actually built its train station the two other remaining much of parcels are already utilized as service parking however pursuant to the match or agreement the seller retain the right to swap out or exchange those metro service parking parcels in exchange for building a parking deck and that's what the parties always refer to as the mattress well after this was approved as it's usually a development and extend my client enter to a purchase contract with the seller to buy about two hundred sixteen acres participated in the development process after approximately just under a year after my client spent over two million dollars on a title process those did approve my client's development plans which were dependent reliant on the m swap never occurred so my claim it eleven million dollars now for the t v development they contract it for but essentially for undeveloped farmland until the swap per the phase two in phase three closings did not occur and both parties declare one another  hear the right thing or is this the issue is when they when we got to the fifth amendment after we had spent over a year on approvals in the swap was marketed progress enter into this and they signed off on a development plan they they specifically used our plant was recorded as well to depict the property so i believe that when they included our plat into it in the pic the property which clearly shows the property swap that made it at least a condition issue and i think a part of that was because we did know of one between the fight between my chair and the seller and two we certainly didn't know what the seller sellers i guess representation to us that this was a very many positives mean this being mages pure performance look at the common element created by the fifth amendment and that this clause awards the same amount of damages regardless of this very the breach we purchase no phases they get one point three to five million an inducement to close it was a clear mechanism to secure a performance i think the elements have not been met i think as as we stated in our briefing that the evidence that was presented shows this summer suffered no damages at all so you but in this case they didn't prove actual damages something they've admitted they met in their response and in fact the evidence shows they had no actual damages in that in ten point eight million had their property fall in high school for free damages as evidence here shows or not but the which you're asking to be returned is a completed contract from before nor asking for the one point three to five million i don't think the eleven million unit make a claim of something i so everyone in this case is actually seeking to enforce the liquidated damages provision and show the provision isn't forcible under illinois law it's in force of all where the parties agree to it agree that it's going to be damages it's a reasonable estimate of actual damages and actual damages  provision is to secure performance it's not simply where there is a hope that it will secure the other party's performance i think all contractual provisions are intended to hope to secure your opposing of parties for one and that there were several cases cited by both parties where the courts found that the provision was in fact a penalty first of all was the head last case and that was indeed an employment contract piece where over time the employers damages would rise but under the penalty provision if the employee was actually required to pay less or damages over time in the court found because of the inverse relationship between those two realities that that that there was a clear that damages will be difficult in determining the future because the parties don't know what the time of the contact what's going to happen in the future which is why real estate is a proceeding really good example the heads you never know if if the value of real estate going to go up or down and how difficult it might be to find an actual buyer that the best case scenario for damages real estate would be the seller always finds another buyer and they can simply look at the difference between what it was sold or what it what the original contracts were that's often not the case  property and but what the ubiquity of damages provision actually kind of were here were things like your compensation for having the property off the market losing your opportunity for having the property off the market kind of your  basis of your dealing with their property you are right but i don't think those costs increase because the size of the property i'm sorry increase or decrease because the size of the property and its remaining is wall if you look at the drawings of the class that are actually attached to the fish in the sixth amendment they're not clear definite and certain depictions of the property and in fact they should include a property that everybody agrees is not  sale so for example the pictures actually show property outside of the boundary of what my client known to be a clue both the match up personals that g e wanted and the matter of personal ads they actually existed so i don't think that those drawings legal descriptions of the property they're included in the original agreement and keep in mind the amendments are only changing certain provisions of the contract the amendments are not full review revisions of the original contract and invoke the fifth and sixth amendment brief that supercross failed to preserve the argument for appeal i think that's incorrect it was raised in both opening and closing argument acts on trial when i when silver cross pointed out recover any sort of actual damage fees so you can't say their damages are the same after each phase closing that it's a reasonable estimate damages they would suffer after each  the as the fifth amendment stated and when you're in you're looking at contract modification you got accepted at the time of the modification we recreate a new contract when they enter the fifth amendment we didn't get any credit for that or responding positive that the phase one close it would result in a windfall homeward for them after they get eleven million and i think how and when they got to that alex again and i think when they included that provision specifically holding it back the purpose of that was not money deposit the amount of the quid damages is increasing in during the remaining performance was the remaining purchase price so i think those are those are two very important cases that apply and show that this clause was on the force  songs that have been paid i think the the fact that they're claiming they all this last time an opportunity but at the same time also paid extension fees i think it's almost double consideration i think to the swap i think you know the mere fact that he came in the trial in describe the feasibility and how it was essentially a no go call it would have been nice to know that from the get go and i think they had