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02/18/94 ALLSTAR MUSIC v. ALBERT L. ECKHOFF

February 18, 1994

ALLSTAR MUSIC, INC., AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
ALBERT L. ECKHOFF, D/B/A CALIFORNIA SPORTS BAR AND GRILL AND ABMM ENTERPRISES, INC., AN ILLINOIS CORPORATION, DEFENDANTS, AND THOMAS GORBETT, D/B/A AVS AMUSEMENT COMPANY, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 90CH78. Honorable John A. Mehlick, Judge Presiding.

As Corrected March 18, 1994. Released for Publication March 21, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiff, Allstar Music, Inc. (Allstar), filed a complaint against defendants Albert L. Eckhoff (Eckhoff), d/b/a California Sports Bar and Grill (California Sports Bar), ABMM Enterprises (ABMM), and Thomas Gorbett, d/b/a AVS Amusement Company (Gorbett or AVS), alleging breach of contract against Eckhoff and ABMM and tortious interference with contractual relations and civil conspiracy against Gorbett. The trial court granted Gorbett's motion for summary judgment and made a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of that order. Allstar has filed an appeal, contending there are genuine issues of material fact as to (1) whether Gorbett tortiously interfered with a contractual relationship between Allstar, Eckhoff, and ABMM; and (2) whether Gorbett is liable to Allstar for civil conspiracy. We disagree with these contentions and affirm.

Eckhoff owned and operated the California Sports Bar in Springfield located in the Capitol City Shopping Center. On April 3, 1989, Allstar and Eckhoff (individually) and the California Sports Bar (also referred to as the "location") entered into a profit-sharing agreement, also known as a coin machine lease agreement. The terms of this agreement provided that Allstar would have the exclusive right to place at the location certain coin-operated machines for an initial term of five years, with an option to renew the agreement for an additional five years. Proceeds from the machines were to be divided equally between Allstar and the location. Paragraph 11 of this agreement provided:

"In the event of a sale of the LOCATION or business, LOCATION will notify OPERATOR [Allstar] in advance of settlement, and the name, address and identity of the purchaser, and agrees that the terms of the sale shall include provision for the assumption in writing of this Agreement by the purchaser, but LOCATION shall not be relieved of its obligations hereunder as a result of such assumption by the purchaser."

On April 16, 1990, Eckhoff sold the California Sports Bar to ABBA Enterprises, represented by Max Morgan (Morgan) and Al Bella (Bella). ABBA Enterprises, Inc., became ABMM shortly after this sale. This sales contract provided that ABMM agreed to assume the leases on the beverage-dispensing equipment and to sign a three-year lease with a one-year option with the Capitol City Shopping Center. There is no mention whatsoever in the contract as to the assumption of the profit-sharing agreement with Allstar.

On May 17, 1990, ABMM, represented by Morgan and Bella, entered into a revenue-sharing agreement with Gorbett, d/b/a AVS. This agreement provided that AVS would have the exclusive right to place coin-operated machines at the California Sports Bar for an initial term of two years. The proceeds were to be divided equally between ABMM and Gorbett.

In his discovery deposition, Gorbett testified that he moved his equipment into the California Sports Bar on May 17, 1990, immediately after they had entered into the revenue-sharing agreement. Gorbett stated there were coin-operated machines already at the premises which he assumed belonged to Allstar. He made thisassumption because prior to this date, he had received a letter, dated May 15, 1990, from Allstar's attorneys, referring to the five-year profit-sharing agreement between Allstar and Eckhoff. Gorbett indicated Bella had unplugged and moved Allstar's equipment to make room for the AVS machines.

Thereafter, also on May 17, 1990, Allstar filed its complaint. Counts I, II, and III were directed against Eckhoff and ABMM for breach of contract and sought specific performance of the profit-sharing agreement, injunctive relief, and damages. Count IV was directed against Gorbett, d/b/a AVS Amusement, Inc., alleging Gorbett had knowledge of the agreement between Allstar and Eckhoff regarding the exclusive right to place coin-operated machines at the California Sports Bar, and that despite this knowledge, entered into a contract with ABMM, whom he knew to be the successor owner of the California Sports Bar, for the placement of coin-operated machines at that location. This conduct was alleged to be a knowing and wilful inducement by Gorbett to have ABMM breach its agreement with Allstar and it was further alleged that these acts constituted the tortious interference with contractual relations. Count V sought punitive damages for this conduct, and count VI charged ABMM, Gorbett, and/or AVS with civil conspiracy.

Gorbett filed a motion for summary judgment on January 23, 1993. In that motion, Gorbett alleged there were no genuine issues of material fact since (1) there was no contract between ABMM and Allstar; (2) Gorbett was not aware of a contractual relationship between ABMM and Allstar; (3) Gorbett did not induce a breach of contract between ABMM and Allstar; (4) ABMM did not breach a contract with Allstar; and (5) Gorbett committed no unlawful act that resulted in the breach of any contract or profit-sharing agreement and therefore committed no civil conspiracy.

On June 22, 1993, arguments on Gorbett's motion for summary judgment were heard and judgment was entered in favor of Gorbett, d/b/a AVS Amusement. Allstar timely filed its notice of appeal.

The pleadings, depositions, and affidavits contained in the record on appeal reveal the following facts. Shelly Eckhoff, the wife of Eckhoff, was present in early April 1990 during a Discussion between Eckhoff and Bella regarding the sale of the California Sports Bar. She identified the contract for sale and verified her husband's signature. Shelly testified her husband told Bella, prior to the execution of the contract for sale, there was a coin-operated machine agreement with Allstar that had to be honored. Shelly ...


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