                                  Illinois Official Reports

                                          Appellate Court




                      Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071



                             PHYLLIS BATSON, Plaintiff-Appellee, v. THE OAK TREE,
Appellate Court
                             LIMITED, Defendant-Appellant (Hale Demar and The Oak Tree
Caption
                             Restaurant, Limited, Defendants).

District & No.               First District, First Division
                             Docket No. 1-12-3071


Filed                        December 2, 2013


Held                         On appeal from a judgment for plaintiff in an action alleging breach of
(Note: This syllabus         contract and retaliatory discharge from her position as a manager of
constitutes no part of the   defendant restaurant, the judgment was upheld over defendant’s
opinion of the court but     contention, inter alia, that the trial court erred in applying the
has been prepared by the     collateral source rule to prevent defendants from relying on the
Reporter of Decisions        affirmative defense of judicial estoppel and in rejecting defendant’s
for the convenience of       claim that there was insufficient evidence the contract was breached,
the reader.)                 since the collateral source rule was properly applied where plaintiff’s
                             retaliatory discharge claim was based only on her allegation that she
                             was terminated for filing a workers’ compensation claim and her
                             social security disability claim would not judicially estop that claim,
                             and defendant never presented any evidence that the basis for
                             discharging plaintiff was due to her inability to work.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-L-10997; the
Review                       Hon. James P. Flannery, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                  Robert Orman, of Chicago, for appellant.
     Appeal
                                 Andreou & Casson, Ltd., of Chicago (Frank J. Andreou, of counsel),
                                 for appellee.


     Panel                       JUSTICE DELORT delivered the judgment of the court, with opinion.
                                 Presiding Justice Connors and Justice Hoffman concurred in the
                                 judgment and opinion.


                                                 OPINION


¶1         Plaintiff Phyllis Batson filed a complaint against defendants The Oak Tree, Limited (Oak
       Tree), The Oak Tree Restaurant, Limited, and Hale Demar, alleging, inter alia, breach of
       contract and retaliatory discharge. A jury eventually awarded plaintiff $150,000 in damages on
       her breach of contract claim, and $50,000 on her retaliatory discharge claim. On appeal, Oak
       Tree 1 contends that the trial court erred in: (1) holding that the collateral source rule prohibited
       defendants from asserting the affirmative defense of judicial estoppel; (2) denying its motion
       for a new trial or judgment n.o.v. because there was insufficient evidence of a breach of
       contract; and (3) barring defendant from offering evidence of plaintiff’s failure to mitigate
       damages when it later instructed the jury that it was defendants’ burden to prove mitigation.
       For the following reasons, we affirm.

¶2                                          BACKGROUND
¶3         On September 27, 2010, plaintiff filed a seven-count complaint against defendants.
       Plaintiff alleged breach of contract against Oak Tree and Demar (counts I and II, respectively),
       tortious interference with contract against Demar (count III), and retaliatory discharge against
       Oak Tree and Demar (counts IV and V, respectively). Finally, plaintiff sought punitive
       damages against Oak Tree and Demar in her sixth and seventh “counts,” respectively. Pursuant
       to a subsequent stipulation, the case proceeded to trial solely on counts I, III, and IV, and the
       punitive damages claim against Oak Tree was not repleaded as a separate count.
¶4         Plaintiff alleged that she began working at Oak Tree in 1985 and rose to the position of
       manager. In 1995, she moved to Michigan, but returned to Waukegan, Illinois, in January
       1996. At that time, Hale Demar, the controlling shareholder of Oak Tree, asked her to return as
       manager of the restaurant. Demar offered to pay her $1,250 biweekly and, pursuant to a
       deferred compensation agreement, to contribute $20,000 annually to a trust account for


