ok ladies and gentlemen have we figure out how many people are arguing on each side you said one two three how many one for your side i'm going one for your side ok one n one now we've got a couple of issues here that we may want to probe into so what i've kind of decided on this one is i give you initially twenty minutes each and five minutes in rebuttal i'm going to hold you to the time if you need extra time because of our for claims involving trespass and violations of an alley if it there are three reasons for reversal of the damages award first the war is barred by the economic loss doctrine  with a motion for a directed judgment midway maybe about a third of the way through the damages trial and as we have pointed out to the courts illinois cases ends u raised as an affirmative defense and does not have to be brought by motion in case it in particular in the rosso slithered case it was not even raised until after the conclusion of the trial in a post trial motions and the reason is i goes to the very nature of the case because in illinois since morning and all progeny it's been very very clear that the general rule in tort actions is there is not recovery for economic losses there are some exceptions but the general rule no recovery for economic losses so it is imperative within the action that if you are bringing a tort action the scope of damages would not include economic an issue is the improper damages the plaintiff has to be given an opportunity to amend the complaint in this particular case he waded through years of litigation before ever regime question odd economic los intentional interference with with prospective economic advantage of intentional interference with a contract that doesn't apply there's no there's no injury to property your person there and they're totally exceptions to the warming theory but that's not the issue right now the issue is why did you wait all these years never even raise it you know motion never bring up until the reply brief that you wanted to defend against the damages on the question of the mormon you talk about a strange site it's a big one everyone most cases say it can be we need fish not raise time and in this particular case you wouldn't really consider when you raise a time which it certainly could have been raised honor unless there is an exception if it's a tour case you have an obligation to bring forward property damage or personal injury and you do not damage or personal injury the mormon doctrine in a pot and then there is a whole fleet of exceptions to the every rule that the supreme court has acknowledged there is no specific rule in any case th that merely because no property damage or personal injuries allege that they can allege the stamp just and then you've got some jurisdictional question and some standing questions that really i don't understand will get to those men construction of all property in michigan and the reason your honor is that the illinois supreme court if held in the more ok case that the state of mind of so we were not able to find any cases in illinois that directly dealt with the label intentional or what we have about the court with its numerous cases feeling with willful and one thing and with the general proposition that the question if not the subjective and that of the defendant but is the nature of the loss the soft bed it is the essence of the economic loss doctrine is that economic losses should be recovered the rim of the should be in other areas of law but not in can be arranged in the range can go all the way to intentional conduct and can go to something less than intentional conduct but maybe a little bit more than negligence and because it includes willful and wanton can include intentional conduct there are fissions of interference with eastment that's how they labeled it if you look at the case lonely provided by brief interference with the phone is really just a flavor of trespass that sort of within the trespass on the trespass can be intentional press pass can be negligent the way that the supreme out in our papers they didn't plead and they did not prove a claim for intentional interference because they did not identify and it in a five third party with whom the district attended to interfere and who that interference  they didn't get the profit in the game at least as quickly as they wanted in that back and that's exactly what the economic loss doctrine is supposed to protect party from they made an investment twelve law is not where they get the insurance for  there's no question there with i prefer theme discussion for a longer period of time your honor i didn't mean to suggest otherwise the first time they made a request for access where they said we're coming in we'd like to go to the alley with may second two thousand and eight they had an injunction by august two it and if they have rights as licensees then you had no right to block their axis even before their purchase i was making that argument your honor ok you know the work forget about when they they had inspectors that were going in there you were in london they couldn't get him they attempted to who they wanted to construct all sorts of things over there they couldn't get in they just could your honor that they would enter from the other way but they couldn't get in through the hell this is why the timelines important that was all after may second two thousand and eight which you've just described were events after may second two thousand and eight it did happen can that compressed period lots of discussions beforehand about what the the second ground for work reversal shifts that out there pleading that went to trial there counterclaim did not provide for a time period that their expert relied upon their their pleading that they went to trial on again follow this line up we have hired we obtained title april thirty two thousand and eight and we made a request in may two thousand and eight and we work our rights were in france that's the complaint that went it went to trial the earlier proceedings were all injunction proceedings in terms of what were the rights on the eastman's and with the project company do but the counterclaim didn't start making that allegations of a counter claim or only talking about recent events to me when they filed it they found a counter claim in july recent events where the bed trial court did was even after she denied them leave about a year earlier to submit and an amended t tortious interference and she explained rather reasons why that was prejudicial