2021 IL App (2d) 200244-U 

No. 2-20-0244 

Order filed February 23, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

PEAK EXTERIORS, LLC, ) Appeal from the Circuit Court

) of Boone County. 

Plaintiff-Appellee, ) 

) 

v. ) No. 17-AR-42 

) 

AMY GOEBEL, ) Honorable 

) Ronald A. Barch, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE HUDSON delivered the judgment of the court.

Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.

ORDER

¶ 1 Held: (1) The trial court’s finding that plaintiff substantially performed its obligations 

under the parties’ contract in a workman-like manner was not against the manifest 

weight of the evidence; (2) defendant forfeited her contract-ambiguity argument by 

failing to raise it in the trial court or adequately developing it on appeal; (3) the trial 

court did not abuse its discretion in failing to exclude one of plaintiff’s witnesses 

from the courtroom; and (4) the trial court’s finding that plaintiff did not violate the 

Consumer Fraud and Deceptive Business Practices Act was not against the manifest 

weight of the evidence.

¶ 2 Plaintiff, Peak Exteriors, LLC, filed a complaint for breach of contract in the circuit court 

of Boone County against defendant, Amy Goebel, alleging that defendant failed to compensate it 

for replacing the roof on defendant’s home. Defendant filed a counter complaint which, as 
2021 IL App (2d) 200244-U 

- 2 - 

amended, alleged breach of contract, breach of warranty, and violations of the Home Repair 

Remodeling Act (815 ILCS 513/1 et seq. (West 2016)), the Consumer Fraud and Deceptive 

Business Practices Act (815 ILCS 505/1 et seq. (West 2016)), and the Home Repair Fraud Act 

(815 ILCS 515/1 et seq. (West 2016)). The matter proceeded to arbitration, following which the 

arbitrators found in plaintiff’s favor on both its complaint and on defendant’s counter complaint. 

Defendant rejected the award of the arbitrators and a bench trial followed. After considering the 

evidence presented by the parties, the trial court entered judgment in plaintiff’s favor in the amount 

of $14,983.56 plus costs of suit on its complaint and against defendant on her counter complaint. 

Upon defendant’s motion to reconsider, the court reduced the award in plaintiff’s favor to 

$13,108.60 plus costs of suit. Defendant subsequently filed a notice of appeal. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Early in September 2017, Austin Jacobsen, a field manager for plaintiff, encountered 

defendant while looking for homes with hail damage. Jacobsen approached defendant, and the two 

began a conversation. As a result of their discussion, defendant contacted her insurance company, 

AAA Insurance. A couple of weeks later, Jacobsen returned to meet with the insurance adjuster 

who was present to inspect the damage to defendant’s roof. The insurance adjuster prepared an 

estimate of the amount to “repair or replace the damaged items or structures noted by the adjuster 

at the time of the inspection.” The replacement cost value estimated by the insurance adjuster was

$18,069.15. 

¶ 5 After defendant received the estimate from her insurance company, she contacted 

Jacobsen. On September 28, 2017, Jacobsen and his boss, John Vecchio, met with defendant to 

review paperwork and sign a contract for a full roof replacement on defendant’s home. The 

contract, which was for a total of $17,864.02, provided that plaintiff would “tear off” the existing 
2021 IL App (2d) 200244-U 

- 3 - 

shingles and underlayment and “replace” the underlayment, ice and water shield, flashings, and 

plumbing boots.1 The contract also provided for the installation of shingles, roof vents, and fascia. 

Regarding the type of shingle, the contract required plaintiff to “match existing.” As to the color 

of the shingle and the roof vents, the contract required plaintiff to “match.” In addition, the contract 

required plaintiff to obtain a building permit “if applicable.” Defendant signed the contract on her 

own behalf. Vecchio signed the contract as plaintiff’s representative. 

¶ 6 The building materials were delivered in advance to defendant’s property. A few days after 

the delivery, plaintiff’s crew began replacing defendant’s roof. The work took two days. Defendant 

refused to pay plaintiff the amount due under the contract for the work performed. Accordingly, 

on November 13, 2017, plaintiff filed a complaint against defendant in the circuit court of Boone 

County for breach of contract. Defendant subsequently filed a counter complaint, which she later 

amended, alleging breach of contract, breach of warranty, and violations of the Home Repair 

Remodeling Act (815 ILCS 513/1 et seq. (West 2016)), the Consumer Fraud and Deceptive 

Business Practices Act (815 ILCS 505/1 et seq. (West 2016)), and the Home Repair Fraud Act 

(815 ILCS 515/1 et seq. (West 2016)). The matter proceeded to arbitration. The arbitrators found 

in plaintiff’s favor on both its complaint and on defendant’s counter complaint. Defendant rejected 

the award of the arbitrators, and a bench trial was held on October 28, 2019.

