FIFTH DIVISION September 23, 2016

No. 1-14-3734

TRAPANI CONSTRUCTION COMPANY, INC., an ) Appeal from the Illinois Corporation, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) ) No. 09 CH 51534 THE ELLIOT GROUP, INC., an Illinois Corporation; ) ARLINGTON MARKET, LLC, an Illinois Limited ) Liability Company; and PARKWAY BANK AND ) TRUST, INC., ) ) Defendants ) Honorable ) Franklin U. Valderrama, (The Elliot Group, Inc., an Illinois Corporation, Defendant- ) Judge Presiding. Appellant).

JUSTICE REYES delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.

OPINION

¶1 Defendant The Elliot Group, Inc. (defendant), 1 a real estate developer, appeals on order

of the circuit court of Cook County entering judgment in favor of and awarding $257,764.70 to

plaintiff Trapani Construction Co., Inc. (plaintiff), a general contractor. On appeal, defendant

asserts the trial court erred in finding a contract implied in fact existed between the parties

because (1) defendant never accepted plaintiff’s offer to provide construction services, (2) an

1 Defendant is referred to as “The Elliott Group, Inc.,” in the parties’ briefs and the record on appeal. 1-14-3734

unsigned draft contract dated July 5, 2007, required defendant’s acceptance by signature, and (3)

defendant sufficiently disclosed to plaintiff it was acting as an agent of Arlington Market, LLC

(Arlington Market), the owner of the property. For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 In early July 2007, plaintiff sent a draft contract to defendant indicating plaintiff would

provide construction services to defendant on the property located at Kensington Road and

Dryden Road in Arlington Heights, Illinois (the property), for a project known as the “Arlington

Market Site Work” (the project). Defendant was listed as the project owner but did not sign the

contract. Nevertheless, plaintiff commenced and completed the work pursuant to the terms of the

contract. During the course of plaintiff’s performance, payments totaling $2,042,846.50 were

approved and made to plaintiff based on its payment requests to defendant. Plaintiff, however,

was not paid in full and requested defendant pay the remaining $257,764.70 for its work

performed on the project. Defendant refused.

¶4 On December 22, 2009, plaintiff filed a three-count complaint against defendant,

Arlington Market, and Parkway Bank & Trust Company (Parkway Bank), 2 alleging foreclosure

of mechanic’s lien (count I), breach of contract (count II), and unjust enrichment, in the

alternative (count III). Count I was dismissed by the trial court, and as a result Parkway Bank

was dismissed from the case. On April 22, 2014, a bench trial commenced on counts II and III.

On April 23, 2014, plaintiff dismissed its claim against Arlington Market and proceeded against

defendant alone. At the conclusion of plaintiff’s case-in-chief, defendant moved for a directed

verdict. The trial court denied defendant’s motion on count II. Plaintiff voluntarily dismissed

count III with prejudice. Thereafter, on May 7, 2014, plaintiff filed a one-count amended

2 Arlington Market and Parkway Bank are not parties to this appeal.

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complaint alleging that defendant’s refusal to pay the remaining $257,764.70 constituted a

breach of contract implied in fact.

¶5 No transcript of the bench trial appears in the record on appeal. The parties, however,

stipulated to a bystander’s report that summarized the trial proceedings pursuant to Illinois

Supreme Court Rule 323(c) (eff. Dec. 13, 2005), which was certified by the trial court. The

following facts were adduced at trial.

¶6 A. Plaintiff’s Evidence

¶7 Plaintiff presented the following evidence. Plaintiff had performed work for defendant as

a general contractor on other construction projects prior to this project. On these occasions,

plaintiff had performed under an unsigned contract and was paid in excess of $18 million by

defendant for its work. Similarly, plaintiff performed under an unsigned contract and was paid in

full by defendant for its work on a separate building, which was another part of this project.

¶8 On March 1, 2007, plaintiff submitted a proposal to defendant to provide construction

services for this project. The proposal indicated plaintiff had “[e]specially prepared” the proposal

for “Mr. Lou Elliott, The Elliott Group.” Thereafter, plaintiff sent five draft contracts to

defendant indicating plaintiff would provide construction services to defendant for the work at

issue. 3 Defendant was listed as a contracting party in all five draft contracts. None of the draft

contracts were ever executed.

