center to a level two center with enhanced capability now to pursue that endeavor the state of illinois required the center of you directed and supervised by a parent intelligence my client dr cardwell a doctor with over twenty five years of experience and maternal fetal medicine and that this qualification more over the doctor had previously directed the transition of carrying out at centers at two other centers in the country and has served as the director of maternal fetal medicine at every medical center where he work requests the doctor say correspondence regarding his financial requirements and issues regarding the proposed program program the doctor in his correspondence to dr hagen's wrote my financial needs either a guaranteed loan or a loan to be drawn upon that is forgiven after a number of years and the directorship of the maternal fetal medicine now and december of two thousand and seven the dr was presented with the recruitment assistance agreement which the contract of the rights from the breach of contract claim to dr hagen that had time represented to the doctor that the contract for the directorship was being drafted now without understanding the doctor signed the recruitment assistance agreement under the terms of the recruitment assistance assistance agreement the doctor would relocate his practice to normal and he would leave the development of the perry needle program and exchange he would receive a four hundred fifty thousand dollars income guaranteed loan  so that would mean over a period of twelve months he would receive the sum of four hundred fifty thousand which would be forgettin after working for twelve months and the amount of one fifth plus the corresponding  interest now in september of two thousand and eight nine months after the dr began his practice that meant he still had not received a contract for the directorship so in september two thousand and eight the doctor wrote a letter to mr h that letter to the doctors that significant that it was titled proposal goes that require us to make an inference regarding whether or not your client thought that he was automatically going to be the director and whether or not there was  agreement on that well i would suggest that if you look at the and hire any of that letter even though it was just in time even though it was entitled proposal if you look at the latter he the doctor explains how very suggestive in nature when i assume suggestive i'm saying proposal like you know this is what i think we should do this is what i am asking that we do not this is what we will do based on our sleeve but i am the  and there is also i don't know if you also self saw in our response the motion for summary judgment we also have correspondents from another member of the hospital where they were discussing developing that program it was  you know before the contract was even entered they had members from roman who were discussing with dr cardwell regarding the development of this program so although the doctor's letter is entitled proposal you know this was from the very beginning says the doctor was recruited to be the development of the perry needle program so all those considered proposals you know it's entitle proposal from the very beginning the hospital was you know recruited dr cardwell and ordered to develop the program so it wasn't as using the word proposal is not exactly the word choice that should have been us it should have been used because from the very outset they chose dr cardwell because of his qualifications and his experience in doing that transitioning other medical centers to other institutions hunt did respond to that letter two weeks later and he did commend the doctors and put on the program development but ultimately concluded that the hospital could not enter into the agreement after time fourteen months program nor did it transition at center from a level two to a level two with enhanced the civility is now a doctor would never have signed the recruitment assistance freeman without a clear understanding that the perry needle program would be developed and that he would be appointed the there's no there's nothing to support when the doctor actually had a conversation with a hospital that you know fraud was involved in this free treatment assistance agreement  fraud whenever you rely upon third parties approval and i think our case is different because the doctor was obviously the only qualified candidate in order to make this a level two p had all been filled at the shopping center and that certain commercial leases certain stores would be in this mall which is different from our case where if a hospital wanted this level to carry needle center with enhanced capabilities as the applicant obviously they are the driving force so although it did require id each approval this is something that if the hospital really wanted it they would pursue it to the end when it's  true that the hospital is the driving force behind that so i guess my question is what difference does that make you if you count with the r d that would impact whether or not you can report on what you're trying to do i'm sure they would do their if they want to pursue it but that doesn't change i mean see how that changes the fact that you're on the third party to take some action before you can actually do what you're trying to do i think the distinction between what happened  on school and why they decided that you can't say that it requires a third party's approve all that that's not actually tried as opposed to our case where this is a hospital they recruited the doctor in order to develop this very nato center with and can skip abilities they needed him and ordered zero direction to provide the center it does require id ph approval but the hospital is the one who is ultimately as the applicant it's not like ivy ph approaches the hospital and says hey would you like to be a level to enhance center whereas the different factors that the court found a turn of his term a tip and console are truly things sort of outside of their control whether the road is going to be completed that's not something that that the mall would be like the driving force behind them and the other issue is in that particular case where you know the representation that it was fully a lease at the times of the mall was fully least at the time in that specific commercial businesses would be at the small is completely different from you know the hospital in this case  have has an application before an id ph or proveable of their hospital so obviously what we've been talking about is the first element from the inducement which requires that there is a false statement of material fact i've already talked about kung school and why we argue that is distinguished all the other cases all which was cited by the hospital and that's the case which says that promises a future intent are not action e now in that case it was the plaintiff was an employee and she was applying for a job and the representation in that case was that another employee would be fired and that she would be reassigned their accounts so and that case you know the court definite the court said that you know promises a future intent are not actionable and we would argue no that's unlike our particular case and i again state it's because the doctor was uniquely qualified for this position the recruitment assistance agreement says that he was recruited to leave the development of the parent program which is completely unlike  misrepresentation and all where they said you know we're going to fire another employee and give you their half it doesn't boil down to the fact that when he signed the agreement agreement there was no agreement with respect to the center for his directorship and now he says something that was recent that would take place in the future i mean i know you couch it in your brief in terms of oh it's being put together right now but i think that's a to mean the bottom line is it wasn't ready at the time that he signed the recruitment agreement and it was something that was going to take place in the future so isn't that basically him forceful broken promise i would just my correspondence before he entered into the retirement assistance agreement the hospital knew from the very beginning that this was just not you know you come practice at the hospital and do carry intelligence it was about he was going to be the director of the maternal fetal medicine program so you know the hospital doctor to question whether when he was given the recruitment assistance agreement where was a contract the directorship but when dr hagen's told him that the second with the qualifications they could but you left going back to the retirement assistance agreement they even put in their contract that dr cardwell you know he was going to leave it not he's going to be the director right and i would just say he's the only qualified person so unless they're going to start an entire new search for somebody with these qualifications which as i understand it not many doctors have these qualifications in the beginning so they would have to but i would argue that why would they have started with dr cardwell from the very beginning get all of his input from the very beginning and then just go with a different candidate which i don't think it's clear from the record record if there is another and her promise of future conduct that that had not been executed for a directorship of a program that did not exist so first he would point to well established law which states that one who intentionally deceives another is not to be heard to is not to be heard to say and defense of the charge of fraud that that innocent party should not have trusted so i would say this is exactly what's happening here is that they're saying the hospital's arguing w was on reasonable for the doctor to rely upon the fact that this second contract the directorship was being drafted when there was no program well again i would argue the facts and circumstances of this case is that they started the negotiations with the doctor from the very beginning of we're going to transition the medical center and addict and normal and away from a level two perry needle center to a level two it and the hands capabilities so they've basically strung him along and  another issue that the hospital raises is that this issue of the integration costs which top the hospital has argued makes the doctors reliance and reasonable now the integration clause does say this agreement is the entire agreement and understanding of the parties and supersedes any and all agreements verbal or otherwise between or among the parties concerning this subject matter so looking at the director of his reliance on the directorship was reasonable he was the only qualified candidate and he was recruited to develop tells you program at the moment and the state of illinois required that it be direct and supervised gratification a party must with full knowledge of the act manifest an intent to abide by and be bound by the transaction and intends to abandon his right to recover damages as a result of fraud have parties intent is a question of fact now good afternoon may it please the court my name is erica harold and i represent the athlete advocates roman medical center