Bell Leasing Brokerage v. Roger Auto Service

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-2313 Rel

Case Date: 03/30/2007

Preview:FIFTH DIVISION March 30, 2007

No. 1-05-2313 ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

BELL LEASING BROKERAGE, LLC, an Illinois Limited Liability Company, Plaintiff-Appellee, v. ROGER AUTO SERVICE, INC., Defendant-Appellant (Waldermar Rodriguez and Carmen Rodriguez, Defendants).

Appeal from the Circuit Court of Cook County

Honorable Alexander P. White, Judge Presiding.

JUSTICE O'MARA FROSSARD delivered the opinion of the court: Bell Leasing Brokerage, LLC (Bell), brought an action sounding in detinue and conversion against Roger Auto Service, Inc. (Roger's Towing), alleging that Roger's Towing wrongfully towed and retained a vehicle in which Bell had a perfected security interest, and sued Waldermar Rodriguez and Carmen Rodriguez for breach of contract. Following a bench trial, the circuit court ordered Roger's Towing to return the vehicle to Bell and pay $10,000 damages. On appeal, Roger's Towing contends that (1) the trial court's finding that the vehicle was not abandoned was contrary to the manifest weight of the evidence; (2) the trial court's imposition of a money judgment based partly

1-05-2313 on a finding that Roger's Towing did not comply with a default order was contrary to the manifest weight of the evidence; (3) the trial court erred in finding that Bell was not required to present law enforcement with proof of its right to possession, that Bell was not required to pay Roger's Towing for incurred towing and storage charges, and that Roger's Towing was required to respond to a phone call from Bell's president and a letter from Bell's attorney; and (4) the trial court's award of damages was contrary to the manifest weight of the evidence and constituted an abuse of discretion. Waldermar Rodriguez and Carmen Rodriguez are not parties to this appeal. BACKGROUND On February 24, 2003, Waldermar Rodriguez and Carmen Rodriguez purchased a van from Bell. Pursuant to the retail installment contract they executed, the Rodriguezes granted a security interest in the van to Bell. Bell perfected its security interest in the van by delivering the original certificate of title to the Illinois Secretary of State. At trial, Officer Paul Norrington testified that on January 2, 2004, the van was parked on a public roadway in Franklin Park, Illinois. He stated that the van did not have a license plate or municipal vehicle sticker, and was missing one rear window wiper blade. He agreed that overall, the van was "in pretty good condition." Officer Norrington testified that he placed a sticker on the van indicating it was abandoned. Eight days later, on January 10, 2004, Officer Norrington observed the van in the same location and the same condition. He concluded that the van was deserted based on "[t]he amount of dirt and snow that had accumulated around the vehicle, the dirt that had deposited itself on the vehicle." Officer Norrington notified his dispatchers about the van, which was then towed away by Roger's Towing.

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1-05-2313 Bell's president, Robert Doppelt, testified that on January 28, 2004, Bell received a letter from the Cook County sheriff regarding the van being towed. The letter, which was admitted into evidence, was titled "Owner Notification" and indicated that the van had been towed and was being stored at Roger's Towing. According to Doppelt's testimony, the Rodriguezes were current in their payments to Bell at that time. The next day, Doppelt called Roger's Towing and related that Bell was the lienholder on the van. When the person on the phone reported that Bell would have to pay $1,000 to get the van back, Doppelt said, "[H]ave your boss call me." Doppelt did not receive a call, so he contacted Bell's legal firm. Doppelt testified that the van was never delivered to Bell. On February 2, 2004, Bell's counsel sent a letter to Roger's Towing seeking to make arrangements for the return of the van and stating that Bell would be willing to pay $175 for the cost of towing and storage. Roger Tomaras, the president of Roger's Towing, testified that he did not respond to the letter, either orally or in writing. When asked his reason for not responding, he stated, "Well, I'm not in a custom of having people tell me what they're going to pay for what I do, my services." On February 19, 2004, Bell filed suit. Bell's complaint originally listed the president of Roger's Towing, Roger Tomaras, as party defendant. Tomaras acknowledged that he was personally served with process on February 20, 2004. He testified that he did not appear in court in response to the summons because, "I was trying to contact people to find out what I had to do. Police, lawyers, that type of thing." Tomaras denied that he forgot about the court hearing and denied that he overlooked it.