¶9 The last draft contract forwarded to defendant by plaintiff was dated July 5, 2007.

Plaintiff’s witnesses testified defendant had provided plaintiff with landscape drawings and civil

drawings for the work at issue and that the drawings were attached to and made part of the draft

contract dated July 5, 2007. Plaintiff’s proposal was also attached to the draft contract as a

3 Plaintiff presented evidence that a “series of draft *** contracts” were sent to defendant. The record indicates plaintiff sent five draft contracts.

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“contract document.”

¶ 10 Plaintiff’s witnesses testified that, in early July 2007, plaintiff commenced performing on

the work at issue. 4 Plaintiff’s witnesses further testified the project specifications were provided

by defendant and prepared by third parties hired by defendant. The project specifications

indicated they were prepared at the request of defendant or the Elliott Home Builders. Plaintiff’s

witnesses asserted plaintiff performed pursuant to the terms and specifications of the draft

contract dated July 5, 2007, and the attached documents.

¶ 11 Plaintiff’s witnesses also testified plaintiff followed the procedures set out in the draft

contract dated July 5, 2007, to obtain payment. The payments were made periodically. For each

payment request plaintiff sent to defendant during the course of plaintiff’s performance, plaintiff

submitted to defendant a contract activity report, a certificate for payment, an application and

certification for payment, an application and certificate for payment, and lien waivers. All

documents listed defendant and plaintiff as the contracting parties and defendant as the project

owner. Payments totaling $2,042,846.50 were approved and tendered to plaintiff based on the

payment requests addressed to defendant. The contract amount on the draft contract dated July 5,

2007, matched the amounts on the payment requests and lien waivers plaintiff submitted to

defendant.

¶ 12 Maria Weisbruch (Weisbruch), plaintiff’s employee, testified she prepared the documents

for the payment requests. She stated that Mark Elliott, the president of defendant, would review

the payment requests and other related documents with her. Weisbruch further testified

defendant would “meticulously review” the payment requests and would often require changes in

them before plaintiff was paid. David Cartwright (Cartwright), plaintiff’s senior vice president,

4 The record does not indicate which witnesses provided this testimony.

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testified defendant discussed the payment requests with plaintiff. 5 Defendant did not deny

receiving these documents or that payments were tendered to plaintiff based on these documents.

¶ 13 Plaintiff’s witnesses also testified plaintiff entered into subcontracts with subcontractors

to perform the work required by the draft contract dated July 5, 2007. Each subcontract identified

defendant as the project owner and was observed by defendant.

¶ 14 Plaintiff also obtained certificates of insurance for the work at issue and named defendant

as an additional insured. All certificates were sent to defendant. Further, defendant was identified

as the project owner in certificates of insurance obtained by third parties who were hired by

defendant to work on the same project. Cartwright testified plaintiff was required to obtain the

certificates of insurance before it could commence work on the project.

¶ 15 Plaintiff’s witnesses also testified that during the course of plaintiff’s work at issue, 16

written change orders were approved by defendant. Each change order identified defendant as

the “owner.” Change order No. 16 was signed by Jon Elliott under “The Elliott Group, Inc.,

Owner.” 6 Weisbruch testified plaintiff could not have performed without defendant’s approval of

the change orders. 7

¶ 16 Plaintiff’s witnesses testified construction progress reports were sent to defendant weekly

during plaintiff’s performance until January 18, 2008. Further, plaintiff and defendant exchanged

“numerous” e-mails and correspondences regarding the work at issue. Thereafter, plaintiff was

not paid in full for its work and requested defendant to pay the remaining $257,784.50 it was

owed. Defendant refused. Mark Elliot testified in an affidavit that Arlington Market and

5 This testimony is not included in the bystander’s report of proceedings, but is in the trial court’s order entered on November 6, 2014. 6 The record on appeal does not indicate Jon Elliott’s relationship with defendant. 7 This testimony is not included in the bystander’s report of proceedings, but is in the trial court’s order entered on November 6, 2014.

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defendant do not contest the amount of work that was performed by plaintiff.

