{ "id": 5408711, "name": "MELROSE PARK NATIONAL BANK, Trustee, et al., Plaintiffs-Appellees, v. ROBERT O. CARR et al., Defendants-Appellants", "name_abbreviation": "Melrose Park National Bank v. Carr", "decision_date": "1993-06-25", "docket_number": "No. 1\u201491\u20140007", "first_page": "9", "last_page": "20", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 9" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "569 N.E.2d 1260", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 1055", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2532921 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/1055-01" ] }, { "cite": "470 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "103 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152590 ], "weight": 2, "pin_cites": [ { "page": "538-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0536-01" ] }, { "cite": "275 N.E.2d 654", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2756689 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0524-01" ] }, { "cite": "406 Ill. 295", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635752 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill/406/0295-01" ] }, { "cite": "472 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1950, "opinion_index": 0 }, { "cite": "104 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146727 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "293-94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0287-01" ] }, { "cite": "594 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5209264 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0248-01" ] }, { "cite": "586 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5251565 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0428-01" ] }, { "cite": "519 N.E.2d 991", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5070411 ], "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0339-01" ] }, { "cite": "601 N.E.2d 956", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5785609 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0224-01" ] }, { "cite": "337 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "398 N.E.2d 224", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606996 ], "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0221-01" ] }, { "cite": "206 N.E.2d 111", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 2d 491", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5285397 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/56/0491-01" ] }, { "cite": "425 N.E.2d 1081", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1965, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 651", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3101664 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0651-01" ] }, { "cite": "507 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3647218 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0937-01" ] }, { "cite": "428 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3087661 ], "pin_cites": [ { "page": "764-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0760-01" ] }, { "cite": "457 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629915 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0391-01" ] }, { "cite": "377 N.E.2d 365", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 559", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3354124 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0559-01" ] }, { "cite": "412 N.E.2d 1146", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 224", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158266 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0224-01" ] }, { "cite": "476 N.E.2d 755", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435057 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0914-01" ] }, { "cite": "336 F.2d 809", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 892011 ], "opinion_index": 0, "case_paths": [ "/f2d/336/0809-01" ] }, { "cite": "199 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832377 ], "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0069-01" ] } ], "analysis": { "cardinality": 994, "char_count": 26328, "ocr_confidence": 0.775, "pagerank": { "raw": 1.1828264911384569e-07, "percentile": 0.5890173519768913 }, "sha256": "707881f78679d1d1162208eeab620a04fd6ba136d79fc52f387a675815f0e8a0", "simhash": "1:c3ee0d0d1f441f08", "word_count": 4400 }, "last_updated": "2023-07-14T16:37:18.171744+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MELROSE PARK NATIONAL BANK, Trustee, et al., Plaintiffs-Appellees, v. ROBERT O. CARR et al., Defendants-Appellants." ], "opinions": [ { "text": "PRESIDING JUSTICE GORDON\ndelivered the opinion of the court:\nDefendants James Bambrick and Bambrick & Bambrick (hereinafter collectively defendant or Bambrick) appeal from an order of the circuit court, in which the court found that defendant had breached an escrow agreement and awarded plaintiff Raymond Massey damages in the amount of $45,000. For the reasons set forth below, we affirm.