*1 note, Carolyn convey property balance due on must estate agreed. mother, Hicks, respondent Carolyn’s We note Adelaide who subject party had also held to the as a nominal property, apparently title Carolyn. and at the had request Robert and The trial court found she no interest in it its all quitclaim and included her in order to interest petitioner. joined Hicks in this but originally Carolyn appeal Adelaide now desires appeal. argument to dismiss her As no brief was filed and no behalf, any grounds appeal made on her Hicks have Adelaide court, had are thereby waived and not be will considered Supreme 341(e)(7) (Ill. accordance with Rev. ch. Court Rule Stat. 110A, par. 341(e)(7)). respects. order of the court is therefore affirmed all
Affirmed.
GUILD, WOODWARD, P. J., and J., concur. al., al., Plaintiffs-Appellants, BYRON M. GETZOFF et v. FRANK PARIS et Counterplaintiffs-Appellees Cross-Appellants. (BYRON Defendants and M. — al., GETZOFF et Cross-Appellees.) Counterdefendants and (1st Division)
First District No. 77-1093 Opinion Supplemental opinion filed filed on denial of 1979 . rehearing November *2 Rothbart, Chicago, appellants. I. of Herbert Cicero, Handler, Roger & Jr., Taylor, Frank L. F. all of Kirkland and Joel Ellis, Chicago, appellees. of Mr. of the court: opinion CAMPBELL delivered the JUSTICE County the circuit court of Cook appeal
This stems an order of defendants’ dismissing plaintiffs’ *46,794.92 by ordering paid that the amended counterclaim and further of pendency by plaintiffs order suit, filed notices by plaintiffs. Both should be retained whether the court’s appeal: (1) main raised on appeal. Four issues are accounting was for an plaintiffs’ dismissal of the action evidence; dismissal (2) the trial court’s weight of the whether manifest weight the manifest was against the defendants’ amended counterclaim evidence; (3) whether the trial court’s award to the improper in its light complaint; dismissalof the (4) failing contempt whether the trial court erred in citation issue a against the defendants for disregarding various orders of the court. below,
For the reasons set forth we reverse and remand. controversy This parties’ nine-year centers around the business Getzoff, relationship. Byron attorney The this case are an broker, licensed corporations solely and two Illinois owned and operated Getzoff, Liability Agency, Product Insurance Inc. (hereinafter PLIA), and Inc. Agency, Ladder Products Insurance (hereinafter LPIA). Paris, Reed, Inc., The O’Day defendants are an corporation, (hereinafter Illinois general agency licensed as a Paris, Paris-O’Day), and Frank employed by an insurance broker corporation, who also serves as one of its officers. The filed an action accounting Paris, for an against Paris-O’Day and Frank individually, 1,1965, for commissions received defendants from until September 1976. The plaintiffs alleged that an oral existed between Getzoff whereby and Paris Getzoff would act as producing agent and Paris general agent in a liability insurance program for members of the (hereinafter American Ladder Institute ALI).1 In venture, return for his services in this Getzoff was to receive two-thirds of the by Paris-O’Day commissions received from the insurance carrier. sought, the amended complaint *3 alleged, because suspected Getzoff the defendants of withholding the agreed upon percentage of the total plaintiffs commissions. The further alleged equitable the remedy of necessary because no remedy at existed law to substantiate the In claim. addition to the accounting, plaintiffs the sought an award of all monies due incident to oral parties, between the the commissions due for 1976, September and an requiring order the defendants to retain all documents by relative to the matters raised and to deposit with gross the clerk of the court all commissionsreceived from carrier, the insurance & (hereinafter Crum Insurance Company Forster Crum & Forster), pending the accounting. outcome
The defendants plaintiffs’ allegations denied the and filed a multicount seeking counterclaim damages for the plaintiffs’ tortious Forster, insurer, interference with Crum & the ALI program’s and the members of the defendants-counterplaintiffs The sought also injunctive enjoin plaintiffs-counterdefendants relief to from committing certain acts the future which the defendants felt 1 The comprised American Ladder Institute is a national trade association of ladder manufacturers located within the United States. would be detrimental to their continuation of the ALI insurance & particular relationship its business with Crum Forster and ALI membership. appeal,
