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01/08/87 Deporter-Butterworth Tours v. Gerald Tyrrell Et Al.

January 8, 1987

DEPORTER-BUTTERWORTH TOURS, INC., PLAINTIFF-APPELLANT

v.

GERALD TYRRELL ET AL., DEFENDANTS-APPELLEES (THE QUAD CITY BLACKHAWKS ET AL., DEFENDANTS). -- PRECISION PRESS, INC., PLAINTIFF-APPELLANT,

v.

PAUL F. TAYLOR ET AL., DEFENDANTS-APPELLEES (AMERICAN PROFESSIONAL FOOTBALL TOUR

OF EUROPE ET AL., DEFENDANTS). -- THE ATHLETIC SHOP, INC., PLAINTIFF-APPELLANT

v.

PAUL F. TAYLOR ET AL., DEFENDANTS-APPELLEES (AMERICAN PROFESSIONAL FOOTBALL TOUR OF EUROPE ET AL., DEFENDANTS)



Before proceeding to a consideration of these issues, we direct our review to cause No. 3 -- 86 -- 0026 and cause No. 3 -- 86 -- 0028 and the issue of jurisdiction over Hancock in the remaining three causes.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

of Europe et al., Defendants). -- THE ATHLETIC SHOP, INC., Plaintiff- Appellant, v. GERALD TYRRELL et al., Defendants-Appellees (The Quad City Blackhawks et al., Defendants). -- DEPORTER-BUTTERWORTH TOURS, INC., Plaintiff-Appellant, v. PAUL F. TAYLOR et al., Defendants-Appellees (American Professional Football Tour

Nos. 3-86-0026 through 3-86-0030 cons.

503 N.E.2d 378, 151 Ill. App. 3d 949, 104 Ill. Dec. 821 1987.IL.8

Appeal from the Circuit Court of Rock Island County; the Hon. Conway L. Spanton, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCOTT delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

Plaintiffs, Deporter-Butterworth Tours, Inc., Precision Press, Inc., and The Athletic Shop, Inc., appeal from orders entered by the circuit court of Rock Island County dismissing their complaints and denying their motions to reconsider. The plaintiffs' causes of action were consolidated by the trial court in its hearing on the defendants' motion to dismiss due to a common nucleus of facts and law running throughout these actions.

The plaintiffs' causes of action arose from alleged breaches of various contracts for goods and services entered into between June and August 1979 with two business entities, both allegedly partnerships, known as American Professional Football Tour of Europe and The Quad City Blackhawks. The plaintiffs filed their original complaints against the two entities on August 15, 1980. In the actions brought by plaintiffs against American Professional Football Tour of Europe, Marty Shaw and Jim Foster were named defendants individually and as partners, along with "Unknown Owners," individually and as partners, and Bob Wolfe was named individually as a party defendant. In the actions brought by Deporter-Butterworth Tours, Inc., and The Athletic Shop, Inc., against The Quad City Blackhawks, Jim Foster was named defendant individually and as a partner, along with "Unknown Others," individually and as partners, and Gerald Tyrrell and Al Pellegrini were later named defendants individually and as partners.

The "Unknown Others and Owners" named as defendants in plaintiffs' complaints were given notice by publication, and a default judgment was entered against them on November 10, 1980. Prior to satisfaction of judgment in favor of the plaintiffs, in regard to their actions against American Professional Football Tour of Europe, Foster and Wolfe, on June 26, 1984, Paul F. Taylor, Glen Gawel, Kent S. Gallagher, F. C. Bullock, Bob McGriff, Jim Hancock, and Al Pellegrini were named individually in plaintiffs' motion for leave to add as parties previously unknown owners. On August 7, 1984, each named individual filed a motion to dismiss and motion for judgment on the pleadings contending that (1) plaintiffs failed to exercise "due diligence" to uncover their identities as business owners, (2) they were added as named owners after the expiration of the statute of limitations, and (3) they were limited partners of the business entities and therefore liable to plaintiffs only to the extent of their capital contribution. The various motions and causes of action were consolidated and heard in one hearing, whereafter the trial court dismissed plaintiffs' complaints and granted judgment on the pleadings as to all defendants on December 26, 1984. Plaintiffs thereafter filed respective motions to reconsider on January 25, 1985. On December 10, 1985, the trial court entered its order denying their respective motions.

The Quad City Blackhawks and American Professional Football Tour of Europe were operating under assumed names in Rock Island County, Illinois, and neither business entity had filed a certificate disclosing the identities of the owners as provided in section 1 of "An Act in relation to the use of an assumed name in the conduct or transaction of business in this State" (the Assumed Business Name Act) (Ill. Rev. Stat. 1985, ch. 96, par. 4). Both business entities were ostensibly organized as limited partnerships, and the record reveals American Professional Football Tour of Europe was formed as a limited partnership in Iowa on June 22, 1979, with Foster named as the general partner. The individuals named in plaintiffs' motions to add as unknown owners in their actions against American Professional Football Tour of Europe were limited partners of American Professional Football Tour of Europe.

In their appeal requesting this court to reverse the orders entered by the trial court, plaintiffs raise three issues. First, whether the status of the defendants who were limited partners insulates them from any liability on the contracts entered into between the plaintiffs and the partnerships. Second, whether plaintiffs' actions filed within the statute of limitations pursuant to section 6 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 8a) are subsequently barred if the identities of "unknown owners" become known after the statute's running. Third, whether and to what extent due diligence is required of the plaintiffs in ascertaining the identity of "unknown owners" in actions brought against defendants who fail to register under an assumed business name as provided for in section 1 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4).

In the actions brought by Deporter-Butterworth Tours, Inc., and The Athletic Shop, Inc., against The Quad City Blackhawks, defendants Tyrrell and Pellegrini were named as original parties, not as "unknown owners." Further, both Tyrrell and Pellegrini were dismissed as parties defendant by the orders of the trial court entered on December 26, 1984. The record does not reveal whether either party was alleged to be a limited partner of The Quad City Blackhawks and thus the issue raised as to a limited partner's liability is inapplicable. Additionally, as they were named as original parties, the issues concerning due diligence in regard to ascertaining unknown owners is also inapplicable. In plaintiffs' motion to reconsider, the sole questions raised were in regard to the issues of "unknown owners" and "limited partners" and the liability of the defendants as such. The instant appeal arises from the order denying their motion to reconsider. The issues on appeal therefore, as defined by plaintiffs' motion, are limited to defendants' status as unknown owners and partners. No other error in granting Tyrrell and Pellegrini's motion to dismiss was raised within 30 days of the entry of the trial court's order of dismissal as required by Supreme Court Rule 303(a)(1) (Ill. Rev. Stat. 1985, ch. 110A, par. 303(a)(1)) or in the instant appeal. In keeping with this court's previous ...


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