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Zaninsky v. Gelber Group

March 19, 2004

[5] HARVEY ZABINSKY, PLAINTIFF-APPELLEE,
v.
GELBER GROUP, INC., GELBER MANAGEMENT, INC., BRIAN GELBER, D/B/A THE GELBER GROUP, AND FRANKLIN GELBER, D/B/A THE GELBER GROUP, DEFENDANTS-APPELLANTS.



[6] Appeal from the Circuit Court of Cook County. No. 98 L 390 Honorable Lee Preston, Judge Presiding.

[7] The opinion of the court was delivered by: Justice O'brien

[8]  Defendants, Gelber Group Inc. (GGI), Gelber Management, Inc. (GMI), Brian Gelber, and Franklin Gelber, appeal the jury verdict in favor of plaintiff, Harvey Zabinsky, on his claim under the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq (West 1994)). Plaintiff cross-appeals the denial of his petition for attorney fees. We affirm the verdict in favor of plaintiff; we reverse and remand on the cross-appeal from the denial of the attorney-fee petition.

[9]  This case is before us for the second time. On October 20, 1997, we affirmed in part and reversed in part the dismissal of plaintiff's fifth amended complaint. See Zabinsky v. Gelber Group, Inc., No. 1-96-4209 (October 20, 1997) (unpublished order under Supreme Court Rule 23). We recite a portion of our October 20, 1997, order, verbatim, because it is relevant to the issues on this appeal:

[10]   "In his fifth amended complaint, plaintiff allege[d] that Brian and Franklin Gelber conducted a group of related businesses under the trade name 'The Gelber Group.' Those businesses included a futures commission merchant business, a futures and options business, a commodity pool operation and commodity trading advisor business and a broker dealer business.

[11]   Plaintiff pleaded that Brian and Franklin Gelber also owned controlling interests in Gelber Group, Inc. (GGI) and Gelber Management, Inc. (GMI), a wholly owned subsidiary of GGI. Brian was president of GGI and GMI, while Franklin was treasurer/secretary of GGI and GMI. At all relevant times, Brian and Franklin caused GGI to pay the salaries, medical insurance premiums and pension plan expenses of their employees, regardless of whether the employees were designated as Brian and Franklin's employees, GGI's employees, or GMI's employees.

[12]   Plaintiff pleaded that in December 1987, he met with Brian and Franklin Gelber at their office in Chicago. Brian, on his own behalf and on the behalf of Franklin, GGI and GMI, offered plaintiff the job of managing the Gelber Arbitrage Fund. Brian told plaintiff that if he accepted the job, plaintiff would receive an annual salary of $96,000, a quarterly bonus, retirement benefits under a pension plan, and medical benefits. Brian also informed plaintiff that 'said salary, bonus and benefits would be paid and provided to Plaintiff for so long as the Fund was managed by himself, Franklin Gelber or one or more of the enterprises owned or controlled by himself and Franklin Gelber.' On or about January 1, 1988, plaintiff accepted the offer and began managing the Fund. Plaintiff managed the Fund until March 26, 1990, when Brian Gelber fired him. Brian Gelber, Franklin Gelber, or GMI or GGI continued to manage the fund until December 31, 1990.

[13]   In Counts I, II, III, and IV, plaintiff pleaded, respectively, that Brian Gelber, Franklin Gelber, GGI, and GMI, breached the oral contract by failing to pay plaintiff his bonus for the first quarter of 1990 and his salary, quarterly bonuses and benefits for any period thereafter through December 31, 1990. Counts VII and VIII, labeled 'Assumption of Obligations of Brian Gelber by GGI/Third Party Beneficiary' and 'Assumption of Obligations of Franklin Gelber by GGI/Third Party Beneficiary', basically repeat the allegations of count III that GGI breached the oral contract with plaintiff.

[14]   Counts VI, IX, X, XI, [XII], XIII, XIV [and XV and XVI] alleged *** that Franklin Gelber, GGI, GMI, Brian Gelber, Thomas Towson (an officer of GGI), and Chris Stewart (an officer of GGI) violated the Illinois Wage Payment and Collection Act (the Act) by failing to pay plaintiff his first quarter 1990 bonus, as well as his second, third, and fourth quarter 1990 salary and bonus amounts." Zabinsky, slip op. at 1-96-4209.

[15]   Defendants filed a combined motion to dismiss, which the trial court granted. Upon appeal, this court: (1) affirmed the dismissal of the breach of contract counts because the oral contract, upon which plaintiff relied, violated the statute of frauds; (2) affirmed the dismissal of plaintiff's claims under the Act for his second, third, and fourth quarter salary and bonus because plaintiff was fired during the first quarter of 1990 and therefore never earned his second, third, and fourth quarter salary and bonus; and (3) reversed and remanded the dismissal of plaintiff's claim for an earned first quarter 1990 bonus under the Act because plaintiff had adequately pleaded that he had provided labor, service, or performance for the bonus pursuant to an agreement with the defendants. See Zabinsky, slip op. at 1-96-4209.

[16]   Upon remand, a jury trial was held on plaintiff's claim under the Act for an earned first quarter 1990 bonus. The jury found in favor of plaintiff for $200,297.50. The trial court denied defendants' motion for judgment notwithstanding the verdict. Plaintiff presented his petition for attorney fees, which the trial court denied. Defendants appeal the jury verdict in favor of plaintiff. Plaintiff cross-appeals the denial of his petition for attorney fees.

[17]   I. DEFENDANTS' APPEAL

[18]   First, defendants argue that the plaintiff has failed to state a cause of action under the Act for recovery of his first quarter 1990 bonus and, thus, that the trial court erred by permitting this matter to proceed to trial.

[19]   In our October 20, 1997, order we held that plaintiff stated a cause of action under the Act for an earned first quarter 1990 bonus. See Zabinsky, slip op. at 1-96-4209. Our October 20, 1997, order is the law of the case on this issue. Under the law of the case doctrine, issues presented and disposed of in a prior appeal are binding and will control in the circuit court upon remand as well as in the appellate court in a subsequent appeal. Reich v. Gendreau, 308 Ill. App. 3d 825, 829 (1999). Accordingly, the trial court did not err by permitting this matter to proceed to trial.

[20]   Next, defendants argue that the trial court erred by denying their motions for directed verdict and, later, judgment notwithstanding the verdict based upon plaintiff's failure to prove his case at trial. Our supreme court has held that "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no ...


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