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Getzoff v. Paris





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.


Mr. JUSTICE CAMPBELL delivered the opinion of the court:

This appeal stems from an order of the circuit court of Cook County dismissing the plaintiffs' amended complaint and the defendants' amended counterclaim and further ordering that the $46,794.92 paid by the defendants to the plaintiffs by order of court during the pendency of the suit, should be retained by plaintiffs. Both parties filed notices of appeal. Four main issues are raised on appeal: (1) whether the trial court's dismissal of the plaintiffs' action for an accounting was against the manifest weight of the evidence; (2) whether the trial court's dismissal of the defendants' amended counterclaim was against the manifest weight of the evidence; (3) whether the trial court's award to the plaintiffs was improper in light of its dismissal of the plaintiffs' amended complaint; and (4) whether the trial court erred in failing to issue a contempt citation against the defendants for disregarding various orders of the court.

For the reasons set forth below, we reverse and remand.

This controversy centers around the parties' nine-year business relationship. The plaintiffs in this case are Byron Getzoff, an attorney and licensed insurance broker, and two Illinois corporations solely owned and operated by Getzoff, Product Liability Insurance Agency, Inc. (hereinafter PLIA), and Ladder Products Insurance Agency, Inc. (hereinafter LPIA). The defendants are Paris, O'Day & Reed, Inc., an Illinois corporation, licensed as a general insurance agency (hereinafter Paris-O'Day), and Frank Paris, an insurance broker employed by that corporation, who also serves as one of its officers. The plaintiffs filed an action for an accounting against Paris-O'Day and Frank Paris, individually, for commissions received by defendants from July 1, 1965, until September 16, 1976. The plaintiffs alleged that an oral agreement existed between Getzoff and Paris whereby Getzoff would act as producing agent and Paris as general agent in a liability insurance program for members of the American Ladder Institute (hereinafter ALI). *fn1 In return for his services in this venture, Getzoff was to receive two-thirds of the commissions received by Paris-O'Day from the insurance carrier. The accounting was sought, the amended complaint alleged, because Getzoff suspected the defendants of withholding the agreed upon percentage of the total commissions. The plaintiffs further alleged that the equitable remedy of accounting was necessary because no remedy existed at law to substantiate the claim. In addition to the accounting, the plaintiffs sought an award of all monies due incident to the oral agreement between the parties, the commissions due for September 1976, and an order requiring the defendants to retain all documents relative to the matters raised by the plaintiffs' complaint and to deposit with the clerk of the court all gross commissions received from the insurance carrier, Crum & Forster Insurance Company (hereinafter Crum & Forster), pending the outcome of the accounting.

The defendants denied the plaintiffs' allegations and filed a multicount counterclaim seeking damages for the plaintiffs' tortious interference with Crum & Forster, the ALI program's insurer, and with the members of the insurance program. The defendants-counterplaintiffs also sought injunctive relief to enjoin the plaintiffs-counterdefendants from committing certain acts in the future which the defendants felt would be detrimental to their continuation of the ALI insurance program and in particular its business relationship with Crum & Forster and the ALI membership.

In order to understand the parties' contentions on appeal, it is necessary to review a series of motions filed by the parties. On September 24, 1976, shortly after filing the suit, the plaintiffs sought and obtained a temporary restraining order restricting Paris-O'Day from collecting premiums from any of the ladder manufacturers during the pendency of this suit. In October, the court directed Paris-O'Day to pay the October premiums to the insurance carrier from the monies collected from the ladder manufacturers and then to pay Getzoff his regular commission. On November 19, 1976, upon being advised by the plaintiffs that defendants had not paid any commissions to the plaintiffs for September and November and pursuant to motions by both parties for a preliminary injunction, the court ruled that all monies obtained from the ladder companies, exclusive of the net premiums, were to be deposited in a special account to be established by the parties. Disbursement from this account would be conditioned upon an order by the court. However, this order was modified by the court on November 29, 1976, when Paris-O'Day advised the court of the great hardship its office would suffer if the November 19, 1976, order was allowed to remain in effect. Under the modified order, Paris-O'Day would (1) pay to the plaintiffs $12,124 per month as their commission on the ladder account including the months of September and November; (2) retain from the total amount of commissions paid to them from Crum & Forster an amount necessary to pay for operating expenses; and (3) pay the balance of the commissions into the special account set up pursuant to the November 19, 1976, order of the court. This order remained in effect until the judgment order was entered on May 23, 1977. In addition to the aforementioned motions, the plaintiffs also filed three motions for sanctions against the defendants for violating the court's orders of September 24, 1976, November 19, 1976, November 29, 1976, December 9, 1976, December 13, 1976, and December 14, 1976.

On May 23, 1977, the court entered a final decree reflecting the court's oral order of April 20, 1977, concerning both the procedural and the substantive issues raised by the parties. The order stated that:

"This cause having come on for trial upon the amended complaint of plaintiffs, the amended verified answer of the defendants thereto, the amended counterclaim of defendants, defendant's motion for summary judgment, plaintiff's answer to the motion for summary judgment, plaintiff's motion for a finding of violation of a temporary restraining order, plaintiff's motion for a finding of violation of the order of court dated November 29, 1976, defendants' motion for an order awarding expenses and attorneys' fees for plaintiff's failure to attend and proceed with depositions, defendant's motion for a preliminary injunction, and plaintiff's motion for a preliminary injunction;

This Court having reviewed the pleadings heard the oral testimony of witnesses sworn and examined in open court, and having examined the documentary and written evidence taken and filed, and having heard argument of counsel for both plaintiffs and defendants, and being fully advised in the premises finds:

1. That this Court has jurisdiction over the parties hereto and the subject matter hereof;

2. That the material allegations of the amended complaint, including the alleged agreement between plaintiffs and defendants herein have not been proven. The amended complaint should be dismissed.

3. That all the material allegations of defendants' counterclaim herein have not been proven and the amended ...

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