2013 I L App (1st) 123071
FI RST DI VI SI ON Dec ember

2, 2013 No. 1-12-3071

I N THE APPEL L ATE COURT OF I L L I NOI S FI RST J UDI CI AL

DI STRI CT
PHYL L I S BATSON,

Plaintiff-Appellee ,

v. THE OAK

TREE, L I MI TED, Def endant- Appellant (Ha le Dema

r, and The Oak Tr ee Re staurant, L imited, Def endants). ) ) ) ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County

.

No. 10 L 10997

Honora ble J ames P. Fla

nnery , J udg e Presiding

. J USTI CE DEL ORT delivere d the judg ment of the c ourt, with opinion. Presiding Justice Connors and Jus tice Hof fman c oncurr ed in the judg ment and opinion. OP INION ¶ 1 Plaintiff Phy llis Ba tson filed a complaint ag ainst defe ndants The Oak Tre e, L imited (Oak
Tree ), The O ak Tre e Restaur ant, L imited, and Hale D emar , alleg ing, inter alia , brea ch of c ontrac t and re taliatory

discharg e. A jury

eventua lly

awa rded plaintiff $150,000 in damag es on her brea ch of contra ct claim, and $50,000 on her retaliatory discharg e cla im. On appea l, Oak Tre e contends 1 that the trial court err ed in: (1) holding that the collater al source rule prohibited defe ndants fr o m

asser ting the aff

irmative defe nse of j u d i ci al estoppel; (2) deny ing its motion for a new trial or

Demar and The Oak Tr ee Re staurant, L imited, are not pa rties to this appeal. 11-12-3071

j u dg ment n.o.v. beca

use there was insufficient evidenc e of a brea ch of contra ct; and (3) bar ri n g defe ndant from offe ring evidenc e of plaintiff’s failure to mitig ate damag es when it later instructed the jury that it was defe ndants’ burde n to prove mitiga tion. For the f ollowing r easons, we aff

irm. ¶ 2 BA CKGROUND ¶ 3 On September 27, 2010, plaintiff filed a seven- count complaint ag ainst defe ndants. Plaintiff alleg ed brea ch of contra ct ag ainst Oak Tree and Dema r (c o u n t s I and I I , respe ctively ), tortious interfe renc e with contra ct ag ainst Demar (count I I I ), reta liatory d i s ch ar ge ag ainst Oak Tree and
Demar (counts I V and V, respe ctively ). Finally , plaintiff soug ht punitive damag es ag ainst Oak Tree and Demar in her six th and seventh “counts,” respe ctively

. Pursuant to a subsequent stipulation, the

case proce eded to tria l solely on counts I , I I I , and I V, and the punitive damag es cla im ag ainst Oak
Tree was not re pleade d as a se para te count. ¶ 4 Plaintiff alleg ed that she beg an wo rk i n g at Oak Tree in 1985 and rose to the position of
manag er. I n 1995, she moved to Michig an, but returne d to Waukeg an, I llinois , in J anuar y 1996. At that time, Hale De mar, the c ontrolling shar eholder of Oak Tree , asked he r to retur n as mana g er of the restaur ant. Demar offe red to pay her $1,250 biweekly and, pursuant to a defe rre d compensa tion
ag ree ment, to contribute $20,000 annually to a trust a ccount f or plaintiff’s be nefit for

the dura tion of the e ight- y ear

contra ct. I n late 1997, both par ties executed the c ontrac t. ¶ 5 Plaintiff’s complaint t h en al l ege d that, in 2000, she suffe red work-r elated injuries to her hands. Oak Tree denied that her injuries wer e work-r elated, so plaintiff filed a claim for benef its

u n der the Workers’ Compensation Act (820 I L CS 305/1 et seq. (West 2012)) (the Act). Plaintif f took a leave of absenc e in September 2000 due to her injuries, but w as clea red to r eturn to w ork in

