Cadle Properties of Illinois, Inc. v. Fortune Investments, LLC , 2021 IL App (1st) 200556 ( 2021 )

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Appellate Court Date: 2023.04.10
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Cadle Properties of Illinois, Inc. v. Fortune Investments, LLC,
2021 IL App (1st) 200556Appellate Court CADLE PROPERTIES OF ILLINOIS, INC., an Assignee of MB
Caption Financial Bank, N.A., Plaintiff-Appellee and Counter-Appellant, v.
FORTUNE INVESTMENTS, LLC, an Illinois Limited Liability
Company; M. ABDUL MATHIN; ANAA HOLDINGS XI, LLC;
BASS FINANCIAL CORPORATION; JPMORGAN CHASE
BANK, N.A., an Assignee of MERS, as Nominee for Countrywide
Bank, N.A.; NATIONSTAR MORTGAGE, LLC, as Assignee of
MERS, as Nominee for Countrywide Bank, N.A.; BEN H. ARKES;
PNC BANK, N.A.; TELESIS COMMUNITY CREDIT UNION;
SKOKIE GARDENS CONDOMINIUM ASSOCIATION; and
UNKNOWN OWNERS and NONRECORD CLAIMANTS (Fortune
Investments, LLC, and M. Abdul Mathin, Defendants-Appellants and
Counter-Appellees).
District & No. First District, First Division
No. 1-20-0556
Filed June 7, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 15-CH-7186; the
Review Hon. Daniel J. Kubasiak, Judge, presiding.
Judgment Affirmed.
Counsel on John D. Silk, of Rothschild, Barry & Myers, LLP, of Chicago, for
Appeal appellants.
Robert G. Markoff and Douglas C. Giese, of Markoff Law, LLC, of
Chicago, for appellee.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Walker and Justice Coghlan concurred in the
judgment, and opinion.
OPINION
¶1 Fortune Investments, LLC (Fortune), borrowed $17 million from MB Financial Bank, N.A.
(MB Financial), to construct a condominium development. Fortune’s owner, M. Abdul Mathin,
guaranteed the loan and completion of the project. Fortune defaulted and MB Financial sued
to foreclose. Cadle Properties of Illinois, Inc. (Cadle), purchased the loan from MB Financial
and entered into a settlement agreement with Fortune, which provided, in part, that Cadle
would not sue Fortune on the loan or Mathin on his guaranties until after all condominium
units sold. (Fortune and Mathin will be referred to as “Mathin.”) Cadle also agreed to pay
expenses related to the property, including real estate taxes, insurance, and utilities.
¶2 Several years later, Cadle filed a verified complaint alleging that Fortune had breached the
construction note and Mathin had defaulted on his payment and completion guaranties. (Cadle
also sued to foreclose the mortgage, but the parties settled and dismissed that claim.) Mathin
filed affirmative defenses and counterclaims alleging that Cadle’s filing of the lawsuit before
all units had sold breached the settlement agreement. Specifically, Mathin alleges he
transferred, but did not sell, 17 units to ANAA Holdings V, LLC (ANAA), a company owned
by his wife but rather, refinanced to help Cadle pay off a loan. Mathin further alleges that Cadle
failed to pay expenses as required by the settlement agreement.
¶3 After a bench trial, the court entered judgment for Cadle and awarded damages of
$17,031,611.66. The court rejected Mathin’s affirmative defenses and counterclaims, finding
Cadle filed its lawsuit after ownership of the 17 units changed from Fortune to ANAA,
satisfying the condition precedent in the settlement agreement. As to expenses, the court found
that all expenses were paid following a course of action to which the parties agreed or Mathin
had not challenged.
¶4 Mathin contends the trial court erred in (i) entering judgment for Cadle based on finding
all conditions precedent were met, (ii) entering judgment for Cadle on the note when it
presented evidence regarding only the settlement agreement, (iii) calculating damages, and (iv)
finding Cadle had paid all property expenses. Applying the manifest weight of the evidence
standard, we affirm the trial court’s findings (i) that all units had been sold or transferred before
Cadle filed its complaint, (ii) that expenses were paid in the manner agreed on by the parties,
and (iii) on damages and the judgment.
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¶5 BACKGROUND
¶6 In 2003, Fortune took out a $17 million construction loan from MB Financial, to develop
Skokie Gardens Condominiums, a 70-unit residential development. A construction mortgage
note secured the loan. Mathin, a member, manager, and agent of Fortune, signed the note and
guaranteed payment of the loan and completion of the project. The note stated that interest
would accrue at a variable annual interest rate equal to one-half of 1% over the rate of interest
then most recently announced by MB Financial but would not be less than 5% per year.
