Bio Compression Sytems, Inc. v. Clinical Wound Solutions, LLC. , 2022 IL App (1st) 220312-U ( 2022 )

2022 IL App (1st) 220312-UNo. 1-22-0312
Second Division
December 20, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
____________________________________________________________________________
) Appeal from the
BIO COMPRESSION SYSTEMS, INC., ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 18 M1 126297
)
CLINICAL WOUND SOLUTIONS, LLC, )
) Honorable
Defendant-Appellant. ) Eileen M. O’Connor,
) Judge, presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment finding that plaintiff had met its burden of proof for an
account stated is not against the manifest weight of the evidence. The trial court did
not abuse its discretion in denying appellant’s motion for reconsideration.
¶2 On July 27, 2018, plaintiff-appellee, Bio Compression Systems, Inc., filed a three-count
complaint against defendant-appellant, Clinical Wound Solutions, LLC, in the Circuit Court of
Cook County. Count I alleged a claim for an account stated. Count II alleged unjust enrichment.
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Finally, count III of the complaint alleged a claim for quantum meruit. Plaintiff sought $12,000 in
damages, plus pre-judgment interest. Defendant filed its answer and affirmative defenses on July
24, 2019. The case was continued for status not fewer than ten times, finally proceeding to a bench
trial on September 22, 2021. 1
¶3 Following trial, the court found that plaintiff had proved an account stated by a
preponderance of the evidence. Having determined that plaintiff had an adequate remedy at law,
the court additionally found that plaintiff failed to meet its burden of proof on its quantum meruit
and unjust enrichment claims. Based on the evidence presented, the court entered judgment in
favor of plaintiff in the amount of $12,000, and additionally awarded pre-judgment interest,
pursuant to 815 ILCS 205/2 (West 2020) in the amount of $2,468.20, for a total judgment amount
of $14,468.20.
¶4 On October 25, 2021, defendant filed a motion for reconsideration. On February 1, 2022,
the motion was denied. On March 2, 2022, plaintiff timely filed this appeal. We have jurisdiction
in the matter pursuant to Supreme Court Rule 303. Ill. S. Ct. R. 303 (eff. July 1, 2017). For the
reasons that follow, we affirm the judgment of the circuit court.
¶5 I. BACKGROUND
¶6 The following summarizes the relevant testimony at trial.
¶7 Jon Ross, president of Bio Compression Systems, testified on behalf of plaintiff. According
to Ross, Bio Compression Systems is a manufacturing company of medical devices, such as
pneumatic compression devices for the treatment of lymphedema and chronic wounds. All of
1
Pursuant to the Illinois Supreme Court’s order and a Cook County administrative order, this trial
was conducted via Zoom due to the COVID-19 pandemic. See In re Illinois Courts Response to COVID-
19 Emergency, Ill. S. Ct., M.R. 30370 (eff. Mar. 17, 2020); Cook County Cir. Ct. Gen. Adm. Order 2020-
07 (Mar. 23, 2021); see also Ill. S. Ct. R. 45, 241 (eff. May 22, 2020).
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plaintiff’s medical products are made in the company’s facility in New Jersey. The company has
been in business for 37 years, with its entire business built around quality manufacturing. Plaintiff
sells to durable medical equipment suppliers throughout the country. Their products are then
provided to patients with the diseases for which plaintiff’s devices have been manufactured.
¶8 Ross testified that Clinical Wound Solutions started purchasing equipment from them
many years ago. Ross met Eric Lane of Clinical Wound Solutions at a trade show, and they were
a very good customers for many years.
¶9 Ross testified that an exhibit, which included a series of 12 individual invoices, ultimately
admitted into evidence as a business record as exhibit A and over defendant’s objection, was an
accounts receivable recap generated by the finance department for plaintiff. The invoices, dated
from February 2017 through August 2017, were the due dates for those invoices and totaled
$12,000.2 Ross testified that defendant was on “30-day terms” with plaintiff.
¶ 10 According to Ross, a demand for payment of the $12,000 was made to defendant. A
response from Lane was to the effect that they could not pay at the time and that he did not know
how he could help plaintiff, but “[h]e was trying.” Ross further testified that he never received any
objection from defendant regarding any of the items identified on the invoices and shipped to
defendant. Additionally, Ross testified that he never heard from defendant that it did not receive
any of the items identified on the 12 invoices.
