Epstein v. Chatham Park, Inc.
| Decision Date | 24 June 1959 |
| Docket Number | No. 303,1955,303 |
| Citation | 52 Del. 56,2 Storey 56,153 A.2d 180 |
| Parties | , 52 Del. 56 Norman EPSTEIN and Minnette Pilot Epstein, Plaintiffs, v. CHATHAM PARK, INC., a Delaware corporation, George H. Dovenmuehle, George H. Dovenmuehle, Jr., Elizabeth D. Rothermel, Theodore H. Buenger, Edna D. Buenger, Richard E. Buenger, Lester Crown, Robert Crown, John Crown, Gladys Crown, Leon Mandel, Howard M. Goodspeed, C. Wallace Johnson, Inc., an Illinois corporation, Leonard Gordon, Julius J. Schwartz, Victor Nemeroff, Arnold H. Maremont, David E. Bright, Benjamin E. Mittelman, Samuel E. Mittelman, Franklin-Adams Company, an Illinois corporation, and Cottage 83 Company, a Delaware corporation, Defendants. |
| Court | Delaware Superior Court |
Norman Epstein and Minnette Pilot Epstein, pro se.
William S. Megonigal, Jr., of Morris, Nichols, Arsht & Tunnel, Wilmington, Frank C. Bernard, Chicago, Ill., of counsel, for defendants.
1
This action was commenced on April 4, 1955 by foreign attachment. The attachments resulted in the seizure of substantial property of the appearing defendants, still held in custodia legis. On December 3, 1956 the defendants moved for summary judgment on the basis of an Illinois decree alleged to be a bar to the maintenance of the action.
Subsequently the action became a contest between the defendants seeking to bring on for decision their motion for summary judgment and the plaintiffs seeking to delay decision on that motion until after the completion of certain discovery and garnishment proceedings. This contest has resulted in a court file of over 200 separate motions, petitions and affidavits. However, nothing of any consequence has been decided.
It would serve no useful purpose to catalogue the varied maneuvers and charges of prejudice, fraud and conspiracy that have been made. It will suffice to say that the ultimate result of these procedural tactics was the voluntary disqualification of all the Judges of the Superior Court for the reason that their impartiality had been made impossible, and the present assignment.
After reviewing the voluminous record, I concluded that the defendants' motion for summary judgment should be brought on for decision since, in my opinion, it raised a legal defense which might be a bar to further prosecution of the case. This opinion is the decision on that motion. 2
The complaint sets out two separate causes of action growing out of the sale and purchase of an apartment house project in Chicago, of which Chatham Park, Inc. (hereafter Chatham), defendant herein, was owner. The plaintiffs claim to be entitled to usual real estate brokers' commissions in the amount of $121,250. In addition, they claim a fee of $100,000 for having procured a mortgage loan used by the purchaser to consummate the purchase.
Plaintiffs' version of the circumstances surrounding the claim for the brokers' commission is that Chatham engaged them to find a purchaser for the project, agreeing to pay the usual commission. The plaintiffs procured a group of purchasers who organized Cottage 83 Company (hereafter Cottage), defendant herein, which consummated the purchase for $3,875,000. Prior to the consummation of the purchase, the purchasing group agreed to pay the plaintiffs' commission, which obligation was assumed by Cottage, but Chatham nevertheless guaranteed payment of the plaintiffs' commission.
With respect to the claim for the procuring fee, the plaintiffs' version is that the purchasing group, acting through two of its members, Benjamin E. Mittelman and Samuel E. Mittelman, (hereafter Mittelmans), non-appearing defendants herein, agreed with them that if they procured a mortgage loan in the amount of $2,800,000 to be used in the purchase, the purchasers would pay the plaintiffs a fee of $100,000. Cottage thereafter assumed this obligation. The plaintiffs claim to have procured the mortgage loan.
As parties defendant, the plaintiffs joined Chatham, Cottage, and twenty other defendants, among whom were included all the members of the purchasing group which organized Cottage, the ultimate purchaser. Also named as a defendant was a Chicago broker, Howard M. Goodspeed (hereafter Goodspeed).
Writs of attachment were issued as a result of which shares of stock in Chatham and Cottage, Delaware corporations, standing in the names of some of the defendants were seized. As a result, the owners of the stock appeared generally in the cause. Among the defendants whose property has not been seized and who have thus not appeared are the Mittelmans. 3 Since that time the plaintiffs have persistently sought discovery to prove their contention that the Mittelmans are beneficial owners of Cottage stock, and that, as such, they have property in Delaware subject to attachment. 4 The plaintiffs argue that jurisdiction over the Mittelmans is necessary to the decision of the cause.