now refer to them as a hospital for the purposes of brevity and clarity here this afternoon outscored this case is about an individual who does not dispute that he accepted a four hundred fifty thousand dollar loan signed a promissory note promising to repay it and then simply refused to repay it despite dr hardballs attempts to set forth reasons why he should not be required to repay it the circuit court properly entered summary judgment favor of the hospital and its ruling should be a firm for three key reasons on the last point there is one of the last points that the council was aggressive having to do with one hearing and one ruling and the court just made that ruling as to all of the issues you would agree that if we were to affirm the trial course granted summary judgment to the hospital of the of the  we think there are three key reasons to affirm the court's ruling in its entirety first dr karp will cannot show that he suffered any harm or detriment as a result of executing the assistance agreement and harm or detriment a necessary element of a fraud in the inducement counterclaim or affirmative defense second doctor carvel cannot show that any reliance on receiving this second purported directorship agreement was reasonable third to the exten by the hospital caused dr carville to either resign from his prior position or to relocate to bloomington before moving to bloomington dr card will have been practicing at a hospital in missouri had hospital proof privileges there it's undisputed the doctor card will resigned those privileges several months prior to ever beginning negotiations with the hospital it's also in just a few did the doctor card will move to the bloomington normal area for personal reasons and he had planned to move there prior to ever meeting with any representatives from the hospital dr carvel also did not lose in the opportunities as a result of signing the assistance agreement the agreement into which the parties entered provided dr cargill with a four hundred  fifty thousand dollars income guarantee loan he could use a loan to pay for any expenses they'd be incurred while starting his practice there for the first year and it ensured that he would have a certain amount of money however although dr card will establish privileges at the hospital and became a member of the hospital staff contractually he remains an independent contractor and he was allowed to establish medical privileges of other local hospitals as well dr cargill also had no obligation to give to the hospital any of the money that he earned during his private practice moreover the because the four hundred fifty thousand dollars was not a salary but instead it was merely a loan there was no ceiling on the amount of money that dr cardwell could have earned during that first year or  subsequent years it's also undisputed that dr cardwell cannot identify a single opportunity that he forewent or any other offers that he declined when executing the assistance agreement indeed if he did not want to continue practicing in the bloomington normal area he was free to relocate and leave all he had to do was repaid the money that he borrowed and the part that had not been forgiven simply put being required to repay the money that you would make you borrowed is not a harm and dr cardwell cannot demonstrate otherwise doctor card bills arguments that he suffered damages are without merit dr carnivals now arguing for the first time on appeal that he was damaged in the amount of three hundred thousand dollars for five years but notably dr cardwell does not allege that the hospital ever actually agreed to pay him three hundred thousand dollars from them for five years moreover he acknowledges that he was the one who proposed those terms nearly nine months after the assistance agreement was executed and after he had been practicing in the hospital notably in his proposal he doesn't reference any prior promises he doesn't reference any prior agreements he doesn't reference that these terms are have ever been discussed with the parties prior the fact that it's characterized as a proposal means this is dr card bills offer of terms nearly nine months after he's been working in x he did that assistance agreement that the hospital did not agree to his offer does not constitute a compensable harm dr carvalho also is now arguing that he's at least entitle to nominal damages but in order to be have nominal damages you first have to show an underlying harm or detriment that you suffered in the first place and dr cardwell cannot do that notably dr cardwell fail to raise either of these arguments for damages in either opposition to the motion for summary judgment or in his motion for reconsideration accordingly we believe he should be found to have forfeited them on appeal because they were not properly presented for the trial court this inability to show damages is fatal to the and affirmative defense dr cardwell also cannot show that any reliance on receiving a second directorship agreement was reasonable dr carville's contention is that when entering into the assistance agreement he relied on the promise that a second contract for directorship was being prepared and would be presented to him shortly after executing the assistance agreement even if this is taken as true the record shows it in the such reliance would not  first it's undisputed that dr cardwell knew prior to executing the assistance agreement that he in the hospital had not agreed on any of the material terms that would govern a directorship contract it's also and disputed that dr cardwell knew prior to executing the assistance agreement that he was not