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Mcgrew v. Heinold Commodities

OPINION FILED AUGUST 19, 1986.

DOUGLAS MCGREW, PLAINTIFF-APPELLANT,

v.

HEINOLD COMMODITIES, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:

Plaintiff, Douglas McGrew, appeals from the dismissal of eight counts of his amended complaint against a former creditor and the creditor's attorney as a result of their issuance of garnishment summonses when he owed them no money. We affirm in part and dismiss the appeal in part.

On or about March 15, 1982, plaintiff opened a commodities account with defendant Heinold Commodities, upon which he traded without incident until about October 21, 1982, when his account was alleged to have a deficiency of $1,097.73. Not having received payment, defendants filed suit against plaintiff on January 5, 1983. Plaintiff was served with a summons having a return date of February 3, 1983. On January 20, 1983, plaintiff sent a check to defendant Heinold for $1,125, which was credited to his account on January 24, 1983, leaving a balance of $3.86. Heinold mailed statements to plaintiff reflecting this payment. Plaintiff later closed his account with Heinold and the balance of $3.86 was refunded.

On February 3, 1983, co-defendant Shepherd, as attorney for Heinold, filed a motion for default judgment. On June 16, 1983, judgment was entered against plaintiff for $1,523.95, including attorney fees, based upon the affidavits of Shepherd and William Sevetson, Heinold's secretary and director of compliance. Shepherd instituted garnishment proceedings upon the default judgment on July 11, 1983. He filed affidavits to support issuance of the summonses, and served garnishment summonses on plaintiff's employer and bank. Plaintiff's bank responded to the garnishment interrogatories eight days later.

Plaintiff learned of the garnishments on July 16, 1983, after returning from vacation, and he immediately contacted defendants. On July 25, 1983, a release of judgment was filed and copies were mailed to plaintiff's bank and his employer. One year later, plaintiff filed this lawsuit against Heinold and Shepherd. In response to defendants' motions to strike and dismiss, plaintiff filed an amended complaint containing 10 counts.

In count I of the amended complaint, plaintiff alleged that defendant Heinold Commodities wrongfully caused the issuance of a wage-deduction summons in violation of section 12-817 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 12-817). Plaintiff claimed that as a proximate result of service of the summons on his employer his business and personal reputations at his place of employment were injured. He added that he experienced "physical and mental pain and suffering and emotional distress" which required medical treatment and would continue to generate medical expenses in the future. Plaintiff also claimed that he incurred attorney fees and other expenses in attempting to stop the garnishment. Plaintiff prayed for damages in excess of $15,000 plus attorney fees and costs. This count is one of two counts presently pending in the trial court.

In count II, plaintiff realleged the facts and statutory violation asserted in count I (except for the specific allegations of damages) and charged that defendant Heinold Commodities knew or should have known that plaintiff's account had been paid in full "but despite said knowledge, intentionally, recklessly, willfully and wantonly caused garnishment summons to be issued upon plaintiff's employer." Plaintiff prayed for $250,000 in punitive and exemplary damages from Heinold, plus interest, reasonable attorney fees and costs and expenses. The circuit court dismissed count II.

Count III was virtually identical to count I, except that it was directed against defendant Shepherd. This count also remains pending in the trial court. Count IV was identical to count II in seeking punitive and exemplary damages, but it was directed against defendant Shepherd. It was dismissed by the circuit court.

Count V charged that Heinold had an "ulterior purpose for the use of regular court process * * * to harass and cause economic injury to the plaintiff and damage to his personal and professional reputation." Plaintiff added that Heinold's action in obtaining either garnishment summons was "not proper in the regular prosecution of its lawsuit" because plaintiff had paid his account nearly six months earlier. Plaintiff reasserted the same injuries alleged in count I and added that "as a direct and proximate result of [Heinold's] abuse of process" he was denied the use of his funds at the bank, and his reputations with the bank and his employer were injured.

Count VI essentially repeated the allegations in count V but added that Heinold "knew or should have known that Plaintiff's account had been paid in full * * * but despite said knowledge, intentionally, recklessly, willfully and wantonly caused garnishment summonses to be issued." It concludes, "Plaintiff is entitled to punitive and exemplary damages against the defendant HEINOLD COMMODITIES, INC. in the sum of $250,00 for their willful and wanton abuse of process." In addition, it prays for interest, attorney fees, costs and expenses.

Counts VII and VIII assert similar claims against defendant Shepherd, the latter count being for punitive damages.

Counts IX and X are similarly directed against Heinold and Shepherd, respectively. They incorporate by reference the basic factual allegations in previous counts and add:

"6. That the aforesaid Summons for garnishment and Wage Deduction Summons were publicized matters by the defendant which invaded the Plaintiff's right to privacy by placing him in a false light before his peers, and the general public in that the aforesaid publicized matter conveyed the impressions that Plaintiff failed to pay his debts, ...


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