¶7 About a year later, MB Financial sued to foreclose the mortgage. While that lawsuit
progressed, MB Financial assigned all loan documents, including the note and guaranties, to
Cadle for $15 million. Cadle borrowed $12 million from MB Financial to finance the purchase.
MB Financial later assigned Cadle’s loan to Colfin Bulls Funding B, LLC (Colfin).
¶8 Cadle then entered into a settlement agreement with Fortune and Mathin to dismiss MB
Financial’s foreclosure case. The settlement agreement stated that Fortune owed Cadle
$18,618,026.01 and proceeds from unit sales would be applied to pay down the loan. Interest
would accrue at an annual rate of prime, as published by the Wall Street Journal, plus 2%.
Also relevant, the agreement limited when Cadle could sue to foreclose:
“If the Debt is not paid in full to Cadle on or before October 15, 2006, both Fortune
and Mathin will be responsible for any remaining amounts owed to Cadle, but only in
the event, there is a deficiency after Cadle has sold any remaining unsold Units. Cadle
shall not file an action against Fortune or Mathin under the Loan Documents for any
deficiency prior to October 14, 2006.” (A modification provided Cadle would not file
suit on the loan before October 2007.)
In addition, Cadle would “pay all reasonable expenses associated with the Property, including,
but not limited to, real estate taxes, insurance, association/management fees, repair costs, and
utility charges.” Charges Cadle paid would be added to the debt.
¶9 In 2012, Cadle sued to foreclose. By letter agreement dated May 29, 2012, Cadle agreed to
release its security interest in 17 units and to dismiss the foreclosure lawsuit in exchange for a
$1.2 million payment. Fortune borrowed $1.2 million from Pensam Logistics Partners
(Pensam), and Cadle used the $1.2 million to help pay off its loan with Colfin, which was
demanding payment. According to Mathin, Pensam would not make a loan to Fortune, so he
transferred the 17 units to ANAA, a company owned by his wife. The letter agreement stated
that the $1.2 million payment would reduce the balance on the loan but would not be construed
as satisfaction or release of the indebtedness, and the loan documents would otherwise remain
in full force and effect.
¶ 10 In January 2015, Cadle sent letters to Fortune and Mathin, advising of default and
demanding cure within 35 days. When they failed to cure, Cadle filed a three-count verified
complaint. Cadle alleged Fortune breached its obligations under the note (count I) and Mathin
defaulted on the payment and completion guaranties (count II). Cadle also sought to foreclose
the mortgage (count III). Cadle requested damages of over $14.6 million as of April 23, 2015,
together with per diem interest of $1793.32 accruing after that date.
¶ 11 Mathin filed three affirmative defenses: (i) the statute of limitations barred the complaint,
(ii) Cadle failed to perform a condition precedent under the settlement agreement by filing the
complaint before all units sold, and (iii) Cadle breached the settlement agreement by failing to
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pay property expenses. Mathin also filed a counterclaim alleging Cadle breached the settlement
agreement by filing the lawsuit before all units sold.
¶ 12 Having settled and dismissed count III on the mortgage foreclosure claim, a two-day bench
trial proceeded on the remaining counts and the counterclaim. At trial, John Benetis, an account
officer for Cadle, testified that when he took over the Fortune loan in 2013, the loan balance
numbers were incorrect, so he went over the loan documents and payments and created a
spreadsheet to reflect the amount Fortune owed accurately. Fortune had not paid the balance
of the loan, and all units had either been sold or, as in the case of the 17 units, held by ANAA.
On cross examination, Benetis acknowledged that, unlike other units, the 17 units were not
sold individually with separate closing statements but instead, as a group, were turned over to
ANAA in exchange for $1.2 million and Cadle’s agreement to release its lien on those units.
Benetis also acknowledged that Cadle’s ledger book, entered into evidence, did not list a sales
price for the 17 units. Cadle credited Fortune $70,588.24 ($1.2 million divided by 17) for each
unit; other units had sold for $250,000 or more.
¶ 13 Benetis acknowledged that under the settlement agreement, Cadle would add to the debt
reasonable property expenses it paid. But expenses were paid in various ways—either by Cadle
directly, by Mathin, or out of the closings on units—and Mathin never objected to paying the
expenses himself or out of the closing. To avoid confusion because all expenses were
eventually paid, the expenses were not added to the debt.
