Van Hoekelen Greenhouses, Inc v. Work 6, Inc. , 2023 IL App (1st) 220858-U ( 2023 )

2023 IL App (1st) 220858-UNo. 1-22-0858
Second Division
December 12, 2023
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
VAN HOEKELEN GREENHOUSES, INC., ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. ) No. 19 L 10001
)
WORK 6, INC., ) Honorable
) Patrick J. Sherlock,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Howse and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment following the bench trial and its denial of the appellant’s
motion for reconsideration is affirmed where this court has not been provided with
a sufficient record to review the claims on appeal.
¶2 Plaintiff-appellee Van Hoekelen Greenhouses, Inc. (VHG) instituted this action against
defendant-appellant Work 6, Inc. (Work 6) for breach of contract (count I) and account stated
(count II) to collect payment for perishable plants that VHG sold and delivered to Work 6 between
May and June of 2018. Following a bench trial, the trial court entered judgment in favor of VHG
No. 1-22-0858
and awarded VHG $71,000.96, plus costs. On appeal, Work 6 argues that the trial court
erroneously granted judgment in favor of VHG because the court failed to provide any credits to
Work 6 for the non-conforming premium hanging baskets and tulips and employed an improper
method to calculate the appropriate credits for the poinsettias. Work 6 also contends that the trial
court erroneously denied its motion for reconsideration. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 VHG is a Pennsylvania-based greenhouse business engaged in the wholesale of seasonal
plants and flowers. From November 2016 to October 2018, VHG provided plants to Work 6, an
Illinois corporation, which it would then sell to its customers, often grocery stores. Work 6 would
submit purchase orders to VHG, who would then deliver the goods and send invoices to Work 6
for payment.
¶5 On September 11, 2019, VHG filed a two-count complaint against Work 6. Count I alleged
a breach of contract for failure to pay for goods and services. Count II was based upon an account
stated. VHG requested judgment in its favor in the amount of $80,833.91, plus costs and pre- and
post-judgment interest. Attached to the complaint is a copy of an invoice showing the amount due
at the time the complaint was filed.
¶6 On December 12, 2019, Work 6 entered its appearance and filed a motion for a bill of
particulars requesting the following: a detailed description of the goods and services for which
VHG claims Work 6 did not pay, the dates on which those goods and services were provided, and
an accounting of all charges for the goods and services provided, including all credits for payments
that Work 6 made for said goods and services.
¶7 On January 7, 2020, VHG filed its bill of particulars. Attached were invoices sent to Work
6 and an accounting of all charges for goods and services provided to Work 6 and all credits for
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payments Work 6 made for those goods and services. Additionally, the bill stated that all invoices
(also referred to as “delivery tickets”) included provisions stating that “any claims must be made
within 24 hours from receipt of delivery” and “2% monthly charge added to all invoices unpaid
after 30 days.”
¶8 On February 27, 2020, Work 6 filed its answer and affirmative defenses to the complaint.
Work 6 generally denied liability and alleged the following affirmative defenses: failure of a
condition precedent, material breach of contract by VHG, fraud in the inducement,
misrepresentation of material fact, innocent misrepresentation of material fact, equitable estoppel,
unclean hands, and laches. Therein, Work 6 specifically alleged that between April 2018 and June
2018, it received “several shipments of defective goods” from VHG and VHG promised to provide
Work 6 with credits to compensate for the defective goods, but VHG never provided the promised
credits.
¶9 The matter proceeded to a bench trial on September 20, 2021. After testimony was
presented and exhibits were admitted, the court ordered the parties to submit their closing
arguments in writing. 1
¶ 10 In VHG’s closing argument, it stated that in May 2018, Work 6 stopped paying VHG’s
invoices and from May 4, 2018 to June 4, 2018, VHG delivered eight shipments of plants to Work
6, which Work 6 received and accepted but has refused to pay for. VHG argued that Work 6 never
rejected or revoked its acceptance of the alleged non-conforming plants, any vague complaint
about the plants was insufficient to constitute rejection, and 24 hours is a reasonable time for
rejection of perishable plants and is standard in the trade. VHG further contended that Work 6 did
1
Work 6 did not provide this court with a report of proceedings, or an acceptable substitute, or
the exhibits from the bench trial in violation of Illinois Supreme Court Rule 321 (eff. Oct. 1, 2021).
