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05/09/94 LORI J. BLOMQUIST v. SAMANTHA KENT

May 9, 1994

LORI J. BLOMQUIST, PLAINTIFF-APPELLEE,
v.
SAMANTHA KENT, DEFENDANT-APPELLEE, ALLIED AMERICAN INSURANCE COMPANY, GARNISHEE DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ROBERT CAHILL, JUDGE PRESIDING.

Campbell, O'connor, Jr., Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Garnishee Defendant-Appellant, Allied American Insurance Company, (Allied), appeals from the October 3, 1991, order of the trial court entering judgment in favor of Samantha Kent, the defendant in a personal injury damage action, for the use of plaintiff, Lori Blomquist, against Allied, for $10,000 plus costs. Allied further appeals from the February 5, 1992, order of the trial court: (1) denying Allied's motion to compel plaintiff to produce a document for inspection; and (2) denying Allied's post-trial motion to reconsider. On appeal, Allied contends that: (1) the trial court erred in entering judgment against it, where evidence at the garnishment hearing revealed that Allied never received notice of plaintiff's lawsuit; (2) the trial court erred in admitting certain hearsay evidence at the hearing; and (3) the trial court erred in denying Allied's post-trial motion to compel plaintiff to produce evidence admitted during the garnishment hearing.

The record contains the following relevant facts. On June 4, 1991, plaintiff filed an "Affidavit of Garnishment (Non-Wage)" alleging that on April 25, 1991, plaintiff obtained a judgment of $10,000 plus costs and interest against defendant. On July 8, 1991, Allied filed a "No Funds" answer, along with "Affirmative Matters," alleging that defendant failed to comply with a condition of the applicable Allied insurance policy, by failing to forward to Allied every demand, notice, summons or other process, and by failing to provide Allied with actual notice of plaintiff's complaint.

A garnishment hearing commenced on October 3, 1991. The record reveals that no court reporter was present at the hearing, and that the proceedings were not transcribed. Instead, the parties submitted on appeal a "Report of Proceedings" which was certified by the trial court on June 26, 1992. In addition, the parties included in the record on appeal an "Agreed Statement of Facts," which, subject to a few paragraphs that are not agreed upon, represents the parties' recollection of the proceedings.

The agreed facts are as follows. At the hearing, on October 3, 1991, Allied argued that plaintiff had the burden of proof to establish that Allied was obligated to pay the judgment entered against the defendant. The trial court ruled that the burden of proof was upon Allied. Neither the defendant nor the defendant's attorney appeared at the hearing.

Allan Zussman, an adjuster for Allied, testified that Allied had not received any notice of plaintiff's lawsuit until served with the garnishment action.

On cross-examination, Zussman testified that Valerie Makowski, another Allied adjuster, worked on the file extensively, and that the file contained several pieces of correspondence between plaintiff's counsel and Makowski. Plaintiff's counsel recalls that Zussman testified that he saw Allied's file in this matter for the first time to prepare for his testimony on October 3, 1991. Allied's counsel denies that Zussman ever made such a statement.

Zussman identified an original letter and Notice of Attorney's Lien from plaintiff's counsel to defendant dated March 16, 1989. He further testified that Allied received the letter from defendant. Plaintiff's counsel asked Zussman if the file contained a letter from plaintiff's counsel to Makowski dated September 11, 1990. Zussman stated that he could find no letter from plaintiff's counsel to Makowski dated September 11, 1990, and stated that Allied never received the letter.

Plaintiff's counsel stated that the September 11, 1990, letter was a letter he had written and mailed on that day to Makowski, along with a copy of the summons and complaint. Plaintiff offered into evidence exhibit 1, a copy of the September 11, 1990, letter. Plaintiff's counsel was not sworn in as a witness.

Allied objected to exhibit 1 being received as evidence arguing that: (1) it was hearsay; (2) no foundation had been laid to authenticate the document; and (3) no foundation had been laid to establish that exhibit 1 was actually sent to Allied. The court overruled these objections and admitted exhibit 1 into evidence.

Plaintiff's counsel recalls that thereafter, Allied failed to cross-examine plaintiff's counsel regarding exhibit 1. Allied's counsel recalls that she was not given the opportunity to cross-examine plaintiff's counsel.

In subsequent post-trial proceedings, Allied argued that it was deprived of the opportunity to cross-examine plaintiff's counsel at the October 3, 1991, hearing. At that time, the trial court offered to Allied's counsel the opportunity to cross-examine plaintiff's counsel regarding exhibit 1. Allied argued that no evidence had been presented to contradict ...


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