All Seasons Excavating Co. v. Bluthardt

593 N.E.2d 679, 229 Ill. App. 3d 22
CourtAppellate Court of Illinois
DecidedApril 20, 1992
DocketNo. 1—90—1823
StatusPublished

This text of 593 N.E.2d 679 (All Seasons Excavating Co. v. Bluthardt) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
All Seasons Excavating Co. v. Bluthardt, 593 N.E.2d 679, 229 Ill. App. 3d 22 (Ill. Ct. App. 1992).

Opinion

JUSTICE LaPORTA

delivered the opinion of the court:

This case presents the second interlocutory appeal filed by defendants in a chancery action brought by plaintiffs, who sought an accounting, injunctive relief, and damages occasioned by the alleged misconduct of defendant, Edward Bluthardt, in relation to his position with plaintiff All Seasons Excavating Co. In this appeal, defendants challenge the trial court’s refusal to dissolve an injunction originally entered on January 13, 1989. Defendants contend that the trial judge abused her discretion by entering the injunction because plaintiffs failed to establish irreparable harm or the inadequacy of a remedy at law.

The record reveals that on January 13, 1989, plaintiffs filed a six-count complaint against defendants, asserting that Edward Bluthardt was an employee of All Seasons Excavating Co. (All Seasons) and that Bluthardt had been employed to operate the business of All Seasons at the direction of plaintiffs William and Carl Roppolo.

Count I of the complaint alleged improper and fraudulent acts by defendants, including the failure to cease activities on behalf of the company. Count II sought an accounting of amounts collected and paid by or on behalf of defendant related to the business of All Seasons and requested judgment for amounts due plus interest. Count III sought compensatory and punitive damages for fraud and breach of duty for fraudulent concealment of work performed using company equipment and for conversion of company funds. Count IV sought compensatory and punitive damages for conversion. Count V sought damages plus interest for Bluthardt’s alleged breach of a promise to repay loans totalling $12,006.66.

Count VI of the complaint, to which this appeal relates, sought to enjoin defendants from transferring or encumbering two parcels of real property owned by defendants and located in Prospect Heights, Illinois, and in Michigan, respectively. Count VI also sought damages for fraudulent inducement and breach of an oral agreement, alleging that in July 1987, defendants enlisted William Roppolo to co-sign a $70,000 promissory note pursuant to a mortgage on defendants’ residence in Prospect Heights, Illinois. Count VI alleged further that Roppolo was induced to co-sign the note by defendants’ representation that the loan was needed only until they sold their Michigan property and that the proceeds of that sale would be used to repay the $70,000 note. Count VI also asserted that defendants failed to sell the Michigan property and to keep the note co-signed by Roppolo in good standing and that the note was in default.

On January 13, 1989, the trial court granted plaintiffs’ emergency motion for an ex parte temporary restraining order prohibiting transfer or encumbrance of both parcels of real property.

On January 17, 1989, defendants filed a counterclaim against plaintiffs. In summary, the counterclaim asserted that in September 1986, Carl Roppolo, William Roppolo, and Edward Bluthardt entered into a verbal agreement to form a partnership for a land excavation business and that each partner was to have a one-third interest. The counterclaim alleged further that without Bluthardt’s knowledge or consent, Carl and William Roppolo incorporated the excavating business, assigning to themselves each a 50% share in an attempt to deprive Bluthardt of his interest in the business. The counterclaim sought a declaration of partnership, an accounting from plaintiffs, an assignment to Bluthardt of a beneficial interest in one-third of the business and its assets, compensatory and punitive damages, and payment of a sum of money or property equal to Bluthardt’s share of the partnership assets. The counterclaim also sought injunctive relief to restrain plaintiffs from taking any action with regard to the business property, to prevent its sale or transfer without court supervision, and generally to maintain the status quo while this action was pending.

On January 17, 1989, the trial court granted defendants’ motion and entered an ex parte temporary restraining order against plaintiffs, precluding them from selling, disposing of, or assigning the assets and equipment of All Seasons.