¶ 17 Plaintiff’s witnesses further testified defendant never disclosed to plaintiff that it was

acting as the agent of Arlington Market. Plaintiff’s witnesses also testified defendant never

corrected the subcontracts, certificates of insurance, change orders, construction progress reports,

and the documents for payment requests including lien waivers, which listed defendant as the

project owner.

¶ 18 B. Defendant’s Evidence

¶ 19 Defendant presented the following evidence. Defendant is an Illinois corporation engaged

in the business of real estate development and consulting. In 2004, defendant entered into a

contract to purchase the property. Defendant petitioned the Village of Arlington Heights to

develop the property for the project, which the Village of Arlington Heights approved.

¶ 20 Thereafter, Arlington Market was formed to own, develop, manage, and sell the property.

It was common practice in the residential development industry to establish a “single-purpose

LLC” to own the property. In February 2007, defendant assigned its contract for purchase of the

property to Arlington Market. On February 28, 2007, Arlington Market obtained a loan from

Parkway Bank to finance its purchase and development of the property. On that same day,

Arlington Market purchased the property. Arlington Market had no employees and employed

defendant to manage its day-to-day affairs. Michael Elliott was employed as an attorney for

defendant and attorney and manager for Arlington Market. 8

¶ 21 Plaintiff sent five draft contracts to defendant for the work at issue. Michael Elliott

testified he instructed Abe Treger, an attorney, to prepare riders that listed the “owner” as

Arlington Market (the riders). The riders indicated they were made a part of the draft contracts

8 Michael Elliott is also referred to as “Mike Elliott” in the record on appeal.

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and “shall control and supersede” the terms and conditions of the draft contracts. Michael Elliott

testified that, on June 6, 2007, the riders were e-mailed to Cartwright. The riders were never

signed by plaintiff and Arlington Market. Defendant did not submit any e-mails or corroborating

evidence that the riders were sent to plaintiff.

¶ 22 On July 10, 2007, the parties met to negotiate the terms of the draft contract dated July 5,

2007, but the contract was never signed.

¶ 23 The following day, on July 11, 2007, plaintiff sent a letter to defendant. In the letter,

plaintiff confirmed the parties had not reached an agreement on the terms of the draft contract

dated July 5, 2007. Nevertheless, plaintiff stated it had already started working on the project and

requested the first payment.

¶ 24 On July 16, 2007, Mark Elliott responded by letter to plaintiff. In the letter, Mark Elliott

stated, in its entirety, the following:

“Thanks for meeting with us on Tuesday. We also agree that the meeting was

very productive and should put both sides on the right track as we move forward at

Arlington Market. I’ve had a chance to talk to Lou about the points in [sic] you raised in

your July 11th letter. We agree with all of your proposed modifications and will ask Mike

Elliott to make the appropriate contract changes. If you have any question[s], feel free to

call me.”

The letter was signed, “Arlington Market, LLC, by Mark Elliott, as Manager.” The letterhead

read, “The Elliott Group Inc.”

¶ 25 Aside from the discussions about the draft contracts with defendant, plaintiff entered into

a “Construction Loan Escrow Trust and Disbursing Agreement” (the construction escrow

agreement) with Arlington Market, Parkway Bank, and Chicago Title Insurance Company

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(Chicago Title). The construction escrow agreement provided as follows:

“Owner/Borrower has executed/will execute a mortgage/trust deed *** for the

purpose of financing, in whole or in part, the construction of or the rehabilitation of

improvements thereon (the Project).

***

The undersigned agree that this Agreement is not intended by any of the

undersigned to give any benefits, rights, privileges, actions or remedies to any person,

partnership, firm or corporation other than Escrow Trustee, Lender, and Owner/Borrower

as a third party beneficiary or otherwise under any theory of law.

***

The undersigned has received and reviewed the foregoing Agreement and

acknowledges that ___ is neither a party to the said Agreement, nor does that Agreement

confer any benefits, rights, privileges, actions or remedies to any person, partnership,

firm or corporation other than Escrow Trustee, Lender, and Owner/Borrower under a

third party beneficiary theory or otherwise under any theory of law.”

The “project name” was identified as “Arlington Market Site Development.” The construction

escrow agreement was signed by Arlington Market as owner, by Parkway Bank as lender, by

Chicago Title as escrowee, and by plaintiff as general contractor. Weisbruch signed the

construction escrow agreement on behalf of plaintiff. Defendant did not sign the agreement.

