July 18, 2001
No. 2--00--0781
| JAMES CABRERA, UNITED BUILDING MAINTENANCE, INC., and J.C. UNITED BUILDING MAINTENANCE, INC., Plaintiffs-appellants, v. FIRST NATIONAL BANK OF WHEATON, Defendant-Appellees. | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Du Page County. No. 98--L--1271 Honorable Hollis L. Webster, Judge, Presiding. |
JUSTICE GROMETER delivered the opinion of the court:
Plaintiffs, James Cabrera, United Building Maintenance (UBM), Inc., andJ.C. United Building Maintenance (JC-UBM), Inc., appeal the order of the circuitcourt of Du Page County dismissing their seven-count second amended complaintagainst defendants, First National Bank of Wheaton (FNB), Florian Barbie,Theodore J. Ansani, Nelson Carlo, Edward Diamond, Jord C. Hauge, Chris A. Hould,and Somboon Sriaroon. The trial court held res judicata precluded plaintiffsfrom asserting the present action. Plaintiffs also appeal the trial court'saward of attorney fees to FNB. For the reasons that follow, we affirm.
Before turning to the merits of this appeal, we must address severalmotions brought by the parties. Both parties have made motions to supplement therecord on appeal. Those motions are granted. Additionally, plaintiffs havemoved to strike portions of FNB's reply filed in the trial court in support ofits motion for attorney fees and also to strike one of the exhibits attached tothe reply. This motion is denied. Finally, plaintiffs have moved to strikedefendants' briefs. Plaintiff contends that FNB, by using a smaller typeface,was able to exceed the page limitation imposed by Supreme Court Rule 341(a). 177Ill. 2d R. 341(a). Plaintiffs also complain that the individual defendants'briefs used a small typeface, but concede that these briefs were probably notexcessively long. 177 Ill. 2d R. 341(a). According to plaintiffs, the smallertypeface allowed FNB to compress 40% more material into its 41-page brief,resulting in the brief being effectively 56 pages long. However, the page limitfor a brief that is not printed is 75 pages (177 Ill. 2d R. 341(a)), and FNB'sbrief appears to be generated by computer rather than by a printing process. Thus, even accepting plaintiffs' allegations and calculations as true, FNB didnot violate this page limitation and plaintiff suffered no prejudice. Therefore,plaintiffs' motion to strike defendants' briefs is denied.
BACKGROUND
On February 26, 1996, Cabrera entered into an agreement with FNBestablishing a $700,000 line of credit. UBM and JC-UBM guaranteed the loan. Theloan agreement stated that the loan was to mature on August 24, 1996. Theagreement also provided that the loan was to be evidenced by a note and thatpayments were to be made in accordance with the terms of the note. The note'smaturity date was July 31, 1996. On August 9, 1996, plaintiffs received a letterfrom FNB's attorney stating that they were in default because the note had notyet been paid. On the same day, FNB set off approximately $430,000 from anaccount maintained by UBM.
UBM filed a bankruptcy petition seeking reorganization under chapter 11 ofthe Bankruptcy Code (11 U.S.C.