Tumminaro v. Tumminaro
Decision Date | 14 June 1990 |
Docket Number | No. 2-89-0633,2-89-0633 |
Citation | 198 Ill.App.3d 686,144 Ill.Dec. 826,556 N.E.2d 293 |
Parties | , 144 Ill.Dec. 826, 29 Wage & Hour Cas. (BNA) 1474 Sam TUMMINARO, Plaintiff-Appellant, v. Robert TUMMINARO, as President of J. Peter Company, Inc., and J. Peter Company, Inc., Defendants-Appellees. |
Court | United States Appellate Court of Illinois |
H. Kent Heller and Christopher J. Stull, H. Heller & Assoc., Naperville, for Sam Tumminaro.
Elizabeth Hubbard and Mark D. Rivera, Elizabeth Hubbard, Ltd., Chicago, for Robert Tumminaro as Pres.
The plaintiff, Sam Tumminaro, appeals from the trial court's dismissal of his third amended complaint against the defendants, Robert Tumminaro and J. Peter Company, Inc. The complaint, which alleged that the defendants had breached an oral partnership agreement with the plaintiff, sought a winding up of partnership affairs and recovery of unpaid remunerations and partnership profits. Prior to initiating this action, the plaintiff also filed a complaint for unpaid overtime wages with the Department of Labor (DOL). The trial court dismissed the complaint pursuant to section 2-619(a)(3) of the Code of Civil Procedure (the Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(3)) because of the plaintiff's DOL complaint. At issue on appeal is whether the dismissal of the plaintiff's third amended complaint was required under section 2-619(a)(3) because of his pending DOL action for overtime wages. Before addressing this issue, we must also address the plaintiff's motion to inform the court, which was ordered taken with the case, concerning the question of whether this appeal is moot.
Defendant Robert Tumminaro is the president of defendant J. Peter Company and is also the plaintiff's nephew. Beginning in February 1980, the plaintiff and defendants entered into an ongoing commercial relationship that lasted until August 1985. The plaintiff characterizes this relationship as a partnership, with the plaintiff contributing his labor and technical skills to the venture.
Although the record does not reflect precisely when it was filed, the plaintiff's DOL complaint alleged that defendant J. Peter Company did not pay him overtime wages as required by the Minimum Wage Law (Ill.Rev.Stat.1987, ch. 48, par. 1001 et seq.). (DOL case No. 10714.) The DOL's preliminary investigation indicated that the plaintiff was entitled to $4,204.80 in unpaid overtime wages. Pursuant to defendant J. Peter Company's request, a hearing on the matter was held before a DOL hearing officer on February 20, 1987. At the hearing, J. Peter Company argued that the plaintiff was not entitled to overtime wages because he was employed in a "bona fide executive, administrative or professional capacity" (Ill.Rev.Stat.1987, ch. 48, par. 1004a(2)(E)). Following the hearing, the hearing officer asked both parties in the DOL action to submit written memoranda summarizing their positions.
Of interest here are statements in the plaintiff's memorandum dated March 13, 1987, which attempted to rebut the claim that he was an executive, administrative, or professional employee. The memorandum stated that "Sam Tumminaro was, is and always will be a tool and die maker, and nothing more." Contrary to the assertions made by J. Peter Company, the plaintiff stated that he had never been informed that the corporate records listed him as a vice-president and that, even if he was so listed, this "cannot change his status as an everyday worker, a skilled craftsman, [and] a tool and die maker." The plaintiff denied ever taking part in the management of J. Peter Company. Finally, the plaintiff noted that the hearing officer "had ample opportunity to observe the claimant--his hands, his clothing, his complexion and demeanor" and asked, "were those the hands of an 'executive'; was that the way an 'executive' dresses; did Sam Tumminaro look like he was anything but a factory worker his entire life?"
The plaintiff's first complaint, which alleged that the defendants committed a breach of contract and fraud arising out of an employment relationship, was filed in the circuit court of Du Page County on December 16, 1987. This complaint and two subsequent amended complaints were dismissed by the trial court, and on each occasion the plaintiff was given leave to amend his pleadings. The plaintiff's third amended complaint, which was based on a partnership theory, was filed on March 15, 1989. Count I alleged that the plaintiff and J. Peter Company had entered into a partnership venture which had since ceased to operate. This count sought a winding up of partnership affairs. Count II alleged that defendants had breached the oral partnership agreement, which provided that the plaintiff would be paid a salary, including overtime wages, and one-half of the partnership's profits. Count II sought recovery of these unpaid funds.
On April 17, 1989, the defendants filed a section 2-619(a)(3) motion to dismiss the third amended complaint based on the pendency of the DOL action. A hearing on the motion was held June 14, 1989. The trial court was disturbed by the apparent inconsistencies between the partnership theory of the third amended complaint and the employment theory of the plaintiff's case before the DOL. The court stated, "somebody is walking on the precipice here, because in one action you are saying, 'I am a tool and die maker, give me my [overtime wages]' and here you are saying 'I am a partner and let's split up the assets.' " The court granted the defendants' motion and dismissed the third amended complaint with prejudice. The plaintiff filed his notice of appeal from this ruling on June 23, 1989.
