                                2014 IL App (1st) 130307
                                                                         FIRST DIVISION
                                                                 Opinion filed: June 9, 2014

                                 No. 1-13-0307
_____________________________________________________________________________

                                         IN THE

                          APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

METROPOLITAN WATER                          ) Appeal from the Circuit Court
RECLAMATION DISTRICT OF                     ) of Cook County.
GREATER CHICAGO,                            )
                                            )
       Plaintiff and                        )
       Counterdefendant-Appellant,          )
                                            )
v.                                          ) 06 CH 13817
                                            )
TERRA FOUNDATION FOR                        )
AMERICAN ART,                               )
                                            )
       Defendant                            )
                                            )
                                            )
(664 N. MICHIGAN, LLC, and NM PROJECT )
COMPANY, LLC, as Successor-in-Interest to )
Terra Foundation for American Art,          )
                                            )
           Defendants and                   )
           Counterplaintiffs-Appellees; and )
                                            )
                                            ) Honorable
Unknown Owners, Nonrecord Owners, and       ) Kathleen M. Pantle,
Nonrecord Claimants, Defendants).           ) Judge, Presiding.
______________________________________________________________________________

      JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
      Justices Cunningham and Delort concurred in the judgment and opinion.

                                       OPINION
2014 IL App (1st) 130307


¶1     The Metropolitan Water Reclamation District of Greater Chicago (the District) appeals

from a $36,432,047 judgment entered against it and in favor of the counterplaintiff, NM Project

Company, LLC, (hereinafter, the Project Company). The damages were awarded after the

District was found to have intentionally interfered with the easement rights of the Project

Company and its predecessors-in-interest to use and enjoy an alley owned by the District. For

the reasons that follow, we affirm the judgment of the circuit court, as modified.

¶2     The litigation in this case has developed over the course of eight years, creating a

voluminous record, which we summarize here, in relevant part, to address the issues now before

us.

¶3     The District is a municipal corporation with its headquarters at 100 East Erie Street in

Chicago, near the intersection of Michigan Avenue and Erie Street. On the eastern border of its

headquarters, parallel to Michigan Avenue, the District owns an alley (the Alley), which

separates its property from three properties, 664, 666, and 670 N. Michigan Avenue (collectively

referred to as the Property), now owned by the Project Company.

¶4     In June 2005, the Terra Foundation for American Art (Terra) and 664 N. Michigan, LLC,

entered into an "Option and Purchase Agreement" covering the purchase and development of the

Property which was then owned by Terra. Two of the three properties, 666 and 670 N. Michigan

Avenue, benefited from three recorded easements over the Alley dating back to the 1940s. The

easements provided that the owners of the 666 and 670 N. Michigan parcels have "full and free

right and liberty to use and enjoy" the Alley. 664 N. Michigan, LLC, planned to develop the

Property by demolishing the existing buildings and constructing a 40-story luxury condominium

and retail store complex. The plan contemplated use of the Alley to provide access to the

proposed garage for residents of the condominium complex. Shortly after entering into the

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"Option and Purchase Agreement," the 664 N. Michigan, LLC, assigned its rights under the

agreement to the 670 N. Michigan, LLC, of which it was the managing member.

¶5     Upon learning of the plans for the development of the Property at a meeting with its

representatives in the summer of 2005, the District objected and contended that use of the Alley

for the proposed garage exceeded the terms of the easements. Despite the District's objections,

the design phase for the development of the Property immediately began and financing

opportunities were pursued.      By September 2005, the Ritz Carlton Corporation had been

contacted regarding the use of its brand name in the marketing and the management of the

condominium units to be constructed on the Property. Marketing efforts began in January 2006

based on the initial development plans, with construction projected to begin sometime between

October 2006 and March 2007. Delivery of completed condominium units to purchasers was

planned for early 2009.

¶6     On July 12, 2006, the District filed the instant action against Terra and 664 N. Michigan,

LLC, seeking judicial declarations concerning the scope of the easements. The District alleged

that the intended use of the Alley in connection with the development plan exceeded the scope of

the easements. It further claimed that the 664 N. Michigan Avenue parcel had no easement

rights, and therefore, the Alley could not be used for that parcel's benefit.

¶7     While this action was pending but unresolved, the District blocked access to the Alley by

locking the security gate, which had been installed in 1997. The District also had cars parked in

the Alley in such a manner as to block ingress and egress.

¶8     On April 29, 2008, the 670 N. Michigan, LLC, assigned all of its rights under the "Option

and Purchase Agreement" to the Project Company. On the following day, April 30, 2008, the

Project Company closed on its purchase of the Property from Terra. Thereafter, on July 2, 2008,

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the Project Company and 664 N. Michigan, LLC (collectively referred to as the

counterplaintiffs), filed a three-count counterclaim against the District.           Count I of the

counterclaim sought injunctive relief and damages for the District's interference with the

counterplaintiffs' right to use the Alley pursuant to the terms of the easements. Specifically,

count I requested "actual damages resulting from the District's interference, as well as costs and

such further relief as is just and equitable." Count II sought judicial declarations, in part, that the

District had no right to: impair access to the Alley using a gate or otherwise; block the alley with

vehicles; or impair the counterplaintiffs' access to the Alley to engage in construction and

demolition activities associated with their development of the Property. Count II also requested

"costs and such further relief as is just and equitable." Count III alleged that the District

intentionally trespassed on the Project Company's property by constructing the security gate at

the end of the Alley on the 664 N. Michigan Avenue property. Count III requested "actual

damages and punitive damages to deter future illegal conduct," plus costs, and other such

"further relief as is just and equitable."

¶9      Among the facts incorporated in all three claims, the counterplaintiffs alleged that the

District had blocked access to the Alley by locking the security gate, refused to allow access to

the Alley for legitimate construction purposes, and allowed its employees and other invitees to

park in the Alley in a manner which obstructed ingress and egress.                  Specifically, the

counterplaintiffs alleged that: "[i]n late 2005 and early 2006, *** [they] began offering the

residential units for sale, with delivery expected in late 2009"; they had "secured the necessary

financing, and anticipate[d] that the cost of the Development [would] exceed $183,000,000"; and

that, in order to construct the complex, they had to demolish the existing structures on the

Property. The counterplaintiffs alleged that the District's conduct prevented their construction

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workers from erecting scaffolding necessary for demolition activities. They also alleged that "in

recent months, the District [had] embarked upon an unlawful campaign to interfere with the

Alley Easement and keep the *** [counterplaintiffs] from accessing and using the Alley." After

it closed on the purchase of the Property, the Project Company asked the District to remove the

gate, but the District refused. Thereafter, the District began allowing vehicles to park in the

Alley for entire workdays and storing garbage dumpsters in the Alley to prevent ingress and

egress.

¶ 10      According to the counterclaim, the District's interference was alleged to have: impaired

the counterplaintiffs' unencumbered right to use the Alley and to enjoy the 666 and 670 North

Michigan Avenue properties, including their efforts to proceed with the construction of the

improvements on the Property; threatened the counterplaintiffs' agreements with contractors and

subcontractors, who were unable to perform their work at the time and in the manner

contemplated by their respective contracts; impaired the counterplaintiffs' ability to comply with

their financing agreements, equity partner agreements, and the redevelopment agreement with

the City of Chicago; "threaten[ed] to deter potential customers from purchasing units in the

Development"; "delayed the *** [counterplaintiffs] from obtaining a demolition permit from the

City, and required [them] to incur additional expenses, including but not limited to attorneys'

fees, consulting fees, and interest."

¶ 11      On August 14, 2008, after a lengthy hearing, the trial court entered a preliminary

injunction against the District, enjoining it from interfering with the Project Company's use and

enjoyment of the easements over the Alley. However, the trial court found that the 664 N.

