Ewing et al v. 1645 W. Farragut LLC et al

Filing 311

MEMORANDUM Opinion and Order: The Court, in its discretion, denies defendant's Rule 59(a) motion for a new trial 265 . Signed by the Honorable Sharon Johnson Coleman on 6/2/2022. Mailed notice. (ym, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RANDALL EWING, AND YASMANY
GOMEZ,
Plaintiffs/Counter-Defendants,
v.
1645 WEST FARRAGUT, LLC,
Defendant/Counter-Plaintiff.

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Case No. 16-cv-9930
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
On November 10, 2021, a jury returned a verdict in favor of plaintiffs Randall Ewing and
Yasmany Gomez in the amount of $905,000 in relation to their fraud and Illinois Consumer Fraud
Act (“ICFA”) claim against defendant 1645 W. Farragut, LLC. Before the Court is defendant’s
motion for a new trial brought pursuant to Federal Rule of Civil Procedure 59(a). For the following
reasons, the Court, in its discretion, denies defendant’s motion.
Background
The Court ruled on multiple issues before trial and presumes familiarity with its earlier
rulings, including its May 4, 2022 order denying defendant’s posttrial motion for judgment as a
matter of law under Rule 50(b). Plaintiffs, citizens of Florida, brought this diversity jurisdiction
lawsuit against defendant limited liability company, whose members are Erik Carrier and his father
Gregory F. Carrier, both citizens of Illinois. Erik Carrier was also defendant’s real estate agent. The
parties entered into two real estate agreements on April 16, 2016 and May 2, 2016 in relation to
plaintiffs’ attempted purchase of a single-family residence in Chicago that was being gutted and
renovated. The licensed general contractor for the gut rehab project was Erik Carrier.
After things went awry, plaintiffs brought breach of contract, common law fraud, and ICFA
claims against defendant. Defendant then filed a breach of contract counterclaim against plaintiffs.

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After the parties filed cross-motions for summary judgment, the Court granted plaintiffs’ partial
summary judgment motion as to liability (but not damages) on their fraud and ICFA claim based on
defendant’s failure to disclose a stop work order concerning a lack of permit to work on the
property’s basement. The Court denied the remainder of the summary judgment motions.
After trial, the jury found defendant liable in relation to its fraudulent representation about
enclosing the second-floor balcony on the property and that defendant breached the parties’ real
estate agreements, but that plaintiffs had not. The jury awarded a total of $905,000 in fraud
damages, but did not award breach of contract damages because the jury was instructed about
Illinois’ prohibition of double recovery for the same injury. See Narkiewicz-Laine v. Doyle, 930 F.3d
897, 903 (7th Cir. 2019); Thornton v. Garcini, 928 N.E.2d 804, 811, 340 Ill.Dec. 557, 564, 237 Ill.2d
100, 111 (Ill. 2010).
Legal Standard
Courts will grant new trials under Rule 59(a) only if “the verdict is against the weight of the
evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving
party.” Burton v. E.I. du Pont de Nemours & Co., Inc., 994 F.3d 791, 812 (7th Cir. 2021) (citation
omitted). A verdict will be set aside only if no rational jury could have rendered it . See Bowers v.
Dart, 1 F.4th 513, 521 (7th Cir. 2021). District courts have considerable discretion in ruling on Rule
59(a) motions. See Lewis v. McLean, 941 F.3d 886, 891 (7th Cir. 2019).