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not request credits for the non-conforming goods until after VHG demanded payment on the past
due account, which was months after delivery, and therefore, the request for credits was not made
within a reasonable time. Finally, VHG asserted that Work 6 did not properly care for the
perishable plants after delivery which, it maintained, could be related to their issues with them.
¶ 11 In Work 6’s closing argument, it asserted that the amount owed to VHG should be greatly
reduced “to account for damages incurred by Work 6 due to [VHG’s] breach of its sales contract,”
particularly to remedy for non-conforming goods delivered to Work 6. Work 6 explained the
defects for each of its contested plant deliveries. As to the poinsettias, Work 6 claimed that it had
received poinsettias that did not meet the advertised height requirement and a shipment of
poinsettias were delivered at a colder temperature than what is required. As to the tulips, Work 6
claimed that the delivery was a day late and the tulips were delivered as “blown-out tulips” despite
ordering tulips that were fully closed. As to the premium hanging baskets, Work 6 claimed that
they lacked color and bloom and as such were of poor quality. As to the basic hanging baskets,
Work 6 claimed that they had been shrink-wrapped too tightly, causing them to die within a day.
Work 6 asserted that the tulips, premium hanging baskets, and basic hanging baskets were properly
rejected within a reasonable time after delivery. It further argued that, even if there was an
acceptance of some of the goods, that acceptance was properly revoked where the goods were sold
at a reduced price. Finally, it contended that, regardless of acceptance of non-conforming goods,
Work 6 was owed credits as a remedy for the non-conforming goods.
¶ 12 On December 2, 2021, the trial court entered a judgment order and opinion, which set forth
the following. The court found that the terms of VHG’s invoices were clear and undisputed,
requiring that all claims related to goods sold be made within 24 hours after delivery, and in May
2018, Work 6 stopped paying VHG’s invoices but continued to order and accept delivery of goods.
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The court found that between May 4, 2018 and June 4, 2018, VHG delivered eight shipments of
plants and Work 6 received and accepted six of those shipments. The court found that Work 6
timely rejected the basic hanging baskets and for that, the court allowed credits in the amount of
$14,560. The court also granted a credit of $9,741.40 for the non-conforming poinsettias, which
Work 6 also timely rejected. The court denied credits for the premium hanging baskets and tulips
because Work 6’s conduct did not constitute proper rejection. The court found that the balance for
the goods that were not properly rejected was $39,892.20, and VHG was entitled to monthly
interest in the amount of $797.84 multiplied by 39 months. Therefore, the court entered judgment
in favor of VHG in the amount of $71,000.96.
¶ 13 On January 3, 2022, Work 6 filed a motion to reconsider. Therein, Work 6 argued that the
trial court “misapplied the law in its determination that there was not a proper rejection of the
goods” and the court “failed to consider any revocation of any acceptance or the damages between
the parties.” Work 6 further argued that the perishable nature of “the premium baskets made those
baskets worthless[,]” VHG had an obligation to repossess those plants, and Work 6 was entitled to
destroy the allegedly worthless goods without losing its rights to reject the goods or revoke an
acceptance of the goods. To support this argument, Work 6 cited to Frank’s Maintenance &
Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980 (1980). Finally, Work 6 argued that,
even if the premium hanging baskets and tulips were deemed accepted, it retained remedies under
the UCC for non-conforming goods.
¶ 14 VHG filed a response, arguing that Work 6 did not identify an error of law in the trial
court’s judgment but merely rehashed the same arguments in its closing argument, which
challenged the trial court’s findings of fact. VHG also argued that Frank’s Maintenance was
inapplicable.
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¶ 15 On May 10, 2022, the trial court denied Work 6’s motion to reconsider, finding that its sole
new argument, based upon Frank’s Maintenance, was unavailing.