Michigan Avenue parcel held no rights under the easements at issue and, therefore, the Project

Company had no right to use the Alley for the benefit of that parcel. The trial court further

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enjoined the District from parking cars in the Alley, obstructing access with a security gate,

interfering with scaffolding placement, denying access to construction workers, and interfering

with the removal of the security gate. The trial court specifically found that the "District began

to deny access after learning of the developer's plans for the new buildings and ha[d] intensified

its efforts in denying access since April 30, 2008."

¶ 12   The District appealed the trial court's preliminary injunction order, and, on April 22,

2009, this court affirmed that order. See Metropolitan Reclamation District of Greater Chicago

v. Terra Foundation for American Art, No. 1-08-2223 (2009) (unpublished order under Supreme

Court Rule 23). Following this court's order, the District removed the security gate from the

Alley. In the interim, a February 2, 2009, trial date had been set for the Project Company's

request for permanent injunctive relief.

¶ 13   On January 13, 2009, the District filed an "Emergency Motion To Sever For Trial

Developer's Damage Claims." In the motion, the District stated that, on January 12, it received

the report of Michael LoGuidice, the Project Company's accounting expert, in which he claimed

that the Project Company suffered $51 million to $86 million in damages due to delays

occasioned by the District's actions. The District argued that it was unfair to expect it to review,

analyze and respond to the report in such a short timeframe. According to the District, the

Project Company's "damage claim [was] separate and apart from the equitable claims" and that

"[s]evering the *** damage claims from the trial on the equitable claims *** [would] in no way

prejudice the [Project Company] and [would not] delay a trial on the equitable claims." On

January 14, 2009, the trial court granted the District's motion and severed the trial on the

counterplaintiffs' damages claim from the hearing on the permanent injunctive relief sought.



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¶ 14   On May 19, 2009, after a hearing, the trial court entered a permanent injunction

consistent with the preliminary injunction it had entered on August 14, 2008.1 First, the court

found that the 664 N. Michigan Avenue parcel had no easement rights and, therefore, the Alley

could not be used for activities benefitting only that parcel. As to that portion of count II of the

District's complaint, the court entered judgment in its favor.          Second, the District was

permanently enjoined from interfering with the Project Company's use and enjoyment of the

Alley easements, including parking cars in the Alley in a manner which blocked ingress and

egress or interfering with construction activities benefitting the 666 and 670 N. Michigan

Avenue properties. However, the District was allowed to use the Alley to store its garbage

dumpsters.   The issues pertaining to the security gate were moot because the District had

removed it. The issues pertaining to demolition activities on the 666 and 670 N. Michigan

Avenue properties were also moot because demolition had been completed after the preliminary

injunction had been granted. The matter was then set for an August 2009 trial to resolve the

counterplaintiffs’ claim for damages.

¶ 15   On June 16, 2009, the Project Company filed a motion to amend the counterclaim to

include a claim for tortious interference with prospective economic advantage, arguing that the

amendment would eliminate any question as to its entitlement to damages stemming from the

District's conduct predating April 30, 2008. It contended that, except for damages, the evidence

already received in the case conclusively established the elements of a tortious interference with

a prospective economic advantage claim, namely: (1) the existence of a valid business

relationship or expectancy; (2) the District’s knowledge of that relationship or expectancy; (3)


1
 The parties stipulated to the admission of the evidence adduced at the preliminary injunction
hearing at the permanent injunction hearing.

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purposeful interference by the District inducing or causing a breach or termination of the Project

Company’s relationship or expectancy; and (4) damages. Fellhauer v. City of Geneva, 142 Ill.

2d 495, 511 (1991).

¶ 16   On August 17, 2009, the trial court denied the Project Company's motion to amend its

counterclaim, stating that it was untimely because the Project Company knew it had a claim for

tortious interference with prospective economic advantage long before it filed the motion.

Additionally, discovery had closed in the matter, and the District had not had a proper

opportunity to defend itself against a claim for tortious interference with prospective economic

advantage. The trial court noted that the elements of such a claim were different from the

theories of recovery advanced by the Project Company on the trial of its equitable claims.

Moreover, the trial court found that, from the evidence adduced to date, it was not readily

apparent that the District intended to terminate a business relationship or prevent an expectancy

from ripening into a valid business relationship.

¶ 17   On August 24, 2009, the hearing on the counterclaim for damages commenced. The

attorneys for the parties made opening statements. Counsel for the Project Company opened by

arguing that the evidence established intentional interference with the easement rights over the

Alley dating back to 2005 and that the Project Company sought damages in the amount of

$66,468,910. The District argued that the counterplaintiffs never alleged or referred to any

conduct by the District occurring before 2008 until they tendered LoGuidice's report on January

12, 2009.    Counsel also argued that the Project Company's damages were based on the

speculative conclusions made by LoGuidice and that there was no evidence that the Project

Company’s business plans were affected by the District's conduct between March 1, 2007, and

April 30, 2008.

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¶ 18     On October 13, 2009, an altercation involving the use of the easement arose between a

District police officer and a Project Company principal. The altercation led the Project Company

to file a petition seeking an adjudication of indirect civil contempt against the District for a

violation of the May 19, 2009, permanent injunction. On March 5, 2010, after a 9-day hearing,

the trial court entered an order holding the District in indirect civil contempt and imposing

sanctions. The District appealed, and, on June 8, 2011, this court reversed that judgment.

Metropolitan Water Reclamation, District of Greater Chicago v. Terra Foundation for American

Art, No. 1-10-0971 (2011) (unpublished order under Supreme Court Rule 23).                  Those

proceedings delayed the course of the hearing on the counterclaim for damages.

¶ 19   During the course of the hearings on the counterclaim for damages, the District requested

time to depose LoGuidice and additional discovery time in order to respond to his report. The

trial court granted its requests in August 2010.

¶ 20   We begin summarizing the trial testimony with that of Jon Kurt Rodgers, a Project

Company principal, who testified that he and his partner, Bruce Schultz, met with District

representatives in late summer of 2005 regarding the development plan for the Property and their

intention to use the Alley pursuant to the rights granted under the easements. He stated that the

District representatives became hostile and denied that they had any rights to use the Alley.

Rodgers admitted that, despite the District's objections to the development plan, financing

options and the sale of condominium units began in the first quarter of 2006. He testified that

the Project Company closed on the purchase of the Property on April 30, 2008, and thereafter

demanded access to the Alley. Rodgers explained that the District had locked the gate and had

vehicles parked in the Alley in a manner which blocked ingress and egress to or from the

Property, preventing the construction workers' ability to erect scaffolding required by the City of

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Chicago to protect against pieces of the 664 building's façade from falling to the street.

Regarding the cars parked in the Alley, Rodgers admitted that he did not begin to see the parked

cars until after the April 30, 2008, closing. Rodgers did testify, however, that sometime in the

fall of 2007 the District locked the gate across the Alley, interfering with access to the Property.

Rodgers also admitted that construction could not begin until after the Project Company closed

on the Property.

¶ 21   Bruce Schultz, also a Project Company principal, testified that he signed the purchase

agreement with Terra as a representative of the 664 N. Michigan, LLC, despite the District's

opposition to the development, because he and the company's attorneys believed that the

easement language was unambiguous and that the dispute with the District would be resolved

quickly. He stated that, by fall of 2007, he had met with the District at least five times and

amended the design of the project in order to satisfy its concerns, hoping that the dispute would

resolve. Regarding the delay in construction, Schultz testified that the District's refusal to allow

access to the Property through the Alley resulted in an approximately one-year delay, including

delays in: the demolition of the old structures on the Property, obtaining the necessary

construction and mezzanine loans; and beginning construction on the planned buildings.

¶ 22   Regarding the financing delays, Schultz testified that, by September 2005, $17 million in

financing for the project had been obtained.        After that, applications for mezzanine and

construction loans were made. Schultz explained that, in order to obtain a construction loan, the

borrower must complete an application, the borrower and lender meet to negotiate the terms, the

lender issues a conditional commitment, the borrower makes a cash deposit, and the lender then

undertakes a due diligence investigation, which could take 30 to 90 days to complete. Only after

the lender completes a due diligence investigation is final loan approval possible. According to

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Schultz, loan details from Corus Bank were obtained in September 2005, but the application was

not pursued because the dispute with the District would have frustrated the loan process during

the due diligence phase.