Discussion
Damages Award
Defendant first argues the Court should grant a new trial because the damages award was
“monstrously excessive” and that there was no rational connection between the damages evidence
and the verdict, especially in the context of emotional distress damages. When a federal jury awards
compensatory damages in the context of state law claims, state law controls whether the award is
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excessive. Kaiser v. Johnson & Johnson, 947 F.3d 996, 1019 (7th Cir. 2020). “Under Illinois law it’s
neither necessary nor appropriate to evaluate a jury’s compensatory award against awards in similar
cases; a comparative analysis is not part of the state framework.” Rainey v. Taylor, 941 F.3d 243, 253
(7th Cir. 2019). Instead, in Illinois, “remittitur should be employed only when the damages award
(1) falls outside the range of fair and reasonable compensation, (2) appears to be the result of
passion or prejudice, or (3) is so large that it shocks the judicial conscience.” Miyagi v. Dean Transp.,
Inc., 143 N.E.3d 717, 722, 436 Ill.Dec. 888, 893, 2019 IL App (1st) 172933, ¶ 20 (1st Dist. 2019).
“Remittitur should not be employed when the award falls within the flexible range of conclusions
that can be reasonably supported by the facts.” Id.
Plaintiffs’ ICFA/fraud claim was based on defendant’s deception in relation to its false
representations concerning building permits, building code compliance, and the enclosure of the
second-floor balcony. Although actual pecuniary (economic) damages are an element of an ICFA
claim, see Vanzant v. Hill’s Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019), a plaintiff may also
recover damages for emotional distress after first establishing the element of economic damages.
Dieffenbach v. Barnes & Noble, Inc., 887 F.3d 826, 830 (7th Cir. 2018).
Here, the jury’s award of $905,000 represents fair and reasonable compensation for
plaintiffs’ ICFA/fraud claim and finds adequate support in the evidence presented at trial. First,
there was evidence of actual economic damages because trial testimony shows plaintiffs suffered
$350,000 in rental value (loss of use damages) due to their inability to use the property. See Nisbet v.
Yelnick, 464 N.E.2d 781, 784, 79 Ill.Dec. 877, 880, 124 Ill.App.3d 466, 471 (1st Dist. 1984). They
further incurred travel expenses to and from Florida because Ewing had started his new job in
Chicago during this time period. Other trial evidence of economic damages includes the
appreciation in value of the home plaintiffs were attempting to buy in the amount of $200,000. The

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$905,000 award also includes the economic loss of the $117,500 representing the earnest money
defendant withheld.
Defendant next argues that there was “no” evidence of emotional harm to warrant any such
damages. As the Seventh Circuit explains, “[e]valuating issues as subjective and elusive as emotional
damages is a task we leave in the first instance to the common sense and collective judgment of
juries.” Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388 (7th Cir. 2011). Meanwhile,
damages for nonpecuniary losses can be supported solely by witness testimony. Vega v. Chicago Park
Dist., 954 F.3d 996, 1008 (7th Cir. 2020).
At trial, plaintiffs testified how they turned over a large part of their life savings to buy their
dream home and that they could not buy a home when defendant did not return the earnest money.
Other testimony indicates that defendant’s conduct and push back during and after this failed real
estate transaction took its toll on plaintiffs’ ability to move on with their lives. As stated, it is within
the jury’s province to evaluate witness credibility in relation to emotional distress, and here, the jury
observed the witnesses and found plaintiffs’ testimony convincing enough to awarding emotional
distress damages. Gracia v. SigmaTron Int’l Inc., 842 F.3d 1010, 1022 (7th Cir. 2016). The jury also
considered plaintiffs’ testimony in the context of other evidence presented at trial. See id. For
example, the jury observed Erik Carrier’s testimony and determined his veracity and credibility in
contrast to plaintiffs’ testimony about their emotional reactions to his conduct. In sum, plaintiffs’
emotional distress damages are substantiated by the trial record.
Also, defendant argues plaintiffs were awarded the same damages three times asserting the
jury awarded plaintiffs damages for both actual rental costs and comparable rental costs, although
the Court instructed the jurors that they could not award both. Because courts presume juries
follow instructions on the law, Burton v. City of Zion, 901 F.3d 772, 784 (7th Cir. 2018), this argument
falls flat. Moreover, the award of actual rental costs/comparable rental costs and the increased cost
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of purchasing are distinct damages for two different types of harm resulting from defendant’s fraud
and refusal to return plaintiffs’ earnest money. Meanwhile, defendant’s related argument that the
Court’s jury instruction about these damages was in error fails because the instruction correctly
stated the law. See Brooks v. City of Kankakee, Illinois, 7 F.4th 649, 663 (7th Cir. 2021).