¶ 16 This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, Work 6 argues that the trial court erroneously granted judgment in favor of
VHG in the amount of $71,000.96 because the trial court failed to consider sections 2-607(3)(a),
2-714, and 2-717 of the Uniform Commercial Code (UCC) (810 ILCS 5/2-607(3)(a), 2-714, 2-
717) (West 2020)) and should have granted Work 6 credits for the accepted but non-conforming
premium baskets and tulips. It also argued that the trial court employed an incorrect method for
determining the credits owed for the poinsettias. Finally, it contended that the court erred in
denying its motion to reconsider.
¶ 19 A. Premium Baskets and Tulips
¶ 20 Work 6 first claims that the trial court erred in basing its decision “entirely on its
determination that Work 6 never properly rejected the goods and Work 6 accepted the goods[.]”
In particular, it asserts that the trial court failed to consider that the UCC allows buyers to recover
damages due to non-conformity of accepted goods and therefore should have granted Work 6
credits for the non-conforming but accepted premium baskets and tulips.2
¶ 21 Preliminarily, we must address the dispute between the parties as to whether the issue
presented is solely a question of law or a question of fact. Our resolution of this preliminary
dispute determines our standard of review.
2
It appears to this court that Work 6 is conceding that it accepted the non-conforming premium
hanging baskets and tulips as it has made no argument in its brief that it properly rejected the goods or
revoked its acceptance of the goods.
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¶ 22 As the appellant, Work 6 had the duty of providing this court with a sufficiently complete
record of the proceedings below to support its claims of error. Midstate Siding & Window Co. v.
Rogers, 204 Ill. 2d 314, 319 (2003) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). The
record before us does not contain any transcripts from any hearings before the court, including the
two-day bench trial, at which witnesses from both parties provided testimony. The exhibits
presented at the trial are also missing from the record. There is no acceptable substitute, such as a
bystander’s report or agreed statement of facts. See Ill. S. Ct. R. 323 (eff. July 1, 2017). “A court
of review is limited to the record before it.” Webster v. Hartman, 195 Ill. 2d 426, 436 (2001). In
the absence of a complete record, the reviewing court must indulge in every reasonable
presumption favorable to the trial court’s judgment and we will presume that the trial court’s
judgment conformed with the law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 391-92.
“Any doubts which may arise from the incompleteness of the record,” including the absence of
relevant transcripts and exhibits, must be “resolved against the appellant.” Id. at 392.
¶ 23 Work 6 was well aware of its failure to provide a complete record to this court as it argued
throughout its opening brief that the report of proceedings and exhibits were not necessary for our
resolution to this appeal. At no point did Work 6 attempt to supplement the record with the missing
transcripts, exhibits, or any acceptable substitute, and thus, we censure Work 6’s intentional
disregard for our supreme court rules.
¶ 24 Work 6, instead, attempts to avoid the often fatal effect of an incomplete record and the
application of Foutch by asserting that any facts included in its statement of facts are undisputed
and citations to those undisputed facts will be to the parties’ written closing arguments, as well as
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those facts noted in the trial court’s November 2, 2021, written order. 3 This suggestion is
untenable. Work 6 cites no authority to support its position and we are unable to find any support
for the proposition that facts recited in a party’s brief can serve as a substitute for a report of
proceedings. Rather, this court has stated on multiple occasions that the statement of facts in an
appellate brief is not part of the record and cannot be considered by the reviewing court as evidence
where the record was incomplete. See Matter of McGaughey’s Estate, 60 Ill. App. 3d 150, 157
(1978) (“Appellate counsel cannot supplement the certified record by unsupported statements or
allegations in their briefs or in oral argument.”); Strand v. United (Methodist) Church of Sheldon,
12 Ill. App. 3d 917, 922 (1973) (“Matters or facts which are alluded to, or statements which are
made in a brief in this court, which are entirely outside the record, cannot be considered by this
reviewing court in disposition of the cause[.]”). Additionally, it is axiomatic that closing arguments
are not evidence. See Neuhengen v. Global Experience Specialists, Inc., 2018 IL App (1st) 160322,
¶ 157; Illinois Pattern Jury Instructions, Civil, Nos. 1.04(A)[14] and 1.01(C)[13] (May 2023). As
such, we will not consider any alleged “undisputed” facts set forth in Work 6’s statement of facts
or the parties’ written closing arguments as evidence.
