Illinois Official Reports

Appellate Court

Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071

Appellate Court 

Caption

PHYLLIS BATSON, Plaintiff-Appellee, v. THE OAK TREE, 

LIMITED, Defendant-Appellant (Hale Demar and The Oak Tree 

Restaurant, Limited, Defendants).

District & No. First District, First Division

Docket No. 1-12-3071

Filed December 2, 2013

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the

Reporter of Decisions 

for the convenience of 

the reader.)

On appeal from a judgment for plaintiff in an action alleging breach of 

contract and retaliatory discharge from her position as a manager of 

defendant restaurant, the judgment was upheld over defendant’s 

contention, inter alia, that the trial court erred in applying the 

collateral source rule to prevent defendants from relying on the 

affirmative defense of judicial estoppel and in rejecting defendant’s 

claim that there was insufficient evidence the contract was breached, 

since the collateral source rule was properly applied where plaintiff’s 

retaliatory discharge claim was based only on her allegation that she 

was terminated for filing a workers’ compensation claim and her 

social security disability claim would not judicially estop that claim, 

and defendant never presented any evidence that the basis for 

discharging plaintiff was due to her inability to work.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-L-10997; the 

Hon. James P. Flannery, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

Robert Orman, of Chicago, for appellant.

Andreou & Casson, Ltd., of Chicago (Frank J. Andreou, of counsel), 

for appellee.

Panel JUSTICE DELORT delivered the judgment of the court, with opinion.

Presiding Justice Connors and Justice Hoffman concurred in the 

judgment and opinion.

OPINION

¶ 1 Plaintiff Phyllis Batson filed a complaint against defendants The Oak Tree, Limited (Oak 

Tree), The Oak Tree Restaurant, Limited, and Hale Demar, alleging, inter alia, breach of 

contract and retaliatory discharge. A jury eventually awarded plaintiff $150,000 in damages on 

her breach of contract claim, and $50,000 on her retaliatory discharge claim. On appeal, Oak 

Tree1 contends that the trial court erred in: (1) holding that the collateral source rule prohibited 

defendants from asserting the affirmative defense of judicial estoppel; (2) denying its motion 

for a new trial or judgment n.o.v. because there was insufficient evidence of a breach of 

contract; and (3) barring defendant from offering evidence of plaintiff’s failure to mitigate 

damages when it later instructed the jury that it was defendants’ burden to prove mitigation.

For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 On September 27, 2010, plaintiff filed a seven-count complaint against defendants.

Plaintiff alleged breach of contract against Oak Tree and Demar (counts I and II, respectively), 

tortious interference with contract against Demar (count III), and retaliatory discharge against 

Oak Tree and Demar (counts IV and V, respectively). Finally, plaintiff sought punitive 

damages against Oak Tree and Demar in her sixth and seventh “counts,” respectively. Pursuant 

to a subsequent stipulation, the case proceeded to trial solely on counts I, III, and IV, and the 

punitive damages claim against Oak Tree was not repleaded as a separate count.

¶ 4 Plaintiff alleged that she began working at Oak Tree in 1985 and rose to the position of 

manager. In 1995, she moved to Michigan, but returned to Waukegan, Illinois, in January 

1996. At that time, Hale Demar, the controlling shareholder of Oak Tree, asked her to return as 

manager of the restaurant. Demar offered to pay her $1,250 biweekly and, pursuant to a 

deferred compensation agreement, to contribute $20,000 annually to a trust account for 

 1

Demar and The Oak Tree Restaurant, Limited, are not parties to this appeal.
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plaintiff’s benefit for the duration of the eight-year contract. In late 1997, both parties executed 

the contract.

¶ 5 Plaintiff’s complaint then alleged that, in 2000, she suffered work-related injuries to her 

hands. Oak Tree denied that her injuries were work related, so plaintiff filed a claim for 

benefits under the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2012)) (the 

Act). Plaintiff took a leave of absence in September 2000 due to her injuries, but was cleared to 

return to work in 2001. When she called to arrange her return on April 15, 2001, another 

manager at Oak Tree, Sisi Sun, told plaintiff that plaintiff no longer had a job and was not 

allowed to return to work. Finally, plaintiff alleged that, on February 22, 2001, prior to her 

termination, Demar closed out the trust account and deposited the balance into his personal 

account.

