                                  Illinois Official Reports

                                          Appellate Court



                               Kelly v. Orrico, 2014 IL App (2d) 130002



Appellate Court              BRIAN KELLY and NICOLE KELLY, Plaintiffs-Appellees, v.
Caption                      LARRY ORRICO and RENAE YOCKEY, Defendants-Appellants.



District & No.               Second District
                             Docket No. 2-13-0002



Filed                        March 31, 2014



Held                         The judgment entered for plaintiffs based on the trial court’s
(Note: This syllabus         conclusion that defendants anticipatorily repudiated their contract to
constitutes no part of the   purchase plaintiffs’ house was reversed, since the doctrine of
opinion of the court but     anticipatory repudiation did not apply where defendants’
has been prepared by the     announcement that they would not close the deal occurred only after
Reporter of Decisions        plaintiffs informed them that they had another buyer for the house, and
for the convenience of       the announcement was no more than an ambiguous implication as to
the reader.)                 whether defendants would close the contract, and, under those
                             circumstances, the finding of anticipatory repudiation was against the
                             manifest weight of the evidence.




Decision Under               Appeal from the Circuit Court of Du Page County, No. 09-L-1603; the
Review                       Hon. Kenneth L. Popejoy, Judge, presiding.




Judgment                     Reversed.
     Counsel on                Robert G. Black, of Law Offices of Robert G. Black, and Scott M.
     Appeal                    Day, of Day & Robert, P.C., both of Naperville, for appellants.

                               Thomas A. Christensen and Brian K. LaFratta, both of Huck Bouma,
                               P.C., of Wheaton, for appellees.




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

                                                OPINION

¶1         Following a bench trial, the trial court entered a judgment in favor of plaintiffs, Brian Kelly
       and Nicole Kelly, and against defendants, Larry Orrico and Renae Yockey, after concluding
       that defendants had anticipatorily repudiated their contract with plaintiffs. The parties had
       entered into a contract for defendants to purchase plaintiffs’ home, and plaintiffs filed suit
       when defendants failed to close on the purchase by August 20, 2008. Defendants now appeal,
       contending that (1) the trial court’s judgment did not match plaintiffs’ pleadings, which alleged
       a breach-of-contract theory of relief; (2) the record failed to support a finding of defendants’
       anticipatory breach; (3) plaintiffs’ election of remedies under a separate contract that they had
       with a third party to purchase their home precluded a judgment against defendants; and (4)
       plaintiffs did not suffer damages. For the reasons set forth below, we reverse the trial court’s
       judgment.

¶2                                             I. Background
¶3         The record reflects that plaintiffs owned a house on East Bryn Mawr Avenue in Itasca.
       Defendants lived two doors from plaintiffs, and the parties were friends. On July 12, 2007, the
       parties entered into a contract for defendants to purchase plaintiffs’ house for $1.2 million,
       with the closing date set for May 2, 2008. The parties also agreed that Nicole Kelly, a licensed
       realtor, would list defendants’ house for sale.
¶4         On May 2, 2008, the parties agreed that the closing date would be rescheduled to August
       20, 2008. The parties also agreed that plaintiffs would list their house for sale.
¶5         On June 19, 2008, plaintiffs entered into a contract with Michael and Cindy DiSilvestro for
       the DiSilvestros to purchase plaintiffs’ home for $1.2 million. Brian Kelly telephoned Yockey
       to advise her of the DiSilvestros’ offer, and defendants did not object. Plaintiffs and the
       DiSilvestros set their closing date for October 8, 2008.
¶6         On July 25, 2008, plaintiffs’ attorney sent defendants a correspondence advising that
       plaintiffs would consider defendants in breach of the July 12, 2007, contract unless defendants
       performed their contractual obligations. On August 21, 2008, plaintiffs’ attorney sent
       defendants a letter notifying them of their breach.



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¶7         Thereafter, the DiSilvestros defaulted on their contract with plaintiffs. As a result, the
       DiSilvestros forfeited $50,000 in earnest money to plaintiffs. On May 4, 2009, plaintiffs
       entered into a contract to sell their home to Brian Gerber, who purchased plaintiffs’ home for
       $1 million.
¶8         On December 23, 2009, plaintiffs filed against defendants their single-count complaint
       alleging breach of contract. Plaintiffs alleged that they had performed their contractual
       obligations, defendants “failed to perform their obligations as [they] failed to close on the
       purchase of [plaintiffs’ house] on the agreed upon extended closing date of August 20, 2008,”
       and defendants’ breach proximately caused plaintiffs damages. Defendants raised various
       affirmative defenses, including waiver, equitable estoppel, release, lack of consideration, and
       laches.
¶9         A bench trial commenced on October 9, 2012. Brian Kelly testified first on plaintiffs’
       behalf. Brian testified that in May 2008 he had a conversation with defendants regarding their
       contract. Brian testified that defendants advised him that they were not going to be able to
       purchase plaintiffs’ house, because defendants had been unable to sell their home. Brian told
       defendants that their contract was not contingent on defendants being able to sell their home or
       being able to obtain financing. Brian testified that “there was no conversation whatsoever”
       about defendants being released from their contractual obligations. Brian continued:
                    “I basically told them, well, if you guys do not have an intention of purchasing the
                house, that I would go ahead and put the home for sale. If I had interest or a potential
                buyer, than [sic] I would contact them again, and we could just take it from there.”
       Brian testified that defendants agreed that plaintiffs could list their house, but that there was no
       discussion that plaintiffs placing their house on the market would release defendants from the
       contract. Brian testified that, “if something else comes about,” the parties could then “figure
       out what the best remedy to the situation is.”
¶ 10       Brian testified that the DiSilvestros offered to purchase plaintiffs’ house for $1.2 million.
       Brian testified that he called Yockey in June 2008 to inform her of the DiSilvestros’ offer and
       to discuss “where we were with everything.” Brian testified that he explained to Yockey that
       the contract with the DiSilvestros was for the same sale price, but that, because there was a
       realtor involved in that contract, plaintiffs would incur a $30,000 commission fee. Brian
       testified that he believed that defendants should be responsible for that fee. Brian testified that,
       while Yockey did not make any statements indicating a belief that defendants were released
       from their contract, she “actually seemed excited[;] *** I think there was a feeling of relief
       because there was another contract at that point.” Brian testified that Yockey called him back
       the next day and told him that she did not believe that defendants were responsible for the
       $30,000 fee. Describing the conclusion of that conversation, Brian testified:
                    “I just wanted to be done with it, also. And I thought that was a very good
                conclusion to the problem at hand. That, you know, I made a good effort to try to keep
                the problem taken care of with the least amount of headache or, you know, discomfort
                for the buyer or the seller. ***
                    *** [B]ut she didn=t feel obligated to pay the commission. And I just said okay, and
                that was that.”
       Brian testified that his attorney sent a letter to defendants’ attorney on July 25, 2008, and that
       plaintiffs did not receive a response. Brian testified that his attorney sent defendants another


