{ "id": 5424705, "name": "JOSEPH GIAMMANCO, Plaintiff-Appellant, v. PETER GIAMMANCO, JR., et al., Defendants-Appellees", "name_abbreviation": "Giammanco v. Giammanco", "decision_date": "1993-12-20", "docket_number": "No. 2\u201493\u20140205", "first_page": "750", "last_page": "767", "citations": [ { "type": "official", "cite": "253 Ill. App. 3d 750" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "90 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2548106 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/208/0561-01" ] }, { "cite": "160 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649685 ], "weight": 2, "pin_cites": [ { "page": "503" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0498-01" ] }, { "cite": "149 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461817 ], "weight": 2, "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0088-01" ] }, { "cite": "138 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576586 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "461" }, { "page": "462", "parenthetical": "even if section 2 - 611 motion for attorney fees was construed as a motion to modify the judgment, it was not \"directed against the judgment\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0458-01" ] }, { "cite": "124 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218130 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0533-01" ] }, { "cite": "162 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509375 ], "year": 1988, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0262-01" ] }, { "cite": "225 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246550 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "586-87" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0581-01" ] } ], "analysis": { "cardinality": 1619, "char_count": 44579, "ocr_confidence": 0.763, "pagerank": { "raw": 3.0089250838478736e-07, "percentile": 0.8530630550275325 }, "sha256": "9185e16ce1de11aa5d21221e9afa0dfe20420901f6b2f00e8040d923f77d8016", "simhash": "1:bba255f62942dd4e", "word_count": 7300 }, "last_updated": "2023-07-14T15:28:32.530889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH GIAMMANCO, Plaintiff-Appellant, v. PETER GIAMMANCO, JR., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE QUETSCH\ndelivered the opinion of the court:\nPlaintiff, Joseph Giammanco (Joseph), appeals from an order of the circuit court of Du Page County dismissing his amended complaint against defendants, Peter Giammanco, Jr. (Peter), Central Can Company, Red Oak Investment Corporation (Red Oak), and Wallace C. Wilsey, pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1992)) for failure to state a cause of action. On appeal, Joseph contends that the trial court erred in concluding that Joseph failed to plead \u201cdamages\u201d sufficiently.\nThe allegations of Joseph\u2019s amended complaint are as follows. On December 14, 1989, Central Can Company, an Iowa corporation (Old Central Can), merged into CCC Acquisition Corp. (CCC), which was thereafter renamed Central Can Company (New Central Can). CCC was formed by the shareholders of Red Oak for the purpose of acquiring Old Central Can. Joseph and Peter are brothers, and prior to the merger, each owned 50% of the stock of Old Central Can. Joseph and Peter were both officers of the company and until March 1989 were the only members of its board of directors. For several years prior to the merger, the brothers\u2019 personal and business relations had been deteriorating due to fundamental differences regarding the management and operation of the business. During 1988, the brothers explored possible options for terminating their business relationship, but could not reach an agreement. Peter had offered to purchase Joseph\u2019s interest in the company, but Joseph rejected the offer. Peter, in turn, had rejected Joseph\u2019s proposal that they divide ownership of the company\u2019s separate divisions.\nMark Crane served as counsel to Old Central Can and was apparently the trustee of a voting trust pursuant to which he was empowered to break deadlocks in shareholder votes. In March 1989, Crane suggested that the only viable resolution of the difficulties between Joseph and Peter was to sell the company to a separate and independent third party. Crane was installed as a third director of Old Central Can, with the understanding that if in his efforts to arrange for the sale of the company he was opposed by both Joseph and Peter, he would resign as a director and as trustee of the voting trust. Subsequently, in accordance with Crane\u2019s proposal, the firm of Bear, Stearns & Company, Inc. (Bear Stearns), was retained to explore options for the sale of Old Central Can and to solicit and investigate bidders for the company. Joseph and Peter agreed that neither would participate, directly or indirectly, in the bidding for the company. Ultimately, Red Oak emerged as the highest bidder for the Company, and on November 2, 1989, a meeting of the board of directors of Old Central Can was held during which Bear Stearns was given authorization to proceed with the negotiation of a definitive agreement for the sale of the stock of Old Central Can to Red Oak.