WERDERMAN v. LIBERTY VENTURES LLC (2006)

Plaintiffs, Jeffrey and Tina Werderman, purchased a house that, as soon as they moved in, exhibited an unsafe and unhealthy mold infestation, the effects of which forced plaintiffs almost immediately to move out of the house.   Plaintiffs sued defendants, Liberty Ventures, LLC (Liberty Ventures), Brian Marshall and Eugene Rosendale (collectively, the Liberty Ventures defendants);  Ron Mick, d/b/a The Hometeam Inspection Service (Hometeam);  Naperville Professionals, Inc., d/b/a Re/Max Professionals Select (Re/Max), Matthew Bailey, Christian Chase, and Walter Chase (collectively, the Re/Max defendants), alleging that defendants had defrauded them by marketing and selling to them a home that had water damage and mold infestation.   Following a joint bench and jury trial, the jury returned a general verdict in favor of plaintiffs on their claims at law, including common-law fraud, breach of fiduciary duty, civil conspiracy, breach of contract, negligent misrepresentation, and professional negligence, against defendants Re/Max, Liberty Ventures, and Hometeam.   The trial court returned a judgment in favor of defendants Re/Max and Liberty Ventures and against plaintiffs on plaintiffs' claims under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a, 10b (West 2002)) and the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/55 (West 2002)).   On appeal in case No. 2-05-1073, plaintiffs contend that the trial court's judgment on their statutory claims cannot stand in light of the jury's verdict on their common-law claim.   On cross-appeal in that case, the Re/Max defendants contend that the trial court erred by allowing plaintiffs to amend their complaint to allege punitive damages and that the jury verdict awarding compensatory and punitive damages awards was against the manifest weight of the evidence.   We affirm.   On appeal in case No. 2-06-0036, plaintiffs contend that the trial court erroneously dismissed their petition for costs due to lack of jurisdiction.   We reverse and remand.

As an initial matter, this opinion involves issues of first impression as well as issues that are not precedential.   Accordingly, we have denominated portions of the opinion nonpublishable under Supreme Court Rule 23 (166 Ill.2d R. 23), including most of the detailed recitation of facts.   In order to provide context for the publishable portion of this opinion, we provide a brief summary of the salient facts.

These consolidated appeals arise out of several real estate transactions involving a three-bedroom, two-bathroom, ranch home located at Boat Lane in Oswego, Illinois.   Late in 2001, the home had been foreclosed by the Department of Veterans Affairs (VA) and, while it stood vacant, had experienced flooding and water filtration. The VA cleaned up the property by removing debris, but did not check for mold or take steps to remedy any potential mold infestation.   The VA offered the property for sale “as is.”   During that time, neighbors observed water damage and mold damage to the property.   The VA eventually sold the home “as is” to the Re/Max defendants.

The Re/Max defendants offered easily repaired properties for sale to investors.   Their business plan was to purchase such a property and immediately sell it to an investor.   The Re/Max defendants would suggest persons who could accomplish the repairs, list and sell the property for the investor, and earn a commission on the sale.   The investor would earn profit through flipping the property after completing the repairs.

Before purchasing the Boat Lane property, the Re/Max defendants, along with the Liberty Ventures defendants, inspected the property several times.   The Liberty Ventures defendants observed that the floor had been warped and buckled as a result of water infiltration.   The Liberty Ventures defendants testified at trial that they believed the water damage was due to a burst pipe.   The Re/Max defendants consistently denied that, at any time relevant, they had observed any water damage or mold infestation.   Immediately upon their purchase, the Re/Max defendants sold the property to the Liberty Ventures defendants.   The Liberty Ventures defendants repaired the property and painted it.   The Re/Max defendants listed the property for sale.   While listed with the Re/Max defendants, interested realtors and buyers who toured the property observed what they believed to be mold in the basement and an overwhelming moldy or musty smell in the house.   One realtor called Walter Chase and explained that a client's lowball offer was the result of mold.   Chase replied that the client did not know what he was talking about and that everyone knows that bleach and water will clean up mold.   During his testimony, Chase denied that this conversation occurred.   Ultimately, plaintiffs purchased the Boat Lane property.

Before completing the purchase, plaintiffs toured the property and had it inspected.   Plaintiffs did not discover mold or other damage.   Plaintiffs were not informed that water damage had been repaired in the property.   After they moved in, plaintiffs discovered extensive mold infestation in the property and experienced adverse health effects as a result of the presence of mold.   Plaintiffs sued defendants, alleging common-law fraud and consumer fraud under the Consumer Fraud Act, based on defendants' failure to disclose the presence of water damage and mold in the property.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following portion of this opinion is nonpublishable under Supreme Court Rule 23.]

We now provide a detailed recitation of the facts contained in the record on appeal, which are helpful to understand the issues raised in the Re/Max defendants' cross-appeal.   The Boat Lane property was a three-bedroom, two-bath ranch home with a living room, a dining room, a family room, and a kitchen.   Additionally, at times relevant here, the home also contained an unfinished basement that followed the floorplan of the first floor.

Late in 2001, the Department of Veterans Affairs (VA) owned the property as a foreclosure property.   In November of 2001, the home had experienced water infiltration or flooding and contained some mold.   Two VA contractors observed buckled flooring throughout the first floor of the property.   David Wilson was hired to clean out the property.   He removed waterlogged debris from the basement of the property, including ceiling tile, drywall, and insulation, and otherwise secured the property.   Wilson testified that he also cleaned the basement floor and walls up to the basement ceiling.   Wilson testified that he did not perform remediation for the mold infestation at that time.   Wilson also testified that, after he cleaned out the property, he continued to observe a grayish substance on the ceiling joists and ceiling in the basement.   Additionally, the contractors did not repair the warped portions of the first-floor flooring;  instead, it remained buckled throughout the VA's ownership of the property, even until June 2002, when the VA sold the property.

In the winter of 2002, Rosendale and Marshall, the principals of Liberty Ventures, met with Re/Max agent Chris Chase regarding real estate investment opportunities.   At that time, Re/Max was offering investors the opportunity to purchase a residential property, coordinate the hiring of contractors to perform repairs, and then market the rehabbed property through Re/Max for sale to the public.   Re/Max was marketing the program as a turn-key opportunity that required little expertise from the investors.   The Liberty Venture defendants decided to pursue the opportunity and the Boat Lane property became Liberty Venture's third test property for the Re/Max business model being offered at that time.

Early in 2002, the VA listed the property for sale to the public “as is.”   The listing of the property was available both to individual purchasers as well as to real estate agents via a website.   The listing included a code of “WD/RO” with a link to its glossary showing that “WD” meant “water damage” and “RO” meant that funds to rehab the property were not available.

In April 2002, Chris Chase submitted a successful bid for the property.   While Chris Chase executed the documents necessary to purchase the property, the documents all bear his brother-in-law Matthew Bailey's name.   Chris Chase explained that it was the practice at Re/Max to place Bailey's name on all VA foreclosure properties.   Similarly, it was Re/Max's practice to place Chris Chase's name on all the HUD properties it purchased.   Chris Chase explained that this division was maintained for the administrative purposes of Re/Max.   Bailey testified that he had given his authority to a number of people, his lawyer and her office, as well as the rest of the Chase team in the Re/Max office, to bid on or to purchase property in his name.   Bailey did not know, however, that the property had been purchased in his name until this cause was instituted in 2003.

In April 2002, Walter and Chris Chase, who between them had more than 20 years of real estate sales experience, toured the property.   Each testified that he observed nothing unusual about the property-specifically, each testified that he observed no evidence of mold or of water infiltration or flooding.   Further, each testified that he noticed no unusual smells and noticed nothing out of the ordinary about the walls or the floor.   Both Walter and Chris Chase testified that they had no knowledge concerning whether the property had sustained any water damage.   Walter Chase also testified that he believed that the VA codes, “WD/RO” stood for “wind damage” and “roof”.   Walter Chase was impeached with his deposition testimony in which he stated his believe that “RO” meant that the roof was gone.

Also in April 2002, several neighbors toured the property.   All of the neighbors testified that they observed that the floor had buckled or become wavy or warped.   Further, some observed a substance on the walls that they believed to be mold, and they noticed a musty smell in the house.   One of the neighbors, Christopher Lawrence, testified that he observed water standing in the basement during the time the house was unoccupied.   Also during April 2002, Barbie Poppen, a licensed real estate sales agent, along with her clients, the Salmons, toured the home and noticed a musty smell and observed the warped floor, and observed something they believed to be mold on the ceiling of the basement, the joists, and on the walls and in the corners of the basement.