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2001. When she called to a rra ng e her return on April 15, 2001, another manag er at Oak Tree , Sisi Sun, told plaintiff that plaintiff no longe r had a job and was not allowed to return to work. Finally , plaintiff alleg ed that, on Fe bruar y 22, 200 1 , p ri or to her termination, Demar closed out the trust

acc ount and deposited the ba lance into his personal ac count. ¶ 6 On May 25, 2012, defe ndants filed their answe r and aff irmative defe n s es . T h ei r fi rs t aff irmative defe nse asser

ted judicial estoppel. Specifica lly , defe ndants arg ued that plaintiff claimed that she was “totally continuously [ sic ] and totally disabled since September 9, 2000,” in a prior application for social secur ity disability benef its and another application for supplemental secur ity income, which defe ndants asser ted wer e quasi-judicial proce eding s under I llinois law. Def endants then pointed out that plaintiff’s complaint claimed that she had been “ ‘cle are d to return to work at
t h e Restaura

nt in 2001.’ ” Noting that plaintiff was succe ssful in the first proce eding (be fo re t h e Social Security Administration), defe ndants arg ued that plaintiff’s alleg ation in this lawsuit that she had been clea

red to return to work was incon s i s t en t with alleg ations she prese nted to the Social Security Administration. I n support of this defe nse, defe ndants prese nted copies of plaintiff’s April 2002 applicat i on for social secur ity disability income and her J anuar y 2004 application for supplemental disability income. The other rele vant aff irmative defe nse that def en d ants asser

ted rela ted t o t h e m i t i g ation of damag es. I n two para g raphs, defenda nts stated t hat (1) plaintiff had a leg al dut y to mitigate her damag es and (2) she claimed that she had neve r l o o k ed for work or any other sourc e of inc ome to mitigate he r dama g es. ¶ 7 On J une 6, 2012, the trial court g rante d plaintiff’s motion in limine , which soug ht to bar any statement reg arding plaintiff’s application for social secur ity benef its. The trial court ag ree d with

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plaintiff’s contention that the collater al source rule prec lu d ed Oa k T ree’s aff irmative defe nse of judicial estoppel. I n addition, the parties discussed jury instructions. Wit h no objection from plaintiff, the trial court g rante d Oak Tree ’s reque st to provide I llinois Pattern J ury I nstruction, Civil , No. 700.17 (2000) r eg arding mitigation of da mag es. ¶ 8 At trial, Demar testified that, at all rele vant times, he owned 80% of Oa k T re e, an d h is brother- in-law owned the rema ining 20%. Demar ag ree d that plaintiff had worke d at both restaur ant locations for over 30 y ear s, and at the time of her worke rs’ compensa tion claim, she was the “floor
manag er.” Acc ording to Demar , plaintiff’s responsibilities wer e to hire, schedule , and overse e the
restaur ant’s employ ees, “bank” the daily rec eipts, and help with car ry out order s during busy times.
Demar acknow ledg ed that Oak Tree ’s office manag er, Sisi Sun, had si gn ed an “Empl oy er’ s first
repor t of injury or illness” o n S ep t em b er 24, 2000. The repor t indicated that plaintiff repor ted a bilatera l car

pel tunnel injury occur

ring on April 15, 2000, and that the last date plaintiff worke d had been September 9, 2000. Demar acknow ledg ed that, in a prior deposition, he stated that he had met with an insurance adjuster, and that Dema r d i d n o t believe in the “ef fica cy ” of plaintiff’s claim beca use he had “hea

rd too ma ny soft tissue storie s.” Demar further testified that he found it “ hard
to imag ine car

pal tunnel from hostessing or waitre ssing or car ry out,” adding , “A pot of coff ee, a cup of cof fee , that’s it. We’re not talking about hea vy lifting he re.” ¶ 9 Demar did not rec all ever having a conv er s at i o n wi t h p l aint iff reg arding her w orker s’
compensa tion claim, but ag ree d with his prior deposition testimony that there was no explanation for plaintiff leaving

