in this case the real issues that we've raised deal with whether the circuit court went outside the contract that was signed by the podiums to impose on the world for damages for reconstruction of a unit in a condominium building and to impose a five thousand dollars plus ancient against misc ober with regard to the reimburse it's our contention that the purdy's contract specifically set out what extras work and there was a procedure not only for approving extras but also what including certain items they refer to a kosher kitchen the contract doesn't talk about a kosher kitchen but that there was there would be two kitchens in the human you look at the second page of their allow the person moving in to set it up to be kosher i don't want to necessarily get into the room all of the rules are quite complicated but basically the basic premises you separate meat dishes  disadvantage to most people the potentially can be a disadvantage but it was agreed upon by the builder belmont harbor before the building was ever constructed they  they should've known that there was a risk because they were you know part of the contract they signed a contract that had a mortgage contingency and not only did they accept that risk but even was constructed according to her wishes and it was negotiated to be constructed according to her wishes but f it was apparent that the deal would not close and after belmont harbor s provision the mortgage was not obtained is found by the circuit court and the contract was terminated pursuant to the mortgage contingency provision and the markets contingency provision is very clear that correct when they negotiated at the rate beginning when they negotiated there was a formal architectural plan for the all of the apartments or all of the units in the building that contra the contract called for the architect to redesign this particular part of the building to provide for a single unit where two had originally been planned so you're basically saying it's not in the country if i was the extras that misc ober ordered and signed off on the original purchase price took into effect what the cost of construction would be based on the plans it has changed not approved as required by the contract and if you look at the proceedings in the state in effect there was the sign going interplay between the parties in this better fact even as late as june of two thousand and three there were still signed change orders which work extra it's a missed call burgard knowledge is that those extras which totaled about eleven thousand dollars should be subtracted from escrow there was another four thousand dollars that there is a dispute about whether she waived the requirement to sign the change order because she was aware that these this work was being done but again that's only four thousand dollars worth of work we contend there was not a waiver because there was no intent to specifically approve those the arguments made at the circuit court and the evidence showed that there was an assumption that because she didn't object to them that she had waived her right to sign off on the on the sex tra but the the main part of the dollar amount that is in controversy is forty six thousand dollars for changing the building a year and a half to two years he after the deal was terminated by belmont harbor now belmont however and miss goldberg have a dispute about whether the contract was no embroider because of her inability to get a mortgage ultimately the circuit court found but we're saying that what was done the work that was done a year and a half to two years later after belmont holder acknowledges that they terminated the contract cannot be an extra and under the contract the only things to be subtracted from the escrow are for it the extras we all face risks in in everything we do and in some not close and we have to change the structure of the building to make it more marketable that miss goldberg would pay for that they could have done that but they didn't and therefore they assumed the the that that if the mortgage contingency prevented closing that they would have the property as they agreed to construct it when they signed the contract they did not contract that assumption of risk away they are trying to get the court to go back years later and correct their mistake in drafting the contract not to provide for that contingency they were aware of the risks and they took sufficient funds ultimately though what the judge or thing i want to say that i will concede that this corporate should not have taken the money out but that's different than whether she violated a court order and whether she should be sanctioned for that and the court did impose a sanction should not be taken there was no legal provision no legal theory that justified that because there was no breach the contract only provided for deducting extras from the earnest money and belmont harbor assumed the risk when they did not put some provision in the contract contract to address the issue that if the sale did not go through because the this is this this building that soon question is a seven story building the seventh floor is made up of two parent houses the other six floors are set up for for permanence or for  this deviation structural change requested by ms goldberg was a huge change and because of that the developer mr mccauley was sitting here  requested a ten percent escrow deposit mr goldberg wanted to put down five percent but mr mccauley recognized that these construction changes the structural changes were huge he wanted extra's the unit for plan for combined units this was actually designated in the original contract as a as an extra and judge b determine that this that the two combine units was an extra to begin with because it deviated so substantially from the original or point but wasn't that it didn't use the word extra right and there's a definition elsewhere in a contract which does not covers the contracts with the architectural drawings but under the phrase extras it didn't define the idea of putting into apartments together as well judge i can show you it is it is labelled as an extra mr mccauley had the