¶ 7 Before the trial began, defendant’s attorney made a motion to exclude witnesses. The 

following exchange then occurred:

1 The $205.13 difference between the insurance adjuster’s estimate and the contract price 

was due to gutter work that was not part of the contract.
2021 IL App (2d) 200244-U 

- 4 - 

 “MS. VECCHIO [Plaintiff’s attorney]: Judge, I have John Moore. He’s an owner 

of Peak Exteriors as well and then Austin Jacobsen; he will be our first witness.

 THE COURT: Okay. 

 MR. CHOSTNER [Defendant’s attorney]: I thought Mr. Moore split off from Peak 

Exteriors Rockford and is now operating out of Peak Exteriors in the burbs.

 THE COURT: I have no idea.

 MS. VECCHIO: I don’t know why that matters. It’s still Peak Exteriors. He’s the 

owner of Peak Exteriors with my brother.

 MR. CHOSTNER: If it’s a different— 

 THE COURT: I have a Peak Exteriors, LLC.

 MS. VECCHIO: Right.

 THE COURT: If that’s a party and an owner, that person will be able to stay.

 MR. CHOSTNER: I understand, judge. I’m just wondering if perhaps when they 

split, if he formed another LLC.

 THE COURT: Has there been a split, or are they still part of— 

 MS. VECCHIO: Peak Exteriors, LLC.

 THE COURT: I can’t answer that question without representation from one party 

to the other as to what the current status is for Peak Exteriors. If somebody in the courtroom 

is an owner, then they can stay. If they’re not, they’ll have to leave.

 MS. VECCHIO: Right. They’re both owners, Judge.”

The following evidence was then adduced at the trial. 

¶ 8 Jacobsen testified that it took two days for the construction crew to replace defendant’s 

roof. Jacobsen was present the entire time the crew was working on the project. Jacobsen identified 
2021 IL App (2d) 200244-U 

- 5 - 

a group of photos showing the old roof and the new roof. At no time during construction or upon 

completion did defendant approach Jacobsen to indicate that there was a problem with the color 

or installation of the roof. When the project was done, Jacobsen requested payment from 

defendant. Defendant never tendered any payment. Jacobsen acknowledged that the ice and water 

shield “was short just a bit” at the far back left slope of the roof. He also admitted that the insurance 

estimate contained line items for detaching and resetting gutters, but this was not done.

¶ 9 Moore testified that he has been a “member” of plaintiff for almost two years. Defense 

counsel moved to exclude Moore as a witness on the basis that he was not a member of plaintiff 

at the time the contract at issue was executed. The trial court overruled the motion on the basis that 

Moore is currently a member of the business. Moore then testified that he was familiar with the 

contract executed between the parties. In particular, he testified that he sent the material order list 

to the supply company, scheduled the delivery of materials, sent the labor order request to the 

roofing subcontractor, and coordinated with the field managers. Moore testified that he does not 

order materials based on the insurance documents because they are usually incorrect. Instead, he 

employs a satellite-measurement service to obtain the roof measurements. Moore explained that 

this allows him to order the materials “based on the actual project.” Moore testified that plaintiff 

would not bill the insurance company for work not actually performed. 

¶ 10 Moore testified that he ordered the shingles for defendant’s project. The original shingles 

on defendant’s roof were CertainTeed Landmark, 30-year shingles. Plaintiff replaced those 

shingles with GAF Timberline architectural-style shingles in pewter gray, which has a 50-year life 

expectancy. In Moore’s opinion, the GAF shingle is a better shingle than the shingle previously 

on defendant’s roof. Moore also testified that it is not necessary to detach and remove the gutters 

to install a new gutter apron. Moore acknowledged that plaintiff did not obtain a building permit
2021 IL App (2d) 200244-U 

- 6 - 

for defendant’s project until after the roof had been completed. Moore attributed the failure to get 

a permit earlier to “an oversight.”

¶ 11 On cross-examination, Moore testified regarding the permitting process. He noted that once 

a permit is obtained, an inspector will either physically come out to the location or ask for photos 

at various stages of the project’s process. Moore testified that the first time plaintiff was aware of 

defendant’s complaint regarding the color of the shingle was when plaintiff asked for payment. 

¶ 12 Vecchio testified that he is an owner of plaintiff. According to Vecchio, at no time did 

defendant provide him with the name or manufacturer of her existing shingle. Defendant did allow 

Vecchio to remove a piece of shingle to try and match it. Vecchio took the sample to plaintiff’s 

supplier and obtained the closest match. Defendant agreed to this procedure. After the roof was 

complete, defendant indicated that she did not like the color of the shingle that had been installed. 

Vecchio testified that defendant did not voice any concerns about the color of the shingles while 

the work was being performed. Further, she did not notify plaintiff of any problems with the roof 

other than the color. Vecchio testified that at no time did plaintiff receive any payment from 

defendant. 