             1
              Demar and The Oak Tree Restaurant, Limited, are not parties to this appeal.
                                                       -2-
     plaintiff’s benefit for the duration of the eight-year contract. In late 1997, both parties executed
     the contract.
¶5       Plaintiff’s complaint then alleged that, in 2000, she suffered work-related injuries to her
     hands. Oak Tree denied that her injuries were work related, so plaintiff filed a claim for
     benefits under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2012)) (the
     Act). Plaintiff took a leave of absence in September 2000 due to her injuries, but was cleared to
     return to work in 2001. When she called to arrange her return on April 15, 2001, another
     manager at Oak Tree, Sisi Sun, told plaintiff that plaintiff no longer had a job and was not
     allowed to return to work. Finally, plaintiff alleged that, on February 22, 2001, prior to her
     termination, Demar closed out the trust account and deposited the balance into his personal
     account.
¶6       On May 25, 2012, defendants filed their answer and affirmative defenses. Their first
     affirmative defense asserted judicial estoppel. Specifically, defendants argued that plaintiff
     claimed that she was “totally continuously [sic] and totally disabled since September 9, 2000,”
     in a prior application for social security disability benefits and another application for
     supplemental security income, which defendants asserted were quasi-judicial proceedings
     under Illinois law. Defendants then pointed out that plaintiff’s complaint claimed that she had
     been “ ‘cleared to return to work at the Restaurant in 2001.’ ” Noting that plaintiff was
     successful in the first proceeding (before the Social Security Administration), defendants
     argued that plaintiff’s allegation in this lawsuit that she had been cleared to return to work was
     inconsistent with allegations she presented to the Social Security Administration. In support of
     this defense, defendants presented copies of plaintiff’s April 2002 application for social
     security disability income and her January 2004 application for supplemental disability
     income. The other relevant affirmative defense that defendants asserted related to the
     mitigation of damages. In two paragraphs, defendants stated that (1) plaintiff had a legal duty
     to mitigate her damages and (2) she claimed that she had never looked for work or any other
     source of income to mitigate her damages.
¶7       On June 6, 2012, the trial court granted plaintiff’s motion in limine, which sought to bar
     any statement regarding plaintiff’s application for social security benefits. The trial court
     agreed with plaintiff’s contention that the collateral source rule precluded Oak Tree’s
     affirmative defense of judicial estoppel. In addition, the parties discussed jury instructions.
     With no objection from plaintiff, the trial court granted Oak Tree’s request to provide Illinois
     Pattern Jury Instructions, Civil, No. 700.17 (2000) regarding mitigation of damages.
¶8       At trial, Demar testified that, at all relevant times, he owned 80% of Oak Tree, and his
     brother-in-law owned the remaining 20%. Demar agreed that plaintiff had worked at both
     restaurant locations for over 30 years, and at the time of her workers’ compensation claim, she
     was the “floor manager.” According to Demar, plaintiff’s responsibilities were to hire,
     schedule, and oversee the restaurant’s employees, “bank” the daily receipts, and help with
     carryout orders during busy times. Demar acknowledged that Oak Tree’s office manager, Sisi
     Sun, had signed an “Employer’s first report of injury or illness” on September 24, 2000. The
     report indicated that plaintiff reported a bilateral carpel tunnel injury occurring on April 15,
     2000, and that the last date plaintiff worked had been September 9, 2000. Demar
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       acknowledged that, in a prior deposition, he stated that he had met with an insurance adjuster
       and that Demar did not believe in the “efficacy” of plaintiff’s claim because he had “heard too
       many soft tissue stories.” Demar further testified that he found it “hard to imagine carpal tunnel
       from hostessing or waitressing or carryout,” adding, “A pot of coffee, a cup of coffee, that’s it.
       We’re not talking about heavy lifting here.”
¶9         Demar did not recall ever having a conversation with plaintiff regarding her workers’
       compensation claim, but agreed with his prior deposition testimony that there was no
       explanation for plaintiff leaving. When asked whether his understanding was that plaintiff’s
       leaving Oak Tree had nothing to do with her hand injuries, Demar stated that he did not know
       why she left. Demar further agreed that he never had an issue with plaintiff’s job performance.
¶ 10       With respect to the deferred compensation agreement, Demar stated he did not know where
       the original contract was. Demar agreed that there were two copies of the agreement and that
       one of the copies had a different typeface and point size. Both copies, however, contained
       provisions that (1) defined a discharge for cause as, inter alia, “termination of employment for
       *** excessive absenteeism”; (2) vested plaintiff “100%” in the trust funds if she were
       discharged “not for cause”; and (3) required “continuous employment” by plaintiff for the
       entire term of the agreement, but excused from the definition of continuous employment
       “discharge by employer without cause.” Finally, both copies had a provision that, if any term
       were found to be void, the remaining provisions would be binding “with the same effect as
