Hurst v. Papierz

• Court: Appellate Court of Illinois
• Writing for the Court: GEORGE J. MORAN
• Citation: Hurst v. Papierz, 306 N.E.2d 532, 16 Ill.App.3d 574 (Ill. App. 1973)
• Decision Date: 18 December 1973
• Docket Number: No. 58750,58750
• Parties: Ralph HURST, Plaintiff, v. Stanley A. PAPIERZ et al., Defendants. Robert K. RAUTH, Counterclaimant-Appellee, v. Stanley A. PAPIERZ et al., Counterdefendants-Appellants.

Page 532

306 N.E.2d 532

16 Ill.App.3d 574

Ralph HURST, Plaintiff, v. Stanley A. PAPIERZ et al., Defendants.

Robert K. RAUTH, Counterclaimant-Appellee, v. Stanley A. PAPIERZ et al., Counterdefendants-Appellants.

No. 58750.

Appellate Court of Illinois, First District.

Dec. 18, 1973.

Arvey, Hodes & Mantynband, Chicago, for counterdefendants-appellants; J. Herzl Segal, Gary D. Friedman, Lawrence C. Rubin, Chicago, of counsel.

Thomas D. Nash, Jr., Robert M. Ahern, Chicago, for counterclaimant-appellee.

GEORGE J. MORAN, Justice:

Counterdefendants appeal from the following decree entered by the Circuit Court of Cook County:

'DECREE

This cause coming on to be heard on all of the pleadings herein and the Court having considered the Appellate Court Opinion, Judgment and Mandate rendered in this cause (Hurst v. Papierz, 129 Ill.App.2d 117, 262 N.E.2d 773), reversing the May 22, 1968, Decree of this Court, and the Court having considered the arguments of counsel and being fully advised in the premises, FINDS:

(A) That this Court has jurisdiction of the parties hereto and the subject matter hereof.

(B) That the Appellate Court found that the equities in this cause are with the counterclaimant, ROBERT RAUTH, and against the counterdefendants, STANLEY PAPIERZ, THERESA PAPIERZ and STANLEY PAPIERZ BUILDERS, INC. and that ROBERT RAUTH is entitled to the relief directed to be given to him by said Mandate.

(C) That the counterdefendants, STANLEY PAPIERZ, THERESA PAPIERZ and STANLEY PAPIERZ BUILDERS, INC., were found by the Appellate Court to have wrongfully and fraudulently denied ROBERT RAUTH's 30% Interest as a joint venturer in the Villa Venice apartment building complex; it was further found that since 1963 said defendants excluded ROBERT RAUTH from the operation and profits of said apartment building complex and that said counterdefendants possessed and operated said apartment buildings and refused to account to ROBERT RAUTH.

(D) That the Appellate Court found that the counterdefendants, STANLEY PAPIERZ and THERESA PAPIERZ, and the counterplaintiff ROUBERT RAUTH, were joint venturers in the real estate development known as 'Villa Venice West' and that ROBERT RAUTH owned a 30% Interest therein.

(E) That the Illinois Appellate Court, First District, directed this Court to enter a Decree as follows:

(1) directing the conveyance by Stanley Papierz Builders, Inc. to S.P. Construction, Inc. of the property described in Paragraph 11 of the Rauth Counterclaim;

(2) granting Rauth the relief sought in Paragraphs (b), (c), (d) and (e) of the prayer for relief sought in his Counterclaim;

(3) entering such further orders as may be just and equitable; and

(4) vacating its order assessing the Master's fees and reassessing them in the light of this opinion.

(F) That no Petition for re-hearing of the Decision of the Appellate Court was filed not was a petition for leave to appeal to the Illinois Supreme Court and the Mandate of the Appellate Court remanding this cause to this Court issued in the Appellate Court on January 7, 1971.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:

1. That the Decree entered herein on May 22, 1968, be and the same is hereby vacated, set aside and held for naught insofar as it dismissed the Amended Counterclaim of ROBERT RAUTH.

2. That ROBERT RAUTH is hereby decreed to be the owner of a 30% Interest in the real estate development known as 'Villa Venice West' as represented by his ownership of 30% Of the outstanding common stock of S.P. Construction, Inc.

3. That defendants, STANLEY A. PAPIERZ, THERESA PAPIERZ, STANLEY PAPIERZ BUILDERS, INC., and any other person, firm or corporation asserting any interest in the following described property shall forthwith convey to S.P. Construction, Inc., a corporation, said premises located in the Village of La Grange, Illinois:

Lots 1 to 48 in Block One and Block Eight in First Addition to West Chicago, being a Subdivision of that part of the West one- half of the South East one-quarter of Section 9, Township 38 North, Range 12, lying North of Vial Road (so called) in Cook County, Illinois.