Chris Chase testified that, in May 2002, he toured the property with Marshall and Rosendale from Liberty Ventures.   Chris Chase testified that he observed nothing unusual about the property.   By contrast, both Marshall and Rosendale testified that they observed that the floor was warped.   Both attributed the warped floor to a burst pipe in the kitchen.   Marshall and Rosendale testified that they did not observe any mold in the property.   Re/Max put Liberty Ventures in touch with Michael Vacko, who prepared an estimate of repair costs that included bleaching the baseboards and portions of the basement.

In June 2002, Chris Chase executed the documents to purchase the property from the VA. The property was purchase from the VA in an “as is” condition.   Matthew Bailey testified that, while the purchase contract on behalf of Re/Max was in his name, he did not sign the contract;  either Chris Chase or Chris Chase's wife signed his name to the contract, pursuant to Re/Max's administrative policy. On the same day that Re/Max purchased the property, Chris Chase sold the property to Liberty Ventures, also in an “as is” condition.   Both Re/Max and Liberty Ventures purchased the property for about $161,000.

Liberty Ventures hired Vacko and his company, Masterpiece Painting, to make repairs to the property, including bleaching portions of the basement and baseboards throughout the house.   Vacko testified that he spent about 15 hours performing repairs to the interior of property, including repairing the warped portions of the first-floor flooring and bleaching in the basement;  his sister and another person performed some work on the exterior of the property.   Vacko testified that he did not observe any mold, but testified that he smelled animal urine in the home.   Vacko explained that he used bleach to counteract the smell of animal urine.   For his work on the property, Vacko received about $8,000.   Liberty Ventures retained separate contractors to replace the carpeting and to perform repairs to the heating, ventilation, and air-conditioning system.

Late in July 2002, Liberty Ventures signed an exclusive listing agreement with Re/Max.   Liberty Ventures also signed a residential disclosure form that stated that they knew of no material defects in the property.   Re/Max prepared an entry into the Multiple Listing Service (MLS) to be used in selling the property to the public.   The entry did not disclose any information about the prior condition of the home, how it came to market, or any of the defects claimed to be present in the home by plaintiffs.   Instead, the entry stated that the property was a “10+++” with fresh paint, new carpet, and a huge, ready-to-finish basement.

During the summer of 2002, while the property was listed with Re/Max, Diane Farino, a licensed real estate agent, visited the property with clients.   Farino testified that she quickly left the property due to a strong musty smell in the property that caused her breathing difficulties.   Her clients decided to place a bid on the home, albeit a lowball bid.   Farino testified that she called Re/Max and spoke to Walter Chase.   Farino told Walter Chase that her clients made a low bid because of mold pervading the property.   Farino testified that Walter Chase responded to her, “What the hell do they know about mold, anyone knows that water and bleach will take care of that.”   By contrast, Walter Chase testified that he never made the statement and that he never spoke to Farino.

Farino's testimony about when she visited the property was impeached.   During her deposition, Farino had testified that she was at the property in the summer of 2003, after the events at issue in this suit.   During the deposition, plaintiffs' counsel talked to Farino in the hallway and off the record.   Upon resuming her deposition, Farino testified that she was at the property in the summer of 2002.   Farino explained, both at trial and at her deposition, that she was sure that she had visited the property while the property was listed with Re/Max.   She further explained that plaintiffs' counsel had not told her to change her testimony and Farino maintained that she had confused the year.

Additionally, in the summer of 2002, Poppen and Salmon returned to the property after Liberty Ventures had repaired it.   Both testified that they observed that mold was still present.   Salmon testified that the basement ceiling appeared to be in the same condition.

In January 2003, Courtney Elgin was assisting plaintiffs in searching for a new home.   They toured the Boat Lane property.   At the time they toured the property in January 2003, the home was cold, unoccupied, and smelled of new paint and new carpet.   While Elgin and Tina were in the basement for the first time, they were unable to find a light switch and were unable to see much.   After the initial visit, Tina returned to the property with Jeffrey and they again went through the house.   After some negotiating.   Liberty Ventures accepted plaintiffs' offer of $200,900 to purchase the property.

On January 28, 2003, plaintiffs hired Ron Mick and Hometeam to perform a general home inspection and radon test of the property.   Plaintiffs did not ask for or pay for Hometeam to perform mold testing;  Mick testified that he was not qualified to perform a mold test.   Jeffrey testified that, notwithstanding this, he believed that Mick would inform him of any mold damage or suspected mold problems that he might uncover.

Mick inspected the home for about an hour-and-a-half.   He noted no problems in the basement other than a “typical” small crack in the foundation and some staining around the crack.   Additionally, Mick noted that the electrostatic filter and humidifier in the furnace unit were not working.   Plaintiffs accepted the inspection and, on March 17, 2003, the purchase closed as scheduled.

Shortly after completing the close, plaintiffs and their two children moved into the property.   Immediately upon moving in, three of the four family members fell ill.   They experienced, to varying degrees, dizziness, nausea, headaches, ear aches, nose bleeds, diarrhea, painful lymph nodes, rashes, and irritations of the eyes, nose, throat, and lungs.   Tina's symptoms would subside during the day while she was at work, but her symptoms would return when she came home from work.   One of plaintiffs' children had asthma and experienced heightened symptoms and irritation;  the other child, who did not have asthma, appeared to be fine.

During their first week of occupancy of the property, plaintiffs spoke with neighbors who had lived on Boat Lane for years.   The neighbors pointed out specific sections of the basement ceiling that were discolored.   Plaintiffs also learned some of the history of the prior conditions present in the property, including the fact that there had been water infiltration or flooding, and that the floor had been warped at some time before the property had been sold to Liberty Ventures.   During the first week of occupancy, plaintiffs began to purchase and install new appliances.   When the dishwasher was pulled out, plaintiffs discovered a thick, black substance covering the wall behind the dishwasher and the floor under the dishwasher.   As time passed, plaintiffs began to discover more discolorations in their walls and floors and began to suspect that mold pervaded the property.

Plaintiffs hired two different environmental testing companies to assess their property, spending several thousand dollars in the process.   After the first environmental testing Company, Carnow & Conibear, had performed its tests, plaintiffs removed the baseboards and some of the paneling in the first floor and discovered mold in the walls.   Carnow & Conibear informed plaintiffs that there was mold present in their home.   Plaintiffs began to clean what they could of their possessions;  possessions that were porous, like clothes and books, they discarded.

Plaintiffs hired Midwest Environmental Consulting Services to conduct another test.   Industrial hygienist, James Albert, performed the inspection and provided plaintiffs with a report and analysis.   Albert took photographs of the mold and testified that mold was pervasive throughout the property.   He also conducted air sampling.   Albert's testing revealed that the property was indeed contaminated with mold and that it was uniformly distributed throughout the house, in the sub-floor, baseboards, molding, and drywall.   Albert recommended remediation to remove the mold, providing an estimate of about $43,000 to accomplish the remediation.

Plaintiffs also obtained a reconstruction estimate from Neal Dodd of LJ Dodd Construction.   Dodd inspected the property and observed that the floor joists and perimeter sills contained a greenish-gray residue.   Dodd also observed mold at the base of the walls, and mold about a half-inch thick in the kitchen where the dishwasher had been. Dodd estimated it would cost about $76,500 to rebuild the house after remediation had been performed.

Plaintiffs also became concerned for their health and that of their children, especially the child with asthma.   Plaintiffs moved out of the property and into a rental property, which was 20 minutes away from the children's school.   Plaintiffs also, through counsel, sought to rescind the purchase agreement with Liberty Ventures.   Liberty Ventures refused to rescind the purchase.

When plaintiffs' efforts to rescind the purchase failed, plaintiffs filed suit against defendants in this case.   Ultimately, plaintiffs filed a first amended verified complaint as modified with allegations seeking punitive damages (amended complaint).   The amended complaint sought relief under the Consumer Fraud Act against the Re/Max defendants and the Liberty Ventures defendants and under the Disclosure Act against the Liberty Ventures defendants.   The amended complaint also contained claims for breach of contract and rescission against the Liberty Ventures defendants, civil conspiracy against the Liberty Ventures and Re/Max defendants, negligent misrepresentation against the Re/Max defendants, common-law fraud against the Liberty Ventures and Re/Max defendants, and professional negligence against Hometeam.