¶ 26 Plaintiff sent eight payment requests to defendant during the course of plaintiff’s

performance. In response to plaintiff’s first seven payment requests, Chicago Title wrote checks

or executed wire transfer to plaintiff at the direction of Arlington Market, using funds provided

by Parkway Bank. The last payment request paid to plaintiff was in June 2008. Plaintiff

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submitted its eighth payment application to defendant in September 2008, which defendant

accepted. Arlington Market approved plaintiff’s eighth payment application, but Parkway Bank

refused to fund the payment.

¶ 27 Michael Elliott acknowledged in his testimony that plaintiff’s work at issue was approved

by defendant, but further testified defendant had acted only as a development consultant for

Arlington Market.

¶ 28 C. Trial Court’s Order

¶ 29 On November 6, 2014, the trial court entered an order finding in favor of and awarding

$257,764.70 to plaintiff. The trial court stated, “while it is undisputed that the contract [plaintiff]

sent to [defendant] was never signed by [defendant], the actions of the parties showed an

agreement was formed.” The trial court specifically noted plaintiff submitted payment requests

to defendant and was paid $2,041,846.50 in accordance with the draft contract dated July 5,

2007. The trial court further noted defendant did not provide any evidence that plaintiff’s

proposal was rejected or that plaintiff was instructed to cease performance at any time.

¶ 30 In addition, the trial court determined defendant was personally liable on the contract

implied in fact because “the overwhelming evidence shows that [defendant] did not disclose its

agency relationship with Arlington Market to [plaintiff].” The trial court reasoned no evidence

was presented to demonstrate defendant had informed plaintiff it was not the project owner or

that it had corrected plaintiff’s references to defendant as the owner. The trial court further found

Michael Elliott’s testimony, that riders listing Arlington Market as the “owner” were e-mailed to

plaintiff, was lacking in credibility because (1) Michael Elliott did not testify as to who sent the

e-mail, (2) defendant did not provide e-mails or other evidence to establish that plaintiff received

the riders, and (3) Cartwright testified he had never received the riders. This appeal followed.

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¶ 31 II. ANALYSIS

¶ 32 On appeal, defendant contends (1) there was no contract implied in fact between plaintiff

and defendant, (2) the draft contract dated July 5, 2007, required acceptance by signature, and (3)

defendant was acting on behalf of Arlington Market as its agent. We reiterate that there are no

transcripts of the trial within the record on appeal. It is defendant’s duty, as the appellant, to

present a sufficiently complete record of the trial court proceedings to support its claim of error.

Foutch v. O’Bryant,

(1984). In the absence of such a record, we will presume

the trial court’s judgment was in conformity with the law and with sufficient factual basis.

. Any doubts arising from the incompleteness of the record will be resolved against the

appellant.

(citing Block & Co. v. Storm Printing Co.,

(1976), and

Sandberg v. American Machining Co.,

(1975)). Accordingly, this court

will rely on the bystander’s report and documents submitted within the record on appeal but, in

the absence of a record of what occurred in the trial court, we will presume the trial court acted

in conformity with the law and with sufficient factual basis. See Foutch,

.

¶ 33 A. Standard of Review

¶ 34 Defendant argues the standard of review is de novo because the questions before this

court are “pure questions of law.” Plaintiff asserts this case should be reviewed under a manifest

weight of evidence standard because “the trial court’s findings of fact [should] be reviewed

deferentially.”

¶ 35 Generally, whether a contract implied in fact exists is a question of law, the determination

of which is reviewed de novo. Wood v. Wabash County,

(1999).

The existence of an implied contract, however, depends on the facts, circumstances, and

expressions by parties demonstrating an intent to be bound. People ex rel. Hartigan v. Knecht

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Services, Inc.,

(1991). When those facts are disputed, the existence of a

contract is a question for the trier of fact to decide. Quinlan v. Stouffe,

(2005). Moreover, whether the parties intended to enter into a contract is a question of fact left to

the trial court. Seymour v. Williams,

(1993). A reviewing court will not

reverse these findings unless it is against the manifest weight of the evidence. Quinlan,

.

