{ "id": 5299053, "name": "BLACKMAN KALLICK BARTELSTEIN, a Partnership, et al., Plaintiffs-Appellants, v. SAMUEL M. SORKIN et al., Defendants-Appellees", "name_abbreviation": "Bartelstein v. Sorkin", "decision_date": "1991-05-21", "docket_number": "No. 1\u201489\u20142651", "first_page": "663", "last_page": "674", "citations": [ { "type": "official", "cite": "214 Ill. App. 3d 663" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "218 P.2d 91", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "97 Cal. App. 2d 482", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2279087 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/97/0482-01" ] }, { "cite": "71 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449192 ], "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0510-01" ] }, { "cite": "58 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953527 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0289-01" ] }, { "cite": "177 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3622209 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "637" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0628-01" ] }, { "cite": "58 Ill. 2d 20", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953248 ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0020-01" ] }, { "cite": "116 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3518714 ], "pin_cites": [ { "page": "966" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0959-01" ] }, { "cite": "78 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074641 ], "weight": 7, "pin_cites": [ { "page": "547" }, { "page": "547" }, { "page": "550" }, { "page": "547" }, { "page": "547" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0534-01" ] }, { "cite": "199 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467496 ], "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0710-01" ] }, { "cite": "26 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2786461 ], "weight": 2, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0806-01" ] }, { "cite": "141 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238428 ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0122-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 28270, "ocr_confidence": 0.791, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.3400418325547165 }, "sha256": "4dc2a13c75609663cc25dd9923f1a950813ba8af3790cc7bdf162210016607c4", "simhash": "1:472bbd2459dbccd4", "word_count": 4638 }, "last_updated": "2023-07-14T20:26:06.259068+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BLACKMAN KALLICK BARTELSTEIN, a Partnership, et al., Plaintiffs-Appellants, v. SAMUEL M. SORKIN et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE SCARIANO\ndelivered the opinion of the court:\nPlaintiffs, Blackman Kallick Bartelstein and Blackman Kallick and Company, Ltd. (BKB), appeal from (1) the circuit court\u2019s denial of injunctive relief which they sought against defendants; (2) the court\u2019s refusal to impose a constructive trust upon an asset acquired by defendant Samuel M. Sorkin (Sorkin) in connection with an alleged breach of his fiduciary duty; and (3) an order dismissing defendant DiPietro from the case.\nThe following evidence was adduced at the hearing on BKB\u2019s motion for a preliminary injunction. Although its promotional materials describe it as an accounting firm, BKB\u2019s witnesses testified that it also makes investments and advises clients of potential investment opportunities. In 1984, BKB hired Sorkin as an accountant, specializing in taxation. While the record is not clear how often it occurred, BKB did, during the period of Sorkin\u2019s employment with the firm, present its clients with investment opportunities, and BKB itself, on at least one occasion, invested as a firm in a limited partnership. In its complaint, BKB alleged that it had a \u201cregular practice\u201d of \u201cconsidering\u201d investments as a firm; but while BKB\u2019s managing partner, Harvey Kallick, testified that the firm had \u201cconsidered\u201d six investments over the last 10 years, three other partners testified that there was no such practice. BKB admitted in its answers to interrogatories that it had never told Sorkin about this alleged \u201cregular practice.\u201d Two partners, including Kallick, admitted to having made investments for themselves after having learned about them from clients without first offering them to the firm.\nBKB\u2019s \u201cAdministrative Manual,\u201d which it distributed to its employees, including Sorkin, stated:\n\u201cWe expect you to devote your best efforts to the firm\u2019s work; therefore, do not undertake outside work. Exceptions to this requirement need advance approval of the Managing Partner.