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08/22/94 DONALD DUBEY v. ABAM BUILDING CORPORATION

August 22, 1994

DONALD DUBEY, PLAINTIFF-APPELLANT,
v.
ABAM BUILDING CORPORATION AND AUSTIN LIQUOR MART, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CONSUELO E. BEDOYA, JUDGE PESIDING.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

The circuit court of Cook County dismissed an action brought by plaintiff Donald Dubey against defendants Abam Building Corporation ("Abam") and Austin Liquor Mart, Inc. to recover a security deposit pursuant to a lease. Plaintiff now appeals.

The record on appeal indicates the following facts. Although the initial complaint is not included in the record, the half-sheet of the circuit court indicates that plaintiff filed a complaint against defendants on May 7, 1992. The summons issued in this case indicates that the suit was brought by "DONALD DUBY, o/b/o D.D.L.W. CORPORATION, a dissolved Illinois Corporation." On June 5, 1992, Austin Liquor Mart, Inc. filed a motion to dismiss the suit pursuant to section 2-619(a)(5) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619(a)(5)) ("Code"). Austin Liquor Mart, Inc. asserted that the claim was barred by section 12.80 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1991, ch. 32, par. 1.01 et seq.) ("BCA"), which provides in relevant part as follows:

"§ 12.80. Survival of remedy after dissolution. The dissolution of a corporation * * * shall not take away nor impair any civil remedy available to or against such corporation, its director, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within five years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name." Ill. Rev. Stat. 1991, ch. 32, par. 12.80.

On July 16, 1992, the trial court granted plaintiff's motion for leave to file an amended complaint to correct the caption of the initial complaint.

Plaintiff filed his First Amended Verified Complaint on July 20, 1992. In the amended complaint, plaintiff alleged that he was sole shareholder of D.D.L.W. Corporation ("DDLW") prior to its dissolution. Plaintiff alleged that on May 5, 1981, DDLW executed the lease of a store located at 175 Skokie Highway in Northbrook, Illinois, from Abam, which merged with Austin Liquor Mart, Inc. in 1986. Pursuant to the lease, DDLW paid Abam $1200 as a security deposit. A copy of the lease, including a rider requiring a $1200 security deposit, was attached as an exhibit to the amended complaint, as was a receipt for $1200. Plaintiff alleged that Abam later required an additional $1200 security deposit in consideration of additional types of business being conducted on the premises. Plaintiff attached a check from DDLW to Abam dated July 31, 1981, as an exhibit to the complaint.

Plaintiff further alleged that the premises were destroyed by fire in August 1984, for reasons not the fault of DDLW. Abam elected not to rebuild and terminated the lease as provided for by the lease. Plaintiff alleged that Abam never returned the $2400.

Plaintiff also filed a response to defendants' motion to dismiss on July 20, 1992. The half-sheet indicates that the trial court granted the motion to dismiss on October 1, 1992. Plaintiff timely filed a notice of appeal to this court.

I.

Initially, defendants claim that this court should dismiss the appeal because plaintiff failed to include the initial complaint or theorder appealed from in the record on appeal. It is well established that plaintiff, as the appellant, has the burden to present a sufficiently complete record to support a claim of error. (E.g., Foutch v. O'Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959, 76 Ill. Dec. 823.) However, an incomplete record does not preclude a reviewing court from determining whether a trial court's findings or rulings are correct where that determination can be made from the incomplete record presented. Nationwide Art Center, Ltd. v. Daley (1986), 149 Ill. App. 3d 508, 512, 501 N.E.2d 171, 174, 103 Ill. Dec. 150.

In this case, the record contains plaintiff's first amended verified complaint and the half-sheet indicating that the motion to dismiss was granted. Generally, where an amended complaint is complete in and of itself and does not refer to or adopt a prior complaint, that prior complaint ceases to be part of the record for most purposes. (See Larkin v. Sanelli (1991), 213 Ill. App. 3d 597, 602, 572 N.E.2d 1145, 1149, 157 Ill. Dec. 681.) A verified complaint would remain part of the record after amendment. ( Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, 379, 487 N.E.2d 403, 406, 93 Ill. Dec. 736.) However, defendants do not indicate whether the original complaint was verified. Defendants note that the body of plaintiff's response to the motion to dismiss refers to the dissolved corporation as a plaintiff. However, motions to dismiss a complaint pursuant to section 2-619 of the Code admit all well-pleaded facts contained in the complaint; it is the duty of this court to determine whether such allegations, viewed in the light most favorable to the plaintiff, state a cause of action. ( Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 51-52, 583 N.E.2d 561, 563, 164 Ill. Dec. 645.) This court is not required to assume that the characterizations in a response to the motion to dismiss are true or accurate.

In addition, absent draft orders indicating otherwise, the half-sheet entries are the official recordation of orders entered in the municipal division of the circuit court of Cook County. ( City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 685-86, 525 N.E.2d 915, 918, 121 Ill. Dec. 608.) Thus, the record on appeal contains both facts which this court must assume to be true and the record of the order dismissing the complaint alleging those facts. ...


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