Torcasso v. Standard Outdoor Sales, Inc.

• Decision Date: 16 December 1993
• Docket Number: No. 74218,74218
• Citation: 626 N.E.2d 225,193 Ill.Dec. 192,157 Ill.2d 484
• Parties: , 193 Ill.Dec. 192 Vince TORCASSO, d/b/a Mazz Media, Appellant, v. STANDARD OUTDOOR SALES, INC., et al., Appellees.
• Court: Illinois Supreme Court

Page 225

626 N.E.2d 225

157 Ill.2d 484, 193 Ill.Dec. 192

Vince TORCASSO, d/b/a Mazz Media, Appellant, v. STANDARD OUTDOOR SALES, INC., et al., Appellees.

No. 74218.

Supreme Court of Illinois.

Dec. 16, 1993.

James A. Rooney, Chicago, for appellant.

Stanley J. Horn, Chicago, for appellees.

Justice HARRISON delivered the opinion of the court:

The plaintiff, Vince Torcasso, doing business as Mazz Media (Torcasso), brought suit on March 14, 1989, against the defendants, Standard Outdoor Sales, Inc. (Standard), and Richard Swoboda (Swoboda), alleging ultimately in his amended complaint the breach of a brokerage contract and fraud. Approximately one year earlier Standard had brought suit successfully against Torcasso to recover a commission alleged to be due under the terms of the brokerage contract. On the basis of both res judicata and collateral estoppel, the circuit court of Cook County granted the defendants' motion brought under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) to dismiss Torcasso's amended complaint. Affirming (232 Ill.App.3d 500, 173 Ill.Dec. 798, 597 N.E.2d 772), the appellate court concluded that the doctrine of res judicata barred Torcasso's suit. Pursuant to Supreme Court Rule 315 (134 Ill.2d R. 315), this court granted Torcasso leave to appeal. For reasons that follow we reverse the judgment of the appellate court and remand the cause of action to the circuit court for further proceedings.

Section 2-619 furnishes a mechanism for the disposition of issues of law or easily proved issues of fact. (Sjogren v. Maybrooks, Inc. (1991), 214 Ill.App.3d 888, 891, 158 Ill.Dec. 182, 573 N.E.2d 1367.) Section 2-619(a)(4) ( 735 ILCS 5/2-619(a)(4) (West 1992)) provides that, within the time for pleading, a defendant may file a motion for dismissal of the cause of action upon the ground that the cause is barred by a prior judgment. In ruling upon a motion to dismiss brought pursuant to section 2-619, the trial court may properly consider, among other things, both pleadings and depositions. Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill.App.3d 227, 232, 134 Ill.Dec. 256, 542 N.E.2d 435.

In the prior suit by Standard against Torcasso, Standard alleged that on approximately May 15, 1984, Standard entered into an oral agreement with Torcasso to act as Torcasso's representative in the selling of advertising space on an outdoor sign owned by Torcasso. Standard alleged further that the contract provided that it was to receive a commission for procuring an advertiser who would use the space, that it did procure such an advertiser, and that Torcasso received $2,150 per month as gross advertising revenue. Standard alleged finally that in response to its demand for the commission Torcasso refused to pay "all of the commission due and owing, leaving a balance of $2,050.00 plus interest." Standard prayed for judgment in the amount of the balance together with interest and costs.

In his answer to Standard's complaint in the prior suit, Torcasso admitted that Standard had demanded a commission in the amount of $2,050 and that he had refused to pay a commission but denied that any commission was due and owing to Standard. As an affirmative defense, Torcasso alleged that the parties to the oral contract of May 15, 1984, had terminated the contract by mutual agreement on or about October 15, 1984, at which time Standard had not procured an advertiser for the sign. Torcasso alleged further that no advertiser was found for the sign until March 25, 1985, when Torcasso leased the sign to Delta Sonic Car Wash Systems (Delta) for a term of six months at a monthly rate of $1,300. Defendant sought dismissal of the complaint with prejudice. Following a trial the circuit court entered judgment on November 16, 1988, in favor of Standard and against Torcasso in the amount on $3,400.