to the district she didn't i wow their expert to testify essentially supporting the counter claim that she didn't allow them to happen is of course sir did you object to any of the and as a matter of damages should have been those may through june time period and we have checked it because their expert with i've had it damaged my local going back to two thousand and seven that's what the jackson was and it was it was  overruled once the court overruled that it allowed him to testify well first the district was entitled to defend itself and it defended itself is the best way it could not very successfully as it turns out but certainly they were submitting evidence once the court allowed the expert to testify the third grounds for reversal your honor are that the damage of the work was against the manifest weight of the evidence we've raised two issues in that respect that experts damages model depended upon sort of a battle for world and he says that construction could have started back in two thousand and seven and that the district was responsible for all that for eighteen months of the way and the full thirty six million found out that he could even without paying any additional premium once he got that title insurance he had a loan commitment within about two weeks everything went in the normal fourth and then he was able to close by april april thirtieth two thousand and eight it was a very short period of time a time and he admitted on the stand your honor that he could have gotten the title insurance over the easement dispute at any time so that entire period between two thousand and seven  two thousand and five that any time he could have gotten the title insurance gotten his financing closed on the property and as i pointed out three and a half months from the date of closing till the injunction which resolved that if a dispute so the district cannot resolve at the time that they went that they got the title insurance and got the financing and completed the acquisition it was it was pending just the way it was the sale were still lead by what you did it was delayed you filed sense for them to get financing if they couldn't get on the property and that's right against the manifest weight of the evidence your honor because they were able to get their financing and while that even with dispute with regime so it was not correct that they couldn't get their financing we did not cause the delay they could have gone in and got their financing at the earliest moment in the end that you may know of course the entire but now the question becomes awful what portion o months later it was all cleared out by the ruling of the court in the injunction hearing that at most the district responsible for that three and a half month the late period the expert report was based upon an eighteen month period which is why when they al point based upon your assessments your projected revenues are short then dead the lenders typically have a right to request additional additional financing that happened in this case and that if the the lender did require additional financing and twenty four million of the thirty six million in damages was extra interest from that extra financing however however the evidence is then disputed that there were two months when the loan would have been out of balance totally independent of the district and the district not done a thing the loan would have been out of balance for two months and it is simply rank speculation as to whether a lindor would or would not have done the linder would have had the right to trigger that request for additional financing and that the trial court speculated that the lender would not have because two months with a short period is not what we had seen the battle of the experts about well that's where also speculated about that but it's just damages so on this case took a trial over two and a half year period of time the district here comes here today and asked to be absolved of his interference on the basis of two principal legal are one the mormon doctrine which does not address mormon first the mormon doctrine has never been in this in this state or otherwise there's no court has ever found mormon bars the cause of action for tortious interference intentional tortious interference the the broad proposition i think that you want to make his mormon has no applicability to an international talked that is the broad proposition but this is the more narrower proposition really the question of whether  falls more in line with intentional interference with contract or prospective economic right nancy not as a trust i agree your honor as a trial court below found those are analogous causes of action where the court in this state long ago and sent to she found circumstances where the tour started with their not knowing that the project company was going trying to develop a project the project company purchased the rights to do so in two thousand and eight paint a contract there the contractual right to use that alley to construct its its new building which finally ultimately did get constructed on the order of fury in michigan and the he intended purpose of the interference was to interfere with my client business expectancy is it at its expectancy that they would receive economic benefit this is in a situation where they were walking using easement to walk a cost with their home or or some other instance this is an easy situation w necessary to begin the demolition of the buildings and begin this project and it's undisputed that they intentionally interfered and and the court below that found that their interference was unjustified and that was affirmed by this court in two thousand and nine so the only issue before the court is whether this is intentional that this intentional interference with these men is barred by the mormon doctrine they have no cases to support their position on that case the close this case and future and that case as a trial court found is analogous to what we have here and we respectfully request that the court deny their efforts to a certain  standing i want to do and that point there was a misstatement about when that was first raised or actually a mishap maybe it's not a mistake it's true it was first raise and apply bring in the in the trial court have after we  rested our case but as a trial court said it was unfair to expect the court for us to respond to that in reply the first time they'd probably race more was at the end of the case in the beginning of nineteen  sixty days it