       though the void parts were deleted.”
¶ 11       Plaintiff testified that she was 66 years old and began working for Oak Tree in 1983. In
       1992, she left Oak Tree for an unrelated hospitalization. In October 1992, she began working at
       another restaurant known as “Max’s.” In May 1994, Demar met plaintiff at Max’s and asked
       her to return to Oak Tree. Plaintiff agreed and returned there that same month. On January 1,
       1995, plaintiff again left Oak Tree to move to Michigan to work as a nursing assistant in home
       healthcare. Plaintiff returned to Illinois in August 1996, however, and lived with her daughter
       in Waukegan. Shortly thereafter, Demar contacted plaintiff and told her that his father, who
       originally owned the restaurant and hired plaintiff, was very ill. Plaintiff agreed to help with
       Demar’s father’s home health care.
¶ 12       In September or October 1996, Demar called plaintiff and asked her to return as a manager
       at Oak Tree. In October 1996, plaintiff met with Demar at Oak Tree and discussed the terms of
       the agreement regarding plaintiff’s return, which included a deferred compensation agreement.
       According to plaintiff, Demar said that if plaintiff would stay at the restaurant for the eight
       years remaining on the restaurant’s lease (or until the restaurant closed), Demar would deposit
       $20,000 each year into a trust for her benefit beginning December 31, 1998. Plaintiff and
       Demar executed the deferred compensation agreement around Christmas 1997. Plaintiff
       testified, however, that she never received a copy of the agreement.
¶ 13       Around the end of 1998, Demar asked plaintiff if she wanted him to deposit the full
       $20,000 into the trust or if she preferred having some of it in cash. Plaintiff asked to have
       $5,000 in cash, and Demar paid her that amount in cash, depositing the remaining $15,000.
       Plaintiff stated that she received the same $5,000 cash payment around the end of 1999, as
       well.
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¶ 14       During the holiday season in 1999, plaintiff said that she started having problems with her
       hands. The pain continued, and plaintiff sought medical treatment in April or May 2000.
       Plaintiff said she was diagnosed with severe carpal tunnel in both hands, and had five surgical
       procedures on her right hand and one procedure on her left. The first procedure on her right
       hand took place on June 26, 2000, the second procedure (on her left hand) occurred on January
       8, 2001, and the remaining procedures (on her right hand) all took place on April 15, 2002.
       Plaintiff testified that she sent a letter to Sisi Sun, the restaurant’s office manager, on
       September 15, 2000, informing Oak Tree of the various procedures plaintiff would be
       undergoing. In addition, plaintiff said that, in October 2000, she told Sun that she had filed a
       claim for compensation under the Act.
¶ 15       In April 2001, plaintiff called Oak Tree to arrange for her return to work with an
       accommodation. Plaintiff said that she spoke to Sisi Sun, and Sun told her that plaintiff had no
       job there and that plaintiff had been terminated. Plaintiff’s claim under the Act was still
       pending.
¶ 16       On cross-examination, plaintiff admitted that she had signed a social security document in
       1997 stating that she became unable to work due to a disabling condition on October 2, 1996.
       Plaintiff further conceded that, on April 19, 2002, she had signed another social security
       document indicating that she had become unable to work due to a disabling condition as of
       September 9, 2000. Plaintiff also agreed that, during 2003 and 2004, she began receiving
       unspecified monthly disability payments of $645 that subsequently increased to $773. Finally,
       plaintiff stated that, although her signature appeared on one of the two purported copies of the
       deferred compensation agreement, neither copy represented the original agreement entered
       into with Demar.
¶ 17       At the close of plaintiff’s case-in-chief, Demar moved for a directed verdict with respect to
       plaintiff’s claim of intentional interference with contract (count III), the sole remaining count
       against him. The trial court granted Demar’s motion, and Demar was dismissed from the case.
       The trial court denied Oak Tree’s motion for a directed verdict with respect to the remaining
       counts for breach of contract and retaliatory discharge.
¶ 18       The jury returned its verdict on June 11, 2012, finding in favor of plaintiff on both claims.
       The jury awarded plaintiff $150,000 in damages on the breach of contract claim. On the
       retaliatory discharge claim, the jury awarded $50,000 in damages: $25,000 for emotional
       distress and $25,000 in punitive damages.
¶ 19       On July 5, 2012, defendants filed a combined motion for judgment n.o.v. or new trial
       pursuant to section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202(f) (West
       2012)). Defendants made two claims: (i) there was insufficient evidence to support the jury’s
       verdict as to plaintiff’s breach of contract claim, and (ii) plaintiff was judicially estopped from
       claiming retaliatory discharge because she had taken an inconsistent position in her application
       for social security disability benefits (namely, that she was unable to work due to a disabling
       condition). No issue was raised regarding jury instructions or plaintiff’s mitigation of
       damages. On September 20, 2012, the trial court denied defendants’ posttrial motion. This
       appeal followed.