Before we reach the merits of this appeal, we must first examine two threshold questions. The first question is whether this court has jurisdiction over the appeal. Although no party has raised this question, the appellate court has an independent duty to determine whether the appeal has been taken properly so as to invoke its jurisdiction. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill.App.3d 837, 838-39, 124 Ill.Dec. 423, 529 N.E.2d 243.) This inquiry is made necessary because the record reveals that, on July 17, 1989, 33 days after the entry of judgment, the defendants filed a petition to assess sanctions against the plaintiff and his attorney pursuant to section 2-611 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-611). A section 2-611 petition filed after judgment has been held to be a post-trial motion. (Herman v. Fitzgerald (1989), 178 Ill.App.3d 865, 869, 128 Ill.Dec. 56, 533 N.E.2d 1144.) If a timely post-trial motion is filed, a previously filed notice of appeal is rendered ineffective, and the appealing party is obliged to withdraw it. (107 Ill.2d R. 303(a)(2).) Here, however, the section 2-611 petition was not timely because it was not filed within 30 days of the entry of judgment. (Herman, 178 Ill.App.3d at 869, 128 Ill.Dec. 56, 533 N.E.2d 1144.) Thus, the notice of appeal is still effective, and we have jurisdiction over the cause.
The second threshold question we must address is whether this appeal has been rendered moot by the plaintiff's withdrawal of his complaint before the DOL. The plaintiff has filed a motion with this court pursuant to Supreme Court Rule 361 (107 Ill.2d R. 361) entitled "MOTION TO INFORM THE COURT." This motion is supported by exhibits showing that the DOL accepted the plaintiff's withdrawal of his overtime wages complaint on December 6, 1989. We ordered this motion and the defendants' response thereto taken with the case.
The plaintiff argues that the effect of the withdrawal of his DOL action "is to render moot the Plaintiff's appeal because the action forming the basis of the Trail [sic ] Court's dismissal is no longer pending." The motion concludes by asking this court to vacate the dismissal of the third amended complaint and remand the cause for further proceedings. Ordinarily, a reviewing court is restricted to the record of the trial court. We may, however, consider matters outside the record insofar as they concern the question of mootness. (Unity Ventures v. Pollution Control Board (1985), 132 Ill.App.3d 421, 430, 87 Ill.Dec. 376, 476 N.E.2d 1368.) We therefore take cognizance of the plaintiff's withdrawal of his complaint before the DOL only to examine its possible effect on the justiciability of this appeal.
An appeal is moot if it is impossible for a reviewing court to grant effective relief to either party. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill.2d 70, 76, 96 Ill.Dec. 700, 491 N.E.2d 1160.) Here, if we affirm the trial court's dismissal of the third amended complaint, the plaintiff's action will be forever barred. If, on the other hand, we reverse the trial court, the plaintiff may litigate the merits of his claim. It is eminently clear that our decision here can effectively grant relief to the prevailing party, and so this appeal is not moot. Indeed, we believe that the plaintiff himself does not truly intend to argue that the appeal is moot. The proper disposition of a moot appeal would be dismissal (Kennedy, 112 Ill.2d at 76, 96 Ill.Dec. 700, 491 N.E.2d 1160), but the plaintiff does not seek dismissal of the cause. The plaintiff merely invokes the mootness doctrine in an attempt to have this court consider a matter outside of the record, the dismissal of his DOL complaint. Having decided that the appeal is not moot, we now proceed to address the merits of the appeal, and, in doing so, we are limited to considering matters that are of record.
The plaintiff argues that the trial court erred by dismissing his complaint with prejudice because his DOL complaint does not constitute a pending action within the meaning of section 2-619(a)(3) of the Code. The plaintiff contends that the relief requested in his third amended complaint, the winding up of partnership affairs, could not have been obtained in the DOL...
To continue reading
Request your trial-
Legacy Seating, Inc. v. Commercial Plastics Co.
...clear that “[a] person cannot be an employee and a partner at the same time in the same business.” Tumminaro v. Tumminaro, 198 Ill.App.3d 686, 144 Ill.Dec. 826, 556 N.E.2d 293, 298 (1990) (citing Cook v. Lauten, 335 Ill.App. 92, 80 N.E.2d 280, 282 (1948) ).Here, Price and Watters worked joi......
-
Carr v. Tillery
...The answer is "no." A.E. Staley Mfg. Co. v. Swift & Co., supra, 50 Ill.Dec. 156, 419 N.E.2d at 28; Tumminaro v. Tumminaro, 198 Ill.App.3d 686, 144 Ill.Dec. 826, 556 N.E.2d 293, 297 (1990). And even if the courts in the different Illinois counties were considered different jurisdictions, thi......
-
Kristen B. v. Dep't of Children & Family Servs.
...section 2-619(a)(3) is " ‘to avoid multiplicity of suits, not to prevent access to the courts.’ " Tumminaro v. Tumminaro , 198 Ill. App. 3d 686, 693, 144 Ill.Dec. 826, 556 N.E.2d 293 (1990) (quoting Bernhardt v. Fritzshall , 9 Ill. App. 3d 1041, 1045, 293 N.E.2d 650 (1973) ). It was inconsi......
-
OVERNITE TRANSP. v. INTERN. BROTH. OF TEAM.
...and enforceable decision constitutes an "action" within the meaning of section 2-619(a)(3). Tumminaro v. Tumminaro, 198 Ill.App.3d 686, 692, 144 Ill.Dec. 826, 556 N.E.2d 293, 297 (1990); see Ransom v. Marrese, 122 Ill.2d 518, 530-31, 120 Ill.Dec. 525, 524 N.E.2d 555, 561 (1988). In Ransom, ......