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03/08/95 A.A. STORE FIXTURES COMPANY v. GORDON G.

March 8, 1995

A.A. STORE FIXTURES COMPANY, INC., NOW KNOWN AS ROYAL INDUSTRIES, INC., PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
GORDON G. SHOPIRO, DEFENDANT-APPELLEE/CROSS-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE PAUL F. ELWARD, JUDGE PRESIDING.

As Corrected April 12, 1995. Rehearing Denied June 23, 1995. Released for Publication July 10, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Tully, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiff, A.A. Store Fixtures Company, Inc. (A.A.), filed this action against defendant, Gordon Shopiro, for judgment by confession. The case was dismissed. Plaintiff now appeals. We reverse and remand.

Plaintiff makes the following allegations on appeal: (1) that the trial court erred in applying the affirmative defense of nul tiel corporation because it had never been raised by defendant; (2) that the trial court's finding that the defense of nul tiel corporation had been raised by defendant was not supported by the record; (3) that the trial court erred by refusing plaintiff's request to amend its pleadings and by refusing plaintiff's offers of proof; (4) that the trial court erred by refusing to apply the doctrine of estoppel; and (5) that the court's decision should be reversed to the extent that it relied on plaintiff's name change in dismissing the case.

This appeal arises out of three consolidated actions brought before the trial court concerning a dispute surrounding the installation of kitchen, bar and restaurant facilities located at 5498 South Hyde Park Boulevard in Chicago, Illinois, in preparation for the opening and operation of Orly's Restaurant. Two actions, filed as numbers 81 M1 4832 and 81 CH 7623, were brought by plaintiff against defendant's son David Shopiro and the American National Bank and Trust Company of Chicago as trustee under trust number 46755, the land trust which owned the premises leased by Orly's, Inc. (the premises). The present appeal is derived from complaint number 81 L 15531, an action for judgment by confession to obtain funds promised in a note and guaranty signed by defendant, given in exchange for remodeling the premises.

Defendants subsequently filed answers and counterclaims against plaintiff in each of the above suits. Defendants also filed third-party complaints against Ability and A.A., as well as their principals, Irving Naditch and Richard Amend. In said pleadings, defendants alleged that plaintiffs failed to perform their contracts to supply labor, services and materials necessary for the opening of defendant's restaurant.

In the present case, the court entered a judgment upon the confession. Defendant filed a motion to open the judgment on November 24, 1981, which was granted. On March 1, 1985, the trial judge set the case on trial assignment call for March 21, 1985. On March 21, 1985, the trial judge dismissed the case for want of prosecution (DWP). The case was later reinstated and set for trial on April 7, 1986, however, no trial took place on that date. On or about June 7, 1987, David Shopiro filed a petition for bankruptcy with the United States Bankruptcy Court. David Shopiro was granted a discharge by the Bankruptcy Court on or about April 4, 1988.

On November 19, 1987, plaintiff filed a motion for summary judgment. On June 14, 1988, an order of summary judgment was entered in favor of plaintiff and against defendant in the amount of $59,253.67. On December 9, 1988, plaintiff filed a citation to discover the assets of defendant. Defendant later moved to quash plaintiff's citation to discover assets and to vacate the summary judgment order of June 14, 1988.

On March 27, 1989, the trial court held that the June 14 summary judgment order was not final with respect to defendant because the order did not dispose of all of the parties and pending claims. The motion to vacate the order of June 14, 1988, was transferred to another judge for further proceedings. On March 30, 1989, after defendant's motion to vacate was transferred and argued, the trial court set the matter for a hearing on May 8, 1989. On May 10, 1989, the trial court vacated the June 14 order and the cause was returned to the trial call for assignment.

On November 14, 1990, plaintiff filed a motion to set the case for trial and/or a finding that the case is properly brought before the court as an active case. The trial court vacated the prior DWP order and set the case for trial on January 3, 1991.

On November 27, 1990, however, the case was DWP'd again. On January 23, 1991, plaintiff filed a motion to vacate the NovemberDWP order. On March 6, 1991, defendant made a special and limited appearance, due to want of personal jurisdiction, and moved to dismiss plaintiff's motion to vacate the dismissal order entered on November 27, 1990. On March 14, 1991, the court granted defendant's motion and dismissed plaintiff's motion to vacate the dismissal order of November 27, 1990.

On May 3, 1991, the parties entered into an agreed order to vacate the March 14, 1991 dismissal order. Defendant's motion to dismiss plaintiff's motion to vacate the dismissal order of November 27, 1990, was then set for a hearing on July 2, 1991. On June 25, 1991, the trial court held that plaintiff's motion to vacate the DWP order entered on November 27, 1990, constituted a 2-1401 petition (Ill. Rev. Stat. 1991, ch. 1101, par. 2-1401). The court then required plaintiff to give defendant notice pursuant to section 2-1401 of the Code of Civil Procedure. On July 11, 1991, the matter was set for a hearing for August 8, 1991. On August 8, 1991, the hearing was continued until August 13. On August 14, 1991, the DWP order of November 27, 1991, was vacated and the cause was set for a trial on September 10, 1991.

After numerous motions to dismiss the case and motions to vacate the DWP orders, the trial began on September 19, 1991. At the commencement of trial, defendant presented a series of motions to the court. Defendant's initial motion for a change of venue was denied and is not part of this appeal. Defendant's second motion was a motion to dismiss on grounds of lack of subject matter jurisdiction. Defendant argued that the March 1985 dismissal acted to remove the jurisdiction of the trial court to hear the case. In support of its position, defendant presented the affidavit of Orrin Rotman, attorney for defendant during 1988, which stated that while representing defendant, he was unaware that the March 1985 dismissal had never been vacated. The court refused to consider the affidavit and to file it in the record. Defense counsel objected to the failure to include the affidavit in the court record.

On September 19, 1991, plaintiff dismissed Orly's, Inc. and David Shopiro as defendants. Thereafter, the court heard argument on defendant's motion for leave to amend the pleadings to co-adopt the counterclaim and third-party complaint filed by David Shopiro in case number 81 L 15531, and to add affirmative defenses. Defendant argued that because of the dismissal orders entered in the case, the last of which was not lifted until August of 1991, defendant did not have substantial opportunity to amend in preparation for trial. Defendant also argued that prejudice was not present because the claims had been on file for 10 years. The court denied the motion on thegrounds that to allow amendment at trial 10 years after the initial pleadings would constitute "an imposition on the resources of the judicial system."

The next item considered was the Rule 237 notice (134 Ill. 2d R. 237) served upon plaintiff by defendant. The trial court ordered compliance with the Rule 237 notice, including the request for corporate minutes and specified records of A.A. and Ability.

On September 20, 1991, the trial court conducted an additional review of the Rule 237 notice. Plaintiff tendered the minute book of A.A. and Ability to defendant. The following colloquy occurred during the trial:

DEFENSE COUNSEL: In that line, Your Honor, I would just like a representation from Mr. Grossman that the A.A. minute book which has been presented is the complete book. I took a look at it and the last ...


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