2
Following the court’s ruling to admit the recap as exhibit A, defendant continued to object that
there was no foundation for admission of the invoices. In response, the court directed, and plaintiff laid a
foundation for each of the 12 invoices reflected on the recap individually.
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¶ 11 Ross testified that exhibit B-3 showed payments made by defendant against other
shipments in years prior to the nonpayment issue. 3 In response to defendant’s relevancy objection,
the court ruled the exhibit relevant to establish an ongoing relationship between the parties. Ross
testified that the exhibit shows a receipt date and a payment date for equipment invoiced. The
exhibit additionally showed a credit of $6,950 and a balance due and owing from defendant in the
amount of $12,000.
¶ 12 Ross additionally testified that in August 2017, he sent an e-mail to Lane concerning a past
due balance on the account as Lane was attempting to place more orders with the company. Ross
reached out to say that plaintiff could no longer ship unless it received a payment because
defendant’s account was “so overdue.” Ross further testified, over defendant’s objection, that he
sent additional e-mails in December 2017 “because the balance due of $12,000 still had not been
paid after months of chasing the defendant, and so [he] continued to reach out by phone and by e-
mail to try to receive the money that was due.” After numerous months and attempts to collect, he
turned over the account “to see if they could help recover our money.”
¶ 13 Ross further testified that, in late 2017, he reached out to Lane. The responses he received
from Lane’s office were that management was not able to pay at the time, and “he didn’t know
how he could help.” After December 2017, the case was turned over to plaintiff’s collection
agency. The $12,000 was not paid.
¶ 14 Prior to cross-examination, plaintiff’s counsel indicated to the court that Ross would be its
only witness. On cross-examination, Ross testified that he had on occasion taken an order or two
3
An attempt to admit a document purportedly reflecting tracking numbers associated with
invoices and the 12 shipments made from plaintiff’s facility (exhibit B-2) was denied as the document
was not prepared by plaintiff, but instead by UPS.
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in the past, but not in the normal course of the business day. He further testified that the invoices
did not reflect that the shipments had been either received or accepted by defendant and that
plaintiff did not track whether goods were actually received. He further testified that, while he was
attempting to collect on the balance due from defendant, he sent accounts receivable recaps to
them asking for plaintiff’s funds. He acknowledged that he had nothing to show that those recaps
had actually been received by defendant.
¶ 15 On redirect examination, Ross reiterated that for the 12 invoices admitted into evidence,
plaintiff never received “one complaint” that the goods were not received. In a December 28, 2017
e-mail, Ross made a demand for payment.
¶ 16 Following brief re-cross examination and further redirect examination, plaintiff rested, and
trial was continued to September 24. Upon commencement of trial, defendant orally moved for a
directed finding. Following argument by the parties, the motion was denied. Defendant
subsequently advised the court that it was “just relying on the testimony of Mr. Ross” and
“documentation in evidence that was and was not admitted at the time of trial.” With that,
defendant rested.
¶ 17 Following a brief recess, the court entered a verdict in favor of plaintiff on count I. The
court commented that, under an account stated, the plaintiff is required to prove by a
preponderance of the evidence that there was an agreement between the parties who had previous
transactions, that the account representing the transactions was true, so that the balance was
correct, together with a promise, which may be express or by implication, for payment of the
balance. After recounting the testimony, the court stated that it found Ross credible and that
plaintiff had met its burden of proof on count I for account stated. With respect to count II (unjust
enrichment) and count III (quantum meruit), the court found that as plaintiffs have an “available
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remedy at law,” it failed to meet its burden of proof. The court awarded plaintiff damages in the
amount of $12,000 plus pre-judgment interest in the amount of $2,468.20 for a total award of
$14,468.20.
¶ 18 On October 25, 2021, defendant filed a motion for reconsideration. In its motion, defendant
argued that plaintiff failed to prove and establish evidence to satisfy all of the elements of an
account stated. Defendant additionally argued that the court’s ruling in allowing the invoices to be
admitted at trial was error. Defendant argued that the invoices, “though it may be admissible as
business records, should not have been admitted because the content of the invoices should not
have been deemed admitted, as there was a hearsay within hearsay.” In response, plaintiff noted
that defendant introduced no evidence at trial and that the elements for an account stated had been
proven by a preponderance of the evidence.
¶ 19 At the close of argument, the court again recounted the evidence at trial. The court
expressly rejected defendant’s characterization of the invoices as hearsay within hearsay, noting
the characterization as an incorrect interpretation of the law. The court denied defendant’s motion
for reconsideration and noting the lack of necessity for final and appealable language in the order,
nonetheless, agreed to include it in the final order.