. When a sked whether his unde rstanding was that plaintiff’s leaving Oak Tree

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had nothi ng to do with her hand injuries, Demar stated that he did not know why she l eft. Demar further ag ree d that he neve r had a n issue with plaintiff’s job perf ormanc e. ¶ 10 Wit h respe ct to the defe rre d compensa tion ag ree ment, Demar stated he did not know wher e the orig inal contra ct was. Demar ag ree d that there wer e two copies of the ag ree ment, and that one of t he copies had a differ en t t y pefa ce and poi nt siz e. Both copies, howeve r, contained provisions that (1) define d a discharg e for cause as, inter alia , “ter mination of employ

ment for *** excessive absente eism”; (2) vested plaintiff “100%” in the trust funds if she wer e discharg ed “not for cause ”; and (3) require d “continuous employ ment” by plai n t i ff fo r the entire term of the ag ree ment, but excused from the definition of continuous employ ment “d i s ch ar g e by employ er without cause .” Finally , both copies had a provision that, if any term wer e found to be void, the rema ining provisions would be binding “with the same eff ect a s though the void parts wer e dele ted.” ¶ 11 Plaintiff testified that she was 66 y ear s old and beg an working for Oak Tree i n 1 9 8 3

. I n 1992, she left Oak Tree for an unrela ted hospitaliz ation. I n October 1992, she beg an working at another restaur ant known as “Max’s.” I n May 1994, Demar met plaintiff at Max’s and asked her to
return to Oak Tree

. Plaintiff ag ree d and returne d there that same month. On J anuar y 1, 1995, plaintiff ag ain left Oak Tree to move to Michig an to work as a nursing assistant in home healthca re. Plaintiff returne d to I llin o i s in Aug ust 1996, howeve r, and lived with her daug hter in Waukeg an. Shortly there afte r, Demar contac ted plaintiff and told he r that his f ather , who orig inally owned the
restaurant and hired plaintiff, was very ill. Plaintiff ag ree d to help with Demar ’s fathe r’s h o m e health ca re.

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¶ 12 I n September or October 1996, Demar called plaintiff and asked her to r eturn as a mana g er
at Oak Tree

. I n October 1996, plaintiff met with Demar at Oak Tree and discussed the terms of the
ag ree ment reg arding plaintiff’s return, which i n cl uded a defe rre d compensa tion ag ree ment. Acc ording to plai n t iff, Demar said that if plaintiff would stay at the restaur ant for the eig ht y ear s

rema ining on the restaurant’s lease (or unt il the re s t au ra nt closed), Demar would deposit $20,000

eac h y ear into a trust for her benef

it be g inning Dec ember

31, 1998. Plaintiff and Dema r executed the defe rre d compensa tion ag ree ment around Christmas 1997. Plaintiff testified, howeve r, that she

never rec eived a

copy of the a g ree ment. ¶ 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 pref err ed having some of it in cash. Plaintiff asked to have $5,000 in cash, and
Demar paid her that amount in cash, depositing the re m ai n i n g $ 1 5 ,000. Plaintiff stated that she

rec eived the sa

me $5,000 ca sh pay

ment around the end of 1999, a s well. ¶ 14 During the holiday season in 1999, plaintiff sa id that she started ha ving pr oblems with her hands. The pain continued, and plaintiff soug ht medical trea tment in April or May 2000. Plaintiff said she was diag nosed with sever e car pal tunnel in both hands, and had five surg ical proce dures on her right hand and one proce dure on her left. The first proce dure on her ri gh t h an d t o ok place on J une 26, 2000, the second proc edure (on her left hand) occur red on J anuar

y 8, 2001, and the

rema ining proce dures (on her rig ht hand) all took place on April 15, 2002. Plaintiff testified that she
sent a letter to Sisi Sun, the restaur ant’s office manag er, on September 15, 2000, informing Oak Tree of the various proce dures plaintiff would be underg oing. I n addition, plaintiff said that, in October 2000, she told Sun that she had filed a claim for c ompensation under the Act.

