{ "id": 3636744, "name": "BEVERLY BANK, Plaintiff-Appellee, v. COLEMAN AIR TRANSPORT et al., Defendants-Appellants", "name_abbreviation": "Beverly Bank v. Coleman Air Transport", "decision_date": "1985-06-28", "docket_number": "No. 84-2061", "first_page": "699", "last_page": "705", "citations": [ { "type": "official", "cite": "134 Ill. App. 3d 699" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "448 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592123 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0120-01" ] }, { "cite": "352 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2969798 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0800-01" ] }, { "cite": "313 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407090 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0376-01" ] }, { "cite": "241 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "100 Ill. App. 2d 42", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2820428 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/100/0042-01" ] }, { "cite": "371 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3408676 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0695-01" ] }, { "cite": "376 N.E.2d 621", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3355534 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0954-01" ] }, { "cite": "452 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557045 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/1026-01" ] }, { "cite": "462 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677244 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0194-01" ] }, { "cite": "307 N.E.2d 749", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513111 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0667-01" ] } ], "analysis": { "cardinality": 624, "char_count": 12885, "ocr_confidence": 0.783, "pagerank": { "raw": 1.1163225736987878e-07, "percentile": 0.5722945623470712 }, "sha256": "ea3290cab21fba0fef93cd0fe7730b8f2ca3b8838d095e8e83ebbc67cb9f42ce", "simhash": "1:a2fa59eea61585e5", "word_count": 2071 }, "last_updated": "2023-07-14T19:26:11.266607+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BEVERLY BANK, Plaintiff-Appellee, v. COLEMAN AIR TRANSPORT et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPlaintiff, Beverly Bank, brought this action against defendants, Coleman Air Transport Corporation and Philip Coleman (Coleman), seeking to recover on two promissory notes signed by the Corporation and guaranteed by Coleman. The proceedings against the corporation were stayed by an involuntary bankruptcy, but the trial court granted summary judgment in favor of plaintiff against Coleman. He appeals.\nIn 1972, Coleman incorporated Coleman Prop-Jet Sales Corporation. Plaintiff extended a line of credit to Prop-Jet which was personally guaranteed by Coleman on April 25, 1974. Specific aircraft and Coleman\u2019s personal securities were used as collateral. Coleman Aircraft Corporation, incorporated in 1975, also had a borrowing relationship with plaintiff which required Coleman\u2019s personal guaranty. On May 14, 1978, Coleman wrote to J. Dennis Huffman, plaintiff\u2019s vice-president, requesting the return of his personal securities and indicating that he would no longer personally guaranty the corporate loans used to purchase aircraft.\nColeman Air Transport was incorporated on May 2, 1978, and on January 16, 1979, Coleman Prop-Jet was merged into the new corporation. Because Coleman was one of plaintiff\u2019s directors, in accordance with State law, the board of directors had to approve all loans to Coleman\u2019s companies exceeding $10,000. (Ill. Rev. Stat. 1983, ch. 17, par. 347(1).) On July 17, 1979, the renewal of the line of credit to Coleman Air Transport was approved. On July 30, 1979, Huffman wrote to Coleman advising him of the terms of the line of credit. The letter did not mention a personal guaranty.\nColeman, as president of Air Transport, signed a promissory note for $925,000 on May 14, 1979, and for $575,000 on August 2, 1979, with interest at plaintiff\u2019s prime rate plus 1%. The corporation defaulted on both notes. Plaintiff advised Coleman that it was enforcing the guaranty. In a letter dated April 9, 1980, Coleman denied that such a guaranty existed. Plaintiff filed a complaint in two counts against the corporation and a third count against Coleman based on the personal guaranty he signed and which was dated January 16, 1979.\nColeman filed a verified answer on July 15, 1980, admitting plaintiff\u2019s allegations that a guaranty had been signed and delivered and was \u201cin full force and effect\u201d at the time the loans were made to the corporation. The verification was made by Coleman\u2019s attorney. The answer denied only those paragraphs of the complaint which dealt with the amount of damages and which requested fees and costs.