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 Defendant contends that the trial court erred in entering judgment in favor of plaintiff as
the plaintiff failed to meet its burden of proof for an account stated. Defendant additionally urges
error in the trial court’s denial of its motion for reconsideration. Before proceeding, we set forth
the applicable standard of review.
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¶ 23 In a bench trial, the standard of review is whether the judgment is against the manifest
weight of the evidence. People ex rel Illinois Department of Labor v. 2000 W. Madison Liquor
Corp., 394 Ill. App. 3d 813, 817 (2009). “A judgment is against the manifest weight of the evidence
only when an opposite conclusion is apparent or when findings appear to be unreasonable,
arbitrary, or not based on evidence.” Judgment Services Corp., v. Sullivan, 321 Ill App. 3d 151,
154 (2001). As the trier of fact, the trial judge is in the best position to judge the credibility of the
witnesses and determine the weight to be given to their testimony. Buckner v. Carsey, 311 Ill. App.
3d 139, 144 (1999). “A court of review will not substitute its judgment for that of the trial court
unless the judgment is against the manifest weight of the evidence.” People ex rel. Illinois
Department of Labor, 394 Ill. App. 3d at 817.
¶ 24 Defendant asserts that plaintiff failed to prove the necessary elements to support its claim
for an account stated through either the testimony presented or the invoices admitted into evidence.
With respect to the invoices, defendant argues that they could not be used to prove the correctness
of the documents’ content. It is defendant’s contention that the invoices were “only the plaintiff’s
self-serving documents” which do not prove that the accounts were true, that the balance was
correct, that there was mutual assent between the parties, or that there was a meeting of the minds.
Defendant maintains that the invoices, admitted as business records, “can only be used as a
recording of the witness’ business.”
¶ 25 We begin our analysis with observation of the most apparent flaw in defendant’s challenge
to the judgment, that being the complete absence of any legal authority or analysis to support its
argument. Although defendant cites to caselaw, it does so only for the purpose of identifying the
source of the elements for an account stated. Then, without any legal basis or analysis, defendant
proceeds to state that plaintiff failed to satisfy the element cited. There is absolutely no other
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authority cited or any analysis provided to support defendant’s particular claims; only bare
assertions that plaintiff failed to satisfy the requisite elements for an account stated.
¶ 26 Supreme Court Rule 341 requires substantially more. It is neither appropriate nor sufficient
under the rule to simply assert a series of claims without any attempt to support them with sound
legal analysis or citation to authority. “Mere contentions *** are not enough. People ex rel.
Madigan v. Lincoln, Ltd., 383 Ill. App. 3d 198, 208 (2008). The rule requires an appellant’s
opening brief to contain contentions, reasoning, and citation to supporting authority and pages of
the record. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 27 The appellate court is “not a depository in which the burden of argument and research may
be dumped” (Campbell v Wagner, 303 Ill. App. 3d 609, 613 (1999)), and we are under no
obligation to undertake an appellant’s duty of research and analysis (Obert v. Saville, 253 Ill. App.
3d 677, 6982 (1993)). “When the procedural violations interfere with our review of the issue, we
may exercise our discretion and strike a brief for failure to comply with the rules.” Wing v. Chicago
Transit Authority, 2016 IL App (1st) 153517, ¶ 11; In re Marriage of Ash & Matschke, 2021 IL
App (1st) 200901, ¶ 32 (“[W]here an appellant’s brief contains Rule 341 violations that impede
our review of the case at hand, we may strike that brief and dismiss the appeal.”). Alternatively,
where arguments do not comply with Rule 341, they do not merit consideration on appeal and may
be rejected by this court for that reason alone. Housing Authority of Champaign County v. Lyles,
395 Ill. App. 3d 1036, 1040 (2009). Simply put, an appellant forfeits issues that are not well defined
and insufficiently presented. Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (2010).
