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02/10/94 BERDEX INTERNATIONAL v. MILFICO PREPARED

February 10, 1994

BERDEX INTERNATIONAL, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
MILFICO PREPARED FOODS, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLARD J. LASSERS, PRESIDING.

Released for Publication April 19, 1994.

Johnson, Cahill, Hoffman

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Defendant, Milfico Prepared Foods Inc. (hereinafter Milfico), appeals from the trial court's grant of summary judgment in favor of plaintiff, Berdex International, Inc. (hereinafter Berdex), in a breach of contract action.

On appeal, Milfico contends (1) the trial court's order failed to comply with Supreme Court Rule 304(a), (134 Ill. 2d R. 304(a)), and is consequently neither enforceable nor appealable; (2) the trial court abused its discretion in granting Berdex's summary judgment motion; (3) the trial court improperly made Rule 304 findings on the summary judgment grant while a related counterclaim was pending between the parties; and (4) the trial court erroneously awarded Berdex attorney fees without conducting an evidentiary hearing.

We affirm in part; vacate in part and remand.

In April 1991, Milfico and Berdex entered into a contract for the purchase of frozen scallops. Berdex disclosed to Milfico that the scallops were a "secondary product" which did not conform to standard quality. On April 23, 1991, Berdex delivered the scallops and Milfico approved them and accepted delivery.

During the next 2 months, Milfico placed three orders with Berdex for the purchase of frozen frog legs. Berdex filled the orders and delivered the frog legs to Milfico on July 1, 1991. At the end of the month, when the invoices for the frog legs became due, Milfico informed Berdex that it did not intend to pay for the frog legs because Berdex had sold it "rotten and rancid" scallops the previous April.

Consequently, on August 22, 1991, Berdex filed a complaint against Milfico seeking to recover the purchase price of the frog legs, $35,802, and reasonable attorney fees. On October 10, 1991, Milfico responded with a counterclaim against Berdex for an unspecified amount of damages alleging that Berdex delivered scallops which did not meet contractual specifications.

On October 30, 1991, Berdex filed a motion for summary judgment which was later granted by the trial court. On December 17, 1991, the trial court awarded Berdex $35,801 plus $3,500 in attorney fees. Berdex was also granted prejudgment interest on $35,802 at the rate of 1.5% per month from July 1, 1991, to December 17, 1991.

On December 27, 1991, Berdex filed a motion for Rule 304(a) findings, requesting that the trial court make its grant of summary judgment final and appealable. Berdex also filed a motion to modify the judgment, asking for an additional $4,000 in attorney fees. On February 6, 1992, the trial court amended its order of December 17, 1991, entered the Rule 304(a) findings, and denied Berdex's motion for additional fees. Milfico appeals.

Initially on appeal, Milfico asserts that the trial court's order granting Rule 304(a) findings did not comply with the Rule and the order ...


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