\nRed Oak\u2019s offer was structured as a proposal for a merger between CCC and Old Central Can, following which CCC would be the surviving corporation and Peter and Joseph would receive a total of $45 million for the stock of Old Central Can ($22.5 million for each brother\u2019s shares). Red Oak\u2019s offer exceeded the next highest bid by approximately $5 million. The offer was conditioned upon the brothers\u2019 agreeing to pay certain post-closing adjustments based upon the level of working capital on the closing date of the sale of the company. In addition, the terms of Red Oak\u2019s bid required Joseph and Peter, severally, to indemnify the company up to an aggregate amount of $2.5 million for liability and litigation expenses in connection with certain antitrust proceedings. Following the board of directors meeting on November 2, Peter offered to purchase Joseph\u2019s stock directly for $24.5 million dollars. Peter\u2019s offer did not entail any post-closing adjustments or indemnification obligations. Joseph rejected the offer, allegedly because (1) he continued to feel strongly that he did not want to sell his stock to Peter; (2) he was concerned that, unlike Red Oak, Peter did not have adequate financing available; (3) if Peter could not complete the transaction it was unlikely that the company could still be sold for an amount as high as Red Oak had offered; and (4) he feared that Mark Crane would resign from his positions as director and voting trustee, exacerbating the problems between Joseph and Peter.\nOn November 8, 1989, another meeting of Old Central Can\u2019s board of directors was held. At the meeting, Peter\u2019s counsel stated that Peter intended to vote in favor of the merger with CCC, but that he also intended to negotiate an employment package with the company, and hoped to obtain a significant equity interest. Peter\u2019s counsel further indicated that Peter\u2019s previous offer to purchase Joseph\u2019s stock was still open. Mark Crane stated that it was his understanding that after the merger 15% to 25% of the stock in New Central Can would be offered to management, including 10% to 15% to the chief executive officer. Joseph indicated that he would vote to approve the merger based on the assumption that there was no \u201cpre-arranged deal\u201d between Peter and Red Oak.\nSubsequent to the merger, Joseph allegedly discovered that contemporaneously with the merger Peter acquired a 96% interest in New Central Can, and on May 24, 1990, New Central Can redeemed Red Oak\u2019s remaining 4% of the stock for $1.6 million. Joseph alleged that Peter, Red Oak and defendant Wilsey (a principal shareholder of Red Oak) intentionally misrepresented or concealed material facts as part of a scheme devised to give Peter control of Old Central Can.\nJoseph\u2019s four-count amended complaint sought recovery under theories of fraud (count I), breach of fiduciary duty (count II), promissory estoppel (count III) and breach of the implied duty of fair dealing and good faith (count IV). Defendants filed a motion to dismiss the amended complaint with prejudice. The trial court granted the motion. On appeal, Joseph contends that the dismissal of counts I, II and III was improper. Joseph does not challenge the dismissal of count IV.\nInitially, we consider the question of appellate jurisdiction. Defendants have filed a motion to dismiss this appeal, which we have taken with the case, contending that an oral motion by Joseph subsequent to the date of his notice of appeal rendered the notice of appeal ineffective. The trial court entered its order dismissing the case on February 9, 1993. On February 17, 1993, Joseph first filed his notice of appeal and then filed a written motion to stay enforcement of the trial court\u2019s judgment pending appeal. The motion for a stay was heard on February 24, 1993. During the hearing, Joseph\u2019s attorney elaborated on the circumstances underlying the request for a stay. Joseph\u2019s attorney stated that, after the trial court entered its dismissal order, counsel for New Central Can indicated that the company would take affirmative action to enforce Joseph\u2019s indemnification obligation. If New Central Can brought an action against him, Joseph intended to interpose the defense of fraud in the inducement. Joseph was concerned, however, that if he did so, New Central Can might claim that under the doctrine of res judicata the dismissal of Joseph\u2019s lawsuit with prejudice barred Joseph from asserting this defense. The trial court determined that this was an improper basis for a stay of the order of dismissal. During the hearing, Joseph\u2019s attorney apparently concluded that this concern about the consequences of the dismissal order might be ungrounded if the basis of the order was simply the failure to allege damages properly. The trial court stated as follows:\n\u201cTHE COURT: We had a lengthy discussion off the record on this motion for stay pending appeal.\nThe motion as presented for stay pending appeal is denied.\nHowever, there has been an oral motion for a clarification of this Court\u2019s granting of the 2 \u2014 615 motion to dismiss the four counts.\nThe sole basis for the dismissal of those four counts was that this court dismissed all four counts for failure to state a cause of action based on the fact \u2014 and this is more detailed in the record of the decision \u2014 but based on the fact that this court did not find any recognizable damage theory in that the damages were too speculative.\nHowever, this Court did not rule in that motion to dismiss on the merits of any of the causes of action or any of the alleged facts presented in those particular causes of action.\n* * *\n*** [Ejven looking upon those allegations as true, the Court found that the causes of action were not stated because of the lack of damages in each and every count.\u201d\nFollowing the hearing, a written order was entered providing, in pertinent part, \u201c[o]n plaintiff\u2019s oral Motion for Clarification, the Court\u2019s order of [February 9,1993,] is clarified as per transcript.\u201d\nSupreme Court Rule 303(a)(2) provides, in pertinent part:\n\u201cWhen a timely post-trial motion has been filed by any party *** a notice of appeal filed before the entry of the order disposing of the last pending post-trial motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-trial motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the post-trial motion, as provided in subparagraph (a)(1) of this rule.\u201d 134 Ill. 2d R. 303(a)(2).