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Lerner v. Zipperman





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.


This case comes before this court for a second time. In the initial decision, we held that the trial court erred in entering summary judgment for plaintiffs without requiring joinder of defendant Wayne Peters (Peters), whom we perceived as a necessary party to the action. Consequently, the trial court's decision was reversed and the case remanded. (Lerner v. Zipperman (1979), 69 Ill. App.3d 620, 387 N.E.2d 946, appeal denied (1979), 79 Ill.2d 612 (Lerner I).) Lerner I contains a recitation of the facts underlying the plaintiffs' cause of action and the proceedings taken pursuant thereto. The present summary of facts will touch only briefly upon such matters and will recite the events which followed this court's remand order in Lerner I.

Defendant William Zipperman (Zipperman), an attorney, alleged that he entered into a "partially oral and written" agreement with Peters on August 17, 1971. Pursuant to the alleged agreement, Zipperman was to sell Peters an insurance agency and part of his law practice for the sum of $75,000. Zipperman alleged that Peters paid him "the sum of $52,500 * * * leaving a balance due and owing * * * of $22,500." In reality, the money was apparently paid by plaintiffs, not Peters.

Plaintiffs alleged that each of them was solicited "by Zipperman" in December 1971 to buy an insurance agency. Each plaintiff deposited $7,500 (or $45,000 total) with Zipperman. *fn1

Plaintiffs never received ownership of the insurance agency. Zipperman allegedly kept their money. Plaintiffs filed this action to recover those funds. There is no dispute that the same insurance agency was involved in these two transactions.

The trial court initially granted summary judgment to plaintiffs on their claim. In Lerner I, we reversed that determination solely because we believed Peters was a necessary party to the action in light of the then available facts. On remand, plaintiffs added Peters as a defendant. Some three months later, Zipperman filed a counterclaim against Peters for the $22,500 allegedly owed to Zipperman on their purported agreement. The trial court granted Peters' motions to dismiss both plaintiffs' action against him and Zipperman's counterclaim. The court also granted plaintiffs' renewed motion for summary judgment against Zipperman.

Zipperman appeals these determinations. He assigns as error the trial court's (1) dismissing Peters despite this court's holding in Lerner I; (2) dismissing Zipperman's counterclaim against Peters; and (3) granting plaintiffs' motion for summary judgment.


Zipperman argues that the trial court erred in dismissing plaintiffs' complaint against Peters, claiming that Lerner I required Peters' presence in that action. In the alternative, Zipperman asserts the entire case must be dismissed if we hold that Peters, although a necessary party, was properly dismissed from plaintiffs' case.

In Lerner I, we held Peters was a necessary party because a judgment entered without his presence could prejudice his direct interests in the insurance agency and in the purported agreement with Zipperman. *fn2 (69 Ill. App.3d 620, 623-24.) Upon remand, plaintiffs amended their complaint to add Peters as a defendant. Peters responded by disavowing any pecuniary interest in the controversy between plaintiffs and Zipperman, thus seeking his dismissal therefrom. Plaintiffs did not contest Peters' argument.

• 1 In light of additional facts now available to us, we must reassess our initial perception of Peters' indispensibility to this case. Since Peters now flatly states he is unconcerned with the outcome of plaintiffs' suit against Zipperman, and since plaintiffs obviously have no interest in proceeding to seek recovery against Peters on their claim, we now hold that Peters is in fact not a necessary party to the plaintiffs-Zipperman action. *fn3 There is simply no apparent reason why Peters must be present as a co-defendant with Zipperman in this action. Consequently, the trial court committed no error in dismissing plaintiffs' complaint against Peters on the valid ground that it failed to state a cause of action against him. *fn4

• 2 From this conclusion, we also hold that Zipperman's alternative agreement is without merit. Zipperman bases his argument that the entire case should be dismissed on the premise that Peters was a necessary party. The cases he cited in support, particularly Village of Metamora v. Village of Eureka (1896), 163 Ill. 9, 45 N.E. 209, and Waupoose v. Kusper (1972), 8 Ill. App.3d 668, 290 N.E.2d 903, involve necessary parties. Since here we lack this underlying assumption, these cases are inapposite and Zipperman's entire argument falls. The action could proceed without Peters as a named defendant as there are still parties before the court against whom a binding decree can be entered.


Zipperman contends the trial court erred in dismissing his ...

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