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Gonnella Baking Co. v. Clara's Past Di Casa

March 04, 2003

GONNELLA BAKING COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
CLARA'S PASTA DI CASA, LTD., AN ILLINOIS CORPORATION, DEFENDANT (CLARA MELCHIORRE, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County 00 M1 160394 Honorable James J. Jorzak, Judge Presiding

The opinion of the court was delivered by: Presiding Justice McBRIDE

Released for publication April 7, 2003.

GONNELLA BAKING COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
CLARA'S PASTA DI CASA, LTD., AN ILLINOIS CORPORATION, DEFENDANT (CLARA MELCHIORRE, DEFENDANT-APPELLEE).

Appeal from the Circuit Court of Cook County 00 M1 160394 Honorable James J. Jorzak, Judge Presiding

The opinion of the court was delivered by: Presiding Justice McBRIDE

PUBLISH

Plaintiff Gonnella Baking Company filed suit against defendants Clara's Pasta di Casa, Ltd., an Illinois corporation (count I), and Clara Melchiorre, the president of the corporation (count II), for failing to pay for goods delivered to defendants. The trial court granted Melchiorre's motion to dismiss count II pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code)(735 ILCS 5/ 2-619(a)(9)(West 2000)), which alleged that Melchiorre was not personally liable for the corporation's debts. On appeal, plaintiff argues the trial court erred in dismissing count II because the motion to dismiss did not establish that the claim was defeated by affirmative matter. We reverse the circuit court's judgment and remand the cause for further proceedings.

Background

Clara Melchiorre was the president and secretary of Clara's Pasta di Casa (the corporation), an Illinois corporation. On December 1, 1997, the corporation was involuntarily dissolved for failing to file an annual report and pay an annual franchise tax. During 1998 and 1999, Melchiorre ordered bread and bakery goods from plaintiff on behalf of the corporation. In response to Melchiorre's oral request, plaintiff delivered the bread and bakery goods to the corporation. Throughout 1998 and 1999, plaintiff received partial payments for the delivered goods; however, as of May 1, 1999, the corporation's remaining balance owed to plaintiff was $12,895.31. Despite plaintiff's repeated requests for payment, neither Melchiorre nor the corporation paid any portion of the outstanding balance.

In January 2001, plaintiff filed suit against the corporation and Melchiorre seeking damages in the amount of $12,895 plus costs for breach of contract. In count I of the complaint, plaintiff alleged the corporation breached an oral agreement for the sale of goods by failing to pay the agreed sum of $12,895. In count II, plaintiff alleged Melchiorre was personally liable for the corporation's debt because she ordered the goods purporting to be an agent of the corporation. In support of the complaint, plaintiff attached copies of the corporation's account statement.

Melchiorre filed a motion to dismiss count I under section 2-615 and count II under section 2-619(a)(9) of the Code. 735 ILCS 5/2-615, 2-619(a)(9) (West 2000). Melchiorre alleged that the action against the corporation should be dismissed for failure to state a cause of action because the complaint did not sufficiently allege an oral contract between the parties. Melchiorre further alleged the action against her personally was barred by an affirmative matter, because although the corporation was dissolved at the time of the disputed transactions, it was later reinstated pursuant to section 12.45 of the Illinois Business Corporation Act of 1983. 805 ILCS 5/12.45 (West 2000). Accordingly, the corporation is deemed to have continued without interruption, and Melchiorre could not be held personally liable for the corporation's debts.

In lieu of a response to Melchiorre's motion to dismiss, appellant filed a motion for summary judgment with a supporting affidavit. The trial court continued the summary judgment motion pending a decision on Melchiorre's motion to dismiss.

Melchiorre later amended her motion to dismiss to include allegations that she did not know the corporation had been involuntarily dissolved in 1997. Specifically, she alleged neither her attorney, who was the registered agent for the corporation, nor the Secretary of State notified her personally that the corporation had been dissolved. In support of her amended motion, Melchiorre filed an affidavit stating she had personal knowledge of the facts alleged in the motion and that the allegations were true.

The trial court dismissed the count against the corporation pursuant to section 2-615, with leave to amend the complaint. However, rather than amending count I, plaintiff voluntarily dismissed with prejudice the action against the corporation. The trial court also dismissed count II against ...


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