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Kepper v. Morris Catv

OPINION FILED APRIL 29, 1977.

WILLIAM KEPPER ET AL., D/B/A WILLIAM KEPPER ASSOCIATES, PLAINTIFFS-APPELLANTS,

v.

MORRIS CATV, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Grundy County; the Hon. ROBERT WREN, Judge, presiding. MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

William Kepper and Ken Anderson, d/b/a William Kepper Associates, appeal from a judgment of the Circuit Court of Grundy County granting defendant Morris CATV, Inc., motion for summary judgment in an action for brokerage commissions instituted by Kepper and Anderson. On appeal in this court, plaintiffs contend that the trial court erroneously entered summary judgment for defendant (1) because there was no genuine issue of material fact and plaintiffs were therefore entitled to summary judgment as a matter of law, or (2) in the alternative, for the reason that there exists a genuine issue of material fact sufficient to preclude entry of summary judgment for either party.

Plaintiffs Kepper and Anderson were engaged in the business of brokerage and sale of media systems, specifically cable television systems. Defendant Morris CATV, Inc. (hereinafter called "Morris"), operates a cable television system serving Morris, Illinois, and the surrounding area. On January 9, 1975, a brokerage contract was executed by Paul Splain, president and majority shareholder of Morris, on behalf of Morris CATV, with Ken Anderson acting on behalf William Kepper Associates. The agreement gave plaintiffs the exclusive right to procure a sale of the capital stock or assets of the defendant Morris, and specified a purchase price of $650,000 on terms described as "negotiable."

Prior to March 10, 1975, plaintiffs Kepper and Anderson learned that Richard Treibick was interested in purchasing the Morris stock or assets, and the brokers informed Morris of Treibick's interest. On March 10, 1975, plaintiff Anderson met with Richard Muench, a shareholder in Morris, who was Paul Splain's banker, and the two discussed the terms for the sale of Morris stock or assets to Treibick. On March 11, 1975, the agent for Morris, plaintiff Anderson, communicated by letter to Morris, in a letter marked "confidential" and which plaintiffs seek to characterize as an offer by Treibick for purchase of the Morris assets by Treibick or a subsidiary company to be formed by him. The letter set forth terms of $175,000 in cash at the time of closing, with the balance of $475,000 payable with interest over eight years secured by a first mortgage lien. The letter was not signed by Treibick. Broker Anderson had stated that he had communicated with Treibick prior to submitting the letter. On March 17, 1975, the letter was signed "Accepted: Morris CATV, Inc. by Paul G. Splain." An executed copy of that letter was returned to plaintiffs-brokers. The letter of March 11 was in the following form:

"Confidential March 11, 1975

Mr. Paul Splain Morris CATV, Inc. 111 East Jackson Morris, Illinois 60450

Dear Paul:

Following my meeting with Mr. Richard Muench and subsequent telephone conversations with Mr. Richard Treibick, we are submitting the following offer for Mr. Treibick, or a subsidiary company to be formed by him, to purchase the assets of Morris CATV, Inc., free and clear of all obligations as follows:

1. $175,000 cash at closing.

2. The balance of $475,000 payable in 8 years at 7%. This will be paid in equal installments on a 10 year schedule, with the remaining principal paid in year 8.

3. This balance will be secured by a first lien mortgage held by you.

4. Mr. Treibick will use his best efforts to promulgate a stock purchase. If he can not, he will pay you the same gross amount each period, as in (2) above, but allow you to allocate as interest, 5%.

5. Upon a satisfactory inspection, Mr. Treibick will place $5,000 earnest money, to be applied to the down payment at closing, with William Kepper Associates Escrow Account at the State National Bank, Evanston, Illinois, within 10 days of your acceptance of this offer.

6. The closing will be held within 60 days of receipt of this earnest money.

This offer is good through March 21, 1975, and is subject to the normal requirements of suitable inspection, contract preparation, legals and accounting. This letter ...


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