{ "id": 2881283, "name": "BERDEX INTERNATIONAL, INC., Plaintiff and Counterdefendant-Appellee, v. MILFICO PREPARED FOODS, INC., Defendant and Counterplaintiff-Appellant", "name_abbreviation": "Berdex International, Inc. v. Milfico Prepared Foods, Inc.", "decision_date": "1994-02-10", "docket_number": "Nos. 1-92-0655, 1-92-0700 cons.", "first_page": "738", "last_page": "742", "citations": [ { "type": "official", "cite": "258 Ill. App. 3d 738" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "164 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581931 ], "weight": 4, "pin_cites": [ { "page": "983" }, { "page": "984" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "134 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636801 ], "weight": 2, "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0778-01" ] } ], "analysis": { "cardinality": 523, "char_count": 11026, "ocr_confidence": 0.769, "pagerank": { "raw": 1.4606155981856228e-07, "percentile": 0.65723600101782 }, "sha256": "e2149de10a374a09f1fdd95bb0767c6ffd38769264e2c57bd280daac9c9491d6", "simhash": "1:8beac43e5f0e947a", "word_count": 1798 }, "last_updated": "2023-07-14T22:48:59.357066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BERDEX INTERNATIONAL, INC., Plaintiff and Counterdefendant-Appellee, v. MILFICO PREPARED FOODS, INC., Defendant and Counterplaintiff-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nDefendant, Milfico Prepared Foods, Inc. (hereinafter Milfico), appeals from the trial court\u2019s grant of summary judgment in favor of plaintiff, Berdex International, Inc. (hereinafter Berdex), in a breach of contract action.\nOn appeal, Milfico contends (1) the trial court\u2019s order failed to comply with Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) and is consequently neither enforceable nor appealable; (2) the trial court abused its discretion in granting Berdex\u2019s summary judgment motion; (3) the trial court improperly made Rule 304 findings on the summary judgment grant while a related counterclaim was pending between the parties; and (4) the trial court erroneously awarded Berdex attorney fees without conducting an evidentiary hearing.\nWe affirm in part, vacate in part, and remand.\nIn April 1991, Milfico and Berdex entered into a contract for the purchase of frozen scallops. Berdex disclosed to Milfico that the scallops were a \"secondary product\u201d which did not conform to standard quality. On April 23, 1991, Berdex delivered the scallops and Milfico approved them and accepted delivery.\nDuring the next two months, Milfico placed three orders with Berdex for the purchase of frozen frog legs. Berdex filled the orders and delivered the frog legs to Milfico on July 1, 1991. At the end of the month, when the invoices for the frog legs became due, Milfico informed Berdex that it did not intend to pay for the frog legs because Berdex had sold it \"rotten and rancid\u201d scallops the previous April.\nConsequently, on August 22, 1991, Berdex filed a complaint against Milfico seeking to recover the purchase price of the frog legs, $35,802, and reasonable attorney fees. On October 10, 1991, Milfico responded with a counterclaim against Berdex for an unspecified amount of damages alleging that Berdex delivered scallops which did not meet contractual specifications.\nOn October 30, 1991, Berdex filed a motion for summary judgment which was later granted by the trial court. On December 17, 1991, the trial court awarded Berdex $35,801 plus $3,500 in attorney fees. Berdex was also granted prejudgment interest on $35,802 at the rate of 1.5% per month from July 1,1991, to December 17, 1991.\nOn December 27, 1991, Berdex filed a motion for Rule 304(a) findings, requesting that the trial court make its grant of summary judgment final and appealable. Berdex also filed a motion to modify the judgment, asking for an additional $4,000 in attorney fees. On February 6, 1992, the trial court amended its order of December 17, 1991, entered the Rule 304(a) findings, and denied Berdex\u2019s motion for additional fees. Milfico appeals.\nInitially, on appeal, Milfico asserts that the trial court\u2019s order granting Rule 304(a) findings did not comply with the rule and the order is neither enforceable nor appealable.\nRule 304(a) provides:\n\"[A]n appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.\u201d 134 Ill. 2d R. 304(a).\nThe trial court\u2019s order of February 6, 1992, granting Berdex\u2019s motion for Rule 304(a) findings stated that its judgment in favor of Berdex was \"final and immediately enforceable,\u201d and included no language as to appealability. Milfico submits that the trial court\u2019s failure to make a two-pronged, written finding regarding enforceability and appealability in accordance with the rule gives us no jurisdiction over this case.\nHowever, Supreme Court Rule 329, pertaining to the amendment of the record on appeal, permits the correction of \"[mjaterial omissions or inaccuracies *** by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof.\u201d 134 Ill. 2d R. 329.\nOn July 9, 1992, in accordance with this rule and pursuant to Berdex\u2019s motion, the trial court issued an order correcting the \"material omissions and inaccuracies\u201d in its previous order of February 6, 1992. The order stated in pertinent part: \"[Tjhere is no just reason for delaying enforcement or appeal of the judgment order entered on December 17, 1991, as amended.\u201d We believe the trial court\u2019s subsequent curing of its prior omissions renders any discrepancy with respect to this issue resolved.\nNext, Milfico argues that the trial court abused its discretion in granting Berdex\u2019s motion for summary judgment while material issues of fact existed. We cannot agree.\nThe facts are clear. In April 1991, Milfico entered into a contract with Berdex to purchase scallops. In conformity with the contractual provisions, Berdex delivered them, Milfico accepted delivery and paid the purchase price.\nIn May and June 1991, Milfico entered into three contracts with Berdex for the purchase of frog legs. In the beginning of July, Berdex delivered the frog legs to Milfico. On July 31, 1991, when the invoices for the frog legs became payable, Milfico refused to tender the amount owed alleging that Berdex sold it \"rotten and rancid\u201d scallops the previous April. Although Milfico does not dispute its liability under the frog legs contracts, it attempts to set off the damages Berdex allegedly owes it under the scallops contract from the amount due under the frog legs contracts.\nSection 2 \u2014 717 of the Uniform Commercial Code \u2014 Sales allows a buyer of goods to \"deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract.\u201d (Ill. Rev. Stat. 1991, ch. 26, par. 2 \u2014 717.) In its attempt to fit the circumstances of this case within the ambit of section 2 \u2014 717, Milfico maintains that the scallops contract and the frog legs contract were \"ongoing related purchases and sales\u201d and should be construed as a single contract. The record simply does not support this position as there is no such corroborating evidence to be gleaned through either the contracts or the intent of the parties.\nThis court has interpreted section 2 \u2014 717 finding that, although a buyer is entitled to file a counterclaim in the nature of a setoff under the Uniform Commercial Code (see Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 608(a)), a buyer may not seek damages for a cause of action arising out of a separate contract. In Rebaque v. Forsythe Racing, Inc. (1985), 134 Ill. App. 3d 778, the plaintiff filed suit against defendant to recover the amount due under a contract for the sale of an automobile. Defendant filed a counterclaim against plaintiff in an attempt to set off the amount plaintiff allegedly owed it under a separate contract. The trial court entered summary judgment for plaintiff for the unpaid balance. On review, this court affirmed the judgment of the trial court, holding that \"in an action under the Uniform Commercial Code for goods sold and delivered, [and] a set-off is sought, the counterclaim *** is limited to damages arising out of the same contract as the claim for the goods.\u201d Rebaque, 134 Ill. App. 3d at 783.\nAccordingly, Milfico\u2019s counterclaim against Berdex for damages arising out of the scallops contract properly flows from that contract, not from the frog legs contract.\nNext, Milfico posits that the trial court erroneously granted Rule 304(a) findings on Berdex\u2019s summary judgment motion because a related counterclaim was pending between the parties and the order was not final.\nSupreme Court Rule 192 (134 Ill. 2d R. 192), concerning the entry of a summary judgment which does not dispose of all the issues in the case, however, expressly effectuates the trial court\u2019s ruling. Under these circumstances, it allows the trial court, within its discretion and as justice dictates, \"[to] allow the [summary judgment] motion and enter judgment thereon.\u201d Therefore, the trial court did not err in entering Rule 304(a) findings in the face of Milfico\u2019s pending counterclaim.\nFinally, Milfico argues that the trial court improperly awarded Berdex attorney fees.\nThe terms of the contracts between the parties entitle them, in the event of a breach, \"to recover a reasonable attorney fee, including attorney fees upon appeal in addition to the usual costs and disbursements.\u201d An affidavit submitted by Berdex\u2019s attorney, James J. Greenberger, contained a general prayer for attorney fees stating: \"[M]y firm\u2019s charges to plaintiff-counterdefendant with respect to this litigation shall not be less than $3,500.\u201d\nCiting Kaiser v. MPEC American Properties, Inc. (1987), 164 Ill. App. 3d 978, Milfico contends that the trial court\u2019s grant of fees both absent a hearing on their reasonableness and predicated solely on the general affidavit from Berdex\u2019s counsel was insufficient to sustain an award of fees. We agree.\nKaiser explains that, although the determination of the reasonableness of attorney fees is within the province of the trial court, the party seeking the fees \"always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness.\u201d Kaiser, 164 Ill. App. 3d at 983.\nAs it is inappropriate for the trial court to base an award of attorney fees on speculation and conjecture, it is incumbent upon the party seeking the fees to \"specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor.\u201d Kaiser, 164 Ill. App. 3d at 984.\nIn addition to detailed records and computations upon which the charges are based, the trial court may also consider the skill and reputation of the attorneys, the nature of the case, the difficulty of the issues presented, the degree of responsibility required, the benefit to the client and the usual charges for comparable services. Kaiser, 164 Ill. App. 3d at 984.\nMindful of these principles, we conclude Milfico\u2019s contention\u2014 that Berdex was improperly awarded attorney fees based completely on an affidavit of such a general nature \u2014 is correct and that the trial court\u2019s action was erroneous. Accordingly, we vacate the $3,500 award and remand this matter for a proper hearing on the fees.\nFor the aforementioned reasons, we affirm that part of the summary judgment order granting Berdex $35,802 plus prejudgment interest at the rate of 1.5% from July 1, 1991, to December 17, 1991; we vacate that part of the summary judgment order awarding attorney fees in the amount of $3,500 and remand the cause for a proper hearing on the fees.\nAffirmed in part; vacated in part and remanded with directions.\nCAHILL, P.J., and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Kaufman & Litwin, of Chicago (Paul L. Feinstein and Stuart N. Litwin, of counsel), for appellant.", "James J. Greenberger, of Greenberger, Krauss & Tenenbaum, Chartered, of Chicago, for appellee." ], "corrections": "", "head_matter": "BERDEX INTERNATIONAL, INC., Plaintiff and Counterdefendant-Appellee, v. MILFICO PREPARED FOODS, INC., Defendant and Counterplaintiff-Appellant.\nFirst District (4th Division)\nNos. 1 \u2014 92\u20140655, 1 \u2014 92\u20140700 cons.\nOpinion filed February 10, 1994.\nKaufman & Litwin, of Chicago (Paul L. Feinstein and Stuart N. Litwin, of counsel), for appellant.\nJames J. Greenberger, of Greenberger, Krauss & Tenenbaum, Chartered, of Chicago, for appellee." }, "file_name": "0738-01", "first_page_order": 758, "last_page_order": 762 }