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12/15/89 Todd M. Swaw Et Al., v. Todd M. Swaw Et Al.

December 15, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION VETERAN SUPPLY COMPANY, PLAINTIFF-APPELLEE

v.

TODD M. SWAW ET AL., DEFENDANTS-APPELLANTS

THE APPLICABLE STATUTES ARE AS FOLLOWS (ILL. RE

v.

STAT. 1987, CH. 38, PARS. 17-1, 17-1A): "§ 17 -- 1. DECEPTIVE PRACTICES. . . .



548 N.E.2d 667, 192 Ill. App. 3d 286, 139 Ill. Dec. 282 1989.IL.1962

Appeal from the Circuit Court of Cook County; the Hon. Robert W. Krop, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE EGAN delivered the opinion of the court. McNAMARA and LaPORTA,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

The defendants, Todd M. Swaw and Richard J. Swaw, were officers of a corporation, Brother's Pizza Pub, Inc., who signed corporate checks which were delivered to the plaintiff, Veteran Supply Company, in payment for goods. The checks were returned to the plaintiff because the corporate account had insufficient funds. The plaintiff sued under that part of the criminal code fixing civil liability for deceptive practices. (Ill. Rev. Stat. 1987, ch. 38, par. 17-1a.) The Judge granted the plaintiff's motion for summary judgment.

General Deception

A person commits a deceptive practice when, with intent to defraud:

(d) With intent to obtain control over property or to pay for property, labor or services of another, or in satisfaction of an obligation for payment of tax under the Retailers' Occupation Tax Act or any other tax due to the State of Illinois, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered, or when such check or other order is presented for payment and dishonored on each of 2 occasions at least 7 days apart, is prima facie evidence that the offender knows that it will not be paid by the depository, and that he has the intent to defraud."

"§ 17 -- 1a. Civil Liability for Deceptive Practices. A person who issues a check or order to a payee in violation of Section 17 -- 1(d) and who fails to pay the amount of the check or order to the payee within 30 days following a written demand delivered by certified mail to the person's last known address, shall be liable to the payee or a person subrogated to the rights of the payee for, in addition to the amount owing upon such check or order, damages of treble the amount so owing, but in no case less than $100 nor more than $500, plus attorney fees and court costs."

To recover under the statute, therefore, the plaintiff had to show (1) that the defendants delivered a check to obtain personal property; (2) that the defendants knew at the time that the account was insufficient to pay the check; (3) that the defendants acted with the intent to defraud; and (4) that the defendants failed to pay on demand.

The record establishes that the checks were presented and dishonored on two occasions which were at least seven days apart. Therefore, the plaintiff established prima facie evidence of intent to defraud under the terms of the statute.

Throughout the proceedings in the trial court and in the brief submitted by the defendants, who did not file a reply brief, no claim was made that the evidence failed to establish an intent to defraud. In both the trial court and the defendants' brief in this court the only argument advanced was that the corporation, and not the defendants, was the "person" who issued the check.

The day before oral argument was to be heard, we granted the defendants leave to supplement their original brief under the mistaken assumption that it was a motion for leave to cite additional authority. During oral argument we granted the plaintiff leave to file a response to the supplemental brief. The plaintiff has filed a motion to vacate the order granting leave to file the supplemental brief, contending that the supplemental brief argues for the first time that the plaintiff failed to establish an intent to defraud. The defendants have not responded to the motion to vacate. We agree with the plaintiff's argument that, since the defendants failed to raise the issue in the trial court or in their brief in this court, the question is waived. Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App. 3d 457, 464 N.E.2d 761.

We recognize that the rule we invoke is not absolute (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831), but we think its application is appropriate here. When the Judge expressed the reasons for his findings, he noted that the defendants had failed to plead any facts showing they were unaware of the status of the corporate bank account or any facts which might relieve them of culpability. In our judgment, the trial Judge's remarks invited a prayer for post-trial relief in which the defendants could have contended that the record failed to establish an intent to defraud. (See Wright v. County of Winnebago (1979), 73 Ill. App. 3d 337, 391 N.E.2d ...


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