¶ 14 Relying on his spreadsheet, after all credits were applied, Benetis said Fortune owed Cadle
$16,971,145.20. On August 28, 2017, the spreadsheet showed Fortune owed $12,226,231.36
in principal and $3,172,316.58 in interest for a total of $15,398.04. Benetis added a per diem
interest of $1782.99 to derive his final tally. On cross-examination, Benetis acknowledged his
calculations were based on the 2006 settlement agreement and not on the loan documents,
which Cadle never obtained from MB Financial.
¶ 15 Mathin testified that, with Cadle’s approval, the 17 units were transferred to ANAA and
not sold by Fortune, so the units could be refinanced to generate the $1.2 million Cadle needed
to pay off its loan to Colfin. He asserted that the value of each unit far exceeded the $70,588.24
Cadle credited to Fortune and they were refinanced rather than sold. He believed payment of
the $1.2 million for the 17 units fully satisfied his obligations to Cadle on the debt, despite the
language of the letter agreement stating the loan remained in full force and effect.
¶ 16 Daniel Cadle, chairman of the board of the company, testified that his attorneys advised
him that Fortune had sold all condominium units before Cadle filed its complaint. Over
objection, the trial court entered into evidence an escrow trust disbursement statement for the
May 2012 transaction from Chicago Title and Trust Company, listing ANAA as “Buyer” of
the 17 units. Daniel Cadle testified he believed Fortune sold those units to ANAA, and while
he knew of the units moving to ANAA at the time, he did not authorize it.
¶ 17 Daniel Cadle testified that expenses were paid in one of three ways—by check from Cadle
to Fortune, during closings on condominium units, or by Mathin. Neither Mathin nor Fortune
complained about these methods and never accused Cadle of violating the settlement
agreement.
¶ 18 On cross-examination, Daniel Cadle acknowledged the escrow trust disbursement
statement does not list a seller or show payment of transfer stamps. He also acknowledged
average sales price for units was $250,000, and not the $70,588.24. Cadle credited Fortune for
each unit. Cadle applied the $1.2 million loan Fortune received from Pensam toward repaying
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the Colfin loan, which was in default. On cross-examination, Daniel Cadle said he believed
about $13 million of the nearly $17 million Fortune owed Cadle was in interest.
¶ 19 After closing arguments, the trial court entered a written opinion and order in favor of
Cadle counts I and II and against Fortune on its counterclaim. The court found that Cadle
presented credible evidence Fortune breached its obligations under the note and that the
balance was due. As to the affirmative defense and counterclaim that not all units had been
sold, the court found
“documents were presented and entered into evidence that the 17 properties at issue
were transferred on May 30, 2012, to ANAA Holdings V, LLC, a business owned by
Mathin’s spouse. Mathin characterized this as a refinancing rather than a sale.
Regardless of Mathin’s characterization, evidence and testimony support a sale and
change in ownership of the 17 properties which overcomes Defendants’ condition
precedent argument.”
¶ 20 As to Mathin’s assertion that Cadle breached the settlement agreement by not paying all
expenses, the trial court found the
“[t]estimony and evidence admitted established that all expenses were paid pursuant to
a course of action either agreed upon by the parties or not challenged by Mathin at any
time prior to this action. Regardless of the timing of the defense, the evidence
confirmed that Plaintiff paid all reasonable expenses under the Settlement Agreement.”
The trial court entered judgment for Cadle for $17,031,611.66, which included principal,
interest, attorney’s fees, and court costs.
¶ 21 ANALYSIS
¶ 22 Standard of Review
¶ 23 After a bench trial, we reverse a judgment only if it is against the manifest weight of the
evidence. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d 21, 51 (2009). “ ‘A decision
is against the manifest weight of the evidence only when an opposite conclusion is apparent or
when the findings appear to be unreasonable, arbitrary, or not based on the evidence.’ ” Wade
v. Stewart Title Guaranty Co., 2017 IL App (1st) 161765, ¶ 59 (quoting Eychaner v. Gross,
202 Ill. 2d 228, 252 (2002)). “The manifest weight of the evidence standard affords great
deference to the trial court because the trial court is in a superior position to determine and
weigh the credibility of the witnesses, observe witnesses’ demeanor, and resolve conflicts in
their testimony.” Id.¶ 24 Were Conditions Precedent for Lawsuit Met?