¶ 6 On May 25, 2012, defendants filed their answer and affirmative defenses. Their first 

affirmative defense asserted judicial estoppel. Specifically, defendants argued that plaintiff 

claimed that she was “totally continuously [sic] and totally disabled since September 9, 2000,”

in a prior application for social security disability benefits and another application for 

supplemental security income, which defendants asserted were quasi-judicial proceedings 

under Illinois law. Defendants then pointed out that plaintiff’s complaint claimed that she had 

been “ ‘cleared to return to work at the Restaurant in 2001.’ ” Noting that plaintiff was 

successful in the first proceeding (before the Social Security Administration), defendants 

argued that plaintiff’s allegation in this lawsuit that she had been cleared to return to work was 

inconsistent with allegations she presented to the Social Security Administration. In support of 

this defense, defendants presented copies of plaintiff’s April 2002 application for social 

security disability income and her January 2004 application for supplemental disability 

income. The other relevant affirmative defense that defendants asserted related to the 

mitigation of damages. In two paragraphs, defendants stated that (1) plaintiff had a legal duty 

to mitigate her damages and (2) she claimed that she had never looked for work or any other 

source of income to mitigate her damages.

¶ 7 On June 6, 2012, the trial court granted plaintiff’s motion in limine, which sought to bar 

any statement regarding plaintiff’s application for social security benefits. The trial court 

agreed with plaintiff’s contention that the collateral source rule precluded Oak Tree’s 

affirmative defense of judicial estoppel. In addition, the parties discussed jury instructions.

With no objection from plaintiff, the trial court granted Oak Tree’s request to provide Illinois 

Pattern Jury Instructions, Civil, No. 700.17 (2000) regarding mitigation of damages. 

¶ 8 At trial, Demar testified that, at all relevant times, he owned 80% of Oak Tree, and his 

brother-in-law owned the remaining 20%. Demar agreed that plaintiff had worked at both 

restaurant locations for over 30 years, and at the time of her workers’ compensation claim, she 

was the “floor manager.” According to Demar, plaintiff’s responsibilities were to hire, 

schedule, and oversee the restaurant’s employees, “bank” the daily receipts, and help with 

carryout orders during busy times. Demar acknowledged that Oak Tree’s office manager, Sisi 

Sun, had signed an “Employer’s first report of injury or illness” on September 24, 2000. The 

report indicated that plaintiff reported a bilateral carpel tunnel injury occurring on April 15, 

2000, and that the last date plaintiff worked had been September 9, 2000. Demar 
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acknowledged that, in a prior deposition, he stated that he had met with an insurance adjuster

and that Demar did not believe in the “efficacy” of plaintiff’s claim because he had “heard too 

many soft tissue stories.” Demar further testified that he found it “hard to imagine carpal tunnel 

from hostessing or waitressing or carryout,” adding, “A pot of coffee, a cup of coffee, that’s it.

We’re not talking about heavy lifting here.”

¶ 9 Demar did not recall ever having a conversation with plaintiff regarding her workers’

compensation claim, but agreed with his prior deposition testimony that there was no 

explanation for plaintiff leaving. When asked whether his understanding was that plaintiff’s 

leaving Oak Tree had nothing to do with her hand injuries, Demar stated that he did not know 

why she left. Demar further agreed that he never had an issue with plaintiff’s job performance.

¶ 10 With respect to the deferred compensation agreement, Demar stated he did not know where 

the original contract was. Demar agreed that there were two copies of the agreement and that 

one of the copies had a different typeface and point size. Both copies, however, contained 

provisions that (1) defined a discharge for cause as, inter alia, “termination of employment for 

*** excessive absenteeism”; (2) vested plaintiff “100%” in the trust funds if she were 

discharged “not for cause”; and (3) required “continuous employment” by plaintiff for the 

entire term of the agreement, but excused from the definition of continuous employment 

“discharge by employer without cause.” Finally, both copies had a provision that, if any term 

were found to be void, the remaining provisions would be binding “with the same effect as 

though the void parts were deleted.”