¶ 23   By September 2007, Schultz realized that the dispute with the District was not going to

quickly resolve. At that time, he renewed financing efforts and applied for loans through Helaba

Bank. The Project Company eventually secured the required financing after it obtained title

insurance for the Property through Chicago Title and Trust. The Chicago Title and Trust

underwriter read through the easements and the litigation file and agreed to issue a title insurance

policy. Thereafter, on November 28, 2007, Helaba Bank approved the loan for $137 million, and

the Project Company closed on the Property and the loan on April 30, 2008.

¶ 24   Regarding the delay in actual construction, Schultz expected construction approval for

the 664 N. Michigan Avenue parcel from the Landmark Commission in the first quarter of 2006,

but admitted that approval was not obtained until March 1, 2007. Schultz also testified that

demolition permits were issued by the City of Chicago for the 666 and 670 N. Michigan

buildings in August 2008 and for the 664 building in December 2008. He stated that, in general,

demolition permits are issued within two weeks of submitting the application. According to

Schultz, had the Project Company not been required to obtain injunctive relief to gain access to

the Property through the Alley, the required permits would have been applied for and obtained in

late 2006, or early 2007, as expected.

¶ 25   Schultz testified that, between 2005 through May 2008, free access to the Alley was

blocked because the security gate was locked. Under the purchase agreement, however, the

Project Company and its predecessors had rights to access the Property "24/7" in order to

complete asbestos and other environmental testing in preparation for the purchase of the

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2014 IL App (1st) 130307


Property.   According to Schultz, the asbestos inspector was approached and threatened by

District personnel when he performed the asbestos assessment.

¶ 26   Regarding preconstruction condominium sales, which commenced in early 2006, Schultz

testified that demolition of the old structures should have begun between October 2006 and

March 2007, with construction beginning by February 1, 2007. The planned condominium units

were projected to be delivered to the purchasers by late 2008 or early 2009.

¶ 27   Based on market analysis reports, 24 units were projected to be sold in 2006. Twenty-

five contracts for the sale of condominium units were actually executed by the end of 2006. It

was expected that the remaining units would be sold by the end of 2008, which would have paid

off the construction loan. However, sales dropped off in 2007, with only two units selling that

year. Schultz testified that he noticed a decline in sales and interest in the Property after two

newspaper articles were published in 2007 regarding the District's objection to the project. Even

after demolition began in August 2008, only two units sold in the first quarter of 2008.

According to Schultz, the poor sales were attributable to negative publicity and the fact

construction was stalled due to the District's conduct. He denied offering any discounted pricing

or any special price incentives in 2006, but admitted that, in 2007 and 2008, discounts,

concessions, and free upgrades were offered to induce sales of the four units that were sold

during that period. Because the units did not substantially sell out before completion of the

building as had been anticipated, the Project Company had to expend additional money to

relocate the sales center from its original location at 625 N. Michigan Avenue to an on-site

location. Schultz estimated the additional cost was approximately $600,000.

¶ 28   Regarding litigation related to the delayed construction, Schultz testified that three

pending lawsuits had been filed by purchasers of condominium units seeking to cancel their

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contracts on the basis that the Project Company failed to timely deliver the units. Schultz stated

that he hired a law firm to defend the suits and that the legal fees were still accumulating.

¶ 29   Jane Shawkey, a Rubloff Residential Properties (Rubloff) real estate agent, testified that

she first became involved in the project in 2004 when she prepared a feasibility study, reflecting

that a strong market existed in Chicago for luxury condominium units. When the sales center

opened at 625 N. Michigan Avenue in March 2006, she anticipated selling 50% of the units

within 18 months and expected delivery of the units by late 2008. Shawkey stated that initial

interest in the project was high. Numerous prospective buyers visited the sales center and 24 of

them signed contracts to purchase units to be constructed on the Property. She noted that interest

declined in 2007 as the three old structures on the Property had not yet been demolished, and the

projected 2008 date for delivery of the units appeared unlikely. Shawkey stated that, in 2007, a

revised delivery date was announced and even that date was pushed back several times

thereafter. At the time of her 2009 testimony, she stated that the estimated delivery date was the

first quarter of 2011. Shawkey admitted that, since construction began in August 2008, she had

not noticed an increase in sales activity and that the last contract for the sale of a unit was signed

in March 2008.

¶ 30   Rachel Bailey, also a Rubloff real estate agent working on the project, testified

consistently with Shawkey. Bailey stated that, because of the delays in construction, the prices

of the units officially increased by 7%. She further stated that there were "unofficial" price

increases after the Project Company asked her and Shawkey to "tweak" the pricing to cover the

costs of the delay.

¶ 31   John Marks, a retired real estate developer, testified that he learned about the project in

late 2006 or early 2007 and was interested in purchasing a condominium unit. After he was told

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that 40% of the units had been sold, Marks decided not to sign a contract. Marks stated that,

based on his real estate development experience, he concluded that construction should have

started with 40% of the units sold, and he knew that the units could not be delivered by 2009. He

testified that he was aware of the dispute with the District. In mid-2008, Marks purchased a unit

in a competing luxury condominium building.

¶ 32       Gail Lissner, vice president of Appraisal Research Counselors, an independent real estate

appraisal research and counseling firm, testified that, in the spring of 2005, she prepared a

market study report, concluding that the ultra-luxury market niche was underserved in Chicago

and that the intended project to be constructed on the Property was feasible. She testified that, in

the strong real estate market conditions between 2005 and 2007, she predicted that the planned

88 condominium units would be sold within a three-year period from the start of the marketing

campaign. According to Lissner, after the 2008 economic downturn, the real estate market saw

cancellations in contracts, pricing discounts, and halted development projects. She predicted that

it would require 25% to 35% discounts to sell the remaining units in the project because of the

poor market conditions after 2007.

¶ 33       During the course of trial, on April 28, 2011, the District moved in limine to bar

LoGuidice's report and testimony, arguing that the allegations in the counterclaim did not

conform to the timeframe contained in his report and, therefore, his opinions, which were based

on an expected construction start date of March 1, 2007, should be barred. The court denied the

motion on the basis that it was untimely, noting that evidence of conduct and events predating

April 2008, had already been admitted and that extensive discovery had been taken by both

parties.



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¶ 34   LoGuidice, the Project Company's forensic accountant, testified that he first issued his

report in this case in early 2009 and had updated it in July 2010 and March 2011. He concluded

that demolition of the old structures on the Property could have started in March 2007, but for

the actions of the District. Construction of the planned buildings eventually started in September

2008. Accordingly, LoGuidice determined that the District's conduct resulted in an 18-month

construction delay. Using that 18-month delay, LoGuidice employed critical path analyses,

considering the project and the tasks and operations that needed to occur in order to reach certain

milestones. By way of example, once the 664 N. Michigan Avenue building obtained Landmark

Commission approval in March 2007, construction could have commenced. LoGuidice testified

that, although the District's conduct did not impact or delay the Landmark Commission's

approval, demolition permits could have been obtained earlier than 2008 had the District not

interfered with the Project Company's access to the alley. He also noted a two-month delay in

obtaining permits to begin foundation work.

¶ 35   Regarding sales of the condominium units, LoGuidice determined that the District's

conduct resulted in a 31-month "marketing" delay, which he explained was the additional time

required to sell the condominium units. LoGuidice estimated damages using the current list

prices of the condominium units and then applying a 10%, 15%, or 20% discount factor under

the assumption that discounts would be necessary to sell the remaining units in the complex.

