Harris v. Handmacher

542 N.E.2d 77, 185 Ill. App. 3d 1023, 134 Ill. Dec. 77, 1989 Ill. App. LEXIS 993
CourtAppellate Court of Illinois
DecidedJune 29, 1989
Docket1-88-1541
StatusPublished
Cited by7 cases

This text of 542 N.E.2d 77 (Harris v. Handmacher) 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
Harris v. Handmacher, 542 N.E.2d 77, 185 Ill. App. 3d 1023, 134 Ill. Dec. 77, 1989 Ill. App. LEXIS 993 (Ill. Ct. App. 1989).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Abner Harris, deposited $250,000 in a bank as security for the debts of the Handmacher Company, Inc. Defendants, Philip and Betty Handmacher and Irving and Sandra Waxman, also secured the debts of the corporation. The business subsequently petitioned for bankruptcy and the bank seized Harris’ deposit.

Harris brought an action in the circuit court of Cook County against defendants. Harris sought, inter alia, contribution from all defendants. The trial court granted summary judgment for Harris on his contribution claim and subsequently entered judgment against Irving and Sandra Waxman totalling $67,342 as their contribution.

Harris thereafter claimed that the Waxmans were insolvent and sought a redetermination of Philip Handmacher’s proportionate share. The trial court denied Harris the motion for redetermination and Harris appeals from the denial.

We affirm the order of the trial court.

Background

A

The record contains the following pertinent facts. Beginning in 1959, Harris and Philip Handmacher sold ladies’ clothing and accessones in and around Chicago under the name of “Handmoor.” At first they were co-owners in a partnership, then later became shareholders of the Handmacher Company, Inc. In 1981, Harris sold his shares in the corporation and thereafter served the corporation occasionally as a consultant.

The Handmacher Company, Inc., borrowed money from the Continental Illinois National Bank. By February 1984, the corporation owed the bank $2,773,603. Continental refused to lend more money to the corporation unless it received sufficient collateral. On February 21, 1984, Harris deposited and pledged $250,000 with the bank, which in turn loaned the corporation additional funds.

On August 10, 1984, the corporation filed a petition for bankruptcy. (See 11 U.S.C. §1101 et seq. (1982).) The outstanding balance on the corporation’s debt to the bank was $2,321,751. On that day, the parties made several agreements with the bank regarding the debt. Harris repledged his $250,000; Philip Handmacher and Irving Waxman each signed an unlimited guaranty; Philip and Betty Handmacher pledged their Chicago residence; and Irving and Sandra Wax-man pledged their Highland Park residence.

Beginning November 29, 1984, the bank applied the following capital to the corporate debt: the Harris pledge, the proceeds from the sale of the corporation’s assets, and the proceeds from the sale of the Handmachers’ Chicago residence. The Waxmans made no payment to the bank under either their pledge or Irving’s guaranty.

B

Harris filed a two-count complaint against defendants on December 14, 1984. In count I, Harris alleged that he and defendants are either coguarantors or copledgers of the debts of the corporation, and that he paid more than his proportionate share of the common debt, as compared to that of defendants. In count II, Harris sought reimbursement solely from Philip Handmacher, based on Handmacher’s alleged oral promise to repay Harris the amount of his pledge.

On November 26, 1986, Harris moved for summary judgment against the Waxmans on count I of the complaint, which the trial court granted on March 30, 1987. On April 8, Harris filed another motion for summary judgment on count I, this time against the Handmachers. On July 17, the trial court granted Harris summary judgment against all defendants. Also in the judgment, the trial court ruled that it would determine the relative percentages of contribution as of August 10, 1984, and that the contribution would be based on a debt of $2,321,751.

On August 19, 1987, the trial court determined the actual amounts of defendants’ contribution to Harris. The court entered judgment against Sandra Waxman in the amount of $17,982, and Irving Waxman in the amount of $49,360. The trial court found that Philip and Betty Handmacher had paid their proportionate shares; Harris, therefore, was not entitled to contribution from either of them. The court made no special findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

On March 3, 1988, Harris filed a motion to redetermine Philip Handmacher’s contribution. Harris alleged that the Waxmans were insolvent. He included with his motion an affidavit by Irving and Sandra Waxman purporting to establish a prima facie case of their insolvency. He further alleged that Betty Handmacher was a pledger rather than a guarantor, and that she had paid the full amount of her pledge. Philip Handmacher, however, was a guarantor. Therefore, his proportionate share of contribution should be recalculated as if the Waxmans did not participate.

Handmacher contested Harris’ motion to redetermine his (Handmacher’s) contribution. He argued: (1) the court’s August 19, 1987, order was a settlement agreement and, therefore, was binding on all parties, and (2) the doctrine of law of the case, or alternatively, equitable estoppel, prevented Harris from seeking a redetermination.

On April 20, 1988, the trial court denied Harris’ motion for a re-determination of Philip Handmacher’s contribution. The court found that the August 19, 1987, order was not a settlement agreement. Rather, the court established the guidelines which the parties used to calculate their proportionate shares, based on stipulations only as to the dates and amounts of the pertinent obligations. The court also found, however, that the August 19 order contained no contingency for redetermination, and that the Waxmans’ affidavit failed to make a prima facie showing of insolvency. The court lastly found no just reason to delay the enforcement or appeal of its order. (See 107 Ill. 2d R. 304(a).) Harris appeals from the denial of his motion.

Opinion

I

The general principles of contribution that govern between cosureties also govern between coguarantors. (Golsen v. Brand (1874), 75 Ill. 148, 150.) If any one or more of a number of coguarantors of a debt is required to pay the whole or any portion of the debt, the co-guarantors become liable to contribute their proportionate share of the amount paid. A court presumes that all coguarantors should contribute equally to the discharge of any liability occurring by reason of the guaranty. Coguarantors that are insolvent are excluded in determining the proportions. This liability to contribute arises not from any contract, but from equitable principles. The presumption that all guarantors should contribute a proportionate share of the amount paid may be rebutted by parol evidence. McDavid v. McLean (1903), 202 Ill. 354, 357, 66 N.E. 1075, 1076; see generally Restatement of Restitution §85 (1936).

II

Harris contends that the trial court’s August 19, 1987, order, which determined the amounts of defendants’ contribution, was open to revision. We agree. However, we also agree with the trial court that Harris failed to make the requisite showing to warrant the revision.

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542 N.E.2d 77, 185 Ill. App. 3d 1023, 134 Ill. Dec. 77, 1989 Ill. App. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-handmacher-illappct-1989.