and if i may i'd like to reserve five or five minutes of the fifteen minutes very good in the ten minutes that i have a like to address three main issues which are on appeal of the first being whether or not the truck court aired in its may secondly is the issue relating to contract damages in the case and whether or not the plaintiff did in fact establish enough evidence to support an award of contract images and then thirdly whether or not the evidence supported a judgment in favor of a point of whether the consumer fraud attacked and whether or not the truck court's decision was against the memphis where the evidence so the first issue is with respect to paragraph twenty in this realistic contract between the defendant in my clients it is the courts where from the briefs the defendant out marketed and constructed a large complex an l gion consisting of townhomes and a little rice can really building they proceeded in a normal fashion with the townhomes it was during a hot market in two thousand and four two thousand and five two thousand and six all of two thousand and eight and they were selling them like hotcakes and the prices of those townhomes their pricing they also market at the same time from the same office through their completed ok has never been completed all the townhomes were completed but the defendant marketed and contract did with my clients as well as with fifty six other people for the sixty unit mid rise building and people had signed up signed their contracts and thought they were going to buy a unit in the mid rise building contractor violated that if the seller was unable or case the thought that the seller default provision was worded in such a way for first of all it it mentioned that if the seller couldn't obtain title from the city of elgin that was kind of one of the conditions but then it was on it says he if the contract is trim and aided for any reason only then the there are no remedies for the buyer except a return of the purchase money the reason that should that paragraph should not be enforced in this case as the trial court analyzed it in its march eight twenty eleven order is that because the defendant breach what is called the law and it's authority that was a breach in the truck court found that it was a breach is a breach because it's an attempt to wrongfully renegotiate the material term of the contract they told everybody your your price is going to go up because of construction costs of the contract did not provide that the seller could increase the price because of construction costs but this was a wrongful attempt to renegotiate material terms of the contract and then it it gives consents to everybody into my clients and says oh now you can consent to this price increase and if you don't going to exercise paragraph twenty and terminate this contract and you get your this money back and that's it it's established law and illinois that if a party breaches a contract then they cannot to buy land fill the post office the feds decked out in the question is law in a person and by what was the purchaser out on nothing because he could have sold it for a while but he lost his benefit of the bargain contract by a builder to build a house for a purchaser and the measure of damage there is a trick laid by the court is the difference between the contract price and the cost of constructing a similar building there is no requirement that the purchaser actually go out and build a similar building it's a measure of damages it's they lost the benefit of loss of the benefit of the bargain and there is a measure of damages it ended in a measure of damages you suggest that would be based on these letters sent out to the fact that somebody testified that there were agreements to documents in november in december of two thousand and five that they developed relating to how much it would cost the defendant to build this kind of a new building and in the purpose of that as well as the purpose of the testimony from christine camphor who said that they sold ten or twelve of the units based on the new prices in the letters they sent everybody was to establish the market value of these condos based on their own figures of cost of construction which is the measure of damages in rosser sistan to associate that's the measure of damages in this type of situation and a building that was under your belt theory when we write this if we had written opinion and from the amount of their purchase price that whatever the highest amount was that in other missionary i know that with that would have been sold been offered for sale i would that be right well i'm not going to it depends on the evidence but i'm rescission letter and here's our tables in our lists and it's going to cost us x dollars and this is the price this is the market price is the fair market price and that excuses our performance and my point is all the seven s which is in the exhibits is support for the market value based the cost of construction in this case i can't speak to another case i can't speculate about another case or another building i'm saying in this case for this building for these units and in right and in the end in my view it depends and i guess in the word sold if you except third definition of words so but a contract it is a binary string mint and in my view it was sold at that reflects market value that's the reason i asked the question did you want to go to a your uniform yes i do think you were fighting after yet with the defendants here the evidence i think was substantial with respect to the consumer fraud act now the defendants never hired an architect to finalize the plans for this building they never finalized the plants they never sent any of the work out to bid to suck on tractors they never saw financing they never had financing for this building what they did is that as a marketed these kind of mean units and then they basically decided to manipulate the market because they their town houses were selling like crazy in the prices kept going and they decided to rescind fifty a contract secluding mine my clients and go back into the market manipulate the market and in the february thirteenth two thousand and six