On March 31, 2005, the trial court granted leave to plaintiffs to seek punitive damages against the Liberty Ventures and the Re/Max defendants.   The matter proceeded to a combined jury and bench trial on all issues except rescission.   The issue of rescission had become moot because plaintiffs had divested themselves of ownership of the property.

At trial, in addition to the elicitation of the foregoing facts, the parties presented various expert testimony relevant to various claims.   Plaintiffs presented the testimony of Corey Friedman, an Illinois-licensed home inspector.   Friedman testified that Mick had not fulfilled the standards of professional conduct pertinent to a home inspector.   Friedman testified that Mick did not inspect readily accessible systems and components of the house, like the joists in the basement ceiling.   Based on the pictures of the basement ceiling he reviewed, Friedman opined that there was obvious discoloration resulting from water infiltration.   Friedman testified that an inspector should be able to identify water damage and should know that water damage may cause rotting of the wood and other deterioration that could threaten the structural integrity of the property being inspected.   He further opined that a home inspector should also be aware that water infiltration could lead to the growth of mold which can also be dangerous to the occupant of the property.

Defendants presented Stephen James, an Illinois-licensed building inspector.   James testified, in agreement with Friedman, that inspectors are required to report items that are visible and in plain view and are not allowed to perform destructive testing, like opening up the walls, and are not required to move appliances in conducting their inspection.   James testified that, in his opinion, Mick's inspection met professional standards.

As noted above, plaintiffs presented the testimony of Albert relating to the mold infestation of the property.   Albert described the sorts of testing he performed, including the air sampling he undertook.   Albert opined that the house was uninhabitable due to the mold he discovered pervading the property.   Albert also opined that, because some mold, like that found behind the stove and dishwasher, grew so slowly, he believed that the mold pervading the house was present in April 2002 as well as when he conducted his testing in April 2003.

Defendants presented the testimony of Stephen Rupkey, an industrial hygienist.   Rupkey testified that he is employed by the Clayton Group Services, one of the largest health and safety environmental consulting firms.   Rupkey's duties included visiting sites where there is potential chemical or asbestos exposure and comparing whether the concentrations of the suspected contaminant exceed those allowable under governmental regulation.   Rupkey testified that mold differs from chemicals or asbestos because a specific level of concentration cannot be set for mold due to the fact that there are hundreds of thousands of different types, each of which provokes a different reaction in persons exposed to it.

Rupkey generally criticized Albert's methodology and conclusions.   Rupkey testified that neither Albert nor he were qualified to render an opinion on whether the house was habitable because it was more properly a medical conclusion.   Rupkey also challenged Albert's conclusion that the mold infestation had been present a year before testing, opinion that there was no way to date mold.   Rupkey stated that he would have conducted the airborne mold testing differently than Albert, but conceded that there was no single, standard method to conduct such testing.   However, Rupkey testified that Albert's air sampling was deficient because he took only a single sample of outside air and compared the single sample to samples of inside air.   Rupkey stated that this was improper because mold concentrations in outside air were extremely variable to the point that samples taken a few feet apart could give extremely different results.   Rupkey criticized Albert's performance of the wall sampling, noting that he pounded on the walls and measured mold spores, and not active, living mold.

The parties also presented expert testimony regarding the standard of care applicable to a real estate broker.   Plaintiffs' expert, Poppen, testified that the Re/Max defendants had not met applicable professional standards by failing to discover and disclose the mold infestation in the property.   Defendants' expert, John Hoffman, testified that the Re/Max defendants had acted in a professional manner because they did not have a duty to disclose the mold infestation because they did not know about it.

[The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.]

Following the presentation of evidence, the jury returned a general verdict in favor of plaintiffs, and against Re/Max, Liberty Ventures, and Hometeam, on all of the claims submitted to the jury, including common-law fraud, breach of fiduciary duty, civil conspiracy, breach of contract, negligent misrepresentation, and professional negligence.   The jury awarded plaintiffs $71,545 in compensatory damages and awarded $69,175 in punitive damages against Re/Max only.   The jury hand-wrote its allocation of compensatory damages on the verdict form, attributing $9,100 to Liberty Ventures, $62,160 to Re/Max, and $285 to Hometeam.   On July 22, 2005, the court entered judgment on the jury's verdict, and the judgment order was filed on July 26, 2005.

 On August 2, 2005, the trial court entered judgment in favor of the Re/Max defendants and the Liberty Ventures defendants and against plaintiffs on plaintiffs' statutory claims under the Consumer Fraud Act and the Disclosure Act. The trial court's order was entered nunc pro tunc to July 25, 2005.¹  The parties filed posttrial motions, which, on August 30, 2005 (the Re/Max defendants' motion), and September 22, 2005 (plaintiffs' and the Liberty Ventures defendants' motions), were denied.   Plaintiffs' timely appeals and the Re/Max defendants' timely cross-appeal in case No. 2-05-1073 followed.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following portion of this opinion is nonpublishable under Supreme Court Rule 23.]

On October 20, 2005, plaintiffs filed a petition pursuant to section 5-108 of the Code of Civil Procedure (Code) (735 ILCS 5/5-108 (West 2004)) for an award of costs on the ground that they were prevailing parties.   The Re/Max defendants moved to strike plaintiffs' petition for costs on the ground that the trial court lacked jurisdiction to consider it.   On January 6, 2006, the trial court granted the Re/Max defendants' motion to strike, reasoning that plaintiffs' petition for costs was not filed within 30 days of the entry of judgment.   Plaintiffs' timely appeal in case No. 2-06-0036 followed.   Thereafter, plaintiffs' motion to consolidate the appeals was granted.

[The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.]

We turn first to the issues raised in plaintiffs' appeals.   In case No. 2-05-1073, plaintiffs contend that, in light of the jury's resolution of their common-law fraud claim against Re/Max, Liberty Ventures, and Hometeam, the trial court's judgment on the statutory claim under the Consumer Fraud Act is inconsistent and must be brought into accord with the jury's verdict.   We note that this is the only ground on which plaintiffs challenge the trial court's judgment.   Plaintiffs do not raise an alternative argument that the trial court's judgment on the statutory claim was against the manifest weight of the evidence.

We begin with plaintiffs' arguments in case No. 2-05-1073.   Plaintiffs first argue that the inconsistency between the results of the bench trial and the jury trial must be resolved.   Plaintiffs note that the requirements to prevail in an action under the Consumer Fraud Act are less demanding than those necessary to prevail on a common-law fraud claim.   They then argue that, because the jury found against Re/Max, Liberty Ventures, and Hometeam on the more stringent claim of common-law fraud, the trial court's judgment on the statutory claim must give way and be brought into line with the jury's verdict.   Plaintiffs base their argument ultimately on the concept that the jury verdict acts as a collateral estoppel of the trial court to come to a different result.   Additionally, plaintiffs cite to several cases, from both Illinois and federal courts, that plaintiffs assert support their position.   Plaintiffs also invoke the sanctity of the right to a jury trial on their common-law claims as a further reason that the trial court's judgment cannot stand.

 Plaintiffs present the interesting issue of when and to what extent the jury's verdict must bind the trial court's judgment on common factual issues when a joint bench and jury trial is held.   Here, plaintiffs litigated a common-law fraud claim and a statutory fraud claim under the Consumer Fraud Act, both of which arose out of the same transaction.   Generally, proving a common-law fraud claim also results in proving a consumer-fraud claim based on the same evidence.   E.g., Washington Courte Condominium Association-Four v. Washington-Golf Corp., 267 Ill.App.3d 790, 823-24, 205 Ill.Dec. 248, 643 N.E.2d 199 (1994).   Here, however, the jury found that Re/Max, Liberty Ventures, and Hometeam had committed common-law fraud but the trial court did not rule that Re/Max or Liberty Ventures had committed consumer fraud.   Plaintiffs contend that such a result cannot be allowed to stand.   We disagree.