¶ 28 Forfeiture aside, we find no merit in defendant’s “arguments.” Here, defendant, although
half-heartedly, makes no claim that the invoices failed to qualify as business records. Indeed, we
note that under Supreme Court Rule 236, which codifies the business records exception to the
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hearsay rule, “[a]ny writing or record, whether in the form of an entry in a book or otherwise, made
as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as
evidence of the act, transaction, occurrence, or event, if made in the regular course of any business
***[.]” Ill. S. Ct. R. 236(a) (eff. Aug. 1, 1992). Furthermore, a record can be admissible even if it
was prepared by a third party. Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶ 86. Commonly
referred to as the business records exception, the rule is premised on acceptance of the fact that
routine records on which businesses rely are likely to be accurate (Southern Wine and Spirits of
Illinois, Inc. v. Steiner, 2014 IL App (1st) 123435, ¶ 25) because businesses have a financial
incentive to be accurate (People v. Coleman, 2014 IL App (5th) 110274, ¶ 150).
¶ 29 Defendant, instead, devotes the lion share of its argument to what might be regarded in the
criminal law context as a sufficiency of the evidence claim. In this regard, defendant makes broad
claims as to why the testimony or the invoices are insufficient to satisfy the elements for an account
stated.
¶ 30 “[A]n account stated is merely a form of proving damages for breach of a promise to pay
a contract.” Dreyer Medical Clinic, S.C. v. Corral, 227 Ill. App. 3d 221, 226 (1992). “It is an
agreement between parties who previously engaged in transactions that the account representing
those transactions is true and the balance stated is correct, together with a promise of payment of
the balance.” Id. “An account stated must demonstrate the mutual assent of both creditor and
debtor.” Toth v. Mansell, 207 Ill. App. 3d 665, 671 (1990). The meeting of the minds as to the
accuracy of an account often occurs where one party renders a statement of account to which the
other party acquiesces. Id. “The manner of acquiescence is not critical, and the meeting of the
minds may be inferred from the parties’ conduct and the circumstances of the case.” Id. When one
party renders a statement of account to another who retains it without objection for longer than is
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reasonable, an account stated is established. Protestant Hospital Builders Club, Inc., v. Goedde,
98 Ill. App. 3d 1028, 1032 (1981). If a party is unable to provide prima facie proof of an agreement,
it is precluded from receiving against an opposing party by claiming an account stated. D.S.A.
Finance Corp v. County of Cook, 345 Ill. App. 3d 554, 560 (2003). Whether an account stated
exists is a question of fact. Dreyer Medical Clinic, 227 Ill. App. 3d at 226.
¶ 31 Ross testified at trial regarding the history of doing business with defendant, the invoices,
reflecting both past and the most current invoices issued to defendant for payment, attempts to
collect on the past due invoices, as well as the individual amounts due and owing for each kind of
equipment provided. It was his further testimony that defendant made no complaint regarding any
of the invoices. Further, according to Ross, Lane actually acknowledged owing the debt, but
indicated that he did not know how he could help.
¶ 32 The trial court found Ross’s testimony to be credible and the invoices, once admitted, to
be reliable evidence of the business relationship, that equipment had been shipped and received,
the record of amounts paid in the past, as well the amounts due and owing, to be true and accurate.
Other than its oral challenge, defendant presented absolutely no evidence to refute any aspect of
Ross’s testimony, or the accuracy of the invoices admitted as business records. On this record, we
have no basis upon which to conclude that the court’s judgment was against the manifest of the
evidence.
¶ 33 Nevertheless, defendant persists in its claims of error, asserting that “the invoices should
have been excluded pursuant to Illinois Rule of Evidence 805 as being hearsay within hearsay.”
It contends that the content of the invoices contains “another level of hearsay.” Then, merely
extracting language from People v. McCullough, 2015 IL App (2d) 121364, ¶ 110, defendant states
that “each layer of hearsay must be excused by its own exception as adopted in the Seventh Circuit
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in United States v Hajda, 135 F.3d 430, 444 (7th Cir. 1998)[.]” He maintains that because the
content of the invoices is hearsay, unless such content falls within an exception to the rule against
hearsay, that content cannot be used to show that the goods were ordered, shipped, received, and
accepted.
¶ 34 Defendant’s double hearsay argument fares no better here than it did in the trial court.
“When a business record contains hearsay statements within the record, [those] *** must also be
admissible under an exception to the hearsay rule.” Holland v. Schwan’s Home Service, Inc., 2013
IL App (5th) 110560, ¶ 184. Defendant does not identify what “layer” of the invoices here
constitutes double hearsay. The invoices, testified to by Ross, contained billing information
entered by an employee in plaintiff’s finance department. It is the business record itself, not the
testimony of a witness, in this case Ross, who makes reference to it, that is admissible. Troyan v.
Reyes, 367 Ill. App. 3d 729, 733 (2006). Because we find no violation of the hearsay rule by the
court’s admission of the invoices, defendant’s double hearsay argument fails.
¶ 35 Defendant next contends that the trial court erred in denying its motion for reconsideration.
Defendant offers two separate bases in support of its challenge to the court’s ruling. It first argues
that because plaintiff failed to meet its burden of proof, the court erred in denying the motion for
reconsideration. As we have already determined that the court’s judgment was not against the
manifest weight of the evidence, we decline to further consider defendant’s failed burden of proof
claim.
¶ 36 Defendant’s second argument is that because the “[s]tatute of [f]rauds defeats the plaintiff’s
cause of action,” the court’s judgment and subsequent denial of the motion for reconsideration was
in error. Citing section 5/2-201(1) of the Uniform Commercial Code, defendant asserts that
because there was no writing signed by the party to be charged, the contract was not enforceable.
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See 810 ILCS 5/2-201(1) (West 2020). Plaintiff responds that application of the statute of frauds
defense is waived as defendant failed to plead it in its answer to the complaint. In its reply brief,
defendant argues that it raised the argument that “the exception to the writing requirement of the
statute of frauds did not apply at trial and in its Motion for Reconsideration.” Further, defendant
maintains, without citation to authority, that it was raised as a statute of which the court was
obligated to take judicial notice. Defendant additionally asserts that by responding to the statute of
frauds argument in the motion for reconsideration, plaintiff waived any objection.
¶ 37 As defendant correctly notes, the purpose of a motion for reconsideration is to alert the
court to (1) newly discovered evidence, not available at the time of trial, (2) changes in the law or
(3) errors in the court’s previous application of existing law. River Plaza Homeowner’s Ass’n v.
Healy, 389 Ill. App. 3d 268, 280 (2009). We believe it to be a settled principle that arguments
raised for the first time in a motion for reconsideration in the trial court are forfeited on appeal.
Evanston Ins. Co., v. Riseborough, 2014 IL 114271, ¶ 36; Holzer v. Motorola Lighting Inc., 295
Ill. App. 3d 963, 978 (1998) (A party “may not raise a legal theory for the first time in a motion to
reconsider.”). “Orders denying a motion for reconsideration are reviewed for an abuse of
discretion.” RBS Citizens Nat. Ass’n v. RTG-Oak Lawn, LLC., 407 Ill. App. 3d 183, 193 (2011).
¶ 38 The statute of frauds is an affirmative defense which, if established, renders a contract
voidable. Goldwater v. Greenberg, 2017 IL App (1st) 163003, ¶ 10. Consequently, the contract
may be enforced, unless the defendant raises the statute of frauds as a defense. Id. “The defense
that the contract upon which litigation is based is void under the [s]tatute of [f]rauds must be
specially pleaded and cannot be raised for the first time on appeal.” Thomas v. Pope, 380 Ill. 206,
209-10 (1942). Where a defendant fails to specially plead the defense, he is deemed to have waived
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it and it cannot be considered, even if the evidence suggests the existence of the defense. Harvey
v. McKinney, 221 Ill. App. 3d 140, 142 (1991).
¶ 39 Our review of the record reveals that the statute of frauds was not specially pled. In his
verified answer, under the section designated as “Affirmative Defenses,” defendant asserts (1) that
plaintiff is barred from proceeding as no definite material terms were contained in the complaint,
and (2) that plaintiff failed to state any cause of action upon which relief could be granted. No
mention of the statute of frauds appears in defendant’s answer, in either the section designated as
“Affirmative Defenses” or in its general denial of counts I, II, and III.
¶ 40 We note further that during the court’s oral pronouncement of the judgment, and in
response to defendant’s inquiry regarding application of the statute of frauds, the court responded
that it did not address it because the statute had not been pled and was, therefore, not before the
court. We acknowledge that in its response to defendant’s motion for reconsideration, plaintiff
argued that the statute of frauds did not stand as a bar to recovery. Even so, the failure to specially
plead the statute of frauds as an affirmative defense forfeits the issue on appeal and we decline
further consideration of the matter. Moreover, there is nothing to suggest that the trial court, having
declined earlier consideration, had altered its position post-judgment, notwithstanding plaintiff’s
response.
¶ 41 That said, we find that the court did not abuse its discretion in denying defendant’s motion
for reconsideration.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court.
¶ 44 Affirmed.
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