¶ 36 Furthermore, “[w]here a trial judge has heard witnesses give oral testimony, his findings

will not be disturbed unless they are plainly erroneous and contrary to the manifest weight of the

evidence.” Johnson v. Fischer,

(1969) (citing Village of Glencoe v.

Jackson,

(1968)). “The trial judge who sees the witnesses and hears the

evidence is in a much superior position to find the truth than is a reviewing court,” and

accordingly, the trial judge may decide the weight to be given the testimony and the credibility

of the witnesses. Johnson,

.

¶ 37 A trial court’s determination is against the manifest weight of the evidence when an

opposite conclusion is apparent or when the judgment appears to be unreasonable, arbitrary, or

not based on evidence. Brody v. Finch University of Health Sciences/The Chicago Medical

School,

(1998) (citing Bazydlo v. Volant,

(1995)).

Moreover, where there is a factual basis for a judgment, it cannot be said that the judgment is

contrary to the manifest weight of the evidence. Cole v. Brundage,

(1976) (citing Fandrich v. Allstate Insurance Co.,

(1974)).

¶ 38 In this case, facts are in dispute that are essential to determining whether the parties

demonstrated an intent to be bound. Defendant maintains Michael Elliott’s testimony, that

defendant sent the riders listing Arlington Market as the “owner” to plaintiff, demonstrated

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defendant’s intent not to be bound to a contract with plaintiff. Cartwright, however, testified he

never received the riders. A contract implied in fact arises where a contractual duty is imposed

by the court due to a promissory expression that shows an intention to be bound. Matthews v.

Chicago Transit Authority,

, ¶ 93. Thus, contracts implied in fact arise from a

promissory expression that may be inferred from the facts and circumstances that demonstrate

the parties’ intent to be bound. Heavey v. Ehret,

(1988). Accordingly,

the existence of a contract implied in fact in the instant case is a question for the trier of fact to

decide. See Quinlan,

. This court will not overturn the trial court’s

judgment unless that judgment is against the manifest weight of the evidence.

We address the

merits of each issue in turn.

¶ 39 B. Contract Implied in Fact

¶ 40 Defendant asserts there was no contract implied in fact between plaintiff and defendant

because (1) defendant never accepted plaintiff’s offer, (2) no consideration was provided to

defendant, and (3) there was no meeting of the minds or mutual assent.

¶ 41 Even in the absence of an express contract, an implied contract can be created as a result

of the parties’ actions. Kohlenbrener v. North Suburban Clinic, Ltd.,

(2005). In Illinois, two types of implied contracts are recognized, those implied in fact and those

implied in law. Brody,

. Contracts implied in law are “equitable in nature,

predicated on the fundamental principle that no one should unjustly enrich himself at another’s

expense.” In re Estate of Milborn,

(1984) (citing Arthur Rubloff & Co.

v. Drovers National Bank,

(1980)). Contracts implied in fact, as

aforementioned, arise from a promissory expression that may be inferred from the facts and

circumstances that demonstrate the parties’ intent to be bound. Heavey v. Ehret,

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347, 354 (1988). Thus, “[t]he only difference between an express contract and an implied

contract in the proper sense is, that in the former the parties arrive at an agreement by words,

either verbal or written, while in the latter the agreement is arrived at by a consideration of their

acts and conduct.” (Internal quotation marks omitted.) Litow v. Aurora Beacon News,

(1965).

¶ 42 A contract implied in fact, which applies here, is a true contract. Matthews,

. The elements of a contract are an offer, acceptance, and consideration. Brody,

. Thus, a contract implied in fact contains all of the elements of a contract,

including a meeting of the minds.

¶ 43 Generally, for a contract to be valid, an acceptance must be objectively manifested; if it is

not, there is no meeting of the minds. Rosin v. First Bank of Oak Park,

(1984); Brody,

. Acceptance of a contract implied in fact, however, can be

proven by circumstances demonstrating that the parties intended to contract and by the general

course of dealing between the parties. Schivarelli v. Chicago Transit Authority,

(2005). Similarly, mutual intent to contract can be established by the ordinary course of

dealing and the common understanding of persons. People ex rel. Hartigan,

.

