Tipsord v. Unarco Industries, Inc.

544 N.E.2d 1198, 188 Ill. App. 3d 895, 136 Ill. Dec. 423, 1989 Ill. App. LEXIS 1476
CourtAppellate Court of Illinois
DecidedSeptember 28, 1989
DocketNos. 4-89-0058, 4-89-0059, 4-89-0060 cons.
StatusPublished
Cited by2 cases

This text of 544 N.E.2d 1198 (Tipsord v. Unarco Industries, Inc.) 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
Tipsord v. Unarco Industries, Inc., 544 N.E.2d 1198, 188 Ill. App. 3d 895, 136 Ill. Dec. 423, 1989 Ill. App. LEXIS 1476 (Ill. Ct. App. 1989).

Opinion

JUSTICE GREEN

delivered the opinion of the court:

On December 20, 1985, plaintiffs Willard Tipsord, Otto Kessinger, and James Denham filed separate suits in the circuit court of McLean County against the same defendants alleging the defendants sold or supplied asbestos or asbestos-containing products to plaintiffs’ employer, Unarco Industries, at its Bloomington plant. Plaintiffs contended they were exposed to the products and injured thereby. On September 1, 1988, and December 19, 1988, respectively, the court granted motions of Special Materials, Inc.-Wisconsin (Special Materials), and Special Shipping, Inc. (Special Shipping), both of whom were defendants in all of the cases, for summary judgment in each of the cases. After the last of the summary judgments, the circuit court made findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) as to all summary judgments. Plaintiffs have appealed all summary judgments and all cases have been consolidated on appeal. We reverse the judgments as to Special Materials and affirm as to Special Shipping.

In response to a request by defendants for a bill of particulars, plaintiffs admitted their dates of employment at the Unarco plant were as follows: (1) Tipsord, during 1956 and 1957; (2) Kessinger, in 1955; and (3) Denham, for five or six months in 1967. Affidavits presented by defendants in support of their motions for summary judgment purported to show that Special Shipping was not incorporated until May 7, 1979, and Special Materials was not incorporated until February 26, 1969. If this were true, the incorporation of both defendants took place well after the last employment of any plaintiff at the Bloomington Unarco plant. The affidavits also purported to show that neither defendant ever supplied asbestos for the Blooming-ton plant and neither defendant had acquired the assets of or merged with any entity existing prior to the incorporation of the two defendants.

Plaintiffs maintain the showing made in support of the motions for summary judgment was insufficient to support the judgments, at least without plaintiffs having an opportunity for more discovery than they were permitted. We agree this was true in regard to the judgments in favor of Special Materials, but the judgments in favor of Special Shipping were properly supported.

Pursuant to section 2 — 1005(c) of the Code of Civil Procedure, summary judgments “shall be rendered” if the pleadings, depositions, affidavits, and other matters properly before the court show the movant to be entitled to judgment as a matter of law, because all factual matters are resolved in favor of the movant (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)). Supreme Court Rule 191 states that affidavits in support of such a motion “shall be made on the personal knowledge of the affiants; *** shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; [and] shall not consist of conclusions but of facts admissible in evidence.” 107 Ill. 2d R. 191.

By the time the circuit court ruled on Special Materials’ motions for summary judgment, the motion was supported by the affidavits of Thomas C. Ewing, stated to be an attorney from Milwaukee, Wisconsin, and Suzanne Thomas, stated to be a paralegal working in the same firm with Ewing. Accompanying these affidavits was a document certified by the Secretary of State of Wisconsin to be a certificate of incorporation of an entity called Special Asbestos Company, Inc., on February 26, 1969. Ewing stated in his affidavit that Material Services was incorporated on February 26, 1969, as per that certificate. In a discovery deposition on file in the cases, Ewing had testified that that corporation had undergone several changes of name but was the defendant corporation now known as Special Materials, Inc.— Wisconsin (Special Materials).

Ewing’s affidavit stated: (1) he was “designated” and “authorized” to speak for Special Materials; (2) all corporate records of the corporation now called Special Materials, Inc.-Wisconsin (Special Materials), were in his possession in his law office; (3) that corporation had been incorporated on February 26, 1969, as per the certificate attached to the affidavit; (4) he had instructed Thomas to review all of those records; (5) Thomas had presented him with a summary of customers of the foregoing corporation; (6) Thomas was also instructed to identify any documents indicating whether that corporation had ever acquired the assets of or merged with an entity which did business prior to February 26, 1969; and (7) based on his review of the summary submitted by Thomas and her review of the records, he concluded Special Materials had never sold asbestos or products containing asbestos to the Bloomington Unarco plant or its present occupant, and Special Materials had never acquired assets of nor merged with an entity doing business prior to February 26, 1969.

The affidavit of Thomas set forth that she was a paralegal working under Ewing and confirmed the instructions his affidavit stated he gave her. She stated she had followed those instructions and presented to him the summary to which he referred. She then stated she had “reported” to Ewing “that based on her review,” the defendant corporation now referred to as Special Materials had “never sold, shipped or supplied asbestos or asbestos-containing products” to the Bloomington plant in question. Notably, she spoke merely as to what she reported and not as to what she actually found. Thus, she made no statement under oath, even in conclusionary terms, as to what the records of Material Services did or did not show.

In arguing that the factual basis for a summary judgment may be established by an affidavit as to matters appearing in corporate records, Special Materials relies on First Federal Savings & Loan Association v. Chicago Title & Trust Co. (1987), 155 Ill. App. 3d 664, 508 N.E.2d 287, and National Builders Bank v. Simons (1940), 307 Ill. App. 562, 31 N.E.2d 274. We deem the affidavits there to be materially different than those supporting Special Materials’ request for summary judgment here.

In First Federal, the affidavits presented were those of general counsel and a clerk employed by a plaintiff seeking to foreclose a mortgage. The affidavit of the counsel set forth the factual background of the mortgage loan, the default, the outstanding balance and the court costs due, all based upon his personal knowledge. The affidavit of the clerk set forth that on her personal knowledge, based upon her search of the appropriate file, the note and mortgage had been lost. Objection to the affidavits was made by a guarantor on the note who contended the clerk’s affidavit was too conclusionary. The appellate court disagreed and affirmed a summary judgment for the plaintiff.

, In National Builders Bank, a summary judgment in favor of that plaintiff for amounts due upon notes and trade acceptances was affirmed on appeal. The motion for the judgment was based upon the affidavit of an officer of that plaintiff bank setting forth the facts concerning the negotiation for the instrument sued upon, the failure of the obligor to pay, and the amounts due. The appellate court concluded the affidavit showed that affiant had personal knowledge of the facts set forth in his affidavit.

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Bluebook (online)
544 N.E.2d 1198, 188 Ill. App. 3d 895, 136 Ill. Dec. 423, 1989 Ill. App. LEXIS 1476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tipsord-v-unarco-industries-inc-illappct-1989.