In the end, the jury’s award of $905,000 is not so large that it “shocks judicial conscience”
nor is there evidence that the award was the “result of passion or prejudice.” Instead, the award was
the result of “the collective wisdom of the jury,” to which the Court owes respect. See Rainey, 941
F.3d at 253.
Summary Judgment Ruling
Defendant also takes issue with the Court’s summary judgment ruling. By way of
background, on July 31, 2019, the Court granted plaintiffs’ motion for summary judgment as to
liability on their fraud and ICFA claim based on defendant’s failure to disclose a stop work order
concerning a lack of permit to work on the property’s basement. The Court’s use of the term “stop
work order” throughout this lawsuit is shorthand for the absence of a work permit for the property’s
basement, namely, that the underpinning of the basement had not been properly permitted and that
work on the property could not continue until a permit was issued. Although the City of Chicago
did not issue the “stop work order” resulting from the unpermitted excavation and underpinning
work until June 6, 2016, defendant was aware of the permit problem before the parties entered into
the relevant contracts.
In the July 2019 summary judgment ruling, the Court concluded it was undisputed that
defendant knew about the absence of a work permit in advance of contracting with plaintiffs in
April and May 2016 and defendant understood plaintiffs would rely on the misrepresentations
regarding the work permits. On the other hand, the Court concluded that there were genuine
disputes of material facts as to both the existence of a potentially false statement and reliance on that
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statement concerning whether there would be an enclosed second-floor balcony on the renovated
residential property.
Key to the Court’s summary judgment ruling was defendant’s failure to file a separate
statement of material facts as required by Northern District of Illinois Local Rule 56.1(a)(3), as well
as a separate response to plaintiffs’ statement of material facts under Local Rule 56.1(b)(3). Based
on well-established precedent, the Court thus accepted plaintiffs’ Rule 56.1(a)(3) statement of facts
as true. See Hinterberger v. City of Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020) (“district courts may
require strict compliance with their local rules—a point we have recognized time and again.”).
In the present motion, defendant argues the July 2019 summary judgment ruling was
inconsistent because the Court granted liability on the ICFA/fraud claim as it related to defendant’s
failure to disclose the lack of permit embodied by the stop work order, yet concluded that the jury
should decide damages. Defendant’s specific argument is that because “damages” is an element of
both fraud and ICFA claims, the Court’s decision is in error. See Avery v. State Farm Mut. Auto. Ins.
Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 850 (Ill. 2005); Connick v. Suzuki Motor Co.,
Ltd., 675 N.E.2d 584, 591, 221 Ill.Dec. 389, 396, 174 Ill.2d 482, 496 (Ill. 1996). However,
Defendant overlooks the fact that the Court left the details of the compensatory damages to the
jury, not whether there were any damages in the first instance, where the withheld $117,500 in
earnest money established the element of damages as discussed in the Court’s July 2019 ruling.
Defendant also argues the summary judgment ruling was inconsistent because in February
2021, the Court denied plaintiffs’ motion to turn over the $117,500 in earnest money. At that time,
defendant’s counterclaim for breach of contract was pending, and thus any such turnover was
imprudent before the jury decided the parties’ claims and damages.
Further, Defendant contends plaintiffs were not deceived because they did not know the
stop work order existed until after they entered into the contracts. As discussed above, the stop
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work order was based on the absence of a work permit for the property’s basement, namely, that the
underpinning of the basement had not been properly permitted and that work on the property could
not continue until a permit was issued. Defendant was well aware of the lack of permit for the
property’s basement before entering into the April and May 2016 contracts. Meanwhile, at the time
plaintiffs entered into the contracts in April and May 2016, plaintiffs relied on defendant’s
unequivocal representations in the contracts that there were no “zoning, building, fire or health code
violations that have not been corrected” and that there were no “improvements to the property for
which the required initial and final permits were not obtained.” The Court denies defendant’s
motion for a new trial in this respect.