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       letter on August 21, 2008, advising defendants that they were in breach of their contract.
       Plaintiffs did not receive a response from defendants.
¶ 11        On cross-examination, Brian acknowledged that plaintiffs signed the contract with the
       DiSilvestros after his June 2008 phone conversation with Yockey. Brian explained:
                “We made a decision that *** if you have someone who’s going to possibly purchase
                [the house], to try to pursue it. I did talk with [Yockey] first and explain the situation.”
       Brian acknowledged that he did not receive anything in writing from defendants advising him
       that defendants would not close on the contract. Brian testified that “it was a verbal from them
       with my wife present and myself present.” Brian admitted that plaintiffs kept the $50,000 in
       earnest money from the DiSilvestros after the Disilvestros defaulted on their contract.
¶ 12        Nicole Kelly testified next on plaintiffs’ behalf. Nicole testified that she was present during
       the May 2008 conversation with defendants. Nicole testified that Yockey advised that
       defendants would not be able to purchase their home. Nicole testified that she was a licensed
       real estate agent and that she listed defendants’ home after the parties had entered into their
       contract. Nicole testified that she stopped listing defendants’ house in June 2008. Nicole
       explained that she did not stop listing defendants’ house after their May 2008 conversation
       with defendants because:
                “[W]hen [defendants] *** stated that they were not going to be able to purchase our
                home, we said ‘well, we’ll try to get another buyer. And that way, that will relieve you
                your obligation if we can get another buyer for the same price.’
                    And–but in the meantime, if their house sold, they would be interested at that point
                in purchasing our home.”
       Nicole testified that she was present for only the May 2008 conversation with defendants and
       that there was no discussion of defendants being unconditionally released from their
       contractual obligations. Nicole testified that it was “clear” that defendants would not be able to
       close on the sale of plaintiffs’ home. On cross-examination, Nicole admitted that she stopped
       listing defendants’ home after defendants had refused to pay the commission fee resulting from
       the DiSilvestro contract, although she could not remember the exact date. Plaintiffs rested after
       Nicole’s testimony, and the trial court denied defendants’ motion for a directed finding.
¶ 13        Yockey testified first on defendants’ behalf. Yockey testified that, during the May 2008
       meeting, plaintiffs had said that they were considering putting their house on the market to
       “improve people looking at our house,” which could possibly lead to a purchaser for
       defendants’ house and defendants could then purchase plaintiffs’ house. Yockey testified that
       defendants “absolutely never said” that they did not intend to purchase plaintiffs’ home and
       that they were “excited” that plaintiffs had extended the closing date until August 20, 2008,
       because it gave defendants more opportunity to sell their house. Yockey testified that
       defendants were working with a lender to obtain a bridge loan, which would have allowed
       them to purchase plaintiffs’ house even if they did not sell their house by August 20, 2008.
       Yockey testified that defendants did not continue to pursue that loan after Brian called her on
       June 19, 2008, advising that plaintiffs had another buyer. Yockey testified that Brian asked her
       if plaintiffs should go ahead with the sale. After speaking with Orrico, Yockey called Brian and
       told him that, because defendants had not received any offers on their house, plaintiffs should
       go forward with selling their house to the third party. Yockey testified that, once Brian told her
       that he had another purchaser, she was “under the impression that we were done.” Yockey


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       testified that, within a week of that conversation, a “for sale” sign that Nicole had placed in
       defendants’ front yard had been removed, which also gave her the impression that they were no
       longer under contract to purchase plaintiffs’ house. Yockey testified that she could see that a
       “sold” sign had been placed over a for-sale sign in plaintiffs’ yard. Yockey testified that, when
       she received correspondence from plaintiffs’ attorney on July 25, 2008, and August 21, 2008,
       she believed that plaintiffs’ house was under contract with a third party. During
       cross-examination, Yockey acknowledged that defendants’ contract to purchase plaintiffs=
       house did not contain either a sale-of-home contingency or a financing contingency. Yockey
       clarified that her last conversation with plaintiffs occurred when she gave Brian permission for
       plaintiffs to sell their house to a third party.
¶ 14       Orrico testified next on defendants’ behalf. Orrico testified that, during the May 2008
       meeting, plaintiffs suggested that they would put their home up for sale as a way to entice
       potential buyers to buy defendants’ home. Orrico testified that defendants agreed to let
       plaintiffs list their home. Orrico testified that he never told plaintiffs that he and Yockey would
       not close on the sale of plaintiffs’ home, and he believed that the contract was still in full force
       and effect. Orrico testified that he was not part of the June 2008 phone call between Brian and
       Yockey, but that Yockey informed him that plaintiffs had another buyer for their home and that
       Brian had mentioned that defendants should pay plaintiffs’ commission fee on that sale. Orrico
       testified that defendants decided to let plaintiffs sell their home, because plaintiffs had another
       buyer. Orrico testified that, shortly after they learned that plaintiffs had another buyer for their
       home, the for-sale sign in front of defendants’ home was removed.
¶ 15       During cross-examination, Orrico acknowledged that he was not part of the discussion
       where Brian informed Yockey that plaintiffs had another buyer for their home. Orrico testified
       that he believed that plaintiffs had released defendants from their contract when plaintiffs had
       entered into the contract with the DiSilvestros. Orrico admitted that he never saw any
       documentation stating that the contract had been cancelled. Orrico further admitted that he
       never had any conversations with plaintiffs about defendants being released from the contract,
       but testified that he came to that conclusion after plaintiffs entered into their contract with the
       DiSilvestros. Orrico testified that he told his attorney that plaintiffs had entered into another
       contract to sell their home, but that he never advised the attorney that defendants’ contract with
       plaintiffs had been canceled. Defendants rested after Orrico’s testimony.
¶ 16       On December 6, 2012, the trial court entered judgment in plaintiffs’ favor. The trial court
       found that defendants had “clearly created an anticipatory breach of the contract by advising
       the plaintiffs that they couldn’t perform on the rescheduled contingency fee contract.” The trial
       court further found that there was no release or accord and settlement of the parties’ contractual
       rights or obligations. The trial court found that plaintiffs did not have to “go through the
       useless act [of] tendering performance on the contractual closing date and incur unnecessary
       damages in light of [defendants’] clear *** anticipatory breach and both parties failing to
       renegotiate, alter or modify the original contract.” The trial court concluded that plaintiffs’
       “first contract of mitigation” with the DiSilvestros did not constitute plaintiffs terminating or
       abandoning their contract with defendants, which would occur only when plaintiffs closed on
       the DiSilvestros’ contract and transferred title to their home. The trial court noted that
       defendants never demanded that plaintiffs perform under the contract, and the trial court
       rejected defendants’ affirmative defenses. The trial court awarded plaintiffs $150,000 in
       damages. Defendants timely appealed.

