McGrew v. Heinold Commodities, Inc.

Decision Date19 August 1986
Docket NumberNo. 85-2085,85-2085
Citation147 Ill.App.3d 104,100 Ill.Dec. 446,497 N.E.2d 424
Parties, 100 Ill.Dec. 446 Douglas McGREW, Plaintiff-Appellant, v. HEINOLD COMMODITIES, INC., a Delaware Corporation and R. Patrick Shepherd, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Johnson, Frank, Frederick & Walsh, Urbana, Jeffrey D. Frederick, for plaintiff-appellant.

Michael Elman, Chicago, for defendants-appellees.

Justice SCARIANO delivered the opinion of the court:

Plaintiff, Douglas McGrew, appeals from the dismissal of eight counts of his amended complaint against a former creditor and the creditor's attorney as a result of their issuance of garnishment summonses when he owed them no money. We affirm in part and dismiss the appeal in part.

On or about March 15, 1982, plaintiff opened a commodities account with defendant Heinold Commodities, upon which he traded without incident until about October 21, 1982, when his account was alleged to have a deficiency of $1,097.73. Not having received payment, defendants filed suit against plaintiff on January 5, 1983. Plaintiff was served with a summons having a return date of February 3, 1983. On January 20, 1983, plaintiff sent a check to defendant Heinold for $1,125, which was credited to his account on January 24, 1983, leaving a balance of $3.86. Heinold mailed statements to plaintiff reflecting this payment. Plaintiff later closed his account with Heinold and the balance of $3.86 was refunded.

On February 3, 1983, codefendant Shepherd, as attorney for Heinold, filed a motion for default judgment. On June 16, 1983, judgment was entered against plaintiff for $1,523.95, including attorney fees, based upon the affidavits of Shepherd and William Sevetson, Heinold's Secretary and Director of Compliance. Shepherd instituted garnishment proceedings upon the default judgment on July 11, 1983. He filed affidavits to support issuance of the summonses, and served garnishment summonses on plaintiff's employer and bank. Plaintiff's bank responded to the garnishment interrogatories eight days later.

Plaintiff learned of the garnishments on July 16, 1983, after returning from vacation, and he immediately contacted defendants. On July 25, 1983, a release of judgment was filed and copies were mailed to plaintiff's bank and his employer. One year later, plaintiff filed this lawsuit against Heinold and Shepherd. In response to defendants' motions to strike and dismiss, plaintiff filed an amended complaint containing ten counts.

In Count I of the amended complaint, plaintiff alleged that defendant Heinold Commodities wrongfully caused the issuance of a wage deduction summons in violation of paragraph 12-817 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 12-817). Plaintiff claimed that as a proximate result of service of the summons on his employer his business and personal reputations at his place of employment were injured. He added that he experienced "physical and mental pain and suffering and emotional distress" which required medical treatment and would continue to generate medical expenses in the future. Plaintiff also claimed that he incurred attorney fees and other expenses in attempting to stop the garnishment. Plaintiff prayed for damages in excess of $15,000 plus attorney fees and costs. This count is one of two counts presently pending in the trial court.

In Count II, plaintiff realleged the facts and statutory violation asserted in Count I (except for the specific allegations of damages) and charged that defendant Heinold Commodities knew or should have known that plaintiff's account had been paid in full "but despite said knowledge, intentionally, recklessly, willfully and wantonly caused garnishment summons to be issued upon plaintiff's employer." Plaintiff prayed for $250,000 in punitive and exemplary damages from Heinold, plus interest, reasonable attorney fees, and costs and expenses. The circuit court dismissed Count II.

Count III was virtually identical to Count I, except that it was directed against defendant Shepherd. This count also remains pending in the trial court. Count IV was identical to Count II in seeking punitive and exemplary damages, but it was directed against defendant Shepherd. It was dismissed by the circuit court.

Count V charged that Heinold had an "ulterior purpose for the use of regular court process * * * to harass and cause economic injury to the plaintiff and damage to his personal and professional reputation." Plaintiff added that Heinold's action in obtaining either garnishment summons was "not proper in the regular prosecution of its lawsuit" because plaintiff had paid his account nearly six months earlier. Plaintiff reasserted the same injuries alleged in Count I and added that "as a direct and proximate result of [Heinold's] abuse of process" he was denied the use of his funds at the bank, and his reputations with the bank and his employer were injured.