letter itself there's a bait and switch in the whole theory here is that they employed a bait and switch scheme directed at the general public which was violated by the consumer fraud act when they first marketed these units because they did not take any serious steps built was always the same except costs then then i'm i'm using the term in a different way i'm talking about interesting for telling the general public that we are serious about constructing condominium units here's the model here's a price we can constructed for you at this price and that we will go forward they entered into fifty eight contracts for the sixty units and yet they didn't take any subset of action to really develop the building in their february thirteenth two thousand and six letter which is where they change their price they say they tell everybody including my clients that we were in the final stages we're in the final stages of the development and we receive title a why was that statement made it was vague to try to induce people to work to sign the consent so that it relieved the defended of any contract liability and accept the new price and go forward it is at the time this letter was written in february of zero six they hadn't done anything of a serious nature to move forward with the kind of million building nothing i mean this is a fraud on the public it is consumer fraud and maybe i'm not using the term bait and switch in the classic sense but it is it is there certainly deceptive conduct inducing people to come in to look to look at the model to sign a contract hire a lawyer to do everything that a serious buyer would do thinking that they were going to go forward with this building when in fact they hadn't even let it out to this is to subcontractors they had finalized their plans they had obtained financing they did nothing they were manipulating the market to see how much they could get how far they could push these prices up before and the other thing about it is you know this piece of property is the evidence demonstrating i i mean the defendant really had a very low basis in the property i mean they had  fied i mean it the townhouses themselves have changed the area significantly but i'm saying that if a decision is made between now and june twenty fourth team to go forward at least it would have i think the court has substantially recognised a couple things number one is that this building was never built it was never started the economy whatever those factors work the record is clear though that this property was being acquired from the city of belgian pursuant to a development agreement which was specifically referred to in each and every one of the contractors and well council has said that no actions were really taken by the defendant to implement a development that ignores the substantial amount of evidence which was introduced during the course of the trial of the continuing interaction between the defendant as the bellaver and the city of elgin to obtain zoning to work with the city and resolving environmental conditions floodway conditions and other engineering considerations which quite frankly took a substantial amount of time it is also clear that between october of two thousand and four and february of two thousand and six when this letter was sent out that the develop was continuing to work with its architect to accommodate the life safety in other code requirements of the city which with the escalating cost of construction was the reason that  these letters were sent because the cost that escalated so much as court observes i mean nobody really knows what the what the value of these units would be today but what is clear in the context of this case is that the plaintiffs did not introduce any competent evidence of sustaining a loss in february and march of two thousand and six when the defendant developer sent out the letter they sent out to return earnest money deposit with interest as is required by the condominium property act and that tender was refused by the plaintiffs in this case what evidence did the plaintiffs introduced during the course of the trial to sustain this claim for damages they introduced as their sole evidence of damages a price sheet from two in its may two thousand and eleven opinion the reason that it did was number one the lack of proximity in time was cases recognize the resale price is certainly competent and relevant to determine the extent of damages if within close proximity of the day to the breach at a minimum we were two years beyond the date of the breach of march of two thousand and six until this priceless from two thousand and eight the other thing which the trial court recognized in its correcting opinion of may of two thousand and eleven is that there never was a sale and recognizing the testimony of the sales agent who  testified that designation of sold on the saddam and was to indicate one that there was a contract to that somebody may have left at the positive on it or three that somebody was just interested in they they were holding it off of the market so indeed there never was a completed sale which i believe the reported cases required if you're going to use comp like that so what could the plaintiffs have done other than this there was no opinion evidence that was introduced during the course of the trial of this case of what a fifteen hundred or two thousand square foot two bedroom two bath condominium in this particular geographic area i was selling for work completed transactions in march of two thousand and six which is what the court term of the date of the breach to be there is reference in the trial transcript and  evidence that both of the plaintiffs were aware that there was another condominium development which was in the same walking distance of the strand victoria say no which was one of the attractive parts of this particular development they they like to go to the queen victoria which is their right to do so and this was proximate to it but there was another condominium development which number one could have been utilized to mitigate damages which the trial court deemed to be irrelevant because it just limited the damages to the return of