¶ 36   Regarding the 18-month financing delay, LoGuidice concluded that financing for the

project could have been obtained in 2005. He compared the 2005 Corus Bank loan terms and

conditions with those of the 2007 Helaba Bank loan.          LoGuidice explained that, although

financing could have been obtained in 2005, there was "no point" in having the loans issued

when construction could not commence until Alley access was secured. LoGuidice testified that

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"because the District blocked the Alley, they made it impossible to get the loan closed until there

was a title commitment." LoGuidice further opined that the Project Company would not have

been required by the lender to obtain a second tranche of mezzanine financing in March 2010

had the condominium units been completed and sold as projected because the revenue from unit

sales would have paid down the construction loan sooner. He stated that the assumption of the

second tranche of mezzanine financing caused the Project Company to incur significant

increased mezzanine loan interest costs.

¶ 37   LoGuidice testified consistently with his spreadsheet of figures, summarizing his

estimated damages as follows:

               Increased construction costs:            $5,397,265 (based on 18-month delay)

               Increased const. mgmt. expenses:         $ 461,166 (based on 20-month delay)

               Increased real estate transfer taxes:    $   52,500

               Legal defense fees:                      $   167,569

               Increased ground lease costs:            $2,083,333 (based on 20-month delay)

               Increased mezzanine loan interest:       $24,808,793 (based on 20-month delay)

               Cost of new sales center:                $   603,562

               Additional Terra rent payments:          $   284,575

               Increased marketing and adv.:            $ 2,996,264

¶ 38   Explaining his estimates, LoGuidice testified that the real estate transfer tax had been

raised from $3.75 per $500 of sale price to $5.25 per $500 by the City of Chicago during the 18-

month delay.    The ground lease payment figure represented the amount of rent per year

($1,250,000) that the Project Company paid to Terra. The additional Terra rent represented the

cost that the Project Company incurred for the storage of Terra's art and for temporary space rent

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while it waited for Terra’s space in the new development to be constructed. The time period that

he used was June 1, 2007, through September 1, 2008 (16 months).

¶ 39   LoGuidice also estimated damages in other areas, including increased financing fees

($3,945,642); increased monthly expenses ($4,161,216); increased construction loan interest

($2,636,286); and loss of investment ($19,845,438). His total estimated damages ranged from

$43,154,432 to $66,568,910, depending on the discount factor applied (10%, 15%, or 20%).

¶ 40    On June 23, 2011, at the conclusion of the Project Company's case, the District moved

for a directed judgment, arguing in part that the damages sought were speculative. In its reply

brief supporting the motion, filed on July 5, 2011, the District argued for the first time that the

economic loss doctrine (see Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69

(1982)) barred the Project Company from recovering its economic losses in a tort claim. The

trial court denied the motion.

¶ 41   In the District’s case-in-chief, Richard Lanyon, its general superintendent, testified that

he was aware of the development plan for the Property in 2005. However, he did not recall any

request for access to the Alley prior to the filing of the counterclaim in 2008. Lanyon denied that

the District ever blocked the Alley, stating that whenever access was requested, it was granted.

Specifically, he denied that the District barred Alley access prior to the entry of the injunction

order in August 2008. He further denied ever issuing an order that barred Project Company

personnel from entering the Alley.

¶ 42   The District's forensic accounting expert, Louis Dudney, testified that he reviewed

LoGuidice's reports and found numerous errors in his calculations. He admitted, however, that

he did not compute an alternative damages amount because doing so required an entirely new



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and complex analysis, necessitating more than simply replacing the 20-month or 18-month delay

assumptions that LoGuidice based his calculations upon.

¶ 43   According to Dudney, LoGuidice erred by double counting the repayment of $28.7

million in principal for the second tranche of mezzanine financing and improperly including the

interest on the mezzanine and construction loans, resulting in an overstatement of damages. He

also believed that LoGuidice erred by: using the incorrect interest terms for the Corus Bank loan;

inappropriately applying an accrued 1.5% interest factor to the construction loan; overstating

damages for ground lease payments to Terra by $650,000; using outdated London Interbank

Offered Rate (LIBOR) projections; using speculative discounting scenarios; and selecting the

March 1, 2007, date for his "but for" assumptions. According to Dudney, financing for the

project could have been pursued earlier and that any delay in securing financing for the project

was not caused by the District. On cross-examination, Dudney admitted that he had no issue

with LoGuidice's mathematical calculations, although he did not agree with his 18-month or 20-

month delay assumptions.

¶ 44   Following the close of evidence, the parties filed briefs setting forth their respective

positions. In its closing trial brief, the District argued, inter alia, that the economic loss doctrine

barred the damages claimed by the Project Company.

¶ 45   In a 36-page order, the trial court analyzed the issues raised by the parties. As to the

District’s argument that the Project Company could not claim damages for conduct predating the

April 30, 2008, closing date, the trial court found that the overwhelming evidence adduced at the

injunctive-relief trial proved that the District intentionally interfered with the easement rights

encumbering the Alley beginning in 2005 and continuing until the preliminary injunction order

was entered in August 2008. The court stated that the evidence established that the District

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learned of the proposed development plan in 2005 and intensified its interfering conduct after

April 30, 2008. The court also noted that the District itself had elicited testimony regarding

conduct predating April 30, 2008. Thus, the court concluded that the District could not claim to

be surprised about the relevant time frame at issue.

¶ 46   Next, the trial court rejected the District's argument that the Project Company was limited

to contract damages by reason of the economic loss doctrine because: (1) the District forfeited

the argument by raising it for the first time after the trial was completed, and (2) the doctrine did

not apply to intentional torts. The court determined that a cause of action grounded in intentional

interference with easement rights paralleled two recognized exceptions to the economic loss

doctrine, namely: intentional interference with a contract and intentional interference with

business expectancy. The court also concluded that the doctrine did not apply to trespass claims.

¶ 47   Regarding the merits of the Project Company's case, the court made, in relevant part, the

following factual findings. First, the evidence presented established that there was an 18-month

delay, March 2007 through September 2008, in the commencement of construction attributable

to the District’s conduct and that it was the District's intentional obstruction of the Alley that

proximately caused the Project Company's delay damages. The court found that the evidence

established that the proposed plan for the 664 N. Michigan Avenue building was approved by the

Landmark Commission in March 2007 and that demolition could have begun by then as the other

two parcels did not require Landmark Commission approval. The court also found that the

evidence established that financing for the project was delayed because construction could not

begin until the easement dispute was resolved. The court noted that, beginning in late 2007, the

Project Company was finally able to obtain title insurance, and that, as a result, the construction



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2014 IL App (1st) 130307


and mezzanine loans which the project required took an additional six months to obtain, delaying

the closing until April 2008.

¶ 48   Further, the court relied upon LoGuidice’s testimony in support of its finding that all of

the "critical milestones" necessary to commence construction were either completed or could

have been completed by March 2007, but for the actions of the District. While the court did not

award damages for the construction loan interest costs based on the differences in the Corus

Bank and Helaba Bank loan terms because it determined that such differences were speculative,

the court found that the increased mezzanine loan interest costs for the second tranche of

mezzanine financing were not speculative as the costs had actually been incurred because of the

delay in the project's completion. The court also stated that LoGuidice's opinion as to the 31-

month marketing delay was "amply supported" by his analyses using credible sources and data,

including the testimony of Lissner, Marks and the Rubloff sales agents.

¶ 49   Based on the evidence, the court computed its judgment in favor of the Project Company

on count I of the counterclaim, alleging interference with the easement as follows: $5,397,265

for additional construction costs; $2,996,264 for advertising and marketing expenses; $249,004

for additional Terra rent payments; $387,587 for construction management expenses; $603,562

for the cost to build a new sales center; $52,500 for additional real estate transfer taxes; $61,966

for legal fees incurred in other litigation; $1,875,006 for additional ground lease payments; and,

$24,808,793 for increased interest on the mezzanine loan.          The court also entered a $100

judgment in favor of the Project Company for nominal damages on its trespass claim as pled in

count III. Fourteen days later, the District filed its timely notice of appeal.

