ 50       Delnor additionally argues that dismissal under section 2-615 is proper because
       Westlake’s alleged damages are highly speculative based on the agreements’ language.
       Delnor argues that it did not promise or guarantee any minimum number of commissions to
       Westlake and that Westlake bore the clear contractual risk of receiving no commissions
       during any year when the agreements were in effect. Delnor argues that, recognizing this
       risk, Westlake included in the GSA a clause stating that, if the number of transactions
       became too low, Westlake had a right to terminate the agreement. 4 Delnor maintains that, as

           3
              We similarly find Lockwood v. Standard & Poor’s Corp., 289 Ill. App. 3d 194 (1997), a case not
       cited by either party, distinguishable. There, the court, which was applying New York law, stated, in
       dicta, that the contract precluded “recovery of consequential damages, including lost profits, arising out
       of the license agreement.” Id. at 198-99. However, the plaintiff was seeking lost profits due to the
       defendant’s alleged failure to correct a closing stock index value (id. at 195), which would necessarily
       be categorized as consequential profits, unlike the profits from commissions arising out of the contract
       at issue here.
            4
              The referenced clause in the GSA provides, in relevant part, “WestLake may also terminate this
       Agreement at any time upon sixty (60) days written notice if Delnor fails to continue or materially

                                                      - 12 -
       a matter of law, based on the contract language, Westlake had no expectation of future
       commissions.
¶ 51        “Damages are speculative when uncertainty exists as to the fact of their existence”
       (Thornhill v. Midwest Physician Center of Orland Park, 337 Ill. App. 3d 1034, 1051 (2003)),
       as opposed to the amount of damages (Goran v. Glieberman, 276 Ill. App. 3d 590, 595
       (1995)). Lost profits by their nature cannot be calculated with mathematical precision and
       therefore do not have to be proven with absolute certainty; instead, the evidence needs to
       provide only a reasonable basis for the computation of damages. Belleville Toyota, Inc. v.
       Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 361 (2002). To allow defendants to escape
       liability because the amount of damages they have caused is uncertain would immunize the
       defendants from the consequences of their wrongful conduct. Id.
¶ 52        Relevant to our analysis is Kay v. Prolix Packaging, Inc., 2013 IL App (1st) 112455, ¶ 34.
       There, the court held that a salesperson’s estimation of his damages from unpaid
       commissions did not amount to speculation and conjecture, but rather constituted reasonable
       inferences based on his personal knowledge and sales numbers from the relevant time period.
       The court stated that the sufficiency of the evidence of damages went to the weight of the
       salesperson’s testimony but not its admissibility. Id. Kay is distinguishable from this case in
       that the salesperson there was seeking damages from past commissions that he was allegedly
       owed but did not receive, not lost profits from future commissions. However, Kay’s
       reasoning still applies, as Westlake had been receiving commissions from Delnor for the
       previous four years and therefore had a concrete basis on which to estimate how much it
       would have received in commissions for the fifth year. Any shortcomings in its estimates
       would go to the weight to be given to the evidence of damages rather than its admissibility.
       Accordingly, Westlake’s alleged damages were not speculative as a matter of law, and this
       argument does not support the grant of the section 2-615 motion to dismiss.
¶ 53        Delnor argues that, even if Westlake could reasonably allege its right to recover some lost
       profits, Westlake impermissibly claims that any costs saved from not performing are
       nominal, already incurred, or fixed. Delnor cites S.A. Maxwell Co. v. DeSoto, Inc., 73 Ill.
       App. 3d 844, 850 (1979), for the proposition that a party cannot simply recover gross profits
       but must deduct all costs saved from nonperformance. However, we have already determined
       that Westlake’s damages are not speculative as a matter of law and that disagreements about
       the amount of damages cannot serve as a basis for dismissal. See Dienstag v. Margolies, 396
       Ill. App. 3d 25, 36 (2009) (determining the amount of damages is a function reserved for the
       trier of fact); cf. Anzalone v. Kragness, 356 Ill. App. 3d 365, 372 (2005) (it is not appropriate
       to dismiss a complaint under section 2-615 simply because the plaintiff’s prayer for relief
       was deemed extravagant).

¶ 54                                  4. Damages as Quasi-Contractual
¶ 55       Last, Delnor argues that Westlake improperly seeks quasi-contractual damages in its
       alternative allegation that it lost the value of creating the Delnor website. Delnor argues that
       Westlake cannot pursue this theory of recovery because Westlake has already conceded that
       there was a valid contract between the parties. Delnor cites Barry Mogul & Associates, Inc. v.

       reduces its coverage under or the service purchased from WestLake under the Covered Benefits
       Program.”

                                                  - 13 -
       Terrestris Development Co., 267 Ill. App. 3d 742, 750 (1994), where the court stated that, in
       general, a plaintiff cannot pursue a quasi-contractual claim where the parties have an
       enforceable express contract. Westlake disputes that its alternative theory seeks
       quasi-contractual relief. We need not resolve this issue, because we have already determined
       that Westlake has sufficiently alleged damages from lost profits. Therefore, even if Westlake
       is improperly seeking quasi-contractual damages in its alternative theory, it would not justify
       dismissing Westlake’s amended complaint under section 2-615.

¶ 56                                     III. CONCLUSION
¶ 57      For the reasons stated, we reverse the judgment of the Lake County circuit court granting
       Delnor’s section 2-615 motion to dismiss, and we remand the cause for further proceedings
       consistent with this opinion.

¶ 58      Reversed and remanded.




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