 There is no right to a jury trial in deciding a consumer-fraud claim.  Martin v. Heinold Commodities, Inc., 163 Ill.2d 33, 76, 205 Ill.Dec. 443, 643 N.E.2d 734 (1994).   Plaintiffs appear to conflate the right to a jury under the federal constitution with the right to a jury under the Illinois Constitution.  Martin holds that the rights are different and that the right under the Illinois Constitution is somewhat more limited than the federal right.  Martin, 163 Ill.2d at 72-73, 205 Ill.Dec. 443, 643 N.E.2d 734.   The right to a jury trial under the Illinois Constitution is not guaranteed in any action nonexistent at common-law, even if the action is legal in nature;  rather, it continues in all cases where the right existed at common-law at the time the federal bill of rights was adopted.  Martin, 163 Ill.2d at 72-73, 205 Ill.Dec. 443, 643 N.E.2d 734.   The legislature may, however, create an action unknown at common-law and provide a right to a jury trial.  Martin, 163 Ill.2d at 73-74, 205 Ill.Dec. 443, 643 N.E.2d 734.   On the other hand, the right to a jury trial under the federal constitution has been interpreted to extend beyond the common-law forms recognized at the time the Bill of Rights was adopted, to all actions at law.  Martin, 163 Ill.2d at 73, 205 Ill.Dec. 443, 643 N.E.2d 734.   Thus, while plaintiffs' claim that the jury's verdict should control the trial court's decision on common factual issues may find support in the federal law, it must be remembered that such support is derived from an entirely different right that does not translate to Illinois law.   Ultimately, as discussed in more detail below, plaintiffs' argument remains unavailing.

 Martin goes another step.   In addition to holding that the Consumer Fraud Act affords no right to a jury trial, it also holds that the legislature intended that an action under the Consumer Fraud Act be tried without a jury.   Martin, 163 Ill.2d at 76, 205 Ill.Dec. 443, 643 N.E.2d 734.   If plaintiffs' position were granted and the jury's verdict controlled the disposition of common factual issues, then plaintiffs would be receiving a de facto jury trial, at least as to the common factual issues.   This would violate the legislative intent behind the Consumer Fraud Act (see Martin, 163 Ill.2d at 76, 205 Ill.Dec. 443, 643 N.E.2d 734) and result in judicial legislation.   We may not add language or a provision to, or add exceptions, limitations, or conditions, or otherwise alter a statute so as to depart from the plain meaning of the language employed in the statute.  Hunter v. Southworth Products Corp., 333 Ill.App.3d 158, 164-65, 266 Ill.Dec. 676, 775 N.E.2d 238 (2002);  Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill.App.3d 506, 511, 159 Ill.Dec. 58, 575 N.E.2d 556 (1991).   The Consumer Fraud Act does not confer the right to a jury trial.   Allowing the jury's verdict to control would be to write into the Consumer Fraud Act the right to a jury trial where there is an accompanying claim of common-law fraud.   That we may not do, and plaintiffs' argument must fail.

 We next consider the specifics of plaintiffs' arguments in support of letting the jury's verdict govern the trial court's judgment.   We turn to the foundation of plaintiffs' contention-that the doctrine of collateral estoppel binds the trial court to follow the jury's verdict.   Plaintiffs argue that, where a jury claim exists along with a nonjury claim, the jury's factual determination reflected in its verdict on issues common to both claims will be binding on the trial court in rendering a decision on the nonjury claim.   According to plaintiffs, trying the claim to the jury collaterally estops the trial court from independently considering the common factual issues, especially where the jury claim is resolved first.   Plaintiffs contend that here, because the jury reached a verdict upon which the trial court entered judgment before the trial court ruled on their statutory claim, collateral estoppel should apply to preclude the trial court's conflicting judgment.   We disagree.

 Collateral estoppel “is an equitable doctrine of judicial origin created to prevent relitigation of previously adjudicated claims and is founded in principles of judicial economy.”  Ballweg v. City of Springfield, 114 Ill.2d 107, 113, 102 Ill.Dec. 360, 499 N.E.2d 1373 (1986).   The elements necessary to the application of collateral estoppel are:

“(1) whether the issue decided in the prior adjudication is identical with the one presented in the case in question;  (2) whether there had been a final judgment on the merits;  and (3) whether the party against whom estoppel is asserted is a party or in privity with a party to the prior adjudication.”   Ballweg, 114 Ill.2d at 113, 102 Ill.Dec. 360, 499 N.E.2d 1373.

Finality, for purposes of the application of collateral estoppel, requires that the “potential for appellate review must have been exhausted.”   Ballweg, 114 Ill.2d at 113, 102 Ill.Dec. 360, 499 N.E.2d 1373.

Here, obviously, the jury's verdict is nonfinal because it is being reviewed on appeal.   Thus, for the purposes of establishing collateral estoppel, there is no final judgment on the merits with respect to common-law fraud.   Further, logically, because the doctrine is rooted in the idea of preventing relitigation of a claim, the fact that the trial court is considering the same evidence as the jury at the same time the jury is hearing it does not implicate the doctrine of collateral estoppel.   Instead, the trial court is fulfilling its function as a concurrent finder of fact, and only one litigation of the matter has occurred.   Definitionally, therefore, plaintiffs run into trouble because the trial court's judgment is certainly not a relitigation of any of the issues;  at most it is a reconsideration of the issues presented jointly to the trial court and to the jury simultaneously.   For these reasons, collateral estoppel is inapplicable to the case at hand and cannot bind the trial court to follow the jury's factual determinations on common factual issues.

In addition to the failure of collateral estoppel as a mechanism to overturn the trial court's judgment on plaintiffs' statutory claim, plaintiffs' remaining arguments against the trial court's judgment are also unpersuasive.   Plaintiffs cite a number of cases, from federal and state appellate courts, that they assert are supportive of their argument.   We consider first the federal authority.

 It is well settled that federal decisions are not binding on Illinois state courts.  Ardon Electric Co. v. Winterset Construction, Inc., 354 Ill.App.3d 28, 38, 289 Ill.Dec. 513, 820 N.E.2d 21 (2004).   Despite the nonbinding nature of federal decisions, they can be considered to be persuasive authority, and they may be followed if the state court believes the federal analysis to be reasonable and logical.  Ardon Electric, 354 Ill.App.3d at 38, 289 Ill.Dec. 513, 820 N.E.2d 21.   We now turn to the four federal cases specifically cited by plaintiffs.

Three of the cases cited by plaintiffs are unsatisfactory because they turn on the particular holdings of the Seventh Circuit Court of Appeals (and indeed, the federal courts in general) regarding the interaction between Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000a (1986)) and section 1981 of the Civil Rights Act of 1866 (42 U.S.C. § 1981 (1986)).   In McKnight v. General Motors Corp., 908 F.2d 104, 113 (7th Cir.1990), the court held that the jury's factual findings on the plaintiff's section 1981 claim bound the trial court to follow those findings on the plaintiff's Title VII claim.   This holding, however, was premised on the fact that “the rule that makes the jury's verdict on a section 1981 claim dispositive of any common factual issues presented by the plaintiff's Title VII claim is well established in this circuit.”  McKnight, 908 F.2d at 113.  McKnight is distinguishable because this case does not involve the “well established” rule promulgated in the Seventh Circuit;  moreover, it does not involve the legal-equitable interplay exemplified in section 1981 and Title VII claims.   As a result, McKnight has very little persuasive force.

In Williamson v. Handy Button Machine Co., 817 F.2d 1290 (7th Cir.1987), a similar situation regarding the interplay between section 1981 and Title VII was addressed.   The court held that when legal and equitable actions are tried concurrently, the jury's verdict governs the common factual issues.  Williamson, 817 F.2d at 1293-94.   The court grounded its holding on the federal constitutional right to trial by jury.   In order to make sure the right to trial by jury remains uninfringed, the jury result in the legal action is allowed to control the trial court's judgment in the equitable action.   Williamson, 817 F.2d at 1293-94;  see also Lincoln v. Board of Regents of the University System of Georgia, 697 F.2d 928, 934 (11th Cir.1983).   This concern, however, does not translate to the Illinois courts.   As noted above, Martin, 163 Ill.2d at 73, 205 Ill.Dec. 443, 643 N.E.2d 734, held that the Illinois constitutional right to a jury trial differed from that under the federal constitution.   But the issue here is not so much one of vindicating the right to a jury trial as in Williamson, but fulfilling the legislative intent that a consumer-fraud action be tried by the bench.   Thus, while Williamson may be applicable to a joint proceeding in which legal actions and equitable actions are tried together, it does not have application where the statute at issue does not confer the right to a jury trial.   Further, Williamson appears to follow the well established rule discussed in McKnight.   For these reasons, Williamson is distinguishable.