¶ 50   In urging reversal, the District argues that: (1) the economic loss doctrine bars recovery

for the type of damages awarded by the circuit court; (2) the judgment was based in part upon

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conduct that was not alleged in the counterclaim; and (3) the damage award is against the

manifest weight of the evidence.       From the outset, we note that the District has made no

argument in its briefs before this court contesting in any way the trial court’s finding that it did,

in fact, intentionally interfere with the Project Company’s right to use the Alley beginning in

2005 and continuing until the injunction prohibiting its conduct issued in August 2008.

Therefore, our analysis of the issues raised starts with this proposition as an established fact.

¶ 51      In support of its first argument that the economic loss doctrine bars recovery for the

$36,432,047 in damages awarded to the Project Company, the District contends that recovery for

economic losses occasioned by disappointed commercial expectations are not recoverable in tort.

In response, the Project Company asserts that the trial court properly determined that the District

forfeited its argument in this regard by failing to raise it as an affirmative defense or in a motion

to dismiss, but instead improperly raising it for the first time after the trial was completed. On

the merits of the issue, the Project Company argues that the economic loss doctrine has no

application to intentional torts such as the one involved in this case.

¶ 52      We review the forfeiture issue using an abuse of discretion standard. See Hanley v. City

of Chicago, 343 Ill. App. 3d 49, 53-54 (2003). The question of whether the economic loss

doctrine is applicable to damages sustained as the result of an intentional tort is one of law, and,

therefore, our review of that issue is de novo. Bogner v. Villiger, 343 Ill. App. 3d 264, 267-68

(2003); Smith v. Intergovernmental Solid Waste Disposal Ass'n, 239 Ill. App. 3d 123, 134

(1992).

¶ 53      Addressing the circuit court’s finding that it forfeited the economic loss argument, the

District relies upon the holding in Rosos Litho Supply Corp. v. Hansen, 123 Ill. App. 3d 290,

293-94 (1984), overruled in part on other grounds by 2314 Lincoln Park West Condominium

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2014 IL App (1st) 130307


Ass'n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302 (1990)), which concluded that a

defendant is not required to raise the economic loss doctrine earlier than in a posttrial motion.

Under the facts of this case, we disagree.

¶ 54   The economic loss doctrine as a defense to the damages claimed by the Project Company

presented a legal question which could have been easily resolved much earlier in the proceedings

through a motion to dismiss or a motion for summary judgment, long before the close of a

lengthy damages trial. See Production Specialties Group, Inc. v. Minsor Systems, Inc., 513 F.3d

695, 699 (7th Cir. 2008) (finding the defendant's motion for a new trial was "not the appropriate

place to raise for the first time arguments that could have been brought earlier in the

proceedings," including its economic-loss argument which could have been "easily resolved at

the summary judgment stage or even as a motion to dismiss for failure to state a claim"). Here,

the District failed to raise the argument at any stage of the proceedings prior to the Project

Company having rested its case for damages on June 22, 2011. It failed to raise the defense after

it received the damages report of the Project Company’s forensic accountant, LoGuidice, in

January 2009; five months prior to the permanent injunction hearing. Even after the District

received LoGuidice's report, it did not object to the requested damages; rather, it sought merely

to sever the damages claim from the equity claims. The District's failure to raise the argument

earlier prejudiced the Project Company by depriving it of an opportunity to renew its motion to

amend the counterclaim or otherwise address this issue before it participated in the lengthy trial

on damages. See Kaiser Agricultural Chemicals v. Rice, 138 Ill. App. 3d 706, 713 (1985)

(finding that the plaintiff forfeited its defense to the defendant's counterclaim based upon the

economic loss doctrine by failing to raise the defense in its answer; "[a] party may not raise on



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appeal defenses not interposed in its answer before the trial court [citation], even where it

appears that the evidence presented could have supported that defense").

¶ 55   Although some courts in other jurisdictions have determined that the economic loss

doctrine is not an affirmative defense (see Tarrant County Hospital District v. GE Automation

Services, Inc., 156 S.W.3d 885 (Tex. Ct. App. 2005)), section 2-613(d) of the Code of Civil

Procedure (735 ILCS 5/2-613(d) (West 2012)) encompasses both affirmative defenses and other

grounds "which, if not expressly stated in the pleading, would be likely to take the opposite party

by surprise" and requires such defenses or grounds to be plainly set forth in the answer or reply.

This the District failed to do. We find, therefore, that the trial court did not abuse its discretion

in holding that the District forfeited its economic loss argument by failing to raise it at an earlier

stage in the proceedings.

¶ 56   Forfeiture aside, for the reasons which follow, we conclude that the economic loss is

inapplicable to a claim based upon intentional interference with an easement. In Moorman, the

supreme court held that a plaintiff cannot recover for solely economic losses under the tort

theories of strict liability, negligence, and innocent misrepresentation. Moorman, 91 Ill. 2d at 91;

In re Chicago Flood Litigation, 176 Ill. 2d 179, 198 (1997). The court defined economic losses

as those sustained by reason of " 'inadequate value, costs of repair and replacement of the

defective product, or consequent loss of profits—without any claim of personal injury or damage

to other property *** [citation] as well as 'the diminution in the value of the product because it is

inferior in quality and does not work for the general purposes for which it was manufactured and

sold. [Citation.]' " Moorman, 91 Ill. 2d at 82. The doctrine "stems from the theory that tort law

affords a remedy for losses occasioned by personal injuries or damage to one's property, but

contract law and the Uniform Commercial Code (810 ILCS 5/1-101 through 1-209 (West 1996))

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offer the appropriate remedy for economic losses occasioned by diminished commercial

expectations not coupled with injury to person or property. [Citation.]" Mars, Inc. v. Heritage

Builders of Effingham, Inc., 327 Ill. App. 3d 346, 351 (2002).

¶ 57    The Moorman court articulated three exceptions to the economic loss doctrine; namely,

circumstances where: (1) the plaintiff sustains personal injury or property damage, resulting from

a sudden or dangerous occurrence (Moorman, 91 Ill. 2d at 86); (2) the plaintiff's damages are

proximately caused by a defendant's intentional, false representation, i.e., fraud (Moorman, 91

Ill. 2d at 88-89); and (3) the plaintiff's damages are proximately caused by a negligent

misrepresentation by a defendant in the business of supplying information for the guidance of

others in their business transactions (Moorman, 91 Ill. 2d at 89). In re Chicago Flood Litigation,

176 Ill. 2d at 199.

¶ 58    Following Moorman, courts recognized other situations in which the doctrine is

inapplicable. In Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159

Ill. 2d 137, 162-64 (1994), the supreme court recognized an exception for professional liability

actions where extracontractual duties exist, such as those duties running between an attorney or

accountant and a client. The court explained that the "ultimate result of the relationship between

the professional and a client is something intangible," as the value of the services rendered "lies

in the ideas behind the documents, not in the documents themselves." Id. at 163. Thus, the court

concluded that "[a]pplication of the Moorman doctrine limiting recovery of purely economic

losses to contract *** is inappropriate where a relationship results in something intangible." Id.

at 164; see also Collins v. Reynard, 154 Ill. 2d 48, 52 (1992) (finding attorney malpractice claims

are excepted from application of the economic loss doctrine).



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¶ 59   In 2314 Lincoln Park West Condominium Ass'n v. Mann, Gin, Ebel & Frazier, Ltd., 136

Ill. 2d 302, 315 (1990), the supreme court noted other situations in which this court has

distinguished Moorman and allowed tort actions seeking damages for economic losses to

proceed, including actions for intentional interference with a contract (Santucci Construction Co.

v. Baxter & Woodman, Inc., 151 Ill. App. 3d 547 (1986)) and intentional interference with

prospective business advantage (Werblood v. Columbia College of Chicago, 180 Ill. App. 3d 967

(1989)). The supreme court noted that, "[t]he principle common to those decisions is that the

defendant owes a duty in tort to prevent precisely the type of harm, economic or not, that

occurred." Lincoln Park West, 136 Ill. 2d at 315.         As the Werblood and Santucci courts

explained, the questions addressed and decided in Moorman and its progeny were not intended to

abolish causes of action for intentional interference with contract and prospective advantage.