Count VI essentially repeated the allegations in Count V but added that Heinold "knew or should have known that Plaintiff's account had been paid in full * * * but despite said knowledge, intentionally, recklessly, willfully and wantonly caused garnishment summonses to be issued." It concludes, "Plaintiff is entitled to punitive and exemplary damages against the defendant HEINOLD COMMODITIES, INC. in the sum of $250,000 for their willful and wanton abuse of process." In addition, it prays for interest, attorney fees, costs and expenses.

Counts VII and VIII assert similar claims against defendant Shepherd, the latter count being for punitive damages.

Counts IX and X are similarly directed against Heinold and Shepherd, respectively. They incorporate by reference the basic factual allegations in previous counts and add:

"6. That the aforesaid Summons for garnishment and Wage Deduction Summons were publicized matters by the defendant which invaded the Plaintiff's right to privacy by placing him in a false light before his peers, and the general public in that the aforesaid publicized matter conveyed the impressions that Plaintiff failed to pay his debts, allowed a default judgment to be entered against him, and ignored the process of the court.

7. That said publicized matter was false and untrue and was made without the consent of the Plaintiff.

8. That said false light in which the Plaintiff was placed would be and is highly offensive to a reasonable person.

9. That the Defendant had knowledge of, or acted in reckless disregard to, the falsity of the aforesaid publicized matter and the false light in which Plaintiff was placed and was made by the Defendant with actual malice and willful intent to injure the Plaintiff."

Plaintiff claimed actual damages of greater than $15,000, as a proximate result of the invasion of his right to privacy, and prayed for $250,000 in punitive damages plus attorney fees, costs, interest and expenses.

On June 10, 1985, after two hearings, the circuit judge entered an order dismissing all but Counts I and III of plaintiff's complaint. The judge certified, under Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), that there was no just reason to delay appeal of his dismissal order, and plaintiff filed a timely notice of appeal. Defendants subsequently filed an answer to the remaining counts and asserted a counterclaim for attorney fees. Plaintiff's motion to dismiss the counterclaim was still pending when this case was briefed and argued.

Although the circuit judge certified his order for immediate appeal under Rule 304(a), such a finding does not guarantee that the matter is appealable. To be appealable under Rule 304(a) a judgment must still be final. Waste Management of Illinois, Inc. v. Environmental Protection Agency (1985), 137 Ill.App.3d 619, 625, 92 Ill.Dec. 273, 277, 484 N.E.2d 1128, 1132; Johnson v. Northwestern Memorial Hospital (1979), 74 Ill.App.3d 695, 697, 30 Ill.Dec. 676, 677, 393 N.E.2d 712, 713.

An order is final if it disposes of the rights of the parties either on the entire controversy or some definite and separate part of it. (South Chicago Community Hospital v. Industrial Commission (1969), 44 Ill.2d 119, 121, 254 N.E.2d 448, 449.) The mere fact that the dismissed counts and the remaining counts arise from the same occurence is not fatal to an appeal. (See Carlson v. Moline Board of Education, School District No. 40 (1984), 124 Ill.App.3d 967, 969-70, 80 Ill.Dec. 256, 258-59, 464 N.E.2d 1239, 1241-42.) For example, in Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935, our supreme court held that dismissal of an indemnity claim was final and appealable although a contribution claim based on the same accident was still pending. The court noted that "when the bases for recovery under the counts that are dismissed are different than those under the counts left standing, the dismissal is appealable because it disposes of a distinct cause of action." (99 Ill.2d 344, 348, 76 Ill.Dec. 800, 803, 459 N.E.2d 935, 938. (Emphasis added). See also Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill.App.3d 884, 890-91, 38 Ill.Dec. 264, 269, 403 N.E.2d 495, 500.) In the present case, with the exception of Counts II and IV, the theories of recovery in the appealed counts are different from those that remain and the causes of action distinct. We therefore conclude that Counts V through X are final and appealable.

On the other hand, Counts II and IV, seeking punitive damages for the wage garnishment, are based on the same violations of paragraph 12-817 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 12-817) that are alleged in Counts I and III. Counts I and III are still pending in the circuit court. The parties have not cited, and our research has not uncovered, any cases discussing whether dismissal of punitive damage claims are separately appealable under Supreme Court Rule 304(a), when claims for compensatory damages based...

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    ...(award of exemplary damages reversed where unaccompanied by award of compensatory damages); McGrew v. Heinold Commodities, Inc., 147 Ill.App.3d 104, 100 Ill.Dec. 446, 497 N.E.2d 424 (App.Ct.1986) (punitive damages can only be awarded when there is an award of compensatory damages); Stevens ......
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