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Bianchi v. Savino Del Bene International Freight Forwarders

May 07, 2002

KAREN BIANCHI, PLAINTIFF-APPELLANT,
v.
SAVINO DEL BENE INTERNATIONAL FREIGHT FORWARDERS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County 99 L 12841 Honorable Thomas P. Quinn, Judge Presiding

The opinion of the court was delivered by: Justice McBRIDE

Released for publication.

Plaintiff Karen Bianchi appeals the dismissal of a second citation to discover the assets of her former employer, defendant Savino Del Bene International Freight Forwarders, Inc. Savino, an Illinois corporation based in Elk Grove Village, sent Bianchi to work in Italy for a year but terminated her employment after eight months. Bianchi's citation was based upon an Italian labor court's judgment, which determined that Bianchi's employment had been improperly terminated. The order provided that Bianchi's former employer pay her "back wages" or "matured salary" between the dates of the termination and her reinstatement. Bianchi initiated the citation proceedings (735 ILCS 5/2-1402 (West 1998)) to enforce the Italian judgment and, on the same day, filed a complaint to recognize the Italian judgment pursuant to the Uniform Foreign Money-Judgments Recognition Act (735 ILCS 5/12-618 through 12-626 (West 1998)) (Recognition Act).

Savino's motion to dismiss the citation proceedings was granted after the trial court found that the Italian judgment did not state a specific amount of money as required by the supplementary proceedings statute, section 2-1402(b) of the Code of Civil Procedure. (735 ILCS 5/2-1402(b) (West 1998)). On appeal, Bianchi contends that the foreign judgment was sufficiently final, conclusive, and enforceable where rendered and, therefore, was entitled to recognition and enforcement in Illinois pursuant to the Recognition Act.

The record discloses the following facts. Savino's parent company is headquartered in Scandicci, Italy. Savino hired Bianchi, an American, to work in Italy as its sales representative between March 1995 and March 1996 at an annual salary of $38,000. The parties' written contract specified these terms. It also provided that all questions concerning "the validity or construction" of the contract would "be determined in accordance with the laws of Illinois," and that if Bianchi's employment was terminated by Savino before the expiration of the contract, Savino would pay her three months' severance and "have no further obligation." After the parties reached this agreement, Bianchi moved to Florence, Italy, into a company-provided apartment and began working out of the parent company's offices. However, in November 1995, an employee of the parent company verbally terminated her employment and Savino followed up with a letter indicating that her sales position had been eliminated.

Bianchi filed suit in the Florence labor courts on June 13, 1996, seeking reinstatement and damages from Savino and the parent company. After a trial on the merits, the Italian court rendered a decision on February 12, 1998, finding that the parties' written contract was "null and void," Bianchi's verbal termination was "null and void," and the letter terminating her employment was ineffective.

The court ordered Savino to pay Bianchi's "back wages" or her "matured salary," "beginning from [the date of her improper termination] until the readmittance to her own work, in addition to monetary revaluation and legal interest based on individual credit matured until settlement; *** [and] the costs of the proceedings, liquidated in the amount of Italian Lire 7,485,500." The court did not specify a wage or salary figure, and it did not order Savino to reinstate Bianchi, leaving the amount of Bianchi's award undetermined.

Savino did not rehire Bianchi or pay her any damages, and on November 12, 1999, she filed a complaint to recognize the foreign judgment in the circuit court pursuant to the Recognition Act. Bianchi attached the Italian judgment and an authenticated English translation of the same as exhibits to her complaint. She simultaneously filed a citation to discover Savino's assets pursuant to the supplementary proceedings statute, specifying that the foreign judgment was for "Italian Lire 187,778,011 plus interest and costs."

On December 10, 1999, Savino filed a "motion to vacate [the] foreign judgment,"arguing that the foreign order should not be recognized in Illinois because (1) Bianchi had waived any legal claims by accepting three months' severance pay shortly after her termination, (2) the Italian court had rejected the parties' choice of law clause and applied Italian law, rendering a decision that was "repugnant" to Illinois public policy, and (3) the Italian decision was not sufficiently certain. This motion does not appear to have been ruled upon by the trial court and is not the subject of this appeal.

Savino also moved to dismiss the citation proceedings, arguing that the Italian judgment was "facially invalid" and did not meet the requirements of the supplementary proceedings statute, because it did not award a specific amount of damages and was contingent upon Bianchi's reinstatement. Bianchi responded that Savino's reliance on the supplementary proceedings statute was misplaced, and she directed the trial court's attention to the Recognition Act. She stated that the foreign decision was "final and conclusive and enforceable where rendered," and therefore entitled to enforcement in Illinois pursuant to the Recognition Act. Bianchi, however, did not provide any Italian statutes or case law to support her conclusion that the Italian courts would construe the decision as final, conclusive, and enforceable. Instead, she argued that under section 12-620 of the Recognition Act (735 ILCS 5/12-620 (West 1998)), a "foreign judgment *** is conclusive between the parties to the extent that it grants or denies recovery of a sum of money," and she argued that the Italian judgment was conclusive because it contained an "exact formula" for determining "recovery of a sum of money." She also argued that damages would accrue until Savino formally offered to reinstate her, but she did not provide any Italian legal authority to support this conclusion.