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¶ 17                                             II. Discussion
¶ 18                                              A. Pleadings
¶ 19        Defendants’ first contention on appeal is that the trial court’s judgment did not match the
       pleadings. Specifically, defendants argue that plaintiffs’ single-count complaint alleged only a
       breach-of-contract theory of relief and that plaintiffs never amended their complaint to include
       an anticipatory-repudiation theory of relief. Nonetheless, defendants note, the trial court
       “unquestionably relied solely on one theory: anticipatory breach.” Plaintiffs counter that they
       “made clear at all stages of trial” that their claim was based on defendants announcing that they
       were unable to perform under the contract; further, defendants did not object to the trial court’s
       finding of an anticipatory breach, either before the trial court entered its judgment or in a
       posttrial motion.
¶ 20        This court addressed a similar issue in In re J.B., 312 Ill. App. 3d 1140 (2000). There, the
       State filed a petition alleging that the respondents had created an injurious environment for
       minors by leaving the minors alone for 30 minutes and that one of the respondents, A.B., had a
       history of leaving the minors unsupervised. Id. at 1141-42. After the close of testimony, the
       trial court adjudicated the minors neglected pursuant to section 2-3(1)(d) of the Juvenile Court
       Act of 1987 (the Act) (705 ILCS 405/2-3(1)(d) (West 1998)), which provides that a minor is
       neglected when he or she is under 14 years of age and left unsupervised for an unreasonable
       period of time. In re J.B., 312 Ill. App. 3d at 1142. The trial court acknowledged that the
       State’s petition alleged neglect under a different provision of the Act, pertaining to an injurious
       environment, but it chose to find neglect under section 2-3(1)(d), which was consistent with
       the testimony. Id. Following a subsequent dispositional hearing, the trial court found that the
       minors’ best interests were met by making them wards of the State. Id. at 1141.
¶ 21        On appeal, this court noted that a petition for adjudication of wardship is civil and that “it is
       well settled that a party may not succeed on a theory that is not contained in the party’s
       complaint.” Id. at 1143. We opined that a party could win a case only according to what the
       party had presented in the pleadings and that “[a]ny proof *** that is not supported by proper
       pleadings is as defective as pleading a claim that is not supported by proof.” Id.
¶ 22        Applying those principles, this court reversed the trial court’s judgment. We noted that the
       State’s petition “[c]learly” alleged that the minors were neglected due to an injurious
       environment and did not claim that the minors were neglected due to the respondents’ failure to
       provide adequate supervision. Id. at 1143-44. We noted that the State cited only one of the
       factors listed under sections 2-3(1)(d)(1) through (1)(d)(15) of the Act, which pertain to
       neglect by inadequate supervision. Further, on that factor, the petition alleged only that the
       minors were left alone for 30 minutes, which was insufficient to conclude that the State was
       alleging that the minors were neglected due to being unsupervised. See id. at 1144. We also
       noted that the Act permitted a petition to be amended to conform to the evidence at any time
       prior to a trial court’s ruling. Id. (citing 705 ILCS 405/2-13(5) (West 1998)). Thus, we
       concluded:
               “Obviously, based on the trial court’s ruling on the objection and the way the State
               presented its case, the State was aware that the evidence suggested that neglect may lie
               under the failure to supervise provision of the [Act]. Nevertheless, at no time prior to
               the court’s ruling did the State seek to amend the petition to allege that the basis for
               neglect should be that the minors were left unsupervised. Because the State never