¶ 25 We turn to consider whether Work 6’s claim regarding the premium hanging baskets and
tulips is purely a question of law or whether a factual inquiry is necessary for resolution of this
appeal.
¶ 26 “The standard of review in a bench trial is whether the judgment is against the manifest
weight of the evidence.” Chicago’s Pizza, Inc. v. Chicago Pizza’s Franchise Ltd. USA, 384 Ill.
3We observe that, if the parties agreed on the undisputed facts, then the logical course of action
would have been for Work 6 to file an agreed statement of facts, as is permitted under Illinois Supreme
Court Rule 323 (eff. July 1, 2017).
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App. 3d 849, 859 (2008). A judgment is against the manifest weight of the evidence only when
the factual findings appear to be arbitrary, unreasonable, or not based on evidence, or when an
opposite conclusion is apparent. Vaughn v. City of Carbondale, 2016 IL 119181, ¶ 23. Under this
standard of review, it is imperative for the reviewing court to have the ability to review the
evidence, including both testimony and exhibits, upon which the trial court based its factual
findings. See Benford v. Everett Commons, LLC, 2014 IL App (1st) 131231, ¶ 32 (stating that
without a complete record, the court did not know what evidence the trier of fact heard and had no
basis for determining whether the factual findings were against the manifest weight of the
evidence).
¶ 27 However, questions of law, including issues of statutory construction, are reviewed de
novo. Milledgeville Community Credit Union v. Corn, 307 Ill. App. 3d 8, 12 (1999); Citizens
Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. Under de novo review, we
are not required to defer to the trial court’s reasoning, and thus, a transcript of proceedings and the
exhibits introduced in a bench trial may be unnecessary. Gonella Baking Co. v. Clara’s Pasa di
Casa, Ltd., 337 Ill. App. 3d 385, 388 (2003).
¶ 28 Ultimately, whether the record on appeal is sufficient to allow this court to address the
merits of an appellant’s claim of error turns on the particular error claimed. In re Marriage of Abu-
Hashim, 2014 IL App (1st) 122997, ¶ 15.
¶ 29 Work 6 contends that “the issue of law concerns whether the UCC allows a party to make
deductions from the amount it may owe to a seller following an acceptance of non-conforming
goods.” It asserts that this appeal involves the statutory construction of sections 2-607(3)(a), 2-
714, and 2-717. Work 6 further argues that the construction necessary is “whether under the
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circumstances presented by this case, whether Work 6 was entitled to seek a remedy for receipt of
accepted but non-conforming goods by deducting claimed damages from the sums due to [VHG].”
¶ 30 Conversely, VHG asserts that “[w]hether the trial court erred in rendering judgment in
favor of [VHG] and denying several of Work 6’s claims for credits involves an inquiry that is
inherently factual.” Specifically, VHG argues that, because of the incomplete record, this court
“has no way of knowing what evidence was presented to the circuit court upon the trial of the
issues of whether VHG breached its warranties premised on the quality of plants delivered,
whether Work 6 gave reasonable notice of non-conformance and whether and to what extent Work
6 sustained damages as a result of the alleged non-conformance.”
¶ 31 We agree with VHG and, as we explain below, find that resolution of this appeal requires
review of the evidence supporting the trial court’s factual findings as well as application of the
law, specifically the UCC, to the facts. Because our analysis inherently involves construing
statutory provisions of the UCC, we set forth the principles of law governing statutory
interpretation.
¶ 32 The fundamental rule of statutory construction is to give ascertain and give effect to the
legislature’s intent. Landis v. Marc Realty, LLC, 235 Ill. 2d 1, 6 (2009). The best indicator of intent
is the language used in the statute, which must be accorded its plain and ordinary meaning. Id. at
6-7. Where the text of the statute is clear and unambiguous, we need not resort to canons of
statutory construction. Department of Transportation v. Singh, 393 Ill. App. 3d 458, 465 (2009).
