{ "id": 2599354, "name": "AARDVARK ART, INC., Plaintiff-Appellee, v. LEHIGH/STECK-WARLICK, INC., Defendant-Appellant", "name_abbreviation": "Aardvark Art, Inc. v. Lehigh/Steck-Warlick, Inc.", "decision_date": "1991-04-16", "docket_number": "No. 2\u201490\u20140441", "first_page": "492", "last_page": "496", "citations": [ { "type": "official", "cite": "212 Ill. App. 3d 492" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "158 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3577362 ], "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0478-01" ] }, { "cite": "64 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3331517 ], "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0719-01" ] }, { "cite": "2 Ill. App. 2d 370", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5126529 ], "weight": 5, "pin_cites": [ { "page": "375" }, { "page": "376" }, { "page": "377" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0370-01" ] } ], "analysis": { "cardinality": 563, "char_count": 10361, "ocr_confidence": 0.763, "pagerank": { "raw": 5.473656196398451e-08, "percentile": 0.34330534328449264 }, "sha256": "95a3f8510d332a91660f42aebad917e2dfb565886d9fbb0b62c1c6c3a392f912", "simhash": "1:1f7537a8cc6d1db8", "word_count": 1603 }, "last_updated": "2023-07-14T15:59:33.778469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "AARDVARK ART, INC., Plaintiff-Appellee, v. LEHIGH/STECK-WARLICK, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe defendant, Lehigh/Steck-Warlick, Inc. (Lehigh), appeals from a $1,695,833 jury verdict for the plaintiff, Aardvark Art, Inc. (Aardvark). The defendant raises several issues regarding the trial wherein Aardvark sought to recover its alleged diminished corporate value and its estimated loss of future profits. We reverse and remand.\nThe facts elicited during trial are as follows. In 1974, Gerald McGlothlin started a business called Able Art (Able) to sell framed art reproductions to department stores. In 1978, McGlothlin formed Aardvark as a separate division of Able to sell unframed prints. In 1981, McGlothlin incorporated Aardvark as a separate entity.\nThe businesses were organized so that McGlothlin, on behalf of Aardvark, contracted with artists for reproduction rights to their artwork. He then took the artwork to a service that would process the image into \u201ctransparencies\u201d or \u201ccolor separations.\u201d McGlothlin returned the original art to the artist and took the color separations to a printer for reproduction. Aardvark sold the art reproductions.\nBefore Aardvark was separately incorporated, Able owned the business\u2019 supply of color separations. When McGlothlin incorporated Aardvark in 1981, Able transferred all of its ownership interest in the business\u2019 color separations to Aardvark.\nIn 1979 or 1980, Lehigh\u2019s president, Gus Ivkovic, began soliciting Abie\u2019s business \u201cunder their Aardvark *** division.\u201d Lehigh possessed a state-of-the-art press which would allow it to do both color separation and printing for Able. Lehigh agreed to take the original artwork, to separate its colors, and then to print prints. Lehigh agreed to \u201copen credit terms\u201d with Able.\nIn the spring of 1981, McGlothlin sought to place a 100-page catalog of Aardvark\u2019s color separations in the July annual master issue of \u201cDecor\u201d magazine. McGlothlin discussed his marketing plan and the catalog printing deadline with Ivkovic. It was agreed that Lehigh would make miniature color separations of Abie\u2019s and Aardvark\u2019s prints.\nLehigh did not meet the original deadline for the \u201cDecor\u201d magazine insertion. However, \u201cDecor\u201d delayed its publication and Aardvark\u2019s advertisement was published. Aardvark received an \u201cavalanche\u201d of orders, and McGlothlin arranged with Lehigh that Lehigh produce and deliver 100,000 prints from color separations by August 10,1981.\nThe prints were not ready by August 10, but were completed five to six weeks thereafter. By then many of Aardvark\u2019s customers had cancelled their print orders. Furthermore, McGlothlin testified that the quality and color reproduction of the finished prints were \u201cpoor.