In on it is parties’ order to understand the contentions necessary by parties. September On to review a series of motions filed 24, 1976, suit, sought and obtained a shortly filing plaintiffs after collecting temporary restraining restricting Paris-O’Day from order premiums pendency of the ladder manufacturers October, pay this suit. In the October Paris-O’Day the court directed premiums collected from the to the insurance carrier from the monies On regular ladder commission. pay manufacturers and then to 19, 1976, upon being by plaintiffs November advised defendants paid any September had for commissions to preliminary pursuant by November and to motions both for injunction, from the ladder the court ruled that all monies obtained in a companies, deposited to be premiums, exclusive of the net were from this special by parties. account to be established Disbursement However, this upon by account would be an order the court. conditioned 29, 1976, when Paris- the court on November order modified if the O’Day hardship its officewould suffer great advised the court 19, 1976, in effect. Under the November order was allowed to remain *12,124 order, per Paris-O’Day (1) pay to the modified would the months of including month as their commission on the ladder account November; (2) the total amount September and retain from necessary to an amount paid to them from Crum Forster (3) of the commissions pay operating expenses; pay the balance 19,1976, order special up pursuant account to the November into the set order was judgment in effect until the of the court. This order remained motions, 23,1977. In May entered on addition to the aforementioned the defendants also filed three motions for sanctions 19, 1976, 24, 1976, November violating the court’s orders of 1976, 13, 29, 1976, 9, 1976, December November December December reflecting the May
On the court entered a final decree 20, 1977; procedural and concerning both the April court’s order of oral that: order stated parties. issues raised the substantive upon for trial having “This cause come on verified answer of plaintiffs, the amended *4 defendants, defendant’s thereto, of the amended counterclaim the motion for plaintiff’sanswer to summary judgment, motion for a violation of finding for a of summary judgment, plaintiff’smotion order, finding a of motion for plaintiff’s temporary restraining 29, 1976, court dated November violation of the order of attorneys’ and awarding expenses for an order motion defendants’ depositions, with proceed attend and plaintiff’s failure to fees plaintiffs injunction, preliminary motion for a defendant’s injunction; preliminary for a motion oral heard the pleadings having reviewed This Court court, and open in and examined testimony witnesses sworn taken and written evidence documentary and having examined the both filed, counsel for having argument heard defendants, premises in the finds: fully advised being and the over the hereto jurisdiction
1. this Court has That hereof; subject matter complaint, the amended allegations
2. That material and defendants between including alleged agreement be complaint should proven. The amended herein have been dismissed. counterclaim allegations
3. That all the material defendants’ and the amended counterclaim proven have not been herein should be dismissed. ORDERED, AND ADJUDGED,
IT IS THEREFORE DECREED: be dismissed
1. herein That the amended dismissed; hereby and the same is 2. of defendants herein That the amended counterclaim dismissed; dismissed, hereby and the same 29, 1976, the Court dated November 3. Under the order of Getzoff’s; *46,794.92 is Mr. Byron M. defendants paid proceeding.” sides bear own costs of this Both shall their trial,2 existed parties agreed At the while the that an oral testimony concerning program, between them the ALI insurance and the amount of regarding conflict the nature of the compensation agreement. under the Getzoff testified to be received ALI, liability developed products he chief counsel for membership help rising ALI them combat program insurance program, Under that he received two-thirds costs. general agent received commissions received from the insurer while he compensation, This formula of one-third of commissions. explained, general agents utilized with who worked all three program from 1952-1967.He testified Lackawanna attorney by supervising he was retained as claims these compensated Casualty separately but that he was Company services. parties stipulated incorporate the evidence introduced that the trial record would hearing preliminary injunction.
