Notaro v. Nor-Evan Corp.

456 N.E.2d 93, 98 Ill. 2d 268, 74 Ill. Dec. 591, 1983 Ill. LEXIS 473
CourtIllinois Supreme Court
DecidedOctober 21, 1983
Docket57289
StatusPublished
Cited by43 cases

This text of 456 N.E.2d 93 (Notaro v. Nor-Evan Corp.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Notaro v. Nor-Evan Corp., 456 N.E.2d 93, 98 Ill. 2d 268, 74 Ill. Dec. 591, 1983 Ill. LEXIS 473 (Ill. 1983).

Opinions

JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Nor-Evan Corporation, appealed from the order of the circuit court of Cook County denying its motion to dismiss the action for declaratory judgment filed by plaintiff, Michael R. Notaro, and to require plaintiff to proceed to arbitration of certain claims made by defendant. In a Rule 23 order (87 Ill. 2d R. 23), the appellate court reversed (107 Ill. App. 3d 1168), and we allowed plaintiff’s petition for leave to appeal (87 Ill. 2d R. 315).

In plaintiff’s complaint, it was alleged in count I that plaintiff sold his 90% of the outstanding stock of the National Bank of North Evanston to defendant’s predecessor in interest. Under the purchase agreement, plaintiff assumed a contingent obligation to rebate a portion of the purchase price of the stock based on certain “loss items,” including “problem loans.” The agreement detailed the procedures to be followed by the buyer with respect to the identification of, and efforts to collect, the “problem loans.”

Plaintiff alleged that article IV of a supplemental agreement executed by the parties required defendant, within 90 days of the December 31, 1975, closing, to provide plaintiff with a list, prepared by a “national” firm of certified public accountants, of potential problem loans; that defendant did not furnish him with a copy of that list until June 15, 1977; that under article IV of the supplemental agreement, defendant was required to provide a second list of problem loans by December 31, 1976, and failed to furnish that list until October 30, 1978; that defendant breached the provisions of article IV by failing to use its best efforts from January 1, 1976, through December 31, 1978, to collect potential problem loans; and that defendant is asserting a claim based on the “problem loans” provisions of the agreement. The complaint asks that a declaratory judgment be entered that plaintiff has been “discharged from all contractual duties and obligations” to defendant.

In count II plaintiff alleged that defendant has advised him that it intends to initiate arbitration proceedings. Plaintiff asks that a hearing be held pursuant to section 2 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 102) and that the court enter judgment holding that there is no valid and enforceable arbitration agreement between the parties.

Defendant moved to dismiss and to compel arbitration. The circuit court, holding that the subject matter of the present action was not within the scope of the arbitration provision of the agreement, denied defendant’s motions.

During oral argument before this court, we raised, sua sponte, the question whether the circuit court order was an appealable order and requested the parties to submit briefs. It appears that the appellate court, analogizing an order to compel or deny arbitration to an order granting or denying a temporary injunction, has held such orders to be appealable under Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)), which in pertinent part provides:

“An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction; ***.”

See Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145.

Title 28 U.S.C. section 1292(a) (1976) provides:

“The courts of appeal shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States *** granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” This section has also been interpreted to permit appeals from orders granting or refusing a stay of proceedings pending arbitration. (C. Itoh & Co. (America) Inc. v. Jordan International Co. (7th Cir. 1977), 552 F.2d 1228, 1230 n.2; Zell v. Jacoby-Bender, Inc. (7th Cir. 1976), 542 F.2d 34, 35-36.) We hold that the order denying defendant’s motion to compel arbitration was an appealable order.
Paragraph B of article VIII of the agreement, as amended, provides the procedure for determining “Problem Loans.” Although count I of the complaint contains a number of allegations which are conclusional in nature, it alleges failure to comply with paragraph B in that plaintiff was not furnished copies of lists of potential problem loans and that defendant did not cause the bank to use its best efforts to collect such loans. Paragraph C of article VIII provides in pertinent part:
“C. The amount of the ‘Loss Items’ shall be equal to the sum of:
* * *
(ii) the total amount due and owing to the Bank on the Problem Loans described in Paragraph B of this Section VIII.”

Paragraphs F and G provide:

“F. If, at any time, the Purchaser has any claim or claims against the Seller pursuant to Paragraph C of this Section VIII, the Purchaser shall promptly notify the Seller thereof, in writing, specifying the amount and nature of such claim or claims. Thereafter, the Seller may object to any such claim or claims by giving written notice thereof to the Purchaser within thirty (30) days after receipt from the Purchaser of notice of such claim or claims. If the Seller shall fail so to object within said period of thirty (30) days, such failure shall constitute an acceptance by the Seller of liability for such claim or claims. If the Seller shall object to any such claim or claims and such objection is not resolved between the parties within sixty (60) days after the date on which such objection is received by the Purchaser, or such longer period as the parties may both agree on, then the arbitration procedure set forth in Paragraph G of this Section VIII of this Agreement shall be followed and the award rendered by the Arbitrator shall be conclusive and binding on all of the parties concerned. For any claim or claims accepted by the Seller or for any claim or claims that the Seller is determined to be liable pursuant to said arbitration procedure, the Seller shall make payment as provided for in Paragraph D of this Section VIII as is required by the circumstances.
G.

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Cite This Page — Counsel Stack

Bluebook (online)
456 N.E.2d 93, 98 Ill. 2d 268, 74 Ill. Dec. 591, 1983 Ill. LEXIS 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/notaro-v-nor-evan-corp-ill-1983.