foresight to say this could go i need ten percent because this is different this is unique would that also indicate that he was a concern and correctly so obviously not just in hindsight that this may go south that he was i can't they take kind of a risk well i do agree he could have put that language in the contract but i think what judge berkowitz was attempting to do is almost a rescission here where he was trying to put the two parties back to the position that they were in before the contract was entered into and given his the amount of judgment that he awarded the defendant i mean this this  refuted the contract that in july eleventh i believe that two thousand and three and so mr mr mccauley have the option of claiming quantum merit and it's going back and forth whether or not this contract for the entire plan that she's redrawn for the for this for these two units i think specifically they would she would they objected to the plumbing work and the electrical work in the wall the work that was done to do that pastoral too so you could go from one kitchen to the other so i mean she's generally when she signed the kind correct i know over seventeenth of two thousand and one she's agreed to those structural murphy's my problem is and that is the amount of money it was asked for for that so if you look at the period of time in the time she took the money away right to the tempest paid back or at least the portion of the return it was right then interest was substantially lower one eleven hundred somewhat red as opposed to five thousand dollars and so wonder what theory could just park was do what he did other than do the right thing well i think you could do this under the the theory that there was an implied order that she would keep the since she filed a law afraid she made an oral motion during the pretrial which took place i guess on january twenty fifth of seven and january thirtieth of seventy that she be allowed to have these all of these funds judge goldberg den a hearing on this matter on november fifteenth and she makes an opening statement where she's complaining about the interest that this these money supposedly are making you in the astral account knowing full well that she's already removed it i mean i think she could be sanctioned for that i with these i think it would be well i think it's i think it's a violation of the implied order that she not remove these funds it also breaches the contract i think i feel that you know that those funds were supposed to remain the other thing too is is that she's a real estate broker amongst many other professional licenses that she she has this escrow account was set up as a broker escrow which means that only the mr mccauley was the signatory on this  knew full well she's she's she's not she's invested in multimillion dollar properties bought and sold lease she's got a real estate brokers license she knew exactly what she was doing she could initially claimed that they said that because there was no equity on the account that she had to go in there and take it out she could have put a dollar into my account so i just i nor it's somewhat nebulous as to preaching trial court's orders i mean it's not the you know it's it's nat well defined it's the contempt or the supreme court rule to nineteen sanctions for discovery violations but there are there is case law out there that says that if the court has the inherent power to sanction somebody for violating its court order i think the implied order was that that money stayed there until judge berkowitz made a decision one way or the other and s to the reconstruction costs i just believe that under quantum errant in a rescission type theory that these costs and he had to change the two units better than one unit back to one because he had to remove they all everybody that came in and looked at they said they liked the space but they didn't like the kosher kitchen set up and they didn't like the the gray marble in the gray color scheme in the bathroom so those had to go the trade for a year and a half to two years to sell it he couldn't this was back when that the real estate market was pretty hot and going pretty i understand the idea that you do the right thing fortunately in some cases the world turns over and people are caught and changes in the economy all sorts of things happen for your people or in the circuit court who can't pay their rent no but what he should have done is follow the law that has specifically says that a judge does not have authority to change the terms of the contract even if circumstances change the contract is binding on the parties and under the rule of law and not the rule of a particular person's view of what is just in the under these circumstances that is what should have been enforced what the contract you know how to sell these things that you know if you look at the court record though that that units sold for six hundred thirty i believe it was eight thousand dollars ten the original contract price that was considered when miss goldberg sank her contract and this is set up in the contract with sticks six thousand and eight plus ten thousand for  that he took when he signed the contract or three torturous he took when he greeted mr goldberg to build this thing the way she asked correct and as your honor pointed out he could have put that risk on her by negotiating different terms into the contract to protect himself from that risk he chose not to and so he bears that risk under the contract law not the log decided by one particular judge but the law that has been developed over multiple decisions i think there was some discussion at the end about the case were about reimbursement for tearing down property i'm not sure if mr shear was referring to the case of brewer custom builder score forty two illinois public third six sixty eight but if you look at that case there was there was an issue about whether cost of reconstruction should be done in the court decided alternately that you have to look at what the cost of reconstruction is compared to the value and you don't force someone to pay for reconstruction if it is substantial and you look at the