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11/07/96 AARDVARK ART v. LEHIGH/STECK-WARLICK

November 7, 1996

AARDVARK ART, INC., PLAINTIFF-APPELLANT,
v.
LEHIGH/STECK-WARLICK, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 91--CH--1130. Honorable Richard A. Lucas, Judge, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published November 7, 1996. Petition for Rehearing denied. Released for Publication December 17, 1996.

The Honorable Justice Hutchinson delivered the opinion of the court. McLAREN, P.j., and Geiger, J., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

This cause was commenced by the filing of a suit by plaintiff, Aardvark Art, Inc., against defendant, Lehigh/Steck-Warlick, Inc., for breach of contract. Following a first trial, the court entered judgment on a jury verdict in favor of plaintiff and against defendant in the sum of $1,695,833. The first trial court submitted only one of plaintiff's several damages claims to the jury, a claim for the "diminished value" of plaintiff's business. The first trial court directed a verdict against plaintiff on its other damages claim for "lost profits." Plaintiff did not appeal the directed verdict on its "lost profits" claim. Defendant appealed from the "diminished value" damages judgment.

On the first appeal, this court reversed and remanded the cause for a new trial on the issue of damages only, holding that (a) the trial court erred in failing to instruct the jury to disregard the evidence of lost profits in view of the court's directed verdict against plaintiff on its lost profits claim; and (b) the jury's verdict was tainted by evidence in support of that claim. Aardvark Art, Inc. v. Lehigh/Steck-Warlick, Inc., 212 Ill. App. 3d 492, 495-96, 157 Ill. Dec. 403, 572 N.E.2d 472 (1991). At the conclusion of the damages trial on remand, defendant offered, and the court allowed over objection, a verdict form allowing the jury to find "against" plaintiff and "for" defendant. The jury returned a verdict of no damages on plaintiff's diminished value claim. This second appeal follows.

On this second appeal, plaintiff contends: (1) the trial court erred (A) in failing to follow this court's mandate when it improperly gave the jury grounds to return a finding that did not determine damages alone, (B) in precluding plaintiff from introducing lost profits damages testimony, and (C) in permitting defendant's experts to violate Supreme Court Rule 220 (134 Ill. 2d R. 220) and give opinions at trial beyond the scope of their opinions disclosed before trial; (2) the jury's verdict is contrary to the manifest weight of the evidence; and (3) plaintiff's case was prejudiced by the erroneous admission of irrelevant evidence and by defense counsel's improper conduct. We reverse and we remand with directions.

Plaintiff first argues that the trial court erred in failing to follow this court's mandate when it improperly gave the jury an opportunity to return a finding that did not determine damages alone.

"The correctness of the trial court's action on remand is to be determined from the appellate court's mandate, as opposed to the appellate court opinion. [Citations.] However, if the direction is to proceed in conformity with the opinion, then, of course, the content of the opinion is significant. [Citations.] In construing the language, matters which are implied may be considered embraced by the mandate. [Citation.] The trial court may only do those things directed in the mandate. [Citations.] The trial court has no authority to act beyond the dictates of the mandate. Thus, the controlling question in the appeal from the remand in this case is whether the trial court complied with the mandate." PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 308-09, 56 Ill. Dec. 368, 427 N.E.2d 563 (1981).

A new trial dealing solely with the question of damages

"is appropriate where (1) the jury's verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict nor that, in some identifiable manner, the error which resulted in the jury's awarding inadequate damages also affected its verdict on the question of liability." Raithel v. Dustcutter, Inc., 261 Ill. App. 3d 904, 906-07, 199 Ill. Dec. 809, 634 N.E.2d 1163 (1994).

With regard to a contract action, it is well established:

"To meet his burden in a breach of contract action, the plaintiff must establish an offer and acceptance, consideration, definite and certain terms of the contract, plaintiff's performance of all required contractual conditions, the defendant's breach of the terms of the contract, and damages resulting from the breach." Mannion v. ...


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