\nAlthough the original written motion for a stay pending appeal is not a post-trial motion within the meaning of Rule 303(a)(2) (see, e.g., In re Estate of Goodlett (1992), 225 Ill. App. 3d 581, 586-87; In re Petition of Village of Kildeer to Annex Certain Property (1987), 162 Ill. App. 3d 262, 280, aff\u2019d (1988), 124 Ill. 2d 533), defendants contend that the oral motion for clarification is such a motion. We disagree.\nA \u201cpost-trial motion\u201d for purposes of Rule 303(a)(2) must be one which specifically requests one or more of the statutorily authorized types of relief consisting of rehearing, retrial, modification or vacation of the judgment. (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 461; In re Estate of Goodlett (1992), 225 Ill. App. 3d 581, 586.) Moreover, even where a motion seeks to modify the judgment, it does not constitute a post-trial motion within the meaning of Rule 303(a)(2), unless it is \u201cdirected against the judgment.\u201d Marsh, 138 Ill. 2d at 462 (even if section 2 \u2014 611 motion for attorney fees was construed as a motion to modify the judgment, it was not \u201cdirected against the judgment\u201d).\nThe judgment in the case at bar was a judgment of dismissal with prejudice for failure to state a cause of action. At no point did Joseph in any way challenge this judgment in the trial court. Joseph simply sought to have the trial court reiterate the explanation it had previously given on February 9. Moreover it does not appear that Joseph actually sought clarification of the trial court\u2019s reasoning, in the sense that there was any lack of clarity in the trial court\u2019s statement of its reasoning during the hearing on February 9. Rather, it appears that Joseph\u2019s attorney primarily wanted to confirm his understanding of the trial court\u2019s reasoning.\nIn Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, cited by Joseph, the defendants appealed from a judgment favorable to the plaintiff. The plaintiff thereafter filed a motion for findings of fact and conclusions of law. The motion specifically stated that the plaintiff \u201caccepts the judgment *** and is willing to abide by the terms and conditions of the judgment order.\u201d (149 Ill. App. 3d at 92.) The court held that the motion was not directed against the judgment as contemplated by Rule 303(a)(2). We reach the same conclusion in the case at bar.\nWe are aware that in Knapp v. City of Decatur (1987), 160 Ill. App. 3d 498, 503, a \u201cmotion for findings\u201d by a plaintiff whose complaint had been dismissed was considered to be \u201csufficiently directed against the *** judgment to constitute a post-trial motion under section 2 \u2014 1203,\u201d where the motion \u201cdid not expressly accept the court\u2019s judgment as in Lewis.\u201d Knapp is factually distinguishable. In that case, the \u201cfindings\u201d related to the nature of the relief granted to the defendants on their motions to dismiss. The plaintiff sought \u201cfindings\u201d regarding \u201c(1) whether the plaintiff\u2019s motion for leave to file an amended complaint was granted; (2) whether plaintiffs\u2019 first-amended complaint was filed; (3) whether the complaint or amended complaint was dismissed; and (4) whether the cause was dismissed with or without prejudice.\u201d (160 Ill. App. 3d at 501.) The court viewed the motion as requesting, \u201cin effect, a change in the form of the original judgment to reflect the actual action taken.\u201d There is no similar confusion in the case at bar about what action was taken by the trial court. Moreover, we think it is abundantly clear from statements of Joseph\u2019s attorney during the hearing on February 24, 1993, that, like the prevailing plaintiff in Lewis, he had no intention of challenging the judgment of dismissal in the trial court. We think Lewis rather than Knapp is more closely analogous to the case at bar.\nThe cases cited by defendants in support of their view that jurisdiction is lacking are inapposite. Defendants note that in In re Application of County Treasurer (1990), 208 Ill. App. 3d 561, and Woodard v. Krans (1992), 234 Ill. App. 3d 690, motions denominated as motions to \u201cclarify and reconsider\u201d (emphasis added) were considered post-trial motions. Reconsideration is one of the statutorily authorized forms of relief. Here, however, in no sense was reconsideration sought. Defendants also cite People v. Paliemar (1985), 132 Ill. App. 3d 830, where the court referred to a \u201cmotion to clarify\u201d as a post-trial motion. In Paliemar, whether the motion was a post-trial motion directed against the judgment within the meaning of Rule 303(a)(2) was of no consequence to the jurisdictional question because the motion was not filed within 30 days after the judgment was entered, and the appellate court would have lost jurisdiction regardless of the character of the motion.\nWe conclude that our jurisdiction is proper, and defendants\u2019 motion is therefore denied.\nWe turn now to the merits of the case. With respect to counts I (fraud), II (breach of fiduciary duty) and III (promissory estoppel) of Joseph\u2019s amended complaint, defendants asserted in their motion to dismiss that \u201cthere is no proximate cause between the damages alleged and the wrongful acts stated within said Count. The damages are speculative and not legally cognizable.\u201d In dismissing the amended complaint for failure to state a cause of action, the trial court found:\n\u201cIn the case at bar, it is necessary to speculate as to the fact of damage. Even accepting all well-pleaded facts as true, it cannot be said with any reasonable degree of certainty that the plaintiff has been damaged.\nThe fact that any damage to plaintiff is uncertain disallows any recovery in this case.