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Peri. Ex., Ltd. v. Glen. Mol. Bin.

OPINION FILED FEBRUARY 22, 1984.

PERIMETER EXHIBITS, LTD., PLAINTIFF,

v.

GLENBARD MOLDED BINDER, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE (THOMAS W. BRUCKMAN, THIRD-PARTY DEFENDANT-APPELLANT; WILLIAM J. STREFF ENTERPRISES, LTD., THIRD-PARTY DEFENDANT).



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

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

JUSTICE VAN DEUSEN delivered the opinion of the court:

The third-party defendant Thomas W. Bruckman, a former corporate officer of the third-party plaintiff, Glenbard Molded Binder, Inc., appeals from a trial court order granting a default judgment in favor of the third-party plaintiff against him in the sum of $2,300.

On December 21, 1981, Perimeter Exhibits, Ltd. (Perimeter), filed its complaint against Glenbard Molded Binder, Inc. (GMB), for the balance due and owing on a contract to construct a trade show exhibit booth. On May 17, 1982, GMB filed a third-party complaint against Thomas W. Bruckman and W.J. Streff Enterprises, Ltd. (Streff Enterprises). As succinctly summarized by Bruckman in a motion for dismissal of the third-party complaint, the third-party complaint alleged that third-party defendant Bruckman breached a duty of loyalty as an employee of GMB in cooperating with Streff Enterprises in appropriating GMB booth space at a trade show for display of a non-GMB product called Multi-File and sought damages for the proportionate value of the GMB booth used to display Multi-File.

Bruckman was served with summons and a copy of the third-party complaint on May 26, 1982. On June 18, 1982, William J. Streff, an attorney and also an officer of Streff Enterprises, filed an appearance on behalf of W.J. Streff Enterprises, Ltd., and Thomas W. Bruckman. On June 26, 1982, both third-party defendants were in default for failure to answer or otherwise plead.

Upon discovering that an appearance had been filed by the third-party defendants, GMB served notice on Bruckman and Streff Enterprises that it would seek an order of default against them on September 8, 1982, for failure to plead. On September 8, 1982, both William J. Streff and Thomas Bruckman appeared in person. The court, under the misapprehension that Bruckman had filed his appearance pro se, granted Bruckman's motion for additional time to answer or otherwise plead and ordered Bruckman to answer by September 29, 1982. In the same order the court entered an order of default against Streff Enterprises and took the motion for default against Bruckman under advisement; discovery cut-off was set for December 31, 1982, and trial was set for January 7, 1983.

No answer or other pleading was filed by or on behalf of Bruckman, and on December 29, 1982, GMB filed another motion for an order of default against Bruckman and a motion to prove up damages and for the entry of a money judgment against both third-party defendants. On the same date attorneys Marconi and Morrison moved for leave to enter their appearance on behalf of Bruckman and to grant Bruckman leave to answer or otherwise plead to the third-party complaint. In an order entered that day, the trial court denied GMB's motion for an order of default against Bruckman but awarded GMB $300 attorney fees as a sanction for Bruckman's failure to plead; granted Marconi and Morrison leave to file their appearance on behalf of Bruckman; gave Bruckman one day in which to file his responsive pleading; and extended the discovery cut-off until January 5. Also, on December 29 the judge orally advised that the case would be tried on January 7, 1983, and admonished attorney Morrison to make his client available for a deposition prior to the new discovery cut-off date.

On December 30, 1982, Bruckman filed a motion to dismiss pursuant to section 2-619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-619(a)(3)) alleging a prior pending action between the same parties for the same cause, and he filed his answer and affirmative defenses. His motion and one of the affirmative defenses referred to cases Nos. 81 CH 8410, 81 CH 8411 and 81 CH 8346, all pending in the circuit court of Cook County.

On December 30, 1982, GMB's counsel mailed a notice of deposition to Bruckman's attorney for January 4, 1983, following the failure of Bruckman's counsel to return GMB's attorney's call the prior afternoon to arrange such deposition on January 3, 4 or 5. On January 3, Bruckman's attorney called GMB's attorney and advised him that Bruckman would not appear for the deposition and was told that such failure would be unacceptable. On January 5, 1983, GMB filed a motion for sanctions alleging, inter alia, Bruckman's failure to appear for the January 4 deposition because he had left town on business January 3 and requesting that Bruckman be debarred from maintaining any defense to the complaints on file and be barred from filing any further pleading other than those allowed by the December 29 order. GMB also filed a motion to strike Bruckman's affirmative defenses.

On January 5 Bruckman filed a motion to sever the third-party complaint from the main action and to continue the third-party action, a motion for leave to file a counterclaim and to name three additional defendants, and a motion to quash the notice for the January 4 deposition claiming that GMB sent notice of the deposition before his attorney was able to contact Bruckman, as the attorneys had agreed by phone, to arrange for a convenient date.

On January 7, the date set for trial, the judge denied Bruckman's section 2-619 motion, reviewed the procedural history of the case and granted GMB's motion for sanctions for Bruckman's wilful refusal to submit to a deposition. The court therefore struck Bruckman's answer and affirmative defenses and found Bruckman to be in default, and the third-party complaint was taken as confessed against him. After reviewing the affidavits submitted for the prove-up of damages, the court entered judgment in favor of Perimeter and against GMB on the original complaint and also entered judgment in GMB's favor on the third-party complaint for $2,300. The court refused to rule on any of the other pending motions Bruckman had filed including his section 2-615 motion to dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 2-615) filed that day.

On February 4, Bruckman filed a motion to vacate and a motion for change of venue for purposes of hearing the motion to vacate, alleging the trial judge to be prejudiced against him and his attorneys. On March 14, 1983, Bruckman's motions to vacate and for a change of venue were denied. On the same day, Bruckman filed his notice of appeal of the January 7, 1983, order and the denial of his post-trial motion.

Bruckman first maintains on appeal that the trial court erred in denying his section 2-619(a)(3) motion (Ill. Rev. Stat. 1981, ch. 110, par. 2-619(a)(3)) in that the third-party complaint was preceded by a pending action for the same cause. In his motion, he referred specifically to case No. 81 CH 8411 filed in Cook County over seven months prior to the third-party complaint. In that case, GMB requested declaratory and injunctive relief alleging, inter alia, Bruckman's unauthorized appropriation of a portion of GMB's trade show booth for the display of Streff Enterprises' products, in which GMB had no interest. In the third-party complaint, GMB seeks damages from Bruckman and Streff Enterprises for a proportionate value of the GMB booth used to display those Streff Enterprises products. Therefore, it is Bruckman's position that the cause is the same and the third-party complaint should have been dismissed.

In denying Bruckman's motion, the court noted the different relief sought in the two actions, and it found that the issues and parties were different and that its findings in the third-party complaint ...


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