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¶ 15 I n April 2001, plaintiff called Oak T re e t o ar ra n ge fo r h er re t u rn t o wo rk with an

acc ommodation. Plaintiff said that she spoke to Sisi Sun, and Sun told her that plaintiff had no job there and that plaintiff ha d been te rminated. Plaintiff’s c laim under the A ct was still pending

. ¶ 16 On cr oss-examination, plainti ff a dmitted that she had signe d a socia l security document in 1997 stating that she beca me unable to work due to a disabling condition on October 2 , 1 9 96. Plaintiff further conce ded that, on April 19, 2002, she had signe d another social secur ity document indicating that she had become unable to work due to a disabling condition as of September 9, 2000. Plaintiff also ag ree d that, during 2003 and 2004, she beg an rec eiving unspecifie d monthly disability
pay ments of $645 that subsequently incre ased to $773. Finally , plaintiff stated that, althoug h her signa ture appea

red on one of the two purported copies of the defe rre d compensa tion ag ree ment, neither c opy

repr esente d the orig inal ag ree ment enter ed into with Demar

. ¶ 17 At the close of plaintiff’s case -in-chie f, Demar moved for a direc ted verdic t with respe ct to plaintiff’s claim of intentional interfe renc e with contra ct (count I I I ), the sole rema ining count ag ainst him. The trial court gra

nted Demar’s m o t i o n , an d Demar was dism issed from the case . The trial
court denied Oak Tree ’s motion for a direc ted verdic t with respe ct to the rema ining counts for brea ch of contra ct and r etaliatory discharg e. ¶ 18 The jury

returne d its verdict on J une 11, 2012, finding in favor of pl aintiff on both claims. The jury awa

rded plaintiff $150,000 in damag es on the brea ch of contra ct claim. On the reta liatory discharg e claim, the jury awa rded $50,000 in damag es: $25,000 for emotional distress and $25,000 in punitive damag es.

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¶ 19 On J u l y 5 , 2 0 1 2 , d ef endants filed a combined motion for judgme nt n.o.v. or new tria l
p ursuant to section 2-1202 of the Code of Civil Procedur e (735 I L CS 5/2-1202(f) (West 2012)). Def endants made two claims: (i) there was insufficient evidenc e to support the jury ’s verdic t as to plaintiff’s brea ch of contra ct claim, and (ii) plaintiff was judicially estop p ed fr o m claiming
reta liatory discharg e becau s e s h e had taken an inconsistent position in her application for social

secur ity disability benef

its (na mely , that she was unable to work due to a disabling condition). No issue was raised reg arding jury instructions or plaintiff’s mitigation of damag es. On September 20, 2012, the trial cour

t denied def

endants’ posttrial motion. This appea l followed. ¶ 20 ANAL YSI S ¶ 21 The Collatera l Source Rule and Judicial Estoppel ¶ 22 Oak Tree first claims that the trial court err ed in apply ing the collater al source rule to preve nt defe ndant from raising judicial estoppel as an aff irmative defe nse to the reta liatory discharg e claim. Specifica lly , Oak Tree arg ues that it was improperly denied the ability to prese nt evidenc e to the jury that plaintiff had ear lier claimed that she was totally disabled and unable to work, but stated in this

case that she was medically clea re d an d ab l e to work. Oak Tree further claims that the collater al

source rule, which g ener ally prec ludes evidenc e that a plaintiff has obtained collater al benef its ( e.g. , insurance ), implicitl y requi re s that the collater al benef its be leg itimately acquir ed. Oak Tree conclude s that this was not the case here, an d “t o t h e ex tent that a tension exis ts betwee n judicial estoppel and the collater al source rule, the f ormer should c ontrol.” ¶ 23 J u d i cial estoppel is an equitable doctrine invoked by the court at its discretion. People v. Runge , 234 I ll. 2d 68, 132 (2009). The following five elements are ge nera lly require d befor e that

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discretion comes into play : the party to be estopped must have (1) taken two positions, (2) that are fac tually inconsistent, (3) in separ ate judicial or quasi-judicial administrative proce eding s, (4) intending for the trier of fa ct t o ac ce p t the t ruth of t he facts allege d, and (5) succe eded in the first
proce eding and re ceive d some bene fit from it. Id. ¶ 24 The collater al source rule is well established in I llinois