\u201d\nIn ruling on a motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1992)), the court must accept as true all well-pleaded facts and all reasonable inferences which can be drawn therefrom. (Kolegas v. Heftel Broadcasting Corp. (1992), 154 Ill. 2d 1, 8-9; Johnson v. George J. Ball, Inc. (1993), 248 Ill. App. 3d 859, 863.) The court should not dismiss a complaint for failure to state a cause of action unless it clearly appears that no set of facts could be proved which would entitle the party to relief. (Johnson, 248 Ill. App. 3d at 863.) In making this determination, the court is to interpret the allegations of the complaint in the light most favorable to the plaintiff. (Kolegas, 154 Ill. 2d at 9; Johnson, 248 Ill. App. 3d at 863.) The complaint must be liberally construed with a view to doing substantial justice between the parties. 735 ILCS 5/2\u2014 603(c) (West 1992); Johnson, 248 Ill. App. 3d at 864.\nWe first consider whether the trial court properly dismissed Joseph\u2019s claim for fraudulent misrepresentation. The elements of the tort of fraudulent misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in justifiable reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 193; see also Johnson v. George J. Ball, Inc. (1993), 248 Ill. App. 3d 859, 867.) Defendants have not challenged the sufficiency of Joseph\u2019s allegations with respect to the first four elements of the cause of action. The sole issue is whether the damage element was sufficiently pleaded. Referring to the established measures of damages in fraud actions, defendants maintain that Joseph did not suffer any \u201clegally cognizable damages.\u201d Defendants also argue that their alleged misconduct was not the proximate cause of \u201cdamages\u201d to Joseph.\nAt this point we believe clarification of the pertinent terminology may be helpful. \u201cDamage\u201d (an element of the tort of common-law fraud) is to be distinguished from \u201cdamages\u201d (a remedy). It has been noted that, \u201c[a]though the words, \u2018damage,\u2019 \u2018damages,\u2019 and \u2018injury,\u2019 are sometimes treated loosely as synonyms, there is a material distinction between them. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.\u201d (Ballentine\u2019s Law Dictionary 303 (3d ed. 1969); see also Black\u2019s Law Dictionary 351 (5th ed. 1979) (\u201cThe word [\u2018damage\u2019] is to be distinguished from its plural, \u2018damages\u2019, which means a compensation in money for a loss or damage\u201d).) In determining whether Joseph\u2019s allegations were sufficient to survive a motion to dismiss for failure to state a cause of action, the correct inquiry is whether damage has been alleged. It is likewise true that damages must be proved to be recovered. (Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill. App. 3d 852, 858.) If a party proves the right to damages but fails to provide a proper basis for computing those damages, only nominal damages can be recovered. (Keno & Sons Construction Co. v. La Salle National Bank (1991), 214 Ill. App. 3d 310, 312.) However, liability for nominal damages is sufficient to sustain a cause of action. In re Application of Busse (1984), 124 Ill. App. 3d 433, 439.\nAs the parties have premised their arguments primarily on the question of how damages should be calculated in this case, we briefly review the applicable principles, mindful that our inquiry is whether damage to Joseph has been sufficiently alleged. Generally, in the United States two approaches to the measure of damages in fraud actions have developed: the \u201cbenefit of the bargain\u201d approach and the \u201cout of pocket loss\u201d approach. (See generally W. Prosser, Torts \u00a7110, at 733-34 (4th ed. 1971); Annot., 13 A.L.R.Sd 875 (1967).) Under the out-of-pocket rule, followed in a minority of jurisdictions, damages awarded represent \u201cthe difference between the value of what [the defrauded party] has parted with and the value of what he has received. If what he received was worth what he paid for it, he has not been damaged, and there can be no recovery.\u201d (W. Prosser, Torts \u00a7110, at 734 (4th ed. 1971).) Decisions in Illinois have generally followed the benefit-of-the-bargain approach. (See Gerill Corp., 128 Ill. 2d at 196; Poeta, 195 Ill. App. 3d at 858.) Under this approach, \u201cdamages are determined by assessing the difference between the actual value of the property sold and the value the property would have had if the representations had been true.\u201d Gerill Corp., 128 Ill. 2d at 196.\nThe benefit-of-the-bargain rule best fits the most common fraud scenario where a buyer (or sometimes a lessee) has been misled about the quality of property or some other matter relevant to a pecuniary aspect of the transaction. Thus this court has stated, \u201c[i]n an action for fraudulent misrepresentations in the sale of property, the measure of damages is the difference between the value of the property as it is and what it would have been worth if the representations had been true. [Citations.] Therefore, to show injury, plaintiffs must allege facts which show the value of what they received was not equal to the value of what they were promised.\u201d Sommer v. United Savings Life Insurance Co. (1984), 128 Ill. App. 3d 808, 816 (actual death benefit under life insurance policy was approximately half the amount that defendant\u2019s agents had represented would correspond to a particular schedule of premium payments and loans against the policy; plaintiffs would have to pay far higher premiums to receive death benefit represented); see also Four \u201cS\u201d Alliance, Inc. v. American National Bank & Trust Co. (1982), 104 Ill. App. 3d 636 (lessee of gas station under month-to-month tenancy awarded the profit difference for the gas actually sold during months before misrepresentation had been corrected, and the volume of sales that had been represented orally); Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 186-87 (\u201cIn Illinois, a purchaser of property who has established fraud is entitled to damages which will give him \u2018the benefit of [his] bargain.