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04/21/94 CURT BULLOCK BUILDERS v. H.S.S.

April 21, 1994

CURT BULLOCK BUILDERS, INC., PLAINTIFF-APPELLEE,
v.
H.S.S. DEVELOPMENT, INC., AN ILLINOIS CORPORATION, PEORIA ASSOCIATES, AN ILLINOIS LIMITED PARTNERSHIP, HERBERT S. SAYWITZ, THEODORE SAYERS AND MARK SAYERS, DEFENDENTS-APPELLANTS.



Appeal from Circuit Court of Vermilion County. No. 88CH59. Honorable John P. O'Rourke, Judge Presiding.

As Modified on Denial of Rehearing June 3, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Green, Knecht, Lund

The opinion of the court was delivered by: Green

MODIFIED UPON DENIAL OF REHEARING

JUSTICE GREEN delivered the opinion of the court:

On August 3, 1988, plaintiff Curt Bullock Builders, Inc., brought suit in the circuit court of Vermilion County against various defendants seeking relief in regard to leasehold rights and alleged interference with its business relationships. After a jury trial, the court entered judgment on October 30, 1990, on a jury verdict awarding plaintiff $241,120 damages against defendants H.S.S. Development, Inc., Peoria Associates, an Illinois limited partnership, Herbert S. Saywitz, Theodore Sayers, and Mark Sayers. The award was made pursuant to counts which charged defendants with breach of a covenant in a lease creating an easement and tortious interference with a business relationship.

On appeal, this court affirmed the judgment to the extent it found defendants liable but reversed the award of damages and remanded for a new determination on that issue. ( Curt Bullock Builders, Inc. v. H.S.S. Development, Inc. (1992), 225 Ill. App. 3d 9, 586 N.E.2d 1284, 167 Ill. Dec. 12.) On remand, the court, sitting at bench, heard evidence on the question of damages and, on June 8, 1993, entered an award in favor of plaintiff in the amount of $217,008. Defendants have appealed.

On appeal, defendants maintain the evidence did not support theaward and the circuit court erred (1) in admitting into evidence the transcript of the testimony of a witness at the first trial without a sufficient showing of the unavailability of that witness; (2) in permitting plaintiff's president and chief witness, Randy Bullock, to testify as to opinions concerning damages; and (3) in striking defendants' affirmative defense of failure to mitigate damages and preventing defendants from introducing evidence on that issue. We were originally concerned with the sufficiency of the record to show the unavailability of the former witness, a transcript of whose former testimony was used, but are now satisfied in that regard. We find no reversible error in regard to the points raised and affirm.

Defendants were the owners of real estate in the city of Peoria and developers of a shopping center on that land. Plaintiff leased some of that land from them and operated a business of selling garages from that site. In Bullock we held that through a complicated series of transactions, plaintiff had acquired an easement for access to University Avenue, an important street in that city, and upheld an award of damages to plaintiff for defendants' conduct in destroying that access for a period of time. We also upheld the determination that defendants had tortiously interfered with plaintiff's business relationship. The parties do not dispute that plaintiff lost some sales because of defendants' conduct. The factual matters at issue on the second trial concerned the number of sales which plaintiff lost and the amount of profits which would have been lost as a result. In Bullock we set aside the award because Curt Bullock had testified to an opinion as to the number of sales lost while basing his opinion upon information not meeting the requirements of Wilson v. Clark (1981), 84 Ill. 2d 186, 193, 417 N.E.2d 1322, 1326, 49 Ill. Dec. 308.

We consider first the question of whether the evidence at the retrial supported the damages awarded. As we did in Bullock (225 Ill. App. 3d at 18, 586 N.E.2d at 1291), we again state that we consider the following language to set forth the proper standard for us to apply in determining whether a lost profits award is supported by the evidence:

"'It is perhaps true that absolute certainty as to the amount of loss or damage in such cases [involving lost profits] is unattainable, but that is not required to justify a recovery. All the law requires is that it be approximated by competent proof. That proof of the exact amount of loss is impossible will not justify refusing compensation. If that were the law, contracts of the kind here involved could be violated with impunity. All the law requires in cases of this character is that the evidence shall with a fair degree of probability tend to establish a basis for the assessment of damages.'" Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 147-48, 281 N.E.2d 323, 325-26, quoting Barnett v. Caldwell Furniture Co. (1917), 277 Ill. 286, 289, 115 N.E. 389, 390.

Bullock first testified that in 1988, 100 sales would have been made were it not for defendants' actions. He based this estimate on a rule of thumb in the business that 30% of a firm's garage sales would be made in the second quarter of a year. According to Bullock, plaintiff sold 30 garages in the second quarter of 1988, which ended about the time access was shut off. Upon this basis, plaintiff should have made 100 sales in 1988, but only made 60, thus losing 40 sales. John Moran, an accountant, testifying on behalf of defendants, projected a loss of only 17 sales for 1988. His opinion was based upon an analysis of only the sales by plaintiff at Peoria, which were to customers within a 30-mile radius of Peoria. As to 1988 lost sales, the circuit court was free to choose Bullock's analysis and projection over that of Moran.

Bullock's projection for the years after 1988 was completely speculative. He concluded that the Peoria site would have sold 125 garages in each year after 1989 because a manager had returned to run the Peoria operation who had sold 200 garages a year in the 1970's and statistics indicated that the business conditions in the Peoria area for the years 1989 through 1991 was just as good as in those years as in the 1970's. However, the defendants do no dispute that some additional sales were lost in 1989 and logically some sales would be lost in future years. The circuit court could have found that a substantial number of sales were lost as a result of defendants' conduct in years after 1988.

Testimony was presented that Bullock's average profit per garage sale in 1988 and 1989 was $1,507. The court could have accepted that testimony and believed that much the same profit margin would have existed in 1990 and 1991. On that basis, the award of $217,008 would be based upon approximately 145 lost sales. The court could have believed Curt Bullock's testimony that 40 sales were lost in 1988 and some 35 sales per year were lost for the next three years. This determination by the court was substantially less than the damages of $375,243 ...


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