\u201d Although he accepted the prints, he complained to Lehigh about their untimeliness and poor quality. Lehigh\u2019s final printing bill for the catalog was $46,116.45. Lehigh had originally quoted a fee of $29,000 for printing the catalog.\nIn October 1981, McGlothlin wrote to Lehigh, disputing the bill and informing Lehigh of his substantial losses he claimed were a result of Lehigh\u2019s failure to meet deadlines, the poor quality of the prints, and the catalog problems. In March 1982, McGlothlin and his attorney met with Lehigh to discuss past-due invoices and allowances for bad colors or late print delivery. Lehigh refused to return Aardvark\u2019s color separations until McGlothlin paid its entire bill.\nOn March 31, 1982, Aardvark sought a preliminary injunction to retrieve its color separations from Lehigh; the trial court denied Aardvark\u2019s request. Aardvark then filed both contract and tort claims for damages it allegedly had suffered as a result of Lehigh\u2019s withholding the color separations. Lehigh filed a counterclaim seeking payment for its printing services. Aardvark\u2019s claim for tort relief was dismissed prior to trial.\nAt the trial, McGlothlin opined that Aardvark\u2019s profits had suffered \u201ctremendously\u201d as a result of Lehigh\u2019s actions. He opined that sales declined because Lehigh had withheld the color separations. Also, McGlothlin estimated that from mid-1982 through 1988, Aardvark suffered lost profits of $5.2 million as a direct consequence of Lehigh\u2019s actions. He further opined that Aardvark would continue to lose profits because it \u201cwas in essence, ruined\u201d since Lehigh refused to return the color separations. According to McGlothlin, it would cost Aardvark $200,000 to replace the color separations that Lehigh retained. He calculated that Aardvark had suffered a $2,882,950 loss of future profits.\nAardvark\u2019s certified public accountant, Steven Remy, testified that Aardvark had a diminished value as a result of its problems with Le-high. He testified that he considered five years of Aardvark\u2019s actual pretax operating results, omitted reference to lost profits, and calculated that Aardvark\u2019s corporate value was diminished $559,483 by Le-high\u2019s \u201cinterference.\u201d\nAt the close of Aardvark\u2019s case, Lehigh moved for a directed finding on the issue of damages for future lost profits. The trial court granted the motion, ruling that Aardvark\u2019s evidence .of future lost profits, given only through McGlothlin, was insufficient to establish the basis for those lost profits. However, the court denied Lehigh\u2019s request to immediately admonish the jury to disregard evidence of future lost profits. The trial court also denied Lehigh a directed verdict on the question of the diminution of Aardvark\u2019s value.\nPlaintiff\u2019s exhibit No. 36, which showed McGlothlin\u2019s calculations of Aardvark\u2019s lost profits and value diminution, was admitted into evidence. However, the trial court did not allow the exhibit to go to the jury because it referred, in part, to lost profits. The trial court specifically ruled that regarding Aardvark\u2019s value diminution, the parties could argue from the exhibit and from the testimony.\nDuring closing arguments, Aardvark\u2019s counsel argued, over Le-high\u2019s objection, that the jury could award damages between the $559,483 that Remy estimated as the business\u2019 diminished value, and the $2,882,950 that McGlothlin calculated as lost profits. The jury was not instructed to disregard the evidence of lost profits. However, it was instructed that Aardvark\u2019s \u201crecovery is limited to the diminished value of the company.\u201d The jury returned a verdict of $1,695,833 for Aardvark. After the court denied Lehigh\u2019s post-trial motion, this appeal followed.\nLehigh\u2019s first argument on appeal is that the trial court erred in failing to inform the jury of the directed finding precluding Aardvark\u2019s recovery of any future lost profits. Lehigh argues that the trial court\u2019s failure to admonish the jury to disregard McGlothlin\u2019s testimony of future lost profits constitutes prejudicial error warranting a new trial. We note that Aardvark has not challenged the trial court\u2019s directed finding on the lost profit issue.