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07/18/88 Freeborn & Peters, v. Professional Seminars

July 18, 1988

FREEBORN & PETERS, PLAINTIFF-APPELLEE

v.

PROFESSIONAL SEMINARS ASSOCIATES, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

531 N.E.2d 806, 176 Ill. App. 3d 714, 126 Ill. Dec. 179 1988.IL.1111

Appeal from the Circuit Court of Cook County; the Hon. Jerome T. Burke, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. CAMPBELL, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, Freeborn & Peters , an Illinois partnership and law firm, filed a four-count complaint against the defendant, Professional Seminars Associates, Inc. , a New Jersey corporation, in the circuit court of Cook County for damages allegedly sustained when PSA failed to compensate F&P for preparing materials and presenting a seminar for PSA. PSA filed a motion to dismiss F&P's complaint and the trial court granted the motion as to two counts, denied it as to the other two counts, and granted F&P leave to amend its complaint. When PSA failed to answer the remaining counts, the trial court found PSA to be in default for failure to file its answer and, later on prove up, entered judgment for F&P in the amount of $35,370.89 on F&P's quantum meruit count of its complaint. Subsequently, PSA's motion to vacate the default was denied, and it now appeals the denial of its motion to vacate the default.

F&P's four-count complaint against PSA alleged that on or about June 27, 1985, PSA and F&P orally agreed that four of F&P's attorneys, three partners and one associate, would prepare and present a three-day seminar in Chicago entitled, "The Personnel Executive and the Law." F&P alleged, and PSA agreed, that the honorarium fee was to be $1,500. F&P further alleged that PSA had agreed to reimburse F&P for any costs and expenses relating to preparation. PSA disagreed and this was the basis of the dispute between the parties.

In count I, F&P sued PSA for quantum meruit, claiming that the reasonable value of its services was the billable time of its attorneys and clerks in preparing the seminar and that these services amounted to $35,370.89. In count II, F&P sued PSA for breach of the oral contract in the amount of $4,036.89, which was the total of the $1,500 fee plus costs and expenses advanced by F&P. Counts III and IV were based upon fraudulent and negligent misrepresentation concerning PSA's alleged lack of intent to compensate F&P and its alleged misrepresentation as to the number of attendees for the proposed seminar.

As noted earlier, PSA filed a motion to dismiss in lieu of its answer, and on October 8, 1986, the trial court granted PSA's motion as to counts III and IV, allowed F&P 28 days to replead counts III and IV, and granted PSA 28 days thereafter to answer the amended complaint. PSA's motion to dismiss counts I and II was denied. F&P had asked the court to default PSA, but the court denied this motion because, the court ruled, PSA had properly filed its motion to dismiss in lieu of an answer. Subsequently, F&P filed another motion for default, and on February 25, 1987, the court granted F&P's motion and found PSA to be in default for failure to answer the original counts I and II. The court also allowed PSA's attorney leave to withdraw, and, in compliance with Supreme Court Rule 13(c) (107 Ill. 2d R. 13(c)), continued the matter for 21 days for PSA to retain new counsel.

The case was set for prove up 22 days later, on March 19, 1987, and at that time, apparently based upon time sheets and expense records of F&P, the court entered judgment for F&P in the amount of $35,370.89 on its quantum meruit count. The record before this court does not include a transcript of the proceedings on March 19, 1987, at which F&P proved up its claim. The record presented merely contains an order that a judgment was entered in the amount of $35,370.89. The only other evidence in the record to support the judgment amount is certain unverified documents attached to PSA's motion to vacate the default judgment which support PSA's assertion that the time sheets were the basis of the court's judgment. These documents appear to be merely a typed list of F&P's billed time and do not contain a total figure or any description of how the time was spent.

On April 30, 1987, PSA, represented by new counsel, filed a motion to vacate the default judgment pursuant to section 2-1301 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1301). The motion was supported by the affidavit of PSA's president, Joseph Masterson, and outlined the communication problems with PSA's initial counsel, and also acknowledged receipt of the notices of the motions to withdraw and the motion for default. In Conclusion, Masterson's affidavit asserted that the judgment had been improperly entered against PSA.

Subsequently, on May 28, 1987, PSA's newly retained attorneys were granted leave to withdraw as counsel; again, apparently due to lack of communication between the attorneys and PSA. That same day, another affidavit was filed by PSA's president, Masterson, stating that the PSA fee to F&P was agreed to be $1,500, that F&P told PSA it was preparing its own materials, and that PSA understood that it could use those materials afterwards. The affidavit further stated that when F&P sent PSA a bill for $1,500 plus $2,536.89 for materials, PSA told F&P it would pay the $1,500, upon receipt of a corrected bill, which PSA never received. F&P responded that it was to be provided with materials by PSA and that it never received any materials from PSA until the day before the seminar, and that those materials were inadequate.

PSA thereafter again obtained new counsel, and on September 15, 1987, the trial court denied PSA's motion to vacate the default judgment entered on March 19, 1987, as well as PSA's motion for a remittitur to reduce the judgment amount to $1,500. PSA has now appealed these orders which denied its motion to vacate the default judgment for $35,370.89 and denied its motion for a remittitur of the judgment amount to $1,500.

PSA raises two issues on appeal: (1) whether the trial court erred in entering a default order against PSA even though (a) PSA had filed a motion to dismiss which was granted as to counts III and IV, and F&P had failed to file its amended counts III and IV at the time of the default motion, and (b) PSA was not represented by counsel at the time of the entry of the default order; and (2) whether the trial court erred when it entered a default judgment for F&P in the amount of $35,370.89 under F&P's quantum meruit count, although the amount of the express contract fee ...


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