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Notaro v. Nor-evan Corp.

OPINION FILED OCTOBER 21, 1983.

MICHAEL R. NOTARO, SR., APPELLANT,

v.

NOR-EVAN CORPORATION, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Harold A. Seigan, Judge, presiding.

JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1983.

Defendant, Nor-Evan Corporation, appealed from the order of the circuit court of Cook County denying its motion to dismiss the action for declaratory judgment filed by plaintiff, Michael R. Notaro, and to require plaintiff to proceed to arbitration of certain claims made by defendant. In a Rule 23 order (87 Ill.2d R. 23), the appellate court reversed (107 Ill. App.3d 1168), and we allowed plaintiff's petition for leave to appeal (87 Ill.2d R. 315).

In plaintiff's complaint, it was alleged in count I that plaintiff sold his 90% of the outstanding stock of the National Bank of North Evanston to defendant's predecessor in interest. Under the purchase agreement, plaintiff assumed a contingent obligation to rebate a portion of the purchase price of the stock based on certain "loss items," including "problem loans." The agreement detailed the procedures to be followed by the buyer with respect to the identification of, and efforts to collect, the "problem loans."

Plaintiff alleged that article IV of a supplemental agreement executed by the parties required defendant, within 90 days of the December 31, 1975, closing, to provide plaintiff with a list, prepared by a "national" firm of certified public accountants, of potential problem loans; that defendant did not furnish him with a copy of that list until June 15, 1977; that under article IV of the supplemental agreement, defendant was required to provide a second list of problem loans by December 31, 1976, and failed to furnish that list until October 30, 1978; that defendant breached the provisions of article IV by failing to use its best efforts from January 1, 1976, through December 31, 1978, to collect potential problem loans; and that defendant is asserting a claim based on the "problem loans" provisions of the agreement. The complaint asks that a declaratory judgment be entered that plaintiff has been "discharged from all contractual duties and obligations" to defendant.

In count II plaintiff alleged that defendant has advised him that it intends to initiate arbitration proceedings. Plaintiff asks that a hearing be held pursuant to section 2 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 102) and that the court enter judgment holding that there is no valid and enforceable arbitration agreement between the parties.

Defendant moved to dismiss and to compel arbitration. The circuit court, holding that the subject matter of the present action was not within the scope of the arbitration provision of the agreement, denied defendant's motions.

During oral argument before this court, we raised, sua sponte, the question whether the circuit court order was an appealable order and requested the parties to submit briefs. It appears that the appellate court, analogizing an order to compel or deny arbitration to an order granting or denying a temporary injunction, has held such orders to be appealable under Rule 307(a)(1) (87 Ill.2d R. 307(a)(1)), which in pertinent part provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; * * *."

See Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App.3d 536; School District No. 46 v. Del Bianco (1966), 68 Ill. App.2d 145.

Title 28 U.S.C. § 1292(a) (1976) provides:

"The courts> of appeal shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts> of the United States * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where ...


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