\nNeither party cites an Elinois case that directly holds that fa\u00fcure to advise a jury of a directed finding is reversible error. However, we find the case of Rudolph v. City of Chicago (1954), 2 Ill. App. 2d 370, to be of assistance. In Rudolph, the trial court allowed the plaintiff to introduce evidence charging the defendant\u2019s attorney\u2019s subornation of penury. (2 Ill. App. 2d at 375.) Although it later became clear that the subornation of perjury charge was baseless, the trial court did not instruct the jury to disregard the testimony. 2 Ill. App. 2d at 376.\nOn appeal, the Rudolph court found reversible error because of the trial court\u2019s failure to adequately inform the jury. It observed the following:\n\u201cAfter it was apparent to the court that counsel for the plaintiff had no basis for his charge of subornation of perjury by defendant\u2019s counsel, the court should have instructed the jury that it should not consider the testimony introduced by the plaintiff on this charge, and thereafter should not have permitted that matter to becloud the issues before the jury.\u201d 2 Ill. App. 2d at 377.\nWe find that under these circumstances, as in Rudolph, the trial court committed reversible error by not adequately informing the jury. The trial court never specifically informed the jury that it had directed a finding on the issue of lost profits. The jury had heard McGlothlin\u2019s testimony estimating Aardvark\u2019s lost profits to be $2,882,950 and Aardvark\u2019s argument for. damages based on that figure. The highest estimate of Aardvark\u2019s damages, disregarding the opinion of the value of lost profits, was Remy\u2019s estimate of $559,483. Since the jury\u2019s verdict of $1,695,833 exceeded any amount it could have reasonably awarded Aardvark if it had not been influenced by the evidence of lost future profits, the insufficiency of the instruction to the jury is apparent. Although the jury was instructed that recovery was limited to the company\u2019s diminished value, the jurors clearly were confused on the issues.\nIf a fair trial is to be had before laymen jurors, the issues must be presented fairly and simply. (Rudolph, 2 Ill. App. 2d at 377; Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 730.) We find that the fairness of this trial was compromised when the jurors were insufficiently instructed. We find, consequently, that the case, on the issue of damages only, must be retried. (See American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 488.) Based on our decision to reverse and remand, we need not address Lehigh\u2019s other claimed errors.\nThe decision of the circuit court of Du Page County is reversed, and the cause is remanded for a new trial on the issue of damages only.\nReversed and remanded.\nMcLAREN and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "Howard R. Wertz and Frank J. DeSalvo, both of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, David A. Shapiro, of Poliak & Hoffman, Ltd., of Chicago, and Irving S. Segal and John E. McKeever, both of Schnader, Harrison, Segal & Lewis, of Philadelphia, Pennsylvania, for appellant.", "Robert E. Jones, of Greene, Jones & Brisske, of Wheaton, Kathleen T. Zellner, of Naperville, Robert G. Black, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, for appellee." ], "corrections": "", "head_matter": "AARDVARK ART, INC., Plaintiff-Appellee, v. LEHIGH/STECK-WARLICK, INC., Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140441\nOpinion filed April 16, 1991.\nModified on denial of rehearing May 30, 1991.\nHoward R. Wertz and Frank J. DeSalvo, both of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook, David A. Shapiro, of Poliak & Hoffman, Ltd., of Chicago, and Irving S. Segal and John E. McKeever, both of Schnader, Harrison, Segal & Lewis, of Philadelphia, Pennsylvania, for appellant.\nRobert E. Jones, of Greene, Jones & Brisske, of Wheaton, Kathleen T. Zellner, of Naperville, Robert G. Black, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, for appellee." }, "file_name": "0492-01", "first_page_order": 514, "last_page_order": 518 }