¶ 44 Based on our review of the record, we conclude the trial court’s finding that a contract

implied in fact existed between the parties was not against the manifest weight of the evidence

for the following reasons.

¶ 45 In the instant case, plaintiff was paid in excess of $18 million by defendant for its work

on other construction projects that was performed under similar circumstances, i.e., under

unsigned draft contracts. Plaintiff was also paid in full by defendant for its work on another

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building that was part of this particular project, also under an unsigned draft contract. For the

work at issue, plaintiff submitted a proposal to defendant and performed pursuant to the terms

and specifications in the draft contract dated July 5, 2007. To obtain payment for the work at

issue, plaintiff submitted payment requests to defendant which defendant “meticulously

review[ed]” before paying $2,041,846.50 to plaintiff in accordance with the draft contract.

Further, defendant approved 16 written contract change orders that allowed plaintiff to continue

to work on the project. In addition to these facts, defendant never corrected the subcontracts,

certificates of insurance, change orders, weekly construction progress reports, contract activity

reports, and documents for payment requests sent by plaintiff that identified defendant as the

project owner. Moreover, defendant did not reject plaintiff’s work or instruct plaintiff to cease

work at any time. In light of this evidence, we find the circumstances and behaviors of the parties

demonstrated a general course of dealing and a mutual intent to contract. Accordingly, we find

there is ample evidence to support the trial court’s ruling that a contract implied in fact existed

between the parties. See Schivarelli,

; People ex rel. Hartigan,

.

¶ 46 Defendant further argues plaintiff knew Arlington Market was the owner and had agreed

to pay for plaintiff’s work because plaintiff and Arlington Market had both signed the

construction escrow agreement.

¶ 47 Plaintiff asserts defendant “misrepresents the meaning of the escrow agreement that was

between the lender, the title company and Arlington Market.” Plaintiff claims its signature on the

construction escrow agreement “did nothing more than acknowledge [the construction escrow

agreement’s] existence and it contained no commitment from or to the plaintiff.”

¶ 48 When interpreting a contract, the primary goal is to give effect to the parties’ intentions at

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the time the contract was formed. Matthews v. Chicago Transit Authority,

, ¶ 77.

The best indication of the parties’ intent is ascertained from the plain language of the contract.

Gallagher v. Lenart,

(2006), aff’d,

(2007).

¶ 49 A careful reading of the construction escrow agreement reveals there is no express

language indicating Arlington Market promised to pay plaintiff, the general contractor, for its

work on the project. Rather, the plain language of the construction escrow agreement states the

agreement is “not intended by any of the undersigned to give any benefits, rights, privileges,

actions, or remedies to any person, partnership, firm or corporation other than Escrow Trustee,

Lender, and Owner/Borrower *** under any theory of law.” Further, considering that defendant

never corrected the payment requests, subcontracts, certificates of insurance, change orders, or

weekly construction progress reports that identified defendant as the project owner and that

plaintiff was paid seven progress payments based on the payment requests it addressed to

defendant, we are unpersuaded by defendant’s argument that plaintiff definitely knew Arlington

Market was responsible for paying plaintiff simply because it had signed the construction escrow

agreement.

¶ 50 Defendant also contends that, based on Michael Elliott’s testimony, the riders that listed

Arlington Market as the “owner” were e-mailed to Cartwright. Cartwright’s testimony, which the

trial court credited, however, indicates plaintiff never received the riders.

¶ 51 Here, the trial court found Michael Elliott’s testimony was lacking in credibility. As the

trial court noted (1) Michael Elliott did not testify as to who sent the e-mail, (2) defendant did

not submit any e-mails or provide corroborating evidence that the riders were sent or received by

plaintiff, and (3) Cartwright testified he never received the riders. Where the testimony is

conflicting in a bench trial, as here, the trial court’s findings will not be disturbed unless they are

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against the manifest weight of the evidence. Bazydlo,

. We thus find the trial

court’s finding as to the credibility of Michael Elliott’s testimony was neither unreasonable nor

arbitrary. See Brody,

(citing Bazydlo,

).

¶ 52 For all of these reasons, we conclude the trial court’s finding that a contract implied in

fact existed between the parties was not against the manifest weight of the evidence.

