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Maas v. Cohen Associates





Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.


Plaintiff, William Maas, filed a complaint on May 13, 1982, in the chancery division of the circuit court of Cook County against defendants, David Cohen and Cohen & Associates, Inc., seeking injunctive and other equitable relief as well as damages. Maas then filed an emergency motion for the issuance of a temporary restraining order and a preliminary injunction, and Cohen responded by moving to strike the motion for an injunction. Following a hearing, the trial court granted Cohen's motion to strike the request for injunctive relief, denied Maas' motion for the issuance of an injunction, and granted Maas 28 days to amend his complaint. Maas instead perfected this appeal, claiming that the trial court erred by (1) granting defendants' motion to strike and thereby denying his request for an injunction, and (2) refusing to hear testimony from witnesses to support the motion for an injunction.

We affirm the decision of the trial court.


William Maas, an independent contractor, formerly worked for Cohen & Associates, Inc., a corporate real estate and business broker specializing in the sale of taverns, restaurants, and other businesses. In return for Maas' services in procuring listings and finding buyers for various businesses, David Cohen, president and sole stockholder of Cohen & Associates, orally contracted to pay Maas a specified percentage of the commissions earned on consummated sales. Under a second oral contract, Maas was promised and received a separate percentage of all listing fees he generated for the corporation.

After Maas and Cohen had operated under these agreements for 1 1/2 years, the corporation ceased doing business, and Cohen began working for another real estate and business broker. Although Maas subsequently received some of his share of the commissions from sales completed prior to the corporation's closing, he did not receive commissions from two of his listings that resulted in sales after Cohen & Associates closed its office; further, Maas knew two other listings were expected to result in closings in the near future. Following an alleged report by Cohen to Maas' wife falsely stating that negotiations on one of the future closings had ceased, Maas filed suit. In addition to the injunction, declaratory judgment, and accounting requested, the complaint prayed for an order directing Cohen to pay Maas not only the commissions due and owing but also damages and attorney fees.

One week later, Maas filed an emergency motion and affidavit asking the court to restrain Cohen from collecting or disbursing any money to be collected on the sales of Castle Wine & Spirits and Don's Fishmarket, the two businesses for which Maas had obtained the listings and found buyers and which were to be sold imminently. Maas maintained he had an inadequate remedy at law and would suffer irreparable injury if the injunction did not issue immediately because he believed Cohen & Associates to be insolvent and Cohen himself so pressed by debts that he would spend Maas' share of the commissions before Maas could claim them. Cohen responded by filing a general appearance and a motion to strike Maas' motion for a preliminary injunction, apparently under the authority of section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2-615), although that statutory designation was not specifically mentioned before this appeal.

At the hearing on the motion to strike, Maas argued that Cohen's repeated practice of retiring numerous personal debts by using personal and corporate funds interchangeably, the corporation's apparent undercapitalization and failure to file its annual report, the sudden closing of the business offices, and Cohen's alleged attempt to defraud Maas of his share of commissions all proved Cohen's inability to respond in damages. Maas, therefore, claimed that he had no adequate remedy at law and would suffer irreparable injury. Maas concluded his argument by offering witnesses to substantiate further his allegations that Cohen had been dilatory in paying commissions in the past and that he had attempted to defraud Maas of commissions earned.

In response, Cohen argued that Maas had not satisfied any of the requirements for an injunction, namely, showing a protectible property right, irreparable injury, inadequate remedy at law, and likelihood of success on the merits. Further, Cohen denied each of Maas' allegations and pointed out that the facts set out in Maas' affidavit were inadequate to establish any right to equitable relief.

At the conclusion of Cohen's argument, the trial judge stated that although he was not reluctant to hear testimony from the witnesses, he was prevented from doing so because "the only time the Court is allowed to hear evidence is when the parties are at issue. The parties clearly are not at issue at this point." The trial judge thereupon granted Cohen's motion to strike and denied Maas' motion for an injunction.

In addition, instead of following Cohen's suggestion that because Maas' claim amounted to only $14,000 the case should be transferred to the municipal department of the law division, the trial court declared that it would retain the case in chancery and granted Maas 28 days to amend his complaint. Instead, Maas appealed, claiming that he had been given leave to amend his complaint only to allege a higher monetary value, not to amend his motion or pleadings in general. Because "[a] purpose of the motion to strike is to point out defects in pleading which the pleader may correct" (Electric Supply Corp. v. Meyrick (1953), 349 Ill. App. 383, 385, 110 N.E.2d 525, 526), we do not agree with Maas' interpretation of the trial court's closing remarks. We therefore regard this appeal as expressing substantive disagreement with the trial court's disposition of the case, not, as Maas apparently would have us believe, as a procedural appeal taken only because permission to amend the pleadings was not granted.



It is clear to us from the outset that some of the controversy in this appeal arises not from conflict over legal issues but rather from the parties' aberrant labeling of the various actions. Maas' complaint as originally filed included a request for an injunction to prevent Cohen from collecting or disbursing commissions earned by the real estate brokerage corporation from the sales of two businesses, Castle Wine & Spirits and Don's Fishmarket. One week later, Maas refiled the same request for an injunction, this time labeled a motion, and attached the requisite affidavit amplifying the facts previously set out in the original complaint. Although the motion more specifically alleged irreparable injury and inadequate remedy at law, the ...

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