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¶ 20                                             ANALYSIS
¶ 21                        The Collateral Source Rule and Judicial Estoppel
¶ 22        Oak Tree first claims that the trial court erred in applying the collateral source rule to
       prevent defendant from raising judicial estoppel as an affirmative defense to the retaliatory
       discharge claim. Specifically, Oak Tree argues that it was improperly denied the ability to
       present evidence to the jury that plaintiff had earlier claimed that she was totally disabled and
       unable to work, but stated in this case that she was medically cleared and able to work. Oak
       Tree further claims that the collateral source rule, which generally precludes evidence that a
       plaintiff has obtained collateral benefits (e.g., insurance), implicitly requires that the collateral
       benefits be legitimately acquired. Oak Tree concludes that this was not the case here, and “to
       the extent that a tension exists between judicial estoppel and the collateral source rule, the
       former should control.”
¶ 23        Judicial estoppel is an equitable doctrine invoked by the court at its discretion. People v.
       Runge, 234 Ill. 2d 68, 132 (2009). The following five elements are generally required before
       that discretion comes into play: the party to be estopped must have (1) taken two positions, (2)
       that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative
       proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5)
       succeeded in the first proceeding and received some benefit from it. Id.
¶ 24        The collateral source rule is well established in Illinois. Under the rule, “evidence of
       benefits received by a plaintiff from collateral sources independent of the tortfeasor will not
       serve to diminish any damages otherwise recoverable.” Lang v. Lake Shore Exhibits, Inc., 305
       Ill. App. 3d 283, 289 (1999). The rationale underlying this rule is to keep the jury from learning
       anything about collateral income that could influence its decision, and allowing any evidence
       as to collateral benefits “would render this long-standing rule meaningless.” Boden v.
       Crawford, 196 Ill. App. 3d 71, 76 (1990).
¶ 25        As a general rule, an at-will employee in Illinois may be discharged by the employer at any
       time and for any reason. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181-82 (1978). The Act,
       however, specifically provides that “[i]t shall be unlawful for any employer *** to discharge
       *** an employee because of the exercise of his or her rights or remedies granted to him or her
       by this Act.” 820 ILCS 305/4(h) (West 2012). Simply put, the Act “plainly prohibits a
       retaliatory discharge for the exercise of workers’ compensation rights.” Smith v. Waukegan
       Park District, 231 Ill. 2d 111, 119 (2008). As the Kelsay court held, the legislature’s enactment
       of the Act “was in furtherance of sound public policy.” Kelsay, 74 Ill. 2d at 181. The Act
       establishes a cause of action allowing former employees to sue former employers for
       retaliatory discharge, and thus creates an exception to the general rule that “at-will” employees
       are terminable at any time for any or no cause. See id. at 181-82.
¶ 26        To state a claim for retaliatory discharge, a plaintiff must establish the following elements:
       (1) she was an employee of the defendant at or before the time of the injury; (2) she exercised
       some right under the Act; and (3) her discharge was causally related to the exercise of her
       rights under the Act. Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 291 (2009). The element of
       causation is not met, however, if the employer has a valid, nonpretextual basis for discharging
       the employee. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 336 (1998). As to the
                                                     -6-
       element of causation, “the ultimate issue to be decided is the employer’s motive in discharging
       the employee.” Id.
¶ 27       In this case, Oak Tree sought to show that plaintiff’s claim of retaliatory discharge was