\nFacts\nPlaintiff Raymond Massey was the beneficial owner of trust No. 2541 at Melrose Park National Bank, which held legal title to a single-family home located in Lemont, Illinois. In November of 1983 Massey entered into a real estate sales contract for the sale of this home under articles of agreement for deed with defendants Robert 0. Carr and Jill A. Carr. The purchase price for the home was $230,000. The contract provided for a down payment of $50,000, the remainder of the purchase price to be financed by Massey at the rate of $5,000 per month beginning on March 1, 1984. Pursuant to the contract, the Carrs deposited $5,000 as earnest money with Adams & Meyers Realtors, the real estate broker, and also executed a $45,000 judgment note payable to \u201cAdams & Meyers Realtors agent for Raymond Massey\u201d as additional earnest money which was redeemable at closing. The sales contract also provided that in the event the contract was terminated due to the fault of the buyers, the earnest money would be retained by the seller. This $45,000 represented the balance due as down payment under the articles of agreement for deed. Under the articles, if, after closing, the buyers defaulted by failing to pay any installment when due, the seller was given the option of retaining all sums paid by the buyers as liquidated damages. Closing was scheduled for February 1,1984.\nIn mid-December 1983, the Carrs requested preclosing possession of the home. Plaintiff, however, was reluctant to allow this, as his inability to obtain financial information on the Carrs caused him to feel somewhat insecure about their ability to complete the transaction. To allay these fears, plaintiff and his attorney suggested to the Carrs that the $45,000 note held by Adams & Meyers be redeemed, with the cash to be held by the realtors. The Carrs rejected this proposal. Eventually it was agreed that $45,000 in cashier\u2019s checks would be held by the Carrs\u2019 attorney, Bambrick. Receipt of the cashier\u2019s checks in the amount of $45,000 was acknowledged by Bambrick in a letter to plaintiff\u2019s attorney Casper dated December 16, 1983: \u201cThis will confirm my earlier telephone conversation with you that I am holding the sum of $45,000.00 in cashier\u2019s checks at my office regarding the proposed agreement for deed between Raymond Massey and Robert Carr at 16 Horseshoe Lane, Lemont, Illinois.\u201d On December 16, 1983, plaintiff allowed the Carrs to move into the house, and the Carrs paid plaintiff $4,000 for rent through February 1, 1984.\nThe scheduled February 1, 1984, closing did not occur because the Carrs were unable to attend. The closing was rescheduled for February 6, 1984, but again the transaction did not close. The closing was again rescheduled, this time for February 9,1984.\nOn February 8, 1984, the Carrs\u2019 attorney, Bambrick, informed plaintiff\u2019s attorney that the Carrs would be unable to close on the 9th because they did not have the money required for the closing. Bambrick then informed plaintiff\u2019s attorney that he had returned to the Carrs the $45,000 in cashier\u2019s checks which the Carrs had given him on December 16,1983.\nSubsequently, plaintiff granted three extensions to the Carrs to allow them time in which to close, the first until March 1, 1984, and a second extension to April 1, 1984. On April 2, 1984, Massey and the Carrs executed an amendment to their real estate sales contract which extended the time of closing to June 1, 1984, or if closing did not occur by that date, to December 31,1984.\nBy the fall of 1984, the Carrs stopped making rental payments but refused to vacate the house. In February 1985, plaintiff filed a notice of forfeiture and demand for possession. The property eventually went into foreclosure and was sold by sheriff\u2019s sale for $152,882.98 in June 1986. Plaintiff subsequently redeemed the property, and the court vacated and set aside the judgment of foreclosure.\nThis action was filed by plaintiff in March 1985, against the Carrs, the realtors, Adams & Meyers, and against Bambrick. A default judgment was entered against the Carrs on February 29, 1988, in the amount of $101,024.99, which remains uncollected because the whereabouts of the Carrs are unknown. The realtors were dismissed from the action after tendering to the court the $5,000, plus interest, which they had held as earnest money. The only remaining count, and the subject of this appeal, is the one against Bambrick based upon his unilateral act of returning the $45,000 to the Carrs. In the complaint, plaintiff sought an order requiring Bambrick to turn over the fund held in escrow as liquidated damages, or in the event that the escrow funds had been improperly released, a judgment against Bambrick in the amount of $45,000.\nFollowing a trial held in January 1990, the trial court entered a memorandum of opinion on February 27, 1990, in which the court found that there was an escrow agreement between the parties which Bambrick breached by returning the money to the Carrs. In reaching this conclusion, the court stated that it relied on Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769, for the proposition that liability can arise from the negligent performance of a voluntary undertaking. Although finding that plaintiff was damaged by the breach, the court stated that it \u201chas no information on which to base the amount.