the earnest money deposit but the other thing was is that there were transactions going on from which evidence could have been generated as to what the value of comparable units were during this particular time period none of that or no evidence of comparable transactions was introduced and no opinion testimony was introduced to substantiate a claim for damages and that was why the trial court when it reconsidered its earlier in said i find that there is only nominal damages of a dollar each and the plaintiffs are limited to the return of the earnest money deposit which was tendered to them you know many years before so we have a situation here were seven years after the contract was entered into the building that still never been built in the original complaint that was filed by the plaintiffs they did seek specific performance and of course that count of the original complaint was dismissed by the trial court because of twice trial court did recognises it should have that it was not going to supervise or require the construction of the building when there were so so many things that were really not subject to the court's control that i believe that the the courts the trial court's reconsideration which is found in its may two thousand and eleven memorandum opinion was the correct result in this case the inclusion in the contract of a provision that said this whole contract is subject to this development agreement with the city of belgian which contains a myriad of conditions which arguably some of which the city had never the only evidence that really relates to the consumer fraud claim is the evidence of the breach of contract in this case the only contracting parties who testified were of course the plaintiffs to the extent that there were other contracts those other contracts number one were never introduced into evidence nor was there testimony from any of the other potential purchasers of the property who quite frankly it it it's left to one's own imagination as to whether they were happy that the contract was terminated and they got there and it's money back since nothing had occurred in the sixteen months since or more since they had signed the trace it was  a the decision making of contracts or people who've contract it to purchase was really not going into in the evidence in the trial court the only thing that was that was clear is that the other potential purchasers all agreed to terminate their contracts and take back their earnest money with interest which is such as what the the kind of money and property act rick requires that the earnest money deposits be but back away it's was more on the resale price being two years later than the breach itself but in the schrader case of course the court also found that there had been a modification to the original agreements without i'm not a client has has yet to get a thank you from the plaintiffs that claim that they didn't make the investment in these tens of millions but that of course is probably irrelevant to that what is it that case at least majority opinion in that case recognise that a two year period of time was perhaps not proximate enough to the date of the breach itself but it seems to me that an appraiser an opinion witness could take a an actual sales price of a unit that he had sold in the year two thousand and eight and related that price back to what the value would have been in two thousand and six two years earlier and i'm sure the court has had other cases for it that have been in business situations of when upside down because of what has happened in the world in the general economy and things certainly was upside down in the residential housing industry during this period of time to the consumer fraud act claim as we spent a lot of time during adverse exam of the defendants themselves their testimony their documents to demonstrate how they had not taken serious steps and to build this building and how their marketing representations to the public were deceptions especially again the ferber thirty two thousand six letter e says we have now received title and have finalized development plans for the project which he admitted during trial was not true so in the end they did it to mislead the public including my client to sign the consent in order to get the public really to agree to the higher prices but then they refused the sinuses really worked out i did offer the slot well but they fell for the first line they fell for the first line and  end the first lie was were we this is this is the model the is the plans these are the prices here's the contract they want to hire a lawyer they thought they had a deal they waited i mean they were serious buyers and they like and don't like and so was everybody else and there was an article that we tried to introduce into evidence indicating the public outrage at this conduct in the in terms of the session involved but this is a consumer practice that was clearly deceptive and even with nominal damages into the statute of punitive damages or award a ball in attorney's fees or award of all because the attorney general simply doesn't have the manpower to prosecute and chase down this kind of stuff and this kind of stuff happens a lot and as part of the relief that we've requested is a remain and at least on those issues on damages on the consumer fraud side now with respect to  misconstruction of how we presented this case it was using their own cost analysis to demonstrate the market value a set on the day the breach for thirteen two thousand and six that was the of that evidence we put it in our final propose findings of fact to the trial court the peppered list showing twenty units under contract but only twelve are sold was introduced for the sole purpose of of evidence under the couldn't obtain an appraisal because it wasn't built every case is unique this is that the way we did this was to to show by their own evidence they're the experts the cost to build and under ross a buyer has been defaulted by breach of the builder's contract does not have to go out and buy another building the measure of damage is the contract price versus the price it costs to build a similar building at the time of the br