       judicially estopped by eliciting testimony from plaintiff that she had claimed an inability to
       work in various applications for social security disability income. Plaintiff’s theory of the case,
       however, did not depend upon her own ability to work; rather, she alleged that her discharge
       was solely predicated upon her filing of a worker’s compensation claim under the Act.
       Moreover, at trial, Oak Tree presented no evidence to indicate that there was a valid,
       nonpretextual basis for discharging plaintiff. See Clemons, 184 Ill. 2d at 336. To the contrary,
       Demar’s testimony revealed that he never had an issue with plaintiff’s job performance and
       that he was skeptical as to the validity of plaintiff’s injury. On this last point, Demar testified
       that he had “heard too many soft tissue stories,” and that he found it “hard to imagine carpal
       tunnel from hostessing or waitressing or carryout,” believing that only “heavy lifting” caused
       carpal tunnel injuries, and describing plaintiff’s lifting requirements as either a pot of coffee or
       a cup of coffee. Therefore, since (i) defendants never presented any evidence that their valid,
       nonpretextual basis for discharging plaintiff was due to her inability to work; and (ii) plaintiff’s
       retaliatory discharge claim was solely predicated upon defendants’ terminating her
       employment solely due to her worker’s compensation claim, her social security claim that she
       was unable to work due to a disabling condition was not a “factually inconsistent” position that
       judicially estops her claim here. In so finding, we note that her later course of conduct might
       shed some doubt on the representations she made to the Social Security Administration, but
       that is not an issue before us. Consequently, the trial court did not err in applying the collateral
       source rule, and Oak Tree’s first claim of error is without merit.
¶ 28       Moreover, our decision is unaffected by Oak Tree’s reliance on Muellner v. Mars, 714 F.
       Supp. 351 (N.D. Ill. 1989), Levar v. Freeman, 967 F. Supp. 1055 (N.D. Ill. 1997), and Smeilis
       v. Lipkis, 2012 IL App (1st) 103385. In Muellner, a “necessary prerequisite” for the plaintiff’s
       retaliatory discharge count (to which the defendant employer sought to apply judicial estoppel)
       was that the plaintiff be able to perform the duties of her job with the defendant. Muellner, 714
       F. Supp. at 360. In Levar, the plaintiff filed a complaint alleging discrimination and retaliation
       in violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (1994)).
       Levar, 967 F. Supp. at 1056. Specifically, the Levar plaintiff claimed that “the adverse action
       was a refusal to hire.” Id. at 1059.
¶ 29       Finally, in Smeilis, the plaintiffs had filed a medical negligence claim against the defendant
       hospital, nursing home, and medical doctor, but settled with the hospital and nursing home and
       dismissed the complaint against all of the defendants. Smeilis, 2012 IL App (1st) 103385, ¶¶ 1,
       12. Within one month, however, the plaintiffs filed a new complaint against the doctor, which
       included the opinion of a new expert witness contradicting the opinion of the expert witness in
       the first lawsuit and indicating that the doctor was not negligent. Id. ¶¶ 13-14. This court
       affirmed, holding that judicial estoppel should apply because the plaintiffs “adopted a wholly
       new view of the facts in order to recover against the sole remaining physician.” Id. ¶ 33.
¶ 30       In this case, plaintiff’s claim is not predicated upon a refusal to hire and her ability to
       perform her job is not a “necessary prerequisite” to succeeding in her claim of retaliatory
                                                    -7-
       discharge for simply filing a claim under the Act. Unlike the expert opinion in Smeilis, which
       was necessary for the plaintiff to succeed in her medical negligence claim, plaintiff’s claim is
       sufficiently unrelated to her allegations in her disability applications. Therefore, Muellner,
       Levar, and Smeilis do not compel a different result.

