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Chiesa v. Laspisa

OPINION FILED NOVEMBER 20, 1980.

MARY CHIESA, PLAINTIFF-APPELLEE,

v.

RUSSELL LASPISA, INDIVIDUALLY AND D/B/A RUSSELL'S PHARMACY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JEROME LERNER, Judge, presiding.

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

Rehearing denied December 18, 1980.

Defendant, Russell Laspisa, appeals from an order of the circuit court of Cook County entering judgment on the jury's verdict in favor of the plaintiff, Mary Chiesa. Plaintiff's action sought to recover from defendant a total of $37,988 unpaid principal and interest on five promissory notes executed by defendant.

On appeal, defendant contends: (1) the trial court erroneously instructed the jury as to the issues in the case and the proper burden of proof; (2) the trial court erred in submitting to the jury a verdict form specifying the exact amount of money sought to be recovered; (3) the trial court made various erroneous evidentiary rulings which denied defendant a fair trial; (4) the jury verdict was against the manifest weight of the evidence; and (5) the trial court erroneously permitted the recovery of a usurious interest claim. *fn1

We affirm.

Plaintiff and her husband, Dominick Chiesa, are the designated payees on five promissory notes executed by defendant. The plaintiff filed this five count action after her husband's death. Each count sets forth a separate promissory note and its terms: The first note, dated August 2, 1971, has a face value of $5,000 and a 15% per year interest rate accumulating after the August 2, 1973, due date; the second note, dated April 1, 1972, and due April 1, 1973, has a face value of $5,000 and does not reflect an interest rate; the third note, dated February 1, 1973, has a face value of $5,000 and a 6% per year interest rate accumulating after the February 1, 1974, due date; the fourth note, dated June 1, 1973, has a face value of $7,000 and a 6% per year interest rate accumulating after the June 1, 1974, due date; and the fifth note, dated October 1, 1974, has a $7,000 face value and a 15% per year interest rate accumulating after October 1, 1974. The fifth note was due on October 1, 1975.

Defendant's answer denied the allegations of plaintiff's five-count complaint and further stated that defendant had paid Dominick Chiesa the face amount of each of the five notes which totaled $29,000. Appended to defendant's answer was a handwritten statement, signed by Dominick Chiesa, acknowledging defendant's payment of the five promissory notes. *fn2 Defendant referred to this statement as a receipt. Plaintiff's reply denied that defendant had repaid the notes and denied that Dominick Chiesa had signed a statement which purported to be a receipt. Neither party disputed the accuracy of the amount of principal and interest reflected in the five promissory notes; the only disputed issue was whether or not defendant had repaid the face amount of the five promissory notes to Dominick Chiesa. The trial testimony primarily concerned the events surrounding the purported payment and the issuance of the statement or "receipt."

The testimony of plaintiff, her son, Edward Assay, and Kenneth Whitmer *fn3 as to what occurred on May 2, 1975, was substantially the same. On May 2, the plaintiff and Edward Assay visited Dominick Chiesa in the hospital. Dominick Chiesa's hospitalization was due to a serious illness and he wanted to execute his last will and testament on that day. Whitmer went to the hospital to witness the execution of the will. Shortly after noon, defendant arrived with the will which had been prepared by an attorney, as Dominick Chiesa had requested. Another person, Robert Tonieto, accompanied defendant and he remained outside the hospital room, near the door.

Defendant handed the will to Dominick Chiesa. Dominick Chiesa reviewed the will, signed it, and then returned it to defendant. Defendant then asked Dominick Chiesa to sign a blank piece of paper. *fn4 Defendant indicated he would turn the signed paper over to the attorney who prepared the will so that if any changes or corrections were necessary, the attorney would have Dominick Chiesa's signature on file and Dominick Chiesa would not have to again be disturbed. Thereupon, Dominick Chiesa signed the blank paper and returned it to defendant. Defendant folded the paper and placed it in his pocket.

The plaintiff further testified that defendant's exhibit 1, the purported receipt or statement, looked like the blank piece of paper which Dominick Chiesa had signed on May 2, 1976. Plaintiff also stated that defendant had been a friend of plaintiff and her husband almost 20 years, and she and her husband had leased business space from defendant.

Dominick Chiesa was released from the hospital in mid-May 1975. Between May and October, plaintiff and her husband saw defendant once or twice a week at their place of business and they discussed repayment of the promissory notes. Defendant never denied owing the money nor did he ask for the return of the promissory notes. Plaintiff further asserted that, in the summer of 1974, defendant agreed to obtain and pay the premiums on a $30,000 life insurance policy on his life to secure repayment of defendant's loans. Defendant agreed to be the insured and to name Dominick Chiesa as the beneficiary of the policy. From January to June 1975, defendant paid plaintiff $3,897 in interest on the first of the promissory notes.

Edward Assay additionally testified that after Dominick Chiesa died he had a conversation with defendant sometime in the spring of 1976 at defendant's pharmacy. Defendant told Assay that he would start repaying the loans to plaintiff as soon as he took care of some other personal loans. During a subsequent conversation, defendant told Assay that he did not owe plaintiff any money and that he had proof of this fact.

Kenneth Whitmer, a friend of both plaintiff and defendant, also testified that in the early part of 1975, he talked with defendant on three separate occasions about defendant's financial status. During these conversations, which took place while Whitmer was employed by defendant, defendant expressed regret that he had borrowed $30,000 from Mary and Dominick Chiesa instead of instituting bankruptcy procedures.

Richard Price, an insurance broker, testified that at defendant's request he had issued two life insurance policies on defendant's life. The first policy, issued in March 1974, insured defendant's life in the amount of $20,000 and the named beneficiary was Charles Smith. The second life insurance policy named Dominick Chiesa as the beneficiary. The face value of the second policy, showing an issue date of October 2, 1974, was $30,000. Price further stated that life insurance policies were common loan security devices used in business financing.

After the plaintiff rested, defendant testified that he had prepared the five promissory notes for the five loans and he had received the face amounts of the promissory notes. He asserted that he had repaid Dominick Chiesa the full amounts due on the notes. Defendant indicated that he had not repaid Dominick Chiesa the amounts due on two additional promissory notes of $7,000 and $3,500. Defendant stated that these were made sometime after the loan secured by the fifth note had been made. Defendant further ...


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