. Under the rule, “evide nce of benef its

rec eived by a plaintiff from collater al source s independe nt of the tortfea sor will not serve to diminis h
any damag es otherwise rec overa ble.” Lang v. Lake Shore Exhibits, Inc. , 305 I ll. App. 3d 283, 289 (1999). The rationale underly ing this rule is to keep the jury from lear ning any thing about collater al income that could influence its decision, and allowing any evidenc e as to collater al benef its “would rende r this long- standing rule mea ningle ss.” Boden v . Crawf ord , 196 I ll. App. 3d 71, 76 (1990). ¶ 25 As a g ener al rule, an at-will employ ee in I llinois may be discharg ed by the employ er at any time and for any rea son. Kelsay v. Motorola, Inc. , 74 I ll. 2d 172, 181-82 (1978). The Act, howeve r, specific ally provides that “[i] t shall be unlawful for any employ er *** to discharg e *** an employ ee beca use of the exercise of his or her rig hts or reme dies g rante d to him or her by this Act.” 820 I L CS 305/4(h) (West 2012). Simpl y put, the Act “plainly prohibits a reta liatory discharg e for the exercise of workers’ compensation rights.” Smith v. W aukegan Park Dis trict, 231 I ll. 2d 1 11, 119 (2008). As the Kelsay court held, the leg islature’s enac tment of the Act “wa s in further ance of sound public policy .” Kelsay , 74 I ll. 2d at 181. The Act establishes a cause of action allowing former employ ees
to sue former employ ers for reta liatory discharg e, and thus c rea tes an exception to the g ener al rule that “at- will” employ ees a re te rminable a t any

time for any

or no ca use. See Id. at 181-82.

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¶ 26 To state a claim for reta liatory discharg e, a plaintiff must establish the following elements: (1) she was an employ ee of the defe ndant at or befor e the time of the injury ; (2) she exercised some rig ht under the Act; and (3) her discharg e was causa lly rela ted to the exercise of her rig hts under the Act. Grabs v. Safeway, Inc. , 395 I ll. App. 3d 286, 291 (2009). The element of causa tion is not met, howeve r, if the employ er has a valid, nonprete x tual basis for discharg ing the employ ee. Clemons v. Mec hanical Dev ices Co. , 184 I ll. 2d 328, 336 (1998). As to the element of causa tion, “the ultimate issue to be dec ided is the employ er’ s motive in discharg ing the employ ee.” Id. ¶ 27 I n this case , Oak Tree soug ht to s h o w t h at p l ai ntiff’s claim of reta liatory discharg e wa s judicially estopped by eliciting testimony from plaintiff that she had claimed an inability to work in various applications for social secur ity disability income. Plaintiff’s theory of the case , howeve r, did
not depend upon her own ability to work; rathe r, she alleg ed that her discharg e was solely predic ated
upon her filing of a worke r’s compen s at i o n cl ai m under the Act. Moreove r, at trial, Oak Tree
prese nted no evidenc e to indicate that there was a valid, nonprete x tual basis for discharg ing plaintiff. See Clemons , 184 I ll. 2d at 336. To the contra ry , Demar ’s testimony reve aled that he never had an issue with plaintiff’s job perf ormanc e and that he was skeptical as to the validity of plaintiff’s injury

. On this last point, Demar testified that he had “hea rd too many soft tissue stories,” and that he found it “har d to ima g ine car

pal tunnel from hostessing or waitre ssing or car ry out,” believing that only “hea vy lifting” cause d car

pal tunnel injuries, and descr ibing plaintiff’s lifting require ments as either

a pot of coff

ee or a cup of coff

ee. There fore , since (i) defe ndants never prese nted any evidenc e that their valid, nonprete x tual basis for discharg ing plainti ff wa s due to her inability to work; and (ii) plaintiff’s reta liatory discharg e claim was sol el y p re dicated upon defe ndants’ terminating her

