Appeal from the Circuit Court of Cook County; the Hon. David
Cerda, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Defendants, Biagio Cirrincione and Giuseppina Cirrincione (the Cirrinciones), appeal from a $25,000 judgment against them. The judgment also granted plaintiff, Nancy's Home of the Stuffed Pizza, Inc., successor in interest to Rocco Palese and Nancy Palese, and Nancy's Restaurant and Lounge, Inc. (Nancy's), other hereinafter mentioned relief.
Nancy's' claims against the Cirrinciones allegedly arose out of two agreements between them. One agreement was dated August 11, 1977, and involved a pizza business at 4250 North Central Avenue in Chicago. The other agreement was dated November 20, 1977, and involved a pizza business at 7309 West Lawrence Avenue in Chicago. Count I of Nancy's two-count complaint against the Cirrinciones alleged that on or about August 11, 1979, Nancy's and the Cirrinciones entered into an agreement in which the Cirrinciones purchased from Nancy's the right to use the trademark and trade name, "Nancy's Home of the Stuffed Pizza," for use at 4250 North Central Avenue in Chicago. In the agreement, the Cirrinciones also purchased from Nancy's, Nancy's' "secret formula for stuffed pizza." Count I further alleged that the Cirrinciones violated the agreement (1) by claiming to be the originators and inventors of "stuffed pizza"; (2) by selling stuffed pizza which was not prepared in accordance with Nancy's' recipe; (3) by using Nancy's' trademark and trade name, "Nancy's Home of the Stuffed Pizza" in manners unauthorized by the agreement; and (4) by failing to display large photographs of Nancy and Rocco Palese at the 4250 North Central Avenue business. It was alleged in count I that Nancy's served notice on the Cirrinciones on July 16, 1982, of Nancy's' intent to terminate the agreement unless the violations were discontinued and corrected. Nancy's claimed that because the violations continued, on August 31, 1982, Nancy's served written notice on the Cirrinciones termination of the agreement. Finally, count I alleged that despite the termination notice, the Cirrinciones continued in the operation of the business and the complained of violations. Count I prayed (1) that the court declare that the agreement was validly terminated; (2) for a $1 million judgment against the Cirrinciones for trademark and trade name violations; and (3) for $250 damages per day for the Cirrinciones continued violations of the agreement.
The allegations of count II were substantially the same as the allegations of count I, except in count II the pizza business was alleged to have been located at 7309 West Lawrence Avenue in Chicago, and the date of the agreement was November 20, 1977.
Following a trial by the court, the court found (1) that the agreements were valid and binding; (2) that the Cirrinciones violated the agreements by selling stuffed pizza which was not prepared in accordance with the recipe provided in the agreement, and by using the "Nancy's Home of the Stuffed Pizza" trade name and trademark on signs, menus, advertisements and other literature in ways which were not approved by Nancy's; and (3) that the Cirrinciones failed to display photographs of Nancy and Rocco Palese at the 4250 North Central Avenue business, as required by that agreement. The court found further that the Cirrinciones had not violated the agreement by claiming to be the originators and inventors of "stuffed pizza," and that the $250 per day liquidated damages for violations of the agreements was excessive and constituted a penalty. Finally, the trial court found that the agreements had been properly terminated by Nancy's. The court entered judgment against the Cirrinciones and in favor of Nancy's in the amount of $25,000, computed as follows: $10,000 for violation of the August 11, 1977-4250 North Central Avenue agreement; $2,500 for infringement of the trademark and trade name "Nancy's Home of the Stuffed Pizza" at the 4250 North Central Avenue address for unauthorized use after termination of that agreement; $10,000 for violation of the November 20, 1977-7309 West Lawrence Avenue agreement; and $2,500 for infringement of the "Nancy's Home of the Stuffed Pizza" trademark and trade name for unauthorized use after termination of that agreement.
On this appeal, the Cirrinciones contend: (1) that the trial court erred in finding that Nancy's furnished the Cirrinciones a recipe for stuffed pizza, and in further finding that the Cirrinciones failed to follow the recipe required by the agreement; (2) that the trial court's finding that the Cirrinciones failed to display photographs of Rocco and Nancy Palese in accordance with the August 11, 1977-4250 North Central Avenue agreement was against the manifest weight of the evidence; (3) that Nancy's causes of action were barred by laches; (4) that Nancy's failure to mitigate damages and the $25,000 damages against the Cirrinciones constitute a penalty; and (5) that entry of the declaratory judgment was inappropriate.
• 1 The Cirrinciones first contend that the trial court erred in finding that Nancy's furnished the Cirrinciones a recipe for stuffed pizza, and that the court therefore erred when it found that the Cirrinciones sold stuffed pizza which was not prepared in accordance with the furnished recipe. There are sufficient facts in the record which support the findings by the trial court. It is within the province of the trial court to weigh the evidence and to make findings of fact. Unless the findings are manifestly against the weight of the evidence, a reviewing court will not disturb those findings. (Central Steel & Wire Co. v. Coating Research Corp. (1977), 53 Ill. App.3d 943, 947, 396 N.E.2d 140.) A court of review will defer to the findings of a trial court unless those findings are against the manifest weight of the evidence. People v. Cheek (1982), 93 Ill.2d 82, 94, 442 N.E.2d 877.
There was trial testimony that a stuffed pizza recipe was furnished to the Cirrinciones by Nancy's and that the Cirrinciones sold stuffed pizza which was not prepared in accordance with that recipe, in violation of the agreements. The agreements provided that "for the protection of the trademark and trade name and in order that the patrons of the restaurant will not be misled, all stuffed pizza shall be made and prepared in accordance with the recipes and formulas furnished by seller-licensor [Nancy's]." Marisa Palese, daughter, of plaintiffs Rocco and Nancy Palese and president of the plaintiff corporation, testified that although there was no written stuffed pizza recipe, Rocco and Nancy Palese twice told the Cirrinciones the recipe for "stuffed pizza." This testimony of Marisa Palese was corroborated by the defendant, Biagio Cirrincione, who was called as an adverse witness by Nancy's.
During his testimony, Biagio Cirrincione repeatedly stated that he was given a recipe by Nancy's. He acknowledged his receipt of a recipe from Nancy's and inferentially admitted his violation of the requirement to use that recipe when he was asked if he ever used a recipe supplied by Nancy's, and he responded, "Some I did use, and some not, because I [was] also using my own." It is apparent that Cirrincione could not have used Nancy's "stuffed pizza" recipe, which he acknowledged he used, if no such recipe had been provided him.
At trial, Cirrincione was further interrogated on the testimony he gave in another proceeding, in which he admitted that the Paleses had given him a recipe for stuffed pizza. This trial interrogation was as follows:
"Q. Weren't you asked the following question and didn't you give the following answer in that proceeding, `Q. And you acknowledged that after the signing of the contract the Paleses did give you a recipe or recipes, the strictest of secrecy to prepare the famous Nancy's stuffed pizza, is that correct? A. yes.'
A. Yes, but I would but I was making pizzas before."
When asked by his own attorney if he was given a written recipe, Biagio Cirrincione responded, "No nothing secret, just word of mouth." The trial court concluded and found that a recipe had been provided to the Cirrinciones by Nancy's. The evidence was sufficient to support the trial court's finding and will not be reversed by this court.
• 2 The Cirrinciones next contend that the trial court's findings that the Cirrinciones failed to display Rocco and Nancy Paleses' photographs at the 4250 North Central Avenue business in accordance with the agreement was against the manifest weight of the evidence. The agreement provided that "buyer agrees to maintain the enlarged photographs of Nancy and Rocco Palese in the front lobby and in the pickup area, and to replace same as it becomes defaced or damaged." The uncontroverted testimony at trial was that there were enlarged photographs of Nancy and Rocco Palese on the walls at the front and rear of the Central Avenue business when the Cirrinciones took over its operation. There was testimony that an employee of Nancy's removed the photographs from the walls when the Cirrinciones moved in, but that he returned them to their places on the wall within a half hour after he removed them. The photographs were not on the walls in August 1982. In fact, defendant, Biagio Cirrincione, testified ...