¶ 13 Vecchio was aware of the shortage of the ice and water shield. He testified that to rectify 

the problem, a “small portion” of the roof’s shingles would have to be removed. The ice and water 

shield can then be applied and the shingles relaid. Vecchio estimated the cost of the work at $880. 

Vecchio testified that the removal and replacement of the fascia was to be completed after the roof, 

but work on that phase was not done due to the payment dispute that arose between the parties. 

Vecchio also acknowledged that Peak did not obtain a building permit until October 20, 2017, but 

noted that the county allowed plaintiff to “pull a permit late.” 
2021 IL App (2d) 200244-U 

- 7 - 

¶ 14 Defendant testified that her house is located in Winnebago County. Defendant related that

she told Jacobsen that she wanted a shingle that is “exactly what’s on [her] roof right now.” 

Jacobsen told defendant that his boss would be able to match the shingles. Later, when Jacobsen 

and Vecchio met defendant to sign the contract, she reiterated that she wanted “the exact same 

shingles that were on the roof.” Defendant referred Jacobsen and Vecchio to the builder of the 

house to obtain information about the type of shingle on the roof.

¶ 15 Defendant testified that the materials for the project were delivered to her home on a 

Wednesday. The work began the following Monday, October 16, 2017. Defendant was present the 

entire time the work was going on except for an hour and a half on the first morning of work. 

Defendant testified that she repeatedly told Jacobsen during the installation that the new shingles 

did not match the old shingles. In addition, at no time did defendant observe the gutters being 

removed. After the roof was completed, defendant spoke to Jacobsen and Vecchio multiple times 

regarding payment. On cross-examination, defendant acknowledged that plaintiff installed a roof 

on her home and that she did not submit any payment to plaintiff. 

¶ 16 John Mazanowicz testified that he is a building inspector for Winnebago County. Among 

Mazanowicz’s duties is reviewing the installation of roofs. Mazanowicz noted that Winnebago 

County has adopted the 2015 International Residential Code which requires gutter aprons and drip 

edging in addition to ice and water shield. Mazanowicz testified that roofing contractors are 

required to secure building permits before commencing work. Depending upon circumstances, 

inspections may occur before the shingles go on to confirm installation of the required ice and 

water shield in addition to gutter aprons and drip edging. Mazanowicz further testified that 

depending upon the circumstances, the building inspector may rely upon photographs of work in 

progress or completed work to satisfy inspection requirements. Mazanowicz acknowledged that 
2021 IL App (2d) 200244-U 

- 8 - 

photographs do not show what occurred beneath the shingles. He explained, however, that weather 

may demand immediate installation of a roof to avoid damage to the subject home. Mazanowicz 

further testified that although it is a violation of the permitting process, from time to time builders 

will seek a permit, inspection, and final approval after completion. While a builder will likely be 

fined, the permitting, inspection, and approval process may nonetheless proceed based upon 

photographic evidence and visual inspection.

¶ 17 Plaintiff did not secure a permit for defendant’s project until October 20, 2017. 

Mazanowicz received photos of defendant’s project on April 25, 2019, and was asked to do a “final 

inspection.” Mazanowicz testified that he did not find any ice or water shield deficiencies from the 

photos that were tendered by plaintiff with respect to defendant’s home. Moreover, Mazanowicz 

testified that defendant’s house passed inspection. Mazanowicz further testified that there is no 

prohibition against reusing existing gutter aprons or drip edging.

¶ 18 Gary Paris was presented as an opinion witness on defendant’s behalf. Paris inspected 

Goebel’s home and found fault with the work performed by plaintiff, including the following: (1) 

plaintiff could have easily satisfied the contract’s “match” requirement by securing an Independent 

Testing Evaluation Laboratory (ITEL) analysis to identify the make, color, and style of defendant’s 

original roof; (2) plaintiff should have performed all of the work specifically delineated in the 

AAA appraisal; (3) plaintiff should have removed and replaced all existing flashing with new 

flashing; (4) plaintiff should have removed and replaced the gutter apron, which necessitates and 

requires the removal and reinstallation or replacement of all gutters; (5) plaintiff should have 

installed two rows of ice and water shield along all edges of the roof; and (6) plaintiff should have 

installed ice and water shield at least five inches up the base of any wall that vertically intersects 
2021 IL App (2d) 200244-U 

- 9 - 

the roof. According to Paris, the only way to remedy the color variation and installation 

deficiencies he identified is to remove and replace the roof in its entirety.

¶ 19 On November 8, 2019, the trial court entered a written memorandum of decision and order. 

Based on the evidence presented at trial, the court found that plaintiff substantially performed the 

subject contract in a workman-like manner. Regarding the issues of the shingles, the court noted:

 “When it comes to shingles and fascia, the contract called for a color ‘match.’ 

Though [defendant] perhaps envisioned a specific make, color and style, the contract 

between the parties did not. The doctrine of substantial performance necessarily allows for 

minor deviation [sic]. [Defendant] received a completely new roof, albeit one consisting of 

shingles with a color shade and shape different than her original roof. In the court’s view, 

however, the variance in shingle color or shade and shape is slight and inconsequential. 

The before and after color photos confirm the same ***. The court notes further that the 

variation between the old roof and new roof is less apparent depending upon light, angle 

and perspective.”

The court further concluded that defendant received a fully functional roof, albeit one with 

“shortcomings and deficiencies.” In this regard, the court pointed out that the roof as installed 

passed inspection and there was no evidence that the roof leaks or has ice-related problems, such 

as mold or rot. The court acknowledged that plaintiff did not perform certain aspects of the contract

related to the ice and water shield, gutters, fascia, and flashing, but noted that the parties presented 

competing testimony regarding code requirements, industry customs, and best practices. 

Ultimately, the court determined that an adjustment to the contract price was warranted because 

of the missing ice and water shield, the failure to detach and reset the gutters, the failure to remove 

and replace the fascia, and the decision to reuse instead of replace flashing. As such, the court 
2021 IL App (2d) 200244-U 

- 10 - 

entered judgment in favor of plaintiff in the amount of $14,983.56. The court denied plaintiff’s 

demand for attorney fees but awarded costs of suit. The court ruled against defendant on all three 

counts of her counter complaint.

¶ 20 On December 6, 2019, defendant filed a motion to reconsider. On February 20, 2020, 

following argument, the court granted the motion in part and denied it in part. The court reiterated 

its view that defendant “overall received a roof that’s performing,” “functional,” and “approved 

by the city [sic].” Nevertheless, the court reduced the judgment amount to $13,108.60 plus costs 

of suit. The reduction represented a credit to defendant for (1) certain replacement cost value

(versus the actual cash value used by the court in its November 8, 2019, decision and order) since 

plaintiff will have to pay someone to perform the work that was not done and (2) the court’s failure 

to account for plaintiff not installing a “drip edge.” The court also reiterated that it did not find 

fraud on the part of plaintiff. The court explained that fraud “involves more than the mere fact that 

a [party] promised something and then failed to do it.” The court acknowledged that “there was a 

failure to provide work that [plaintiff] contracted for, but there still was workmanlike performance 

*** [and] a roof that is functional, that was approved by the city [sic].” On March 20, 2020, 

defendant filed a notice of appeal.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant disputes the trial court’s finding that the manner in which plaintiff 

carried out its obligations under the contract constituted substantial performance in a workmanlike manner. She also contends that the contract at issue is ambiguous and should therefore be 

construed against plaintiff, the drafter of the document. In addition, defendant challenges the trial 

court’s decision not to exclude Moore from the courtroom and its ruling that plaintiff’s 

performance of the contract did not constitute fraud.
2021 IL App (2d) 200244-U 

- 11 - 

¶ 23 Prior to addressing the merits of defendant’s arguments, we note that plaintiff has not filed 

a brief in this appeal. In such circumstances, the reviewing court has three options: (1) if justice so 

requires, actively seek bases for sustaining the judgment of the trial court; (2) when the record and 

issues are simple, decide the case on the merits; or (3) reverse when the appellant’s brief shows 

prima facie error. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 

133 (1976). Here, the record and issues are simple and the claimed errors can be decided without 

the aid of an appellee’s brief. Accordingly, we will proceed to decide the merits of this appeal. 

First Capitol Mortgage Corp., 63 Ill. 2d at 133. 

¶ 24 A. Substantial Performance

¶ 25 We first address defendant’s claim that the trial court erred in finding that the manner in 

which plaintiff carried out its obligations under the contract constituted substantial performance in 

a workman-like manner. Defendant posits that the roofing system plaintiff installed “will fail.” 

Moreover, relying principally upon Kusy v. Johnson, 41 Ill. App. 3d 763 (1976), defendant 

contends that “there can never be substantial performance,” where, as here, plaintiff “provided the 

specifications of the contract and then failed to execute the contract per those specifications.”

¶ 26 In Illinois, the long-standing rule in building-contract cases is that a contractor is not 

required to perform perfectly. Evans & Associates, Inc. v. Dyer, 246 Ill. App. 3d 231, 239 (1993).

Instead, the contractor is held to a duty of substantial performance in a workman-like manner.