¶ 33 Work 6 argues that its claim for credits for the premium hanging baskets and tulips should
have been analyzed under the UCC provisions governing a buyer’s remedies after acceptance of
non-conforming goods, specifically sections 2-607(3)(a), 2-714, and 2-717. As relevant here, those
sections read together provide the following.
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¶ 34 Under the UCC, once a buyer accepts goods, it is bound to pay the contracted price for
them. 810 ILCS 5/2-607(1). However, acceptance does not prevent the buyer from pursuing other
remedies for damages caused by non-conforming goods. Section 2-607 sets forth the effects of a
buyer’s acceptance of non-conforming goods. In particular, subsection (3)(a) provides that where
goods have been accepted, “a buyer must within a reasonable time after he discovers or should
have discovered any breach notify the seller of breach or be barred from any remedy[.]” 810 ILCS
5/2-607(3)(a). The purpose of the notice is to give the seller the opportunity to cure the defect and
minimize damages, protect his ability to investigate a breach and gather evidence, and to encourage
negotiation and settlement. Maldonado v. Creative Woodworking Concepts, Inc., 296 Ill. App. 3d
935, 939 (1998).
¶ 35 Sections 2-714 and 2-717 provide for the remedies which Work 6 seeks. Section 2-714
states that where the buyer has accepted goods and notified the seller as required in subsection (3)
of section 2-607, the buyer may recover damages from any non-conformity of the goods where the
loss resulted in the “ordinary course of events from the seller’s breach as determined in any manner
which is reasonable.” 810 ILCS 5/2-714(1). Subsection (2) provides for the usual method of
measuring the damages, and subsection (3) allows the buyer to recover for any incidental and
consequential damages. 810 ILCS 5/2-714(2), (3). Under section 2-717, a buyer of goods is
allowed to “deduct all or any part of the damages resulting from any breach of the contract from
any part of the price still due under the same contract.” 810 ILCS 5/2-717.
¶ 36 Therefore, pursuant to these provisions, “where the buyer has accepted the goods with
knowledge of the breach or *** has failed to revoke the acceptance after discovery of the breach,
but has given the seller timely notice, he is entitled to damages for the breach.” Murray v. Kleen
Leen, Inc., 41 Ill. App. 3d 436, 442 (1976). Thus, we do not disagree with Work 6’s assertion that
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the UCC “allows a party to make deductions from the amount it may owe to a seller following an
acceptance of non-conforming goods.” However, that is not the end of the inquiry. As Work 6
accurately points out in its brief, the buyer is required to notify the seller of the non-conformity of
the goods even when the goods have been accepted. This requirement is made clear in both section
2-607(3) and 2-714(1). As we explain below, our review of Work 6’s satisfaction of the notice
requirement is the major impediment to our review of this claimed error is impeded given the
paucity of the record that has been provided to this court.
¶ 37 Before expounding upon the notice requirement, we deem it necessary to also set forth the
UCC provisions governing a buyer’s rejection or revocation of acceptance of non-conforming
goods.
¶ 38 A buyer may reject goods that “fail in any respect to conform to the contract.” 810 ILCS
5/2-601. The rejection of goods must occur within a reasonable time after delivery, and the
rejection is “ineffective unless the buyer seasonably notifies the seller.” 810 ILCS 5/2-602. Where
a buyer does not validly reject goods, the goods are deemed accepted. 810 ILCS 5/2-606(b).
¶ 39 A buyer may revoke acceptance of the goods when a non-conformity substantially impairs
the value of the previously accepted goods. 810 ILCS 5/2-608(1). The right to revocation occurs
when the buyer accepts goods “on the reasonable assumption that its non-conformity would be
cured and it has not been seasonably cured” or “without discovery of such non-conformity if [the
buyer’s] acceptance was reasonably induced by the difficulty of discovery before acceptance or
by the seller’s assurances.” 810 ILCS 5/2-608(a), (b). Either way, revocation must occur within a
reasonable time after the buyer discovers or should have discovered the ground for revocation. 810
ILCS 5/2-608(2). Proper revocation of acceptance, however, is also premised on the buyer’s
notification to the seller. 810 ILCS 5/2-608(2).