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                amended the petition, never informed respondents that it was proceeding under
                inadequate supervision allegations, and argued its case under inadequate supervision,
                the trial court’s judgment must be reversed.” Id. at 1144-45.
¶ 23       The reasoning in J.B. directly applies to this case. Here, plaintiffs’ complaint alleged only a
       breach-of-contract theory of relief. To win on this theory, plaintiffs had to establish the
       existence of a valid contract, plaintiffs’ performance, defendants’ breach, and damages. See
       Lake County Grading Co. v. Village of Antioch, 2013 IL App (2d) 120474, ¶ 21. Conversely,
       anticipatory repudiation of a contract involves a distinct theory of relief. As we discuss in more
       detail below, anticipatory repudiation is premised on a party’s clear manifestation of its intent
       not to perform under the contract. In re Marriage of Olsen, 124 Ill. 2d 19, 24 (1988). Because
       plaintiffs’ pleadings failed to allege that defendants had anticipatorily repudiated the contract
       by exhibiting a clear manifestation not to perform, any proof submitted to support an
       anticipatory repudiation was defective, and plaintiffs cannot succeed on such proof. See In re
       J.B., 312 Ill. App. 3d at 1143.
¶ 24       Further, we reject plaintiffs’ argument that defendants forfeited any objection to the
       deficient pleadings when they did not object either at trial or in a posttrial motion. Plaintiffs
       have failed to provide us with any authority to support their proposition. More important,
       section 2-616(c) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(c) (West 2010))
       provides that a “pleading may be amended at any time, before or after judgment, to conform
       the pleadings to the proofs.” If, as plaintiffs claim, there was “no question whatsoever” that
       they were proceeding under both breach-of-contract and anticipatory-repudiation theories of
       relief, plaintiffs could have sought leave to amend the pleadings to conform to the proofs.
       Nevertheless, at no time, either during trial or after the trial court entered its judgment, did
       plaintiffs seek to do so. See In re J.B., 312 Ill. App. 3d at 1145. Accordingly, the trial court’s
       judgment must be reversed. Id.

¶ 25                                      B. Sufficiency of Evidence
¶ 26        We also agree with defendants that the evidence presented at trial did not demonstrate that
       they had clearly and unequivocally repudiated their contract with plaintiffs. Defendants argue
       that their failure to close on the sale by August 20, 2008, resulted from a “change in their
       position reasonably taken *** based upon [plaintiffs’] own actions,” which included plaintiffs
       listing their home for sale, plaintiffs entering into a contract with the DiSilvestros, plaintiffs
       placing a for-sale sign in their front yard, and Nicole abandoning her efforts to sell defendants’
       home once plaintiffs entered into the DiSilvestro contract.
¶ 27        Our supreme court has summarized the doctrine of anticipatory repudiation of a contract as
       follows:
                “The doctrine of anticipatory repudiation requires a clear manifestation of an intent not
                to perform the contract on the date of performance. The failure of the breaching party
                must be a total one which defeats or renders unattainable the object of the contract.
                [Citation.] That intention must be a definite and unequivocal manifestation that he will
                not render the promised performance when the time fixed for it in the contract arrives.
                [Citation.] Doubtful and indefinite statements that performance may or may not take
                place are not enough to constitute anticipatory repudiation.” Olsen, 124 Ill. 2d at 24.



