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Graf's Beverages of Ill., Inc. v. Tauber

OPINION FILED AUGUST 2, 1977.

GRAF'S BEVERAGES OF ILLINOIS, INC., PLAINTIFF-APPELLEE,

v.

F. WARREN TAUBER, JR., D/B/A BRIAN'S FOODS, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the order of the trial court denying the petition to vacate a judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72).

By pretrial stipulation the issues in this appeal are limited to the following:

(1) Did the trial court exercise its discretion?

(2) Did the trial judge abuse his discretion in reference to the following:

(a) Does the record show the appellant exercised due diligence?

(b) Does the record show the appellant had a meritorious defense?

(3) Does the law as applied to the record in this proceeding authorize a judgment for punitive damages?

The defendant, F. Warren Tauber, Jr., (hereinafter referred to as Tauber), on August 19, 1975, ordered some $6,500 worth of beverages from Graf's Beverages (hereinafter referred to as Graf). Two days later Tauber ordered another $6,500 worth of beverages. Both orders were delivered promptly but were not paid for at the time of delivery. On August 22, 1975, Tauber ordered a third truckload of beverages from Graf, but Graf became suspicious about the unusually large quantity of beverages being ordered by Tauber and sent someone out to investigate. The investigator discovered that Tauber had been ordering exceedingly large quantities of food stuffs from his suppliers and he was apparently contemplating a "going out of business" sale. A few days later the police informed Graf's investigator that the contents of the store in question, which Tauber operated under the name of "Brian's Foods," had been loaded onto trucks and moved on the night of August 26, 1975, to an undetermined location. None of the debt owed to Graf for the beverages in question has been paid.

Graf filed a complaint against Tauber on October 20, 1975, and he was duly served on October 27, appearance being required by November 26. The complaint was in two counts — count I for $12,370 for goods sold and delivered and count II for $10,000 punitive damages for fraudulently inducing delivery of goods the defendant had no intention of paying for.

On Friday, November 28, 1975, Tauber's counsel, Angelo Ruggiero, mailed an appearance and jury demand on Tauber's behalf to the Kane County circuit court which was received and filed by the clerk on December 1, 1975. On January 22, 1976, no answer or other pleading having been filed on behalf of Tauber, Graf's attorney moved for default judgment against Tauber in the amount of $22,370. He did not serve a notice of said motion on Tauber's attorney. The judgment order, entered the same day, recited that default judgment was entered on the plaintiff's motion "for failure to appear or otherwise plead in the instant case within the time required to do so." The amount of the judgment entered was $22,370, in accordance with the prayer of the complaint, this including $10,000 punitive damages.

On March 12, 1976, the plaintiff filed a citation to discover assets which was duly served on Tauber and he not appearing, a rule to show cause was issued. Defendant Tauber by substituted attorney, Thomas Burke, thereupon filed a motion to present an affidavit signed by Tauber reading as follows:

"1. That my defense to this litigation is that I do not owe the money in any wilful and wanton manner, in an intentional manner or any other way to deprive anybody so that punitive damages be imposed against me and that the original debt was not my obligation but the obligation of others if in fact such obligations exist."

At the same time defendant's attorney presented a motion to open the judgment and a proposed "Answer" (apparently to the complaint). Plaintiff Graf opposed the motion on the ground that the proposed answer, being late, was a nullity and the affidavit tendered in support of the petition to open the judgment under section 72, did not show a meritorious defense and therefore did not establish any grounds for granting the petition. The court rejected the motion to open the judgment, affirmed the default judgment and granted the rule to show cause. This appeal is from the trial court's order denying the motion to ...


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