Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Steve Dei v. Tumara Food Mart

December 8, 2010

STEVE DEI,
PLAINTIFF-APPELLANT,
v.
TUMARA FOOD MART, INC.
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Lynn M. Egan, Judge Presiding.

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

PRESIDING JUSTICE QUINN delivered the opinion of the court: Plaintiff Steve Dei appeals from an order of the circuit court granting defendant's petition, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401) (West 2006)), to vacate an order of default and a default judgment entered against it and from an order quashing his subpoena requests and granting a protective order. On appeal, plaintiff contends that this court should reinstate the default judgment because the trial court erred in finding that plaintiff failed to properly serve defendant pursuant to section 2-204 of the Code (735 ILCS 5/2-204 (West 2006)). Plaintiff also contends that the circuit court erred in quashing his subpoena requests, because they are relevant to the issue of whether service of process was proper. For the reasons set forth below, we affirm the circuit court.

On June 7, 2007, plaintiff filed a complaint in the circuit court of Cook County alleging that on February 17, 2007, he slipped and fell on ice and grease, breaking his tibia and fibula, while walking toward the cashier at a gas station and mini-mart owned by defendant, Tumara Food Mart, Inc. (Tumara). On that same date, plaintiff filed a summons that directed that service be made on an "agent at Tumara Food Mart, Inc., 2941 East 83rd Street, Chicago, Illinois." On June 22, 2007, the sheriff's office served Ahmed Sylla,*fn1 an employee of Tumara at that location. No appearance was filed by defendant, and on October 4, 2007, plaintiff presented a motion for default. The motion was continued until November 15, 2007, at which time the Hon. John A. Ward entered an order of default against defendant and continued the case to January 4, 2008, for a prove-up hearing on damages. On January 4, 2008, after a presentation of evidence as to plaintiff's damages, the trial court entered judgment in favor of plaintiff and against defendant in the amount of $273,230.02. A memorandum of judgment was entered by the Hon. Lynn M. Egan on April 7, 2008.

On July 15, 2008, plaintiff filed a citation to discover assets, which was served on "Ahmed Minhaj and his wife," owners of the gas station/mini-mart. On August 11, 2008, defendant filed a special and limited appearance for the purpose of contesting service. On August 12, 2008, the Hon. Sheldon Gardner dismissed the citation to discover assets, with prejudice. Plaintiff filed a motion with the trial court to vacate the dismissal of the citation, which the court granted on August 19, 2008. The court also granted defendant's motion to stay the citation proceedings for 60 days to contest the underlying judgment

On August 27, 2008, defendant filed a petition pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2006)) to vacate the default judgment, asserting that plaintiff did not properly serve defendant pursuant to section 2-204 of the Code (735 ILCS 5/2-204 (West 2006)), because service of the summons and complaint was not made on either a registered agent or an officer of the corporation. Before filing an answer to defendant's petition, plaintiff was granted leave to conduct discovery with regard to issues raised by the petition.

On September 24, 2008, Thomas Walsh testified at his discovery deposition that he is the registered agent for Tumara Food Mart, Inc., that he has served in that capacity for 8 to 10 years, and that his status as registered agent has been provided to the Illinois Secretary of State. Walsh testified that he does not know anyone by the name of Ahmed Sylla and that no one by that name has ever been an officer or agent of Tumara for purposes of accepting service. Walsh stated that he has been Tumara's attorney since its inception, "know[s] all of the legal issues involved in Tumara Food Mart, Inc.," including "people who are authorized to accept service," and "Ahmed Silatt [sic] is not one of them." Walsh testified that he is not familiar with the daily operations at Tumara, but knows that Asif Nomani is Tumara's manager, that Nomani's son assists his father at the store, and that Minhaj Ahmed is the owner. He stated that he first became aware of plaintiff's lawsuit when Ahmed sent him a copy of a citation to discover assets.

Minhaj Ahmed testified at his deposition that he is the president, secretary, and sole shareholder of Tumara., which he has owned for approximately 15 years. Ahmed said that he is an absent owner and does not manage the day-to-day operations of the station but goes there once a month or once every few months. Ahmed testified that Asif Nomani is the manager at Tumara and that his son, Umair Nomani, helps with the daily operations of the store. He said that Asif and Umair Nomani are responsible for hiring and firing employees at Tumara. Ahmed testified that he does not know whether a sheriff served the summons and complaint on a Tumara employee on June 22, 2007 and that he does not know Ahmed Sylla. Ahmed further testified that he first found out about plaintiff's complaint on July 15, 2008, when he received a citation to discover assets. He said that he then called his attorney, Thomas Walsh, and faxed him a copy of the documents. He then called the store to find out who Ahmed Sylla is and was told by Asif or Umair Nomani that Sylla was an employee at the gas station. Ahmed also testified that only he and Thomas Walsh were authorized to accept service on behalf of Tumara in June 2007.