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¶ 40 What becomes clear from a reading of the UCC’s provisions governing a buyer’s rejection,
acceptance, and revocation of acceptance is that reasonable notice is a necessary predicate in all
three scenarios, and without notice, a buyer will be barred from any remedy for damages caused
by non-conformity of goods. See Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d 482, 495 (1996)
(holding, in the context of a motion to dismiss, that “failure to allege sufficient notice is fatal to
[the] plaintiffs’ breach of warranty claims”); Board of Education of City of Chicago v. A, C and S,
Inc., 131 Ill. 2d 428, 462 (1989) (stating that failure to satisfy the requirement of notice is fatal to
a cause of action for breach of warranty). Thus, regardless of the scenario under which we review
Work 6’s claims, we would ultimately need to review the trial court’s factual findings on Work
6’s notice to VHG of the non-conforming goods.
¶ 41 According to the UCC, “[w]hether a time for taking an action required *** is reasonable
depends on the nature, purpose, and circumstances of the action.” 810 ILCS 5/1-205(a). Moreover,
“[a]n action is taken seasonably if it is taken at or within the time agreed or, if no time is agreed,
at or within a reasonable time.” 810 ILCS 5/1-205(b). “Whether sufficient notice has been
provided is generally a question of fact to be determined based upon the particular circumstances
of each case.” Maldonado, 296 Ill. App. 3d at 940; see also Al Maha Trading & Contracting
Holding Co. v. W.S. Darley & Co., 936 F. Supp. 2d 933, 940 (N.D. Ill. 2013) (stating that the
reasonableness of a party’s actions is an issue for the trier of fact); Murray, 41 Ill. App. 3d at 442
(stating that the notification of breach of warranty “is ordinarily a question of fact, looking to all
the circumstances of the case.”).
¶ 42 Also relevant to a finding of reasonable notice is one of the few undisputed facts of this
case, which is that VHG’s invoices (or “delivery tickets”) expressly stated that any claims
regarding the goods were to be made within 24 hours after delivery. As such, it appears that the
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contractually agreed upon terms mandated that a rejection of the goods or a request for credits after
acceptance would only be seasonable if made within 24 hours. See 810 ILCS 5/1-205(b); 810 ILCS
5/1-302(a) (providing that “the effect of provisions of the [UCC] may be varied by agreement”).
Of course, Work 6 also argues that the contractual 24-hour time period was “manifestly
unreasonable” and instead Work 6’s notice should be evaluated under the flexible standard of
reasonableness set forth in section 1-205(a). We express no opinion as to whether the 24-hour time
period was reasonable under the circumstances of this case, and, in point of fact, that is not the
issue now before us. Even so, resolution of the factual dispute regarding whether Work 6’s post-
acceptance notice of non-conforming goods was either reasonable or fell within 24 hours requires
our review of the evidence underpinning the trial court’s finding of notice, such as the delivery of
the plants, the plants’ defects, the communications had between the parties after delivery, and the
parties’ conduct after delivery. None of this evidence is before this court.
¶ 43 In fact, Work 6 itself admits that “[t]he notice required by [s]ection 2-607(3)(a) must be
based on the factual circumstances surrounding each case” and further that notice “must be within
a reasonable period of time after the discovery of the breach or after the buyer should have
discovered such breach.” It is clear even from Work 6’s own arguments that this claim cannot be
resolved without a review of the evidence presented.