¶ 11 Plaintiff testified that she was 66 years old and began working for Oak Tree in 1983. In 

1992, she left Oak Tree for an unrelated hospitalization. In October 1992, she began working at 

another restaurant known as “Max’s.” In May 1994, Demar met plaintiff at Max’s and asked 

her to return to Oak Tree. Plaintiff agreed and returned there that same month. On January 1, 

1995, plaintiff again left Oak Tree to move to Michigan to work as a nursing assistant in home 

healthcare. Plaintiff returned to Illinois in August 1996, however, and lived with her daughter 

in Waukegan. Shortly thereafter, Demar contacted plaintiff and told her that his father, who 

originally owned the restaurant and hired plaintiff, was very ill. Plaintiff agreed to help with 

Demar’s father’s home health care.

¶ 12 In September or October 1996, Demar called plaintiff and asked her to return as a manager 

at Oak Tree. In October 1996, plaintiff met with Demar at Oak Tree and discussed the terms of 

the agreement regarding plaintiff’s return, which included a deferred compensation agreement.

According to plaintiff, Demar said that if plaintiff would stay at the restaurant for the eight 

years remaining on the restaurant’s lease (or until the restaurant closed), Demar would deposit 

$20,000 each year into a trust for her benefit beginning December 31, 1998. Plaintiff and 

Demar executed the deferred compensation agreement around Christmas 1997. Plaintiff 

testified, however, that she never received a copy of the agreement.

¶ 13 Around the end of 1998, Demar asked plaintiff if she wanted him to deposit the full 

$20,000 into the trust or if she preferred having some of it in cash. Plaintiff asked to have 

$5,000 in cash, and Demar paid her that amount in cash, depositing the remaining $15,000.

Plaintiff stated that she received the same $5,000 cash payment around the end of 1999, as 

well.
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¶ 14 During the holiday season in 1999, plaintiff said that she started having problems with her 

hands. The pain continued, and plaintiff sought medical treatment in April or May 2000.

Plaintiff said she was diagnosed with severe carpal tunnel in both hands, and had five surgical 

procedures on her right hand and one procedure on her left. The first procedure on her right 

hand took place on June 26, 2000, the second procedure (on her left hand) occurred on January 

8, 2001, and the remaining procedures (on her right hand) all took place on April 15, 2002.

Plaintiff testified that she sent a letter to Sisi Sun, the restaurant’s office manager, on 

September 15, 2000, informing Oak Tree of the various procedures plaintiff would be 

undergoing. In addition, plaintiff said that, in October 2000, she told Sun that she had filed a 

claim for compensation under the Act.

¶ 15 In April 2001, plaintiff called Oak Tree to arrange for her return to work with an 

accommodation. Plaintiff said that she spoke to Sisi Sun, and Sun told her that plaintiff had no 

job there and that plaintiff had been terminated. Plaintiff’s claim under the Act was still 

pending.

¶ 16 On cross-examination, plaintiff admitted that she had signed a social security document in 

1997 stating that she became unable to work due to a disabling condition on October 2, 1996.

Plaintiff further conceded that, on April 19, 2002, she had signed another social security 

document indicating that she had become unable to work due to a disabling condition as of 

September 9, 2000. Plaintiff also agreed that, during 2003 and 2004, she began receiving 

unspecified monthly disability payments of $645 that subsequently increased to $773. Finally, 

plaintiff stated that, although her signature appeared on one of the two purported copies of the 

deferred compensation agreement, neither copy represented the original agreement entered 

into with Demar.

¶ 17 At the close of plaintiff’s case-in-chief, Demar moved for a directed verdict with respect to 

plaintiff’s claim of intentional interference with contract (count III), the sole remaining count 

against him. The trial court granted Demar’s motion, and Demar was dismissed from the case.

