requested that liquidated damages be awarded in his pleading, and respondent specifically denied that petitioner should receive any liquidated damages. Given that it was petitioner who initiated the claim and sought enforcement of the liquidated damages provision, and given respondent’s categorical denial that petitioner was entitled to any liquidated damages, we conclude that respondent sufficiently alerted petitioner in her answer that she would contest the enforceability of the liquidated damages provision. Therefore, we do not believe that petitioner was surprised by respondent’s defense, and we conclude that respondent did not waive the issue of the enforceability of the liquidated damages provision. See M.I.G. Investments, Inc. v. Marsala, 92 Ill. App. 3d 400, 405-06 (1981) (<HOLDING>). We further note that the waiver rule is a
holding that courts should address a procedural unconscionability defense to the enforcement of an arbitration provision holding that defendants testimony that he did not see a provision in the agreement because the plaintiffcounterparty failed to direct him to the provision was insufficient as a matter of law to establish fraud and defendant was therefore bound to the terms of the provision holding that plaintiff could not have been surprised that trial court would scrutinize liquidated damages provision prior to enforcement even though the issue of the enforceability of the provision was not raised as an affirmative defense holding that an issue not raised in the trial court cannot be raised for the first time on appeal holding case ripe for review even though provision at issue would not take effect until three and a half years after the courts decision during which time congress could have repealed the provision