\u2019 [Citation.] *** [0]ne method of calculating damages in cases of fraudulent misrepresentation or concealment is the difference between the value that the property would have had at the time of sale if the defects did not exist and the value the property actually had at the time of the sale due to the defects\u201d); Posner v. Davis (1979), 76 Ill. App. 3d 638, 644-45 (same); In re Application of Busse (1984), 124 Ill. App. 3d 433, 442-43 (where promissory note, which defendants substituted for note specified in contract, provided for installment payments at later dates than note specified in contract, plaintiffs were deprived of the \u201cbenefit-of-their-bargain\u201d since \u201c[t]he postponement of payment dates clearly deprived the plaintiffs of the use of the monies which defendants were obligated to pay and which plaintiffs were legally entitled to receive. The deprivation of the payment and the use of the monies constituted a wrong and an injury to the damage of the plaintiffs\u201d).\nIt has been recognized, however, that a benefit-of-the-bargain measure may not be appropriate in all circumstances. For instance, the Restatement (Second) of Torts refers to the situation where a defrauded seller sells property for less than its value in reliance on the buyer\u2019s representation that the property is practically worthless. In that case \u201c[o]n the basis of the representations, taken to be true, the seller would have sold worthless property for a substantial price and suffered no loss at all,\u201d and, according to the Restatement, the defrauded seller may therefore recover out-of-pocket losses. (Restatement (Second) of Torts \u00a7549, Comment g, at 115 (1977).) In Gold v. Dubish (1989), 193 Ill. App. 3d 339, it was held that lost profits under a benefit-of-the-bargain analysis were improper where the defrauded parties had not actually consummated the purchase of the defendants\u2019 business. The court held, however, that \u201cout-of-pocket\u201d damages based on lost wages and benefits, and expenses incurred by the plaintiffs in securing new employment, could be awarded where the plaintiffs had detrimentally relied on the defendants\u2019 assurances that the sale would be consummated by leaving their existing employment. 193 Ill. App. 3d at 351-52.\nWith these principles in mind we consider the parties\u2019 arguments regarding the calculation of damages in the case at bar. Joseph advances two theories for computing his damages. Under both theories, the damages equal the difference between the price offered by Peter to purchase Joseph\u2019s stock and the price paid by Red Oak (adjusted to account for Joseph\u2019s post-closing obligations). Joseph\u2019s first theory is that \u201cbut for the fraud\u201d he would have accepted Peter\u2019s higher offer. In support of the proposition that there exists a recognized \u201cbut for\u201d measure of damages distinct from other recognized measures (e.g., \u201cbenefit of the bargain\u201d or \u201cout-of-pocket loss\u201d), Joseph cites Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834. In Beaton the court stated that \u201c[o]ne induced to contract through the fraud of another may elect to rescind the contract and recover the consideration paid, or affirm the contract and recover the difference between the property received and what he or she would have received but for the fraud.\u201d (Emphasis added.) (159 Ill. App. 3d at 844.) Contrary to Joseph\u2019s argument, this language simply describes the established benefit-of-the-bargain measure. In Beaton a former officer and director of a corporation was engaged by the corporation as its agent to arrange security services for the corporation\u2019s manufacturing facilities. Unbeknownst to the corporation, the agent was receiving a commission from the firm selected to provide the security services. The court held that the payments to the agent represented the difference between the value of the security services received, including the agent\u2019s misconduct in obtaining those services, and what the corporation\" would have received but for the fraud.\nIn any event, we think Joseph\u2019s analysis is incorrect for a more fundamental reason. Joseph\u2019s theory does not portray what would have occurred \u201cbut for the fraud.\u201d Instead, the outcome Joseph suggests is dependent on defendants\u2019 having attempted to perpetrate fraud, but Joseph\u2019s having known the true facts. The unusual aspect of this case is that Peter allegedly engaged in a fraudulent scheme to overcome Joseph\u2019s resistance, even though an honest transaction (the direct purchase of Joseph\u2019s stock) allegedly might have been more advantageous to Peter from a tax standpoint. As alleged, Peter, in pursuit of the ultimate objective of gaining control of Old Central Can, hedged an honest advantageous offer with a less advantageous dishonest offer. If Peter had been completely forthright in his dealings he would not have been forced essentially to bid against himself in this manner. There is no realistic basis to conclude that the higher offer would necessarily have been made in such circumstances. The result Joseph seeks is not that which would have occurred \u201cbut for the fraud\u201d; rather, it is the result that would have ensued if Joseph had been able to exploit the fraudulent scheme to his own advantage. There might have been some irony in such a result if Joseph had been able turn the tables on the allegedly fraudulent parties. However, that did not happen. It is the function of this court to administer justice, not poetic justice, and the measure plaintiff proposes is not compensation for an actual loss.