took two and a half years and when you say well i say that they they did have to your honor because it's a defense that among other things through all two six one although they didn't do it here they could have filed a two six one five motion which is a typical way of presenting this which would have avoided the trial court spending sixty days of judicial precious digicel resources if in fact they were right now we maintain in the effect of the six fifteen motion to strike part of the fair for damages well it would if it if it had been granted if the court found warm and guarded then i think at that stage what we would have done is replay our case we would have replayed it only would want the motion would have replaced him by being stripped of their who pressures that's true and among other things had the mormon doctrine presented i'd like to think we would have looked at the law and found the same to keep i said long ago if you plead intentional interference with business expectancy you don't have a mormon duck problem the facts that were presented full awful and the damages that were found support whole theory and and so we were deprived of that opportunity until the end of the  trial and that was the surprise and prejudice the suggestion in their briefs that we weren't surprised is has no basis in the record i can having i think it is a huge surprise that at the end of a trial someone would assert a mormon defense against an intentional tort when it was certainly a surprise to us that that was a defense that they were going to principally rely upon later or here side of surprise argument this is the issue about the judge denying leave to a man and yes and then the trial takes place the economic witnesses testify and then it's their position suddenly th submitted in january of zero nine eight months before the trial a report that on the first page of which was in the record it record by twenty three c five seven four three this is january twelfth two thousand and nine the first page of the court disposes of eighteen months away period and it discloses damages between fifty and eighty six million dollars at that stage the district if they wanted a jury should have asked for a jury they asked for a delay they asked for severance which we did not oppose they then had eight months eight months to engage in whatever discovery they wanted and then gauge an expert to  respond to our experts charge of eighteen months delay there was no surprise here iraq they knew about this eighteen month the way long before the trial started and well after and even before the trial judge denied our request to amend the pleading to add the additional cop this case was dry for sixty days on whether or not their interference caused an eighteen month delay in the construction i'm astonished that they stand here today and suggest otherwise to find out whether or not they were that significant damages were caused know we asked for sixty six million dollars  and five in the pleading we actually say that they put the interference began the interference in one nine hundred ninety eight we allege that in our counter claim but they began interfering in two thousand and five because that once they learned of the plans the record is undisputed blocked the gate they used their police force to prevent us from entering the al and they never at any time or how long though for three months or for no actually from two thousand and five until the court in of that year asked for an injunction until three months discussions your honor there were i'm going to ring if you're in the schildt she addressed they don't challenge that here and then the record does not support the statement the council made that for the first time it was may of two thousand and eight that we wanted access we and we responded by saying that's not legal we asserted affirmative defense saying that's not legal we negotiated with them or plan to go shoot them forthwith over years of time before they finally got to the point where they went in and asked for  so it's not just not a three month the way actually one could argue and one we might well have argued if we had an expert that would have supported that there delay the delay varies a lot lot goes farther back than eighteen been out of balance in the butt for a case because in the bud court case there was that means that the case where they had interfered if the the expert report said we would have begun closing in march of  of two thousand and ten if you don't attribute the two months of court didn't pursue the delay the next big those two more months so we would start closings for two months later we still had seven plus million dollars in the bag to cover that period of time the the show as it as a trial judge said even a two month the way his song is the bank was aware that there was this money was going to that even if you didn't have the money in the bank the bank was  aware that closings were imminent and closings would would have been aware that there not been a blockage and the closings would have it in a minute and it would have resulted in fifty million dollars of closing proceeds to cover that law is very different than the actual case in the actual place with the blocking we were twenty eight million dollars away and twenty months away from the first closing because of the delay to the beginning of the demolition and the construction it's a very different circumstance but perhaps the most important thing is not challenged in the reply versus at trial we point this out in our brief and i think it's forty eight or forty nine when their expert was asked do you have an opinion as to whether or not refinancing would have been necessary had they not interfered he did not have an opinion to that he could not say that we would have incurred additional refinancing costs whether you're out of balance is one thing whether it's going to cost you something is completely different so they have no it's by their expert or otherwise to contradict what the court found so not only is are finding well supported by the evidence it's certainly not against the manifest weight of the evidence on this additional mezzanine that there are a couple of things that i do want to say i think there are evidence from the briefs and in the case that was decided by this court a month ago in re haste at this panel but this court even if there were some defect in our pleading which we say there is not a pleading states a cause of action for intentional interference doesn't specify the eighteen