¶ 44 “In a bench trial, it is the function of the trial judge to weigh the evidence and make findings
of fact.” Rolando v. Pierce, 331 Ill. App. 3d 40, 47 (2002). Following a bench trial, the reviewing
court will defer to the trial court’s findings of fact unless they are contrary to the manifest weight
of the evidence. Staes and Scallan, P.C. v. Orlich, 2012 IL App (1st) 112974, ¶ 35. Here, the court
found that the 24-hour period for submitting claims as required on the invoices was standard in the
trade for perishable plants, Work 6 failed to make a clear and unambiguous rejection within 24
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hours of delivery of the premium hanging baskets and tulips, and Work 6 did not ask for credits
for these non-conforming goods until months after they were received. Although the court did not
expressly discuss “reasonable notice,” the court found that Work 6’s notice of non-conforming
goods was insufficient. See People v. Curtis, 296 Ill. App. 3d 991, 1000 (1998) (stating that the
trier of fact is not required to mention everything that contributed to its findings). However, we
have no record for reviewing the basis for the trial court’s determination. Without a sufficient
record containing the transcripts and exhibits from the bench trial, we are constrained to presume
that the court’s finding was not against the manifest weight of the evidence. Smolinski v. Votja,
363 Ill. App. 3d 752, 757-78 (2006) (stating that, when presented with an insufficient record, we
will indulge every reasonable presumption in favor of the judgment appealed from). As such,
regardless of whether the court should have analyzed the claim as acceptance of non-conforming
goods or rejection of non-conforming goods, its finding that Work 6 did not sufficiently provide
notification to VHG of the non-conforming goods is presumed to be supported by sufficient facts.
See Tekansky v. Pearson, 263 Ill. App. 3d 759, 764 (1994) (any doubts raised by missing evidence
are to be resolved against the appellant); In re Estate of Funk, 221 Ill. 2d 30, 96 (2006) (trial court
decision may be affirmed on any grounds).
¶ 45 Because we are hindered in our review of the court’s factual finding of lack of reasonable
notice, we also reject Work 6’s argument that the time periods for reasonable notice must differ
depending on whether the goods are rejected or accepted. Any legal conclusion of that argument
would be futile as we cannot apply it to the evidence presented in this case. Moreover, there is
nothing in the UCC that expressly makes such a differentiation.
¶ 46 Finally, in two of the cases to which Work 6 cites for support, Al Maha Trading, 936 F.
Supp. 2d at 941, and Custom Automated Machinery v. Penda Corp., 537 F. Supp. 77, 84 (N.D. Ill.
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1982), the federal district court confirmed that reasonableness of notice is a question of fact, and
as we have noted previously, Work 6 is seemingly aware that notice is a factual question as well.
This begs the question, even if we held that the trial court should have considered Work 6’s
remedies for damages of accepted, non-conforming goods, what would Work 6 expect this court
to then do? Should we remand to the trial court to make its own determination of reasonableness
of notice after acceptance, even though all evidence relevant to that issue was previously
presented? To do so would reward Work 6’s blatant disregard of our supreme court rules, relegate
our own role as a reviewing court to the trial court, and unnecessarily prolong litigation in this
action. We decline.
¶ 47 Accordingly, because we have no report of proceedings or acceptable substitute in regards
to the bench trial proceedings, we are unable to determine whether Work 6 was owed credits for
the premium baskets and tulips, and thus, we presume that the trial court was correct in its ruling.
See Foutch, 99 Ill. 2d at 391-92; Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 157 (2005)
(concluding that it could not review the claimed error “to determine whether the trial court’s factual
findings were against the manifest weight of the evidence, or consider the legal effect of its factual
findings”).
¶ 48 B. Credits for Poinsettia Plants
¶ 49 Next, Work 6 claims that the trial court erred in calculating its damages for VHG’s delivery
of poinsettia plants and failed to comply with section 2-714 of the UCC (810 ILCS 5/2-714). In
particular, Work 6 contends that the trial court “failed to consider the value of the received
poinsettias and only the price to cover” and failed to account for incidental and consequential
damages.
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¶ 50 “In Illinois, the measure of damages is a question of fact to be decided by the trier of fact,
and a reviewing court should not substitute its judgment for that of the trier of fact.” Hanson-
Suminski v. Rohrman Midwest Motors, Inc., 386 Ill. App. 3d 585, 595 (2008). Following a bench
trial, we will not disturb the trial court’s finding of damages unless it is against the manifest weight
of the evidence. Doornbos Heating and Air Conditioning, Inc. v. James D. Schlenker, M.D., S.C.,