On December 29, 1999, the trial court dismissed the citation, finding that the Italian judgment was "not enforceable because it does not specifically state the amount of judgment as required by 735 ILCS 5/2-1402(b) [(West 1998)]." The trial court quoted the portion of the order indicating that Bianchi is to be paid "the matured salary beginning from [the date of her improper termination], until the readmittance to her own work, in addition to monetary revaluation and legal interest based on individual credit entries matured until settlement," and held, "This provision is so ambiguous that this court cannot conclude that plaintiff's damage calculation is supportable." The trial court pointed out that the term "matured salary" was never defined and that the parties' employment contract providing for Bianchi's $38,000 annual salary had been "declared null and void by the Italian court." Based on these deficiencies, the trial court concluded, "The amount of the judgment cannot, at this time, be determined."

On January 26, 2000, Bianchi filed a new set of pleadings consisting of an amended complaint to recognize a foreign judgment and a second citation to discover assets.

The amended complaint was similar to her prior complaint but added an "Intimation of Payment," (intimation) in its original Italian form and an authenticated English translation of the intimation. Bianchi stated that the intimation was "issued on June 18, 1998," and, in a footnote, explained, "Under Italian civil law, an Intimation of Payment is a notification to the other party in a legal proceeding that presents the computation of damages resulting from the formula presented in the court's judgment." Although Bianchi referred to "Italian civil law," she did not plead any specific Italian statute supporting her statement about the intimation and did not plead what the required form and contents of an intimation were under Italian law. She also failed to plead when, where, how, or if Savino received the intimation she had "issued" four months after the Italian court reached its decision, and she gave no indication of what additional rights an intimation creates within the Italian legal system. She concluded, however, that the order and intimation were "in full force and effect [because] no action has been taken in the rendering court to set [them] aside ***, and no appeal *** is pending."

In the intimation, Bianchi warned Savino that if it did not pay certain sums within 10 days of service, Bianchi would commence enforcement proceedings. She sought Italian Lire 155,456,00, indicating this was her gross salary between February 7, 1996 and June 7, 1998, based upon an exchange rate of $1 to Italian lire (L) 1,753.30. Bianchi did not indicate why she used these particular dates for her calculations, and we note that they do not coincide with Bianchi's verbal termination on November 7, 1995, her written termination on November 14, 1995, the commencement of her lawsuit on June 13, 1996, or the judgment date of February 12, 1998. Using Bianchi's exchange rate, her salary demand was $88,665. She also sought L3,295,430 ($1,880) for "Monetary revaluation from February 1996 to May 1998," and what appear to be attorney fees and litigation expenses, including L1,100,000 ($627), L40,000 ($23), and L160,000 ($91) for "Expenses liquidated," "collection of authentic copies," and "consultation." The non-salary amounts totaled L24,836,511 ($14,166), and brought the intimation's overall total to L180,292,511 ($102,830). The intimation stated, however, that Bianchi was reserving "the right to ask for the further payments of gross salaries from 7 June 1998 on." The document was signed by Bianchi and her Italian counsel.

Bianchi's amended complaint to recognize a foreign judgment concluded with a prayer for judgment "in accordance with 735 ILCS 5/12-620 [(West 1998)]," the section of the Recognition Act indicating that a foreign judgment is conclusive between the parties to the extent that it grants recovery of a sum of money.

Bianchi's second citation to discover assets specified that the Italian judgment was for "Italian Lire 187,778,011 plus interest and costs," however, we note that L187,778,011 ($107,099) is actually the sum of Bianchi's intimation (L180,292,511 or $102,830) and the foreign court's award of a specific amount of costs (L7,485,500 or $4,269).

Savino moved to dismiss Bianchi's second citation, again arguing that the Italian judgment was "facially invalid" because it did not state a specific amount of damages and was contingent upon Savino reemploying Bianchi. Savino argued that the intimation added nothing to the proceedings because there was no indication it had been served upon Savino and it was "only Plaintiff's counsel's opinion as to what damages Plaintiff would assert at a prove-up hearing - it is clearly not a judgment of the Italian Court." At the conclusion of a hearing on February 7, 2000, the trial court dismissed Bianchi's second citation, finding that the addition of the intimation did not cure the problems identified in the first dismissal order.

On March 7, 2000, Bianchi filed a motion for reconsideration arguing that section 12-621(a) of the Recognition Act (735 ILCS 5/12-621(a) (West 1998)), permitted the trial court to deny enforcement of a foreign judgment only when the foreign system lacked due process or when the rendering court lacked personal or subject matter jurisdiction, but since none of these three specific conditions applied to the order at issue, the circuit court should have construed the Italian judgment as final, conclusive, and enforceable where rendered, pursuant to section 12-619 of the Recognition Act (735 ILCS 5/12-619 (West 1998)).

She argued the order was conclusive between the parties because it granted recovery of a sum of money, in accordance with section 12-620 of the Recognition Act (735 ILCS 5/12-620 (West 1998)). She indicated that she had "tendered" the intimation to Savino seeking a specific sum, "as provided by the Italian Code of Civil Procedure," but believed that the trial court had "failed to make due inquiry about the enforcement of judgments under the Italian Code of Civil Procedure," and therefore it did not understand the significance of the intimation.

In order to "assist" the trial court, Bianchi offered a letter to the court from two Italian practitioners that discussed remedies for unfair dismissal under Italian labor law and procedures for enforcing a judgment in the Italian courts, and that provided their interpretation of the order at issue. Although the practitioners discussed specific Italian statutes, they did not provide the actual statutes or verify the authenticity of the provisions they purported to translate.

Bianchi cited the letter and argued that under Article 474 of the Italian Code of Civil Procedure, a money judgment is enforceable when the amount can be determined with only a mathematical operation. She contended that Savino's obligation could be determined with the simple mathematical operation of "multiplying [her] monthly salary by the ...


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