¶ 31                       Defendants’ Motion for a New Trial/Judgment n.o.v.
¶ 32        Oak Tree next challenges the trial court’s denial of its motion for a new trial or judgment
       n.o.v. Specifically, Oak Tree argues that it is “uncontested” that plaintiff failed to work for the
       full eight years required in the contract, and that Oak Tree did not breach the contract. For that
       reason, according to Oak Tree, the trial court should have either entered judgment n.o.v. in its
       favor or granted Oak Tree a new trial.
¶ 33        As a preliminary matter, we must discuss the relevant standards of review. In York v.
       Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006), the supreme court was
       confronted with a challenge to a denial of the defendant’s motion for new trial or judgment
       n.o.v. The court reiterated the holding that a judgment n.o.v. should be granted only where all
       of the evidence, viewed in the light most favorable to the opposing party, so overwhelmingly
       favors the moving party that no contrary verdict based on that evidence could ever stand. Id. at
       178. “In other words, a motion for judgment n.o.v. presents ‘a question of law as to whether,
       when all of the evidence is considered, together with all reasonable inferences from it in its
       aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any
       necessary element of the [plaintiff’s] case.’ ” Id. (quoting Merlo v. Public Service Co. of
       Northern Illinois, 381 Ill. 300, 311 (1942)). Judgment n.o.v. is a high standard, and it should
       not be entered if reasonable minds might differ as to inferences or conclusions to be drawn
       from the facts presented. Id. Furthermore, we may not usurp the jury’s function and substitute
       our judgment on questions of fact that were “ ‘fairly submitted, tried, and determined from
       evidence that did not greatly preponderate either way.’ ” Id. (quoting Maple v. Gustafson, 151
       Ill. 2d 445, 452-53 (1992)). We review a trial court’s denial of a motion for judgment n.o.v.
       de novo. Id.
¶ 34        In contrast, a motion for a new trial should be granted only when the verdict is contrary to
       the manifest weight of the evidence. Id. at 178-79 (citing Mizowek v. De Franco, 64 Ill. 2d 303,
       310 (1976)). “A verdict is contrary to the manifest weight of the evidence when the opposite
       conclusion is clearly evident or when the jury’s findings prove to be unreasonable, arbitrary
       and not based upon any of the evidence.” Id. at 179. “We are mindful that credibility
       determinations and the resolution of inconsistencies and conflicts in testimony are for the
       jury.” Id.
¶ 35        The essential elements of a breach of contract are: (i) the existence of a valid and
       enforceable contract, (ii) performance by the plaintiff, (iii) breach of the contract by the
       defendant, and (iv) resultant injury to the plaintiff. Coghlan v. Beck, 2013 IL App (1st) 120891,
       ¶ 27. The terms of an agreement, if unambiguous, should generally be enforced as they appear,
       and those terms will control the rights of the parties. Id. (citing Dowd & Dowd, Ltd. v. Gleason,
       181 Ill. 2d 460, 479 (1998)). Any ambiguity in a contract term, however, must be resolved
       against the drafter of the disputed provision. Id.
                                                     -8-
¶ 36       In this case, the evidence showed that plaintiff suffered injuries to her hands and filed a
       worker’s compensation claim. When she contacted defendant–who never had an issue with her
       job performance–to arrange for her return to work, defendant informed her that she was
       terminated. As noted above, Demar’s testimony revealed that he never had an issue with
       plaintiff’s job performance, that he disbelieved plaintiff’s injury because he had “heard too
       many soft tissue stories,” and that he generally found it “hard to imagine carpal tunnel from
       hostessing or waitressing or carryout” because only “heavy lifting” caused carpal tunnel
       injuries and plaintiff’s lifting requirements consisted of either a pot of coffee or a cup of coffee.
       These facts, construed in the light most favorable to plaintiff, established that Oak Tree
       terminated plaintiff in retaliation for filing a claim under the Act.
¶ 37       Plaintiff’s deferred compensation agreement provided that plaintiff would be 100% vested
       in the trust funds if she were discharged “not for cause” and required “continuous
       employment” by plaintiff for the entire term of the agreement, but excluded discharge by the
       employer “without cause.” Finally, both copies had a provision that, if any term were found to
       be void, the remaining provisions would be binding “with the same effect as though the void
       parts were deleted.” Although the agreement defined discharge “for cause” as, inter alia,
       excessive absenteeism, construing that provision as allowing discharge for cause for filing a
       claim under the Act would render it void as against public policy. Kelsay, 74 Ill. 2d at 181;
       Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 64-65 (2006). Accordingly, Oak Tree’s
       discharge of plaintiff in retaliation for her claim under the Act was not a discharge for cause,
       plaintiff vested 100% in the funds under the deferred compensation agreement, and her
       discharge could not be excluded from the definition of continuous employment.
¶ 38       As such, we cannot hold that all of the evidence, viewed in the light most favorable to the
       opposing party (i.e., plaintiff), so overwhelmingly favors Oak Tree that no contrary verdict
       based on that evidence could ever stand. York, 222 Ill. 2d at 178. We also cannot hold that the
       opposite conclusion from the jury’s verdict is clearly evident or the jury’s findings were
       unreasonable, arbitrary, or not based upon any of the evidence. Id. at 179. Therefore, the trial
       court did not err in denying defendants’ combined motion for judgment n.o.v. and motion for a
       new trial.