403 Ill. App. 3d 468, 485 (2010).
¶ 51 Section 2-714(1) provides that “[w]here the buyer has accepted goods and given
notification *** he may recover as damages for any non-conformity *** as determined in any
manner which is reasonable.” 810 ILCS 5/2-714(1). Subsection (2) states that “[t]he measure of
damages for breach of warranty is the difference at the time and place of acceptance between the
value of the goods accepted and the value they would have had if they had been as warranted,
unless special circumstances show proximate damages of a different amount.” 810 ILCS 5/2-
714(2). However, the comments to this section state that “[s]ubsection (2) describes the usual,
standard and reasonable method of ascertaining damages *** but it is not intended as an exclusive
measure.” 810 ILCS 5/2-714, UCC Comment 3; see Milledgeville, 307 Ill. App. 3d at 13 (stating
that this court may examine the relevant UCC comments in order to discern the legislature’s
intent). Thus, contrary to Work 6’s assertion, the trial court was not required to utilize the method
in subsection (2). Under the circumstances, we cannot say that the trial court’s method in
ascertaining damages is unreasonable, particularly where we have no evidence before us as to the
non-conformity of the poinsettias, the original price, the selling price, or Work 6’s conduct after
delivery of the poinsettias.
¶ 52 We also find Work 6’s argument that the trial court failed to account for incidental and
consequential damages wholly without merit. Work 6 does not assert what those damages would
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No. 1-22-0858
be and cites to nothing in the record to support this argument. Even so, as stated, damages are a
fact-based determination and the complete absence of evidence in the record before this court
hinders any determination in that regard.
¶ 53 C. Motion to Reconsider
¶ 54 Finally, Work 6 urges our reversal of the trial court’s order denying its motion for
reconsideration. In response, VHG argues that Work 6 merely repeated arguments presented in its
closing argument and Frank’s Maintenance is not applicable here.
¶ 55 We review the trial court’s ruling on a motion for reconsideration for abuse of discretion.
In re Marriage of Wolff, 355 Ill. App. 3d 403, 409 (2005). “The purpose of a motion for
reconsideration is to apprise the trial court of newly discovered evidence, a change in the law, or
errors in the court’s earlier application of the law.” Farley Metals, Inc. v. Barber Colman Co., 269
Ill. App. 3d 104, 116 (1994).
¶ 56 We agree with VHG that Work 6’s arguments in its motion for reconsideration consisted
of arguments previously made in its written closing argument, and the trial court properly rejected
those repetitive contentions. Work 6 did not provide any new evidence or a change in the law. The
only new argument was that it was VHG’s burden to repossess the non-conforming goods and
Work 6’s conduct after it advised VHG of the issues with the plants did not preclude a rejection
or revocation of acceptance. Work 6 cited to Frank’s Maintenance & Engineering, Inc. v. C.A.
Roberts Co., 86 Ill. App. 3d 980 (1980), for support of this argument. As to this particular
contention, the trial court found the argument unavailing, stating that, although Work 6 could store,
reship, or resell the goods without constituting acceptance, Work 6’s post-delivery conduct in this
particular instance was not consistent with rejection. The court also reiterated its prior ruling that
Work 6 did not notify VHG of defects within a reasonable time and there was no proper rejection
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No. 1-22-0858
of the goods. Additionally, because of the incomplete record, we must presume that the court’s
findings on these matters were supported by sufficient evidence and were in conformity with the
law. See Foutch, 99 Ill. 2d at 391-92.
¶ 57 Moreover, it is clear to this court, even with the incomplete record, that Frank’s
Maintenance is inapposite. First, it did not involve perishable goods, and the court in Frank’s
Maintenance explicitly recognized that when perishable goods are involved, the buyer must
comply with the seller’s specific instructions following notification of non-conformity. 86 Ill. App.
3d at 986. Second, the terms of limitation for the buyer’s remedies were not clearly set out in
Frank’s Maintenance, where they were provided on the back of order acknowledgment and the
statement on the front directing the buyer to the conditions on the back was stamped over and
rendered illegible. Id. at 983. Here, it is undisputed that the invoice for each purchase from VHG
clearly stated that any claims must be made within 24 hours. For these reasons, we agree with the
trial court that Frank’s Maintenance does not provide a basis for reconsidering its judgment.
¶ 58 Accordingly, we find that the trial court did not abuse its discretion in denying Work 6’s
motion for reconsideration.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we affirm the judgment of the circuit court.
¶ 61 Affirmed.
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