with an intent to enforce that right, he has waived it and may not thereafter seek judicial enforcement." Id. at 213. "In a contractual setting, . . . waiver occurs when an obligor manifests an intent not to require an obligee to strictly comply with a contractual duty." Id.
In this case, the facts proven are insufficient to establish that Sufrin intentionally relinquished a known right. It is unclear whether the Telesonics payout arose under the Agreement. Suf. Dep. at 40. If it did not, Sufrin's acceptance of the payout had no impact on his rights under the Agreement. Moreover, Saverslak differs from this case. There, the facts proven revealed that the contract's provision was clear. Here, however, the contract's provision is unclear. Therefore, Hosier's argument is unpersuasive.
4. The Estoppel Defense
Hosier argues that "Sufrin led [him] to believe [that] he would never enforce any purported right to share in contingent-fee recoveries." Def. Br. at 9. "Sufrin openly admitted that, despite his purported belief in 1987 that the Agreement gave him 33% of any Telesonics fees, he voiced no objection to a 1% interest." Id. at 10. In doing so, Sufrin "effectively deprived Hosier of the opportunity to take protective action." Id. at 9. Consequently, Hosier argues that, because of "the prejudice to [him] resulting from Sufrin's silence and later acceptance of benefits," Sufrin should be estopped from bringing his claim. Id. at 10.
The Saverslak court stated that "estoppel . . . focuses not on the obligor's intent, but rather on the effects of his conduct on the obligee." 606 F.2d at 213. "An estoppel . . . arises only when a party's conduct misleads another to believe that a right will not be enforced and causes him to act to his detriment in reliance upon this belief." Id.
In this case, the facts proven are insufficient to establish that Sufrin misled Hosier to believe that he would not enforce a right under the Agreement. Again, it is unclear whether the Telesonics payout arose under the Agreement. Suf. Dep. at 40. If it did not, Sufrin's acceptance of the payout did not mislead Hosier to believe that Sufrin would not enforce a right. We need not reach the second part of estoppel analysis, whether Sufrin's alleged misleading conduct caused Hosier to act to his detriment. Therefore, Hosier's argument is unpersuasive.
Hosier's arguments and defenses are unpersuasive. Therefore, as in Ellerby, the fees should be divided pursuant to "the distribution formula in effect at the time of the dissolution." 138 Ill. App. 3d at 83. The Agreement governs the entitlement.
C. Is Summary Judgment Appropriate?
The parties contest the breadth of the Agreement's phrase "residual profits." Sufrin argues that the phrase includes H&S's contingent fee recoveries. Hosier argues that it excludes such recoveries. Given such a contest, summary judgment is inappropriate. Banque Paribas v. Hamilton Indus. Int'l, Inc., 767 F.2d 380, 383 (7th Cir. 1985). To answer our original question: At this point, it is unclear who is entitled to what amount of the contingent fees.
For the reasons discussed above, we deny Hosier's motion in limine and his alternative motion for summary judgment.
August 7, 1995.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT