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Mother Earth, Ltd. v. Strawberry Camel





APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS and the Hon. JOSEPH M. WOSIK, Judges, presiding.


Although the protagonists that have lent their names to this cause bear fanciful designations and are imaginary creatures that sprang forth from Illinois law, the issues presented in this court are of a somber character, being based on allegations of fraud, and although decisional authority in this State on the subject of fraud has at times a Wonderland aspect, resolution of these issues is a serious matter not only for the parties to this cause, but also for all those who would look to this court's decisions for their precedential impact.

At the heart of this consolidated appeal is an agreement under which a tavern-nightclub business was conveyed by Strawberry Camel, Ltd., to Mother Earth, Ltd., on January 15, 1974. In the form in which it appears before this court, however, this appeal does not concern an action in contract, but rather one action sounding in tort and another in equity. The former, filed by Mother Earth, is known by various names and is probably most properly labeled an action on the case for deceit, in which the remedy of money damages is sought. The latter, a countercomplaint filed by Strawberry Camel, seeks an equitable remedy due to Mother Earth's default on payments under the sale agreement, and is defended against by Mother Earth on the grounds that the underlying agreement was procured through misrepresentations.

Mother Earth's complaint and its defense to Strawberry Camel's countercomplaint involve a common element, which may advisedly be referred to as an allegation of fraud. In the circuit court of Cook County, law division Judge George A. Higgins entered a directed verdict for Strawberry Camel on Mother Earth's complaint and chancery division Judge Joseph M. Wosik entered summary judgment for Strawberry Camel on its countercomplaint.

Because we believe that Mother Earth's evidence in the circuit court regarding alleged fraudulent conduct was sufficient to go to the jury and because we regard the question of whether such fraudulent conduct occurred as crucial to Mother Earth's defense to Strawberry Camel's countercomplaint, both judgments are reversed and the causes are remanded.

On July 25, 1975, a two-count complaint was filed by Mother Earth and its principals, Rocco Dodaro and Clarence Herman. Eileen Dodaro and Donnalee Herman, wives of the corporation's principals, were also named as plaintiffs. In count I, plaintiffs sought rescission of the agreement under which Mother Earth acquired a nightclub business from Strawberry Camel, which had acted through its principal, Dale Yates. Also sought was an injunction to prevent Strawberry Camel, Yates, and the LaSalle National Bank from enforcing any of the security agreements executed in connection with the sale. In count II, plaintiffs prayed for $70,000 in damages due to alleged misrepresentations made by Yates which allegedly were instrumental in effecting the sale. Plaintiffs filed a jury demand.

Subsequently, plaintiffs dismissed count I of their complaint and defendants Strawberry Camel and Yates filed a countercomplaint for injunctive and other relief. The injunctive relief was sought against the First National Bank of Schiller Park to prevent it from enforcing a security agreement between it and Yates. The other relief sought was sale of the beneficial interests in two trusts assigned to Yates by the Herman and Dodaro couples as security for the sale transaction. The power of direction of these trusts was, by terms of the assignment vested jointly in Yates and the assigning couple. The subject matter of each trust was real estate owned jointly by each couple.

Mother Earth's complaint was tried before a jury in the law division, but at the close of plaintiffs' case a verdict was directed for defendants. In the course of plaintiffs' case, the following evidence was produced:

Beginning in March 1973, Strawberry Camel, an Illinois corporation owned by Yates, operated a nightclub on premises at 4242 Old River Road, Schiller Park, which were leased from Jean Karbowski. In late November 1973, Yates advertised the business for sale and Clarence Herman and Rocco Dodaro responded to the advertisement. Yates told them he would sell the business for $65,000. Sometime later the three met in a coffee shop to discuss the matter further.

Dodaro testified that, at that meeting, Yates informed them that they could expect to carry their earnings from the business away in pillowcases, and that he had made enough money from it to buy a ski lodge in Colorado. According to Dodaro, Yates demonstrated for them what gross income from a typical week had been while the business was operated by Strawberry Camel. He did this by writing figures representing each day's income on the back of waitresses' meal checks. These checks were entered into evidence and contained columns of figures coupled with names of days of the week plus calculations of the weekly and monthly rates of income that would result from such daily figures. The monthly total was more than $19,000, and Dodaro testified that Yates told them the business income for 1973 had been about $20,000 per month, with expenses averaging around $10,000.

Clarence Herman, who is blind, confirmed the story told by Dodaro with respect to the oral statements and circumstances. It was stipulated by the parties that some of the handwriting on the waitresses' checks was that of Yates.

Donald Yates, called by plaintiffs as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60), confirmed that there had been such a coffee shop meeting and that he had written some of the figures on the waitresses' checks in question. He denied that he had told Herman and Dodaro that the business had had an average monthly income of $20,000 under his ownership. When asked to estimate what his income had actually been during a typical week in 1973, Yates listed figures that would have resulted in an average monthly income of more than $16,000.

The income tax return for Strawberry Camel filed by Yates for 1973 was admitted into evidence. It listed income of $119,312.82. Yates testified that he operated the business from March onward during that year. Yates' testimony that monthly expenses for operating the business averaged $10,000 in 1973 was not contradicted and Dodaro's testimony indicated that business expenses during Mother Earth's subsequent operation of the nightclub were approximately $10,000.