\u201d\nBKB also required employees to make entries on a form provided by the firm entitled \u201cManagement By Objectives\u201d (MBO); the form included one column headed \u201cPush Acquisitions for Clients.\u201d Sorkin never indicated anything as to \u201cPush Acquisitions for Clients\u201d on his MBO forms, and although he met almost every month with his superior to review the forms, it seems never to have been an issue between employer and employee.\nIn September 1986, Larry Ginsburg, an auditor in the employ of BKB, asked Sorkin for tax advice concerning the proposed sale of a company that did business under the name of \u201cGrendel\u2019s Rapid Oil Change\u201d (Grendel\u2019s). Ginsburg testified that Grendel\u2019s was his own client and that he did not bill the accounting work he did for that enterprise through BKB.\nSorkin testified that before he agreed to help Ginsburg on the Grendel\u2019s transaction, Ginsburg told him that Kallick knew about and approved of Ginsburg\u2019s outside practice. In his testimony, Ginsburg denied that he had said that Kallick approved of the outside practice, but admitted that he told Sorkin that Grendel\u2019s was too small a client for BKB to handle. The testimony also disclosed that BKB had a practice of referring clients to other accounting firms if they could not afford to pay its standard rates; however, Sorkin testified that he was not aware of any policy that a $375,000 transaction, the amount involved in the Grendel\u2019s deal, was too small for BKB to handle. Sorkin ultimately billed Grendel\u2019s $950, which is more than BKB had billed some clients he had brought into the firm.\nIn September of 1986, when Sorkin learned from Ginsburg that the impending sale of Grendel\u2019s had fallen through, Ginsburg invited Sorkin to invest in Grendel\u2019s with him. They agreed to purchase it and formed defendant G & S Rapid Oil Change, Inc., and defendant G & S Real Estate Co., a partnership (collectively G & S). The sale of the business and real estate closed on October 31, 1986. Sorkin left BKB in December of 1986. In February 1988, Ginsburg sold his share in G & S to defendant James DiPietro, and a year later, Ginsburg disclosed the Grendel\u2019s deal to Kallick.\nBKB filed its complaint in three counts on March 30, 1989. Count I sought declarations that, as an agent and employee of BKB, Sorkin breached his fiduciary duties of loyalty and fair dealing by working secretly for Grendel\u2019s, failing to advise BKB of the Grendel\u2019s investment opportunity, and investing for himself in Grendel\u2019s. BKB further requested a ruling holding it to be the equitable owner of a one-half interest in G & S. Count II prayed for an injunction preventing distribution of G & S\u2019 income or assets, the imposition of a constructive trust requiring Sorkin to turn over to BKB his share of G & S, and an accounting of Sorkin\u2019s profits from G & S. Count III sought an accounting under the disloyal servant doctrine to recover from Sorkin all salary he earned while he was allegedly disloyal to BKB.\nThe trial court granted BKB\u2019s motion for a temporary restraining order on March 31, 1989. During the hearing on the motion for a preliminary injunction, DiPietro moved under section 2 \u2014 1110 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1110) for judgment in his favor, arguing that he was an innocent third party and should not be held accountable for Sorkin\u2019s and Ginsburg\u2019s alleged misconduct. The court granted DiPietro\u2019s motion.\nOn June 29, 1989, in a memorandum opinion handed down from the bench, the trial judge denied BKB\u2019s motion for a preliminary injunction, holding that BKB did not show irreparable harm or that it did not have an adequate remedy at law, and that Sorkin was under no fiduciary duty to report business opportunities to BKB. The court found that there was notably absent in the administrative manual any requirement that employees bring investment opportunities to BKB\u2019s attention, nor did any other document corroborate BKB\u2019s asserted practice of considering opportunities presented by clients; thus, \u201cBKB did not engage in a regular practice of considering business investments for themselves, but did so, if at all, on an informal and infrequent basis ***, not governed by any firm policy, [and] not communicated to its non-partner employees.\u201d Finally, as to BKB\u2019s alleged practice of seeking out business opportunities in order to present them to its clients, the court stated only that it \u201cis not a basis for imposing a constructive trust on Sorkin.\u201d\nOn July 13, 1989, the trial judge dissolved the TRO. On July 28, 1989, defendants filed an interlocutory appeal, requesting\n\u201cthat the appellate court order the circuit court to decide defendants-appellants\u2019 motions to dissolve nunc pro tunc [the TRO] to June 29, 1989, prior to the pronouncement and Memorandum of Opinion denying the preliminary injunction, as had been requested by defendants-appellants, to preserve defendants-appellants\u2019 right to petition the circuit court for damages pursuant to Illinois Code of Civil Procedure section 11\u2014110, for wrongful issuance of the temporary restraining order.\u201d\nThe circuit court entered an order on August 3, 1989, denying defendants\u2019 request for a finding of wrongful issuance; granting DiPietro\u2019s section 2 \u2014 1110 motion for a finding at the close of BKB\u2019s case in chief; and denying plaintiffs\u2019 motion for a preliminary injunction.\nOn August 11, 1989, BKB filed an \u201cinterlocutory cross-appeal and appeal\u201d from:\n\u201c(1) The Order of August 3, 1989 denying Plaintiffs\u2019-Cross-Appellants\u2019 motion for preliminary injunctive relief and granting the section 2 \u2014 1110 oral motion of Defendant-Appellant James DiPietro for a directed finding at the close of plaintiff\u2019s case;\n(2) The Order of July 13, 1989 dissolving the Temporary Restraining Order previously entered in this case on March 31, 1989;\n(3) The Memorandum of Opinion of June 29, 1989 ***.\u201d\nOn September 6, 1989, defendants moved to voluntarily dismiss their own appeal, and the trial court granted the motion on September 11, 1989. On September 12, 1989, judgment was entered against BKB and in favor of the defendants on count I \u201cwith respect to Sorkin\u2019s purported breach of fiduciary duty by purchasing Grendel\u2019s\u201d and in favor of defendants with respect to count II. Also on September 12, 1989, defendants filed a motion to dismiss BKB\u2019s interlocutory appeal, alleging that this court lacked jurisdiction because BKB filed the record late under Rule 307. (134 Ill. 2d R. 307(a).) On September 22,1989, BKB filed another notice of appeal from:\n\u201cThe Order of September 12, 1989 entering (a) Judgment in favor of Defendants on Count I of the Verified Complaint with respect to Defendant Sorkin\u2019s alleged breach of fiduciary duty by purchasing Grendel\u2019s Rapid Oil Change; and (b) Judgment in favor of Defendants on Count II of the Verified Complaint.\u201d\nOn September 26, 1989, defendants\u2019 motion to dismiss BKB\u2019s appeal was taken with the case and its two appeals were later consolidated. Also on September 26, 1989, and on November 20, 1989, this court granted BKB extensions of time to file the record on appeal which resulted in its being filed by stipulation on December 20, 1989.\nDefendants allege that BKB\u2019s first appeal should be dismissed because it improperly cross-appealed from an interlocutory order. Defendants add that \u201cBKB\u2019s attempt to appeal from denial of the preliminary injunction and related orders in its second Notice of Appeal *** should also be dismissed because an interlocutory order appealable as of right must be appealed, if at all, pursuant to Rule 307,\u201d and that a party\u2019s failure to appeal an interlocutory order reviewable under Rule 307 within 30 days of its entry \u201crenders that order the law of the case and that part of the resulting judgment res judicata.\u201d\nDefendants stated in their notice of interlocutory appeal that they were appealing \u201cfrom the Memorandum of Opinion entered [s-ic] June 29, 1989, and the court\u2019s oral pronouncement on June 29, 1989.\u201d However, under Supreme Court Rule 307(a) (134 Ill. 2d R. 307(a)), an interlocutory appeal may be taken only \u201cfrom the entry of the interlocutory order\u201d (emphasis added) (see Granite City Lodge No. 272 v. City of Granite City (1990), 141 Ill. 2d 122), and defendants clearly did not appeal from the entry of any order. But before any issue arose over this court\u2019s jurisdiction over their \u201cappeal,\u201d and after BKB had filed its \u201cNotice of Interlocutory Cross-Appeal and Appeal,\u201d defendants voluntarily dismissed their appeal. Therefore, as defendants acknowledge in their reply in support of their motion to dismiss BKB\u2019s first appeal, \u201cBKB\u2019s Notice [of interlocutory cross-appeal and appeal] should be interpreted as a direct appeal from the only orders BKB admits it could appeal: those entered on July 13 and August 3.