Other Pretrial Rulings
Defendant additionally asserts the Court erred in permitting plaintiffs to raise a new claim at
trial that was not contained in their pleadings. In particular, defendant argues that for the first time
at trial, plaintiffs brought a breach of contract claim based on the lack of permit for the basement.
Assuming the Court erred in permitting plaintiffs to raise a new claim at trial, because the jury did
not award damages for plaintiffs’ breach of contract claim, any such error was harmless. See Ruiz v.
United States, 990 F.3d 1025, 1030 (7th Cir. 2021) (“the doctrine of harmless error owes its existence
to the concept that a legal error having no consequential effect on a judgment does not necessarily
need to be rectified.”). Simply put, defendant was not prejudiced by any alleged error.
Prior to trial, in June 2021, the Court granted plaintiffs’ Federal Rule of Civil Procedure
56(g) motion concluding that certain material facts were not genuinely disputed for trial based on the
July 2019 summary judgment ruling. See Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 415 (7th
Cir. 2019) (“Rule 56(g) is ‘ancillary’ to the ultimate summary-judgment analysis, operating to ‘salvage
some results’ from the time and resources spent in deciding unsuccessful summary-judgment
motions.”). At trial, the Court instructed the jury on these established facts.
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In its motion for a new trial, defendant argues that the Court erred in instructing the jury
about these established facts. It argues that these facts were not undisputed because trial witness
testimony contradicted them. The Court, however, also instructed the jury to consider all of the
evidence, and, as discussed, the jury determined the veracity and credibility of witness testimony,
including Erik Carrier’s testimony. Thus, in the context of the jury instructions as a whole,
defendant has not established that the Court incorrectly informed the jury. Moreover, defendant
does not sufficiently explain how this jury instruction was prejudicial, namely, when considering the
evidence as a whole, the jury could have “reached a different outcome had the instructions been
correct.” Lange v. City of Oconto, 28 F.4th 825, 841 (7th Cir. 2022) (citation omitted).
Evidentiary Rulings
Defendant also challenges certain evidentiary rulings. Evidentiary errors warrant a new trial
if the errors had a substantial and injurious effect on the jury and the resulting verdict is inconsistent
with substantial justice. See Burton, 994 F.3d at 812; Fields v. City of Chicago, 981 F.3d 534, 544 (7th
Cir. 2020). “[A] party seeking to overturn the district court’s evidentiary ruling ‘bears a heavy
burden’ because a ‘trial court’s balancing of probative value and unfair prejudice is highly
discretionary.’” Henderson v. Wilkie, 966 F.3d 530, 534 (7th Cir. 2020) (citations omitted).
In the present motion, defendant asserts the Court erred in admitting evidence of Erik
Carrier’s homophobic slurs into evidence. By way of background, the Court denied defendant’s
motion in limine #2 as follows:
Defendant seeks to bar evidence that Erik Carrier, defendant’s primary
owner, described Ewing and Gomez as “fruit cups,” “crazy,” or other similarly vague
comments implying that Carrier is homophobic as unfairly prejudicial under Federal
Rule of Evidence 403. Specifically, defendant asserts that this evidence invites the
jury to decide the case on an improper basis, such as an emotional one, instead of the
evidence the parties will present at trial. See Thorncreek Apartments III, LLC v. Mick,
886 F.3d 626, 634 (7th Cir. 2018). Plaintiffs respond that they seek admission of
these statements to establish punitive damages in relation to their ICFA claim. See
Geske v. PNY Tech., Inc., 503 F.Supp.3d 687, 710 (N.D. Ill. 2020) (“Under Illinois law,
punitive damages ‘may be awarded only if the defendant’s tortious conduct evinces a
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high degree of moral culpability, that is, when the tort is committed with fraud,
actual malice ... or when the defendant acts willfully.’”) (citation omitted). Because
plaintiffs can seek punitive damages, Carrier’s comments have significant probative
value as to whether he acted with malice or willfulness in relation to the parties’
contractual interaction. The Court thus denies defendant’s motion because the high
probative value of this evidence is not substantially outweighed by any unfair
prejudice. Plaintiffs must submit a limiting jury instruction to the Court regarding
the admission of this evidence by no later than October 29, 2021.
