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02/17/94 MARK HOPPA v. SCHERMERHORN & COMPANY

February 17, 1994

MARK HOPPA, PLAINTIFF-APPELLEE,
v.
SCHERMERHORN & COMPANY, DEFENDANT-APPELLANT, AND CLIFFORD D. KEMPER, MARCY R. BON DURANT, JOHN P. SCHERMERHORN, A/K/A J.P. SCHERMERHORN, J.P. SCHERMERHORN & COMPANY AND RAYMOND & ASSOCIATES, A/K/A RAYMOND AND RAYMOND, DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Joseph H. Romano, Judge Presiding.

Released for Publication April 19, 1994.

Theis, Johnson, Hoffman

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

The defendant, Schermerhorn & Company, appeals from a circuit court order requiring it to turn over $25,000, plus interest and costs, to the plaintiff, Mark Hoppa, to satisfy a default judgment in that same amount entered more than six years ago against J.P. Schermerhorn & Company, now dissolved. Schermerhorn & Company charges that the trial court erred in treating it as the successor corporation to the dissolved company and in ordering it to turn over $25,000 to Hoppa. For the reasons presented below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This action arises out of an automobile accident in November 1982, in which Hoppa sustained injuries after his car collided with two other automobiles driven by defendants Clifford Kemper and Marcy Bon Durant. In February 1984, Hoppa filed a complaint against Kemper and Bon Durant. One year later, Hoppa filed an amended complaint, adding as a defendant J.P. Schermerhorn & Company, Kemper's employer, under a theory of respondeat superior. J.P. Schermerhorn & Company was a licensed real estate broker.

On July 1, 1985, J.P. Schermerhorn was voluntarily dissolved. On that same day, Schermerhorn & Company was incorporated. Schermerhorn & Company was also a licensed real estate broker, responsible for managing numerous apartment buildings.

On October 5, 1987, the trial court entered a default judgment in the amount of $25,000 against defendants J.P. Schermerhorn & Company, and J.P. Schermerhorn, individually. On January 4, 1988, the court added Schermerhorn & Company to the judgment pursuant to Hoppa's section 2-401(b) motion to correct a misnomer. (Ill. Rev. Stat. 1987, ch. 110, par. 2-401(b).) The trial court subsequently denied J.P Schermerhorn's section 2-1401 petition to vacate the default judgment. Ill. Rev. Stat. 1987, ch. 110, par. 2-1401.

On December 21, 1989, this court reversed the final judgment order, holding that the default judgment entered against J.P. Schermerhorn, individually, and J.P. Schermerhorn & Company was void for want of personal jurisdiction. ( Hoppa v. Schermerhorn (1989), 192 Ill. App. 3d 832, 836, 549 N.E.2d 667, 670-71.) We also held that the trial court erred in amending the default judgment to include Schermerhorn & Company. We explained that Hoppa provided no support for his impression that J.P. Schermerhorn & Company and Schermerhorn & Company "appeared to be identical." ( Hoppa, 192 Ill. App. 3d at 836, 549 N.E.2d at 671.) Absent any grounds for finding that the two corporations were one and the same company, this court concluded that the addition of Schermerhorn & Company to the final judgment order was an improper section 2-401(b) amendment.

On April 20, 1990, Hoppa filed a citation to discover assets on Daniel T. Schermerhorn, the vice-president of Schermerhorn & Company, which Hoppa believed held assets or property belonging to the dissolved J.P. Schermerhorn & Company. On September 27, 1991, the trial court granted Hoppa's amended citation and commanded Daniel Schermerhorn to produce at the examination all books and records of Schermerhorn & Company, including articles of incorporation, shareholder agreements, register of shares of stock issued and outstanding, all corporate tax returns for the years 1985 through 1990, and any materials in their possession containing information about the property and assets of J.P. Schermerhorn & Company. On October 10, 1991, Daniel T. Schermerhorn appeared at his citation, as directed, but did not bring with him any books or records of Schermerhorn & Company.

On November 20, 1991, Hoppa petitioned the circuit court to enter a rule against Daniel Schermerhorn and Schermerhorn & Company to show cause why they should not be held in contempt of court for failing to produce the records required to be delivered at the citation to discover assets. In his petition, Hoppa provided new grounds to support his argument that Schermerhorn & Company and J.P. Schermerhorn & Company were one and the same corporation. Hoppa asserted that Daniel T. Schermerhorn had testified during his citation to the following: J.P. Schermerhorn & Company was dissolved on the same day that Schermerhorn & Company was incorporated; both companies conducted business at the same business address and used the same phone number; both companies maintained accounts at the same banks; both companies retained the same employees; and both companies managed the same properties.

Hoppa attached to his petition a copy of First National Bank & Trust Co. of Evanston v. J.P. Schermerhorn & Co., Inc. (1989), 192 Ill. App. 3d 1057, 549 N.E.2d 862, which involved the same corporate defendants as those here. In its summary of the facts in that case, the First National court observed that Jack P. Schermerhorn transferred all of the assets of the dissolved J.P. Schermerhorn & Company to the newly incorporated Schermerhorn & Company. First National Bank, 192 Ill. App. 3d at 1058-59, 549 N.E.2d at 863.

On January 23, 1992, the trial court entered its rule to show cause against Daniel T. Schermerhorn and scheduled a hearing date for March 3, 1992. On March 3, Hoppa orally withdrew his petition for rule to show cause and orally moved for the entry of a turnover order against Schermerhorn & Company. The trial court then ordered Schermerhorn & Company to turn over $25,000, plus interest and costs, to Hoppa to satisfy the judgment entered against J.P. Schermerhorn & Company. On June 15, ...


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