Herman and Dodaro testified that they asked Yates to see records to confirm his version of the business' earnings, but that Yates told them his books were unavailable because they were being used for tax purposes. They stated that they believed Yates' statements and in reliance on them eventually contracted to buy the business for $59,000.

In order to facilitate the sale, Yates had his own attorney, John Summerfield, assist Herman and Dodaro in incorporating as Mother Earth, Ltd., and had Summerfield draw up not only a contract of sale, but also trust agreements and other documents by which the Herman and Dodaro couples placed their homes under trusts and assigned the beneficial interests in those trusts to Yates as security for performance of their obligations under the contract of sale to pay Yates $1,000 per month. One of the additional documents, captioned "SECURITY AGREEMENT — (Chattel Mortgage)," provided that Yates would have a security interest in or mortgage on the beneficial interests in the trusts with respect to the Hermans' and Dodaros' homes. It further provided, "In the event that the First National Bank of Schiller Park declines to renew Dale Yates' note, the obligation of debtor to the secured party shall be in the amount of $1,000.00 (One thousand dollars) per month until the obligation is retired." The indebtedness was listed as $56,485. In addition, it stated that a "[c]opy of note is attached hereto," and, "Payments on this and subsequent renewal notes which are to be made to the First National Bank of Schiller Park shall be made by the Debtors to Dale Yates and by Dale Yates in turn to the First National Bank of Schiller Park. Dale Yates assumes the responsibility of having the notes renewed from time to time as has been the practice since the origination of the obligation." A note appears in the record as an attachment to plaintiffs' complaint under which Yates promised to pay $56,485.16 to the First National Bank of Schiller Park within 180 days. No such note was appended to the countercomplaint, but a document supplied as part of a bill of particulars, which was styled as a "Closing Statement," contains a line entry for a "Note to be assumed" in the amount of $56,485.16. The other documents prepared by Summerfield were assignments by which the Herman and Dodaro couples assigned the beneficial interests in the trusts covering their homes to Yates simply "as a collateral assignment," and which provided that "the power of direction shall vest jointly in Dale Yates and" each assigning couple.

At Summerfield's suggestion, Herman and Dodaro looked for an attorney to represent them at the closing. They found John Crittenden, who accepted the documents for examination and accompanied them to the closing. At the closing, Summerfield called Crittenden into his office and the two attorneys held a discussion without their clients, then called their clients in for signing the documents.

Dodaro and Herman testified that they were unaware that the contract contained an express disclaimer of any warranties not stated within the contract, but that they understood that the security agreements would remain in Crittenden's hands until they were satisfied that the business had been delivered in the condition promised. When they called Crittenden to remind him not to give up these documents until they were satisfied with the business, however, Crittenden told them he had already given the documents to Summerfield. Dodaro stated that they never paid any money to Crittenden and have subsequently been unable to locate him and now doubt that he was actually an attorney.

The purchase agreement, which was signed January 15, 1974, provided in part for assignment of the lease to the premises, and in an attached bill of sale as well as in the agreement itself, for transfer of three cash registers, a beer cooler and compressor, ice machines, light fixtures, two blenders, tables, chairs and stools "as on premises" and "cooking equipment in rear of building as on premises."

On January 17, 1974, the lessor, Jean Karbowski, consented to assignment of the lease and Mother Earth subsequently took possession. Yates was paid to work with Dodaro and Herman, but the business was operating at a loss, and Dodaro and Herman offered to cancel the sale. Yates assured them that the lag in business was seasonal, but refused to cancel the deal. After five or six weeks there was no money available to pay Yates' salary, so he left.

Herman and Dodaro borrowed money to keep the business going, then tried to operate it through management contract, and eventually tried to sell it. However, Karbowski informed them that the cash register, beer cooler and compressor, ice machine, tables, chairs, stools, bars, bar equipment and the cooking equipment in the rear of the building were hers. At trial plaintiffs made an offer of proof that a buyer had been interested in the business at a price of $25,000 until he learned that Karbowski was claiming these items, and that he then reduced his offer to $5,000.

A letter from Jean Karbowski in which she claimed ownership of these items was admitted into evidence and her son, Richard, testified as to her ownership of them. A lease was admitted into evidence under which Jean Karbowski leased the subject premises to Addison Lumber & Construction Co., article 13 of which was captioned in type as a "Sale of Business," but recaptioned in handwriting with initials as a "Lease of Business," and listed as leased the items claimed by Karbowski as her own. Addison Lumber in turn assigned the lease to others, and it was eventually assigned to Strawberry Camel, and by Strawberry Camel to Mother Earth.

Yates testified that the items in question were his to convey and produced a release signed by Jean Karbowski which waived any liability under article 13 of the lease and acknowledged receipt from Yates of $4,000. Richard Karbowski maintained that the $4,000 represented payment of $5,000 for taking over the lease, less $1,000 for repair of an air conditioning unit.

The trial of the complaint was severed from that of the countercomplaint and proceedings with respect to the latter were stayed pending judgment on the complaint. At the close of plaintiffs' case on the complaint, ...

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