Meyers v. Woods, 374 Ill. App. 3d 440, 453 (2007); Evans & Associates, Inc., 246 Ill. App. 3d at 

239; Mayfield v. Swafford, 106 Ill. App. 3d 610, 612 (1982). What constitutes substantial 

performance is difficult to define. Folk v. Central National Bank & Trust Co., 210 Ill. App. 3d 43, 

46 (1990). However, our supreme court has explained the concept as follows:
2021 IL App (2d) 200244-U 

- 12 - 

 “ ‘Substantial performance of a contract means performance in all the essential 

elements necessary to the accomplishment of the purpose of a contract. [Citation.] 

“Substantial” means in substance; in the main; essential, including material or essential 

parts. [Citation.] It has been said *** that “in building contracts a literal compliance with 

the specifications is not necessary to a recovery by the contractor. A substantial 

performance in good faith is sufficient.” ’ ” W.E. Erickson Construction, Inc. v. CongressKenilworth Corp., 115 Ill. 2d 119, 126-27 (1986) (quoting People ex rel. Peterson v. Omen, 

290 Ill. 59, 65-66 (1919)). 

See also Folk, 210 Ill. App. 3d at 46 (noting substantial performance is established by “an honest 

and faithful performance of the contract in its material and substantial parts, with no willful 

departure from, or omission of, the essential elements of the contract); Watson Lumber Co. v. 

Mouser, 30 Ill. App. 3d 100, 105 (1975) (providing that the “pristine qualities” of the doctrine of 

substantial performance are substantial performance of the work required by the contract and a 

good faith performance of the essential points of the contract). Thus, a construction contract may 

be substantially performed even though there may be some omissions or deviations from the 

contract or some defects in the material workmanship when they are not a result of bad faith, do 

not impair the structure as a whole, and are remediable without materially damaging other parts of 

the structure. Doornbos Heating & Air Conditioning, Inc. v. James D. Schlenker, M.D., S.C., 403 

Ill. App. 3d 468, 483 (2010). A buyer who receives substantial performance in a workman-like 

manner from a builder must pay the contract price less a credit for deficiencies existing in what 

the buyer received as compared to what strict performance would have provided. Evans & 

Associates, Inc., 246 Ill. App. 3d at 239; Mayfield, 106 Ill. App. 3d at 612. 
2021 IL App (2d) 200244-U 

- 13 - 

¶ 27 “ ‘In substantial performance cases, the burden is on the contractor to establish the elements 

necessary to substantial performance recovery and, also, to show the amount [the contractor]

should recover.’ ” Evans & Associates, Inc., 246 Ill. App. 3d at 239 (quoting Delta Construction, 

Inc. v. Dressler, 64 Ill. App. 3d 867, 871 (1978)). Whether there has been substantial performance 

of a contract in a workman-like manner is a question of fact. W.E. Erickson Construction, Inc., 

115 Ill. 2d at 126-27; Evans & Associates, Inc., 246 Ill. App. 3d at 240; see also Folk, 210 Ill. App. 

3d at 46-47 (noting that what constitutes substantial performance depends on the relevant facts of 

each case). With respect to factual matters, it is the function of the trier of fact—here the trial 

court—to assess the credibility of the witnesses, resolve conflicts in the evidence, and assign 

weight to be accorded the evidence. Career Concepts, Inc. v. Synergy, Inc., 372 Ill. App. 3d 395, 

405 (2007). A reviewing court will not disturb a trial court’s factual findings unless they are against 

the manifest weight of the evidence. Danada Square, LLC v. KFC National Management Co., 392 

Ill. App. 3d 598, 608 (2009); see also Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 177 

(2004) (noting that rulings following a bench trial are reviewed under the manifest weight standard 

of review).

2 A factual finding is against the manifest weight of the evidence only when the opposite 

conclusion is clearly apparent or when findings appear to be arbitrary, unreasonable, or not based 

on the evidence. Fantino v. Lenders Title & Guaranty Co., 303 Ill. App. 3d 204, 206 (1999).

2

 Defendant, citing O’Shield v. Lakeside Bank, 335 Ill. App. 3d 834, 837-38 (2002), 

advocates for the application of a de novo standard of review on this issue. However, O’Shield was 

an appeal from the denial of a motion to reconsider an order granting summary judgment. Given 

the distinct procedural postures of O’Shield and the present case, we find defendant’s invitation 

for de novo review misplaced. 
2021 IL App (2d) 200244-U 

- 14 - 

¶ 28 In this case, defendant’s roof sustained hail damage. The purpose of the contract was to 

provide defendant with a new roof. The overwhelming evidence presented at trial establishes that 

this purpose was achieved. Jacobsen, Moore, and Vecchio testified to the actions they took to order 

the supplies for the project and install the roof. Defendant acknowledged, albeit begrudgingly, that 

plaintiff installed a roof on her home. The Winnebago County building inspector testified that 

defendant’s house passed inspection. Although defendant claims that the roofing system will fail, 

she presented no evidence that, in the two years between completion of the roof and the trial, the 

roof had leaked or sustained any other failure indicative of poor workmanship. 

