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Willis v. Ohio Casualty Co.

OPINION FILED NOVEMBER 13, 1981.

CHARLES WILLIS, D/B/A LAZARUS WILLIS AND ASSOCIATES, PLAINTIFF-APPELLANT,

v.

OHIO CASUALTY COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action was commenced by plaintiff against defendants Barry Kreisler (Kreisler) and Ohio Casualty Company (Ohio Casualty) to recover damages for breach of contract. The circuit court granted Kreisler's motion to dismiss counts III and IV of plaintiff's complaint, thereby removing Kreisler from the action. The court also denied plaintiff's subsequent motion for leave to file an additional count in quantum meruit against Kreisler. In this appeal, plaintiff contends that the trial court abused its discretion in; (1) dismissing counts III and IV of plaintiff's complaint, and (2) denying plaintiff leave to file an additional count based on quantum meruit.

Plaintiff's four-count complaint was filed on May 26, 1978. Counts I and II named Ohio Casualty solely as defendant. Count III alleged breach of contract against Kreisler; and count IV alleged conspiracy against Ohio Casualty and Kreisler. By stipulation, all counts against Ohio Casualty were voluntarily dismissed by the plaintiff and are not presented for consideration in this appeal.

Counts III and IV of plaintiff's complaint contain the following allegations:

Count III: In January 1977, plaintiff, a public fire claims adjuster, was employed by Kreisler to adjust a fire loss claim. The fire occurred at Kreisler's property on January 15, 1977. This employment agreement was memorialized in a writing and signed by defendant and plaintiff. Pursuant to this agreement, plaintiff agreed to assist in the adjustment of Kreisler's claim for losses occasioned by the damage by fire to Kreisler's property. For plaintiff's services Kreisler agreed to assign to plaintiff an amount of 10 percent of the adjusted or settled fire loss claim recovered. Plaintiff performed all conditions precedent to the contract. At some time after June 1977, Kreisler received approximately $105,000 in settlement of his claim for loss from Ohio Casualty. Kreisler thereafter breached his contractual duty to the plaintiff by refusing to pay the 10 percent adjuster's fee. As a result of this breach, plaintiff was damaged in the amount of about $10,500.

Count IV: Plaintiff alleges that Kreisler and Ohio Casualty conspired to deprive him of fees due under the employment contract by agreeing to omit plaintiff's name from the settlement draft; that the custom in the insurance industry was to place the public adjuster's name on the draft in order to insure that he would be paid for his services; and that such omission was an overt act designed by defendants to deprive him of payment under the contract. Plaintiff seeks punitive damages in the amount of $105,000, the total amount of the settlement draft.

It is undisputed that on August 14, 1978, the subject complaint was served upon Kreisler at his business address. The following day, August 15, Kreisler sent a letter by registered mail to plaintiff expressing his election to avoid their agreement pursuant to the Illinois act relating to certain agreements in connection with fire claims. Ill. Rev. Stat. 1977, ch. 29, par. 81.

On December 11, 1979, the trial court granted Kreisler's motion to dismiss counts III and IV. Thereafter, on January 2, 1980, plaintiff filed a motion for leave to file an amended count III alleging unjust enrichment against Kreisler. Then, on January 9, 1980, upon plaintiff's motion, the trial court ordered that the previously styled "amended Count III" was to be "denoted and referred to as Count V." Then, on March 25, 1980, plaintiff filed a motion for leave to file an "amended Count V" seeking a quantum meruit recovery against Kreisler.

Amended count V sets forth the following pertinent allegations: That subsequent to January 15, 1977, plaintiff performed service of adjusting the losses due to fire at Kreisler's property; that these services were rendered pursuant to the request of Kreisler made on January 15, 1977; and that these services consisted of the evaluation and determination of the scope and extent of the fire damages sustained by Kreisler and negotiating and presenting Kreisler's claim to Ohio Casualty. Plaintiff claims that the reasonable value of his services is $10,500, which Kreisler has refused to pay.

On August 21, 1980, the trial court denied plaintiff's motion to file his amended count V. On September 2, 1980, and September 19, 1980, the court denied plaintiff's respective motions to vacate the order of August 21, 1980. The record of the proceedings of September 19 indicates that the trial court denied leave to file the amended pleading as an exercise of discretion because the effect of the quantum meruit count was to circumvent the intent of the legislature set forth under the fire claims act. Ill. Rev. Stat. 1977, ch. 29, par. 81.

OPINION

Plaintiff challenges the trial court's dismissal of counts III and IV of his complaint against Kreisler. Defendant contends initially that plaintiff waived any right to seek review of the dismissal order when he elected to file various amended complaints based upon different theories of law, instead of appealing the dismissal order. (Erickson v. Walsh (1973), 11 Ill. App.3d 99, 296 N.E.2d 36.) Defendant concludes, therefore, that the dismissal order should not be considered as part of the record on appeal. We disagree.

While we recognize the general rule that a plaintiff waives his objection to an order sustaining a motion to strike when he abandons his complaint and files an amended complaint (see generally Fishel v. Givens (1977), 47 Ill. App.3d 512, 362 N.E.2d 97; Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App.3d 991, 376 N.E.2d 660), we do not believe this rule precludes review of the dismissal order in the instant case.

• 1 First, it is not the law in this State that a party abandons his original plea merely by filing an additional count. (Merker v. Belleville Distillery Co. (1905), 122 Ill. App. 326.) We do not find from the record in the instant case the plaintiff in substance sought to amend count III. On the contrary, the "Amended Count III" alleged a new and distinct theory of unjust enrichment and was essentially an additional count albeit its erroneous caption. Further, any confusion with respect to this court was cured by the trial court's subsequent order restyling and redesignating the amended count as new "Count ...


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