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Powell v. R.j. Anderson

APRIL 17, 1970.

MARCUS BURCH POWELL, PLAINTIFF-APPELLEE,

v.

R.J. ANDERSON, INC., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 20, 1970.

R.J. Anderson, Inc., defendant, appeals from a judgment of the Circuit Court of Cook County entered against it on a motion for summary judgment by plaintiff, Marcus Burch Powell. Defendant, a real-estate brokerage corporation, was ordered to pay Powell $3,341.02, representing 50 percent of an installment real-estate commission paid the corporation, and further to pay Powell 50 percent of future installments of the commission as the same are paid defendant.

Plaintiff Powell, a real-estate salesman who had been employed as such by R.J. Anderson, Inc., filed a complaint before the Professional Standards Committee of the Northwest Suburban Board of Realtors, Inc., in a dispute between him and defendant concerning a real-estate commission, and asked the arbitration committee of the Board to settle the dispute and to direct defendant to pay 50 percent of the commission to him.

Defendant filed an answer to the request for arbitration saying, (1) that plaintiff was not the procuring cause of the sale; (2) that plaintiff was never advised he would receive the commission claimed; and (3) that a previous commission paid plaintiff of $5,200, representing 50 percent of the first installment of the commission, was paid him because he was in "difficult financial straits."

The Committee heard the evidence and witnesses produced and reached a decision, finding that plaintiff was entitled to 50 percent of the commission. Defendant appealed the decision to the Board of Directors of the Northwest Suburban Board of Realtors, Inc., contending (1) the Committee misapprehended the acts required to constitute a person as the procuring cause, (2) the decision was against the manifest weight of the evidence, and (3) the Committee did not have authority to hear the dispute because it was a dispute between an employee and an employer. The Board of Directors denied the appeal.

Defendant-corporation refused to comply with the order of the arbitration committee. Thereupon the Board imposed the sanction under its bylaws of dropping defendant's membership in the Board of Realtors.

Powell thereafter filed a complaint in court, consisting of two counts. Count I sought a judgment based upon the proceedings held by the Professional Standards Committee of the Northwest Suburban Board of Realtors, Inc. Count II prayed for judgment on the ground that plaintiff was, in fact, the procuring cause of the sale and entitled to commission. Defendant filed an answer. As to Count I, defendant denied it submitted to the arbitration proceeding and stated that "said arbitration was specifically conditioned upon the agreement that any decision by the Board was not binding on the parties." As to Count II, defendant denied plaintiff was the procuring cause of the sale.

Plaintiff filed a motion for summary judgment and defendant a motion to deny the motion for summary judgment. These motions were supported by affidavits of Kenneth M. Gunsteens, acting chairman of the Committee, as to certain provisions of the bylaws of the Board of Realtors and as to statements made by the respective parties concerning submission to arbitration. Defendant's motion also was supported by the affidavit of Robert J. Anderson, president of defendant-corporation and co-defendant. Defendants also had filed a demand for jury trial in the case.

The court found that the parties had agreed to arbitrate their dispute; that the Committee had heard testimony and rendered its decision; that no application had been made to any court to vacate or modify the award, and more than ninety days had elapsed since a copy of the decision was delivered to defendant-corporation; that defendant's pleadings did not raise the issue that the award of the arbitrator exceeded his power; and that the parties voluntarily submitted their dispute to the arbitrator. Motion for summary judgment was allowed and an order was entered confirming the award, directing defendant-corporation to pay $3,341.02 to plaintiff and one-half of all commission payments and interest received by defendant-corporation subsequent to the order. Motion to vacate the summary judgment order was denied. This appeal follows.

Defendant now raises on appeal the question of the jurisdiction of the realtor committee to hear or determine the matter, the finding that plaintiff was the procuring cause of the sale, and contends that there is a genuine issue of a material fact which precludes summary judgment.

Under section 57 of the Illinois Civil Practice Act (Ill Rev Stats 1967, c 110, par 57), a motion for summary judgment for plaintiff should be allowed and a judgment or decree as sought should be rendered if the pleadings, depositions and admissions on file, together with affidavits filed, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. This statute has been held to require that the right to summary judgment must be clear beyond question. Di Battista v. Centennial Ins. Co., 52 Ill. App.2d 84, 201 N.E.2d 466 (4th Dist 1964); Solone v. Reck, 32 Ill. App.2d 308, 177 N.E.2d 879 (1st Dist 1961).

The purpose of the summary judgment procedure is not to try an issue of fact but to determine whether an issue of fact exists. James B. Clow & Sons, Inc. v. Chesterfield Sewer & Water, Inc., 39 Ill. App.2d 279, 188 N.E.2d 882 (2d Dist 1963); Blonar v. Inland Steel Co., 57 Ill. App.2d 99, 207 N.E.2d 124 (1st Dist 1965).

As we view the record in this case, the entire position of defendant revolves around the question of whether the parties agreed to be bound by arbitration. Thus, if there is a genuine issue of a material fact present in this case, it must be ...


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