APS Holmes Group, LLC v. Sorkin ( 2023 )

2023 IL App (1st) 211668-UFIRST DISTRICT,
FIRST DIVISION
February 27, 2023
No. 1-21-1668
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
APS HOLMES GROUP, LLC, d/b/a/ ) Appeal from the
ACCOUNTING PRACTICE SALES, ) Circuit Court of
) Cook County, Illinois.
Plaintiff-Appellee, )
v. ) No. 2019 L 13687
)
SAMUEL SORKIN, ) Honorable
) James E. Snyder,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Justice Pucinski concurred in the judgment.
Justice Hyman specially concurred.
ORDER
¶1 Held: (1) Defendant failed to raise issues of material fact as to whether plaintiff materially
breached contract and whether plaintiff provided him with a written disclosure
document as required by the Business Brokers Act. (2) Trial court acted within its
discretion in denying defendant’s motion for leave to amend his affirmative
defenses.
¶2 Defendant Samuel Sorkin retained plaintiff, APS Holmes Group, LLC (“APS”), to
market and sell his accounting practice. APS put Sorkin in contact with multiple prospective
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buyers but unilaterally terminated the agreement before a purchase deal was finalized. Sorkin
subsequently sold his practice to a buyer disclosed to him by APS.
¶3 APS brought a breach of contract suit against Sorkin, seeking 10% of the sale fee
pursuant to the parties’ agreement. The parties filed cross-motions for summary judgment. The
trial court denied Sorkin’s motion, granted APS’s motion, and entered judgment for APS. We
affirm.
¶4 BACKGROUND
¶5 On May 11, 2017, Sorkin retained APS to sell his accounting practice, Samuel Sorkin
CPA (“Sorkin CPA”). The contract provided that APS had the exclusive right to sell, merge,
transfer, and/or convey Sorkin CPA, and Sorkin would pay APS a “performance fee” of 10% of
the sales price, with a minimum of $15,000. The contract further provided:
“2. *** The performance fee shall be due and payable *** if the Practice is sold,
conveyed, merged or transferred into another practice or entity, or in any manner
transferred (I) within the terms of the Agreement regardless of Buyer or other transferee,
or (II) within three (3) years after the termination of this Agreement if Buyer or other
transferee is one with whom Seller or APS had negotiations or contact regarding the sale
or transfer of the Practice during the term of this Agreement.”
¶6 APS marketed Sorkin’s practice and received interest from “around 20 to 30” buyers.
Trent Holmes, Sorkin’s primary contact at APS, identified the “strongest prospects”—including
SanKon Financial Services, Inc. (“SanKon”)—and forwarded their contact information to Sorkin
in an email dated June 1, 2017. Prior to that email, Sorkin had no knowledge of SanKon.
¶7 Sorkin negotiated with various buyers and received multiple letters of intent (LOIs),
including a $300,000 offer from SanKon. Sorkin then asked Holmes to obtain new LOIs from
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SanKon and two other prospective buyers who had already provided LOIs, intending “to have
the buyers compete against each other” and “create a bidding war” between them. Holmes
refused because “it’s just not our practice to just go back to buyers and say give us a new LOI
*** [when] we already have the LOIs on the table.” He “felt like it was actually in both of our
best interests to terminate the sales consulting agreement” because on multiple occasions Sorkin
“degraded” him, expressed displeasure with his work, and “tr[ied] to tell [him] how to do [his]
job.”
¶8 On September 6, 2017, Holmes sent Sorkin an email stating: “I believe this relationship
has run [its] course. Please consider this date as the effective date for terminating our sales
consulting agreement.” Later that same day, Sorkin replied: “No problem. The only Buyer you
are entitled to receive a Performance Fee for is [Demarco Sciacotta Wilkens & Dunleavy].” (In
his deposition, Sorkin stated that his email “[m]eans I agreed to terminating the contract” and
that “[a] performance fee was owed only if Holmes brought to me a contract I was satisfied with
and I signed it.”) Holmes sent Sorkin a reply stating: “Your statement couldn’t be further from
the truth. Please review our sales consulting agreement, attached, specifically sections 2 & 3.”
¶9 On October 23, 2017, Sorkin CPA and SanKon executed an Asset Purchase Agreement
in which SanKon purchased “substantially all of the assets of Sorkin CPA” for $300,000.