¶ 29 Admittedly, the color and type of the new shingle were not the same as the old shingle and 

plaintiff reused certain materials instead of replacing them. But, as noted above, the doctrine of 

substantial performance allows for minor deviations. See Doornbos Heating & Air Conditioning, 

Inc., S.C., 403 Ill. App. 3d at 483. Here, the trial court compared the characteristics of the old and 

new shingle and found the differences “slight and inconsequential.” Moreover, the trial court noted 

that there was competing testimony regarding building code requirements, industry customs, and 

best practices, including whether certain materials should be reused. The trial court resolved this 

dispute in plaintiff’s favor. Given the deference afforded the trial court’s factual findings, we 

cannot say that these determinations were against the manifest weight of the evidence. Career 

Concepts, Inc., 372 Ill. App. 3d at 405. There was also evidence that plaintiff did not perform

certain aspects of the contract. For instance, there was a lack of ice and water shield at the far back 

slope of the roof and plaintiff failed to perform fascia work. However, these omissions were 

remediable without materially damaging other parts of the roof. In this regard, Vecchio testified 

that the shortage of ice and water shield could be rectified by removing a small portion of the 

roof’s shingles, applying the ice and water shield, and relaying the shingles. Similarly, Vecchio 
2021 IL App (2d) 200244-U 

- 15 - 

indicated that the fascia work can be completed after the roof is installed. He also offered an 

explanation why the fascia work was not completed, i.e., defendant had prohibited plaintiff from 

doing so once the payment dispute arose. In short, as the trial court found, defendant received “a 

fully functional roof, albeit with shortcomings and deficiencies.” The purpose of the contract 

having been fulfilled, we conclude that the trial court’s finding that the manner in which plaintiff 

carried out its obligations under the contract constituted substantial performance in a workmanlike manner was not against the manifest weight of the evidence. 

¶ 30 In so holding, we find defendant’s reliance on Kusy unpersuasive. The Kusy court refused 

to accept “the contention that a total failure on the part of a building contractor to comply with one 

of the requirements of written specifications he himself supplied, can in any circumstances, be 

justly deemed a substantial performance.” Kusy, 41 Ill. App. 3d at 766. However, the court 

determined the measure of damages in such cases is “the reasonable cost of correcting that default.” 

That is exactly what the trial court did here—it reduced the contract price by the cost of installing 

the additional ice and water shield and other work not performed. As such, defendant’s reliance 

on Kusy does not mandate reversal.

¶ 31 B. Contract Ambiguity

¶ 32 Defendant also argues that the contract at issue contained ambiguities and that such 

ambiguities must be construed against plaintiff as the drafter of the contract. We have no qualm 

with the proposition that an ambiguous contract will be construed against the drafter. See Central 

Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004). However, defendant did not 

present this argument to the trial court until oral argument on her motion to reconsider. Arguments 

raised for the first time in a motion to reconsider in the trial court are forfeited on appeal. Evanston 

Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 36; see also Holzer v. Motorola Lighting, Inc., 
2021 IL App (2d) 200244-U 

- 16 - 

295 Ill. App. 3d 963, 978 (1998) (holding that a party may not raise a legal theory for the first time 

in a motion to reconsider). Moreover, defendant does not adequately develop this issue. Illinois 

Supreme Court Rule 341(h)(7) (eff. May 25, 2018) requires the appellant’s brief to include 

“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with 

citation of the authorities and the pages of the record relied on.” The failure to develop an 

argument, cite persuasive and relevant authority, or present a well-reasoned argument violates 

Rule 341(h)(7) and results in forfeiture of that argument. Doherty v. Country Faire Conversion, 

LLC, 2020 IL App (1st) 192385, ¶ 36; Vasell v. Presence Saint Francis Hospital, 2018 IL App 

(1st) 163102, ¶ 66; In re Marriage of Woodrum, 2018 IL App (3d) 170369, ¶ 63. Here, defendant 

merely presents the proposition that an ambiguous contract will be construed against the drafter,

cites three authorities for that general proposition, references some provisions of the contract, 

refers to a pre-arbitration motion in limine to allow the admission of parol evidence at the 

arbitration hearing (which motion was denied) and, without any analysis, declares that the 

provisions are ambiguous and must be construed against plaintiff. A reviewing court is entitled to 

have the issues clearly defined with pertinent authority cited and is not simply a depository into 

which the appealing party may dump the burden of argument or research. People v. Patel, 2020 IL 

App (2d) 190532, ¶ 37. Given defendant’s failure to raise this issue until her motion to reconsider 

and her failure to adequately develop the issue, we find it forfeited.

