APPEAL from the Circuit Court of Cook County; the Hon. WAYNE
W. OLSON, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
This action was brought by plaintiff, Zella Wahnon and Associates, to recover damages from defendant, Frieda Bassman, doing business as A-1 Nursing Home, for breach of a services contract. The trial court, without a jury, entered judgment in the amount of $900 in favor of plaintiff and against defendant. This appeal was taken from that judgment, and we affirm the trial court.
The issues presented for review are (1) whether the trial court was correct in entering judgment in favor of plaintiff, in view of the terms of the contract; (2) whether the trial court was correct in finding Frieda Bassman individually liable for the breach of contract; and (3) whether the trial court abused its discretion in striking defendant's jury demand.
On May 23, 1977, plaintiff, Zella Wahnon and Associates (Wahnon), filed suit in the circuit court of Cook County, Illinois, against defendant, Frieda Bassman (Bassman), doing business as A-1 (A-1) Nursing Home. Wahnon alleged that prior to September 1976, she and Bassman entered into a written contract which stated that Wahnon was to provide occupational therapy consulting services to the nursing home. The contract set forth that Wahnon would make at least two visits to the home per month; each visit of 2 1/2 or 3 hours was to be considered a "unit." Wahnon was to receive $75 per unit and submit a bill at the end of each month. A-1 was to pay Wahnon by the 20th of the following month "for services rendered and billed in the prior month." Further, the contract contained a provision which stated that termination could only be effected after 180 days' written notice by the terminating party to the other party. The agreement was signed Zella Wahnon and Associates, By "Zella Wahnon," and "Frieda Bassman."
Wahnon alleged in her complaint that on or about October 1, 1976, Bassman orally advised her of the termination of the contract, and that thereafter plaintiff forwarded to defendant a statement for 6 months of services subsequent to the termination date. Wahnon demanded payment for 180 days, in accordance with the contract, but Bassman failed to pay.
On June 23, 1977, Bassman filed her pro se appearance. The case was later set for trial, but prior to trial the court held Bassman in default. On August 1, 1977, Bassman filed a pro se motion to vacate the default. The court vacated the default and reset the case for trial to October 6, 1977. On that date, the court entered an ex parte judgment in favor of Wahnon and against Bassman in the amount of $900.
On November 7, 1977, Bassman, still appearing pro se, moved to vacate the ex parte judgment on the grounds that she was unable to get to the courtroom on October 6, 1977. She alleged that on such date she was traveling from out of town and arrived too late for the trial call. Her sworn motion indicated she attempted to have her son appear for her at the time of the trial call to explain her tardiness, but the trial court had already entered an ex parte judgment prior to her son's arrival. Bassman's motion to vacate the ex parte judgment and quash the theretofore pending garnishment proceedings was granted.
On November 16, 1977, Bassman filed her pro se answer to the complaint denying the essential allegations thereof, and further claiming that Wahnon breached the agreement by nonperformance. At that time she also demanded a trial by jury. On April 19, 1978, she moved for leave to file the appearance of an attorney. The motion was granted and her attorneys subsequently filed an appearance.
On May 1, 1978, Bassman, by and through her attorneys, moved for leave to withdraw her pro se answer and requested leave to file a motion to dismiss the complaint. The court granted leave to file an amended answer, but did not grant the motion to file a motion to dismiss. Wahnon then moved to strike the jury demand of Bassman. Wahnon contended Bassman filed her pro se appearance without demanding a jury, thus waiving her rights to a jury. The court allowed Wahnon's motion and struck Bassman's jury demand.
On July 18, 1978, a trial was held and the trial court granted judgment in favor of plaintiff and against defendant in the sum of $900. Defendant appeals that judgment.
Defendant contends the trial court erred in entering judgment in favor of Wahnon and against Bassman, in view of the terms of the contract. Defendant alleges that plaintiff did not adduce any proof that showed she (plaintiff) had complied with her obligation and duties under the contract, and that the obligation of A-1 is dependent upon Wahnon's performance of the obligations under the contract. The contract stated, in pertinent part, that:
"1. Associates shall provide occupational therapy consulting services to Nursing Home through onsite visits to Nursing Home's location as aforesaid and shall make at least two visits to said location for said consulting purposes per month. Said visits shall consist of two and one-half to three hours at Nursing Home's location at which time Associates shall provide occupational therapy consulting services as described in the `Job Description' a copy of which has heretofore been delivered to Nursing Home. Each such visit of two and one-half to three hours shall be considered a `unit'.
2. Nursing Home shall pay Associates $75.00 per unit. Associates shall bill Nursing Home at the end of each month and Nursing Home shall pay Associates by the 20th of the following month for services rendered and billed in the prior month.
3. This contract shall continue until terminated by either party. Termination may occur for any cause, but only after 180 days written notice of termination by the terminating party to the other party sent by United ...