The trial court denied Oak Tree’s motion for a directed verdict with respect to the remaining 

counts for breach of contract and retaliatory discharge.

¶ 18 The jury returned its verdict on June 11, 2012, finding in favor of plaintiff on both claims.

The jury awarded plaintiff $150,000 in damages on the breach of contract claim. On the 

retaliatory discharge claim, the jury awarded $50,000 in damages: $25,000 for emotional 

distress and $25,000 in punitive damages.

¶ 19 On July 5, 2012, defendants filed a combined motion for judgment n.o.v. or new trial 

pursuant to section 2-1202 of the Code of Civil Procedure (735 ILCS 5/2-1202(f) (West 

2012)). Defendants made two claims: (i) there was insufficient evidence to support the jury’s 

verdict as to plaintiff’s breach of contract claim, and (ii) plaintiff was judicially estopped from 

claiming retaliatory discharge because she had taken an inconsistent position in her application 

for social security disability benefits (namely, that she was unable to work due to a disabling 

condition). No issue was raised regarding jury instructions or plaintiff’s mitigation of 

damages. On September 20, 2012, the trial court denied defendants’ posttrial motion. This 

appeal followed. 
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¶ 20 ANALYSIS

¶ 21 The Collateral Source Rule and Judicial Estoppel

¶ 22 Oak Tree first claims that the trial court erred in applying the collateral source rule to 

prevent defendant from raising judicial estoppel as an affirmative defense to the retaliatory 

discharge claim. Specifically, Oak Tree argues that it was improperly denied the ability to 

present evidence to the jury that plaintiff had earlier claimed that she was totally disabled and 

unable to work, but stated in this case that she was medically cleared and able to work. Oak 

Tree further claims that the collateral source rule, which generally precludes evidence that a 

plaintiff has obtained collateral benefits (e.g., insurance), implicitly requires that the collateral 

benefits be legitimately acquired. Oak Tree concludes that this was not the case here, and “to 

the extent that a tension exists between judicial estoppel and the collateral source rule, the 

former should control.”

¶ 23 Judicial estoppel is an equitable doctrine invoked by the court at its discretion. People v. 

Runge, 234 Ill. 2d 68, 132 (2009). The following five elements are generally required before 

that discretion comes into play: the party to be estopped must have (1) taken two positions, (2) 

that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative 

proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) 

succeeded in the first proceeding and received some benefit from it. Id.

¶ 24 The collateral source rule is well established in Illinois. Under the rule, “evidence of 

benefits received by a plaintiff from collateral sources independent of the tortfeasor will not 

serve to diminish any damages otherwise recoverable.” Lang v. Lake Shore Exhibits, Inc., 305 

Ill. App. 3d 283, 289 (1999). The rationale underlying this rule is to keep the jury from learning 

anything about collateral income that could influence its decision, and allowing any evidence 

as to collateral benefits “would render this long-standing rule meaningless.” Boden v. 

Crawford, 196 Ill. App. 3d 71, 76 (1990).

¶ 25 As a general rule, an at-will employee in Illinois may be discharged by the employer at any 

time and for any reason. Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181-82 (1978). The Act, 

however, specifically provides that “[i]t shall be unlawful for any employer *** to discharge 

*** an employee because of the exercise of his or her rights or remedies granted to him or her 

by this Act.” 820 ILCS 305/4(h) (West 2012). Simply put, the Act “plainly prohibits a 

retaliatory discharge for the exercise of workers’ compensation rights.” Smith v. Waukegan 

Park District, 231 Ill. 2d 111, 119 (2008). As the Kelsay court held, the legislature’s enactment 

of the Act “was in furtherance of sound public policy.” Kelsay, 74 Ill. 2d at 181. The Act 

establishes a cause of action allowing former employees to sue former employers for 

retaliatory discharge, and thus creates an exception to the general rule that “at-will” employees 

are terminable at any time for any or no cause. See id. at 181-82.

