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January 19, 1994



The opinion of the court was delivered by: SUZANNE B. CONLON

In a case that has become notorious in legal circles and in the press, Sharon Wildey sued her former fiance, Richard A. Springs, III, for breaking their engagement. Wildey sued Springs for breaching a promise to marry under Illinois' Breach of Promise Act, 740 ILCS 15/1, et seq. ("the promise act"). Wildey claimed that by severing the engagement, Springs has caused her, and continues to cause her, emotional trauma, professional and financial difficulties, and pain and suffering. The jury agreed. The jury found in favor of Wildey and awarded her $ 178,000. Springs now challenges the jury verdict. Springs moves for judgment as a matter of law or, alternatively, for a new trial or, alternatively, to alter or amend the judgment.


 1. Breach Of Promise/The Promise Act

 Wildey sued Springs for breach of a promise to marry. At common law, a party may recover damages arising from a broken promise to marry. See Stanard v. Bolin, 88 Wash. 2d 614, 565 P.2d 94, 96 (1977). The common law action apparently originated from the Seventeenth Century English conception of marriage as chiefly a property transaction. Id.; see also H. Clark, The Law of Domestic Relations in the United States 2 (1968). The breach of promise action is essentially a breach of contract suit. See McKee v. Mouser, 131 Iowa 203, 108 N.W. 228, 229 (1906). Accordingly, to prevail on a breach of promise claim, a plaintiff must establish that a binding contract was entered: that there was an offer, an acceptance, and valid consideration, and that the agreement was free from fraud or duress. Id. Mutual promises to marry are considered sufficient consideration to support a binding contract to marry. See Schultz v. Duitz, 253 Ky. 135, 69 S.W.2d 27, 28 (1934). The agreement to marry need not be in writing, nor must the parties set out the time and manner of performance (i.e., when and where the wedding is to take place). See McKee, 108 N.W. at 229. Although a breach of promise suit is an action on a contract, the damages that may be awarded more closely resemble tort damages. See Stanard, 565 P.2d at 96.

 In a breach of promise action, the defendant may raise traditional breach of contract defenses. See O'Neill v. Beland, 133 Ill. App. 594, 596 (1907). The defendant may present facts that would negate the existence of a valid contract, and he *fn1" may attempt to establish that the plaintiff failed to comply with a condition precedent. The defendant also may attempt to show that performance would be impossible because one of the parties is infected with an incurable, communicable disease. See In re Oldfield's Estate, 175 Iowa 118, 156 N.W. 977, 985 (1916).

 The Florida heart balm statute ("the Florida statute") is representative of other heart balm statutes. Originally passed in 1941, the Florida statute abolishes common law actions for alienation of affections, criminal conversation, seduction, and breach of contract to marry. See Fla. Stat. Ann. § 771.01. The Florida statute is based on the legislative finding that those who break engagements may be "free of any wrongdoing . . . [and may be] merely the victims of circumstances." Id. The preamble declares it to be Florida public policy that the best interests of the people of the state are served by the abolition of the breach of promise action. Id.

 In Illinois, the common law action for breach of promise has not been abolished, but has been modified and limited by the promise act. *fn4" The promise act limits the damages that may be recovered in breach of promise actions to "actual damages sustained as a result of the injury complained of," and disallows "punitive, exemplary, vindictive or aggravated damages." See 740 ILCS 15/2-3. The promise act does not clearly define the scope of actual damages, leaving that issue for determination by the courts. See Smith v. Hill, 12 Ill. 2d 588, 147 N.E.2d 321, 326-27 (1958). The promise act also bars breach of promise suits in cases in which specified notice requirements have not been satisfied. See 740 ILCS 15/4-5. Under Illinois law, common law breach of promise actions may be maintained in a limited form.