In the last of the section 1981 and Title VII cases, plaintiffs rely on Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1137 (7th Cir.1992), for the proposition that the jury result must bind the trial court on the bench result.  Artis, however, like McKnight and Williamson, follows the rule observed in the Seventh Circuit of allowing the jury result to bind the trial court on common factual issues when section 1981 and Title VII claims are tried simultaneously.   Again, this holding is founded on the federal constitutional right to a jury trial;  the right in Illinois differs.   Martin, 163 Ill.2d at 73, 205 Ill.Dec. 443, 643 N.E.2d 734.   The right to a jury trial is not at issue here;  rather, it is the converse, the lack of a right to a jury trial under the Consumer Fraud Act, that is at issue here.   Additionally, as noted in Artis, the holding is based on the federal rule regarding legal-equitable issues tried jointly in general, and section 1981 and Title VII claims tried jointly in particular, which is observed in the Seventh Circuit and is therefore of limited value in the case at hand.

The fourth federal case, Florists' Nationwide Telephone Delivery Network v. Florists' Telegraph Delivery Association, 371 F.2d 263, 270-71 (7th Cir.1967), held that the jury trial portion of a concurrent bench-jury trial must proceed first in order to preserve the party's right to a jury trial.   In reaching this conclusion, the court stated that “in such a case [of legal and equitable matters together] a trial of either claim before the other raises a collateral estoppel to the relitigation of those issues essential to the decision which are common to both claims and are decided in connection with the claim tried first.”  Florists' Nationwide Delivery, 371 F.2d at 270.   Plaintiffs look to this statement in order to support their argument.   Florists' Nationwide Delivery is distinguishable, however, for two reasons.   First, it illustrates the legal-equitable rule followed by the Seventh Circuit.   As Florists' Nationwide Delivery hews to this rule, it is inapplicable to the case at hand in which the right to a jury has not been granted.   Second, and more importantly, despite the reference to collateral estoppel, the decision in Florists' Nationwide Delivery does not actually involve the rule of collateral estoppel.   This was recognized in McKnight:  in dismissing the collateral estoppel argument, the court stated that the general rule in which the jury's verdict binds the trial court in a dual bench-jury trial “is sometimes described as an application of the principle of collateral estoppel, but it is not, since there is no final judgment when the judge makes his decision-just a jury verdict on which judgment has yet to be entered.”   McKnight, 908 F.2d at 113;  see also Ballweg, 114 Ill.2d at 113, 102 Ill.Dec. 360, 499 N.E.2d 1373 (finality for purposes of collateral estoppel not achieved until appellate rights exhausted).  Florists' Nationwide Delivery is distinguishable and is unpersuasive.   Having reviewed the federal authority upon which plaintiffs rely, we find it to be distinguishable.

We next turn to the Illinois authority cited by plaintiffs in support of their argument that the jury's factual findings on common issues must bind the trial court's determination in a concurrent bench-jury trial.   Plaintiffs cite to First National Bank of Hoffman Estates v. Fabbrini, 255 Ill.App.3d 99, 194 Ill.Dec. 240, 627 N.E.2d 356 (1993), for that proposition.  Fabbrini, however, is distinguishable.   In Fabbrini, the defendants first filed an action against the plaintiff that ended up in the law division of the circuit court.  Fabbrini, 255 Ill.App.3d at 100, 194 Ill.Dec. 240, 627 N.E.2d 356.   The plaintiff answered the defendants' complaint and filed a counterclaim in that action.  Fabbrini, 255 Ill.App.3d at 100, 194 Ill.Dec. 240, 627 N.E.2d 356.   Later, the plaintiff also filed a separate action, seeking to foreclose the property at issue.  Fabbrini, 255 Ill.App.3d at 100, 194 Ill.Dec. 240, 627 N.E.2d 356.   The defendants answered the foreclosure complaint and filed an affirmative defense invoking the pendency of their action in the law division of the circuit court.  Fabbrini, 255 Ill.App.3d at 100-01, 194 Ill.Dec. 240, 627 N.E.2d 356.   Thereafter, the defendants moved to stay the foreclosure proceeding and the trial court denied the motion leading to the interlocutory appeal of the denial of the motion to stay.   Fabbrini, 255 Ill.App.3d at 101, 194 Ill.Dec. 240, 627 N.E.2d 356.

The appellate court held that the denial of the stay was erroneous because it would have the effect of compromising the defendants' constitutional right to a jury trial.  Fabbrini, 255 Ill.App.3d at 102-03, 194 Ill.Dec. 240, 627 N.E.2d 356.   Significant to its holding, the appellate court stated:

“[The plaintiff] argues that if it filed its foreclosure action as a counterclaim in the law division action, it would suffer irreparable harm due to the length of time that would elapse before trial.   However true this argument may be, it pales in comparison to the prejudice to the [defendants'] right to a jury trial if the foreclosure action proceeded to judgment before the previously filed action between the parties pending in the law division of the circuit court.   The [defendants] have exercised their constitutional right to a jury trial in the law division action.  [Citation.]  Because they do not seek affirmative relief in the foreclosure action, the [defendants] are not entitled to a jury trial as a matter of right.   [Citation.]  If judgment was entered in the foreclosure action before the law division action, the court's determination of the factual issues common to both actions would, by application of the doctrine of collateral estoppel, be binding upon the [defendants] in the law division action, thus depriving them of the right to have those common issues of fact determined by a jury.   The right to a jury trial is of constitutional origin and courts should be inclined to protect and enforce the right.  [Citation.]  Because we believe that the issues of fact common to the [plaintiff's] foreclosure action and its counterclaim in the law division action will determine the outcome in both actions, the [defendants'] right to have these issues determined by a jury is far more compelling than the [plaintiff's] interest in securing a speedier determination of its foreclosure action.”  Fabbrini, 255 Ill.App.3d at 102, 194 Ill.Dec. 240, 627 N.E.2d 356.

In Fabbrini, therefore, the court was concerned about the order in which two independent cases were resolved, because one, if resolved earlier than the other, could effectively preclude the defendants' exercise of their constitutional right to a jury trial.   Here, by contrast, there is only a single action, tried simultaneously to a jury and to the bench.   There is no issue of a final judgment raising the specter of the operation of collateral estoppel to deprive plaintiffs of their right to a jury trial.   Moreover, the jury verdict was entered first;  the trial court's decision in the Consumer Fraud Act claim followed.   There was also, therefore, no concern that the bench trial result would somehow precede the jury verdict and operate to preclude the trial court from allowing the jury result.   In addition, as noted above, plaintiffs had no right to have the jury consider their consumer-fraud claim.   This prohibition of the right to have the jury consider the claim, along with the other points noted above, renders Fabbrini too procedurally inapposite to support plaintiffs' contention.

Plaintiffs also turn to Washington Courte, 267 Ill.App.3d at 823-24, 205 Ill.Dec. 248, 643 N.E.2d 199, for the proposition that a finding of liability for common-law fraud necessarily encompasses the essential elements required to prove liability for a violation of the Consumer Fraud Act. There, the plaintiff alleged claims of both common-law fraud and a violation of the Consumer Fraud Act. Washington Courte, 267 Ill.App.3d at 796, 205 Ill.Dec. 248, 643 N.E.2d 199.   Following a trial, the plaintiff prevailed on both claims, and the defendant appealed the sufficiency of the evidence supporting both the jury's verdict on the common-law fraud claim and the trial court's judgment on the Consumer Fraud Act claim. Washington Courte, 267 Ill.App.3d at 793-94, 205 Ill.Dec. 248, 643 N.E.2d 199.   The appellate court, after carefully reviewing the evidence elicited at trial, concluded that the jury's verdict on the common-law fraud claim was not against the manifest weight of the evidence.   Washington Courte, 267 Ill.App.3d at 819, 205 Ill.Dec. 248, 643 N.E.2d 199.   In affirming the trial court's judgment on the claim under the Consumer Fraud Act, the appellate court held that “a determination that a plaintiff has established a prima facie case of fraud under the common-law is sufficient to warrant the conclusion that the same acts violate the Consumer Fraud Act.” Washington Courte, 267 Ill.App.3d at 823-24, 205 Ill.Dec. 248, 643 N.E.2d 199.

The posture of the Washington Courte case is key to understanding its applicability to this case.   There, the appellate court was asked to review whether two findings of liability, one for common-law fraud and one for a violation of the Consumer Fraud Act, were against the manifest weight of the evidence.   In determining that the jury's verdict on the common-law fraud claim was not against the manifest weight of the evidence, the appellate court necessarily answered the same question with respect to the Consumer Fraud Act claim.   Here, however, we are faced with a finding of liability for common-law fraud and a judgment of nonliability under the Consumer Fraud Act. We are asked to hold that a finding of liability for common-law fraud mandates a finding of a violation of the Consumer Fraud Act. Washington Courte does not make such a broad claim and cannot be expanded to encompass such a claim.   Only where there are findings of liability as to both common-law fraud and a violation of the Consumer Fraud Act will Washington Courte come into play to govern the inquiry of whether the findings are against the manifest weight of the evidence.   Here, plaintiffs do not contend that the trial court's judgment was against the manifest weight of the evidence but, rather, that it was mandated by the jury's verdict.  Washington Courte, therefore, does not apply to this situation and does not support plaintiffs' argument.

