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Thilman & Co. v. Esposito

OPINION FILED JULY 28, 1980.

THILMAN & COMPANY, PLAINTIFF-APPELLEE,

v.

ANGELO ESPOSITO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. CONDON, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff Thilman & Company (Thilman) brought an action against defendants Angelo Esposito (Esposito), Pioneer Development Corporation (Pioneer) and Oak Brook Bank, alleging that defendants were liable to plaintiff for insurance premiums due from the owners and operators of a business known as Ireland's Oyster House (Ireland's). In a bench trial, the court entered judgment for plaintiff and against Esposito and Pioneer in the amount of $10,049, plus costs, and against Oak Brook Bank in the amount of $1,201, plus costs. Only defendants Esposito and Pioneer appeal.

Defendants contend that (1) the trial court abused its discretion when it denied defendants' motion for retrial instead of granting a continuance; (2) the trial court erred in rendering a judgment against defendant Pioneer without first resolving the issue of the court's jurisdiction over Pioneer and without allowing Pioneer to answer the complaint and defend itself; (3) the trial court erred in finding liability against both a corporate principal and its agent based on the same set of circumstances; and (4) plaintiff failed to prove the allegations made in its complaint.

On September 20, 1976, Thilman filed a complaint against Esposito, Pioneer and Oak Brook Bank, alleging that defendants were liable to plaintiff for insurance premiums due from the owners and operators of Ireland's. Summonses were returned indicating that Pioneer had been served on September 27, 1976, by leaving a copy of the complaint and summons with William Lewis, an employee at Ireland's, but that Esposito could not be found. The trial court granted defendants' motion to quash service of summons. Alias summonses were issued for both Esposito and Pioneer. Summons for Pioneer was returned not found. Return of Esposito's summons showed personal service on March 16, 1977. On April 15, 1977, Esposito filed a motion to quash service of summons. On that same date, plaintiff Thilman filed a motion requesting Esposito be found in default and judgment rendered against him. The trial court entered an order finding that Esposito had generally appeared and gave Esposito 14 days in which to file an answer.

Esposito filed his answer on June 17, 1977, denying liability for any insurance premiums written by plaintiff for Ireland's and stating that the complaint was defective in that Esposito and Pioneer could not both be liable on the same allegation. A second alias summons for Pioneer was returned Pioneer not found. On August 31, 1977, the cause was continued by plaintiff to October 20, 1977, and on that date to February 1, 1978, and marked "FINAL." On February 1, 1978, neither Esposito nor Pioneer appeared and the court entered a default order against Esposito only and in favor of plaintiff.

On March 1, 1978, the court, on motion filed by both defendants, vacated the default order against Esposito and set the cause for trial on May 16, 1978. By agreement of the parties, the case was continued to September 14, 1978, on which date it was tried.

The report of proceedings shows that in plaintiff's attorney's opening statement he declared that judgment would be requested against both Esposito and Pioneer. At that time defendant's attorney objected to the jurisdiction of the court over Pioneer. The court instructed that memoranda be filed in support of each party's position on the jurisdictional question raised. Without any orders being entered as to the jurisdictional question, the case was tried. Thilman later submitted a memorandum on the jurisdictional question. However, Pioneer never complied with the court's instruction.

Edward Thilman, Jr., was the sole witness at the trial. He testified that he had been associated with plaintiff for 13 years as an insurance broker. Prior to May 1, 1975, plaintiff wrote insurance policies for Clem and Agnes Ireland for their building at 500 North LaSalle Street in Chicago, Illinois, known as Ireland's. Mr. Thilman testified that at the request of Esposito a conference was held on August 7, 1975, at plaintiff's office. Edward Thilman, Sr., James Thilman, the witness and Esposito were present. Esposito said at this meeting that he had purchased the building and restaurant at 500 North LaSalle Street and wanted to discuss the outstanding debts due plaintiff and future insurance coverage for Ireland's. Esposito wanted Thilman to arrange for the payment of the old debts and on the amount owed currently he would make the payments. Esposito was told by Mr. Thilman that the insurance coverage would be discontinued unless the old debts were paid and the future premiums kept current. The total owed was determined to be $11,664.

Esposito offered to pay $1,664 immediately and to repay the remaining $10,000 in equal monthly installments of $1,000, plus 8 percent interest beginning September 1, 1975, and to sign notes for the debt owed, so as to continue insurance coverage. Esposito requested that the insurance policies continue and be renewed and he agreed to pay these on a current basis. Plaintiff agreed to Esposito's offer and $1,664 was paid at the meeting. Plaintiff subsequently received payment of $1,000 in both September and October of 1975 in the form of checks drawn on the account of Pioneer.

Plaintiff continued insurance coverage after August 7, 1975, based upon the agreement made at the conference. Subsequently, all insurance coverage was terminated due to nonpayment of installments and current premiums.

Mr. Thilman testified that there was no agreement in writing and that promissory notes were prepared, but Esposito refused to sign them.

The trial was then continued to permit briefing of the jurisdictional question, with no date set for hearing on the issue. On September 20, 1978, by agreement, the cause was continued to October 5, 1978. On October 5, 1978, the court found it had jurisdiction over Pioneer and entered judgment in favor of plaintiff and against Esposito and Pioneer in the amount of $10,049.

On October 27, 1978, defendants' attorney filed a motion for rehearing. On November 6 the motion was entered and continued to November 13, 1978. On November 13, 1978, by agreement, the motion was continued to December 4, 1978. On December 4, 1978, an associate lawyer of defendants' attorney filed an affidavit, in which he stated that defendants' attorney had suffered a coronary deficiency on November 21, 1978, and had been admitted to the intensive care unit at Henrotin Hospital in Chicago, Illinois, where he was presently situated. He also stated that he was unfamiliar with the case and was appearing as a courtesy to defendants' attorney in order to inform the court of his illness. It is unclear whether the court continued the matter to December 12, 1978; however, on December 12, defendants' attorney's associate again appeared and filed a petition requesting a continuance, accompanied by an affidavit by the associate which stated that defendants' attorney was under the care and treatment of a named physician. Objection was made by plaintiff to the failure of defendants to serve a notice of motion and to the continuance. The associate requested a continuance pending the recovery of defendants' attorney from the heart attack he suffered. The court continued the motion to January 19, 1979, with that date marked "FINAL" at the request of plaintiff's attorney. The entry made on the half sheet memoranda on December 12, 1978, shows that the motion was continued to January 18, 1979.

On January 18, 1979, defendants were not represented in court by counsel. Instead, the court was advised by defendants' attorney's secretary that defendants' attorney was still recuperating, but that it was anticipated he would be back in his office the second week in February. At that ...


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