 2. The Wildey-Springs Engagement

 Wildey is a Chicago attorney. Springs is a wealthy Oregon cattle rancher. Wildey and Springs are both in their fifties. Wildey is divorced and has three teenage daughters. Springs also is divorced. Wildey and Springs became acquainted through a mutual friend in December 1991. The couple first spoke by telephone, and they first met in person in January 1992, when Springs was visiting Chicago. In the following weeks, Wildey and Springs spoke on the telephone several times. Springs visited Wildey in Chicago in February 1992.

 Wildey and Springs' relationship progressed rapidly. During the first week of March 1992, Wildey and Springs spent a week together in Florida. On March 9, 1992, just before they were to return to their respective homes, Wildey and Springs discussed the idea of getting married. Wildey and Springs became engaged that day at the Orlando airport.

 3. Procedural History

 In late May and early June 1992, Wildey wrote back to Springs, announcing her intention to sue Springs for breaking the engagement. In October 1992, Wildey filed suit against Springs in the Circuit Court of Cook County, Illinois. Wildey claimed damages for Springs' breach of promise based on: (1) psychiatric costs; (2) lost income; and (3) pain and suffering. Springs removed the action to this court, pursuant to 28 U.S.C. § 1441. After a trial, the jury found for Wildey on all of her claims. The jury awarded Wildey $ 25,000 for medical costs, $ 60,000 for lost net business profits, and $ 93,000 for pain and suffering.

 Springs raises a number of challenges to the jury verdict, and moves for judgment as a matter of law or, alternatively, for a new trial. See Fed. R. Civ. P. 50(b), 59(a). Springs contends that Wildey's suit is barred under Florida law -- which, he claims, should have been applied in this case. Springs also argues that the suit is barred because Wildey did not meet the notice requirements of the promise act. Springs further asserts that he has established that he was justified in breaking the engagement. Finally, Springs moves to amend the judgment, seeking a reduction of the damages the jury awarded to Wildey. See Fed. R. Civ. P. 59(e).


 In a diversity suit, the court reviews a motion for judgment as a matter of law under the forum state's law. See Equity Capital Corp. v. Kreider Transport Service, Inc., 967 F.2d 249, 252 (7th Cir. 1992). Under Illinois law, the court may enter judgment notwithstanding the verdict only when all evidence and inferences drawn from the evidence, viewed in the light most favorable to the non-movant, "so overwhelmingly favor the movant that no contrary verdict can stand." Id. The court reviews a motion for a new trial under federal law. Trzcinski v. American Casualty Co., 953 F.2d 307, 315 (7th Cir. 1992). The court may grant a new trial only if the verdict is against the manifest weight of the evidence. Id.

 1. Choice Of Law

 a. Comity and unenforceable contracts

 Springs challenges the jury verdict on choice of law grounds. Springs asserts that the controlling law is Florida's heart balm statute, which bars breach of promise actions. Illinois courts generally construe contracts according to the law of the state in which they were entered. See William J. Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290, 293 (7th Cir. 1947), cert. denied, 333 U.S. 863, 92 L. Ed. 1142, 68 S. Ct. 745 (1948). If a contract is to be performed in a state other than the state in which the contract was entered, the law of the state of performance governs. Id. However, if a contract is void in the state in which it was entered, Illinois courts apply comity principles, and do not enforce the contract at all. See Frankel v. Allied Mills, Inc., 369 Ill. 578, 17 N.E.2d 570, 572 (1938); Olsen v. Celano, 234 Ill. App. 3d 1045, 600 N.E.2d 1257, 1260-61, 175 Ill. Dec. 799 (1992). Springs argues that in this case, the court must apply the comity analysis, and must refuse to enforce the agreement to marry.

 Springs notes that the parties became engaged in Florida, a state in which an agreement to marry is not an enforceable contract. Under Florida's heart balm statute, "no contract to marry made or entered into" in Florida may give rise to an action for breach of promise. Fla. Stat. Ann. § 771.04. *fn5" The Florida statute is unequivocal and covers suits brought "either within or without" the state of Florida. Id. Thus, Springs argues, there is no enforceable agreement for the court to construe; under comity principles, the court may not ...

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