Plaintiffs also rely on Aetna Screw Products Co. v. Borg, 116 Ill.App.3d 206, 71 Ill.Dec. 893, 451 N.E.2d 1260 (1983), for the proposition that where there are factually related legal and equitable claims, the legal claims must be resolved first by the jury before there is any judicial resolution of the equitable claims.   In other words, plaintiffs appear to suggest that the jury's determination on a legal claim is binding on the trial court's determination on a factually related equitable claim.   We do not believe that this case involves a legal-equitable dichotomy;  both the common-law fraud claim and the claim under the Consumer Fraud Act involve monetary damages and would best be viewed as legal claims.   While no jury right attaches to the claim under the Consumer Fraud Act, this alone does not make it an equitable claim.   Plaintiffs' reliance on Aetna Screw is flawed from its inception.

Notwithstanding the faulty reliance, Aetna Screw is also inapposite to this case.   There, the trial court determined that the doctrine of res judicata applied to related legal and equitable claims such that the invocation of a counterclaim served to waive the defendant's jury demand.  Aetna Screw, 116 Ill.App.3d at 214, 71 Ill.Dec. 893, 451 N.E.2d 1260.   The appellate court reversed, finding that res judicata did not apply because the claims were not sufficiently related.  Aetna Screw, 116 Ill.App.3d at 214, 71 Ill.Dec. 893, 451 N.E.2d 1260.   Thus, at most, Aetna Screw stands for the proposition that res judicata could apply to related claims in a manner that would infringe on a party's right to a jury trial.   Here, however, that concern is not implicated, because plaintiffs received a trial by jury on their claim for common-law fraud.  Aetna Screw does not support plaintiffs' position.

Plaintiffs also cite to Howard T. Fisher & Associates, Inc. v. Shinner Realty Co., 24 Ill.App.2d 216, 164 N.E.2d 266 (1960), for the same proposition as in Aetna Screw.   For the reasons given above, we find Howard T. Fisher to be inapposite as well.   We also note that there res judicata was applied to bar a later suit on the same issues.   Here, by contrast, the same factual issues were tried at the same time in a combined bench-jury proceeding and no issue of res judicata arises.

We have reviewed the main sources used by plaintiffs to support their argument regarding the inconsistency of the results between the bench trial and the jury trial.   Our review has demonstrated that the cases relied upon by plaintiffs are inapposite to and unpersuasive of their claims that the jury's verdict must control the trial court's judgment.   Plaintiffs have failed to carry their burden of persuasion on this point.

Plaintiffs also argue that their right to a jury trial is infringed if the trial court on the Consumer Fraud Act claim is not bound by the jury's determination on the common-law fraud claim.   This contention is backwards.   There is no right to a jury trial in a proceeding under the Consumer Fraud Act. Martin, 163 Ill.2d at 76, 205 Ill.Dec. 443, 643 N.E.2d 734.   Requiring the jury's verdict to determine common issues of fact in the bench trial would render the bench trial a de facto jury trial.   Allowing each finder of fact to come to an independent determination preserves plaintiffs' right to a trial by jury on their common-law fraud claim and preserves the statutory scheme of the Consumer Fraud Act, which does not confer a right to a jury trial.   Plaintiffs' contention about the paramount right to a jury trial is unavailing.

Plaintiffs also argue that the jury's verdict on their common-law fraud claim provides the requisite determinations on common issues of fact to satisfy plaintiffs' claim under the Disclosure Act. Plaintiffs advance the same reasoning they employed in conjunction with the Consumer Fraud Act claim.   For the same reasons set forth above in relation to the Consumer Fraud Act, we reject plaintiffs' arguments pertaining to the preclusive effect of the jury's verdict over the trial court's judgment on their Disclosure Act claim.

We note that, in the context of legal and equitable claims being presented for trial at the same time, courts have observed that the independence of the two fact finders, the jury and the bench, does not necessarily present a problem with the right to a jury trial.  International Financial Services Corp. v. Chromas Technologies Canada, Inc., 356 F.3d 731, 735 (7th Cir.2004);  Perdoni Brothers, Inc. v. Concrete Systems, Inc., 35 F.3d 1, 5 (1st Cir.1994);  Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 n. 4 (3d Cir.1990);  Lincoln, 697 F.2d at 934.   Indeed, inconsistent results between the two independent finders of fact are expected in such a system.  Perdoni, 35 F.3d at 5. The decision as to the binding nature of one joint fact finder over the other, therefore, must be made in the context of how the joint trial arises. In the federal cases immediately cited above, the right to a jury trial was vindicated in all circumstances.  (Those cases analyzed it as a legal-equitable issue, and the fact that an action in equity was controlled by a jury result was of no concern because advisory juries may be empaneled to hear matters in equity.   See Hofferkamp v. Brehm, 273 Ill.App.3d 263, 270, 210 Ill.Dec. 405, 652 N.E.2d 1381 (1995).   Further, no right or statute is being infringed in a purely legal-equitable environment.)   Here, a common-law claim was heard jointly with a statutory claim.   To allow jury participation in the statutory claim would violate the dictates of the statute.   To bind one fact finder by the other's result would infringe on either the jury right or the statutory scheme.   Here, however, the trial court's refusal to be bound by the jury's result vindicated both plaintiffs' right to a jury trial on the common-law fraud claim and the statutory scheme in the consumer-fraud claim.   Thus, in order to vindicate both the right to a jury trial and the statutory command, inconsistency between the fact finders must be tolerated in this case.

[Editor's Note:  Text omitted pursuant to Supreme Court Rule 23.]

[The following portion of this opinion is nonpublishable under Supreme Court Rule 23.]

We next consider plaintiffs' contention in case No. 2-06-0036.   Plaintiffs argue that the trial court erroneously dismissed their petition for costs.   Plaintiffs contend that their petition for costs, brought pursuant to section 5-108 of the Code (735 ILCS 5/5-108 (West 2004)), does not constitute a posttrial motion and is not subject to the 30-day time limit set forth in section 2-1202 of the Code (735 ILCS 5/2-1202 (West 2004)).   Plaintiffs conclude that the trial court should have considered their petition for costs instead of finding that it lacked jurisdiction because the petition was filed more than 30 days after the final judgment.

We begin by setting forth the chronology of events following the entry of the judgments pursuant to the trial.   Plaintiffs and defendants filed timely posttrial motions.   These motions tolled the time for filing their respective notices of appeal and preserved the trial court's jurisdiction.   Official Reports Advance Sheet No. 22 (October 26, 2005), R. 303(a), eff. January 1, 2006.   On August 30, 2005, the trial court denied the Re/Max defendants' posttrial motion. On September 22, 2005, the trial court denied the posttrial motions of plaintiffs and the Liberty Ventures defendants.   Thereafter, on October 20, 2005, plaintiffs filed their petition for costs.   On October 24, 2005, plaintiffs filed their timely notice of appeal.

Defendants argue that plaintiffs' petition for costs was untimely because it was not filed within 30 days of the July 22, 2005, judgment.   Defendants' argument misses the mark.   The timely posttrial motions tolled the 30-day time limit.   Once the posttrial motions were resolved, the trial court retained jurisdiction for another 30 days, or until the notice of appeal was filed.   See 735 ILCS 5/2-1301(e) (West 2004) (“[t]he court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable”);  F.H. Prince & Co. v. Towers Financial Corp., 266 Ill.App.3d 977, 992, 203 Ill.Dec. 940, 640 N.E.2d 1313 (1994) (petition for fees and costs timely where it was filed one day after denial of last posttrial motion but within the 30-day period in which the trial court retained jurisdiction to set aside any final judgment or order).   The last pending posttrial motions were resolved on September 22, 2005.   On October 20, 2005, plaintiffs' petition for costs was filed, and it was within the 30-day period in which the trial court retains jurisdiction to set aside a final judgment or order.   Accordingly, the trial court erred in concluding that it did not have jurisdiction because the petition for costs was filed more than 30 days after the entry of judgment.