\nJoseph also maintains that, under the benefit-of-the-bargain rule, he is entitled to damages equal to the difference between the price offered by Peter and the adjusted price paid by Red Oak. Joseph contends that he bargained for the sale of Old Central Can to an independent purchaser and that price difference represents the value to him of that aspect of the bargain. Defendants argue, on the other hand, that there were no misrepresentations bearing on the value of any property in the transaction; Joseph received exactly what he was promised and cannot be awarded damages under a benefit-of-the-bargain theory.\nAlthough a variety of torts can theoretically be accomplished through the use of deception, the tort of common-law fraud is primarily addressed to the invasion of economic interests. (See D. Dobbs, Remedies \u00a79.1, at 591 (1973).) \u201c[D]eceit belongs to that class of tort of which pecuniary loss generally constitutes part of the cause of action.\u201d (37 Am. Jur. 2d Fraud & Deceit \u00a7283, at 378 (1968).) It has also been stated that \u201cthe loss or injury need not be of a specifically pecuniary character. It is sufficient if the fraud has resulted in a right which the law recognizes as of pecuniary value.\u201d (37 Am. Jur. 2d Fraud & Deceit \u00a7292, at 388 (1968).) However, \u201c[i]f the plaintiff is not materially harmed by the defendant\u2019s conduct, however flagrant it may have been, there may be no recovery.\u201d Shults v. Henderson (W.D.N.Y. 1986), 625 F. Supp. 1419, 1426 (although majority shareholder failed to disclose to minority shareholders that, in connection with a proposed sale of the corporation\u2019s assets, he had entered into a consulting agreement with the purchaser, the minority shareholders\u2019 reliance on this conduct \u201cwas in no way detrimental to their pecuniary interests\u201d where consulting agreement was not a sham and was a condition to regulatory approval of transfer, and consideration for purchase of assets was greater than the minority shareholders\u2019 estimate of the value of the business).\nWe do not believe the benefit to Joseph of an independent purchaser is of a sufficient pecuniary character that deprivation of that benefit can be compensated in a fraud action under a benefit-of-the-bargain theory. Joseph may have sincerely placed a high value on preventing Peter from acquiring Old Central Can. However, Joseph\u2019s financial position is no different than it would have been if Red Oak had honored the bargain. A fraud action does not afford a remedy for harm to one\u2019s pride. Cf Walsh v. Ingersoll-Rand Co. (8th Cir. 1981), 656 F.2d 367, 371 (humiliation, embarrassment and career disruption were equivalent to emotional harm and were not compensable in a fraud action).\nIf we were to focus solely on the completed bargain, we would therefore agree with defendants that no right to compensation (or at best only a right to nominal damages) has been alleged. However, under the unusual circumstances of this case, we believe such a focus is too narrow, and even though application of the benefit-of-the-bargain rule does not reveal pecuniary harm, we do not find this to be conclusive of whether such harm occurred. While from the standpoint of the completed bargain the independence of the buyer may not have value in a pecuniary sense, it seems quite clear that Joseph\u2019s insistence on an independent buyer had pecuniary value in the bargaining process. Defendants characterize Joseph\u2019s unwillingness to sell his stock to Peter as \u201cnoneconomic\u201d behavior. We disagree. It has not been suggested that Joseph was not entitled to bargain with Peter on the basis of the special value the brothers may have placed on control of the company. It may fairly be inferred that Joseph and Peter valued Old Central Can more highly than an independent purchaser might. Moreover, the brothers\u2019 understanding regarding the bidding process served to prevent either of them from exploiting a depressed price for the company that might result due to the \u201cforced sale\u201d circumstances under which they were disposing of the company. Peter\u2019s alleged scheme altered the fundamental assumptions underlying the bargaining process, and even though Joseph may not have been deceived with respect to pecuniary aspects of the ultimate bargain, we believe the distortion of the bargaining process is itself sufficient to establish damage. Accordingly, we conclude that under the unusual circumstances of this case, Joseph\u2019s right to bargain with whomever he desired, and to know with whom he was bargaining, is of a pecuniary character, and- the deprivation of this right constitutes damage for which Joseph is entitled to seek compensation.\nGenerally, it has been stated that in a fraud action \u201c[a] plaintiff may recover damages for any injury which is the direct and natural consequence of his acting on the faith of defendant\u2019s representations.\u201d (Gold v. Dubish (1989), 193 Ill. App. 3d 339, 351.) While the \u201cbenefit-of-the-bargain\u201d or, in appropriate circumstances, \u201cout-of-pocket\u201d loss is the usual measure by which compensation is quantified, we do not believe they are in all cases a perfect litmus test for the existence of compensable damage. \u201cGeneral damages measures are only \u2018guides to common sense\u2019 to begin with.\u201d (D. Dobbs, Remedies \u00a79.2, at 595 n.8 (1973).) These particular measures have been formed and forged in cases that did not involve the unusual circumstances of the case at bar, and we believe an excessively rigid adherence to these measures would be unjust here. Courts administering justice should not be outpaced by creative wrongdoers. Moreover, we are mindful of the fact that damages in fraud cases serve an admonitory function (see Restatement (Second) of Torts \u00a7549, Comment i, at 115 (1977)) which would be severely undermined if the harm which we have identified were held to be noncompensable as a matter of law. Such a holding would put those who conduct themselves honestly in such business dealings at a distinct disadvantage.