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1-05-2313 On February 26, 2004, the trial court entered a default judgment against Tomaras based on his failure to appear or answer. The order compelled Tomaras to "deliver the Vehicle to Plaintiff's principal place of business at 2296 N. Rand Road, Palatine, Illinois, on or before March 4, 2004." Tomaras testified that he did not comply with the default order. When asked at trial why he did not deliver the van to Bell, Tomaras answered as follows: "I wanted to retain an attorney to see what I had to do here. This was not, I believe, in the company's name, it was in my personal deal. I was just totally confused and I wasn't getting response [sic] of what this was all about. I'm just not used to all this. This is -- I don't do this. I got called to tow a car. We tow the car, we have a bill of towing and storage, then I'm told to take the car and bring it somewhere else. I wanted to get confirmation of what this was all about." On March 19, 2004, Tomaras filed a motion to vacate the default order, and on April 16, 2004, the trial court entered an order vacating the default judgment and substituting Roger's Towing as party defendant. At trial, Officer Robert Rudow, an investigator with the Cook County sheriff's police department who had been working in the sheriff's automobile department for five years, testified that he was familiar with the condition of the van at issue and was familiar generally with values of automobiles. Each month, he generated a report indicating the value of all the vehicles that were recovered stolen. Officer Rudow testified that he saw the van at Roger's Towing on April 16, 2004,

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1-05-2313 and in his opinion, the market value of the van was approximately $6,000. On April 13, 2005, the trial court entered an order finding that Bell was entitled to possession of the van when it was towed; that Roger's Towing failed to prove the van was abandoned; that even if the van was abandoned, Bell was nevertheless entitled to immediate possession on January 29, 2004; that Roger's Towing had an implied duty to respond to the letter sent by Bell's counsel; and that the failure of Roger's Towing to comply with the terms of the default judgment "constitutes another basis for imposing liability for its actions and conduct in connection with the vehicle." The trial court concluded that Roger's Towing's continued possession of the van after January 29, 2004, was wrongful, and that because Roger's Towing did not comply with the provisions of the Illinois Vehicle Code (Code) (625 ILCS 5/1-100 et seq. (West 2004)), it was not entitled to the limited immunity conferred by the Code. The court ordered Roger's Towing to deliver the van to Bell on or before April 15, 2005, and to pay $10,000 in damages. ANALYSIS On appeal, Roger's Towing contends that (1) the trial court's finding that the van was not abandoned was contrary to the manifest weight of the evidence; (2) the trial court's imposition of a money judgment based partly on a finding that Roger's Towing did not comply with a default order was contrary to the manifest weight of the evidence; (3) the trial court erred in finding that Bell was not required to present law enforcement with proof of its right to possession, that Bell was not required to pay Roger's Towing for incurred towing and storage charges, and that Roger's Towing was required to respond to Bell's phone call and letter; and (4) the trial court's award of damages was contrary to the manifest weight of the evidence and constituted an abuse of discretion.

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1-05-2313 I. Jurisdiction Before addressing the contentions raised by Roger's Towing, we must consider Bell's assertion that we lack jurisdiction to address this appeal because the notice of appeal was filed 78 days after the entry of the final judgment from which Roger's Towing is appealing. On April 13, 2005, the same day the trial court entered judgment, Roger's Towing filed a motion to reconsider, requesting "leave to supplement this motion with a transcript of the report of proceedings and a memorandum of law setting forth in detail [Roger's Towing's] argument in support of [the] motion." On May 4, 2005, the trial court entered an order granting Roger's Towing until May 18, 2005, to file its memorandum of law and setting a hearing on the motion for June 29, 2005. On June 28, 2005, Roger's Towing filed an emergency motion to withdraw the motion to reconsider and to stay enforcement of the money judgment. On June 29, 2005, the trial court ordered that the motion to reconsider was withdrawn and that enforcement of the money judgment would be stayed. The next day, June 30, 2005, Roger's Towing filed its notice of appeal from the trial court's judgment of April 13, 2005. Supreme Court Rule 303(a)(1), which governs the timing of filing the notice of appeal, provides as follows: "Except as provided in paragraph (b) below [regarding amendments to the notice of appeal], the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury

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1-05-2313 case, within 30 days after the entry of the order disposing of the last pending postjudgment motion." 210 Ill. 2d R. 303(a)(1). Bell argues that the agreed order providing for the voluntary withdrawal of the motion to reconsider does not constitute an "order disposing of the last pending post-judgment motion" as contemplated in Rule 303(a)(1), and that therefore, Roger's Towing was untimely in the filing of its notice of appeal. However, Bell acknowledges in its brief that in its research, it could not locate any authority directly on point. We find informative Pokora v. Warehouse Direct, Inc., 322 Ill. App. 3d 870 (2001). Pokora, involved the following timeline of events:

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