Werblood, 180 Ill. App. 3d at 973 (quoting language of Santucci); Santucci, 151 Ill. App. 3d at

553. "The purpose of imposing liability in tort upon persons who interfere with the contractual

relations of others is to protect one's interest in his contractual relations against forms of

interference which, on balance, the law finds repugnant." Santucci, 151 Ill. App. 3d at 553.

¶ 60   Similar to the torts of intentional interference with a contract or with prospective business

advantage, a claim of intentional interference with an easement seeks to protect the interests of

those in possession of real property against unreasonable interference with their rights to access

and use their property. Unlike situations involving commercial transactions or defective goods

to which the Moorman doctrine has traditionally been applied, the case at bar originates in

property law where the duties running between dominant and servient estate holders have been

long recognized. As the supreme court has noted, the "concept of duty" has been "at the heart of

the distinction drawn by the economic loss rule" (2314 Lincoln Park West, 136 Ill. 2d at 314),

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and the "principle common" to the recognized exceptions to the doctrine is that "the defendant

owes a duty in tort to prevent precisely the type of harm, economic or not, that occurred" (id. at

315). Here, the District had a duty not to interfere with the Project Company's use of the

easement and to prevent the precise type of harm that occurred. See 28A C.J.S. Easements § 91,

at 396 (2008) (discussing dichotomy of interests between servitude estates); see also McMahon

v. Hines, 298 Ill. App. 3d 231, 235-36 (1998) (discussing rights of dominant and servient estate

holders to reasonable use of property subject to easement).

¶ 61    Historically, tort damages have been allowed for interferences with easements. See Page

v. Bloom, 223 Ill. App. 3d 18, 23 (1991) (affirming a judgment for lost crop profits where the

plaintiff established that his damages were caused by the defendants' obstruction of an

easement); Can Am Industries, Inc. v. Firestone Tire & Rubber Co., 631 F. Supp. 1180, 1184

(1986) (C.D. Ill. 1986) (awarding punitive damages where the servient owner blocked the

dominant estate's easement); LeClerq v. Zaia, 28 Ill. App. 3d 738, 742-43 (1975) (affirming

punitive and nominal damages judgment where the dominant estate/defendant was proven to

have intentionally interfered with the servient estate/plaintiff's property when it damaged the

roadway upon which it had ingress and egress rights).

                "An easement holder is entitled to such damages as are proximately caused by a

       wrongful interference with the easement, and the easement owner is entitled to such

       damages as naturally and proximately result from the act complained of, and such as would

       fairly and reasonably compensate him or her for the wrong suffered ***. Even if plaintiffs

       are unable to prove any injury or actual damage, they are entitled to nominal damages

       where defendants impaired enjoyment of plaintiffs' use of a right-of-way over defendants'



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       land, as the law presumes damage in order for plaintiffs to vindicate their rights." 28A

       C.J.S. Easements § 278, at 507-08 (2008).

¶ 62    The considerations behind the economic loss doctrine articulated in Moorman are not

present here. This is not a situation where, at the time the easement was created, the parties to

the easement could have allocated their risks as in contract or where the Uniform Commercial

Code applies. See Mars, Inc., 327 Ill. App. 3d at 351.

¶ 63    The District also contends that In re Chicago Flood Litigation supports its argument that

actions involving property rights are subject to the economic loss doctrine. In that case, the

supreme court did hold that a "plaintiff in a private nuisance action may recover all consequential

damages flowing from the injury to the use and enjoyment of his or her person or property. ***

However, recovery of damages for solely economic loss is not permissible." In re Chicago

Flood Litigation, 176 Ill. 2d at 207. However, the court did not distinguish between negligent or

intentional nuisance claims; rather, it merely stated that the policy behind the economic loss

doctrine was to avoid the open-ended economic consequences of a single negligent act, such as

the sudden flood occurrence at issue. Id. Here, however, we have an on-going, continuous, and

intentional interference with easement rights by the District, including the physical blocking of

ingress and egress from the Property in order to prevent or discourage its development. Unlike

the circumstances present in In re Chicago Flood Litigation, the damages suffered by the Project

Company in this case were the very damages the District sought to inflict upon it, namely, to

prevent or delay the development of the Property.

¶ 64    In this case, the Project Company presented evidence of the costs it incurred as a result of

the District's intentional interference with its right to use the easement, including costs incurred

by reason of increased interest obligations and increased rent payments. The losses sought by

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the Project Company do not relate to the "inadequate value, costs of repair and replacement of

[a] defective product, or consequent loss of profits" or the "diminution in the value of the product

because" of inferior quality as the Moorman court defined economic losses, nor were they the

result of an isolated negligent act. Rather, the losses sought are consequential damages which

the Project Company incurred by reason of the delay caused by the District's ongoing

interference with its ability to use the alley to access and develop the Property.

¶ 65   We believe that the holder of rights under an easement is entitled to recover damages,

including for economic losses, proximately caused by the intentional interference with those

rights. See 28A C.J.S. Easements § 279, at 509 (2008); Restatement (Third) of Prop.: Servitudes

§8.3, at 492-93 (2000); see also, Wells v. Sanor, 151 S.W.3d 819, 825 (Ky. Ct. App. 2004)

(measure of damages for interference with easement includes the diminution in value of the use

of the property during the time the obstruction continued and the rental value of property is a

relevant factor in determining the amount of damages); Mondelli v. Saline Sewer Co., 628

S.W.2d 697, 699 (Mo. Ct. App. 1982) ("easement holder is entitled to such damages as are

proximately caused by wrongful interference with the easement," including, if obstruction is

temporary, the "reduction in rental value of the property" during obstruction or "any special

damages which may be established"). Accordingly, even if the District had not forfeited its

argument, we agree with the trial court that the economic loss doctrine does not apply to bar the

Project Company's recovery of damages for economic losses it incurred as a proximate result of

the District's intentional interference with the easements at issue.

¶ 66   We next address the District's contention that the court erred in awarding damages for

conduct which exceeded the counterclaim's factual allegations and legal claims. In support of its

contention in this regard, the District makes a number of arguments, namely that: (1) the circuit

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court’s award of damages beyond that which the Project Company sought in its counterclaim is

void; (2) the circuit court erred in awarding damages for conduct which occurred outside of the

period pled in the Project Company's counterclaim; (3) the circuit court erred in awarding

damages based upon an unpled cause of action, namely, intentional interference with a business

expectancy; and (4) the Project Company lacked standing to claim interference with easement

rights occurring prior to April 30, 2008.

¶ 67   On the issue generally, the Project Company argues that by failing to timely object to the

admission of evidence of conduct predating April 30, 2008, the District forfeited the argument.

It notes that the District's motion to bar LoGuidice's report on the basis that his opinions relied on

events predating the closing was denied by the trial court as untimely because the motion was not

filed until April 28, 2011, long after evidence of damages predating April 30, 2008, had been

admitted in evidence without objection.

¶ 68   We agree with the Project Company that the District forfeited its argument that the

judgment was entered on unpled allegations. "An objection that an issue was not raised in the

pleadings can be waived by the objecting party's conduct at trial, or by the introduction of

evidence on the issue." In re T.B., 195 Ill. App. 3d 919, 923 (1990); see also Schwartzbach v.