\nThe most closely analogous case we are aware of, Daniel Boone Complex, Inc. v. Furst (1979), 43 N.C. App. 95, 258 S.E.2d 379, supports our view that Joseph\u2019s common-law fraud claim alleges compensable harm. Furst arose from a somewhat complicated series of transactions involving an amusement park complex and an understanding of the case requires that the facts be recited in some detail. The owners of the amusement park complex entered into an agreement to sell the complex to Matthew and Genevieve Mezzanotte, who in turn assigned the sale agreement to Daniel Boone Complex, Inc. (Daniel Boone), a corporation wholly owned by the Mezzanottes. Thereafter, Camilco, Inc. (Camilco), purchased all of the stock in Daniel Boone from the Mezzanottes. As the date for closing on the sale of the amusement park approached, Daniel Boone lacked sufficient funds to complete the transaction. Camilco (Daniel Boone\u2019s parent company) contacted Mitchell Furst, who was acting as an agent for an undisclosed principal, seeking to obtain a loan, the proceeds of which would be used by Daniel Boone to purchase the amusement park. On behalf of his undisclosed principals, Furst agreed to loan Camilco $136,550.73 in exchange for a promissory note in the amount of $273,101.46 secured by, inter alia, a pledge of all the stock in Daniel Boone and a deed of trust to the amusement park complex (which would be subordinate to the purchase money deed of trust in favor of the sellers of the amusement park). Unbeknownst to Camilco, the Mezzanottes were Furst\u2019s undisclosed principals. Prior to the closing of the loan, Furst had intentionally denied that this was the case. Subsequently, actions for the foreclosure of both deeds of trust were instituted. In a partial settlement of ensuing litigation, the $273,101.46 promissory note was cancelled. In Camilco\u2019s fraud action, the trial court found that Camilco had not been damaged by Furst\u2019s misrepresentation regarding the identity of the lenders. The reviewing court reversed:\n\u201cThe trial court found in its findings of fact that Furst had intentionally misrepresented the identity of his undisclosed principals, the Mezzanottes. In doing so, the trial court focused on the Mezzanottes\u2019 reasons for not having their identity revealed; however, the court\u2019s crucial inquiry, as trier of fact, should have focused on what significance Furst\u2019s misrepresentation of the identity had on Camilco\u2019s execution of the Furst-Camilco loan.\nA contract can be avoided against one who through misrepresentation on his part or the part of his agent has become a party to it knowing that someone else was intended or knowing merely that he was not intended to be a party. [Citations.] The rule does not differ when the identity of a moneylender is the fact being misrepresented. [Citation.] Persons borrowing money may very well consider the identity of their lender. In the instant case, Camilco has presented evidence indicating that it would not have dealt with the Mezzanottes for various reasons. We hold that the trial court erred in not making any determination of fact on the existence of this requisite element of fraud.\nRespondents contend that, even if evidence of the first four elements of fraud exists, the trial court did not err in its determination of no fraud, because appellants suffered no damage. It is true that appellants do not presently have any liability on the original $273,101.46 promissory note. Should the court determine that the identity of the undisclosed lenders, the Mezzanottes, was essential to Camilco\u2019s execution of the loan and mortgage agreements, Camilco would be able to meet the requisite damage element of fraud. The execution of the loan and mortgage agreement with a party with whom it did not wish to deal would be sufficient injury.\u201d (43 N.C. App. at 103-04, 258 S.E.2d at 386.)\nThe court concluded that if the trial court were to determine that the misrepresentation induced the execution of the loan and mortgage agreements, \u201cthen Camilco would be entitled to recover any damages shown to result therefrom.\u201d 43 N.C. App. at 105, 258 S.E.2d at 387.\nAs a general rule, damages may not be predicated on mere speculation, hypothesis, conjecture or whim. (De Koven Drug Co. v. First National Bank (1975), 27 Ill. App. 3d 798, 802.) However, once the existence of damage has been established, evidence tending to reasonably approximate the extent of damage is admissible. (De Koven, 27 Ill. App. 3d at 802.) Absolute certainty as to the amount of damage in such cases is not required to justify a recovery; it is only necessary that the evidence tend to establish a basis for the assessment of damages with a fair degree of probability. (De Koven, 27 Ill. App. 3d at 802.) We believe the allegations of Joseph\u2019s amended complaint are sufficient with regard to the damage requirement of the tort of fraudulent misrepresentation and Joseph is entitled to attempt to establish a basis for assessment of damages. It is premature at the pleading stage to conclude damages are speculative, as defendant argues.\nOur reasoning with regard to Joseph\u2019s fraud claim is largely dis-positive of the issue of the sufficiency of Joseph\u2019s allegations of count II of the amended complaint seeking recovery for breach of fiduciary duty. Joseph\u2019s breach of fiduciary duty theory is premised on the principle that, as the sole and coequal shareholders of Old Central Can, Joseph and Peter owed each other a fiduciary duty similar to that of partners. (See Illinois Rockford Corp. v. Kulp (1968), 41 Ill. 2d 215; Battaglia v. Battaglia (1992), 231 Ill. App. 3d 607, 618; Hagshenas v. Gaylord (1990), 199 Ill. App. 3d 60, 71.) The parties appear to be in agreement that one claiming breach of fiduciary duty may seek recovery based on a theory of unjust enrichment. (See Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1985), 137 Dl. App. 3d 84, 91, aff\u2019d (1986), 114 Ill. 2d 278 (\u201cif defendants had unjustly enriched themselves by fraud or by a breach of a fiduciary relationship, the plaintiffs could seek redress by a constructive trust or other theory of action\u201d).) In our view, Joseph\u2019s allegations sufficiently identify an advantage to Peter arising from the distortion of the bargaining process which corresponds to the loss or harm to Joseph previously discussed. We recognize that recovery on this basis may likewise entail difficulty of quantification. Moreover, we express no opinion as to whether the value of the advantage is necessarily equal to loss or harm to Joseph or whether there may be potential offsetting factors which might be taken into account in determining an appropriate award under this theory.