¶ 26 To state a claim for retaliatory discharge, a plaintiff must establish the following elements:

(1) she was an employee of the defendant at or before the time of the injury; (2) she exercised 

some right under the Act; and (3) her discharge was causally related to the exercise of her 

rights under the Act. Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 291 (2009). The element of 

causation is not met, however, if the employer has a valid, nonpretextual basis for discharging 

the employee. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328, 336 (1998). As to the 
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element of causation, “the ultimate issue to be decided is the employer’s motive in discharging 

the employee.” Id.

¶ 27 In this case, Oak Tree sought to show that plaintiff’s claim of retaliatory discharge was 

judicially estopped by eliciting testimony from plaintiff that she had claimed an inability to 

work in various applications for social security disability income. Plaintiff’s theory of the case, 

however, did not depend upon her own ability to work; rather, she alleged that her discharge 

was solely predicated upon her filing of a worker’s compensation claim under the Act.

Moreover, at trial, Oak Tree presented no evidence to indicate that there was a valid, 

nonpretextual basis for discharging plaintiff. See Clemons, 184 Ill. 2d at 336. To the contrary, 

Demar’s testimony revealed that he never had an issue with plaintiff’s job performance and 

that he was skeptical as to the validity of plaintiff’s injury. On this last point, Demar testified 

that he had “heard too many soft tissue stories,” and that he found it “hard to imagine carpal 

tunnel from hostessing or waitressing or carryout,” believing that only “heavy lifting” caused 

carpal tunnel injuries, and describing plaintiff’s lifting requirements as either a pot of coffee or 

a cup of coffee. Therefore, since (i) defendants never presented any evidence that their valid, 

nonpretextual basis for discharging plaintiff was due to her inability to work; and (ii) plaintiff’s 

retaliatory discharge claim was solely predicated upon defendants’ terminating her 

employment solely due to her worker’s compensation claim, her social security claim that she 

was unable to work due to a disabling condition was not a “factually inconsistent” position that 

judicially estops her claim here. In so finding, we note that her later course of conduct might 

shed some doubt on the representations she made to the Social Security Administration, but 

that is not an issue before us. Consequently, the trial court did not err in applying the collateral 

source rule, and Oak Tree’s first claim of error is without merit.

¶ 28 Moreover, our decision is unaffected by Oak Tree’s reliance on Muellner v. Mars, 714 F. 

Supp. 351 (N.D. Ill. 1989), Levar v. Freeman, 967 F. Supp. 1055 (N.D. Ill. 1997), and Smeilis 

v. Lipkis, 2012 IL App (1st) 103385. In Muellner, a “necessary prerequisite” for the plaintiff’s 

retaliatory discharge count (to which the defendant employer sought to apply judicial estoppel) 

was that the plaintiff be able to perform the duties of her job with the defendant. Muellner, 714 

F. Supp. at 360. In Levar, the plaintiff filed a complaint alleging discrimination and retaliation 

in violation of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (1994)).

Levar, 967 F. Supp. at 1056. Specifically, the Levar plaintiff claimed that “the adverse action 

was a refusal to hire.” Id. at 1059.

¶ 29 Finally, in Smeilis, the plaintiffs had filed a medical negligence claim against the defendant 

hospital, nursing home, and medical doctor, but settled with the hospital and nursing home and 

dismissed the complaint against all of the defendants. Smeilis, 2012 IL App (1st) 103385, ¶¶ 1, 

12. Within one month, however, the plaintiffs filed a new complaint against the doctor, which 

included the opinion of a new expert witness contradicting the opinion of the expert witness in 

the first lawsuit and indicating that the doctor was not negligent. Id. ¶¶ 13-14. This court 

affirmed, holding that judicial estoppel should apply because the plaintiffs “adopted a wholly 

new view of the facts in order to recover against the sole remaining physician.” Id. ¶ 33.