¶ 25 The parties do not dispute that the 2006 settlement agreement imposed a condition
precedent requiring all units be sold before Cadle could sue Fortune on the loan and Mathin on
his guaranties. The parties also agree that in May 2012, the parties entered into a letter
agreement, which provided that Cadle would release its lien on 17 units in exchange for $1.2
million and, in connection with that transaction, that title to the 17 units changed from Fortune
to ANAA. They disagree, however, as to whether the May 2012 transaction constituted a sale
satisfying the condition precedent, as Cadle contends, or a refinance approved by Cadle, as
Mathin contends.
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¶ 26 Mathin asserts that the trial testimony supports a finding that the May 2012 transaction
constituted a refinance. Mathin notes that Benetis called the transaction a “transfer,” and
although Daniel Cadle testified that the transaction was a “sale” to which he did not consent,
Cadle presented no documentary evidence to support that contention. Indeed, Mathin asserts
that the documentary evidence supports a refinance. First, Mathin notes that the disbursement
statement does not list a “seller” and, although it lists ANAA as the “buyer,” ANAA is referred
to as a “borrower” elsewhere in the document. Further, the disbursement document shows
nothing regarding payment of transfer taxes or prorations for assessments, insurance, or real
estate taxes, as had the closing statement for sales of other units. And the disbursement
document shows the title company issued only a loan policy when real estate sales usually
require an owner’s policy.
¶ 27 Mathin also asserts that Cadle’s ledger, which lists the status of all the units, establishes
the transaction was a refinance. In particular, Mathin contends that while the ledger lists sales
prices for most units ranging from $230,00 to $358,000, the sales prices for the 17 units are
marked “na” and, instead, Cadle assigned a credit of $70,588.24 for each unit. Mathin asserts
that Cadle’s different treatment of the 17 units in its own records shows the transaction was
not a sale. He insists as well that treating the transaction as a sale defeats the purpose of the
condition precedent in the settlement agreement. According to Mathin, the purpose was to
reduce the amount Fortune owed under the loan as much as possible before liability kicked in
and giving credit for $70,588.24 per unit rather than the average sales price of $250,000
increased the amount of their liability.
¶ 28 The parties disagree about whether the May 2012 transaction constitutes a refinance or a
sale, but neither defines those terms. According to Black’s Law Dictionary, a “refinancing” is
“[a]n exchange of an old debt for a new debt, as by negotiating a different interest rate or term
or by repaying the existing loan with money acquired from a new loan.” Black’s Law
Dictionary 1533 (11th ed. 2019). And a “sale” is a “transfer of property or title for a price.” Id.
at 1603. So, in a refinancing, an owner retains title to property and replaces an old debt with a
new debt. A sale, in contrast, requires a transfer of title.
¶ 29 Mathin concedes that before the May 2012 transaction, Fortune had title to the 17 units,
and after the transaction, ANAA held title. A review of the Cook County Recorder website, of
which we may take judicial notice (Kopnick v. JL Woode Management Co., 2017 IL App (1st)
152054, ¶ 26), shows the units were conveyed by special warranty deed from Fortune to
ANAA on May 31, 2012. That constituted a “transfer of *** title for a price” and supported
the trial court’s finding of a sale. Had Fortune retained title to the units and acquired the loan
from Pensam to repay its loan to Cadle, the transaction could be deemed a refinancing. Further,
although Mathin contends the $70,588.24 credit Fortune received for each unit was not a fair
market price to support his argument, he fails to explain why Fortune did not negotiate a higher
price for the 17 units. Indeed, the record shows that before the May 2012 transaction, Fortune
last sold a unit in May 2010 for $265,000. Fortune’s apparent inability to sell units in the
intervening two years suggests the amount Cadle credited Fortune for not a single unit but for
17 units was reasonable.
¶ 30 Echoing his trial testimony, Mathin asserts that the transaction was a refinancing and
Fortune transferred the units to ANAA, with Cadle’s consent, because Pensam would not loan
$1.2 million to Fortune. And that, without that loan, Cadle could not have cured its default
with Colfin. But no other witness supports the claim that the 17 units were transferred to
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ANAA solely to refinance the units to benefit Cadle or that Cadle approved the conveyance.
Benetis testified that all units had either been sold or transferred. Daniel Cadle testified he
believed all units had sold and did not consent to Fortune transferring the 17 units to ANAA.
¶ 31 At best, the documentary evidence is inconclusive. As Mathin notes, the Chicago Title
escrow trust disbursement statement lists ANAA as the “buyer” and does not list a seller.
However, it is undisputed that title to the units changed. Cadle’s ledger indicates it treated the
17 units collectively as contrasted to individual units sold to third parties.
