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09/11/97 NATIONAL EDUCATIONAL MUSIC CO. v. GUSTAV

September 11, 1997

NATIONAL EDUCATIONAL MUSIC CO., LTD., PLAINTIFF-APPELLEE,
v.
GUSTAV RIECKHOFF, D/B/A QUINCY SCHOOL MUSIC CENTER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County. No. 96L3. Honorable Dennis K. Cashman, Judge Presiding.

Honorable James A. Knecht, J., Honorable Rita B. Garman, J., Concur, Honorable Frederick S. Green, J., Concur. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

After a bench trial in the circuit court of Adams County, defendant, Gustav Rieckhoff, d/b/a Quincy School Music Center, was found to have converted property of the plaintiff, National Educational Music Company, Ltd., after plaintiff had terminated, for cause, the contract between the two parties. Judgment was entered in favor of plaintiff in the amount of $20,584.60. Defendant appeals, alleging the trial court erred in refusing to grant his motion for leave to file a counterclaim and allowing one of plaintiff's witnesses to give expert testimony without being qualified as an expert. We affirm.

Plaintiff, a company based in New Jersey, operates a program renting band instruments to elementary and high school students conducted, primarily, through affiliate agreements with local music stores throughout the country. At the time of the trial in this case, plaintiff had 180 active licensed affiliates. On August 20, 1992, plaintiff and defendant entered into an affiliate agreement whereby defendant would act as an affiliate for plaintiff, renting and servicing band instruments to the public in Quincy, Illinois. In late February 1995, plaintiff's vice president sent defendant a letter stating certain problems in the business dealings of the two parties needed to be cleared up or the agreement would be terminated by May 1, 1995. On May 1, 1995, plaintiff's national franchise manager sent defendant another letter terminating the affiliate agreement.

On January 3, 1996, plaintiff filed a two-count complaint against defendant. Count I of the complaint was titled "(Accounting Action)" and sought an accounting of rental payments for instruments plaintiff alleged defendant had rented to customers but had not remitted to plaintiff. The count also requested a judgment be entered in favor of plaintiff for the amounts found not to have been remitted by defendant. Count II was titled "(Conversion)" and alleged after the affiliate agreement between the parties was terminated on May 1, 1995, defendant refused either to deliver to plaintiff or reimburse plaintiff for the value of all rental instruments, supplies and documents pertaining to them provided to defendant by plaintiff pursuant to the affiliate agreement. Plaintiff requested the value of its property still held by defendant.

Defendant was served with the complaint on January 16, 1996. On February 15, defendant sent a letter to the trial court asking for an extension of time to file an answer. The case was put on the motion calendar of March 11. On March 7, defense counsel filed an entry of appearance and request for additional time to plead. On March 11, defendant was given an additional 28 days to plead. Defense counsel filed another motion for an extension of time to plead on April 4, claiming defendant was out of town and unable to meet with counsel to prepare and answer. On April 8, defendant filed a letter with the court requesting additional time to plead because defense counsel's office had been heavily damaged by fire on April 6 and additional time would be needed to reconstruct an answer and counterclaim to plaintiff's complaint.

On April 22, defendant was given an additional 21 days to plead. Defense counsel filed an answer on defendant's behalf on May 14 denying he had failed to remit rental payments and denying he had kept instruments belonging to plaintiff. The trial court held a case-management conference on June 24 and set November 11, 1996, as the date for completion of all discovery and December 11 as the date for a bench trial. Defendant served no discovery requests upon plaintiff until October 28, when he served interrogatories and a request for production of documents. On that date, defendant also filed a motion to continue the trial date and a motion for leave to file a counterclaim for commissions not paid, infringement upon defendant's franchise territory and unauthorized charges to his account. On November 13, the trial court denied both motions.

On December 2 and 3, defense counsel filed motions to continue the trial date and a motion to compel discovery, alleging plaintiff had not complied with all of the production requested. The motions to continue were denied and the motion to compel was granted in part.Then, on December 10, defendant delivered to the office of plaintiff's counsel 120 band instruments belonging to plaintiff. Trial commenced the next day, December 11.

During the plaintiff's case, Eugene Garb, plaintiff's vice president, testified he became part owner of plaintiff in 1980 after working for many years on accounting and financial matters for plaintiff while employed with an accounting firm. He testified to the affiliate agreement with defendant and how defendant breached the agreement. Garb also testified, over defendant's objection, to the cost of repairing the musical instruments returned by defendant the day before trial. The trial court acknowledged instrument repair was not Garb's field of expertise, but Garb testified he had previously inspected many instruments that were in need of repairs and he could identify the needed repairs while not being able to do them himself. Also, in handling the financial affairs of the company, Garb had been exposed to the costs for repair work. Therefore, since defendant had, without notice, turned the instruments over the day before trial and plaintiff could not have anticipated the need for a repair expert on the day of trial, the trial court allowed Garb to testify to the cost of repairing the returned instruments.

After plaintiff had finished with its evidence, defendant moved for a directed finding on count I. The trial court granted his motion, finding there had been no evidence introduced in regard to rental receipts diverted or otherwise unaccounted for by defendant.

Defendant presented his evidence and the trial court found for plaintiff on count II and awarded a judgment of $20,584.60, of which $8,007 was the cost of repair to the returned instruments. The remainder represented the value of over 40 instruments not returned or otherwise accounted for by defendant.

Defendant first contends it was error for the trial court to deny his motion for leave to file a counterclaim. A hearing was held on defendant's motion on November 13, 1996. There is no transcript of the proceedings in the record. However, the court's docket entry indicates counsel for both parties were present that day and arguments were heard. The trial court denied defendant's motion.

A trial court's decision to deny a motion to amend pleadings is discretionary and will not be reversed absent a manifest abuse of that discretion. In re Estate of Nicholson, 268 Ill. App. 3d 689, 695, 644 N.E.2d 47, 51, 205 Ill. Dec. 831 (1994). Defendant contends plaintiff did not object to his motion to file the counterclaim. As previously noted, there is no record of the hearing on defendant's motion so we have no way of knowing for certain whether plaintiff objected to the motion, although plaintiff does not raise that point on appeal. In any case, aparty does not have an absolute right to file a counterclaim any time he wishes to do so and the timeliness of a request to amend a pleading may be considered by the trial court. Trans World Airlines, Inc. v. Martin Automatic, Inc., 215 Ill. App. 3d 622, 627, 575 N.E.2d ...


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