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employ ment solely due to he r worke r’s compensa tion claim, her social secur ity claim that she was unable to work due to a disabling condition was not a “fa ctually inconsistent” position that judicially estops her claim here

. I n so finding , we note that her later course of conduct might shed some doubt

on the repr esenta tions she made to the Social Security Administration, but that is not an issue befor e

us. Consequently , the t rial court did not err in apply ing the collater al s ource rule, and Oak Tree’ s first claim of e rror

is without m erit. ¶ 28 Moreove r, our decision is unaff ecte d by Oak T re e’s relianc e on Muellner v. Mars , 714 F. Supp. 351 (N.D. I l l

. 1 9 8 9 ), L evar v. Freem an , 967 F. Supp. 1055 (N.D. I ll. 1997), and Smeilis v. Lipkis , 2012 I L App (1st) 103385. I n Mu el l ner , a “nec essar y prer equisite” for the plaintiff’s
reta liatory discharg e count (to which the defe ndant employ er soug ht to apply judicial estoppel) was that the plaintiff be able to perf orm the duties of her job with the defe ndant. Muellner , 714 F. Supp. at 360. I n Levar , the plaintiff filed a complaint alleg ing discrimination a nd reta liation in violation of the Ame rica

ns with Disabiliti es Ac t of 1990 (42 U.S .C. § 12101 et s eq. (1994))

. Levar , 967 F. Supp. at 1056. Specifica lly , the Levar plain t i ff claimed that “the adver se action was a ref usal to hire.” Id. at 1059. ¶ 29 Finally , in Smeilis , the plaintiffs had filed a medical neg lige nce claim ag ainst the def endant hospital, nursing home, and medical doctor, b u t s et tled with the hospital and nursing home and dismiss ed the complaint ag ainst all of the defe ndants. Smeilis , 2012 I L App (1st) 103385, ¶¶ 1, 12. Wit hin one month, howeve r, the plaintiffs filed a new complaint ag ainst the doctor, which included the opinion of a new expert witness contra dicting the opinion o f t h e ex p er t wi tness in the first lawsuit and indicating that the doctor was not neg lige nt. Id. ¶¶ 13-14. This court aff irmed, holding

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that judicial estoppel should apply beca use the plaintiffs “adopte d a wholly new view of the fac ts in order to rec over a g ainst the sole re maining phy sician.” Id. ¶ 33. ¶ 30 I n this case , plaintiff’s claim is not predic ated upon a ref usal to hire and her ability to pe rfor m her job is not a “nec essar

y prer equisite” to succe eding in her claim of reta liatory discharg e for simply filing a claim under the Act. Unlike the expert opinion in Smeilis , which wa s n ec es sary for the plaintiff to succe ed in her medical neg lige nce claim, plaintiff’s claim is sufficie ntly unrela ted to her alleg ations in her disability applications. There fore , Muellner , Levar , and Smeilis do not compel a differ ent re sult. ¶ 31 Def endants’ Motion for

a Ne w Trial/Judgment n.o.v. ¶ 32 Oak Tree next challeng es the trial court’s denial of its motion for a n ew t ri al o r judg ment

n.o.v. Specifica lly , Oak Tree arg ues that it is “unconte sted” that plaintiff failed to work for the full eig ht y ear s require d in the contra ct, and that Oak Tree did not brea ch the contra ct. For that rea son,

ac cording to Oak Tree , the trial court should have either enter ed judgme nt n.o.v. in its favor o r g rante d Oak Tr ee a

new tria l. ¶ 33 As a preliminary matter, we must discuss the relev an t s t an d ar d s o f review. I n Y ork v. Rush-Presby terian-St. Luke’s Med i ca l C en ter , 222 I ll. 2d 147 (2006), the supreme court was confr onted wit h a ch all eng e to a denial of t he defenda nt’s motion for new t rial or judgme nt n.o.v. The court reiter ated the holding t h at a judgme nt n.o.v. should be g rante d only wher e all of the evidenc e, viewed i n t h e l i gh t most favor able to the oppos ing party , so overw helmingly favor s the moving party that no contra ry verdic t based on that evidenc e could ever stand. Id. at 178. “I n other words, a motion for judgme nt n.o.v. prese nts ‘a q u es t i o n o f l aw as to whether , when all of the