On March 14, 1989, defendants were ordered to return to plaintiffs $8,300 transferred in January 1989 from a company bank account to defendants’ personal bank account.

In April 1989, the trial court modified its order of January 13, 1989, and permitted defendants to pledge the Illinois property as security for another loan in the amount of $15,000, on the condition that the proceeds of the loan be used to repay funds which defendants had diverted from the corporate plaintiff subsequent to and in violation of the January 13, 1989, order. The court ordered further that after the diverted funds had been repaid to plaintiffs, the remaining proceeds of the loan be held in escrow by defendants’ counsel.

In July 1989, defendants, without the knowledge of the trial court or the plaintiffs, sold the Michigan property, in violation of the order entered January 13, 1989. This matter is the subject of a rule to show cause before the trial court.

On October 30, 1989, defendants filed a motion to dissolve the injunctive orders entered in April 1989. Upon the denial of that motion and of a motion for reconsideration, defendants filed the first interlocutory appeal before this court. That appeal challenged the propriety of the trial court’s order that defendants’ counsel hold in escrow the amount remaining from the proceeds of the second loan after defendants repaid the funds diverted from All Seasons’ business account.

On July 5, 1991, this court affirmed the trial court’s decision, holding that the injunctions were properly issued because the real property securing both loans was part of the subject matter of the litigation and that the court acted properly in enjoining the defendants’ activity with respect to this realty in order to maintain the status quo of the property. See All Seasons Excavating Co. v. Bluthardt (1991), 216 Ill. App. 3d 504, 576 N.E.2d 372.

On January 18, 1990, the same day on which the first interlocutory appeal was filed, defendants filed with the trial court a motion to dissolve the injunction entered January 13, 1989. This motion challenged the sufficiency of the proof presented by plaintiffs to support the issuance of the injunction.

On May 31, 1990, the trial court entered a memorandum opinion denying defendants’ motion to dissolve the January 13, 1989, injunction, finding that it was necessary to preserve the funds ordered to be held in escrow in order to preserve the status quo. The memorandum opinion noted that “[a]t the last peaceable and uncontested moment these funds and property had not been distributed. In addition, a party seeking injunctive relief need not make out a case which would entitle him to relief on the merits. Rather, he need only show that he raises a fair question about the existence of his right and that the court should preserve the status quo until the case can be decided on its merits. [Citation.] In application *** plaintiff has raised such a question.” Accordingly, the trial court denied the defendants’ motion to dissolve the existing injunction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

All Seasons Excavating Co. v. Bluthardt
576 N.E.2d 372 (Appellate Court of Illinois, 1991)
Wessel Co. v. Busa
329 N.E.2d 414 (Appellate Court of Illinois, 1975)
Keeshin v. Schultz
262 N.E.2d 753 (Appellate Court of Illinois, 1970)
Exchange National Bank v. Harris
466 N.E.2d 1079 (Appellate Court of Illinois, 1984)
Carriage Way Apartments v. Pojman
527 N.E.2d 89 (Appellate Court of Illinois, 1988)
Kanter & Eisenberg v. Madison Associates
508 N.E.2d 1053 (Illinois Supreme Court, 1987)
Gannett Outdoor of Chicago v. Baise
516 N.E.2d 915 (Appellate Court of Illinois, 1987)
K. F. K. Corp. v. American Continental Homes, Inc.
335 N.E.2d 156 (Appellate Court of Illinois, 1975)
Lindsey v. Board of Education
468 N.E.2d 1019 (Appellate Court of Illinois, 1984)
D. Nelsen & Sons, Inc. v. General American Development Corp.
284 N.E.2d 478 (Appellate Court of Illinois, 1972)
Baal v. McDonald's Corp.
422 N.E.2d 1166 (Appellate Court of Illinois, 1981)
Bartelstein v. Sorkin
574 N.E.2d 121 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
593 N.E.2d 679, 229 Ill. App. 3d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/all-seasons-excavating-co-v-bluthardt-illappct-1992.