\u201d No judgment order was entered at this time, and the memorandum of opinion did not provide for the award of damages to the plaintiff.\nOn March 27, 1990, plaintiff filed a \u201cMotion for Rehearing or in the Alternative for a Retrial on the Issue of Damages.\u201d In that motion, plaintiff requested \u201can order modifying the judgment of February 27, 1990, so as to reflect the awarding of [$45,000] as damages to the Plaintiff, or in the alternative for a Rehearing or Retrial as to the issue of damages.\u201d On October 31, 1990, the trial court issued a second memorandum of opinion, which provided:\n\u201cThe Court issued a Memorandum on February 27, 1990 in this matter, but did not assess damages due to some confusion regarding the amount asked for.\nAt all times since the trial, the Court was aware the forty five thousand ($45,000.00) amount was due to the plaintiff.\nThe memorandum of October [sic] 27, 1990, is modified to reflect the awarding of forty five thousand ($45,000.00) in damages to the plaintiff.\u201d\nOn November 30, 1990, the trial court entered a judgment order in the amount of $45,000 in favor of the plaintiff. Defendant filed his notice of appeal from the November 30, 1990, judgment on December 27, 1990.\nOpinion\nOn appeal, defendant raises numerous issues. He contends that: (1) it was error for the trial court to find that an escrow agreement existed between the parties; (2) if an escrow agreement existed, it was error for the trial court to find that the agreement was enforceable under the Statute of Frauds (Ill. Rev. Stat. 1991, ch. 59, par. 2); (3) if an escrow agreement existed, Massey waived the condition precedent requiring the deposit of $45,000 with Bambrick; (4) it was against the manifest weight of the evidence that Massey suffered any damages as a result of Bambrick\u2019s alleged breach; and (5) the trial court erred in considering Massey\u2019s post-trial motion because (a) the motion was nothing more than a notice of motion and therefore insufficient to toll the statute for filing a notice of appeal, and (b) Massey was not entitled to present evidence pursuant to section 2 \u2014 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2\u2014 1203).\nWe shall first address defendant\u2019s contention that the trial court erred in finding that an escrow agreement existed between the parties. He argues that plaintiff has failed to prove that there was an agreement between Massey and the Carrs with respect to an escrow deposit with Bambrick, and that no conditions of delivery were established or communicated or agreed to by Bambrick. In defendant\u2019s view, the court here went beyond interpretation of ambiguous terms of an escrow agreement, instead creating essential terms.\nA valid escrow agreement requires an agreement between a grantor and a grantee as to the conditions of deposit, delivery of the deposited item to the escrowee, and communication of the agreed upon conditions to the escrowee. (Johansson v. United States (5th Cir. 1964), 336 F.2d 809.) Questions involving the operation of an escrow may be resolved by consideration of the escrow agreement in conjunction with the underlying contract. (First National Bank v. Lachenmyer (1985), 131 Ill. App. 3d 914, 476 N.E.2d 755; Estate of Reinhold v. Mansfield (1980), 90 Ill. App. 3d 224, 412 N.E.2d 1146.) Whether an agreement exists and the construction to be given to ambiguous terms are questions of fact which will be upheld on review unless against the manifest weight of the evidence. (First National Bank v. Lachenmyer, 131 Ill. App. 3d 914, 476 N.E.2d 755; John Allan Co. v. Neuendorf (1978), 60 Ill. App. 3d 559, 377 N.E.2d 365; see also Howard A. Koop & Associates v. K P K Corp. (1983), 119 Ill. App. 3d 391, 457 N.E.2d 66.) For the judgment to be against the manifest weight, it must appear that conclusions opposite to those reached by the trier of fact are clearly evident. (John Allan Co. v. Neuendorf, 60 Ill. App. 3d 559, 377 N.E.2d 365.) From our review of the record, we cannot say that the conclusions reached by the trial court are against the manifest weight of the evidence.\nThe trial court found that there was an escrow agreement between the parties. As stated in the court\u2019s memorandum of opinion, this finding was based upon several facts revealed at trial. Bambrick was an attorney who, according to his own testimony, closed approximately 300 real estate deals per year. Bambrick was asked to \u201chold\u201d $45,000 at his office regarding the proposed real estate deal. He acknowledged in his letter to Massey\u2019s attorney that he was \u201cholding the sum of $45,000.00 in cashier\u2019s checks at my office regarding the proposed agreement for deed\u201d between Massey and the Carrs.' From these facts, the trial court concluded that \u201c[a] reasonable person would say \u2018For what purpose?\u2019 and the reasonable answer would be \u2018as an escrow for the agreement deed.\u2019 \u201d The trial court\u2019s conclusion is not against the manifest weight of the evidence.\nWe cannot agree with defendant\u2019s contention that he had no obligation to hold the cashier\u2019s checks for any definite period of time and could have returned the checks to the Carrs the day after he received them. Such an interpretation would be inconsistent with plaintiff\u2019s requiring the deposit of the money as an assurance that the Carrs would be able to close the transaction in February. Defendant\u2019s explanation would render the arrangement meaningless as a device for protecting plaintiff\u2019s interest under the real estate contract. (See McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 764-65, 428 N.E.2d 739 (where appellate court \u201ctotally rejects\u201d trial court\u2019s construction of escrow agreement that in absence of instructions as to whom documents were to be delivered, escrowee could deliver documents in its possession to the party of its choice, finding that such a construction \u201cwould render it entirely meaningless as a device for protecting plaintiff\u2019s interests under the contract\u201d).) The fact that the Carrs were able to come up with $45,000 in cashier\u2019s checks in December does little to ensure that they would be able to produce that same amount at the closing in February.\nIn addition to rejecting defendant\u2019s argument that the trial court erred in finding that an escrow agreement existed, we also must reject defendant\u2019s second argument on appeal, namely, that the escrow agreement is unenforceable under the Statute of Frauds. Ill. Rev. Stat. 1991, ch. 59, par. 2.\nAlthough defendant is correct in his contention that under Illinois law, generally a written contract within the Statute of Frauds may not be modified by an oral agreement (see Nelson v. Estes (1987), 154 Ill. App. 3d 937, 507 N.E.2d 530), he is incorrect in his contention that the escrow agreement here constitutes such an oral modification. A writing sufficient to satisfy the Statute of Frauds need not itself be a valid contract, but only evidence of one. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081; see also Northmoor Estates, Inc. v. Board of Education of School District No. 108 (1965), 56 Ill. App. 2d 491, 206 N.E.2d 111 (abstract of opinion) (letter from vendor in course of negotiations was sufficient writing of memorandum of promise to take it out of Statute of Frauds).) The December 16, 1983, letter to Massey\u2019s attorney signed by Bambrick which makes reference to the contract between Massey and the Carrs clearly is a writing sufficient to satisfy the Statute of Frauds.\nWe turn next to defendant\u2019s contention that Massey waived the condition of the $45,000 deposit by his conduct after learning that Bambrick had returned the money to the Carrs. Defendant urges that by extending the closing date several times and by continuing to allow the Carrs to remain in the home for over a year, without demanding that the money be returned, he waived his right to the escrow.\nA waiver is an \u201cintentional relinquishment of a known right\u201d (Lempera v. Karner (1979), 79 Ill. App. 3d 221, 223, 398 N.E.2d 224) and may be established by a party\u2019s conduct indicating an intent not to require strict compliance with a contract\u2019s terms. (John Allan Co. v. Neuendorf, 60 Ill. App. 3d 559, 337 N.E.2d 365.) It is an equitable doctrine \u201cdesigned to prevent the waiving party from \u2018lullpng] another into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.\u2019 \u201d (Wagner Excello Foods, Inc. v. Fearn International, Inc. (1992), 235 Ill. App. 3d 224, 233, 601 N.E.2d 956, quoting Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343, 519 N.E.2d 991.) Whether waiver has occurred is a question of fact when the material facts are in dispute or where reasonable minds might differ in the inferences to be drawn from undisputed facts. Wagner Excello Foods, Inc. v. Fearn International, Inc., 235 Ill. App. 3d 224, 601 N.E.2d 956.\nThe basic facts here are not in dispute. After learning in February that Bambrick had returned the cashiers\u2019 checks to the Carrs, Massey continued to negotiate with the Carrs in an attempt to close the sale of the house. The parties extended the date for closing three times. The Carrs continued to live in the house for almost a year after Bambrick returned the checks to them. Although defendant urges that plaintiff\u2019s conduct and failure to demand a redeposit of the funds or possession of the house constitute waiver, we disagree.\nNothing in plaintiff\u2019s conduct after he learned that Bambrick had returned the escrow funds to the Carrs compels the conclusion that he relinquished his right to enforce the escrow agreement. Plaintiff had no reason to pursue Bambrick until he knew that the transaction with the Carrs would not close. He had not incurred any damages as a result of Bambrick\u2019s return of the checks until it became clear that the Carrs would not be able to complete the sale by tender of $45,000 at closing, either in cash or by redemption of the judgment note held by the real estate broker. Massey testified that \u201call along\u201d he made demands for redemption of the judgment note. Moreover, nothing that plaintiff did after he learned that Bambrick had returned the checks to the Carrs could be construed as \u201clulling\u201d Bambrick into believing that plaintiff would not demand strict compliance with the escrow agreement, since by that time, defendant had already breached the agreement. In addition, we cannot fault plaintiff for trying to avoid litigation by attempting to complete the sale of his home. Although the trial court did not make an explicit finding regarding waiver, waiver was argued below, and the court\u2019s judgment in favor of plaintiff obviously implies a finding that no waiver has occurred. Our analysis of the record does not indicate that this implied finding was against the manifest weight of the evidence.\nDefendant\u2019s next contention is that the trial court erred in awarding Massey contract damages in the amount of $45,000, when the court\u2019s finding of liability was based on a tort theory of negligence. Defendant also argues that the award was erroneous since there was no evidence presented to establish damages of $45,000 caused by him.\nWe note initially that the plaintiff brought the action and argued the case under a contract, not a negligence theory. Moreover, defendant\u2019s argument that the court based liability solely on a theory of negligence ignores the court\u2019s explicit finding that an escrow agreement existed between the parties, and that Bambrick breached that agreement. When read as a whole, the trial court\u2019s opinion indicates that, notwithstanding the comments regarding negligence, the court found a breach of contract. We must look, therefore, to the proper measure of damages for breach of contract.\nThe policy of contract damages is to place the injured party in the monetary position he would have been in had the contract been performed. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 425 N.E.2d 1081.) The measure of damages is the amount which will compensate the party for loss which either fulfillment of the contract would have prevented, or which breach has caused. (LeFevour v. Howorka (1991), 224 Ill. App. 3d 428, 586 N.E.2d 656.) The injured party should not, however, be placed in a better position than he would have been in had the contract not been breached, nor should he be provided a windfall. Wilmette Partners v. Hamel (1992), 230 Ill. App. 3d 248, 594 N.E.2d 1117.\nContrary to defendant\u2019s contention, at trial there was evidence presented regarding the amount of damages. The $45,000 deposited with Bambrick represented the remainder of the earnest money required as down payment for the house. The closing did not occur because the Carrs were unable to come up with that amount at closing. Had Bambrick not returned the cashier\u2019s checks to the Carrs, the closing would presumably have taken place, and Massey would have had the $45,000. Under the contract of purchase, if the Carrs had defaulted on the closing, Massey would have been entitled under the sales contract to retain the earnest money as liquidated damages. Thus, by returning the checks to the Carrs, Bambrick prevented the closing from occurring, and as a result deprived plaintiff of the money which he would have otherwise had. Moreover, under the articles of agreement for deed, had the transaction closed and the Carrs later defaulted, Massey would have been entitled to retain all moneys paid, including the $45,000, as liquidated damages.\nAs to the court\u2019s statement in its February 27, 1990, memorandum that it had no information on which to base damages, in its November 1, 1990, memorandum, the court stated that it did not assess damages in its initial memorandum, \u201cdue to some confusion regarding the amount asked for.\u201d The court went on to say that \u201c[a]t all times since the trial, the Court was aware the [$45,000] amount was due plaintiff.\u201d Thus the court itself explained that its failure to indicate an amount of damages in its initial memorandum was due not to plaintiff\u2019s failure to present evidence but to some initial confusion on the court\u2019s part. As a result, we find no error in the ultimate award of damages here.\nWe turn now to defendant\u2019s contention that the trial court erred in considering plaintiff\u2019s post-trial motion under section 2 \u2014 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2\u2014 1203), which provides:\n\u201cMotions after judgment in non-jury cases, (a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 2-1203.)\nDefendant contends that the \u201cmotion\u201d filed on March 27, 1990, was actually no more than a notice of a motion and thus insufficient to toll the statutory period for filing an appeal. As a result, defendant contends, the trial court\u2019s February 27, 1990, order became final and appealable on March 31, 1990, and the trial court was without jurisdiction to consider plaintiff\u2019s \u201cmotion\u201d after that date. Defendant\u2019s second argument is that plaintiff was not entitled to present evidence pursuant to section 2 \u2014 1203. We reject defendant\u2019s arguments because we reject his initial premise that section 2 \u2014 1203 is applicable here.