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evidenc e is consider ed, tog ether with a ll r easona

ble infere nces from it in its a spect most fa vorable
to the plaintiffs, there is a total failure or lack o f evidence to prove any nece ssary element of the [pl aintiff’s] case .’ ” Id. (quoting Merlo v. Public Servic e Co. of Northern Illinois , 381 I ll. 300, 311 (1942))

. J udg ment n.o.v. is a high standard, and it should not be enter ed if rea sonable minds might differ as to infere nces or conclusions to be draw n from the fac ts prese nted. Id. Fur thermore , we may
not usurp the jury ’s function and substitut e our judgme nt on quest i o ns of fac t that wer e “ ‘fa irly submitt ed, tried, and deter mined from evidenc e that did not g rea tly preponde rate either way .’ ” Id. (quoting Maple v. Gustafson , 151 I ll. 2d 445, 4 5 2-53 (1992)). We revie w a trial court’s denial of a motion for judg ment n.o.v. de novo. I d. ¶ 34 I n contra st, a mot ion for a new trial should be gra nted onl y when the verdic t is contrary to the manifest weig ht of the evidenc e. Id. at 178-79 (citing Mizowek v. De Franco , 64 I ll. 2d 303, 310 (1976))

. “A verdic t is contra ry to the manifest weig ht of the evidenc e when the opposite conclusion is clea rly evident or when the jury ’s finding s prove to be unrea sonable, arbitra ry and not based upon any of the evidenc e.” Id. at 179. “We are mindful that cre dibilit y deter minations and the resolution of inconsistencie s and conf licts in testim ony

are for the jur

y .” Id. ¶ 35 The essential elements of a brea ch of contra ct are : (i) the exis tence of a valid and enf orce able
contra ct , (ii) perf

ormanc e by the plaintiff, (iii) brea ch of the contra ct by the defe ndant, and (iv) resultant injury to the plaintiff. Coghlan v. Bec k , 2013 I L App (1st) 120891, ¶ 27. The terms of an ag ree ment, if unambig uous, should g ener ally be enfor ced as they appea r, and thos e te r

ms will control the rig hts of the parties. Id. (citing Dowd & Dowd, Ltd. v. Gleason , 181 I ll. 2d 460, 479 (1998))

.

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Any ambig ui t y i n a contra ct term, howeve r, must be resolved ag ainst the draf ter of the disputed provision. Id. ¶ 36 I n this case , the evidenc e showed that plaintiff suffe red injuries to h er h an d s an d fi led a worke r’s compensa

tion claim. When she contac ted defe ndant--who never had an issue with her job perf ormanc e-- to arr ang e for her return to work, defe ndant informed her that she was terminated. As noted above, Demar ’s testimony reve aled that he never had an issue with plaintiff’s job perf ormanc e, that he disbelieved plaintiff’s injury beca use he had “hea

rd too many soft tissue stories,” and that he
g ener ally found it “har d to imag ine car pal tunnel from hostessing or waitre ssing or car ry out” beca

use only “hea vy lifting” cause d car

pal tunnel injuries and plaintiff’s lifting require ments consisted of either a pot of coff

ee or a cup of coff

ee. These fac ts, construed i n t h e light most favor able to plaintiff, established that Oak Tree terminated plaintiff in reta liation for filing a claim under the Act. ¶ 37 Plaintiff’s defe rre d compensa tion a g ree ment provided that plaintiff would be 100% vested in the trust funds if she wer e discharg ed “not for cause ” and require d “continuous employ ment” by plaintiff for the entire term of the agre em en t , b ut excluded discharg e by the employ er “without

cause .” Finally , both copies had a provision tha t, if any term wer e found to be void, the rema ining provisions would be binding “with the same eff ect as though the void parts wer e deleted.” Although the agr eeme nt d efined discharg e “for cause” as, inter alia , excessive absenteeism, construing that provision as allowing discharg e for cause for filing a claim under the Act would rende r it void as ag ainst pubic policy