\u201d (See Board of Education v. Chicago Teachers Union, Local 1 (1975), 26 Ill. App. 3d 806, 809 n.1.) Subsequently, on October 10, this court consolidated BKB\u2019s August 11, 1989, appeal with its appeal from the September 12, 1989, order. Clearly, then, BKB\u2019s August 11 appeal, as consolidated with its later appeal, is properly before this court. Furthermore, in light of the clear provisions of Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), we fail to comprehend defendants\u2019 confusion over the propriety of BKB\u2019s filing of an appeal, whatever its denomination, in the wake of their own. We perceive no requirement that BKB\u2019s had to be a separate appeal, bearing its own case number, after which it could have moved to consolidate the two appeals, as defendants suggest. Significantly, however, they advance no authority for such a proposition.\nContrary to defendants\u2019 alternative contention, BKB\u2019s entire August 11, 1989, appeal was timely, having been filed within 30 days of both the July 13, 1989, order dissolving the TRO and the August 3, 1989, order denying BKB a preliminary injunction and dismissing DiPietro from the case. And also contrary to Sorkin\u2019s allegations, the 30-day period begins to run from the time the order is entered, not when the memorandum of opinion was filed. (134 Ill. 2d R. 307 (a).) Indeed, the trial judge\u2019s memorandum of opinion ends with the command to counsel: \u201cDraft order instanter consistent with the above opinion,\u201d thus eliminating any thought that he was entering an order by the issuance of his memorandum, which is clearly stamped as having been merely \u201cfiled.\u201d\nDefendants\u2019 additional claim that this court does not have jurisdiction of this cause for the reason that BKB failed to file the record within the required time is also without warrant, for they are abundantly aware that BKB was properly granted extensions of time by this court for that purpose pursuant to Supreme Court Rule 307(a). (134 Ill. 2d R. 307(a).) Consequently, defendants\u2019 motion to dismiss which was taken with the case is denied. We also deny BKB\u2019s request for the imposition of sanctions on defendants in light of its own confusion, demonstrated in its \u201cNotice of Interlocutory Cross-Appeal and Appeal.\u201d\nIn order to be entitled to a preliminary injunction, \u201ca plaintiff must show (1) a clear right or interest needing protection, (2) the absence of an adequate remedy at law, (3) irreparable harm if the injunction is not granted, and (4) a reasonable likelihood of success on the merits [citations].\u201d (Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 718.) In denying BKB a preliminary injunction, the trial court held that it had an adequate remedy at law and that it would suffer no irreparable harm if it were not granted injunctive relief; accordingly, on motion of defendants, and without objection, the court entered judgment for defendants \u201con count I with respect to Sorkin\u2019s purported breach of fiduciary duty by purchasing Grendel\u2019s.\u201d The court further declined \u201cto enter judgment on that part of count I alleging the performance of accounting work for Grendel\u2019s without compensation to BKB as well as all of the issues alleged in count III.\u201d Finally, the court entered judgment in favor of defendants on count II as to all of the issues raised therein. Without objection, Supreme Court Rule 304(a) language was included in the judgment order with respect to the court\u2019s holdings as to counts I and II, thus making the judgment final by agreement of the parties. On appeal, BKB does not challenge the trial court\u2019s findings of fact, nor does it raise any issue in its briefs as to the trial court\u2019s holdings with respect to the existence of an adequate remedy at law and the absence of irreparable harm, insofar as they relate to Sorkin\u2019s \u201cmoonlighting.\u201d We are therefore bound to the standard only of whether the trial court has misconstrued or misapplied the law pertinent to the issues it has decided.\nBKB contends that the holding of the trial judge \u201csquarely conflicts\u201d with the opinion of our supreme court in Mullaney, Wells & Co. v. Savage (1980), 78 Ill. 2d 534, arguing that under the holding of that case, Sorkin must be held to have violated his fiduciary duties of fair dealing and loyalty to his employer when he learned of a valuable investment through his agency and took advantage of it for his personal gain. In Savage, \u201cthe plaintiff\u2019s business operations included both the occasional making of investments on its own account *** and acting, for a fee, as a broker between businesses in need of funds and potential investors.