even going to receive the hospital's offer of those terms until executing the assistance agreements since dr cardwell did not even know what the terms of the hospital going to propose would be there was no way he would know whether those terms would be acceptable to him indeed at the time of signing no legal contract for a directorship actually existed because the party did not agree to any of the essential terms that would govern such an agreement at most an agreement to agree on future contracts which has always been held on and forceful under illinois law the arguments of dr cargill sets forth try to show that his reported reliance was justified or simply unavailing dr card contends that he believed that as the hospital c e o dr hagen was able to make representations on behalf of the hospital and dr cardwell has argued in his brief that he had no way of verifying whether d were true both of those arguments for of no legal consequence here because regardless of whether dr harville believe dr hagen had the ability to make representations on behalf of the hospital or regardless of whether dr  to be able to verify would talk to hagan was doing dr cardwell in fact knew prior to executing the assistance agreement that no terms of actually been agreed upon so the notion that somehow there was actually a directorship conduct are not actionable as fraud now i understand the character trying to characterize it as present tense saying well dr hagen said he was presently working on a contract that is misleading because the contract itself did not exist at most what could be said was that dr cardwell was working on a paper that would contain the hospital's offer of terms that would be presented to dr cardwell but dr carville knew at the moment of signing that he had not received those terms he had not agreed to those terms and there had been no specification of what the terms might entail so then it's unreasonable to say you were relying upon that is being important t properly found that dr cardwell did ratify the assistance agreement it's in just a few the doctor cargo received a benefit from executing the assistance contract he accepted the benefit of a four hundred fifty thousand dollars loan he also accepted the benefit of a forgiveness a forty percent of that loan plus the corresponding interest rate it's important to know that the hospital did not suit dr cardwell for the entire four hundred fifty thousand dollars loan it was only the portion of the formula during from two thousand and seven and two thousand and eight that was called the guarantee period so from my understanding we have an affidavit submitted by aaron klein the v p of finance for the hospital and that means was he earning a salary on top of this home or not he was not earning a salary from the hospital he was earning money from any private patients that he saw and all of that money went directly to him and he had no obligation and know the record doesn't reflect whether he was practicing in other hospitals or not but he was free to do so if that was something that he wanted to  do he fully accepted the benefits of that loan and the loan forgiveness and the interest and at this point in time and dr card both claiming that he rescinded the agreement that doesn't make sense based on these facts  rescission requires putting the parties back into the place that they would have been prior to the execution of the agreement if dr cardwell had in fact rescinded this agreement dr cardwell would have needed to pay back the entirety of the loan nothing on the record reflects a doctor card will pay back the loan in fact it shows that he retained the benefit of that long and simply deciding that you're going to leave after accepting the benefits and not repaying it doesn't constitute rescission the claim of fraud then he ratified the contract so i argue that it's distinguishable from our case because in our case the doctor had received a full amount of four hundred fifty thousand dollars loan before he learned of the fraud that's another issue in this case is when to the doctor learned of the fraud the hospital argues that the doctor learned of the friday after mr hogg responded to his letter in october of two thousand and eight however i would argue that you they were not cool to be offering him a different issue i think it's the requester that facts yes and he says he did admit that in two thousand and our october two thousand and eight that he knew he would not be given the directorship however i think there's still a question of fact because even and then mr hunt's response he said we're not able to enter into this agreement after this time he never said we're not developing a perinatal program at this hospital we're never going to make your director what mr we previously agreed you will be the director this is we were getting started you know yes i can agree with that and i would also say even in mr hans mr hans response to the doctor he never said like the terms of your directorship are unreasonable he just said we can't enter into the agreement at this time the other case that was cited was golden and that's another case where there was a settlement agreement however in that case the plaintiff had discovered of the fraud before he accepted the settlement amount and released his claim and then even after doing that he sued for fraud and in that case the court specifically explained you can't discover a fraud except the benefits of a contract and then decide to sue or drop which again in our case the doctor that did not discover the fraud until after he had received the full amount of the four hundred fifty thousand dollars l