On October 22, 2008, Asif Nomani testified at his deposition that in June 2007 he was the store manager for Tumara and that he hired Ahmed Sylla. In June 2007, Sylla was a cashier and "floor man," meaning that he was responsible for cleaning, stocking inventory, and keeping an eye on the car wash. Asif testified that prior to June 2007, Sylla did not receive instructions or training about what to do if he was served with legal papers while working at Tumara. On June 22, 2007, Asif was in Pakistan and testified that when he returned, in August or September, his son, Umair, informed him that the sheriff had served "some court papers" regarding a customer who had slipped and fallen on the premises. Umair told Asif that he sent the papers to the insurance company, but that the insurance company did not subsequently contact him. Asif testified that on January 4, 2008, he signed for the notice of default that was sent by certified mail and then faxed the notice to Tumara's insurance company agent.

On October 22, 2008 Umair Nomani testified at his deposition that he began working for Tumara in 2001 on a part-time basis until he became a full-time cashier/assistant manager in 2006. Umair's responsibilities include ordering inventory, making schedules, acting as cashier, and customer service. Umair testified that sometime between May and June 2007, he found a summons and complaint on a counter or in a drawer near where the cashier usually works at Tumara. Umair said that he faxed the summons and complaint to Tumara's insurance agent. Umair testified that Sylla then told him that the previous day someone had given him the summons and complaint and that he put it on the counter.

Ahmed Sylla testified at his December 2, 2008, deposition, with the assistance of an interpreter, that on June 22, 2007, he was employed as a cashier for Tumara and was still working in that capacity on the date of his deposition. He testified that his first language is Wolof, and that he also speaks Arabic and French, and "a little bit" of English. He stated that while at work he speaks to some coworkers in French and to others in English, and that he speaks to customers in English. Sylla testified that while employed at Tumara he was never told that he was an authorized person to accept service on behalf of the corporation, nor does he understand what it means to be an authorized agent to accept legal papers on behalf of Tumara. He stated that no one at Tumara talked to him about legal papers. He said that he does not know Tom Walsh or Minhaj Ahmed. Sylla stated that he could not recall receiving a summons and complaint on June 22, 2007, but that whenever he received papers while at work, he did not open them but just placed them on the table, without informing anyone.

In a letter to Tumara's lawyer, dated December 2, 2008, plaintiff requested the following information: (1) Sylla's driver's license; (2) all social security numbers Sylla has used; (3) the name, address, and telephone number of Sylla's landlord; and (4) the name, address, and telephone number of Sylla's last employer. On December 5, 2008, plaintiff served a notice to produce requesting "the entire personnel file of Ahmed Sylla (also called Ahmed Silatt), including but not limited to: all employment records, application for employment, references, background checks, performance evaluations, W2s, disciplinary actions, etc." On December 8, 2008, plaintiff issued a subpoena to the management company that owned the apartment where Sylla lived, seeking a copy of Sylla's tenant file including background checks, notices, references and leases. On that same date, plaintiff issued a subpoena to the City Colleges of Chicago for transcripts regarding courses Sylla took while a student at Olive Harvey College in 1997. On December 9, 2008, plaintiff issued a subpoena to the Illinois Secretary of State to obtain records and documents concerning Sylla's application for a driver's license, including copies of any written examinations taken by Sylla.

On December 11, 2008, defendant filed a motion to quash and for protective order asserting that plaintiff was seeking unnecessary and unwarranted personal information concerning Sylla and that the discovery requests were made in a harassing manner. On December 16, 2008, the trial court granted defendant's request to quash and for protective order regarding plaintiff's discovery requests for Sylla's college transcript, his tenant file, and his records on file with the Illinois Secretary of State.

On June 19, 2009, after both parties submitted briefs and arguments were heard, the trial court granted defendant's petition to quash service of summons and to vacate the default judgment. In that order, the trial court stated:

"The record before this court is clear that Ahmed Sylla was not authorized by Tumara Food Mart, Inc. to accept service of process on its behalf. Moreover, there is nothing in the record to contradict his testimony that he did not understand the nature or import of the documents received. Thus, the court did not obtain jurisdiction over Tumara ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.