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Lazarus v. Pascucci

OPINION FILED JULY 20, 1979.

ERWIN LAZARUS, PLAINTIFF-APPELLANT,

v.

MICHAEL PASCUCCI ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, JR., Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action against Michael Pascucci (Pascucci), Grand Sports Center, Inc. (Grand Sports), Albert Wittlin (Wittlin), and Thomas Nilles (Nilles) for an accounting for the unauthorized conveyance of plaintiff's property to Nilles, who had been dismissed earlier and is not involved in this appeal. Following a non-jury trial, the court entered judgment for plaintiff against Pascucci in the amount of $28,000 and for defendants, Grand Sports and Wittlin. Plaintiff appeals from that judgment and seeks to have this court either: (1) vacate the judgment in favor of defendants, Grand Sports and Wittlin, and enter judgment for plaintiff against those defendants; (2) to reverse the judgment in favor of those defendants and remand the cause with directions to enter judgment for plaintiff against said defendants; or (3) reverse and remand for a new trial against those defendants or such other relief to which plaintiff is entitled.

Plaintiff raises the following issues on appeal: (1) whether the trial court applied the correct burden of proof; (2) whether propositions of law are required to be submitted and stated by a trial court to provide a proper basis of appellate review; (3) whether the application of erroneous propositions of law require reversal; and (4) whether proof of a criminal act in a civil case may be by a preponderance of the evidence.

A review of certain undisputed background facts is necessary to adequately understand the pleadings and contentions set forth at trial. In April 1974, plaintiff decided to buy a boat. He became acquainted with Wittlin through his girlfriend, who lived at the Wittlin residence. Wittlin was a part owner of Grand Sports, whose business included selling boats. Wittlin suggested that Lazarus contact Pascucci, a part-time employee of Grand Sports, regarding a boat. Lazarus was unable to find a suitable boat at Grand Sports. Lazarus and Pascucci later purchased a boat at Pistakee Marina in Fox Lake. Title was placed in Grand Sports' name, the bill of sale being issued to "Michael Pascucci representing Grand Sport Center." Payment was made by Pascucci who was reimbursed by Lazarus. All the subsequent repairs, maintenance and expenses for the boat were billed to Grand Sports which Lazarus reimbursed.

At the end of the 1974 season, Lazarus decided to sell the boat. Pascucci was able to find a purchaser, Nilles, with the aid of a friend, Brian Oken. Nilles made a $1000 deposit and a subsequent payment of $8500 to Pascucci who deposited both in his own checking account.

Sometime in October or November, a disagreement over the payment of sales tax due on the transfer of title from Grand Sports to Lazarus caused an end to the friendship between Lazarus and Wittlin. On January 23, 1975, Lazarus paid the disputed tax and title was transferred from Grand Sports to one Howard Usen, Lazarus' nominee. The transfer document was on Grand Sports' stationery and was signed by Pascucci for Grand Sports. According to Wittlin, this was the last time that he dealt with Lazarus, and Lazarus admitted that "nearly all further discussions about the sale were between Lazarus and Pascucci."

On February 10, 1975, Pascucci completed the sale to Nilles, received a check made payable to him for the balance of the purchase price, and executed the following instrument:

"BILL OF SALE

I hereby transfer, assign and convey all of my right, title and interest in and to a 1974 Fiberglass Trojan F32 Express Cruiser boat, known as the `C-Jems', Serial No. TRO 347474, Port Engine Serial No. 4158921, Starboard Engine Serial No. 416983, with all accessories thereon, (including but not limited to, 6.5 KW generator, air conditioning, electric heaters, automatic pilot, engine synchronizers, digital depth finder, hailer, 2-radio telephones, extra fuel tanks of 100 gallon capacity, teak swim platform, monamatic head with shower, electric range, with rotissery oven, refrigerator, electric remote control spotlight, fuel fume indicator, compass) in consideration of the payment to me of $34,500.00.

I hereby warrant that my interest in said boat is free and clear of all liens and encumbrances, and I hereby agree to hold Thomas Nilles harmless from any claims that may be made against said interest. I further warrant that I hold 100% of the right title, and interest in and to said boat.

(signed) Michael Pascucci

Bernhard Miller Notary Public"

Pascucci appropriated the money for his own use and never paid Lazarus.

A meeting was arranged to attempt some sort of settlement between Lazarus and Pascucci, but no agreement was reached. Lazarus then brought the instant suit.

In the original complaint, Usen, Lazarus' nominee, sought an injunction, rescission, or other equitable relief against Pascucci, Grand Sports, Wittlin, Nilles and Pistakee. An amended complaint substituted Lazarus as plaintiff. Nilles counterclaimed to prevent any interference with his use and ownership of the boat. An order was entered declaring Nilles owner of the boat but it did not fix the liabilities of the other parties. Nilles was then dismissed from the suit. Plaintiff filed a second amended complaint, which is the basis of this action. He sought an accounting, damages, and equitable relief against Pascucci, Grand Sports, and Wittlin. The complaint alleged that Grand Sports concealed the true ownership of the boat on the sale to Nilles and as a result plaintiff lost the purchase price. Additionally, it ...


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