Said conveyance shall be and is intended to include all of the real property, buildings, garages, outbuildings and all other structures appurtenant to and comprising a part of the apartment building complex known as 'Villa Venice West' and located as aforesaid.

4. From and after the entry of this Decree, all income, receipts, revenues and proceeds thereafter derived from the operation of 'Villa Venice West', in whatsoever form, and all assets, including cash on hand, shall become the property of S.P. Construction, Inc.

5. Michael P. Giambrone is hereby appointed Receiver to manage 'Villa Venice West' until further order of this Court. Said Receiver shall be paid for his services the usual and customary charges paid therefor in the metropolitan Chicago area from the gross collections made by him from 'Villa Venice West'. Said Receiver shall be responsible for the collection of all rentals and payment of all expenses. No extraordinary payments for capital improvements, or otherwise, shall be made by the Receiver without the consent of the parties hereto, and failing such consent, by order of Court. Said Receiver shall submit to the parties a monthly statement with respect to his operation and conduct of 'Villa Venice West.'

6. From and after the entry of this Decree, all parties hereto shall be and they are hereby enjoined and restrained, until further order of this Court, from paying or disbursing any proceeds derived from the operation of 'Villa Venice West' to any person, firm, or corporation other than S.P. Construction, Inc., excepting the Receiver for the purposes hereinabove described in paragraph 5.

7. That from and after the entry of this Decree and until further order of this Court, S.P. Construction, Inc. is enjoined and restrained from paying any salaries, dividends, fees, allowances, or emoluments of any kind or description to any of the parties hereto, their transferees or assigns.

8. That S.P. Construction, Inc. is, from and after the date of this Decree, enjoined and restrained from expending or employing any of its income, assets, or funds in connection with the litigation herein involved, or any other subsequent related cause, whether by way of attorneys' fees, court costs, or otherwise.

14. That the Order heretofore entered herein denying the motion of Robert Rauth to dismiss the petition for an equitable lien filed in October of 1971 by Stanley Papierz, Theresa Papierz, S.P. Construction, Inc. and Stanley Papierz builders, Inc. be and the same is hereby vacated, set aside and held for naught. That said petition for an equitable lien be and the same is hereby denied inasmuch as matters contained in said petition were not raised in either the Trial Court or the Appellate Court and the relief sought therein was not provided for in the Mandate of the Appellate Court.

This Order is without prejudice to the rights of said defendants as set forth in their petition for equitable lien.

15. Thst Stanley Papierz, Theresa Papierz and Stanley Papierz Builders, Inc. are jointly and severally liable to Robert Rauth for the following sums and shall pay same to him forthwith:

Bill of Costs taxed by Clerk of
                Appellate Court, First District
                in re Hurst v. Papierz, et al
                No. 53331 ..................      $   624.30
                                                    1,431.25
                                                  ----------
                               Total              $ 2,055.55
                

* * *.'

Counterdefendants first contend that the trial court had no authority to order an accounting because paragraph (g) of Rauth's complaint prayed for an accounting and this court in the prior appeal of this case did not grant that request. They argue that counterplaintiff's prayer for an accounting was barred by the doctrine of 'res judicata'. However, we are not concerned here with the doctrine of res judicata but with a doctrine known as 'law of the case'.

'The doctrine that a determination of a question of law made by an appellate court in the course of an action becomes 'the law of the case' and may not be disputed by a reopening of the question at a later stage of the litigation is similar, analogous, and akin to the doctrine of res judicata, and has many things in common therewith. Both doctrines are founded on a public policy against reopening that which has previously been decided. However, the doctrine of the law of the case is not identical with the doctrine of res judicata, but differs in many important respects, and is distinguishable therefrom. * * * ' 46 Am.Jur.2d, Judgments, par. 400, pgs. 567--68.

One of the differences is pointed out in 5B C.J.S. Appeal and Error § 1822, page 191, where it states that the rule of the law of the case is applicable only when the same point was decided on a previous appeal, while the doctrine of res judicata applies to all questions which might have been litigated under the issues formed in the case as well as those actually decided. Therefore under the doctrine of the law of the case, the trial court was not precluded from ordering an accounting even though this issue was presented to but not decided by us in our prior opinion.

However, we believe that the plain language of our prior opinion did empower the trial court to order an accounting if he thought that this should be done. In our previous decision, we held that Rauth had been defrauded by counterdefendants. Accordingly, we reversed and remanded this case to the trial court with directions to enter a decree ordering certain specific relief and for 'such orders as may be just and equitable.' This manifested a clear intent to grant certain specific relief to Rauth while leaving great discretion with the trial court to do complete justice and finally dispose of all aspects of the case. This would include the power to order an accounting and the use of any other legal tool to finally resolve this case.

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