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12/29/89 Thomas Poulos Et Al., v. Richard A. Litwin Et Al.

December 29, 1989





549 N.E.2d 855, 193 Ill. App. 3d 35, 140 Ill. Dec. 204 1989.IL.2061

Appeal from the Circuit Court of Cook County; the Hon. Angelo D. Mistretta, Judge, presiding.


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


This is an appeal from the dismissal of a citation to discover assets against defendant, Gallo Equipment Company. At issue is whether, under section 2-1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1402), judgment creditors in a supplemental citation proceeding are entitled to a restraining order against a defendant in a personal injury suit brought by the judgment debtor in order to satisfy the creditor's claim against the proceeds if the judgment debtor's action is successful. We affirm.

Plaintiffs, James Poulos and Thomas Poulos, initially brought an action in forcible entry and detainer against defendant Richard A. Litwin. Judgment in the amount of $7,549.80 was entered in favor of plaintiffs. Following an appeal by defendant, this court held that defendant was entitled to a jury trial on the issue of damages. The matter was tried on May 31, 1988, and the jury found in favor of plaintiffs in the amount of $31,359.80.

Subsequent to the entry of that judgment, plaintiffs became aware that on January 27, 1988, defendant and his wife, Jacqueline Litwin, had filed a personal injury action in the circuit court of Cook County against Gallo Equipment Company (Gallo), TCM America, Inc. , and Grand Rock Company, case No. 88 -- L -- 1722. That case has not been resolved and has not gone to trial.

On August 6, 1988, plaintiffs issued citations to discover assets upon, inter alia, Margolis and Velasco, attorneys for Litwin, Marthe C. Purmal, attorney for TCM, and James Desveaux, attorney for Gallo. Marthe Purmal and Thomas Mangan, on behalf of Desveaux, filed motions to quash the citation proceedings, and on September 21, 1988, the proceedings against Purmal and Desveaux were dismissed with prejudice. Litwin, the judgment debtor, apparently never has been served with a citation to discover assets.

On October 5, 1988, pursuant to section 2-1402 (Ill. Rev. Stat. 1987, ch. 110, par. 2-1402), plaintiffs filed citations to discover assets against respondents Michael Gallo, president of Gallo, and TCM. Respondents were commanded to appear on October 28, 1988, to be examined under oath regarding property or income of or indebtedness due Litwin. Respondents were also directed to produce copies of any and all pleadings filed in case No. 88-L-1722. Following a hearing in which respondents argued that in order for the action to proceed, the indebtedness must be liquidated and due without contingency, the trial court dismissed the citations to discover assets with prejudice. Plaintiffs filed a motion to reconsider, which was denied, and plaintiffs appealed. Citation defendant TCM filed a motion to be dismissed from the appeal. That motion was granted, and the appeal remains pending only as to citation defendant Gallo. Just prior to oral argument, plaintiffs moved to stay this appeal on the basis that defendant Litwin had filed proceedings under chapter 7 of the Bankruptcy Code (11 U.S.C. § 701 et seq. (1988)). That motion was denied.

The parties are in agreement that this is a case of first impression in Illinois in that plaintiffs are attempting to restrain the transfer of proceeds (if any) of an unliquidated, contingent personal injury claim.

The citation defendant initially raises a challenge to the court's jurisdiction. First, relying on Moran v. Lala (1989), 179 Ill. App. 3d 771, 781, 534 N.E.2d 1319, Galo argues that by failing to include the jurisdictional statement required by Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)), plaintiffs have waived argument on the issues raised. While failing to comply with supreme court rules can result in the waiver of the issues raised, we decline to do so here, despite plaintiffs' omission of the jurisdictional statement, as there is no question but that the October 25, 1988, order was final and appealable.

Defendant also, however, asks us to address the ruling in Elg v. Whittington (1988), 119 Ill. 2d 344, 518 N.E.2d 1232, which requires that an appeal from a judgment that is final as to one or more but fewer than all of the parties or claims must be filed within 30 days of an order containing a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that the order is final and appealable. Defendant claims that the order quashing the citation was a final judgment as to Gallo and TCM but not as to all of the parties, as the citation to discover assets as against Litwin had been continued from September 23, 1988, to October 28, 1988, and he had never been served. Defendant contends that as a result of the Rule 304(a) finding, the order quashing the citations became immediately appealable and the circuit court was divested of jurisdiction to entertain plaintiffs' motion to reconsider.

Despite the Rule 304(a) language, stating that there was "no just reason for delaying enforcement or appeal" (107 Ill. 2d R. 304(a)), this action was brought as a supplementary action pursuant to section 2 -- 1402(a) of the Illinois Code of Civil Procedure. It was not piecemeal litigation as contemplated by Rule 304(a); thus, the Rule 304(a) language in the trial court's dismissal ...

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