at the on the *5 406 that, 1967,
Getzoff further testified in approached he Paris and agreement reached an him develop with to a comprehensive insurance program ALI in keep order to down the escalating member’s insurance costs. The comprehensive program was to differ from the ALI former insurance in program that incorporate would all of a particular liability member’s insurance under one insurer. Getzoff would act as producing agent program, for the insurance and Paris would act as general agent. participation Getzoff was to ALI secure the of the membership and Paris would secure an insurer. Getzoff testified that he formed the same with Paris that he had two-thirds/one-third with general agents formed in program the earlier and into introduced evidence a number of checks from Paris-O’Day reflecting his share of the commissions. Getzoff testified that under he was not required to legal conduct work for the insurer and that he received commissions on though only all of the insurance lines even he handled product liability defense work for the insurer. further Getzoff testified only that perform legal he offered to work for the insurer as a marketing encourage device to the ladder join manufacturers to the program. He explained notation, also that his checks were marked with the “for services,” professional prevent realizing to the insurer from Getzoff’s dual program role in the him might jeopardize as Paris had informed that this very Getzoff testified that he took a in active role program insurance program began and that when the in his LPIA, company, billed and premiums collected the from the ladder manufacturers, commissions, distributed the and dealt with the members continued, day day on a to basis. This explained, July he until when legal his began work to consume so much of his that he Paris time asked to take over the billing function. that relationship good testified his with Paris had been and until, program
that the insurance in operated smoothly began he suspect replaced that Paris had Kemper Company, Insurance insurer, original Company with Crum & Forster in Insurance order to higher Paris-O’Day. receive commissions for himself and this To confirm suspicion he asked Paris for an in request audit When this refused, membership he solicited ALI broker of record letters from the so go that directly he could to Crum Forster and obtain a clarification of they Crum & paying were on the account. When Forster directly agent refused to deal with Getzoff because he not an theirs, although designated by he was 26 ladder of the manufacturers record, present broker of Getzoff filed the suit. Berger, past
Lewis a ALI president president and of the Company, Louisville Ladder that plaintiffs. testified for the He stated he joined the ALI program expertise because he knew of Getzoff’s also expertise in his He handling ladder claims and wanted claims. communication company testified with his that he never had Paris or fact, that, met concerning the insurance he had never and joined Paris his company before. He testified that he met Getzoff when the association in 1967 and that at that time Getzoffwas chairman joining the insurance well for ALI. After program as as chief counsel LPIA, the insurance he Getzoff’s program he testified that was billed company, company. his He paid premiums through to Getzoff also applied join testified that he he to Getzoff when wanted program, him, policy regarding received his consulted him any questions coverage. he had concerning Paris,
Paris employed by testified that he is an insurance broker Reed, O’Day agent Incorporated, licensed insurance *6 Getzoff, Byron ALI, 1967 him approached chief counsel for the about a developing comprehensive membership. program insurance for ALI the After studying feasibility program, developed of such a he program arranged Kemper program. for to insure the Paris further testified that development program, of the he and Getzoff agreement reached an by whereby help get he would Getzoff retained Kemper products liability conduct the for ALI defense work membership and would supplement legal Getzoff’s with percentage fees a premiums manufacturers, received from the ladder and Getzoff charge Kemper would legal less than his regular fees for services. The supplemental Getzoff, fee to explained, contingent upon Paris Getzoff’s performance legal Kemper. services to Paris that testified & when Crum Forster took over for the ALI program as insurer similarly Getzoff was retained as defense counsel and that his with Getzoff remained the paid same. Paris that he Getzoff the testified agreed-upon percentages of premiums until terminated their agreement in September relationship termination their came about, explained, Paris disgruntled because Getzoff became with the program when he received a lower on percentage of the commissions three new accounts. Willing, Maintenance, past general manager
Richard of Novi Incorporated, testified for the defendants that when his firm desired business, insurance to cover their repair Byron ladder he was referred Getzoff; however, upon contacting him by he was informed Getzoff that he was an attorney, not if agent, an insurance and that he needed such coverage it be could obtained through Paris-O’Day. Kemper’s Ralph Hubbard also testified for the defendants. He that as a field stated supervisor Kemper he worked with in placing Paris Kemper. He testified he dealings that had no with Getzoff Paris, Getzoff, and that not producing agent program. was the for the 408 that,
Initially, although we should note amended 1965, 1, sought accounting period covering an through 16,1976, arguments at oral plaintiffs admitted until 1973 when Crum there no violation of the oral Therefore, Forster took as the over insurer only would cover which would be available to the period. the 1973-1976 propriety
In of the trial appeal we are asked to review the dismissing court’s order in the awarding
counterclaim and
four months commission
*46,794.72.
will
recognized
judgment
amount of
It is
that a
well
finding
against
weight
disturbed on
absent a
the manifest
review
(Crawford Anagnostopoulos
v.
(1979),
App.
69 Ill.
3d
the evidence.