¶ 30 In this case, plaintiff’s claim is not predicated upon a refusal to hire and her ability to 

perform her job is not a “necessary prerequisite” to succeeding in her claim of retaliatory 
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discharge for simply filing a claim under the Act. Unlike the expert opinion in Smeilis, which 

was necessary for the plaintiff to succeed in her medical negligence claim, plaintiff’s claim is 

sufficiently unrelated to her allegations in her disability applications. Therefore, Muellner, 

Levar, and Smeilis do not compel a different result. 

¶ 31 Defendants’ Motion for a New Trial/Judgment n.o.v.

¶ 32 Oak Tree next challenges the trial court’s denial of its motion for a new trial or judgment 

n.o.v. Specifically, Oak Tree argues that it is “uncontested” that plaintiff failed to work for the 

full eight years required in the contract, and that Oak Tree did not breach the contract. For that 

reason, according to Oak Tree, the trial court should have either entered judgment n.o.v. in its 

favor or granted Oak Tree a new trial.

¶ 33 As a preliminary matter, we must discuss the relevant standards of review. In York v. 

Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006), the supreme court was 

confronted with a challenge to a denial of the defendant’s motion for new trial or judgment 

n.o.v. The court reiterated the holding that a judgment n.o.v. should be granted only where all 

of the evidence, viewed in the light most favorable to the opposing party, so overwhelmingly 

favors the moving party that no contrary verdict based on that evidence could ever stand. Id. at 

178. “In other words, a motion for judgment n.o.v. presents ‘a question of law as to whether, 

when all of the evidence is considered, together with all reasonable inferences from it in its 

aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any 

necessary element of the [plaintiff’s] case.’ ” Id. (quoting Merlo v. Public Service Co. of 

Northern Illinois, 381 Ill. 300, 311 (1942)). Judgment n.o.v. is a high standard, and it should 

not be entered if reasonable minds might differ as to inferences or conclusions to be drawn 

from the facts presented. Id. Furthermore, we may not usurp the jury’s function and substitute 

our judgment on questions of fact that were “ ‘fairly submitted, tried, and determined from 

evidence that did not greatly preponderate either way.’ ” Id. (quoting Maple v. Gustafson, 151 

Ill. 2d 445, 452-53 (1992)). We review a trial court’s denial of a motion for judgment n.o.v.

de novo. Id.

¶ 34 In contrast, a motion for a new trial should be granted only when the verdict is contrary to 

the manifest weight of the evidence. Id. at 178-79 (citing Mizowek v. De Franco, 64 Ill. 2d 303, 

310 (1976)). “A verdict is contrary to the manifest weight of the evidence when the opposite 

conclusion is clearly evident or when the jury’s findings prove to be unreasonable, arbitrary 

and not based upon any of the evidence.” Id. at 179. “We are mindful that credibility 

determinations and the resolution of inconsistencies and conflicts in testimony are for the 

jury.” Id.

¶ 35 The essential elements of a breach of contract are: (i) the existence of a valid and 

enforceable contract, (ii) performance by the plaintiff, (iii) breach of the contract by the 

defendant, and (iv) resultant injury to the plaintiff. Coghlan v. Beck, 2013 IL App (1st) 120891, 

¶ 27. The terms of an agreement, if unambiguous, should generally be enforced as they appear, 

and those terms will control the rights of the parties. Id. (citing Dowd & Dowd, Ltd. v. Gleason, 

181 Ill. 2d 460, 479 (1998)). Any ambiguity in a contract term, however, must be resolved 

against the drafter of the disputed provision. Id.
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¶ 36 In this case, the evidence showed that plaintiff suffered injuries to her hands and filed a 

worker’s compensation claim. When she contacted defendant–who never had an issue with her 

job performance–to arrange for her return to work, defendant informed her that she was 

terminated. As noted above, Demar’s testimony revealed that he never had an issue with 

plaintiff’s job performance, that he disbelieved plaintiff’s injury because he had “heard too 

many soft tissue stories,” and that he generally found it “hard to imagine carpal tunnel from 

hostessing or waitressing or carryout” because only “heavy lifting” caused carpal tunnel 

injuries and plaintiff’s lifting requirements consisted of either a pot of coffee or a cup of coffee.