¶ 33 C. Motion to Exclude Witnesses

¶ 34 Next, defendant challenges the trial court’s decision to allow Moore to remain in the 

courtroom despite the motion to exclude witnesses. Sequestration prevents witnesses from altering 

their testimony based upon the testimony of another. People v. Dixon, 23 Ill. 2d 136, 138-39 

(1961); Skelton v. Chicago Transit Authority, 214 Ill. App. 3d 554, 584 (1991); see also Ill. R. 
2021 IL App (2d) 200244-U 

- 17 - 

Evid. 615 (eff. Jan. 1, 2011) (“At the request of a party the court shall order witnesses excluded so 

that they cannot hear the testimony of other witnesses.” (Emphasis added.)). However, a defendant 

has no absolute right to have witnesses excluded. People v. Mack, 25 Ill. 2d 416, 422 (1962).

Rather, it is within the sound discretion of the trial court whether to exclude witnesses from the 

courtroom (People v. Adams, 41 Ill. 2d 98, 100-01 (1968); In re J.E., 285 Ill. App. 3d 965, 979 

(1996); Harrisburg Community Unit School District No. 3 v. Steapleton, 195 Ill. App. 3d 1020, 

1023 (1990)), and a reviewing court will not overturn such a decision absent an abuse of discretion 

(In re C.P., 141 Ill. App. 3d 1018, 1022 (1986)). An abuse of discretion occurs when a ruling is 

arbitrary, fanciful, or unreasonable or where no reasonable person would agree with the position 

taken by the trial court. In re Estate of McDonald, 2021 IL App (2d) 191113, ¶ 62; In re M.W., 

2013 IL App (1st) 103334, ¶ 23. 

¶ 35 Here, the trial court allowed Moore to remain in the courtroom based on the representation 

of plaintiff’s counsel that Moore was an owner of plaintiff. Although defendant disputed whether 

Moore was an owner of the company, she presented no evidence to the contrary. Further, while 

defendant later pointed out that Moore was not an owner of plaintiff at the time the contract at 

issue was executed, the court ruled that it would allow Moore to remain in the courtroom because 

he was an owner at the time of the trial. Having proffered cogent reasons for allowing Moore to 

remain in the courtroom, we cannot say that the trial court’s ruling was arbitrary, fanciful, or 

unreasonable or that no reasonable person would agree with the trial court’s decision. As such, we 

decline to overturn the trial court’s decision to allow Moore to remain in the courtroom.

¶ 36 Nevertheless, defendant insists that that she was prejudiced by the trial court’s decision to 

allow Moore to remain in the courtroom because “Moore’s testimony affected the evidence elicited 

from Jacobsen and thereby rehabilitated, to a degree, Jacobsen’s admissions.” As such, defendant 
2021 IL App (2d) 200244-U 

- 18 - 

contends that Moore’s testimony should have be stricken from the record. The burden of proof is 

on the party alleging error to show prejudice resulting from the trial court’s decision to allow a 

witness to testify. People v. Wiatr, 119 Ill. App. 3d 468, 473 (1983). Defendant fails to carry her 

burden here. Other than the vague statement quoted above, defendant fails to explain how Moore’s 

testimony prejudiced her, and she fails to cite to any relevant authority in support of her position. 

As noted previously, the failure to develop any meaningful argument or cite any relevant authority 

results in forfeiture of an issue on appeal. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Doherty, 

2020 IL App (1st) 192385, ¶ 36; Vasell, 2018 IL App (1st) 163102, ¶ 66; In re Marriage of 

Woodrum, 2018 IL App (3d) 170369, ¶ 63. Forfeiture aside, we do not find any evidence that 

Moore altered his testimony to either conform his testimony to that of Jacobsen or rehabilitate 

Jacobsen’s testimony. In this regard, we observe that, for the most part, the substance of Moore’s 

and Jacobsen’s testimony did not overlap. Jacobsen’s testimony centered on the circumstances that 

brought him to defendant’s residence, the signing of the contract, the work performed on 

defendant’s roof, and his efforts to obtain payment from defendant. In contrast, Moore’s testimony 

focused on his efforts to order materials and schedule labor for defendant’s project, the type of 

shingles ordered for defendant’s project, the permitting process, and whether it was necessary to 

detach the gutters to perform certain work. Given this record, we reject defendant’s claim that she 

was prejudiced by the trial court’s decision to allow Moore to remain in the courtroom despite the 

motion to exclude witnesses.

¶ 37 D. Fraud Claims

¶ 38 Finally, defendant argues that plaintiff’s “non-performance of critical aspects of the 

contract” constitute fraud in the inducement and a violation of the Consumer Fraud and Deceptive 

Business Practices Act (Consumer Fraud Act). 
2021 IL App (2d) 200244-U 

- 19 - 

¶ 39 Initially, we note that although defendant’s amended countercomplaint raised claims of 

statutory fraud, it did not allege fraud in the inducement, which is a form of common-law fraud. 