¶ 32 In short, Mathin argues that the trial court incorrectly found the testimony and evidence of
Cadle as more credible than his side’s testimony and evidence. This argument does not support
finding the trial court’s decision as against the “manifest weight of the evidence.” We grant
deference to the trial court’s decision because the trial court was in a superior position to
determine and weigh witness credibility and demeanor and resolve conflicts in their testimony.
Wade, 2017 IL App (1st) 161765, ¶ 59. The trial court found that the “evidence and testimony
support a sale and change in ownership of the 17 properties which overcomes Defendants’
condition precedent argument.” This finding was not against the manifest weight of the
evidence.
¶ 33 Admission of Disbursement Statement Into Evidence
¶ 34 Mathin contends the trial court abused its discretion by admitting the escrow trust
disbursement statement into evidence. Specifically, Mathin argues the document was not part
of the exhibit list, and Cadle and its attorneys waited until the second day of trial to “spring” it
on him, rather than disclosing the night before when they discovered it. Mathin asserts this
precluded him from preparing to cross-examine Cadle about it, to ask earlier witnesses about
it, or to present other documents from that closing to dispute it.
¶ 35 Illinois Rule of Evidence 402 (eff. Jan. 1, 2011) states that “[a]ll relevant evidence is
admissible, except as otherwise provided by law.” Relevant evidence is evidence tending to
make the existence of a material fact more or less probable than it would be without the
evidence. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 971 (1998). The relevance and
admissibility of evidence at trial fall within the trial court’s discretion. Id. Absent an abuse of
that discretion resulting in substantial prejudice, we leave the trial court’s decision alone. Id.An abuse of discretion occurs where no reasonable person would take the position adopted by
the trial court. Peach v. McGovern, 2019 IL 123156, ¶ 25.
¶ 36 The disbursement statement related to whether the May 2012 transaction was a sale or
refinancing. Cadle presented the document to refute Mathin’s testimony the day before calling
the May 2012 transaction a refinancing and not a sale. Indeed, Mathin acknowledges its
relevance, as he asserts it supports his contention the transaction was a refinancing and
disproves Cadle’s assertion that it was a sale. Further, the trial court’s admitting it into evidence
caused no prejudice. As the trial court noted, the document was produced in discovery and
could have been used by either party. Moreover, the trial court permitted Mathin’s attorneys
to recall him as a witness to ask about the document, and they declined. Given the document’s
relevance to the key issue and the availability of the document to both parties, the trial court
appropriately exercised its discretion by allowing Cadle to admit it into evidence.
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¶ 37 Breach of Note vs. Breach of Settlement Agreement
¶ 38 Mathin contends that the trial court erred in entering judgment for Cadle on the mortgage
note when Cadle’s evidence related only to the settlement agreement. Mathin asserts that Cadle
could have either sued under the settlement agreement or the note but should not have been
permitted to sue under the note and then present evidence related only to the settlement
agreement. For support, Mathin cites a line of cases holding that when the parties to a contract
enter into a settlement agreement, the plaintiff may only sue under the settlement agreement.
Towne v. Town of Libertyville, 190 Ill. App. 3d 563, 570 (1989). Another line of cases holds
that if a party’s breach goes to an essential element of the settlement, effectively amounting to
a refusal to perform or an abandonment, the other party may elect to regard the agreement as
rescinded and proceed on the original cause of action or may sue on the agreement for the
breach. Hopkins v. Holt, 194 Ill. App. 3d 788, 796-97 (1990).
¶ 39 Mathin contends Cadle should have been required to pick a lane—either sue under the note
or the settlement agreement. In particular,Mathin asserts Benetis testified that when he was
calculating the amount Fortune owed, he relied on the terms of the settlement agreement, not
the loan. But key differences between the note and the settlement agreement significantly affect
the damages calculation. Namely, under the settlement agreement (i) damages included costs
not included in the note; (ii) the interest rate was prime plus 2%, while the note provided for
an interest rate of prime plus 0.5%; and (iii) Cadle was required to pay property expenses under
the settlement agreement but not the note.
¶ 40 To prove breach of contract, a plaintiff must establish (i) the existence of a valid and
enforceable contract, (ii) performance by the plaintiff, (iii) a breach by the defendant, and (iv)
the defendant’s breach resulted in damages. Unterschuetz v. City of Chicago, 346 Ill. App. 3d
65, 69 (2004). Mathin contends that Cadle established the existence of a contract—that is, the
note and guaranties—but failed to establish a breach or resulting damages when it presented
evidence related solely to the settlement agreement. We disagree.
