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11/08/95 PERKINS RESTAURANTS OPERATING COMPANY v.

November 8, 1995

PERKINS RESTAURANTS OPERATING COMPANY, L.P., PETITIONER-APPELLANT,
v.
VAN DEN BERGH FOODS COMPANY, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Margaret McBride, Judge Presiding.

Released for Publication December 21, 1995.

Presiding Justice Greiman delivered the opinion of the court: Rizzi, J., and Tully, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Perkins Restaurants Operating Company, L.P., appeals the circuit court's denial of its application to modify or vacate an arbitration award which declined to award attorney fees to either party. The arbitrators awarded plaintiff $10,000 upon its damage claim.

On appeal plaintiff asserts that the arbitration panel exceeded its authority by refusing to award plaintiff its fees where the arbitration agreement provided that the "prevailing party" shall receive attorney fees.

We affirm the circuit court's order because the attorney fee issue was submitted and considered by the arbitration panel.

Plaintiff purchased a used bakery oven from defendant Van Den Bergh Foods Company and later claimed that the oven was defective. Plaintiff claimed specific damages of $428,911 and over $1 million in total damages. Section 8.17 of the purchase agreement provided that any disputes which arose between the parties regarding the purchase and sale of the oven would be submitted for arbitration.

"8.17 Arbitration All controversies, disputes or claims arising between Buyer and Seller in connection with, arising from, or with respect to this Agreement, including any provision of this Agreement *** shall be submitted for arbitration *** upon the demand of either party. *** The award and decision of the arbitrators shall be conclusive and binding upon the parties."

Section 8.16 of the agreement required payment of fees to the "prevailing party" if either party took action to enforce the agreement.

"8.16 Attorney Fees. In the event either party must take action to enforce any term of this Agreement, the non-prevailing party shall reimburse the prevailing party for any costs it incurs in such enforcement action, including reasonable attorney fees and court costs, whether or not a lawsuit is filed." (Emphasis added.)

The agreement did not define the term "prevailing party."

At arbitration, plaintiff maintained that the oven had serious defects and stated claims against defendant for breach of contract, breach of express and implied warranty, fraud and negligent misrepresentation, and violation of the Tennessee Consumer Protection Act. In its prayer for relief, plaintiff asked for specific damages, punitive damages and attorney fees as authorized by section 8.16.

Defendant contended that the sale of the equipment was on an "as is" basis. Defendant further maintained that it acted honestly and in good faith towards plaintiff and did not conceal or attempt to conceal any information of any kind from plaintiff. Defendant also requested in its cross-demand for arbitration, referred to as a counterclaim, that ...


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