That does not end our inquiry, however.   After filing their petition, plaintiffs timely filed their notice of appeal in case No. 2-05-1073.   The remaining issue is whether the petition for costs is a posttrial motion sufficient to divest this court's jurisdiction over plaintiffs' appeal in case No. 2-05-1073.   A petition for costs is a collateral matter over which the trial court retains jurisdiction, even if a notice of appeal has been filed.  Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 453-54, 249 Ill.Dec. 337, 736 N.E.2d 179 (2000).   The petition for costs, then, does not divest this court of jurisdiction over the appeal because it is a collateral matter over which the trial court retained jurisdiction.   Accordingly, the trial court erred in dismissing plaintiffs' petition for costs without addressing the merits of the petition.   As a result, we must reverse the trial court's order dismissing the petition and remand the cause with directions that the trial court consider the merits of the petition.   Defendants remain free to file any pertinent objections to the petition, other than timeliness.

We now turn to the issues raised by the Re/Max defendants in their cross-appeal in case No. 2-05-1073.   The Re/Max defendants argue that the trial court erred in entering judgment on the jury's punitive damages verdict against Re/Max because the verdict was against the manifest weight of the evidence.   Similarly, the Re/Max defendants argue that the award of compensatory damages against Re/Max was also against the manifest weight of the evidence and that the trial court erred in denying their motion for judgment notwithstanding the verdict.   Last, the Re/Max defendants argue that the trial court erroneously denied their motion to dismiss plaintiffs' civil conspiracy claim.   We consider each issue in turn.

The Re/Max defendants first argue that the trial court erred in denying their motion for judgment notwithstanding the verdict on the issue of punitive damages.   The Re/Max defendants assert that the evidence adduced at trial did not demonstrate that Re/Max's conduct was sufficiently willful and wanton to warrant the imposition of punitive damages.

A judgment notwithstanding the verdict (judgment n.o.v.) presents a question of law.  Snelson v. Kamm, 204 Ill.2d 1, 42, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003).   A judgment n.o.v. “should be entered ‘in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand.’ ”  Snelson, 204 Ill.2d at 42, 272 Ill.Dec. 610, 787 N.E.2d 796, quoting Pedrick v. Peoria Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967).   The trial court's decision on a motion for judgment n.o.v. is reviewed de novo.  Snelson, 204 Ill.2d at 42, 272 Ill.Dec. 610, 787 N.E.2d 796.

Our review of the evidence demonstrates that it does not so overwhelmingly favor the Re/Max defendants that no contrary verdict could ever stand.   Plaintiffs' evidence consisted of disinterested witnesses to the cause who testified that mold was open, obvious, and clearly visible within the property.   These witnesses further testified as to a musty or moldy smell that permeated the property, at least before it was repaired.   Additionally, plaintiffs' witnesses uniformly testified that, before the time the property was repaired, the flooring on the first floor of the property was warped or buckled, suggesting significant water infiltration.   One witness testified he even saw standing water in the basement.

In addition to the testimony concerning the presence of mold, Diane Farino testified that she and her client observed mold in the property leading to a lowball offer made to Re/Max.   Farino testified that she called Walter Chase to explain why she had made such a low offer and informed him of the presence of mold.   Farino testified that Walter Chase responded by questioning what Farino's client knew about mold and asserting that “anyone knows that if there is mold in the house, that you can clean it up with bleach and water.”

Additionally, testimony demonstrated that the Re/Max defendants were present at the property a number of times.   Although they denied observing mold or even a warped floor, they were present in the property before it had been repaired (even cosmetically) and at times that other witnesses observed the moldy conditions and warped floors.

By contrast, the Re/Max defendants argue their witnesses never admitted observing mold or other defects in the property.   Further, they denied that anyone had informed them of the moldy conditions or any other conditions that might have made them suspect the presence of mold in the property.   According to defendant, this “unequivocal” testimony is sufficiently overwhelming as to preclude a verdict in plaintiffs' favor on the issue of punitive damages.   We disagree.

As recounted above, the parties offered sharply conflicting versions and interpretations of the evidence elicited at trial.   Both versions find support in the record and, thus, we cannot say that the evidence so overwhelmingly favors the Re/Max defendants that no verdict for plaintiffs on the issue of punitive damages could ever stand.   Accordingly, we hold that the trial court did not err in denying the Re/Max defendants' motion for judgment n.o.v.

Next, the Re/Max defendants argue that the trial court erred by denying their motion for a directed verdict.   The Re/Max defendants offer the same arguments in support of this contention as they did in support of their judgment n.o.v. contention.

A motion for directed verdict is reviewed in the same manner as a motion for judgment n.o.v. Evans v. Shannon, 201 Ill.2d 424, 428, 267 Ill.Dec. 533, 776 N.E.2d 1184 (2002).   A motion for a directed verdict should be granted where all of the evidence, when viewed most favorably to the opposing party, so overwhelmingly favors the moving party, that no contrary verdict based on the evidence could ever stand.  Evans, 201 Ill.2d at 428, 267 Ill.Dec. 533, 776 N.E.2d 1184.   The reviewing court reviews de novo the trial court's decision on a motion for a directed verdict.  Evans, 201 Ill.2d at 427, 267 Ill.Dec. 533, 776 N.E.2d 1184.   As noted above, there is ample evidence in the record to support the imposition of punitive damages, even though there is evidence present in the record that favors the Re/Max defendants' position.   As a result, we cannot say that the Re/Max defendants have demonstrated that the evidence overwhelmingly favors their position and, accordingly, we hold that the trial court did not err in denying the Re/Max defendants' motion for a directed verdict.

Next, the Re/Max defendants argue that the trial court erred in not granting their motion in limine to preclude testimony regarding punitive damages.   The Re/Max defendants contend that plaintiffs' first amended complaint is devoid of factual allegations regarding their willful and wanton conduct.   The Re/Max defendants reason that, because the first amended complaint did not contain sufficient allegations of willful and wanton conduct, there effectively was no punitive damages issue in the case and the trial court should not have allowed such testimony on an irrelevant issue.

We find two flaws with this argument.   First, it is based on a purported defect in plaintiffs' first amended complaint, namely the failure to include well-pleaded factual allegations regarding the Re/Max defendants' willful and wanton conduct.   It is well settled that, where a defendant files an answer to a complaint, the defendant waives any defect in the pleading.  Adcock v. Brakegate, Ltd., 164 Ill.2d 54, 60, 206 Ill.Dec. 636, 645 N.E.2d 888 (1994);  In re Marriage of Johnson, 339 Ill.App.3d 237, 241, 273 Ill.Dec. 949, 790 N.E.2d 91 (2003).   It is also well settled that, where the defendant allows an action to proceed to a verdict, then the verdict cures both formal defects in the complaint, as well as defects in failing to allege, or defectively or imperfectly alleging facts that are essential to the claim.  Adcock, 164 Ill.2d at 60-61, 206 Ill.Dec. 636, 645 N.E.2d 888;  Johnson, 339 Ill.App.3d at 241, 273 Ill.Dec. 949, 790 N.E.2d 91.   Here, the Re/Max defendants filed an answer to plaintiffs' first amended complaint;  they also allowed the matter to proceed to a verdict.   The Re/Max defendants' answer serves to waive its challenge to the complaint while the jury verdict serves to cure any defects in the complaint.   Therefore, the Re/Max defendants' argument is ill-founded because it is based solely on defects in the first amended complaint.

The second flaw in the Re/Max defendants' argument is that the admission of evidence is within the discretion of the trial court, and its determination of the admissibility of evidence will be disturbed only where the trial court abused its discretion.  Caponi v. Larry's 66, 236 Ill.App.3d 660, 674, 176 Ill.Dec. 649, 601 N.E.2d 1347 (1992).   Our review of the record confirms that the allegations in the complaint foreshadowed the proof elicited at trial.   Therefore, the allegations in the complaint sufficiently inferred that the Re/Max defendants participated in willful and wanton conduct sufficient to support an award of punitive damages.   We hold that the trial court did not abuse its discretion.

The Re/Max defendants next contend that the trial court erred in allowing plaintiffs leave to amend their complaint to add allegations supporting punitive damages.   This argument runs afoul of waiver, because, ultimately, the Re/Max defendants filed an answer to the amended complaint.   See Adcock, 164 Ill.2d at 60, 206 Ill.Dec. 636, 645 N.E.2d 888;  Johnson, 339 Ill.App.3d at 241, 273 Ill.Dec. 949, 790 N.E.2d 91.   The argument also runs afoul of aider by verdict, because the entry of the verdict cures any defects in the amended complaint.   See Adcock, 164 Ill.2d at 60-61, 206 Ill.Dec. 636, 645 N.E.2d 888;  Johnson, 339 Ill.App.3d t 241.   Accordingly, we need not consider this argument further.