. Kelsay , 74 I ll. 2d at 181; Mohanty v. St. John Heart Cli nic, S.C. , 225 I ll. 2d 52, 64-65 (2006). Acc ording ly , Oak Tree ’s discharg e of plaintiff in r etaliation for her claim under
t h e Ac t was not a discharg e for cause , plaintiff vested 100% in the funds under the defe rr ed

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compensa tion ag ree ment, and her discharg e could not be excluded from the definition of continuous employ ment. ¶ 38 As such, we cannot hold that all of t he evidence, viewed in the l ight m o s t favor able to the opposing party ( i.e. , plaintiff), so overw helmingly favor s Oak Tree that no contra ry verdic t based on that evidenc e could ever stand. Y ork , 222 I ll. 2d at 1 7 8

. W e al s o cannot hold that the opposite conclusion from the jury ’s verdic t is clea rly eviden t or the jury ’s finding s wer e unrea sonable, arbitra ry , or not based upon any of the evidenc e. Id. at 179. There fore , the trial court did not err in deny ing de fenda

nts’ combined motion for judg ment n.o.v. and motion for a ne w trial. ¶ 39 Plaintiff’s Mitigation of Da mag es ¶ 40 Oak Tree ’s final contention on appea l is that the trial court err oneously preve nted Oak Tr ee from prese nting evidenc e of plaintiff’s failure to mitigate her damages , b u t t he court nonetheless instructed the jury that Oak Tree had the burden to prove failure to mitigate. This final contention, howeve r, is unavailing beca use Oa k Tree has for feited c onsideration of this issue. ¶ 41 At the out set, Oak Tree’ s arg ument on thi s i s s u e i n its opening brief consists of four short
para g raphs of fac ts, a

nd one equally short para g raph of arg ument without citation to any authority

. Supreme Court Rule 341 require s that an appellant include in its arg ument “citation of the authorities *** relied on.” I ll. S. C t. R. 341(h)(7) ( eff . Fe b. 6, 2013). I n addition, it is well established that a revie wing court is not “simply a depository in which the appea ling party may dump the burden of
arg ument and rese arc h.” Pec ora v. Szabo , 109 I l l. App. 3d 824, 825-26 (1982) (holding that plaintiff’s failure to cite any authority in support of his three -pag e arg ument forf eited the claim). For this reason a lone, we f

ind that Oak Tre e has f

orfe ited this claim.

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¶ 42 I n addition, a s plaintiff points out, Oak Tree and its codef endants ne ver r aised this issue in their combined motion for judgme nt n.o.v. and for a new trial. Oak Tree do es n o t addre ss this
arg ument in its reply brief. I t is axiom atic t h at, i n order to prese rve an issue for review, “[ b ] oth a
t ri al objection and a written post-trial motion raising the issue are require d for alleg ed err ors t h at could have been raised during trial.” (Emphasis in orig inal.) People v. Enoch , 122 I ll. 2d 176, 186 (1988). The rationale for requiring that an issue be raised in a written posttrial motion was explained

over 50 y ear s ag o: “A trial judge s h o u l d have an opportunity to appra ise the err ors which are

asser ted to have taken place

. I t is unfair to char g e him with err ors in a revie wing court without h av i n g b ro u g ht them to his attention so that a new trial could have been g rante d if he found i t advisable.” Perez v. Baltimore & Ohio R.R. Co. , 24 I ll. App. 2d 204, 210 (1960). Her e, howe ver, the trial court was denied any opportunity to consider Oak Tree ’s contention that deny ing Oak Tree the opportunity to prese nt evidenc e as to plaintiff’s failure to mitigate her damag es war rante d a new trial. Ther efor e, on this additional g round, Oa k Tree has for feited this claim. ¶ 43 CONCL USI ON ¶ 44 Acc ording ly , we a ffirm the judg ment of the trial c ourt. ¶ 45 Affir

med.

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