(R. 217, 10/5/21, MIL Order, at 3.)
The Court requested a limiting instruction to ameliorate any unfair prejudice. See Whitehead v.
Bond, 680 F.3d 919, 931 (7th Cir. 2012). Indeed, plaintiffs provided a limiting instruction per the
Court’s request, but defendant objected stating it “no longer believes it is necessary and is asking to
withdraw that instruction.” (R. 236, Proposed Jury Instructions, at 19.) Because defendant waived
the limiting instruction, it cannot now claim unfair prejudice as a basis for a new trial. See Common v.
City of Chicago, 661 F.3d 940, 946 (7th Cir. 2011) (“A party who declines the opportunity to have
a limiting instruction, waives the right to claim that he has been prejudiced by evidence that is
otherwise relevant and admissible.”).
In addition, defendant argues the Court erred in allowing witness Timothy Zielonka to
testify about specialized knowledge without being qualified as an expert or disclosed as an expert.
Zielonka was plaintiffs’ realtor for the purchase of the relevant property. He testified that he had
been a realtor for approximately sixteen years during which time he had experience working with
developers, buyers, and sellers.
Under Federal Rule of Evidence 602, a lay witness may testify about his own observations
and matters of personal knowledge. See United States v. Mendiola, 707 F.3d 735, 741 (7th Cir. 2013).
Also, under Rule 701, a witness may offer his lay opinion if the testimony is “(a) rationally based on
the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge

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within the scope of Rule 702.” Fed.R.Evid. 701; see also United States v. Bowling, 952 F.3d 861, 868
(7th Cir. 2020).
Zielonka testified that Erik Carrier was the seller, real estate agent, and developer on the
listing—facts that are undisputed. He then stated that acting as a real estate agent in this situation
was concerning because “you’re basically putting yourself at a bigger liability.” He also testified that
it was a conflict of interest under this scenario, after which defendant objected twice based on
foundation. The Court sustained the objections because although Zielonka knew real estate, he was
not a real estate ethics expert. Thereafter, plaintiffs’ counsel explained to Zielonka that he was
asking him questions based on his own personal knowledge. Defendant does not articulate how the
Court erred in sustaining its objections under these circumstances.
Also, defendant contends Zielonka’s testimony as to the property’s structural work was
specialized knowledge under Rule 702. To the contrary, based on his experience in the real estate
industry, including understanding the Chicago building codes, Zielonka testified that when he visited
the property site, the structural work that was required for the basement was the type of work that
would require a permit. Zielonka’s testimony was lay opinion testimony based on his knowledge
acquired throughout his career working with developers, buyers, and sellers. Because Zielonka’s
testimony was based on his personal knowledge and observations, the Court did not abuse its
discretion in allowing this testimony. See Widmar v. Sun Chem. Corp., 772 F.3d 457, 460 (7th Cir.
2014) (“Personal knowledge can include reasonable inferences.”). Similarly, Zielonka’s testimony
regarding mortgage loans and qualifications for loans was based on his experience as a real estate
agent. See Compania Administradora v. Titan Int’l, 533 F.3d 555, 560 (7th Cir. 2008) (“The advisory
committee notes to Rule 701 explain” that “a business owner or officer is allowed to testify without
being qualified as an expert only because that testimony is tied to his or her personal knowledge.”).