months but it arguably goes back to nine hundred ninety eight in the end of the day all to believe that is a question for an expert to determine what the this issue is whether or not they can prove prejudice and they cannot prove prejudice on this record they want to be ignore everything that happened in the trial not surprising as i said they once they became aware in january of zero nine that it was an eighteen month the way they took pretrial discovery as much as they wanted and they got two extensions for the trial then we began trial during that trial for the next year and a half we put on witness after witness after witness and the issue of whether this was an eighteen month away to support our experts position they never objected once they then read a post our principals to whom are hearing more today two more times during the trial each and took another deposition of our expert then they put on their own evidence at trial they cross it by the way before they put their evidence on they cross examined our witness our expert trial for for fourteen days there is no prejudice here i mean it was painful fourteen days and then they put on their expert to challenge  expert on whether or not it was eighteen months or they were damages they put on they called our witnesses to in their case on the eighteenth month issue this case was fully tried fairly tried to shoe of whether or not th delay that they admittedly with the interference that they admitted elite engaged in delayed us the latest of the budget for eighteen months and on this record they can show absolutely no prejudice and hayes is on all contrary to the cases that we cited and the cases are big easily distinguishable on this on this basis in those three cases the court said the trial court did not have jurisdiction to enter relief just said after all this you get damages and you can have the allen that would have been something that would be beyond the relief that we requested or that they or that anyone defended but in as in hayes and in the case fines that you say in that case the litigants did not properly assert the mormon argument according to the court  several reasons as is reflected in the record in the contract i think in your honor mentioned earlier this morning we have tamed the rights to use a salary in two thousand and five we retained all the rights necessary to develop a self we had a contractual right to use that these we had i don't know whether you call it a license or not but we have the right to do that and that is undisputed in the record we pointed out in addition it's undisputed the testimony was that we had twenty four seven access to use that alley from one thousand two thousand and five until we closed we should have had twenty four seven years as we did but that was the other and we put in three point five million dollars in additional seventeen point one million dollars which further gives us the right to use that alley pursuant to the contract now it was at trial there was a suggestion in a couple of the questions before trial actually to our witnesses of whether or not we had we had stand and we were concerned that they might actually try to assert a standing defense at trial but they never did they never  asserted here they never assert here that we did not have standing there and there's a reason there's a very simple reason which really is why i think they make these fleeting arguments they waived the standing ari we let me let me get to this question a show from home which is the issue is not only what is the right of all rice and z to sue for intentionally interference with you my best guess my best whether or licensee or not my response is that we have the same right and there's no case says we don't we have among other things the equitable right to that to the to assert that are you basically saying that the those rise for the prior to the time period prior to closing on april thirtieth so had they not had they raised the issue we had those rights your honor they didn't raise the issue if i don't know why they didn't raise the issue  below but i think it's because they didn't think that that was a very good defense and that's what i have to think but it wasn't raised below and it was tried as though we had those rights from the from the time we gauged it also point out six they sued us saying we want to declaration that week you cannot use a salary so they recognize that we had standing you know six to sue us they also sued tara but it in the final analysis they never asserted that as a reason why we are entitled damages and that's why it's not addressed but rather they did address it they did assert the standing argument below but it was different it was an argument that whether or not the project company had the right to assert damages for other entities that that we controlled over or home and the court properly rejected that and that's not subject to try the trial court found as well that there is a provision of says even if you're beyond your stature if you're sued when you counter claim you have the saving stature so i think that's the that's the answer that i didn't see that in their brief other than to say we might have raised that had we known you were asserting an eighteen month away or damages we have this what i would call a mythical world of what didn't happen in trial i mean they can't say if we had known because they knew they knew they knew about the way they they they they tried a case for two and a half years on the team months it's they can't say we would have just asked for a jury why because they never did never once there is no prejudice to them in this case this was fully and fairly trial at great length and expense by the parties also and with great patience i might add by the trial judge who bender what you could argue was a compromise or a ruling that did not give us it clearly did not give us everything we wanted she found against us on certain points she was very careful in the way she looked at this case they've cited no prejudice of any objections that were sustained she says were sustained this was fully and fairly tried and the district is here and i understand why the appellate lawyers might be here today asking for this absolution by these legal arguments but i respectfully request that this court not give them that absolution their legal arguments don't are not accurate and in any event they were both waived and there is no legitimate argument that the damage things that happened before but we were entitle to reason we