United States District Court, Northern District of Illinois, E. D
August 2, 1982
GELDERMANN & COMPANY, INC., PLAINTIFF,
R. A. HARTLEY & SON, INC., DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
This breach of contract action comes before the Court on the
post-trial motions of both parties. Plaintiff's motion for
judgment notwithstanding the verdict, Fed.R. Civ.P. 50(b), is
granted, and its conditional motion for a new trial,
Fed.R.Civ.P. 50(b), is denied. Plaintiff's motion for costs and
attorney's fees is granted, and defendant's motion for a new
trial on its counterclaims is denied.
I. Judgment Notwithstanding the Verdict
A. Rule 50(b)
Rule 50(b), Fed.R.Civ.P., governs directed verdicts and
judgments notwithstanding the verdict. In the Seventh Circuit,
it is well established that a motion for j.n.o.v. cannot be
made unless a motion for directed verdict was made by the
moving party at the close of all the evidence. 9 C. Wright & A.
Miller, Fed.Prac. & Pro., § 2537, at 596 (1971); Pittsburgh
— Des Moines Steel v. Brookhaven Manor Water Co.,
532 F.2d 572, 575 (7th Cir. 1976). Defendant argues that plaintiff's
motion for a directed verdict on the defendant's counterclaim,
even if timely made and denied, is insufficient as a basis for
judgment n.o.v. on plaintiff's complaint. The Court rejects
this assertion. Continental Air Lines, Inc. v.
Wagner-Morehouse, Inc., 401 F.2d 23, 26-27 (7th Cir. 1968),
the primary case relied on by defendant, is inapposite. That
case dealt solely with the situation where no motion for a
directed verdict was made on the principal cause of action. 401
F.2d at 26. In the instant case, defendant's counterclaims
involve disputed conduct which directly affects the outcome of
the principal cause of action. In light of this fact and the
rule that a motion for directed verdict is adequate if it is
made with "sufficient certainty to apprise the Court of the
movant's position with respect to the motion." 9 Wright &
Miller, § 2533 at 530; Pstragowski v. Metropolitan Life Ins.
Co., 553 F.2d 1, 3 (1st Cir. 1977), this Court finds
plaintiff's motion for a directed verdict on defendant's
counterclaim to be sufficient as a basis for plaintiff's
j.n.o.v. motion on the underlying complaint.*fn1
B. The Legal Standard for J.N.O.V.
Defendant has offered no argument other than its procedural
argument to counter plaintiff's j.n.o.v. motion. Since this
Court finds that the facts and the law compel a finding that
the jury verdict was erroneous, plaintiff's motion must be
The Customer's Agreement ("the contract") which forms the basis
for this action specifically provides that Illinois law governs
any actions or proceedings arising out of the contract
(contract, paragraph 23). In deciding whether to direct a
verdict or enter a j.n.o.v. in a diversity case, the proper
standard identified by the Seventh Circuit is that originally
set out in Pedrick v. Peoria and Eastern Railroad Co.,
37 Ill.2d 494, 229 N.E.2d 504, (1967). See Pittsburgh — Des
Moines Steel Co. v. Brookhaven, 532 F.2d at 577-78. The
Pedrick standard states that ". . . verdicts ought to be
directed and judgments n.o.v. entered only in those cases in
which all of the evidence, when viewed in its aspect most
favorable to the opponent, so overwhelmingly favors movant that
no contrary verdict based on that evidence could ever stand."
37 Ill.2d at 510, 229 N.E.2d at 514.
This Court finds 1) that plaintiff's prima facie case was
established and uncontradicted by any evidence in the record,
and 2) that there is no support in the record for defendant's
affirmative defenses. As a result, there is simply no support
for the jury's finding against the plaintiff and in favor of
defendant on the complaint.
Regarding the first finding, the evidence indicates that,
pursuant to paragraph 8 of the contract, plaintiff acted fully
within its rights in restricting trading by defendant for a
period of approximately one hour on January 9, 1981, and in
imposing a new set of restrictions effective as of the start of
trading on Monday, January 12, 1981. This Court finds no
vagueness nor ambiguity in paragraph 8 or any other part of the
contract. Paragraph 8 reads in pertinent part, "Customer
acknowledges Geldermann's right to limit the number of open
positions which Customer may maintain or acquire through
Geldermann. . . ." Where there is no vagueness or ambiguity in
a written contract, it will preclude any contrary implied
Regarding the Court's second finding, the defendant's
affirmative defenses of waiver and estoppel have no support in
the record, and, in fact, fly in the face of the
contract language. Plaintiff's actions at no time remotely
resembled a waiver of either the required corporate
authorization for Ted Hartley or the right to set margin
requirements. Paragraph 19 makes explicit the fact that there
can be no waiver or modification of a contract provision unless
the waiver "be committed to writing and signed by Customer and
an officer of Geldermann. The forebearance of Geldermann to
take any remedial action . . . shall not waive its right at any
time, or from time to time thereafter to take such action."
Even if waiver by plaintiff's conduct could be found,
plaintiff's conduct would in no way restrict any later action
on the allegedly waived right or provision. Paragraph 21 of the
contract explicitly so provides.
Additionally, this Court finds that plaintiff acted properly
and reasonably within the contract when it set new margin
requirements and restrictions. Plaintiff's action, governed by
paragraph 5 of the agreement, was a permissible attempt to
restrict further losses resulting from defendant's heavy volume
of speculative trading on hedge account margins (and, in some
cases, no margins).
Finally, it is undisputed that defendant left an unpaid balance
or debit when it liquidated its account with plaintiff. This
finding, coupled with the foregoing, compels this Court's
determination that plaintiff's prima facie case was
established and uncontradicted. Therefore, this Court believes
that the jury's verdict was improper and the entry of judgment
notwithstanding that verdict is required.
II. Plaintiff's Motion for Costs and Attorney's Fees
Illinois law states that, in the absence of a statute or an
agreement of the parties, a successful party may not recover
attorney's fees or the costs of the litigation, Harner v.
Kirk, 64 Ill.2d 434, 437, 1 Ill.Dec. 336, 356 N.E.2d 524
(1976). In the instant case, paragraph 3(3) of the contract
requires defendant to "pay the interest and service charges on
any customer service balances . . . together with Geldermann's
costs and attorney's fees incurred in collecting any such
deficit." Since this Court finds that this contract provision
is clear and unambiguous and that this action involves the
collection of a deficit left by defendant, this Court grants
plaintiff an award of costs and attorney's fees in this action.
Judgment is accordingly entered in favor of plaintiff on the
complaint and against defendant in the total amount of
$21,447.76 (the amount of the debit balance in this account
plus accrued interest calculated through August 30, 1981).
Plaintiff is further awarded the costs of this lawsuit with the
Court reserving for future resolution the matter of any
attorney's fees and additional costs of litigation due and
owing by defendant to plaintiff pursuant to the written
contract between them.
IT IS SO ORDERED.