City of Highland Park, 82 Ill. App. 3d 807, 810 (1980). Here, the District failed to timely object

to the evidence and itself introduced evidence regarding conduct predating April 30, 2008. The

trial court denied the District's motion in limine to bar LoGuidice's damages testimony on the

basis that the District had failed to timely object to the evidence and had taken discovery over the

course of two years. Additionally, the trial court observed that other evidence of conduct

occurring between 2005 and 2008 had already been admitted without objection during the

hearings addressing the injunctive relief sought. The trial court also explained that its ruling on

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the issue did not conflict with its denial of the Project Company's motion to amend its

counterclaim in 2009, noting that the motion to amend was ruled upon two years before trial and

focused on adding a new claim, not on the admission of evidence. Based on these facts, we find

that the District forfeited its argument that the court's damages judgment was improperly based

upon unpled allegations. Moreover, the District cannot claim it was prejudiced by an alleged

variance between the proofs and the allegations in the counterclaim where it participated in

discovery and itself introduced evidence relating to conduct predating the April 30, 2008,

closing. See In re Detention of Hayes, 2014 IL App (1st) 120364, ¶ 30 ("While the black letter

law states that proof without pleading is as defective as a pleading without proof, the objecting

party must show prejudicial effect of the variance.").

¶ 69   Forfeiture aside, we also reject the District’s arguments on their merits. Relying on Ligon

v. Williams, 264 Ill. App. 3d 701 (1994), the District argues that the judgment against it is "void"

because the trial court lacked jurisdiction to enter a judgment based upon unpled allegations and

an unpled cause of action. However, we find its reliance upon on Ligon misplaced.             Ligon

involved a court's sua sponte custody order entered when the complaint in the case did not raise

the issue of custody. Ligon, 264 Ill. App. 3d at 702-04. Here, however, the justiciable issue of

damages resulting from the District's alleged interference with the easements was clearly

presented in the counterclaim. Thus, the circuit court had subject matter jurisdiction to enter the

judgment and its order is not void. Rather, the District's contentions that the judgment was

improperly entered on unpled allegations or an unpled cause of action raise only questions of

whether the judgment is voidable. See In re Custody of Ayala, 344 Ill. App. 3d 574, 584 (2003)

("A voidable judgment is one entered erroneously, either through mistake of fact or law or both,

by a court having jurisdiction and is not subject to collateral attack.").

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¶ 70   Next, the District contends that the trial court erred by awarding damages for conduct

which occurred outside of the period pled in the counterclaim. As an initial observation, we note

that the counterclaim is rather vague as to the period covered. To be sure, it references acts of

alleged interference occurring after April 30, 2008, such as the District’s refusal to allow the

Project Company to deliver scaffolding through the Alley on May 15, 2008, and the locked

security gate across the Alley which prevented a representative of the Project Company along

with employees of the a construction company from delivering construction materials to the

Property on June 26, 2008.        However, the counterclaim also references alleged acts of

interference occurring at times no more specific than "in recent months" and "for extended

periods of time."    The prayer for relief requested damages “resulting from the District’s

interference” without specifying any time frame. If the District was confused as to the time

period of its alleged interference, it could have requested a bill of particulars (see 735 ILCS 5/2-

607 (West 2008)), but did not.

¶ 71   Assuming for the sake of analysis that the counterclaim as pled refers only to alleged acts

of interference with easement rights occurring after April 30, 2008, the record is clear that during

the injunction phase of the proceedings both the Project Company and the District presented

evidence addressing the District’s conduct prior to April 30, 2008, all without objection.

Consequently, the District cannot claim either surprise or prejudice when the same evidence was

presented during the subsequent hearing on damages. Contrary to the District’s assertion that it

was prevented from examining witnesses concerning its pre-April 30, 2008, conduct, the record

reflects that the District was allowed to fully explore the timing and progress of the Property’s

development and the effects of its interference with the easement rights over the Alley both pre-



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and post-April 30, 2008, that it was allowed to thoroughly cross-examine LoGuidice, and that the

District presented evidence to refute LoGuidice's assumptions and calculations.

¶ 72   In response, the Project Company requests that we use our authority pursuant to Illinois

Supreme Court Rule 362 (eff. Feb. 1, 1994) and grant its motion to amend the counterclaim to

conform to the proofs in order to cure any technical defect in the pleadings that may exist. The

Project Company seeks to add five additional paragraphs which it asserts are supported by the

proofs. Those paragraphs contain the following allegations: (1) beginning on or about June 21,

2005, the Project Company entered into a series of agreements with Terra regarding the

development of the three properties; (2) based on those agreements, the Project Company had a

reasonable expectation of proceeding with its development plans in a timely manner as it pursued

financing options in late 2005 and began selling condominium units in early 2006 with expected

delivery by late 2009; (3) the District learned about the proposed development plan in 2005 and

(4) "immediately thereafter, the District began to purposefully interfere" with the plan by

preventing access to the alley; and, (5) the District's wrongful interference caused a significant

and material breach in the Project Company's business expectancy, delaying all aspects of the

development.

¶ 73   The District objects for three reasons: (1) the new count neither states a claim upon which

relief can be granted nor was proven at trial; (2) the Project Company did not challenge the

circuit court's denial of its initial motion to amend; and (3) the District would be severely

prejudiced by injecting a new cause of action into the litigation at this stage. Regarding the

sufficiency of the claim, District contends that the new count does not specify a third party

toward whom the District directed any activity and with whom the Project Company lost a

business relationship. Rather, the original counterclaim and the proposed new count make only a

                                              - 32 -
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general reference to interference with the Project Company's own development activities, such as

financing, contracting, permitting, demolition, and construction.       Regarding prejudice, the

District contends that the amendment would deprive it of the opportunities to demand a jury trial,

take important discovery, and raise additional defenses. The District also argues that the original

counterclaim alleged conduct that occurred only after April 2008 while the proposed amendment

alleges conduct occurring from 2005 through 2008.

¶ 74    "The purpose of Rule 362 is to amend the pleadings to conform to the evidence

presented at trial" where the amendment is necessary, will not prejudice the adverse party, and

the issues sought to be raised by the amendment are supported by the facts in the record on

appeal. Sylvester v. Chicago Park District, 179 Ill. 2d 500, 511 (1997). To the extent the Project

Company's motion seeks to amend the counterclaim to include allegations of conduct dating

back to 2005, we grant its motion as the evidence presented at trial supports the judgment

entered. See Pickett v. First American Savings & Loan Ass'n, 90 Ill. App. 3d 245, 249 (1980)

("In the interest of justice, we amend the complaint to conform the pleadings to the proof

presented at trial***."). In this case, the District's conduct predating the April 30, 2008, closing

was addressed not only during the hearing on damages, but also during the injunctive-relief

hearings. The District was also presented with LoGuidice's report in January 2009, and the trial

court granted its motion to sever the damages trial in order for it to prepare, obtain additional

discovery, and secure its own expert to rebut LoGuidice's opinions. The District cannot claim

prejudice where it was afforded the opportunity to fully defend itself against the Project

Company's position that it suffered damages as a result of the District's interfering conduct

predating the April 2008, property closing. Moreover, the evidence adduced at trial established

that the District's intentional interference began as early as 2005 when it learned of the intended

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development of the Property served by the easements. For these reasons, we grant the Project

Company's motion to amend the counterclaim to the extent it seeks to add allegations,

conforming to the proofs, of the District's conduct predating April 30, 2008.

¶ 75   We deny, however, that portion of the Project Company’s motion that seeks to amend the

counterclaim to include a new claim against the District, namely, intentional interference with

prospective economic advantage. In that regard, we agree with the trial court. The inclusion of

a new cause of action at this late date would prejudice the District as it contains elements that the

District was not called upon to refute during any stage of the litigation. Specifically, the District

was never called upon to defend against the allegations that it either knew of the Project

Company’s expectation of entering into a valid business relationship with some specified third

party and that its purposeful interference prevented that expectancy from ripening into a valid

business relationship. See Fellhauer, 142 Ill. 2d at 511. We view an attempt to amend a

pleading to conform to the proofs on the issue of damages entirely differently than a motion to

amend which seeks to interject an entirely new cause of action.

