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Benn & Assoc. v. Nelsen Steel & Wire

OPINION FILED JUNE 24, 1982.

MARVIN N. BENN & ASSOCIATES, LTD., PLAINTIFF-APPELLANT,

v.

NELSEN STEEL AND WIRE, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The plaintiff, Marvin N. Benn & Associates, Ltd. (Benn), is a professional service corporation organized to render legal services pursuant to the Professional Service Corporation Act (PSCA) (Ill. Rev. Stat. 1979, ch. 32, par. 415-1 et seq.). Benn entered into a contract with Transplex, Inc., an Illinois corporation. Benn alleged that the defendants, Nelsen Steel & Wire, Inc., and Daniel Nelsen, tortiously interfered with its contract with Transplex. The defendants moved to dismiss the complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45 and 48). The trial court dismissed the complaint on the basis that Benn is a corporation to provide legal services and services ancillary to the legal services. Since Benn's contract with Transplex was primarily a business contract which was not for legal services or services ancillary to any legal services, the trial court concluded that it was against public policy for a court to enforce such a contract. Consequently, it was also against public policy for a court to entertain a cause of action for tortious interference with such a contract.

Benn contends that the contract was for legal services and services ancillary thereto. Furthermore, Benn contends that such a contract, even if beyond the powers of a legal professional service corporation, is not violative of public policy.

The terms of the contract at issue are as follows:

"It is hereby agreed between MARVIN N. BENN & ASSOCIATES, LTD., and Transplex, Inc., * * * that:

Marvin N. Benn & Associates, Ltd., will search for and provide to the parties named contacts for the sale of any and all goods, materials, including other products, and for the organization of joint ventures in and to Tiawan [sic] and or mainland China.

Should such efforts by Marvin N. Benn & Associates, Ltd., cause any such products and materials to be traded or ventures to be entered either on Tiawan [sic] or in mainland China, each signatory hereto agrees to pay to Marvin N. Benn and Associates 50% of all monies received, less reasonable expenses as a result of said contacts. * * *

This agreement shall be subject to the laws of Illinois and represents the complete agreement between the parties. Any changes in this agreement must be reduced to a writing and signed by all the parties." (Emphasis added.)

The contract is typed on stationery entitled "Law Offices, Marvin N. Benn & Associates, Ltd." Marvin N. Benn signed the contract as representative of Marvin N. Benn & Assoc., Ltd.

Approximately eight months after the filing of the original complaint, but before the court had ruled on the motions to dismiss, Benn filed a supplemental memorandum which included an affidavit from Marvin N. Benn. The affidavit stated:

"1. That sometime in November, 1979, Mr. Way-Sun Liao, an individual and the president of Transplex, Inc. and Robert Chang, an individual, came into my office seeking legal services to help them complete transactions between China and the United States. They were interested in setting up the proper corporate structures for international transactions with the best tax advantage. They were also interested in obtaining contacts with different suppliers of materials and services to be bartered with the government of China.

2. They informed me that they had no money to pay me and asked me if I perform [sic] the services on a contingency basis.

3. A discussion ensued as to what that contingency would be and we agreed that a reasonable fee would be one half of any and all broker's fees received by them resulting from any contacts that I provided.

4. They also sought legal advice regarding whether or not certain items could be sold to China, and if so, how. I provided contacts and legal services, including negotiations of proposed contracts in China while I was in China with them and further ...


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