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       As the supreme court in Olsen noted, these requirements exist because “[a]nticipatory breach
       is not a remedy to be taken lightly.” Id. at 25. When one party repudiates a contract, the
       nonrepudiating party is excused from performing or may continue to perform and seek
       damages for the breach. Tower Investors, LLC v. 111 East Chestnut Consultants, Inc., 371 Ill.
       App. 3d 1019, 1032 (2007). Whether a repudiation has occurred is determined on a
       case-by-case basis, and a trial court’s judgment will not be disturbed unless it is against the
       manifest weight of the evidence. Timmerman v. Grain Exchange, LLC, 394 Ill. App. 3d 189,
       201 (2009). A finding is against the manifest weight of the evidence when the opposite
       conclusion is clearly evident or the finding is arbitrary, unreasonable, or not based on the
       evidence. Staes & Scallan, P.C. v. Orlich, 2012 IL App (1st) 112974, ¶ 35.
¶ 28        In Truman L. Flatt & Sons Co. v. Schupf, 271 Ill. App. 3d 983 (1995), the reviewing court
       addressed whether a party had anticipatorily repudiated a real estate contract. In Schupf, the
       parties entered into a contract in which the defendants agreed to sell to the plaintiff a parcel of
       land for $160,000, contingent upon the plaintiff obtaining a rezoning permit. Id. at 984. The
       contract set the closing for June 30, 1993. Id. On May 21, 1993, the plaintiff’s attorney sent the
       defendants a letter advising that the plaintiff had encountered substantial public opposition at a
       public hearing concerning its rezoning request. Id. The letter advised that the plaintiff was still
       interested in purchasing the property, but requested that the purchase price be reduced to
       $142,500. Id. The defendants rejected that offer, and the plaintiff’s attorney sent a follow-up
       letter dated June 9, 1993, advising that the plaintiff would still proceed with the contract and
       asking that the defendants contact the plaintiff to arrange a closing date. Id. at 985. After
       additional follow-up correspondence, the defendants’ attorney sent the plaintiff a letter on July
       8, 1993, advising that the defendants’ position was that the plaintiff’s failure to waive the
       rezoning requirement combined with its offer to purchase the property at a lower price voided
       the contract. Id.
¶ 29        Thereafter, the plaintiff filed a complaint against the defendants for specific performance
       and other relief. Id. The defendants responded by filing a motion for summary judgment,
       which the trial court granted, on the basis that the plaintiff had repudiated the contract. Id. at
       985-86.
¶ 30        On appeal, the court in Schupf reversed the trial court’s grant of summary judgment.
       Noting that the parties did not dispute the facts, the court concluded that the plaintiff’s May 21
       letter did not constitute “a clearly implied threat of nonperformance.” Id. at 987. The court
       concluded that, while the May 21 letter could be read to imply that the plaintiff would not
       perform under the contract unless the sale price were modified, “such an inference [was]
       weak,” given the totality of the language in the letter. Id. The court further concluded that,
       “[m]ore important,” Illinois law required a repudiation to be manifested clearly and
       unambiguously, and the plaintiff’s May 21 letter “at most created an ambiguous implication
       whether performance would occur.” (Emphasis in original.) Id. The reviewing court further
       found that, assuming the plaintiff’s May 21 letter constituted an anticipatory repudiation, the
       plaintiff later retracted that repudiation by informing the defendants that it wished to proceed
       with the purchase. Id. at 987-91.
¶ 31        In this case, the reasoning in Schupf is instructive and we conclude that defendants’
       actions, at best, created an ambiguous implication as to whether they would perform under the
       contract. Initially, we note that the parties stipulated that they agreed to extend the closing date
       to August 20, 2008. Thus, we must determine whether defendants exhibited a clear and

