Jerry Clark Equipment, Inc. v. Hibbits

612 N.E.2d 858, 245 Ill. App. 3d 230, 183 Ill. Dec. 931, 1993 Ill. App. LEXIS 529
CourtAppellate Court of Illinois
DecidedApril 12, 1993
Docket5-91-0640
StatusPublished
Cited by7 cases

This text of 612 N.E.2d 858 (Jerry Clark Equipment, Inc. v. Hibbits) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerry Clark Equipment, Inc. v. Hibbits, 612 N.E.2d 858, 245 Ill. App. 3d 230, 183 Ill. Dec. 931, 1993 Ill. App. LEXIS 529 (Ill. Ct. App. 1993).

Opinion

JUSTICE LEWIS

delivered the opinion of the court:

This case is on appeal from a judgment entered on a jury verdict finding the defendant, Roger Hibbits, doing business as A A A Bookkeeping Service, negligent in performing accounting and tax services for the plaintiff, Jerry Clark Equipment, Inc. Defendant raises several issues on appeal. For the reasons more fully explained hereinafter, we affirm the trial court.

We first summarize the procedural history of the case. Plaintiff filed a motion for preliminary injunction on August 15, 1988, alleging that defendant had performed accounting and tax services for plaintiff through his A A A Bookkeeping Service (AAA), that plaintiff had terminated defendant’s services as of April 1988, and that despite repeated demands for plaintiff’s corporate books and records, defendant had failed and refused to turn over the requested records. Defendant then filed an answer and counterclaim. On September 1, 1988, the trial court conducted an evidentiary hearing, at which time defendant turned over a portion of plaintiff’s records. The court denied plaintiff’s motion for preliminary injunction and instructed the parties that their future remedies were through legal rather than equitable actions, and that plaintiff could raise any issues regarding additional records needed through discovery proceedings.

On December 14, 1988, plaintiff filed its amended complaint, which alleged that defendant negligently failed to perform accounting services and negligently failed to prepare corporate income tax returns for three years and requested compensatory and punitive damages. On May 12, 1989, defendant filed its answer to the amended complaint, an amended counterclaim, and a third-party petition against Boris Elieff (Elieff), the former owner of AAA. On February 8, 1991, the court entered an order which found defendant’s third-party complaint to be “abandoned.”

Finally, on June 19, 1991, the jury trial began on plaintiff’s amended complaint and defendant's counterclaim. For purposes of this opinion, we will summarize the evidence submitted to the jury in this three-day trial. As particular evidence relates to the issues involved, we will detail that evidence specifically as it applies to the issues.

From 1966 until November 1, 1985, Elieff had owned and operated AAA, which did accounting and tax work for its clients. From 1980 until the business was sold to defendant, Elieff had performed all of the personal and corporate accounting and tax work for plaintiff. Elieff sent out monthly statements for $75 to plaintiff for all work done by AAA for each month. Plaintiff paid the $75 fee promptly each month after receipt of the bill. Plaintiff was a sole proprietorship until April of 1984, when it was incorporated. Elieff set up the corporation and prepared the initial corporate income tax return for filing.

Both before and after the sale to defendant, Diane Timmons (Timmons), plaintiff’s secretary and an officer of the corporation, stopped by AAA each month to drop off papers or sign documents. Timmons would customarily pick up any tax returns that needed to be filed, and she would mail them herself. She testified that she did not read the tax returns or other tax papers before signing them, because she trusted the accountants, both Elieff and defendant, to take care of all tax matters.

When defendant purchased AAA on November 1, 1985, he and Elieff entered into a written purchase agreement. Under the agreement, Elieff agreed to continue to work for defendant for six months, to smooth the transition to the new owner, to introduce defendant to AAA’s clients, and to finish up some of his work. Elieff decided to retire because he was going blind. After the sale to defendant, while he was still working at AAA, Elieff's eyesight was “very, very poor.” Both Timmons and Elieff testified that at or near the time defendant bought AAA, Elieff introduced Timmons to defendant. Timmons testified that defendant was introduced as a certified public accountant (CPA) and a tax attorney. She agreed to allow defendant to continue plaintiff’s accounting work after the sale. Defendant disputed that he had met Timmons before the sale and that he was introduced to her as a CPA and tax attorney.

Prior to February 15, 1987, the due date for plaintiff’s 1986 fiscal-year corporate income tax return, defendant asked Timmons to try to find her copy of the corporate return for the prior year. Timmons testified that defendant did not tell her that he could not find his copy of the 1985 return but only that he needed more information in order to prepare the 1986 corporate return. She told defendant that she did not keep copies of tax returns, because she thought AAA kept copies of everything. She looked for a copy but did not find one. Defendant did not remember if he had talked to Timmons about the missing return. Defendant testified that he went to plaintiff’s place of business and asked Jerry Clark (Clark), the owner, about the return. Clark denied that defendant ever spoke to him about the missing return.

At the end of 1986, or the beginning of 1987, defendant also asked Timmons to provide him with additional information for the 1986 fiscal year. Defendant did not give Timmons a list of information to return to defendant. She prepared a master list of expenditures for the period and gave it to defendant. Defendant acknowledged that Timmons gave him the requested information but stated that the information provided raised new questions that required even more information to answer. The testimony regarding whether or not defendant asked for the additional information he needed was disputed. However, the evidence was undisputed that defendant never told Timmons or Clark that he could not prepare the 1986 return without the additional information, and it was undisputed that he did not tell them that the 1986 return was not prepared.

During defendant’s ownership of AAA, Timmons had four to six conversations with him. When she talked to defendant, she always asked him if she needed to do anything else. She told him that if he needed anything else done, to let her know, and she would get it done. She testified that defendant responded each time that everything was taken care of, and if anything else was needed, he would let her know.

Defendant billed plaintiff three times, always for the same fee Elieff had charged, $75 per month. The last statement was mailed to plaintiff in September of 1986 and covered defendant’s services for the months of June, July, and August of 1986, which plaintiff promptly paid. Defendant testified that the $75 fee covered all of plaintiff’s accounting work, including corporate income tax returns.

Defendant testified that he never prepared the 1985, 1986, or 1987 corporate income tax returns for plaintiff, even though he did prepare Clark’s personal returns for each of those years. Defendant testified that in July of 1987, he “assumed” that he was fired after he received a note from his daughter, who was an employee of AAA. That note, which was admitted into evidence, stated that Timmons had come into the office, that she was upset over a mistake defendant made in some of plaintiff’s tax forms, and that she was looking for a new CPA. Defendant testified that after he received the note, he felt that he was fired.

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612 N.E.2d 858, 245 Ill. App. 3d 230, 183 Ill. Dec. 931, 1993 Ill. App. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-clark-equipment-inc-v-hibbits-illappct-1993.