\nDefendants argue that there was no gain to Peter. They contend that Peter was actually harmed, since, because Joseph refused to deal with him, Peter was forced to pay more for Old Central Can than the next highest bidder. However, at present there has been no suggestion that Joseph acted wrongfully in his negotiations with Peter or in seeking to hold Peter to their mutual agreement that neither brother would participate in the bidding process. That Peter might have been in a better position if Joseph had acted more generously toward him is of no consequence to the issue before us.\nDefendants also suggest, without citation of authority, that because the prayer for relief in count II of the amended complaint sought damages for Joseph\u2019s loss, Joseph cannot seek recovery based on gain to Peter. We agree with Joseph that at most defendants have identified a technical defect in the pleadings for which dismissal with prejudice is inappropriate relief. (See 735 ILCS 5/2 \u2014 604 (West 1992) (\u201cPrayers for relief which the allegations of the pleadings do not sustain may be objected to on motion or in the answering pleading\u201d).) We therefore conclude that the trial court erred in dismissing count II of the amended complaint with prejudice.\nDefendants have also argued that their alleged misconduct was not the proximate cause of any harm to Joseph. Defendants have failed to explain how the concept of proximate cause applies to the facts alleged. In fraudulent misrepresentation cases, \u201c[s]o far as the fact of causation is concerned, any loss which follows upon a transaction into which the misstatement induces the plaintiff to enter may be said to be caused by it.\u201d (W. Prosser, Torts \u00a7110, at 732 (4th ed. 1971).) However, although a transaction may have been induced by a misrepresentation, the requirement of proximate cause limits recovery to \u201cthose damages that which might foreseeably be expected to follow from the character of the misrepresentation itself.\u201d (W. Prosser, Torts \u00a7110, at 732 (4th ed. 1971).) To illustrate, \u201cif false statements are made in connection with the sale of corporate stock, losses due to a subsequent decline of the market, or insolvency of the corporation, brought about by business conditions or other factors in no way related to representations, will not afford any basis for recovery.\u201d (W. Prosser, Torts \u00a7110, at 732 (4th ed. 1971).) We fail to see how this limitation would operate to defeat recovery in the case at bar.\nWe agree with defendants, however, that recovery in this case cannot be premised on a theory of promissory estoppel. \u201cTo establish a claim based on promissory estoppel, plaintiff must allege and prove that (1) defendants made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff\u2019s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.\u201d (Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 309-10.) Joseph seeks to enforce alleged promises that Peter would not participate directly or indirectly in bidding for Old Central Can. Joseph contends that he relied on these promises to his detriment by rejecting Peter\u2019s offer to purchase his stock directly. Promissory estoppel is a doctrine under which a plaintiff may recover without the presence of a contract. (Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co. (1980), 90 Ill. App. 3d 768, 770.) Joseph has cited no authority that one may achieve a greater recovery under a theory of promissory estoppel than he would have recovered had the promise been a contractual obligation supported by consideration. We have already concluded that, viewed from the standpoint of the completed bargain, Joseph would not be entitled to recovery under the benefit-of-the-bargain rule. The same conclusion applies to Joseph\u2019s claim based on the theory of promissory estoppel.\nFor the foregoing reasons, the judgment of the circuit court of Du Page county is affirmed with respect to the dismissal of counts III and IV of the amended complaint and reversed with respect to the dismissal of counts I and II of the amended complaint, and the cause is remanded.\nAffirmed in part; reversed in part and remanded.\nMcLAREN and DOYLE, JJ., concur.", "type": "majority", "author": "JUSTICE QUETSCH" } ], "attorneys": [ "Thomas J. Litwiler, of Oppenheimer, Wolff & Donnelly, and Russell M. Pelton, of Peterson, Ross, Schloerb & Seidel, both of Chicago (David C. Bohrer, of counsel), for appellant.", "James W. Naisbitt, of Chuhak & Tecson, P.C., of Chicago (Cary S. Fleischer, of counsel), for appellees." ], "corrections": "", "head_matter": "JOSEPH GIAMMANCO, Plaintiff-Appellant, v. PETER GIAMMANCO, JR., et al., Defendants-Appellees.\nSecond District\nNo. 2\u201493\u20140205\nOpinion filed December 20, 1993.\n\u2014 Rehearing denied January 20, 1994.\nThomas J. Litwiler, of Oppenheimer, Wolff & Donnelly, and Russell M. Pelton, of Peterson, Ross, Schloerb & Seidel, both of Chicago (David C. Bohrer, of counsel), for appellant.\nJames W. Naisbitt, of Chuhak & Tecson, P.C., of Chicago (Cary S. Fleischer, of counsel), for appellees." }, "file_name": "0750-01", "first_page_order": 770, "last_page_order": 787 }