¶ 76   Next, the District argues that the trial court erred by awarding the Project Company

damages based upon the theory of interference with prospective economic advantage; a theory

which was never pled in the counterclaim. We reject the argument for two reasons. First, as

stated earlier, the trial court denied the Project Company’s motion to amend its counterclaim to

include such a cause of action. Second, and more telling, is the fact the trial court’s judgment

order specifically states that damages were awarded only based upon the District’s intentional

interference with easement rights and trespass.

¶ 77    We also reject the District's indirect argument that the Project Company lacked standing

to recover damages incurred before the April 30, 2008, closing. The District has framed the

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standing argument only in terms of the Project Company's failure to allege conduct in the

counterclaim predating the April 30, 2008, closing. However, the District fails to cite to any

authority supporting its standing argument. Therefore, as the Project Company argues, the

argument has been forfeited. See Ill. S. Ct. R. 341(h) (eff. Feb. 6, 2013); Bohne v. La Salle

National Bank, 399 Ill. App. 3d 485, 498 (points not supported by authority are forfeited on

appeal). We note also that objections to a party’s standing are forfeited if, as in this case, they

are not raised timely in the trial court. Greer v. Illinois Housing Development Authority, 122 Ill.

2d 462, 508 (1988); Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 664 (1994).

¶ 78   Forfeiture aside, we point out that the 2005 purchase agreement provided that Terra

granted the 664 N. Michigan, LLC, access to the property. Specifically, the 2005 purchase

agreement provided that "Terra grants to *** [664 N. Michigan, LLC] and its designees the right

to enter upon the property to survey the Property and to perform test borings of the soil *** and

such other tests, inspections and investigations as Company deems necessary in its sole and

absolute discretion."

¶ 79   Accordingly, under the 2005 purchase agreement, the Project Company and its

predecessors-in-interest had license to access the Property prior to the closing. O'Hara v.

Chicago Title & Trust Co., 115 Ill. App. 3d 309, 320 (1983) (stating that a "license, as it relates

to real property, is permission to do an act or a series of acts upon the land of another without

possessing any estate or interest in such land"). As Terra's licensee, the Project Company and its

predecessors-in-interest enjoyed the easement rights which Terra enjoyed as the language of the

easements clearly state that the easement rights flow to the property owners, heirs and assigns

and allow ingress and egress for them and their tenants, servants and licensees.               See



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Metropolitan Reclamation, No. 1-08-2223, slip order at 5-6 (quoting the easements at issue

here).

¶ 80     Therefore, even had the District not forfeited the standing argument, the evidence

established that the Project Company, although not the record property owner, acquired rights

under the Alley easements as assignee of the 2005 purchase agreement. See 28A C.J.S.

Easements, §258, at 485 (2008) ("In general, standing to sue to enforce the use of an easement is

commensurate with the right to use the easement, regardless of whether the suitor holds title to

the benefited property); Restatement (Third) of Prop.: Servitudes § 8.1, at 474 (2000) ("A person

who holds the benefit of a servitude under any provision of this Restatement has a legal right to

enforce the servitude. Ownership of land intended to benefit from enforcement of the servitude is

not a prerequisite to enforcement, but a person who holds the benefit of a covenant in gross must

establish a legitimate interest in enforcing the covenant."); see also, Tower Asset Sub Inc. v.

Lawrence, 152 P.3d 581, 584 (Idaho 2007) (agreeing with Restatement (Third) of Property that a

party has standing to enforce the right to use an easement if he has the right to benefit from the

easement and title ownership is not a necessary prerequisite).

¶ 81     Finally, the District contends that the trial court's factual findings, that it caused the

Project Company's 18-month construction delay and 31-month marketing delay, are against the

manifest weight of the evidence. The District contends that the evidence established that the

Project Company's alleged damages were caused by its own business decisions. The District

also asserts that the nominal award of $100 for the trespass claim was improper. We disagree.

¶ 82     A judgment is against the manifest weight of the evidence only if the opposite

conclusion is clear or where the trial court's findings appear to be unreasonable, arbitrary, or not

based on evidence. 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 13.

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"Stated differently, a factual finding is against the manifest weight of the evidence when an

opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not

based on the evidence." Id. (citing Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002)). "[A]

reviewing court should not overturn a trial court's findings merely because it does not agree with

the lower court or because it might have reached a different conclusion had it been the trier of

fact." Id. (quoting In re Application of the County Treasurer, 131 Ill. 2d 541, 549 (1989)). To

warrant reversal of a damages award, we must find that the trial judge either ignored the

evidence or that its measure of damages was erroneous as a matter of law. Id. An award of

damages is not against the manifest weight if there is an adequate basis in the record to support

the trial court's assessment. Id.

¶ 83   In this case, there is clearly an adequate basis in the record to support the court's finding

that the Project Company's demolition and construction activities were delayed by the District's

conduct as of March 1, 2007--the date when the Landmark Commission approved the demolition

of the 664 N. Michigan building. Further, witnesses for the Project Company testified that, until

the District ceased blocking access to the alley, it had no reason to finalize financing and close

on the property as it would have incurred interest costs while the project was at a standstill.

Witnesses also testified regarding the impact the District's conduct had on the marketing and

sales of the planned condominium units.        While the District refuted that it caused these

construction and marketing delays through the testimony of its expert, Dudney, the trial court, as

the trier-of-fact, had the duty to make credibility determinations and resolve conflicts in the

evidence. People ex rel. O'Malley v. Illinois Commerce Comm'n, 239 Ill. App. 3d 368, 380-81

(1993). Here, the trial court found the opinions of LoGuidice credible and well-supported and

determined that the evidence established that the District's conduct caused the 18-month

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construction delay and 31-month marketing delays. We have reviewed the testimony of both

LoGuidice and Dudney and conclude that LoGuidice's testimony, which was accepted by the

trial court, was sufficient to support the court's conclusion that the District's intentional conduct

caused the damages which it awarded, and its resolution of these issues is not against the

manifest weight of the evidence. Since the trial court's findings are not contrary to the manifest

weight of the evidence, we will not disturb them on review. However, we modify the award to

$35,762,047, as the parties agree that the trial court's mezzanine loan interest value inadvertently

included $670,000, attributed to the two-month permit delay which the trial court determined

was not caused by the District's conduct.

¶ 84   We also disagree with the District's position that LoGuidice's calculated damages were

speculative, remote, or uncertain. Rather, LoGuidice's figures were based on known historical

factors. For instance, regarding the "marketing delay," his figure was based on the market

conditions in 2006-2007, the sales velocity before the negative publicity ensued and the costs of

maintaining the sales office, the website, sales personnel, and advertising for the extended 31

months needed to sell the units. Increased construction costs were derived from the widely

accepted Marshall and Swift indices for the 18 months that construction was at a standstill. Like

the construction costs and marketing costs, the costs of extra rent to Terra, relocating the sales

center, real estate transfer taxes, and litigation fees related to buyers backing out of their

contracts were derived from historical numbers, not on future costs, lost profits, or expenses.

Finally, the increased mezzanine loan interest costs had been realized because the lender required

the second tranche of financing to be assumed in March 2010, after the delay in condominium

sales caused the construction loan to become imbalanced. Thus, we reject the District's position

that LoGuidice's estimates were speculative and uncertain.

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¶ 85   We further reject the District's argument that the $100 nominal damages award for the

trespass claim was against the manifest weight of the evidence as nominal damages may always

be awarded for legal injury arising from trespass. See Krejci v. Capriotti, 16 Ill. App. 3d 245,

247 (1973). Here, there was evidence that the District installed the gate on the 664 N. Michigan

property line, requiring removal which did not occur until sometime after the preliminary

injunction was entered in August 2008.

¶ 86   For the reasons stated, we grant the Project Company's motion to amend the counterclaim

to the extent indicated, and we affirm the judgment of the circuit court of Cook County as

modified to reflect the reduction in the mezzanine loan interest value by $670,000.

¶ 87   Affirmed as modified.




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