¶ 10 On December 12, 2019, APS filed a breach of contract suit against Sorkin, alleging that
he breached the agreement by failing to pay a performance fee of 10% of the sales price of
Sorkin CPA.1 Pursuant to the contract, APS also sought attorney fees and costs of bringing the
action.
1
APS also brought claims for unjust enrichment and quantum meruit which it later voluntarily
dismissed.
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¶ 11 Sorkin filed an answer in which he asserted the following affirmative defense: “APS
unilaterally terminated the Agreement despite there being no right under the Agreement for ATS
[sic] to terminated [sic]. As a result, APS has forfeited any claim to a Performance Fee as the
sale occurred after the termination of the Agreement and the sale was obtained solely by the
efforts of Sorkin.”
¶ 12 The parties filed cross-motions for summary judgment. APS argued it was entitled to
summary judgment because (1) it performed its contractual duty to facilitate the sale of Sorkin
CPA when it “brought SanKon as a prospective buyer to Sorkin,” and (2) Sorkin breached the
agreement by failing to pay APS its performance fee. APS additionally argued that it did not
“forfeit” its performance fee by terminating the agreement, which was terminable at will by
either party and “does -
not
- contain any language preventing APS from terminating the
Agreement.” (Emphasis in original.)
¶ 13 Sorkin, in his motion for summary judgment, argued that APS was estopped from
enforcing the agreement because it committed material breaches by (1) refusing to comply with
his request to obtain new LOIs from prospective buyers and (2) unilaterally terminating the
agreement in contravention of section 4, which he argued gave him exclusive power to terminate
the contract:
“4. TERM OF AGREEMENT: This agreement shall commence on the day and
year set forth below and continues for a MINIMUM period of ninety (90) days from the
date of this agreement. This agreement shall automatically renew for consecutive fifteen-
day periods until Seller gives APS written notice of intent to cancel.”
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Sorkin additionally argued that the contract was invalid and unenforceable because APS failed to
provide him with a written disclosure document prior to signing as required by section 10-30 of
the Illinois Business Brokers Act of 1995 (BBA) (815 ILCS 307/10-30 (West 2016)).
¶ 14 On June 3, 2021, APS filed a motion to partially strike Sorkin’s motion for summary
judgment, or in the alternative, for leave to take additional discovery. Specifically, APS sought to
strike Sorkin’s “unpleaded affirmative defenses of estoppel and contract voidness.” In the
alternative, APS “request[ed] leave to take discovery on these newly-raised affirmative defenses
pursuant to Illinois Supreme Court Rule 191(b).” In support, APS attached an affidavit from
Holmes stating: “[I]n the event this court allows Sorkin to pursue his newly asserted affirmative
defenses, APS will require discovery of material facts.” He identified multiple factual issues
allegedly necessitating discovery, including “discovery of material facts to determine whether
the exemptions to the [BBA] disclosure requirements apply.”
¶ 15 On June 28, 2021, Sorkin moved for leave to amend his affirmative defenses to assert
estoppel and failure to comply with the BBA, consistent with his summary judgment motion.
¶ 16 On July 21, 2021, the trial court denied APS’s motion to partially strike Sorkin’s
summary judgment motion “on the grounds that the court will address any arguments raised
therein as part of the summary judgment briefing.” The court did not rule on Sorkin’s motion for
leave to amend.
¶ 17 APS filed a reply in support of its summary judgment motion in which it argued that
“Sorkin’s BBA defense is indisputably false.” In support, it attached a second affidavit from
Holmes attesting that on February 2, 2017, prior to execution of the agreement, he sent Sorkin an
email containing a BBA disclosure statement. “Approximately 5 minutes” after he sent Sorkin
the email, Sorkin sent him a reply, “thereby confirming that Sorkin had received [the] prior email
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containing the Illinois Disclosure Statement.” Attached is a “true and correct” copy of the
February 2, 2017 email from Holmes to Sorkin stating, “I’ve attached our sales consulting
agreement and accompanying Illinois Disclosure Statement. Based on everything you’ve sent,
this should be the last piece we’ll need in order to get started.” Sorkin replied, “Ill [sic] give you
a call tomorrow after 3.”
¶ 18 On September 9, 2021, the trial court granted APS’s motion for summary judgment,
denied Sorkin’s motion, and entered judgment for APS in the amount of $30,000. The court
additionally granted APS leave to file a petition for attorney fees and costs.
¶ 19 Sorkin brought a motion to reconsider, arguing, among other things, that the trial court’s
calculation of damages was incorrect and that the court failed to rule on his pending motion for
leave to amend his affirmative defenses. On October 5, 2021, the trial court granted
reconsideration on the issue of damages and entered judgment for APS in the amount of
$27,627.96. The court denied Sorkin’s motion for leave to amend, finding that the affirmative
defenses were “not well pled in a factual basis” and “you can’t create a question of fact just
merely by stating something in the pleading *** when you haven’t any evidence,” since Sorkin
did not attest that he did not receive a BBA disclosure. The court subsequently granted APS’s
petition for attorney fees and costs in the amount of $24,396.80.
¶ 20 ANALYSIS
¶ 21 We review the trial court’s grant of summary judgment de novo (Williams v. Manchester,
228 Ill. 2d 404, 417 (2008)), keeping in mind that summary judgment is appropriate where “there
is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a
matter of law.” 735 ILCS 5/2–1005(c) (West 2018). We construe the record strictly against the
movant and liberally in favor of the nonmoving party. Williams, 228 Ill. 2d at 417. To avoid
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summary judgment, the nonmoving party must present evidence that would arguably entitle him
to prevail at trial. Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 472 (2010).
¶ 22 Material Breach
¶ 23 Sorkin argues that APS is estopped from enforcing the agreement due to materially
breaching it. “[A] party seeking to enforce [a] contract has the burden of proving that he has
substantially complied with all the material terms of the agreement.” Goldstein v. Lustig, 154 Ill.
App. 3d 595, 599 (1987). “A party who materially breaches a contract cannot take advantage of
the terms of the contract which benefit him, nor can he recover damages from the other party to
the contract.” Id.; see also McBride v. Pennant Supply Corp., 253 Ill. App. 3d 363, 369 (1993)
(“if [defendant] did materially breach the Agreement it could not take advantage of the terms of
the Agreement which benefited it”).
¶ 24 Sorkin argues that APS breached the agreement by refusing his request to obtain new
LOIs from prospective buyers who had already provided LOIs, which he characterizes as
“refusing to market and sell Sorkin’s practice.” The record reflects that APS marketed Sorkin’s
practice to prospective buyers across the state and obtained “a plethora of offers from buyers that
had great interest in the practice,” including SanKon, which made a purchase offer of $300,000.
APS forwarded SanKon’s contact information to Sorkin, who sold his practice to SanKon within
three years of the agreement’s termination. The contract does not require APS to employ specific
marketing tactics or follow Sorkin’s directives thereof; it states that APS will “facilitate” the sale
of the practice “through a combination of marketing of available practices and by bringing
prospective buyers to” Sorkin, which it indisputably did.
¶ 25 In his reply brief, Sorkin asserts that the “actual language of the Agreement” required
APS to comply with his directives regarding marketing tactics, citing section 3, which provides
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that APS “has an exclusive right to sell, merge, transfer and/or convey this practice. *** During
the listing period Seller will not sell or attempt to sell this practice apart from APS nor will Seller
engage the services of any other agent or broker.” Sorkin’s position is not supported by this
language, which does not specify how APS shall exercise its exclusive right to market Sorkin’s
practice during the listing period. Thus, API did not breach the agreement by refusing Sorkin’s
request to obtain new LOIs from prospective buyers.
¶ 26 Sorkin additionally argues that APS materially breached the contract by terminating it.
Perpetual contracts are disfavored in law, and the general presumption is that “[c]ontracts of
indefinite duration are terminable at the will of either party.” Jespersen v. Minnesota Mining &
Manufacturing Co., 183 Ill. 2d 290, 293, 295 (1998). This presumption “can be overcome by
demonstrating that the parties contracted otherwise.” Duldulao v. Saint Mary of Nazareth
Hospital Center, 115 Ill. 2d 482, 489 (1987). “An agreement without a fixed duration but which
provides that it is terminable only for cause or upon the occurrence of a specific event is ***
terminable only upon the occurrence of the specified event and not at will.” (Emphasis in
original.) Jespersen, 183 Ill. 2d at 293.
¶ 27 Section 4 of the contract provides:
“4. TERM OF AGREEMENT: This agreement shall commence on the day and
year set forth below and continues for a MINIMUM period of ninety (90) days from the
date of this agreement. This agreement shall automatically renew for consecutive fifteen-
day periods until Seller gives APS written notice of intent to cancel.”
This language does not give Sorkin the “exclusive and specific” (id. at 294) right to terminate the
contract, since it does not state that it “is terminable only *** upon the occurrence of a specific
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event” (emphasis in original) (id. at 293) and does not purport to restrict APS’s right to terminate
at will after the initial 90-day period has passed.
¶ 28 In Burford v. Accounting Practice Sales, Inc., 786 F.3d 582, 587 (7th Cir. 2015),
overruled on other grounds, 942 F.3d 384 (7th Cir. 2019), the parties’ contract stated: “APS
cannot terminate this agreement unless it is violated by Burford.” (Emphasis in original.)
Applying Illinois law, the Seventh Circuit held: “The plain reading of this statement *** is that
APS could terminate the agreement if—but only if—Burford had breached it. *** By allowing
APS to terminate only when Burford had breached, the contract made as clear as could be that
APS could not terminate the contract at will.” Id. By contrast, the agreement in the case at bar
contains no language limiting APS’s right to terminate the contract. Accordingly, APS did not
breach the contract by terminating it and is not estopped from enforcing its terms.
¶ 29 BBA Disclosures
¶ 30 Sorkin contends the contract is invalid and unenforceable because APS failed to provide
him with a written disclosure document pursuant to section 10-30 of the BBA:
“A business broker must provide a written disclosure document that meets the
requirements set forth in subsection (b) of this Section to a client at the time or before the
client signs a contract for the services of a business broker or at the time or before the
business broker receives any consideration upon the contract.” 815 ILCS 307/10-30(a)
(West 2016).
¶ 31 Holmes attested in his second affidavit that on February 2, 2017, prior to the signing of
the contract on May 11, 2017, he provided Sorkin with a BBA disclosure document. Sorkin did
not deny receiving the document or present any evidence to contradict Holmes’ affidavit. At oral
argument on the parties’ cross-motions for summary judgment, Sorkin’s counsel “clarified that if
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leave were granted to assert an affirmative [defense], the Defendant’s factual claim would not be
a denial of having been sent the disclosure, but merely a claim that he does not recall whether or
not he received it.” “[F]acts contained in an affidavit in support of a motion for summary
judgment which are not contradicted by counteraffidavit are admitted and must be taken as true
for purposes of the motion.” Purtill v. Hess, 111 Ill. 2d 229, 241 (1986); see also Roth v. Carlyle
Real Estate Ltd. Partnership VII, 129 Ill. App. 3d 433, 437 (1st Dist. 1984) (“Merely alleging
that a genuine issue of material fact exists without presenting any statement of fact to contradict
the [movant’s] version, does not thereby create such an issue.” (Internal quotation marks
omitted.)). Thus, we take as true Holmes’ uncontested attestation that he provided Sorkin with a
BBA disclosure document.
¶ 32 Citing Holmes’ deposition, Sorkin asserts that “APS, through Holmes, admitted that APS
did not provide any disclosure as required by section 10-30; rather, the only documentation
provided from APS to Sorkin was the Agreement itself and a client information packet.” This
misrepresents Holmes’ deposition, in which he stated that after his first meeting with Sorkin,
they exchanged “more than a handful of emails” in which they negotiated the terms of the
agreement, and APS subsequently compiled a client information packet regarding his practice.
Holmes never stated that the agreement and the client information packet were the only
documents exchanged between the parties, and he gave no testimony regarding the BBA
disclosure.
¶ 33 Sorkin additionally argues that Holmes “admi[tted] that the disclosure didn’t exist” in his
first affidavit, in which he requested the court permit “discovery of material facts to determine
whether the exemptions to the [BBA] disclosure requirements apply.” We disagree. APS seeking
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discovery regarding exemptions to the BBA disclosure requirements is not the equivalent of
testimony that a disclosure was not provided.
¶ 34 Lastly, Sorkin asserts that a BBA disclosure must be “contemporaneously provided with
the contract that was to be signed” and the disclosure sent to him in February 2017, more than
four months before the contract was signed in May 2017, was invalid. The BBA states that the
disclosure must be provided “at the time or before the client signs a contract for the services of a
business broker” (815 ILCS 307/10-30(a) (West 2016)) and section 140.300 of the Illinois
Administrative Code clarifies that it must be provided “at least seven days before” signing (14
Ill. Admin. Code § 140.300 (2022)). However, neither the statute nor the Code requires that the
disclosure be provided “contemporaneously” with the contract. Accordingly, Sorkin has failed to
raise an issue of material fact as to whether APS provided him with a written disclosure
document pursuant to section 10-30 of the BBA.
¶ 35 Leave to Amend
¶ 36 Sorkin contends that the trial court abused its discretion in denying his motion for leave
to amend his affirmative defenses to assert material breach and failure to comply with the BBA.
Whether to grant a motion to amend the pleadings lies within the sound discretion of the trial
court. Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 82 (2006). In determining
whether an abuse of discretion has occurred, we consider (1) whether the proposed amendment
would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise
by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4)
whether previous opportunities to amend the pleading could be identified. Loyola Academy v. S
& S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).
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¶ 37 Here, Sorkin’s proposed amendment would not cure any defects in his pleading because
his affirmative defenses lack merit. APS did not materially breach the contract, and it was
Holmes’ uncontroverted attestation that he provided Sorkin with a BBA disclosure document
prior to signing the contract. Since the proposed amendment did not cure the original complaint’s
defects, we need not address the remaining Loyola Academy factors, and the trial court did not
abuse its discretion in denying Sorkin’s motion to amend. See Myers v. Illinois Central R. Co.,
323 Ill. App. 3d 780, 788 (2001).
¶ 38 CONCLUSION
¶ 39 For the foregoing reasons, we affirm the judgment of the trial court. Pursuant to
paragraph 10 of the contract, which allows for the recovery of fees and costs by the prevailing
party, we remand to allow APS to file a petition in the trial court for fees and costs incurred in
this appeal.
¶ 40 Affirmed and remanded.
¶ 41 JUSTICE HYMAN, specially concurring:
¶ 42 Intensifiers are adverbs or adjectives intended to lend force or emphasis to the meaning of
a word or phrase. Common examples in legal writing include “clearly,” “merely,” and “very.”
Most exponents of good legal writing agree that intensifiers hamper rather than enhance prose,
making it clunky, disconcerting, and, typically, hyperbolic.
¶ 43 Yet, counsel for the appellant and appellees liberally peppered their briefs with
unnecessary and, truth-be-told, presumptuous intensifiers. A few examples: “clearly” (appellant’s
briefs 15 times and appellees’ brief 10 times); “merely” (appellant’s briefs 5 times and appellees’
brief 7 times); “actually” (appellant’s reply brief 5 times); and “certainly” (appellant’s reply brief
4 times). Other intensifiers that stood out were “brazenly,” “unequivocally,” “utterly,”
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“woefully,” and “really.” As a professional brief reader, I can assure you that, while overly
ornamented, these briefs have plenty of company when it comes to the intensive use of
intensifiers.
¶ 44 Take “clearly,” the all-time brief favorite. U.S. Supreme Court Chief Justice John G.
Roberts Jr. has said, “We get hundreds and hundreds of briefs, and they’re all the same.
“Somebody says, ‘My client clearly deserves to win, the cases clearly do this, the language
clearly reads this.’ ***. And you pick up the other side and, lo and behold, they think they
clearly deserve to win.” Barnes, Chief Justice Counsels Humility, Wash. Post, at A15 (Feb. 6,
2007). In other words, sheathe “clearly”; it’s pointless saber-rattling.
¶ 45 In my favorite book of his, On Writing, novelist Stephen King tried to scare away the use
of adverbs, noting the “road to hell is paved with adverbs.” That should be enough to curdle your
intensifiers, if not your blood. See Garner, Interviews With United States Supreme Court
Justices: Justice Anthony M. Kennedy, 13 Scribes J. of Legal Writing 79, 92-93 (2010) (quoting
Associate Justice Anthony Kennedy, “I do not like adverbs. I noticed once that Hemingway had
no adverbs, or very few, very few. And I think adverbs are a copout”); Bennett v. State Farm
Mut. Auto Ins. Co., 731 F.3d 584, 584-85 (6th Cir. 2013) (noting, “the near-certainty that
overstatement will only push the reader away”).
¶ 46 Also, consider this from lawyer Bryan A. Garner, the author or editor of more than 20
books on writing. Garner regards intensifiers as “weasel words” that “reassure the writer but not
the reader. If something is clearly or obviously true, then demonstrate the fact to the reader
without resorting to the conclusory use of these words.” Garner, The Redbook: A Manual on
Legal Style 224 ( 2d ed. 2006). Simply put, wait to press the submit button until those weasel
words have gone pop.
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¶ 47 Actually, briefs certainly benefit from not merely limiting, but clearly avoiding, the very
occurrence of intensifiers.
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