\u201d (78 Ill. 2d at 547.) Defendant Savage learned, in the course of his employment, of an opportunity to purchase a company\u2019s stock, which he acquired without notifying his employer, the plaintiff. The appellate court held that Savage did not violate any fiduciary obligation to plaintiff because Savage\u2019s contractual duties were limited to those transactions in which plaintiff acted as a broker, \u201csince in the court\u2019s view the only compensation above his base pay to which he was entitled was a share of brokerage fees. Since the [transaction at issue] did not involve a brokerage fee, it was not within the scope of his contractual duties.\u201d 78 Ill. 2d at 547.\nThe supreme court found the appellate court\u2019s analysis to be \u201cdefective\u201d for having incorrectly construed the parties\u2019 employment agreement as limiting Savage\u2019s compensation to the sharing of brokerage fees; the contract called, instead, for a division between the parties of the net profits earned by plaintiff\u2019s industrial financing division headed by Savage, and the supreme court held that the term \u201cnet profits *** could also include profits made by the plaintiff in [transactions it had engaged in] for its own account.\u201d The supreme court found that Savage had performed some work in connection with one such transaction unrelated to the disputed one, and that Savage was not credited with any share of the profits realized by the plaintiff on that matter because Savage had not originated the deal. The supreme court went on to hold that Savage had violated his fiduciary duties by acquiring the stock without first notifying plaintiff. 78 Ill. 2d at 550.\nIt cannot escape notice, from a reading of Savage, that the defendant there had scienter that his employer was in the business of making investments of its own besides bringing \u201cbusinesses in need of funds and potential investors\u201d together. (Savage, 78 Ill. 2d at 547.) That both the appellate court and the supreme court so found is clear from their references to the nature of the employer\u2019s business: \u201c[Plaintiff's business operations included both the occasional making of investments on its own account ***, and acting, for a fee, as a broker between businesses in need of funds and potential investors ***.\u201d (Savage, 78 Ill. 2d at 547.) As we have noted earlier, the supreme court parted company with the appellate court in the matter of interpreting the role played by the compensation paid by Mullaney, Wells to Savage, i.e., whether it was in the form of brokerage fees or net profits; and since the contract of employment called for net profits, that term was held by the higher court to include profits made by the plaintiff in transactions it entered into for its own account. Notice to Savage was further held to plainly exist in the fact that he had very early in his employment participated in his employer\u2019s purchase of the entire outstanding stock of an enterprise through the exercise of stock options acquired from its stockholders \u2014 a transaction very similar to the one Savage had engaged in for his own account. Hence, the supreme court\u2019s comment that \u201c[t]he situation is in principle indistinguishable from that of a real estate broker engaged to sell property owned by his principal who, without full disclosure of all material facts, acquires an interest in the property himself.\u201d Savage, 78 Ill. 2d at 549.\nHere, the trial judge found that Sorkin was not notified in any way of BKB\u2019s alleged practice of making investments as a firm, and held that, thus, the duty to notify BKB of an investment opportunity was not within the scope of Sorkin\u2019s agency. Although Kallick testified that the firm \u201cconsidered\u201d investments on six occasions, several other partners of the firm testified that they were not aware of any practice of making investments as a firm. The court further found that the administrative manual of some 200 pages that BKB distributed to its employees made no mention of the firm\u2019s alleged practice of making investments; that no other document imposed \u201cany obligation upon its employees to bring to its attention business opportunities in which it could invest\u201d; that BKB\u2019s minutes indicated that in the 10-year period prior to the filing of its lawsuit, the firm acted upon only one investment opportunity, as to which there is no indication that Sorkin had any knowledge; indeed, the record is clearly to the contrary, for in BKB\u2019s answers to interrogatories it stated that it never notified Sorkin of its asserted practice of investing on its own account. Further, the court distinguished Savage on the basis that there the defendant\u2019s \u201cemployer was in the business of finance and investments for the benefit of third person clients and/or for the benefit of itself. BKB was in the business of providing accounting services, not in the business of making firm investments in client businesses.\u201d (Emphasis is the court\u2019s). We agree with the trial judge\u2019s analysis of Savage and his conclusion that it has no applicability to the case at bar.\nBKB also contends that because Sorkin would not have known about the investment opportunity in Grendel\u2019s but for his violation of the administrative manual\u2019s provision against doing work for nonfirm clients, he should not be able to profit from such activities. However, BKB overlooks that the trial court purposely reserved making any finding as to whether the allegations contained in BKB\u2019s complaint were true that Sorkin \u201cdid not devote full time to BKB business\u201d; that he did not, as he was required, \u201cbring in Grendel as a client to the BKB firm\u201d; and that he kept the fee he charged \u201cfor work done for Grendel which fee rightfully belonged to BKB.\u201d The court further stated that the resolution of the question of whether these acts, if proved, were wrongful would \u201chave to await a trial on the merits or be resolved in another forum.\u201d Accordingly, BKB begs the question in making its \u201cbut for\u201d argument; and since it is not the function of this court to make factual determinations, we must, per force, decline to decide this issue. Board of Education v. Chicago Teachers Union, Local 1 (1975), 26 Ill. App. 3d 806, 813.\nHowever, even if BKB were to prove that Sorkin wrongfully moonlighted, we agree with the trial judge\u2019s conclusion that it would not be entitled to a constructive trust. Although the imposition of such a trust for BKB\u2019s benefit might be appropriate if Sorkin had a duty to present investment opportunities to it, as we have noted above, Sorkin plainly did not have such a duty. Therefore, it would be highly inequitable to confer trustee status upon BKB\u2019s theory that since Sorkin was subject to a work rule that required him to refrain from moonlighting, he consequently had a duty to bring in clients to the firm, and that had he complied with this duty, BKB would have heard of the Grendel\u2019s opportunity and would have taken advantage of it. Even if we accept such reasoning, we would be constrained to hold that the link between Sorkin\u2019s moonlighting and his taking advantage, to BKB\u2019s detriment, of the Grendel\u2019s opportunity is too laden with tortuous attenuations to warrant the award of equitable relief. See Labarbera v. Labarbera (1983), 116 Ill. App. 3d 959, 966.\nBKB cites Kerrigan v. Unity Savings Association (1974), 58 Ill. 2d 20, which dealt with \u201ccorporate opportunities,\u201d as holding that the fiduciary duties of a director are similar to those of an agent. However, it cannot be gainsaid that the corporate opportunity doctrine, which involves directors, is more exacting than the fiduciary obligations of an employee; thus, Kerrigan does not apply. (See Radiac Abrasives, Inc. v. Diamond Technology, Inc. (1988), 177 Ill. App. 3d 628, 637.) In Radiac, the plaintiff, citing Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, alleged that the defendants, as employees of the plaintiff, had fiduciary duties that were the same as those of officers or directors of a corporation. However, as in the case before us, \u201c[defendants *** were neither officers nor directors, and Vendo is therefore distinguishable.\u201d (177 Ill. App. 3d at 637.) It is to be noted also that BKB\u2019s counsel acknowledged at the hearing before the trial court that this is not a corporate opportunity case.\nFinally, BKB argues:\n\u201cAlthough, as shown above, Savage does not require proof of an employer\u2019s investment history, BKB attempted to present, in the alternative, substantial evidence that when it declined opportunities to invest on its own account it would offer those opportunities (1) to its clients and/or (2) to its shareholder-principals, i.e., the \u2018partners\u2019 at BKB. The trial court allowed evidence as to the first category, but then refused to consider it in its ruling because \u2018it is not a basis for imposing a constructive trust on Sorkin.\u2019 [Citation.] The Court excluded all evidence in the second category. [Citation.] These rulings were incorrect as a matter of law because the trial court required, on the one hand, that BKB show that it had a practice of considering investment opportunities, yet the trial court refused, on the other hand, to consider much of BKB\u2019s evidence in support of this practice.\u201d\nDefendants contend, however, as to BKB\u2019s offering investment opportunities to its clients, that it has waived the issue because although it was pleaded in BKB\u2019s reply, it was not mentioned at all in its complaint. However, \u201c[a]n objection that an issue was not raised in the pleadings may be waived by the conduct at the trial of the objecting party or by introduction of evidence on the issue.\u201d (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 518.) While Sorkin\u2019s counsel argued in the trial court that the issue was not raised in the complaint, both parties addressed the matter in their opening statements, in their arguments on DiPietro\u2019s motion to dismiss, in their closing arguments, and in the testimony of various witnesses; thus, the point is appropriately before this court.\nReverting now to the merits, BKB, as noted above, contends that even if it is held not to have had \u201can employer\u2019s investment history,\u201d the trial court improperly excluded and disregarded evidence \u201cthat when it declined opportunities to invest on its own account it would offer those opportunities (1) to its clients and/or (2) to its shareholder-principals, i.e., the \u2018partners\u2019 at BKB.\u201d (Emphasis added.) \u201cIn hiding Grendel\u2019s from BKB,\u201d it adds, \u201cSorkin deprived BKB of this valuable opportunity to establish good will [with its clients], earn fees relating to the acquisition, and generate a stream of income.\u201d Therefore, it concludes, since \u201cSorkin was unjustly enriched by his deception of BKB, a constructive trust is necessary to remedy this unjust enrichment.\u201d Yet, it is clear that the offering to the clients and the partners is stated by BKB itself to derive from and to be dependent upon BKB\u2019s declining the opportunity in the first place. BKB\u2019s argument, then, is obviously but another way of saying that Sorkin had a duty to notify BKB of investment opportunities for its own account. Moreover, BKB fails to recognize that Sorkin did not owe any duty to the shareholder-principals as individuals; any duty he owed would be due only to the partnership/corporation. (See Mears v. Crocker First National Bank (1950), 97 Cal. App. 2d 482, 218 P.2d 91.) Consequently, we affirm the trial court\u2019s holding as to this matter as well.\nThe parties appear to be in agreement that if a constructive trust for BKB\u2019s benefit is inappropriate, DiPietro is not liable to BKB. BKB states, \u201cDiPietro\u2019s liability flows from Sorkin\u2019s liability as a matter of law. Once it is established that Sorkin breached his fiduciary duty to BKB, it follows that DiPietro is liable to BKB as well.\u201d This is BKB\u2019s sole argument as to its entitlement to a constructive trust upon DiPietro\u2019s share in G & S. Sorkin states that \u201cif Sorkin is not liable to BKB, DiPietro is not liable either, and BKB does not contend otherwise.\u201d Therefore, because the trial court properly held that BKB is not entitled to a constructive trust upon Sorkin\u2019s share of Grendel\u2019s, summary judgment in favor of DiPietro was also proper.\nAccordingly, this case is affirmed and remanded to the circuit court for further proceedings consistent with the views expressed in this opinion.\nAffirmed.\nBILANDIC and DiVITO, JJ., concur.\nJustice Bilandic participated in hearing oral argument in this case and in the decision-making process before he left the appellate court.", "type": "majority", "author": "PRESIDING JUSTICE SCARIANO" } ], "attorneys": [ "Michael L. Shakman, Barry A. Miller, and Edward W. Feldman, all of Miller, Shakman, Hamilton & Kurtzon, of Chicago, for appellants.", "Ellen G. Robinson, C. Philip Curley, and Alan F. Curley, all of Kahn, Robinson, Curley & Clayton, of Chicago, for appellees." ], "corrections": "", "head_matter": "BLACKMAN KALLICK BARTELSTEIN, a Partnership, et al., Plaintiffs-Appellants, v. SAMUEL M. SORKIN et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 1\u201489\u20142651\nOpinion filed May 21, 1991.\nMichael L. Shakman, Barry A. Miller, and Edward W. Feldman, all of Miller, Shakman, Hamilton & Kurtzon, of Chicago, for appellants.\nEllen G. Robinson, C. Philip Curley, and Alan F. Curley, all of Kahn, Robinson, Curley & Clayton, of Chicago, for appellees." }, "file_name": "0663-01", "first_page_order": 685, "last_page_order": 696 }