rely on two things for a lie on the counter question and it may be that we read it differently but i read the counterclaim as talking about events that occurred physical example in that case the complaint they were complaining that he wanted wages for one year that's what was in the pleading and then at trial there is evidence about many years where the man had not been paid and so that's what the damages the word in the court reversed and they had not yet requested access and they had not yet got their ducks in a row to start going with this development is another thing it does not matter it's not harm to them it's not harm to them and as we want  damages resulting from district interference as well as its cost and for such other further really isn't just equitable there isn't a word about the period of time there is no right but it was not only me that or not only a district that interpreted it that way your honor because this came up when the project company sought to in their complaint to add the new cars about five different claim which would have required proof of different elements it would have had required proof of more expanded period of damages tool years two years before this trial actually started and long before the deposition of the right for her to write but the fact that they have an expert who wants to testify and things that aren't in the district you and in the tropics you frame by the complaint frame by the counter claim that happens all the time and what's the proper remedy there you file your motion to bar the expert the district was surprised the early affecting them before they had fire title even if it had a general damages boss and they were entitled to rely on the detail ruling by the trial judge if that would be improper and unfair and it's not  until you're into the trial mick trial and their expert in the court of law is their expert we preserve the objection the court allows the expert to open it up to the full eighteen month period and all that ok so then they have to start responding with respect to the motion the three sixty two motion whether or not the district was prejudiced and there's a lot of discussion about that there was additional discovery there was a lot of time in the pleadings but that was not only that was not the only prejudice they want to him into at this additional possible for the two months that they'd put in their counter claim were modest or modest had the district been fairly fairly aware throughout the case that they were going to  i'm not sure i'm understanding right this book out if you would have been but were saying how are they prejudiced by not bringing it in this is a new account there could have been a whole host of strategic decisions that would have gone differently had they known it at an earlier point that the legitimate issues to be tried as framed by the feedings were the full scope that's not what they expected and they relied upon the trial court saying no you don't get that time for it no the trial court never says you don't get the events that happened between twenty five an odd equal off point wait and see never said that and i would suggest your honor though that where their counter claim refers to interference after they have taken title that's what the limits of the trial should have been and for them to come in and say wait a minute we want to talk about all kinds of interference long before we have taken title and that we have never requested an wish to be put up the gate was put up when you're earlier all they believe that what was being done or what was being requested was against the rights of one of the parcels that they were incorrect on that you know so so be it but it's not like they were just randomly trying to deprive someone of rights they were trying to assert their own stuff and their own expert your honor said that the earliest point in time when they would have been ready to move for work was in two thousand and stop so it goes back to that issue that i raised the fact that there's interference with interference doesn't cause any damages there's not a legal recovery for that and so if they were ready to move forward until two thousand and seven according to their expert now argument is that because it was so easy for them to get the financing in a choir they could have done that in two thousand and seven and within three and half months this would have all been legally perform and so you can't hold the district sponsible for the eighteen months it's not just interference it has to be interference that proximately cause them harm and that's why there's a problem here if i could have one minute to look at my notes so quick to see wonders if there's anything else  here to that the present company was surprised with respect to this version of economic loss again that was done i don't know maybe thirteen or fourteen days into the damages trial that was the first time that it came up you know with right around the time that their witness had first testified where the court allowed this expansive time period that when the district came into race economic l but the district rightly or wrongly expected that the court would not allow the expert to testify for the extensive period because they had all because of what had happened before with the pleading that had been submitted talk about i know you want to protect yourself from them talking about it and trying to get them to commit that yeah i think a while later practices your honor would be to find out what that's going to say and then you take up whatever issues with the court as to whether or not it's proper or not and so i don't think you weren't prejudiced by the trial court after previously the nine additional claim letting the case go forward on that basis all right if you could have one moment let me just say if i have anything to close and what that's confusing is some financial concepts here balance means the next big projection of the total amount of revenue that's expected to come in in the total amount of expenses how much cash you have in the bank on a particular days are relevant to that it's out of balance if the revenues are short for the total protection and it is not contested that it was short by two months and our point on that is it's speculation as to what what the bank would have done whether the bank would have cared that there was money in the bank or not or been more concerned that there wasn't enough money to get through the whole project which was really the issue that's really the issue