The Re/Max defendants' final contention in regard to punitive damages is that the jury verdict was against the manifest weight of the evidence on the issue of punitive damages.  “A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evidence or where the findings of the jury are unreasonable, arbitrary, and not based upon any of the evidence.”  Snelson, 204 Ill.2d at 35, 272 Ill.Dec. 610, 787 N.E.2d 796.   If the reviewing court finds that the jury's decision to award punitive damages was arbitrary or unreasonable, or otherwise against the manifest weight of the evidence, then the award of punitive damages will be reversed.  Cirrincione v. Johnson, 184 Ill.2d 109, 115-16, 234 Ill.Dec. 455, 703 N.E.2d 67 (1998).

The Re/Max defendants argue that the award of punitive damages was against the manifest weight of the evidence because plaintiffs failed to present sufficient evidence to demonstrate that Re/Max had knowledge of the mold on the property, concealed the knowledge from plaintiffs and failed to inform plaintiffs about the property's condition and induced plaintiffs to purchase the property.   We disagree.

Plaintiffs presented ample evidence demonstrating that the Re/Max defendants were present at the property at times during which the mold was manifest.   The jury could have disbelieved the Re/Max defendants and their witnesses when they denied observing the mold.   Further, it is axiomatic that “it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight to give to a witness' testimony.”   Cirrincione, 184 Ill.2d at 116, 234 Ill.Dec. 455, 703 N.E.2d 67.   We cannot say that the jury's award of punitive damages was against the manifest weight of the evidence.

The Re/Max defendants argue that, because the jury did not enter a verdict against Walter Chase individually, then it must not have accepted the evidence that the conversation between Walter Chase and Farino occurred.   This does not follow.   There was no special interrogatory posed to determine whether such was the case.   Additionally, a finding of nonliability against Walter Chase does not mean that the conversation did not occur, only that the jury determined that plaintiffs failed to meet their burden of proof with respect to Walter Chase.   Additionally, there was ample evidence in the record from which to infer that defendants knew about the mold or were willfully ignorant about its presence.   Even accepting the Re/Max defendants' interpretation of the jury verdict, this alone is not fatal to the award of punitive damages and does not render the award of punitive damages to be against the manifest weight of the evidence.

The Re/Max defendants also posit that plaintiffs failed to prove Re/Max vicariously liable.   The Re/Max defendants concede, however, that plaintiffs did not base their claims on vicarious liability.   Further, the Re/Max defendants cite no authority in support of their contention, thereby forfeiting our consideration of it.   Official Reports Advance Sheet No. 12 (June 7, 2006), R. 341(h)(7), eff. September 1, 2006.

Likewise, the Re/Max defendants contend that plaintiffs failed to prove Re/Max's independent and direct involvement with the property.   We disagree.   The jury could have viewed the evidence as showing that the Re/Max defendants both knew of the mold and other defects in the property and concealed the knowledge from plaintiffs.   As noted above, the Re/Max defendants' contention that the finding in favor of the individual defendants means that the jury rejected any imputation of knowledge to Re/Max is faulty;  the finding means only that the jury decided that plaintiffs had not satisfied their burden of proof with regard to the individual defendants.   Last, we note that the Re/Max defendants again cite no authority in support of this contention, once again forfeiting our review of it.   Official Reports Advance Sheet No. 12 (June 7, 2006), R. 341(h)(7), eff. September 1, 2006.   Based on the foregoing, we hold that the jury's verdict on the issue of punitive damages was not against the manifest weight of the evidence.

In their next issue in their cross-appeal, the Re/Max defendants contend that the jury's verdict on the issue of compensatory damages was against the manifest weight of the evidence and that the trial court erred by denying their motion for judgment n.o.v. on the issue of compensatory damages.   The Re/Max defendants reiterate the same arguments advanced in the preceding issue.   As the legal framework surrounding these arguments is the same as that set forth above, we proceed to consider the Re/Max defendants' arguments straightaway.

As noted, the Re/Max defendants reiterate many of the same arguments as above.   Our conclusions remain undisturbed.   Additionally, however, the Re/Max defendants attempt to flesh out their vicarious liability argument here.   The Re/Max defendants argue that, because none of the individual defendants were found liable on any of the claims, their actions and knowledge cannot be imputed to Re/Max.   The Re/Max defendants further assert that plaintiffs did not present any evidence that Re/Max itself had any knowledge of the presence of mold and water damage on the property, thereby defeating plaintiffs' claims.   The Re/Max defendants then note that a theory of vicarious liability has been waived by plaintiffs because they did not plead it, but even if they had, the jury's verdict with respect to the individual defendants would foreclose a verdict against Re/Max, the principal of the individual defendants.

The Re/Max defendants again conceded that vicarious liability is not an issue in this case.   Thus, their conclusion, that, “when the jury found in favor of the individual agents [defendants], the principal, [Re/Max], cannot be liable as a matter of law,” is misplaced because there is no vicarious liability being alleged or proved or needed to be proved.

Once again, the verdicts in favor of the individual defendants mean that the jury decided that plaintiffs had not met their burdens of proof on their claims-no more and no less.   There was sufficient evidence in the record for the jury to impute the actions and knowledge of the individual defendants to Re/Max.   There was sufficient evidence in the record for the jury to conclude that the Re/Max defendants (including Re/Max) knew or should have known that mold was present on the property and that the property had experienced water damage that might lead to other problems.   As a result, we hold that the jury's verdict on the compensatory damages issue was not against the manifest weight of the evidence.

With regard to the Re/Max defendants' contention concerning the trial court's denial of their motion for judgment n.o.v., we note that there is evidence in the record to support plaintiffs' theories as well as the Re/Max defendants' theories.   Accordingly, we cannot say that the evidence so overwhelmingly favors the Re/Max defendants that no verdict in favor of plaintiffs on the issue of compensatory damages could ever stand.   We therefore hold that the trial court did not err in denying the Re/Max defendants' motion for judgment n.o.v.

Last, the Re/Max defendants argue that the trial court erred in denying their motion to dismiss plaintiffs' civil conspiracy claim.   We find this contention to be waived because the Re/Max defendants filed an answer to the civil conspiracy claim, thereby waiving any challenge to its legal sufficiency.   Adcock, 164 Ill.2d at 60, 206 Ill.Dec. 636, 206 Ill.Dec. 636, 645 N.E.2d 888;  Johnson, 339 Ill.App.3d at 241, 273 Ill.Dec. 949, 790 N.E.2d 91.   Additionally, any defects in plaintiffs' civil conspiracy claim have been cured by proceeding to verdict on that claim.  Adcock, 164 Ill.2d at 61, 206 Ill.Dec. 636, 645 N.E.2d 888;  Johnson, 339 Ill.App.3d at 241, 273 Ill.Dec. 949, 790 N.E.2d 91.   Accordingly, we reject the Re/Max defendants' argument.

[The preceding portion of this opinion is not published pursuant to Supreme Court Rule 23.]

To sum up, we affirm the judgment of the circuit court of Du Page County in matters relating to the trial of the cause itself in case No. 2-05-1073.   In other words, we find no merit to the arguments presented on appeal or on cross-appeal.   We reverse the trial court's judgment in case No. 2-06-0036, and we remand with directions that the trial court consider plaintiffs' petition for costs on its merits and noting that defendants are free to file any pertinent objections thereto.

No. 2-05-1073, Affirmed.

No. 2-06-0036, Reversed and remanded with directions.

FOOTNOTES

1.   We are puzzled by the trial court's decision to employ a nunc pro tunc order here.   Nunc pro tunc orders are used to correct clerical errors in written orders or to otherwise conform the orders to the court's actual judgment;  however, a nunc pro tunc order cannot be used to alter the court's judgment.  In re Marriage of Morreale, 351 Ill.App.3d 238, 241, 286 Ill.Dec. 256, 813 N.E.2d 313 (2004);  In re Jessie B., 327 Ill.App.3d 1084, 1089, 262 Ill.Dec. 371, 765 N.E.2d 508 (2002).   Here, the trial court rendered its judgment on plaintiffs' statutory claims on August 2, 2005.   It was improper to backdate the judgment via a nunc pro tunc order;  further, we see no reason to have done so.   As no issue arises from the trial court's action, we address it no further.

Justice O'MALLEY delivered the opinion of the court: