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GELDERMANN, INC. v. FINANCIAL MGMT. CONSULTANTS

February 12, 1992

GELDERMANN, INC. Plaintiff
v.
FINANCIAL MANAGEMENT CONSULTANTS INC. Defendants


Sharp


The opinion of the court was delivered by: ALLEN SHARP

MEMORANDUM AND ORDER

I.

 The undersigned Judge, sitting by designation, presided over the trial of this case on December 2 to 9, 1991, in Chicago, Illinois. The jury returned a verdict of $ 50,000.00 in favor of the defendant, Financial Management Consultants, Inc. (FMC), and against Geldermann, Inc. Judgment was entered thereon and costs were assessed against Geldermann, Inc. On December 19, 1991, the plaintiff filed a motion for judgment as a matter of law, citing Rule 50(b) and 59 of the Federal Rules of Civil Procedure, and in the alternative, filed a motion for a new trial. That motion was supported by a memorandum. On January 6, 1992, FMC filed a response to the aforesaid motion and this court heard oral argument thereon in Chicago, Illinois, on February 11, 1992. Said motions are now ripe for ruling.

 There are many cases that provide appropriate guidance to a district court confronted with these species of post-trial motions. One with which this court is very familiar is Foster v. Continental Can Corporation, 101 F.R.D. 710 (N.D.Ind.), aff'd, 783 F.2d 731 (7th Cir. 1986).

 Another very important procedural preliminary must be mentioned. This court held an extensive on-the-record proceeding under Rule 51 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and all trial counsel were given an extensive and extended opportunity to make specific objections to instructions given and to instructions refused. Such is the burden of counsel under Rule 51 as it is interpreted in this circuit. See Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315 (7th Cir. 1985). See also Guerts v. Barth, 892 F.2d 622 (7th Cir. 1989).

 The jurisdictional basis of the claims made in this case between these parties specifically invoke 28 U.S.C. § 1332, and the substantive law of Illinois was agreed upon.

 As a more generalized proposition, a general verdict, which this was, gives rise to a presumption that the factual issues have been resolved in favor of the prevailing party. Such a verdict should be given the benefit of the doubt absent a request under Rule 49, Fed.R.Civ.P., where special verdicts are answers to written interrogatories. See Wassell v. Adams, 865 F.2d 849, 855 (7th Cir. 1989). In fact, this court, during trial, but outside the presence of the jury, raised a question with trial counsel in this case as to whether the parties might request answers to special interrogatories under Rule 49, Fed.R.Civ.P. None were requested.

 II.

 This court gave instructions 19, 20 and 24, as follows:

 A commodities broker is an agent and fiduciary of a customer only with respect to services that the broker agrees to perform on behalf of the customer. Unless a commodities broker agrees to perform additional services on behalf of a customer, the broker's contractual and fiduciary duties are limited to the execution of orders it receives from the customer.

 To reach a verdict on FMC's counterclaim, you must first decide what service Geldermann agreed to perform on behalf of FMC. After making that decision, you must decide whether Geldermann properly performed the service that it agreed to perform. Those are the only issues that you are to decide with respect to FMC's counterclaim. (Court's Instruction No. 19)

 Geldermann, Inc. has brought a lawsuit against Financial Management Consultants, Inc. (FMC), alleging that FMC breached a customer agreement by which it failed to pay Geldermann for money due on a debit balance.

 FMC has brought a countersuit against Geldermann alleging that Geldermann breached the customer agreement in that it failed to carry out FMC's trading instructions. FMC has claimed that, beyond Geldermann's breaches of its contractual obligations, Geldermann violated its fiduciary duties to FMC, its customer, in either of one of two ways: (a) failing to execute trades received by Geldermann either directly or indirectly through Techvest, if you find that Techvest was Geldermann's agent or (2) by taking control of FMC's account. (Court's Instruction No. 20)

 A commodities broker is an agent and fiduciary of a customer only with respect to services that the broker agrees to perform on behalf of the customer. Unless a commodities broker agrees to perform additional services on behalf of a customer, the broker's contractual and fiduciary duties are limited to the execution of orders it receives from the customer. (Court's Instruction No. 24.)

 No objections were made to any of the above three instructions, and, in fact, Instruction No. 24 was submitted ...


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