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Career Opportunities v. Grant

OPINION FILED DECEMBER 15, 1980.

CAREER OPPORTUNITIES INCORPORATED, PLAINTIFF AND COUNTERDEFENDANT,

v.

GRANT, WRIGHT & BAKER, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT. — (GT CHEMICAL PRODUCTS, INC., DEFENDANT AND COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 19, 1981.

This is an appeal from the judgment of the circuit court of Cook County in favor of the counterdefendant, GT Chemical Products, Incorporated (hereinafter called "GT"), with regard to the claim that GT has become delinquent in its account for advertising services and disbursements rendered in its behalf by counterplaintiff, Grant, Wright and Baker.

Plaintiff, Career Opportunities Incorporated's original complaint requested an injunction be issued and damages be awarded against both defendants, GT and Grant, Wright and Baker, alleging a conspiracy in appropriation of trade secrets.

GT is a principal competitor of Career Opportunities Incorporated (hereinafter called "Career Opportunities"), in the sale of vinyl repair kits. Grant, Wright and Baker, in an amended counterclaim, demanded approximately $73,000 from GT which had allegedly become delinquent in its account for ad services and disbursements. The original complaint was subsequently dismissed and the remaining counterclaim against GT was tried. Judgment against the counterplaintiff, Grant, Wright and Baker, was entered, from which this appeal is taken.

The issues presented for review are: (1) whether the judgment against Grant, Wright and Baker was contrary to the manifest weight of the evidence; and (2) whether the trial court erred in denying Grant, Wright and Baker's request to include certain exhibits in the record on appeal.

Prior to mid-November of 1977, Grant, Wright and Baker lost the $500,000 per year advertising account of their client, Career Opportunities. Mr. Fred Broitman, an employee of Grant, Wright and Baker, then attempted and finally obtained a partial replacement account, GT, which was in the same business as Career Opportunities.

On November 16 and 17, 1977, certain meetings took place between Gilbert Sellman of GT and Fred Broitman. At that time Mr. Sellman made a commitment on behalf of GT of $150,000 for an ad campaign for 1978, while implementation of the developing ad campaign remained subject to the prior approval of GT. This budget was to include an ad campaign as well as an analysis of the efficiency of GT's previous advertising.

Mr. Sellman testified that when the meeting of November 17 was concluded Mr. Broitman was furnished with copies of previously published GT ads, veloxes, negatives and other production materials indispensable to the publication of an advertisement. According to Mr. Sellman, Mr. Broitman left the meeting with these production materials.

In late November of 1977, GT received a publication schedule from Grant, Wright and Baker. This schedule set up an ad program, which was in excess of $150,000. Mr. Sellman testified that just after receiving this schedule he had a telephone conversation with Mr. Broitman, wherein he told Mr. Broitman not to place advertising as listed in the publication schedule. Mr. Sellman also testified that as of December 5, 1977, no authorization had been given to Mr. Broitman to place any classified advertising or any advertising whatsoever, other than the takeover orders relating to placements of ads made prior to retaining Grant, Wright and Baker. Furthermore, Mr. Sellman testified that Mr. Broitman's ad analysis had not been received by that date.

Grant, Wright and Baker argues that Mr. Sellman misstated the truth when he testified that no production materials or copy were ever transmitted by GT to any publishers. At trial, Grant, Wright and Baker introduced a group exhibit which included numerous insertion orders from itself to various publishers, instructing the publishers that production materials, or copy, would be transmitted to them by GT. Grant, Wright and Baker also introduced as evidence a letter from Mr. Broitman to Mr. Kopit, of GT, which stated that copy will come from Mr. Kopit's office to the publishers. This letter is dated six days after the meeting from which Mr. Sellman claimed Mr. Broitman left with the GT production materials. In addition, Grant, Wright and Baker introduced into evidence numerous letters allegedly sent by Mr. Broitman to Mr. Sellman or Mr. Kopit referring to various ads Mr. Broitman intended to run in various national magazines, and explaining the print types and sizes of the ads. Many of these letters coincided with the insertion orders in the group exhibit. A few of these letters state that production materials would come from the GT office.

Grant, Wright and Baker concludes that because a number of the above-mentioned ads in fact ran in the various national magazines, then GT must have sent the copy to the publishers and, therefore, authorized such ads. However, in contradiction to the facts argued by Grant, Wright and Baker, GT's witnesses testified that: (1) Mr. Broitman took the GT production materials with him; (2) the insertion orders and the letters in evidence mistakenly indicated the copy would be forwarded by GT; and (3) no production materials were sent to any publishers by GT.

In addition, Grant, Wright and Baker argues that its books and records showed that GT owed it approximately $73,000, and that GT negotiated partial payments from time to time. However, GT contends these part payments were ...


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