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Defendant’s argument that the Court allowed Zielonka to testify about legal conclusions in
the context of the parties’ contracts is misplaced because the Court sustained defendant’s objections.
Plaintiffs’ counsel then asked Zielonka questions about the contracts at issue and how he explained
them to his clients, which was admissible due to Zielonka’s first-hand experience with the relevant
contracts and his interactions with plaintiffs and other clients. As to Zielonka’s testimony
concerning his perception of the housing costs of homes in the property’s neighborhood, he has
significant experience in representing clients buying and selling homes in the Andersonville
neighborhood of Chicago during the relevant time period to make this assessment.
Furthermore, defendant maintains the Court erred in restricting Ewing’s testimony regarding
the contract’s liquidated damages clause. By way of background, in a November 29, 2017 ruling on
plaintiffs’ motion to dismiss defendant’s breach of contract counterclaim, the Court concluded the
contract’s liquidated damages provision was an unenforceable penalty clause under Illinois law. See
River East Plaza, L.L.C. v. Variable Annuity Life Ins. Co., 498 F.3d 718, 722 (7th Cir. 2007) (“Illinois
recognizes that some liquidated damages clauses cross the line and become penalty clauses in
disguise.”). In defendant’s motion in limine #8, it sought to admit evidence regarding the liquidated
damages provision to rebut any inference as to bad faith in its withholding of the $117,500 earnest
money. The Court denied defendant’s motion because, in essence, it was seeking reconsideration of
the November 2017 ruling, and defendant admitted that it brought the motion “primarily for
purposes of preserving the issues for a potential appeal.”
Here, defendant contends the Court erred in restricting defendant from cross-examining
Ewing on the liquidated damages provision. After plaintiffs objected to defense counsel’s questions
about the provision, the Court took a break to discuss this issue outside of the presence of the jury.
After hearing the parties’ arguments, the Court decided that because the parties had not come to an
agreement concerning limited evidence about the liquidated damages provision—as they had
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informed the Court they would do a few days before the trial started—the Court would instruct the
jury in accordance with the motion in limine ruling. Later at trial, when Erik Carrier was testifying
and mentioned this provision, the Court instructed the jury that it had previously found this
provision unenforceable and that the jury could not use evidence of the provision to excuse Erik
Carrier’s actions towards plaintiffs.
Defendant does not articulate how it was prejudiced by the Court’s ruling or its instruction
to the jury. Lange, 28 F.4th at 840. In addition, defendant does not clarify what it sought to elicit by
cross-examining Ewing on this provision. Without a sufficient argument as to prejudice, the Court
denies this aspect of defendant’s motion.
Next, defendant attempted to present Erik Carrier’s testimony about work that was done on
the property after the stop work order was lifted. Plaintiffs’ counsel objected to this line of
questioning because it contradicted the July summary judgment 2019 ruling and Rule 56(g)
statement of established facts. Defendant countered that plaintiff had opened the door to this
testimony due to an exhibit already admitted into evidence. After hearing the parties’ arguments at
sidebar, the Court allowed plaintiffs to withdraw the relevant exhibit and instructed the jury about
the withdrawal. Later during Carrier’s testimony, counsel on both sides realized this line of
questioning about work on the property was not prohibited by the Rule 56(g) ruling. Defendant
thus argues the Court’s earlier statements and rulings made in the presence of the jury raised the
jury’s suspicion that Carrier or defense counsel were disobeying the Court’s orders. Assuming the
Court erred, defendant’s speculation as to the jurors’ alleged suspicion fails to show that any such
error had a substantial and injurious effect on the jury’s determination. See Fields, 981 F.3d at 544.