\nBy its own language, section 2 \u2014 1203 applies to motions filed after a judgment has been entered. No judgment order was entered in this case until November 30, 1990, when the trial court entered judgment in favor of the plaintiff in the amount of $45,000. The memoranda of opinion, filed on February 27, 1990, and October 31, 1990, are not the equivalent of a judgment order. (Stoermer v. Edgar (1984), 104 Ill. 2d 287, 293-94, 472 N.E.2d 400, quoting Freeport Motor Casualty Co. v. Tharp (1950), 406 Ill. 295, 301 (\u201c \u2018Before a pronouncement should be taken as the judgment, it must be clear that it was intended as such and not merely an announcement of the opinion of the court or an indication of what the judgment is going to be.\u2019 It has repeatedly been held that a memorandum signed by the judge cannot be taken or used as the record judgment\u201d); see also Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654.) The February 27 memorandum does not purport to be a final judgment order, but rather is simply a statement of the court\u2019s findings of facts, .and an announcement of the opinion of the court. The February 27 memorandum, although finding that an agreement existed, that defendant had breached the agreement, and that plaintiff was damaged by that breach, did not assess damages against plaintiff. Until November 30, 1990, there was no enforceable or appealable order or one which could be attacked by a post-trial motion. See Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538-39, 470 N.E.2d 290 (until judgment order is filed, judgment may \u201cnot be attacked by motion, appealed from, or enforced\u201d).\nDefendant argues that \u201cthe import\u201d of section 2 \u2014 1203 is to allow motions after the trial is complete where a decision has been rendered even though a judgment has not been entered and thus is applicable here. However, the language of the statute and case law clearly indicate that the section is applicable only to motions filed after a written judgment order has been entered, and not to motions filed after a decision has been made but before judgment has been filed. (See Canfield v. Delheimer (1991), 210 Ill. App. 3d 1055, 569 N.E.2d 1260 (motion to reconsider trial court\u2019s order dismissing complaint, filed after judgment made orally but prior to date written judgment order was entered, did not comply with requirements of section 2 \u2014 1203); see also Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 470 N.E.2d 290; Stoermer v. Edgar, 104 Ill. 2d 287, 472 N.E.2d 400; Davidson Masonry v. J.L. Wroan & Sons, Inc., 2 Ill. App. 3d 524, 275 N.E.2d 654.) When plaintiff filed his motion on March 27, 1990, no judgment order had been entered and the trial court still had jurisdiction over the matter and properly considered the motion and, upon such consideration, modified its original opinion.\nAlthough not explicitly argued by defendant, the logical extension of his argument would be that we are without jurisdiction to consider this appeal. If, in fact, the memorandum of opinion filed on February 27, 1990, was a final judgment order, then the time to file a notice of appeal would have expired on March 31, 1990, and defendant\u2019s notice of appeal, filed almost nine months later, on December 27, 1990, would be untimely. As discussed above, however, the trial court\u2019s memorandum of opinion does not constitute a final judgment order, and the time for filing a notice of appeal did not begin to run until November 30, 1990. Thus defendant\u2019s notice of appeal was timely.\nDefendant\u2019s argument that the trial court erred in reopening its judgment to consider further evidence pursuant to plaintiff\u2019s motion of March 27, 1990, is not borne out by the record. In addition to the fact that as of that date no judgment had been entered, the record does not indicate that any additional evidence was in fact presented. The record includes no transcript of any hearing at which such evidence was taken. Although defendant in his brief before this court alludes to the possibility that the court may have improperly considered facts in plaintiff\u2019s post-trial briefs as error, again the record fails to show that the brief presented any facts which had not previously been introduced at trial. We also note that the trial court, in its October 30, 1990, memorandum, stated that \u201cat all times since the trial, the Court was aware the [$45,000] amount was due to the plaintiff.\u201d\nAccordingly, for all the above reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMURRAY and COUSINS, JJ., concur.\nPrior to his retirement, Justice Lorenz heard the oral argument in this appeal. Following his retirement, Justice Cousins was substituted for Justice Lorenz on the panel of this appeal and has listened to the tape of orals and read the briefs.", "type": "majority", "author": null } ], "attorneys": [ "Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Cynthia G. Swiger, of counsel), for appellants.", "Joseph E. Fitzgerald, of Hinsdale, for appellees." ], "corrections": "", "head_matter": "MELROSE PARK NATIONAL BANK, Trustee, et al., Plaintiffs-Appellees, v. ROBERT O. CARR et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 1\u201491\u20140007\nOpinion filed June 25, 1993.\nSeyfarth, Shaw, Fairweather & Geraldson, of Chicago (Cynthia G. Swiger, of counsel), for appellants.\nJoseph E. Fitzgerald, of Hinsdale, for appellees." }, "file_name": "0009-01", "first_page_order": 27, "last_page_order": 38 }