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Steve's Equip. Serv., Inc. v. Riebrandt

OPINION FILED JANUARY 12, 1984.

STEVE'S EQUIPMENT SERVICE, INC., PLAINTIFF-APPELLANT,

v.

HENRY RIEBRANDT, A/K/A HANK BRANDT, D/B/A H & D TRANSPORT CORPORATION, ET AL., DEFENDANTS-APPELLEES (PAUL ESPOSITO, D/B/A C.H.H., INC., DEFENDANT).



Appeal from the Circuit Court of Du Page County; the Hon. Robert Cox, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 15, 1984.

Plaintiff, Steve's Equipment Service, Inc., appeals from a judgment entered after a bench trial, in favor of defendant, Henry Riebrandt, a/k/a Hank Brandt, d/b/a H & D Transport Corporation. Plaintiff sought to recover $2,300.13 from defendant and Paul Esposito, d/b/a C.H.H. (C.H.H.), for repairs plaintiff made to a 1974 Hendrickson truck tractor. The trial court entered judgment in favor of defendant and Esposito and against plaintiff, but entered judgment for plaintiff and against H & D Transport Corporation (H & D) in the amount of $2,300.13 plus $618.51 in interest. On appeal, plaintiff seeks to vacate the judgment in plaintiff's favor against H & D, to reverse the judgment in favor of defendant, and to have judgment against defendant entered in plaintiff's favor. Plaintiff does not challenge the judgment in Esposito's favor, and Esposito is not a party to this appeal.

The only issue plaintiff raises on appeal is whether the trial court erred in entering judgment against H & D, a dissolved corporation, rather than against defendant, who plaintiff claims purported to act on behalf of that dissolved corporation. Defendant did not file a brief on appeal. Therefore, we consider this case under the principles set forth in First Capital Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

Plaintiff filed its original complaint in this matter on March 28, 1978. Plaintiff amended this complaint several times so that immediately prior to September 15, 1982, the named defendants in this suit were H & D Transport Corporation, a corporation, and Paul Esposito, d/b/a C.H.H. On September 15, 1982, pursuant to plaintiff's motion, the trial court substituted defendant as a party defendant for H & D. Plaintiff's motion for substitution was based on plaintiff's contention that H & D had been involuntarily dissolved on December 1, 1976, prior to the time plaintiff repaired the 1974 Hendrickson tractor. This case proceeded to trial on November 15, 1982.

At trial Steven L. Martines testified that he was plaintiff's president; that on February 2, 1977, he first saw the 1974 Hendrickson tractor involved in this case which was hauled in for repairs by C.H.H.; that the tractor had rolled over and plaintiff had repaired all visible damages and the bill was $14,822.13; that after the tractor went back on the street, it was determined there was additional transmission damage, which plaintiff repaired, and the bill was $2,041.85; that he talked with Paul Esposito of C.H.H. on the telephone about the first repairs and worked up an estimate for the insurance company; that an insurance investigator came in, worked with him on the estimate, and told him H & D was the owner; that he was also told by the insurance investigator that defendant was the owner of the tractor; that he contacted defendant who then gave him authority to repair the tractor; that he was paid for the first work by a check from defendant, not from the insurance company; that he had a conversation with Esposito concerning release of the tractor after the additional transmission repairs had been made; that Esposito had told him, "as soon as Hank gets a check, why you'll get your money"; and that he sent bills to C.H.H. and contacted defendant about payment and never was paid.

On cross-examination, Martines testified that he concluded H & D owned the tractor because the insurance investigator told him H & D was the insured; that defendant never said he owned H & D; that he thought Esposito and another person owned C.H.H.; that he had dealt with C.H.H. and defendant once previously on a similar repair of a truck; and that C.H.H.'s name was on the tractor.

Plaintiff called defendant under section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). Defendant testified that he was an employee of H & D and vice-president of H & D from its inception in approximately 1974 to "its conclusion" in approximately 1979, and that he also was a director of this corporation. He testified that H & D owned the 1974 Hendrickson tractor; that it was leased to C.H.H. both at the time the original repairs were made and at the time the additional repairs were made; and that plaintiff had performed both sets of repairs. Defendant stated that he and another person had the authority to conduct the day-to-day business of H & D. Defendant stated that H & D received insurance checks to cover these repairs; that he personally delivered the insurance check for the original repairs to plaintiff and that he forwarded the insurance check for the additional repairs to C.H.H. He testified that sometime subsequent to these repairs H & D sold the Hendrickson tractor.

On examination by Esposito, defendant testified that his mother and another person owned the stock of H & D; that he told Martines H & D owned the repaired tractor; and that the title to the tractor was in H & D. Defendant identified plaintiff's exhibit No. 5 as a certificate of dissolution of H & D Transport Corporation dated December 1, 1976. This certificate was admitted into evidence.

Paul Esposito testified on his own behalf that he did maintenance work for C.H.H. and had no ownership interest in C.H.H.; that he personally never received any insurance funds from defendant concerning the additional repairs to the Hendrickson tractor; and that he remembered a discussion defendant had with Gene Ross of C.H.H., and defendant giving Ross a check.

Plaintiff submitted into evidence a check for $1,742.85 payable to H & D and Dorothy Riebrandt from Protective Insurance Company. It was endorsed and deposited to an account of C.H.H.

The trial court found, inter alia, that plaintiff provided services to H & D and C.H.H., that defendant acted as an agent for H & D, that there was no evidence that plaintiff "was doing business with [defendant] in an individual capacity * * *," that defendant did not "hold himself out in an individual capacity as being the principal of H & D Transport Corporation," and that Esposito was only an employee of C.H.H. However, the court entered judgment for plaintiff against H & D, which was not an actual party defendant. Judgment was entered for defendant and Esposito and against plaintiff on the claim against them as sued in their individual capacities.

• 1 Plaintiff contends that the trial court erred in entering judgment against H & D rather than against defendant. Plaintiff asks this court to vacate the judgment against H & D and, instead, to enter judgment against defendant. It is clear from the record that H & D was no longer a party defendant in this action after the trial court's September 15, 1982, order substituting defendant for the corporation as party defendant. Thus, the judgment against H & D was erroneous and, therefore, is vacated.

Plaintiff does not challenge on appeal the trial court's finding that defendant was not acting in his individual capacity. Rather, plaintiff maintains that defendant is liable because he purported to act for a nonexistent corporation. While plaintiff asserted this argument below, the trial ...


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