¶ 53 C. Signature Requirement

¶ 54 Defendant contends the draft contract dated July 5, 2007, “required acceptance by

signature.” Plaintiff responds defendant failed to raise this issue before the trial court.

Regardless, plaintiff further argues the draft contract did not require a signature to establish

defendant’s acceptance. Plaintiff also claims plaintiff’s performance pursuant to the requirements

of the draft contract, the progress payments made to plaintiff, and defendant’s “conduct and

silence” established that defendant had properly accepted plaintiff’s offer.

¶ 55 Generally, an unsuccessful party cannot raise a new theory of recovery for the first time

on appeal. Hudkins v. Egan,

(2006) (citing Pagano v. Occidental

Chemical Corp.,

(1994)). If the issue was not raised in the trial court,

the party has not properly preserved the issue, which “ ‘results in forfeiture of that issue on

appeal.’ ” Stuckey v. The Renaissance at Midway,

(quoting In re

E.F.,

).

¶ 56 Our review of the record indicates defendant did not raise this issue before the trial court.

Accordingly, we find this argument to be forfeited. See Stuckey,

.

Moreover, even if defendant had not forfeited the issue on appeal, its claim would fail. As we

have already concluded, the circumstances and behaviors of the parties demonstrated a general

course of dealing and a mutual intent to contract. See Schivarelli,

; see

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also Lynge v. Kunstmann,

(1981) (“a signature is not always essential to

the binding force of an agreement. *** The object of a signature is to show mutuality or assent,

but these facts may be shown in other ways, as, for example, by acts or conduct of the parties.”).

We thus conclude the trial court’s finding that a contract implied in fact existed between the

parties was not against the manifest weight of the evidence. See Brody,

(citing Bazydlo,

).

¶ 57 D. Agency

¶ 58 Defendant claims it should not be liable for the judgment entered by the trial court

because it had sufficiently disclosed to plaintiff that it was acting as Arlington Market’s agent.

According to defendant, three documents provided plaintiff with sufficient disclosure (1) Mark

Elliott’s letter dated July 16, 2007, which is signed with the Arlington Market signature block,

(2) the construction escrow agreement that identifies Arlington Market as the owner, and (3) the

riders that allegedly listed Arlington Market as the owner. Defendant further argues plaintiff

knew Arlington Market was the owner of the property when it accepted the seven progress

payments from Arlington Market.

¶ 59 Plaintiff responds the three documents did not provide plaintiff with sufficient disclosure

that defendant was acting as an agent and plaintiff’s acceptance of the seven progress payments

does not indicate plaintiff knew of the relationship. According to plaintiff, Mark Elliott’s letter

dated July 16, 2007, did not sufficiently disclose to plaintiff that defendant was acting as

Arlington Market’s agent because (1) the letterhead indicated the letter was from defendant, (2)

the letter referenced the only written contract under discussion, which identified defendant as a

contracting party, and (3) the letter did not propose changing the names of the contracting

parties. Further, while plaintiff acknowledges the construction escrow agreement identifies

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Arlington Market as the owner of the property, plaintiff argues the document was insufficient to

provide disclosure because (1) “it did not overcome the fact that almost every other document

said something different” and (2) even if plaintiff knew the property was owned by a third party,

it did not preclude plaintiff from reasonably believing it was working directly for defendant.

Plaintiff further contends it did not know the payments it accepted were made by Arlington

Market because the payments were sent directly by Chicago Title from funds deposited by

Parkway Bank. Plaintiff also maintains it never received the riders that allegedly identified

Arlington Market as the project owner.

¶ 60 Generally, an agent who contracts with a third party on behalf of an undisclosed or

partially disclosed principal is personally liable on the contract. Kimco Corp. v. Murdoch, Coll &

Lillibridge, Inc.,

(2000). It is well settled that “the duty is upon the

agent who wishes to avoid liability to disclose the name or identity of his principal clearly and in

such a manner as to bring actual notice to the other party.” Lankton-Ziegle-Terry & Associates,

Inc. v. Griffin,

(1987). A principal is undisclosed if the third party does

not know the agent is contracting on the principal’s behalf. Kimco Corp.,

.