\nFollowing a substitution of attorneys, Coleman filed a motion to dismiss count III of the complaint. In the motion, Coleman maintained that the guaranty was unenforceable because it was indefinite and unlimited as to duration and amount. Coleman also filed a counterclaim alleging, among other things, that the guaranty should be rescinded because it was procured by fraud on January 16, 1979. According to Coleman, plaintiff\u2019s board of directors met to consider the renewal of the corporation\u2019s line of credit and after the meeting, Coleman was asked to sign various documents as president of the corporation. The guaranty, which he never agreed to sign, was included with these documents by an unknown agent of plaintiff.\nPlaintiff filed a motion to dismiss the counterclaim pointing out that Coleman had admitted the execution of the guaranty in his verified answer and that his claim of fraud was waived by his failure to raise it as an affirmative defense. Coleman then filed a motion for leave to amend his answer supported by his affidavit which stated that Coleman\u2019s previous attorney did not consult with him before preparing the original answer, that the attorney did not send the answer to him for review and that the verification by his attorney was made through mistake or inadvertence. The amended answer he sought to file denied plaintiff\u2019s allegations, and his affirmative defense again asserted that the guaranty was fraudulently procured. The trial court granted leave to amend the defense but left open the issue whether the original verified answer would stand as a binding judicial admission.\nPlaintiff answered the counterclaim denying that Air Transport\u2019s line of credit was discussed at the January board meeting as well as denying the other allegations. Plaintiff also filed a motion for summary judgment.\nIn support of its motion, plaintiff attached affidavits from Mary Ann Boline, Robert Hanson, and Huffman; Coleman\u2019s deposition; the original verified answer; the promissory notes; and Coleman\u2019s executed guaranty. The affidavit by Boline, a secretary in the aircraft loan department, stated that on January 31, 1979, she sent Coleman a corporate depository resolution and a corporate borrowing resolution for the corporation, a guaranty for Coleman to sign, and a signature card for a corporate checking account. When the forms were returned, both resolutions indicated that the corporation\u2019s board of directors met on January 16, 1979, to adopt the resolutions. The corporate secretary\u2019s signature on the borrowing resolution, however, was dated February 16. Boline received the completed documents on or about February 8. Plaintiff attached these documents and a collateral receipt for the guaranty dated February 9, to Boline\u2019s affidavit.\nThe affidavit of Hanson, plaintiff\u2019s vice-president and secretary, stated that the corporate minutes showed that Coleman was not present at nor was he paid for the January 1979 meeting, controverting Coleman\u2019s claim of fraud on that date. The renewal of Coleman\u2019s line of credit was not discussed at that meeting, but was approved at the July 1979 meeting, which Coleman attended.\nHuffman\u2019s affidavit stated that Coleman had been a customer of plaintiff since 1974; that in January 1979, following the merger of Coleman Prop-Jet Sales and Coleman Air Transport, Coleman requested that the business relationship continue; that Boline was instructed to send documents to Coleman for the new corporation, and that these documents, including Coleman\u2019s guaranty, were executed and returned to plaintiff.\nContrary to his affidavit, Coleman stated at his deposition that he did not know whether he attended the January 16, 1979, meeting where he believed the guaranty was slipped in among other corporation documents for him to sign. In his counteraffidavit, filed in response to the motion for summary judgment, Coleman prefaced his statement by saying \u201cbecause the information to which I refer in this paragraph was not available to me when I gave my deposition in this case and when I signed the Amended Answer to Count III in this case, my memory now is considerably more refreshed than it was before, and to the extent that facts stated herein may be inconsistent to facts stated previously, the facts stated herein are the correct facts.\u201d In this second affidavit Coleman stated that he refused to personally guaranty corporate borrowing after 1978; that he did not sign any guaranties in 1979; and that the only way he could have signed the guaranty here was if it was given to him with other documents at the Bank and if one of plaintiff\u2019s employees represented to him that the documents pertained to his function as a director without his having time to read the documents before signing them.\nThe trial court granted summary judgment on liability in favor of plaintiff. When Coleman failed to appear at the hearing on damages, the trial court, based on Huffman\u2019s affidavit, entered judgment in the amount of $831,817.04. The trial court subsequently denied Coleman\u2019s motion to vacate and for reconsideration.