Spankroy Alesky
432,
v.
954,
1064;
(1977), 45 Ill.
3d
359
App.
387 N.E.2d
557, 312
42.)
Geist v. Lehmann
1078;
(1974),
App.
N.E.2d
19 Ill.
3d
N.E.2d
must
been
particularly
findings
“This is
true in
cases where the
have
close
by the
large
credibility received
impressions
dictated to a
extent
(Hunter
v. DeMay
(1970),
trial court
witnesses.”
from the observation of
429, 435, 259
291.)
is sufficient and not
App.
judgment
124 Ill.
2d
N.E.2d
A
long
supported
it is
weight
evidence as
manifest
City Chicago (1970),
v.
(National
Bank
Boulevard
123 Ill.
evidence.
v.
Hanaman Davis
166,
862;
(1959),
App.
20 Ill.
2d
App.
N.E.2d
2d
111,
Moreover,
will not be
344.)
judgment
supported
155 N.E.2d
so
for the
the trial
fails to state the basis
disturbed on review because
(Ill.
Stat.
findings
or
of law
Rev.
decision or to make
of fact
conclusions
Travelers
Exchange
v.
Inter-Insurance
110,
par. 366(b)(3)(1);
ch.
Indemnity
Co.
518), or states an
(1965), 57 Ill.
2d
206 N.E.2d
App.
v.
decision. Keck Keck
(1974), 56 Ill. 2d
erroneous basis
*7
42;
v.
217;
Geist Lehmann
N.E.2d
(1974),
Ill.
3d
312
App.
N.E.2d
19
City Naperville
402,
“It that for this claiming setting up seems both are credit However, to the it also seems clear me that setup as it was was was the work the defendant. There in Mr. some action there Getzoff. is at denying proposed
But there no the fact that whatever was mind, proposed all was with Mr. Getzoff in that times he should institute, represent company, any the ladder the ladder and of the that in In people package. were involved this insurance order that assured, they they would be were in program, those who that properly represented would any brought be if lawsuits were against any they it companies represented, that at all requirement seemed times that companies these insurance Mr. expertise wanted Getzoff because of his experience represent these lines to them.
Frankly, question compensation brought up, only thing we have on there is which Mr. says that it which Mr. says circumstances, that Paris it was. Under the Court cannot do than other to find issues plaintiff and in favor of the defendant.”
The trial court’s concerning plaintiffs’complaint clearly statement indicates that the court that generally responsible believed Paris was for the development however, of the insurance program, the statement unclear as to whether agreement. the court believed Paris’ version of Accordingly, it is impossible to discern from record whether the court (1) dismissed the it because found was a valid oral there contract between the under to the terms testified one of parties, breached; but that had (2) not been whether valid oral contract parties; (3) existed between the or plaintiffs whether the otherwise to failed meet proof. their burden of
If agreement a valid parties, existed between the under defendants’ agreement view the which terminated stipulated by parties, showing absent a defendants commissions, past owed the the award to the would If, hand, improper. be on the other under the terms existed Getzoff, alleged by on then Paris be to Getzoff commissions liable existing payment accounts and the trial court’s only if through Finally, 1976would no appear improper. valid oral or if existed otherwise failed meet their burden proof, no proper. Accordingly, then award would be as the record *8 410 plaintiffsand in support explain
does not nor the trial court’s award to the light interrelatedness of the amended amended counterclaim, be parties that that should we find fairness dictates trial afforded new on both the amended and the counterclaim. argument
We turn to that the trial court erred plaintiffs’ now the failing violating to for contempt issue citations 29, 24, 1976, September temporary restraining order and the November 1976, injunction. that the preliminary Our review of the record reveals filed, these plaintiffs’ being trial court never ruled on motions. After to be motions from time to time and were considered were continued in the At along procedural matters trial on merits. several other time, however, to An raised in the trial court failed rule on them. issue upon by a motion which is ruled never 80, Ill. N.E.2d Sprague (1941), v. 376 32 appeal. reviewed on Goodrich 1030, 897; (1973), App. 12 Ill. 3d Vignola Trisko v. Furniture Co. N.E.2d 421. Cook judgment of the circuit court of
For the aforesaid reasons for a trial. County reversed and the case remanded new Judgment reversed and remanded.