By answer of Chatham and Cottage, latter adopted by all of the appearing defendants, a different version of the circumstances surrounding the matter is alleged. The defendants assert that Chatham authorized the Chicago real estate broker, Goodspeed, defendant herein, to obtain a purchaser for the project upon the express conditions that Chatham would not be responsible for any commission and that Goodspeed would look solely to any purchaser for his commission. Goodspeed thereupon associated himself with another Chicago broker, Norman Shogren, (hereafter Shogren). 5 Thereafter, upon the plaintiffs' representation to Shogren that they had a prospective purchaser, the four brokers agreed to work together upon the sale, agreeing that they would collect their commission from the ultimate purchaser. On several occasions thereafter the four brokers agreed specifically with Chatham that it would not be liable for any commission.
Prior to the consummation of the purchase, the four brokers agreed with the purchasing group ultimately formed that it would pay a single commission of $75,000.00 to the four brokers jointly, as full compensation for their complete services. The obligation thus agreed upon was assumed by Cottage. The defendants deny that the plaintiffs procured a mortgage loan used in the purchase and, in any event, aver that the single commission of $75,000 covered all services performed by the brokers.
As an affirmative defense the appearing defendants interposed a decree of the Circuit Court of Cook County, Illinois, entered in an action entitled, Cottage 83 Company, et al. v. Norman Epstein, et al., General No. 55C5585, as a bar to the maintenance of this action in Delaware. In addition to pleading the Illinois decree 6 the defendants, by affidavit, supplemented the Delaware record with authenticated portions of the Illinois record and moved for summary judgment.
The action in Illinois raised as a bar was commenced by Cottage and Chatham as an action in the nature of interpleader by reason of a demand made by Goodspeed and Shogren, two of the four brokers involved in the transaction, for payment of brokerage commissions allegedly due them for their services in connection with the purchase and sale f the apartment project.
The complaint filed in Illinois alleges the same circumstances surrounding the purchase and sale of the project as are alleged in the answer herein. Cottage admitted liability for brokerage commissions in the total amount of $75,000 and prayed for leave to deposit that sum in court together with a bond in the amount of $100,000 conditioned upon payment of any amount in excess of $75,000 which might be awarded the four brokers. To induce the Illinois court to take jurisdiction, Cottage alleged the pendency of this action in Delaware and the absence here of an indispensable party, viz., Shogren.
The Illinois court took jurisdiction of the cause. All the parties thereupon pursuant to order interpleaded among themselves with the exception of the plaintiffs here who, although served personally with process in Illinois, let the matter go by default. 7 The Circuit Court referred the cause to a Special Master whose report was confirmed by a decree entered July 3, 1956. From this decree one of the plaintiffs here, Minnette Pilot Epstein, appealed to the Supreme Court of Illinois. The appeal was later dismissed, apparently for failure to perfect the record. Finally, on March 1, 1957, the Circuit Court of Illinois denied a motion by the Delaware plaintiff, Minnette Pilot Epstein, to vacate the order of default and the decree of July 3, 1956.
The motion for summary judgment, based as it is upon the undisputable fact of a properly authenticated record of an Illinois court, raises only questions of law for decision. There is no factual issue with respect to the decree. I conceive these questions to be two, viz., first, is the Illinois decree, on its face, under the doctrine of res judicata, a bar to the maintenance of this action, and, second, if it is such a bar, must it be sustained against collateral attack by the plaintiffs in this action. I will consider these questions in the order stated.
The doctrine of res judicata is common to all civilized systems of jurisprudence, and is based upon the salutary concept that the solemn decision of a competent court upon a disputed state of facts should forever set the controversy at rest. It embodies a rule of public policy that courts as well as litigants should have rest and repose from the vexatious renewal of the same law suit. Without the doctrine court systems would become impotent to perform their most important function, that of ascertaining and enforcing rights, for without it litigation would be endless. The doctrine rests upon the reasonable premise that a party who has once litigated, or has had the opportunity to litigate, the same matter before a court of competent jurisdiction, must thereafter hold his peace.
The doctrine of res judicata, briefly stated, is that a final judgment upon the merits rendered by a...
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...vexatious suits once all parties have been given a fair opportunity to litigate a controversy. See id.; Epstein v. Chatham Park, Inc., 52 Del. 56, 153 A.2d 180, 183 (Del.Super.1959) (Justice Wolcott, sitting by designation); see also 18 C. Wright, A. Miller, & E. Cooper, Federal Practice an......
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