¶ 41 The settlement agreement states that the “Loan Documents, including the Note, guaranties
and the Mortgage, shall remain in full force and effect. However, if any of the terms of this
Agreement are in conflict with the terms of the Loan Documents, the terms of this Agreement
shall control.” Thus, the note and guaranties remained in effect, and Cadle was permitted to
sue for breaching them. But, if a conflict arose between the note and the settlement agreement,
as it did regarding the applicable interest rate and the payment of expenses, the settlement
agreement clarified it controlled. The trial court properly held that Fortune and Mathin
breached their obligations under the note and guaranties and then—to calculate damages—
permitted Cadle to present witnesses and evidence on the terms of the settlement agreement.
¶ 42 Damages
¶ 43 Mathin argues that the trial court’s award of damages was manifestly erroneous and not
supported by the evidence. According to Mathin, the trial court’s opinion indicates that over
$12 million of the award is the principal balance due and just under $5 million is the interest
due, but the evidence at trial showed the opposite—Daniel Cadle testified that $13 million of
the $17 million Fortune owed was for interest. Mathin further describes the amount Cadle
claimed due and owing throughout the trial to have been a “moving target.” Mathin contends
Cadle did not meet its burden to establish a reasonable basis for computing damages, noting
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that Benetis testified Cadle had issues with the accounting on the loan before he took over the
loan in 2013.
¶ 44 A breached contract entitles the injured party to be placed in the position he or she would
have been had the contract been performed. Wilson v. DiCosola, 352 Ill. App. 3d 223, 225
(2004). The plaintiff has the burden of establishing a reasonable basis for computing damages.
Razor v. Hyundai Motor America, 222 Ill. 2d 75, 107 (2006). Damages must be proved with
reasonable certainty and cannot be based on conjecture or speculation. Id. We consider an
award of damages made after a bench trial under the manifest weight of the evidence standard.
Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008).
A factual finding is against the manifest weight of the evidence when an opposite conclusion
is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the
evidence. Eychaner, 202 Ill. 2d at 252. If there is an adequate basis in the record to support the
trial court’s determination of damages, then we must affirm. 1472 N. Milwaukee, Ltd. v.
Feinerman, 2013 IL App (1st) 121191, ¶ 13.
¶ 45 Benetis acknowledged Cadle’s records were inaccurate when he took over the loan. Still,
he reviewed the loan documents and Fortune’s payment history and created a spreadsheet
accurately reflecting the amount owed by Fortune. That spreadsheet showed that, as of August
2017, Fortune owed more than $12 million in principal and $3 million in interest. Relying on
the spreadsheet, Benetis testified that on August 28, 2017, Fortune owed a total of
$15,398,548.04 and, after additional interest, $16,971,145.20 at the time of trial. We agree with
Fortune that Benetis’s testimony and the documents he relied on conflicted with Daniel Cadle’s
assertion that most of the amount owed was interest. But, as noted, the trial court appraises the
credibility of the witnesses, determines the weight to be accorded their testimony, and resolves
inconsistencies and conflicts. Wade, 2017 IL App (1st) 161765, ¶ 59. After considering the
documentary evidence, weighing witnesses’ credibility, and resolving conflicts between
Benetis’s and Daniel Cadle’s testimony, the trial court found Fortune owed Cadle
$17,031,611.66, including $12,226,231.36 in principal, $4,744,915.60 in interest, plus
attorney’s fees and court costs. That finding was not unreasonable, arbitrary, or unsupported
by evidence.
¶ 46 Expenses
¶ 47 Mathin contends the trial court’s judgment in Cadle’s favor on its counterclaim was against
the manifest weight of the evidence and should be reversed. Specifically, Mathin asserts that
the documentary evidence and his testimony, along with the testimony of Benetis, show
Fortune paid certain expenses Cadle never reimbursed.
¶ 48 Benetis testified that Mathin never objected to paying the expenses himself or out of the
closing, and all expenses were eventually repaid. Daniel Cadle similarly testified that the
parties used various methods in dealing with the expenses and neither Mathin nor Fortune
complained about these methods or accused Cadle of violating the settlement agreement. Aside
from his testimony that Fortune was never reimbursed for various expenses, Mathin presented
no evidence to support the counterclaim. The trial court’s finding that the “[t]estimony and
evidence admitted established that all expenses were paid pursuant to a course of action either
agreed upon by the parties or not challenged by Mathin” was not against the manifest weight
of the evidence.
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¶ 49 Affirmed.
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