¶ 39                                Plaintiff’s Mitigation of Damages
¶ 40       Oak Tree’s final contention on appeal is that the trial court erroneously prevented Oak Tree
       from presenting evidence of plaintiff’s failure to mitigate her damages, but the court
       nonetheless instructed the jury that Oak Tree had the burden to prove failure to mitigate. This
       final contention, however, is unavailing because Oak Tree has forfeited consideration of this
       issue.
¶ 41       At the outset, Oak Tree’s argument on this issue in its opening brief consists of four short
       paragraphs of facts, and one equally short paragraph of argument without citation to any
       authority. Supreme Court Rule 341 requires that an appellant include in its argument “citation
       of the authorities *** relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). In addition, it is
       well established that a reviewing court is not “simply a depository in which the appealing party
       may dump the burden of argument and research.” Pecora v. Szabo, 109 Ill. App. 3d 824,
                                                    -9-
       825-26 (1982) (holding that plaintiff’s failure to cite any authority in support of his three-page
       argument forfeited the claim). For this reason alone, we find that Oak Tree has forfeited this
       claim.
¶ 42        In addition, as plaintiff points out, Oak Tree and its codefendants never raised this issue in
       their combined motion for judgment n.o.v. and for a new trial. Oak Tree does not address this
       argument in its reply brief. It is axiomatic that, in order to preserve an issue for review, “[b]oth
       a trial objection and a written post-trial motion raising the issue are required for alleged errors
       that could have been raised during trial.” (Emphases in original.) People v. Enoch, 122 Ill. 2d
       176, 186 (1988). The rationale for requiring that an issue be raised in a written posttrial motion
       was explained over 50 years ago: “A trial judge should have an opportunity to appraise the
       errors which are asserted to have taken place. It is unfair to charge him with errors in a
       reviewing court without having brought them to his attention so that a new trial could have
       been granted if he found it advisable.” Perez v. Baltimore & Ohio R.R. Co., 24 Ill. App. 2d 204,
       210 (1960). Here, however, the trial court was denied any opportunity to consider Oak Tree’s
       contention that denying Oak Tree the opportunity to present evidence as to plaintiff’s failure to
       mitigate her damages warranted a new trial. Therefore, on this additional ground, Oak Tree has
       forfeited this claim.

¶ 43                                     CONCLUSION
¶ 44      Accordingly, we affirm the judgment of the trial court.

¶ 45      Affirmed.




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