Thorne v. Elmore

398 N.E.2d 837, 79 Ill. App. 3d 333
CourtAppellate Court of Illinois
DecidedJanuary 11, 1980
Docket78-124
StatusPublished
Cited by13 cases

This text of 398 N.E.2d 837 (Thorne v. Elmore) 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
Thorne v. Elmore, 398 N.E.2d 837, 79 Ill. App. 3d 333 (Ill. Ct. App. 1980).

Opinions

Mr. JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from a judgment entered on a jury verdict awarding plaintiff, Maxwell E. Thome, a licensed real estate broker, *50,000 in broker’s commission in the sale and exchange of property owned by defendants, Midlothian Real Estate Corporation and Midlothian Motors, Inc. The action was originally brought against the two corporate defendants, John W. O’Donnell, now deceased, who controlled the corporations, and Elbert F. Elmore, who was O’Donnell’s attorney and is also a licensed real estate broker. O’Donnell’s estate was substituted as a party prior to trial, and the trial court directed a verdict in its favor at the close of the evidence. The trial court also granted directed verdicts in Elmore’s favor on two counts in which Thome had alleged Elmore’s tortious interference with contractual and business relationships. The jury rendered a verdict of *17,000 against Elmore and *16,500 against each corporate defendant, and Elmore and the corporate defendants have appealed from the judgment entered on that verdict. Thome has cross-appealed from the directed verdicts granted Elmore on the two tortious interference counts.

On appeal, Elmore contends that (1) a purchaser of real estate is not liable for a brokerage commission in the absence of a special agreement; (2) the complaint was insufficient as a matter of law to provide a basis for liability for commissions; (3) Thome did not establish a prima facie case against Elmore; (4) the judgment against him is contrary to the evidence; (5) the damages awarded by the jury have no basis in the record; (6) the admission of Thorne’s exhibit No. 43 into evidence was prejudicial; (7) Elmore was prejudiced by Thome’s closing arguments; and (8) the jury was improperly instructed. The corporate defendants have also raised issues regarding: (1) whether the judgment is against the manifest weight of the evidence; (2) whether the amount awarded Thome is unsupported by the evidence; and (3) whether conduct of Thome’s counsel was prejudicial. In his cross-appeal, Thome contends that there are distinct causes of action for interference with a contractual relationship and interference with a business expectancy, and that he established a prima facie case against Elmore as to both causes of action.

We find for the defendants on both the appeal and cross-appeal. The pertinent facts follow.

O’Donnell had formed Midlothian Motors and Midlothian Real Estate, being president and holding a controlling interest in both corporations. Midlothian Motors owned a parcel of land on which Royal Chrysler was located. Midlothian Real Estate owned Muncaster Dodge. (The corporate defendants will hereinafter be referred to, respectively, as “Royal” and “Muncaster.”) Royal and Muncaster were located on the same city block in Midlothian, Illinois. Elmore had a long-standing relationship with O’Donnell and had represented O’Donnell when he acquired Muncaster and Royal.

Thome was a real estate broker who was in the business of discovering and selling tax shelter investments. He had had no business dealings with O’Donnell before September 1971, when he was referred to O’Donnell by a third party. After contacting O’Donnell three times by phone, a meeting was set for November 9, 1971, at O’Donnell’s office at Jack O’Donnell Chevrolet. The meeting lasted about an hour and David Evans and Robert Schuler, corporate officers at the time, were in attendance. Both Evans and Schuler were called to testify on Thome’s behalf. Evans stated that he met Thome only once when Thome came to O’Donnell’s office. After being introduced to Thorne, Evans left the meeting. He saw Thorne at O’Donnell’s office two or three other times but never spoke to him. Schuler also testified that he met Thorne only once, at a November 1971 meeting in O’Donnell’s office. He said it was “very likely” that O’Donnell was also present. The sale of Muncaster and Royal were discussed at the meeting, although to his knowledge they weren’t for sale before the meeting. He never saw Thorne in O’Donnell’s presence after that meeting.

Objections to Thorne’s testimony as to what transpired at the November 9,1971, meeting were sustained because of O’Donnell’s death. Thome made an offer of proof that, in the presence of Schuler and Evans, O’Donnell indicated to Thorne that he was interested in Thome’s proposal to sell Muncaster and Royal. According to Thorne’s offer of proof, the November 9, 1971, meeting was to discuss mortgages, notes and leases on Muncaster and Royal, which Thorne had asked O’Donnell to have ready. Thome said he would study the documents and propose a deal.

Thome’s next meeting with O’Donnell was on November 23, 1971. No one else was present and no testimony of the meeting was admitted. Following the meeting Thorne drafted two agreements which would make him O’Donnell’s exclusive agent for the sale of the Muncaster and Royal properties. Thome took the proposed agreements to O’Donnell on December 1, 1971, then took the still unsigned documents to Elmore the same day. It was the first meeting between Thorne and Elmore, who had had a long-standing social relationship with O’Donnell in addition to being his attorney. The unsigned agreements were left with Elmore and, according to Elmore, were never discussed again.

According to Thorne’s testimony, he told Elmore at their first meeting that he would be selling Muncaster and Royal for O’Donnell for which he would receive a commission of $25,000 for each parcel. Elmore, however, testified that he informed Thome that neither property could be sold outright because of tax considerations and referred Thome to O’Donnell’s accountant. At the time of the meeting, Elmore stated, he was aware that Thorne had an exclusive listing agreement to sell a parcel of land for William F. Butler, and Thorne and Elmore discussed the possibility of trading Muncaster and Royal for the Butler property. Thome testified that he had entered into the exclusive agreement with Butler on November 26, 1971.

Thorne also testified that he and Elmore next met on December 8, 1971. It was a long meeting, beginning at Elmore’s office and continuing at lunch. During the meeting O’Donnell’s property was discussed in detail, and Elmore expressed an interest in it. Thome and Elmore also discussed Thome’s business in general, as well as potential investors that Elmore knew. The Butler property was also discussed.

His next meeting with Elmore, Thome continued, was on December 11, 1971, when Elmore presented a contract with several contingencies, making an offer for the Butler property and saying that he would also be willing to buy Royal. Elmore told Thome that he should go ahead and sell Muncaster, that Elmore would act as the escrow agent in the purchase and exchange of property, and that Thome should not worry about his commission.

According to Elmore, the next meeting after December 1 was on December 11,1971. The meeting began in his office and extended through lunch. At the meeting Elmore submitted the contract for the purchase of Butler’s property which he had prepared following the first meeting with Thome. Thome asked Elmore about the proposed exclusives with O’Donnell for Royal and Muncaster and Elmore repeated that they weren’t signed and couldn’t be signed.

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Cite This Page — Counsel Stack

Bluebook (online)
398 N.E.2d 837, 79 Ill. App. 3d 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorne-v-elmore-illappct-1980.