Defendant further maintains the Court erred by permitting a witness to testify, who was not
disclosed under Rule 26, specifically Chris Steponaitis. Plaintiffs called Steponaitis as an
impeachment witness, and thus plaintiffs did not have a duty to disclose him under Rule
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26(a)(1)(A)(i). Similarly, defendant argues plaintiffs failed to disclose Exhibit 80, which was an email
between Ewing, Carrier, and Carrier’s prior counsel. At trial, defendant objected to the exhibit and
the Court sustained the objection based on the exhibit’s potential to confuse the jury. Therefore,
there was no error. Likewise, defendant contends plaintiffs failed to disclose Exhibit 81 prior to
trial, which was a rental agreement between the defendant and the property’s eventual buyers. This
document was not admitted into evidence, but used to refresh Erik Carrier’s recollection. Thus,
there was no requirement to disclose this rental agreement.
Jury Instructions
Defendant additionally argues the Court erred in relation to certain jury instructions.
District courts are afforded considerable discretion when crafting jury instructions and will only be
reversed if the instruction failed to correctly state the law and that failure caused prejudice. See
Brooks, 7 F.4th at 663; Kuberski v. Rev Recreation Group, Inc., 5 F.4th 775, 779 (7th Cir. 2021). When
evaluating prejudice, courts consider the evidence as a whole to determine if the jury would have
reached a different outcome had the instructions been legally correct. Kuberski, 5 F.4th at 780.
In its motion, defendant contends the Court erred in instructing the jury by incorporating
plaintiffs’ subjective contract terms into the jury instructions. Setting aside that defendant proposed
or agreed to these jury instructions, the jury did not award any contract damages based on Illinois’
prohibition of double recovery for the same injury. And, it is well-settled law that even when a jury
instruction is patently incorrect, a new trial is appropriate only if the instruction prejudiced the
moving party. Lange, 28 F.4th at 840. Defendant has failed to explain how these instructions were
prejudicial, except for the bare-boned statement that “such action was a grave error that greatly
prejudiced [it] at trial.” See White v. United States, 8 F.4th 547, 552 (7th Cir. 2021) (“perfunctory and
undeveloped arguments, as well as arguments that are unsupported by pertinent authority,
are waived.”).
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Also, defendant argues the Court failed to instruct the jury after plaintiffs’ counsel made
improper remarks at closing. In particular, defendant maintains that counsel asked the jury to
imagine itself in plaintiffs’ position. See Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985)
(“An appeal to the jury to imagine itself in the plaintiff’s position is impermissible because it
encourages the jury to depart from its neutral role.”). The exact language at closing arguments was:
“I’m sure that every one of you, if you were in the process of buying your dream home, would want
to know if all physical work on the premises had ground to a halt for months because structural
underpinning work had been done without a permit and a stop-work order was issued.” (R. 259,
11/10 Trial Tr., at 935). After defendant objected to this statement, the Court concluded that it did
not want to draw attention to this statement, and thus did not give a limiting instruction.
Although the Court did not give a limiting instruction as defendant requested, defendant
does not explain how it was prejudiced. Kuberski, 5 F.4th at 780 (“when evaluating prejudice” court
must “determine whether jury could have reached a different outcome had the instructions been
correct”). Instead, defendant states: “Not only were Plaintiff’s remarks highly prejudice to
[defendant], but the Court’s failure to cure Plaintiffs’ indiscretion with an instruction further
prejudice [defendant].” It is not the Court’s obligation to make defendant’ s prejudice argument. See
United States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999) (courts “are not in the business of
formulating arguments for the parties.”).
Manifest Weight of the Evidence
Last, defendant contends the jury verdict was against the manifest weight of the evidence
warranting a new trial. Jury verdicts are accorded great respect and federal courts will not overturn a
jury’s verdict if there is a reasonable basis to support it. See Fields, 981 F.3d at 562; Morris v. BNSF
Railway Co., 969 F.3d 753, 764 (7th Cir. 2020). Put differently, courts will set aside a verdict only if
no rational jury could have rendered it. Bowers, 1 F.4th at 521.
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Defendant argues the manifest weight of the trial evidence supports a different verdict on
plaintiffs’ breach of contract claim. In denying defendant’s Rule 50(b) motion, the Court rejected
defendant’s argument that plaintiffs’ breach of contract claim lacked a legally sufficient evidentiary
basis. In doing so, the Court discussed the trial evidence supporting the breach of contract verdict:
Contrary to defendant’s assertion, there was abundant trial evidence that defendant
breached the parties’ real estate agreements. To begin, evidence in the trial record
includes that defendant was aware of the need for a proper zoning permit in relation
to working on the property’s basement on April 13, 2016, yet affirmatively
represented in the parties’ April 16, 2016 and May 2, 2016 agreements that there
were no “zoning, building, fire or health code violations that have not been
corrected” and that there were no “improvements to the property for which the
required initial and final permits were not obtained.” Additional trial evidence
revealed that the waterproofing company, defendant’s subcontractor, performed
unpermitted structural underpinning work on the basement in February 2016.
(R. 304, 5/4/22, Rule 50(b) Order, at 5.)
Despite this evidence, defendant once again argues that plaintiffs’ nonperformance
prevented it from performing the contracts. Trial evidence, however, shows defendant breached the
contracts first by affirmatively asserting there were no pending permit issues. As such, defendant’s
material breach excused plaintiffs’ nonperformance. See Rohr Burg Motors, Inc. v. Kulbarsh, 17 N.E.3d
822, 839, 384 Ill.Dec. 840, 857, 2014 IL App (1st) 131664, ¶ 57 (1st Dist. 2014).
The Court also rejected defendant’s argument that it was not required to enclose the secondfloor balcony, and thus it did not breach the parties’ contracts:
Despite defendant’s argument, the April 2016 agreement unequivocally states: “In all
cases where the amenities and/or the level of finishes are not set forth herein, the
parties shall look to the property at 1651 West Farragut avenue as a model for such
amenities and finishes.” Trial evidence reveals that the property at 1651 West
Farragut had an enclosed second-floor balcony, defendant testified at trial that the
enclosed balcony could be an amenity, and that the property was marketed through
the Multiple Listing Service (“MLS”) as having an enclosed balcony. Defendant’s
insufficient evidence argument as to the second-floor balcony rings hollow.
(5/4/22, Rule 50(b) Order, at 6.) Defendant’s rehashed argument as to the second-floor balcony
does little to establish that no rational jury could have found it breached the parties’ contracts.
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Case: 1:16-cv-09930 Document #: 311 Filed: 06/02/22 Page 16 of 16 PageID #:5715

As to the jury’s verdict on plaintiffs’ ICFA/fraud claim, defendant contends that it did not
commit a deceptive practice in relation to the permits because it was unaware of any such issues
when it entered into the April and May 2016 contracts with plaintiffs. As discussed above, the
Court’s use of the term “stop work order” is shorthand for the basement permit issues, and trial
evidence establishes defendant was aware of the basement permit issue on at least April 13, 2016.
Defendant’s similar argument that plaintiffs could not have been deceived because they were
unaware of the stop work order at the time they entered into the contracts also fails. If plaintiffs
had known about the lack of permit for the property’s basement, there is a real chance they would
not have been deceived. As such, defendant’s argument is nonsensical.
Because there was a reasonable basis that supports the jury’s verdict, defendant has failed to
establish the jury’s verdict was against the manifest weight of the evidence. Defendant’s cursory
argument that the trial was unfair is equally unavailing.
On a final note, not only is defendant’s cursory argument that cumulative errors warrant a
new trial unpersuasive, “the cumulative effect of various non-errors does not, and cannot, amount
to error warranting a new trial.” Farnik v. City of Chicago, 1 F.4th 535, 542 (7th Cir. 2021).
Conclusion
For these reasons, the Court, in its discretion, denies defendant’s Rule 59(a) motion for a
new trial [265].
IT IS SO ORDERED.
Date: 6/2/2022

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge

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