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       unambiguous repudiation of the contract in that they would not close on the sale on August 20,
       2008.
¶ 32        At trial, Brian testified that he called Yockey in June 2008 to explain to her that plaintiffs
       had received an offer on their house from the DiSilvestros for the same price and that he
       believed that defendants should be responsible for the $30,000 commission fee that plaintiffs
       would incur from the DiSilvestro contract. Brian testified that Yockey called him the next day
       and told him that she did not believe that defendants were responsible for the fee. That
       conversation concluded with Brian responding “okay” to Yockey, and he testified that “that
       was that.” We do not believe that defendants’ refusal to pay the fee that resulted from
       plaintiffs’ contract with the DiSilvestros reflected a clear and unambiguous repudiation by
       defendants, demonstrating that they would not close on plaintiffs’ home on August 20, 2008.
       See Olsen, 124 Ill. 2d at 25 (holding that a party’s statements that he would perform under the
       contract only when he retired, which was how he interpreted the contract, did not “reveal a
       clear manifestation of an intention to defeat or breach the contract”).
¶ 33        Likewise, we do not believe that Yockey advising Brian that plaintiffs should proceed with
       their contract with the DiSilvestros, or defendants failing to respond to plaintiffs’ July 25,
       2008, letter, constituted an anticipatory repudiation of the contract. Pursuant to principles of
       waiver and estoppel, “a party to a contract may not lull another party into a false assurance that
       strict compliance with a contractual duty will not be required and then sue for noncompliance.”
       Vandevier v. Mulay Plastics, Inc., 135 Ill. App. 3d 787, 792 (1985).
¶ 34        Here, even if we were to conclude that Yockey’s statement to Brian that plaintiffs should
       proceed with the DiSilvestro contract, or defendants’ failure to respond to plaintiffs’ July 25,
       2008, letter, constituted a clear and unambiguous repudiation of the contract, those actions
       occurred only after plaintiffs had advised defendants that plaintiffs had another buyer. In our
       opinion, plaintiffs advising defendants of the DiSilvestro contract and entering into that
       contract shortly thereafter, combined with Nicole ceasing to list defendants’ home for sale
       after defendants had refused to pay plaintiffs’ commission fee, amounted to a forfeiture of
       plaintiffs’ claim against defendants. See id. (holding that the plaintiff, who cashed commission
       checks and continued to solicit business on behalf of a company he thought was breaching its
       agreement with him over a seven-year period, forfeited his breach-of-contract claim against
       the company).
¶ 35        In sum, the evidence indicates that defendants’ actions amounted to no more than an
       ambiguous implication as to whether performance would occur; further, those actions occurred
       only after plaintiffs advised them that they had another buyer in the DiSilvestros. Therefore,
       the doctrine of anticipatory repudiation, as articulated by our supreme court in Olsen (see
       Olsen, 124 Ill. 2d at 25), does not apply to this case and we conclude that the trial court’s
       finding is against the manifest weight of the evidence. Our determination is also consistent
       with our supreme court’s directive in Olsen that an anticipatory repudiation of a contract is not
       a remedy “to be taken lightly.” Id.

¶ 36                                      C. Remaining Issues
¶ 37       We conclude that the trial court’s judgment must be reversed because plaintiffs’ pleadings
       did not match the proofs and because the trial court’s finding of anticipatory repudiation is
       against the manifest weight of the evidence. Accordingly, resolving defendants’ remaining
       issues cannot affect the outcome of this case. Therefore, we will refrain from addressing those

                                                    -9-
       issues. See Segers v. Industrial Comm’n, 191 Ill. 2d 421, 428 (2000) (holding that if the
       resolution of a certain question of law cannot affect the result as to the parties or the
       controversy before it, the court should not resolve the question merely to set a precedent or to
       guide future litigation).

¶ 38                                       III. Conclusion
¶ 39      For the foregoing reasons, we reverse the judgment of the circuit court of Du Page County.

¶ 40      Reversed.




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