Avon Hardware Co. v. Ace Hardware Corp., 2013 IL App (1st) 130750, ¶ 15. “It is well settled 

that issues not raised in the trial court are deemed waived and may not be raised for the first time 

on appeal.” Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996). Moreover, although 

defendant did raise this claim in her motion for reconsideration, arguments raised for the first time 

in a motion for reconsideration in the trial court are forfeited on appeal. Evanston Insurance Co., 

2014 IL 114271, ¶ 36; Holzer, 295 Ill. App. 3d at 978. For these reasons, we decline to address on 

appeal the merits of defendant’s claim of fraud in the inducement. 

¶ 40 Defendant also claims that plaintiff’s performance of the contract constituted a violation of 

the Home Repair and Remodeling Act and, as a consequence, the Consumer Fraud Act. In this 

regard, defendant alleges that plaintiff “tendered a contract containing requirements and at the time 

of the execution, [plaintiff] knew that they would not be fulfilling those requirements.” Defendant 

further alleges that she was damaged thereby. 

¶ 41 The elements of a cause of action under the Consumer Fraud Act are: (1) a deceptive act 

or practice by the defendant; (2) the intent that the plaintiff rely on the deception; and (3) that the 

deception occurred in the course of trade or commerce. Zankle v. Queen Anne Landscaping, 311 

Ill. App. 3d 308, 311-12 (2000). In addition, the party alleging a violation of the Consumer Fraud 

Act must also prove that the deception caused his injury. Zankle, 311 Ill. App. 3d at 312. The 

applicable standard of review of a circuit court’s judgment following a bench trial is whether the 

judgment is against the manifest weight of the evidence. Dargis, 354 Ill. App. 3d at 177. Similarly, 

the trial court’s determination as to whether the plaintiff has proven the elements of a claim under 

the Consumer Fraud Act is reviewed under the manifest-weight-of-the-evidence standard. Pack v. 
2021 IL App (2d) 200244-U 

- 20 - 

Maslikiewicz, 2019 IL App (1st) 182447, ¶ 113; Bell v. Ring, 2018 IL App (3d) 170649, ¶ 12; 

Longo Realty v. Menard, Inc., 2016 IL App (1st) 151231, ¶ 27. A judgment or finding is against 

the manifest weight of the evidence only when the opposite conclusion is clearly apparent or when 

the judgment is arbitrary, unreasonable, or not based on the evidence. Dargis, 354 Ill. App. 3d at 

177; Fantino, 303 Ill. App. 3d at 206. 

¶ 42 Defendant asserts a violation of the Consumer Fraud Act in that plaintiff tendered a 

contract “containing requirements and at the time of the execution, [plaintiff] knew that they would 

not be fulfilling those requirements.” As the trial court noted, while plaintiff failed to provide work 

that they contracted for, a deceptive act or practice under the Consumer Fraud Act involves more 

than the mere fact that a party promised something and failed to do it. Avery v. State Farm Mutual 

Automobile Insurance Co., 216 Ill. 2d 100, 169 (2005); Zankle, 311 Ill. App. 3d at 312. In Zankle, 

for instance, the client alleged that the fact finder could infer that a landscaping company engaged 

in misrepresentations in that it falsely told him that it would finish a project by a date certain, use 

specialized equipment, fertilize the client’s lawn twice, and install the lawn “in a workmanlike 

manner.” The trial court granted judgment in favor of the landscaping company. This court 

affirmed, remarking that what the client “calls ‘consumer fraud’ or ‘deception’ is simply [the 

landscaping company’s] failure to fulfill [its] contractual obligations.” Zankle, 311 Ill. App. 3d at 

312. The court further explained that if it were to accept the “assertion that promises that go 

unfulfilled are actionable under the Consumer Fraud Act, consumer plaintiffs could convert any 

suit for breach of contract into a consumer fraud action.” 

¶ 43 In this case, the trial court found that plaintiff failed to do everything it promised under the 

parties’ contract. Nevertheless, the court found that defendant received a fully functional roof, 

albeit one with “shortcomings and deficiencies.” The court reduced the contract price for those 
2021 IL App (2d) 200244-U 

- 21 - 

deficiencies. Moreover, defendant does not direct us to any evidence in support of her allegation 

that, at the time of the execution of the contract, plaintiff “knew that they would not be fulfilling 

[certain] requirements” of the contract. Indeed, as the trial court pointed out, it received competing 

testimony from plaintiff’s witnesses and Paris regarding building code requirements, industry 

customs, and best practices, including the appropriate amount of ice and water shield needed and 

whether certain materials may be reused or must be replaced. In light of this record, we cannot say 

that the trial court’s finding that plaintiff failed to prove a cause of action for fraud was against the 

manifest weight of the evidence.

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, we affirm the judgment of the circuit court of Boone County. 

¶ 46 Affirmed.