\nOn appeal, Coleman contends that the trial court improperly considered affidavits filed by plaintiff in support of its motion for summary judgment, that the guaranty was procured by fraud, and that summary judgment was improperly granted because a material question of fact remains. We hold, however, that Coleman\u2019s admission of liability in his original verified answer was binding on him and that, therefore, the entry of summary judgment was proper.\nGenerally, an amended pleading supersedes the prior pleading. (Yare v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 307 N.E.2d 749.) However, where the original pleading is verified, it remains part of the record. (Robins v. Lasky (1984), 123 Ill. App. 3d 194, 462 N.E.2d 774.) Any admissions which are not the product of mistake or inadvertence, contained in the original verified pleading, are binding judicial admissions. (American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 452 N.E.2d 3.) Such an admission has the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 376 N.E.2d 621.\nAttorneys are deemed agents of their clients for purposes of making admissions in all matters relating to the progress and trial of an action. (Murphy v. Rochford (1977), 55 Ill. App. 3d 695, 371 N.E.2d 260.) An attorney may verify a pleading if he has knowledge of the facts and the verification has the same effect as if the party signed the pleading himself. Standard Bank & Trust Co. v. Cooper (1968), 100 Ill. App. 2d 42, 241 N.E.2d 564; Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 605.\nIn his affidavit, filed in support of his motion for leave to amend the verified answer, Coleman stated that his attorney did not consult with him or allow him to review the answer and that the answer was the product of mistake or inadvertence. These unsupported and largely conclusionary statements are insufficient to show mistake or inadvertence. There is nothing in the record before us which indicates that Coleman\u2019s attorney did not have knowledge of the statements in the answer or that he did not have authority to file a verified answer in behalf of his client. Indeed, we note that Coleman asserted the attorney-client privilege in the trial court and prevented any disclosure of the circumstances surrounding the verification of the original answer. We hold that Coleman\u2019s verified answer admitting plaintiff\u2019s allegations that a guaranty had been signed and delivered and was in full force and effect at the time of the loan to the Corporation constituted a binding judicial admission against Coleman. The trial court properly granted summary judgment in favor of plaintiff.\nColeman also contends that the trial court erred in its award of interest charges on the loan. The note provided for prime interest rate plus 1%. In his affidavit seeking to vacate the award of damages, Coleman raised a new defense based upon the premise that the interest rates on the corporation\u2019s loans were based upon a false calculation of the prime interest rate. The affidavit went on to state that plaintiff \u201cmade available to either or both General Motors Acceptance Corporation or Sears Roebuck and Company a commercial rate of interest at least one half of a percent less than the rate claimed to be prime.\u201d Attached to the affidavit was a report, dated April 1, 1981, prepared for the United States House of Representatives Committee on Banking, Finance and Urban Affairs, entitled \u201cAn Analysis of Prime Rate Lending Practices at the Ten Largest United States Banks.\u201d The trial court denied Coleman\u2019s motion to vacate the award of damages. Coleman maintains that he was overcharged, and that there is a genuine issue of material fact requiring a trial as to the amount of damages.\nAffidavits in support of, or in opposition to, summary judgment motions must consist of facts. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) The affiant must be able to testify to such facts if called as a witness at trial. (Schultz v. American National Bank & Trust Co. (1976), 40 Ill. App. 3d 800, 352 N.E.2d 310.) Conclusory matter cannot be considered. Young v. Pease (1983), 114 Ill. App. 3d 120, 448 N.E.2d 586.\nColeman\u2019s affidavit contained conclusions that loans were made to \u201ceither or both\u201d other commercial customers without setting forth any facts. The statement was not one of fact, and the trial court properly ruled that it was a conclusion not to be considered. Additionally, the committee report had absolutely no relevance to the present case. The trial court did not err in awarding damages based on plaintiff\u2019s stated prime rate of interest.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nWHITE, P.J., and RIZZI, J., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Richard M. Kates, of Chicago, for appellants.", "Coakley & Smith, Chartered, of Chicago (Joseph A. Coakley, of counsel), for appellee." ], "corrections": "", "head_matter": "BEVERLY BANK, Plaintiff-Appellee, v. COLEMAN AIR TRANSPORT et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 84\u20142061\nOpinion filed June 28, 1985.\nRichard M. Kates, of Chicago, for appellants.\nCoakley & Smith, Chartered, of Chicago (Joseph A. Coakley, of counsel), for appellee." }, "file_name": "0699-01", "first_page_order": 721, "last_page_order": 727 }