Papers Unlimited v. Park

• Decision Date: 10 September 1993
• Docket Number: No. 1-91-3444,1-91-3444
• Citation: 253 Ill.App.3d 150,625 N.E.2d 373,192 Ill.Dec. 413
• Parties: , 192 Ill.Dec. 413 PAPERS UNLIMITED, Plaintiff-Appellant, v. Edward PARK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 373

625 N.E.2d 373

253 Ill.App.3d 150, 192 Ill.Dec. 413

PAPERS UNLIMITED, Plaintiff-Appellant, v. Edward PARK, Defendant-Appellee.

No. 1-91-3444.

Appellate Court of Illinois First District, Sixth Division.

Sept. 10, 1993.

Robert P. Sheridan, Chicago, for plaintiff-appellant.

Jackson Williams, Chicago, for defendant-appellee.

Justice GIANNIS delivered the opinion of the court:

Plaintiff, Papers Unlimited, appeals from an order of the circuit court of Cook County which dismissed its complaint against defendant, Edward Park, for money due and owing on an account stated. The dismissal was based the principle of res judicata, which plaintiff claims, was wrongfully applied.

The record shows that on March 5, 1991, plaintiff filed a verified complaint against defendant alleging that he was indebted to plaintiff in the amount of $1,663.50 for supplies, merchandise and goods which had been delivered and received under special order. Plaintiff brought the action against defendant individually, and doing business as Mayfair Graphics a/k/a Mayfair International Graphics. Plaintiff further alleged that defendant had made partial payments on the account, that he never objected to the propriety of the account balance, and that he remains liable for the balance due and owing. In support of this claim plaintiff attached the affidavit of its controller which incorporated the account in question. This reflected charges accruing to "P.K. Advertising," a credit, and a balance due of $1,663.50. Defendant was personally served with summons, and his attorney filed an appearance on his behalf.

On April 11, 1991, defense counsel filed a motion to dismiss the complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1989, ch. 110, par. 2-619.) In that motion defendant alleged that the case was barred by reason of res judicata in that the same cause of action had been brought in Papers Unlimited v. P.K. Advertising, 90 M1 122045, and decided adversely to plaintiff on January 4, 1991. Defendant further alleged that the complaints in each case showed that the same goods were the subject of both actions, and if plaintiff wanted to sue defendant personally, plaintiff was obligated to do so in the first action.

In its written response, plaintiff asserted that the case was not barred by reason of res judicata and that at the very least there was a substantial issue of fact stemming from the position defendant had taken at the trial held in the initial cause of action. Plaintiff maintained that the case had been brought in reliance on the statements made by defendant to plaintiff's counsel, which defendant then denied at trial. In support of its position plaintiff filed the affidavit of its counsel which stated, inter alia, that plaintiff had sold goods to a business entity entitled Mayfair Graphics but received no payment. In seeking remuneration for these goods, counsel contacted defendant by telephone on February 12, 1990. In that conversation defendant told counsel that the merchandise in question had been purchased by P.K. Advertising, a business entity owned solely by him. Defendant also stated that although there was nothing wrong with the goods shipped, he felt he had been overcharged, but he agreed to make payment while the specific costs were being verified. At the time of trial, however, defendant took the position that P.K. Advertising was not related to Mayfair Graphics, and that he had no responsibility for the payment of the goods in question.

The trial court granted the defense motion on April 26, 1991, and awarded costs to defendant. On May 23, 1991, plaintiff filed a motion asking the court to vacate and reconsider its decision. Plaintiff pointed out that the materials filed by plaintiff in response to the defense motion to dismiss had not been recorded on the memorandum of orders, and for this reason counsel was under the impression that the court had not examined this response nor considered it in arriving at its decision. Plaintiff's motion was heard on September 10, 1991. The written order memorializing the court's denial of plaintiff's motion specifically noted that the court had considered the affidavit of plaintiff's counsel prior to entering its original dismissal order.

Plaintiff appeals, contending that the dismissal order based on res judicata was erroneous.

We initially address defendant's assertion that plaintiff's claim is unsupported by the record because no transcript or bystanders' report is included (134 Ill.2d R. 323). In the instant case, the primary issue raised is one of law (see City of Naperville v. Morgan (1984), 126 Ill.App.3d 91, 93, 81 Ill.Dec. 547, 466 N.E.2d 1349), and there is no indication that evidence was taken in the trial court. Because the court's decision was based on the material which is contained in the record, we are sufficiently equipped to consider the propriety of the trial court's action based upon the record before us. See Johnson v. Lynch (1977), 66 Ill.2d 242, 245, 5 Ill.Dec. 874, 362 N.E.2d 345.

Turning to the substantive issue before this court, we note that a motion to dismiss brought under section 2-619 admits all well-pled facts (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 545, 12 Ill.Dec. 600, 370 N.E.2d 223), but conclusions of law may be disregarded (Williams v. Board of Education (1991), 222 Ill.App.3d 559, 562, 165 Ill.Dec. 78, 584 N.E.2d 257). Defendant has the burden of proving the affirmative defense relied upon in the motion to dismiss. (Kirby v. Jarrett (1989), 190 Ill.App.3d 8, 12, 137 Ill.Dec. 204, 545 N.E.2d 965.) Where a motion to dismiss is made pursuant to section 2-619 on grounds not appearing on the face of the pleading attacked, the motion must be supported by affidavit. MBL (USA) Corp. v. Diekman (1985), 137 Ill.App.3d 238, 241-42, 91 Ill.Dec. 812, 484 N.E.2d 371; Premier Electrical Construction Co. v. La Salle National...