GOLDBERG, McGLOON, J., J., P. concur. ON DENIAL OF REHEARING SUPPLEMENTAL OPINION opinion Mr. court: CAMPBELL delivered JUSTICE Getzoff, Insurance Byron M. Ladder Products Plaintiffs-appellants, defendants, Inc., Liability Company Insurance Agency, and Product Reed, Inc., Paris, respective petitions O’Day Frank have filed Paris and petition separately. We shall consider each rehearing. for modify opinion urges this court to our Plaintiffs-appellants’petition from barring plaintiffs not be construed so that on remand will 16, September after seeking accounting produced an In our 1976, prior to that date. on efforts plaintiffs’ accounts secured that, contrary allegations original opinion, despite we observed an not seek complaint, could 1, 1965, 1, July 1973.We July through accounting period from trial that there at the plaintiffs admitted reached that conclusion because 1, prior July between was no violation of the oral position Company assumed when Crum Forster Insurance however, concluded, We ALI insurance of insurer 1,1973, through sought could be an received amount of commissions the total to determine *9 the upon silent opinion ALI was account. from the defendants to period subsequent accounting for the availability of an note that on remand misunderstanding, we now any 1976. To eliminate warrants, determining barred, if is not the evidence the trial court July to subsequent necessary period for that time accounting that an 1973-1976 the accounting that the was limited to Our conclusion complaint plaintiffs’ in amended language on the period premised on the fact 1965 to date” and accounting “from sought which an over the distribution jurisdiction that the trial court obtained suit was when the parties’ under the oral commissions due pertinent part: in sought complaint amended plaintiffs’ filed. The <<« oo Clerk of (i) deposit That ordered to with the defendants be in from insurance carriers gross the Court all commissions received pending accounting the future hereof.” variety of orders During litigation the course of the the trial court issued regarding premiums the collection of and the disbursement 19, 1976, including sequestering November commissions order of payments brought proper the issue of the of commissions. These orders directly under distribution of the commissions due under the gross Had commissions jurisdiction the control and of the trial court. order, accounting deposited to that then an pursuant been with the court been ALI account would have of the commissions received on the in the unnecessary as the court would have distributed proportions interpretation it from its required which determined to be and the parties’ agreement. oral From our examination of the record however, 29,1976, parties order of it is that the apparent, November premiums collected on custody not the court had and control of the net fact, ALI light account. In the of this we believe that an may sought period subsequent to the trial court’s exercise jurisdiction parties. over the upon they which
Defendants-appellees set contentions forth several first The defendants’ petition rehearing appeal. base their for a of this to retain the erroneously allows the opinion contention is that our Next, *46,794.92 assert granted them the trial court. defendants award matter, present that this should not ordered a new trial have clarify or rather, judge original but directed the should have the award to judgment particularly and most reconsider that this court Finally, contend light ruling. of this court’s has findings by overlooked certain the trial court which demonstrate the dismissal of the justified and that the plaintiffs should have made restitution to the defendants of amount of the award.
It purport opinion was the of our positions to restore the to the which they prior judgment by held to the the trial court. We took this position impossible because we found it to rationalize the trial court’s *46,794.92 dismissal of with its award to decision, plaintiffs. that, initially allege While the defendants under our award, are allowed to retain the trial court’s it is clear from that, petition their that defendants clearly by reversing understand circuit, trial, judgment of remanding court and this case for a new we 23, 1977, May including have reversed the circuit court’s order of *46,794.92 agree award. We do with the defendants that was necessary for this plaintiffs. opinion court to order restitution Our award, rather, made no effort to deal with but open left the matter jurisdiction the trial court to assume any over and all further action matter. Consequently, trial court may modify any or alter inter order, erroneous, locutory if enter or judgment order *10 consistent with the final evidence be warranted its cause, including determination of this order. Towns v. restitution (1978), Yellow Cab Co. 73 Ill. 2d N.E.2d turn suggestion We next to the defendants’ that this court should have disposed County of this remanding case to the circuit court of Cook reassign instructions for that court to original the case to the circuit judge who accept tried the case. We decline to the defendant’s and, therefore, suggestion unnecessary find it to comment on the final contentions petition. raised their The petition rehearing accordingly denied.
GOLDBERG, McGLOON, J., P. J., and concur.