As stated above, Torcasso brought the instant suit about four months later on March 14, 1989. In his two-count amended complaint he alleges in the first count, for breach of contract, that the defendants breached the brokerage agreement by failing to use their best efforts to lease the west side of the sign. He seeks damages in the amount of $12,000. In that count Torcasso makes the following allegations. The defendant Swoboda holds himself out as the president and sole shareholder of the defendant Standard. On or about April 30, 1984, Torcasso and the defendants entered into a contract whereby the defendants would be employed as a broker to seek tenants for Torcasso's sign, which was to be rented at a net monthly rate to Torcasso of $1,500 per side. In June of 1984 Larry Roesch Chevrolet, Inc., approached Torcasso about renting the west side of the sign, and in response Torcasso advised the representative to contact the defendants to see whether the sign had been rented. When the representative did so, Richard Swoboda told this person that the west side of the sign had been rented through the defendants' efforts to R.J. Reynolds Tobacco Company (Reynolds) under a three-year contract. At the time of this statement, however, the west side of the sign had been rented to no one. Shortly thereafter Torcasso called Swoboda, asking him whether the west side of the sign had been rented to Reynolds; in response Swoboda told Torcasso that he had a firm commitment from Reynolds and that all that remained to be done was the "paperwork." In June of 1984 a representative of Leslie Oldsmobile-Volkswagen, Inc., approached Torcasso about renting the west side of the sign, but because of Swoboda's earlier representations to Torcasso plaintiff advised the representative that he was awaiting a written contract from Reynolds. The west side of the sign remained unleased until March 25, 1985, when Torcasso himself leased that side of the sign to Delta.

In the second count of his amended complaint, for fraud, Torcasso makes many of the same allegations but alleges further as follows. When, in June of 1984, the sign had been rented to no one and that fact was known to the defendants, the statement by Swoboda to the representative of Larry Roesch Chevrolet, Inc., was a fraudulent misrepresentation designed to prevent the leasing of the sign to anyone other than the defendants' usual and customary clients. Similarly, the representation by Swoboda to plaintiff that he had a firm commitment from Reynolds to rent the sign and that only routine formalities remained to be performed was an untrue statement known to be untrue when Swoboda made it and was a fraudulent misrepresentation made to prevent the leasing of the sign by anyone other than the defendants' clients. As a result of his reliance upon these fraudulent misrepresentations, Torcasso did not attempt to lease the sign to either Larry Roesch Chevrolet, Inc., or Leslie Oldsmobile-Volkswagen, Inc. Plaintiff seeks compensatory damages in the amount of $12,000 and punitive damages in the amount of $20,000.

The record indicates that in the prior lawsuit Standard sought and recovered from Torcasso a commission arising out of the lease of the west side of the sign to Reynolds. Of the record in the earlier suit only the pleadings and judgment are included in the record for our review. There is no record of what transpired at trial in the previous suit. Attached as an exhibit to the defendants' motion to dismiss Torcasso's amended complaint in the present suit under section 2-619 is the deposition of Torcasso taken for purposes of discovery in the prior suit. In this deposition Torcasso stated that although Reynolds eventually rented the west side of the sign, it did not do so until October of 1985, after the expiration of the six-month lease with Delta in September of that year. Torcasso himself rented the west side of the sign to Reynolds at that time, he said, although Swoboda had discussed a lease of this side of Torcasso's sign with that company's agent approximately one year before Torcasso called Reynolds' agent about leasing the sign. Torcasso expressed his understanding that the sales relationship between the defendants and himself was a nonexclusive one, adding that Swoboda had told him, however, "that a three-year contract was a lot better than a one-year contract, and that I shouldn't rent [the sign]."

Following hearings the circuit court granted the defendants' motion to dismiss the plaintiff's amended complaint and denied Torcasso's motion to reconsider. Torcasso appealed without avail, the appellate court concluding that at the heart of both the prior and the present lawsuits is a single group of operative facts, namely, the performance of the brokerage agreement. The evidence needed to sustain the present suit, the appellate court said, would have controlled the outcome of the prior one.

Torcasso contends that the cause of action in the prior lawsuit by Standard to recover a broker's commission is not the same cause of action as the present one and that, as a consequence, the doctrine of res judicata is inapplicable in bar of the instant suit. In the alternative, Torcasso maintains that in ruling that res judicata bars an action that could have been but was not pleaded as a counterclaim in the prior action between the parties, the appellate court has misconstrued the plain meaning of two sections of the Code of Civil Procedure having to do with the use and pleading of counterclaims, specifically, section 2-608(a) and section 2-614(a) (735 ILCS 5/2-608(a), 2-614(a) (West 1992)).

Under the doctrine of res judicata, a final judgment rendered on the merits by a court of competent jurisdiction is conclusive as to the rights...