“It is not sufficient that the third party has knowledge of facts and circumstances which would, if

reasonably followed by inquiry, disclose the identity of the principal.” Lankton-Ziegle-Terry &

Associates, Inc.,

(citing Mawer-Gulden-Annis, Inc. v. Brazilian &

Columbian Coffee,

(1964)). The reason for this rule is reliance, as the

third party is relying on the credit of the agent and not that of the principal when the agent is

contracting on behalf of an undisclosed or partially disclosed principal. Kimco Corp.,

. Agents are not unfairly burdened by such a rule because “they always have it in

their power to relieve themselves from such liability, and when they do not, it must be presumed

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that they intend to be liable.” (Internal quotation marks omitted.)

¶ 61 We reject defendant’s contention that Mark Elliott’s letter dated July 16, 2007, the

construction escrow agreement, and the riders sufficiently disclosed to plaintiff that defendant

was acting as Arlington Market’s agent, for the following reasons. First, as noted above, we

defer to the trial court’s finding that Michael Elliott’s testimony regarding the riders was lacking

in credibility. See Bazydlo,

(“The trial judge, as the trier of fact, is in a

position superior to a reviewing court to observe witnesses while testifying, to judge their

credibility, and to determine the weight their testimony should receive.”). Second, the letter

dated July 16, 2007, and the construction escrow agreement do not expressly indicate defendant

was acting as Arlington Market’s agent, to demonstrate plaintiff had “actual notice.” See

Lankton-Ziegle-Terry & Associates, Inc.,

(it is the agent’s duty to disclose

the name or identity of his principal clearly to bring “actual notice” to the contracting party). As

plaintiff argues, even if we assume plaintiff had learned Arlington Market was the owner of the

property from the two documents, it does not preclude plaintiff from reasonably believing it was

working directly for defendant. We thus find the two documents are insufficient to demonstrate

defendant had actual notice and do not satisfy the disclosure required for defendant to avoid

personal liability. See

(disclosure is insufficient where a contracting party has knowledge of

facts which would, if followed by reasonable inquiry, disclose the principal’s identity).

¶ 62 Further, we reject defendant’s argument that plaintiff knew Arlington Market was the

owner of the property because it accepted the seven progress payments from Arlington Market.

As plaintiff argues, Arlington Market did not send the payments directly to plaintiff. Chicago

Title wrote the checks or executed the wire transfers using funds provided by Parkway Bank. We

thus find plaintiff’s acceptance of the seven payments was insufficient to demonstrate plaintiff

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had actual notice. Accordingly, defendant has failed to demonstrate it had sufficiently disclosed

to plaintiff that it was acting as an agent of Arlington Market.

¶ 63 Rather, our review of the record reveals there is ample evidence demonstrating defendant

did not disclose its agency relationship to plaintiff. In the instant case, defendant never corrected

the subcontracts, certificates of insurance, change orders, weekly construction progress reports,

and documents for payment requests that identified defendant as the project owner. Further, the

certificates of insurance, which were required before plaintiff could commence work on the

project, listed defendant as an additional insured but did not list Arlington Market. Moreover,

based on Weisbruch’s testimony, which the trial court accepted, plaintiff submitted the

documents for payment requests to defendant and defendant “meticulously review[ed]” the

requests before plaintiff was paid. Also, based on Cartwright’s testimony, which the trial court

credits, defendant discussed the applications for payment with plaintiff. In addition to these facts,

16 change orders were approved by defendant and signed by Jon Elliott under “The Elliott

Group, Inc., Owner.” Weisbruch’s testimony also establishes plaintiff would not have been able

to complete the work without defendant’s approval of the change orders.

¶ 64 Given the ample evidence demonstrating defendant did not disclose its agency

relationship to plaintiff, we find the trial court reasonably concluded defendant is personally

liable on the contract implied in fact. See

(the trial court’s finding that defendant was

personally liable was reasonable where the defendant did not inform the plaintiff he was acting

for a third party). We cannot conclude that an opposite conclusion is apparent or that the trial

court’s findings were unreasonable, arbitrary, or not based on the evidence. Accordingly, we find

the trial court’s judgment was not against the manifest weight of the evidence. See Brody,

.

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¶ 65 III. CONCLUSION

¶ 66 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.

¶ 67 Affirmed.

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