Executive Commercial Services, Ltd. v. Daskalakis

• Decision Date: 30 August 1979
• Docket Number: No. 78-378,78-378
• Citation: 393 N.E.2d 1365,74 Ill.App.3d 760,31 Ill.Dec. 58
• Parties: , 31 Ill.Dec. 58 EXECUTIVE COMMERCIAL SERVICES, LTD., Plaintiff-Appellee, v. John DASKALAKIS, Angeliki Daskalakis, James Daskalakis, and H. Leona Daskalakis, Individually and doing business as Daskalakis Printing and Publishing Co., Defendant-Appellant, v. Albert KORETZKY, Joseph Platt, and Thomas Swank, Third-party Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 1365

393 N.E.2d 1365 74 Ill.App.3d 760, 31 Ill.Dec. 58 EXECUTIVE COMMERCIAL SERVICES, LTD., Plaintiff-Appellee,
v.
John DASKALAKIS, Angeliki Daskalakis, James Daskalakis, and
H. Leona Daskalakis, Individually and doing
business as Daskalakis Printing and
Publishing Co., Defendant-Appellant,
v.
Albert KORETZKY, Joseph Platt, and Thomas Swank, Third-party
Defendants- Appellees. No. 78-378. Appellate Court of Illinois, Second District. Aug. 30, 1979.

[74 Ill.App.3d 762]

Page 1367

[31 Ill.Dec. 60] Haight, Hofeldt, Davis & Jambor, Dorsey L. Baker, Chicago, for defendant-appellant.

Albert Koretzky, Joseph B. Platt, Chicago, for plaintiff-appellee.

LINDBERG, Justice.

Defendant-appellant, Leona Daskalakis, appeals from the dismissal by the court below of her counterclaims against plaintiff-appellee, Executive Commercial Services, Ltd., and of her third-party complaint against plaintiff's attorneys. Both the counterclaims and the third-party complaint allege violations of her civil rights.

Leona Daskalakis is guarantor of equipment leases from Executive Commercial Services, Ltd. to Daskalakis Printing and Publishing Co. On August 11, 1977, plaintiff filed a complaint in the Circuit Court of DuPage County alleging that Leona Daskalakis and co-defendants including her husband and other relatives had defaulted on leases, had removed the printing equipment subject to plaintiff's secured leases from the state, and that one defendant (misidentified as Angeliki Daskalakis and not Leona Daskalakis) remained in the state and that this defendant planned to sell her home and leave the state. The relief requested included a judgment for the value of the leases, an award of attorney's fees, and a writ Ne exeat (Ill.Rev.Stat.1977, ch. 97, pars. 1-13) ¹ against the defendant, and an injunction preventing the defendant from selling her home.

After an Ex parte hearing, Judge Teschner issued the writ, set bond at $10,000, and also issued an injunction restraining the sale of the real estate. On August 12, 1977, Leona Daskalakis was taken into custody and later [74 Ill.App.3d 763] brought before the judge on the "return of the writ." After a hearing at which the defendant was represented by counsel, a motion to quash the writ was denied and bond was continued at $10,000. Defendant was ordered to contact the plaintiff daily under the threat of arrest and was asked to call her husband in Greece to see if he would send the money owed to plaintiff. On August 31, 1977, Judge Unverzagt vacated the writ apparently on the authority of U. S. v. Shaheen (C.A. 7, 1971), 445 F.2d 6, 11, which cautioned that the writ Ne exeat "should not be employed for any purpose akin to imprisonment for debt."

On September 7, 1977, defendant filed her answer accompanied by a counterclaim alleging violation of her civil rights as protected by 42 U.S.C. § 1983. This counterclaim charged that the complaint contained

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[31 Ill.Dec. 61] several knowingly false assertions including that the defendant was a lessor, and not merely a guarantor of the leases; that payments were in default when they were not; that the defendant personally participated in the removal of the equipment; and that the defendant was about to remove some of plaintiff's property from the state.

On September 13, 1977, Judge Unverzagt dismissed the complaint, vacated the injunction, and transferred the matter to Judge Teschner for proceedings on the counterclaim. On September 23, 1977, Judge Teschner ruled on a discovery motion made by the defendant. On November 1, 1977, the judge denied the defendant leave to file amended counterclaims due to a lack of notice. On November 3, 1977, defendant filed for a change of venue based on a general allegation that Judge Teschner was prejudiced against her. This motion for a change of venue was denied. On this date the judge also allowed the defendant to amend her counterclaims to include allegations that the plaintiff wrongfully refused to agree to vacate his injunction and to add a third-party claim against plaintiff's attorneys. Finally, on this date, the judge reinstated plaintiff's complaint.

On January 10, 1978, plaintiff moved to dismiss the counterclaims and the third-party claims pursuant to Section 45 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 45). After briefing and argument, this motion was allowed on April 24, 1978. On May 12, 1978, defendant moved to file additional counterclaims for common law torts as opposed to claims under Section 1983. On May 15, 1978, a rehearing on the dismissal of the counterclaims was denied as was leave to file the additional counterclaims. The judge further found that there was no just reason to deny enforcement or appeal of his ruling. It is from this order and from the denial of the change of venue that defendant brings this appeal, under Supreme Court Rule 304. Ill.Rev.Stat.1977, ch. 110A, par. 304.

Defendant raises three assertions on appeal: that her counterclaims [74 Ill.App.3d 764] were improperly dismissed under Section 45 of the Civil Practice Act, that the trial court abused its discretion in denying her motion under Section 46 of the Civil Practice Act to amend her counterclaims, and that her motion for a change of venue was improperly denied.

Whether or not the...