These facts, construed in the light most favorable to plaintiff, established that Oak Tree 

terminated plaintiff in retaliation for filing a claim under the Act.

¶ 37 Plaintiff’s deferred compensation agreement provided that plaintiff would be 100% vested 

in the trust funds if she were discharged “not for cause” and required “continuous 

employment” by plaintiff for the entire term of the agreement, but excluded discharge by the 

employer “without cause.” Finally, both copies had a provision that, if any term were found to 

be void, the remaining provisions would be binding “with the same effect as though the void 

parts were deleted.” Although the agreement defined discharge “for cause” as, inter alia, 

excessive absenteeism, construing that provision as allowing discharge for cause for filing a 

claim under the Act would render it void as against public policy. Kelsay, 74 Ill. 2d at 181; 

Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 64-65 (2006). Accordingly, Oak Tree’s 

discharge of plaintiff in retaliation for her claim under the Act was not a discharge for cause, 

plaintiff vested 100% in the funds under the deferred compensation agreement, and her 

discharge could not be excluded from the definition of continuous employment.

¶ 38 As such, we cannot hold that all of the evidence, viewed in the light most favorable to the 

opposing party (i.e., plaintiff), so overwhelmingly favors Oak Tree that no contrary verdict 

based on that evidence could ever stand. York, 222 Ill. 2d at 178. We also cannot hold that the 

opposite conclusion from the jury’s verdict is clearly evident or the jury’s findings were 

unreasonable, arbitrary, or not based upon any of the evidence. Id. at 179. Therefore, the trial 

court did not err in denying defendants’ combined motion for judgment n.o.v. and motion for a 

new trial.

¶ 39 Plaintiff’s Mitigation of Damages

¶ 40 Oak Tree’s final contention on appeal is that the trial court erroneously prevented Oak Tree 

from presenting evidence of plaintiff’s failure to mitigate her damages, but the court 

nonetheless instructed the jury that Oak Tree had the burden to prove failure to mitigate. This 

final contention, however, is unavailing because Oak Tree has forfeited consideration of this 

issue.

¶ 41 At the outset, Oak Tree’s argument on this issue in its opening brief consists of four short 

paragraphs of facts, and one equally short paragraph of argument without citation to any 

authority. Supreme Court Rule 341 requires that an appellant include in its argument “citation 

of the authorities *** relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013). In addition, it is 

well established that a reviewing court is not “simply a depository in which the appealing party 

may dump the burden of argument and research.” Pecora v. Szabo, 109 Ill. App. 3d 824, 
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825-26 (1982) (holding that plaintiff’s failure to cite any authority in support of his three-page 

argument forfeited the claim). For this reason alone, we find that Oak Tree has forfeited this 

claim.

¶ 42 In addition, as plaintiff points out, Oak Tree and its codefendants never raised this issue in 

their combined motion for judgment n.o.v. and for a new trial. Oak Tree does not address this 

argument in its reply brief. It is axiomatic that, in order to preserve an issue for review, “[b]oth

a trial objection and a written post-trial motion raising the issue are required for alleged errors 

that could have been raised during trial.” (Emphases in original.) People v. Enoch, 122 Ill. 2d 

176, 186 (1988). The rationale for requiring that an issue be raised in a written posttrial motion 

was explained over 50 years ago: “A trial judge should have an opportunity to appraise the 

errors which are asserted to have taken place. It is unfair to charge him with errors in a 

reviewing court without having brought them to his attention so that a new trial could have 

been granted if he found it advisable.” Perez v. Baltimore & Ohio R.R. Co., 24 Ill. App. 2d 204, 

210 (1960). Here, however, the trial court was denied any opportunity to consider Oak Tree’s 

contention that denying Oak Tree the opportunity to present evidence as to plaintiff’s failure to 

mitigate her damages warranted a new trial. Therefore, on this additional ground, Oak Tree has 

forfeited this claim.

¶ 43 CONCLUSION

¶ 44 Accordingly, we affirm the judgment of the trial court.

¶ 45 Affirmed.