ACE HARDWARE CORPORATION v. H.N. HINCKLEY & SONS, INC.

Case No. 16-CV-3485.

ACE HARDWARE CORPORATION, Plaintiff, v. H.N. HINCKLEY & SONS, INC., a Massachusetts Corporation Defendant.

United States District Court, N.D. Illinois.

Editors Note
Applicable Law: 28 U.S.C. § 1331
Cause: 28 U.S.C. § 1331 Federal Question
Nature of Suit: 190 Contract: Other
Source: PACER


Attorney(s) appearing for the Case

Ace Hardware Corporation, Plaintiff, represented by Kimberly A. Hilton , The Fish Law Firm, P.C..

Ace Hardware Corporation, Plaintiff, represented by David J. Fish , The Fish Law Firm, P.C..

H.N. Hinckley & Sons, Inc., Defendant, represented by Dennis F. Esford , Windy City Trial Group & Michael Kevin Mcdonough , Windy City Trial Group.


MOTION TO ENTER AGREED JUDGMENT ORDER

HARRY D. LEINENWEBER, District Judge.

Plaintiff Ace Hardware Corporation ("Ace") states as its Motion to Enter Agreed Judgment Order against H.N. Hinckley & Sons, Inc. ("Hinckley") as follows:

1. The Parties executed a Settlement Agreement (the "Agreement") on July 29, 2016. A true and accurate copy of the executed agreement is attached as Exhibit A. Pursuant to the Agreement, the Court entered a dismissal without prejudice and, on October 18, 2016, this Court dismissed this case without prejudice. A true and accurate copy of this Order is attached as Exhibit B.

2. Under the Agreement, the Defendant was obligated to pay $158,000 to the Plaintiff.

3. The Defendant has defaulted under the Agreement. A payment of $10,000 was to be made on December 1, 2016. Exhibit A, ¶ 2(e). A payment of $10,000 was to be made on January 1, 2017. Exhibit A, ¶ 2(f). These payments were not made. See Declaration of Gordon Hampton attached as Exhibit C.

4. The Agreement states:

"Judgment. Defendant will execute an Agreed Judgment Order which appears as Exhibit "A". This Agreed Judgment Order shall be held by counsel for Ace and shall not be filed unless and until a default in payment is made and after the applicable cure period. If the Court is unwilling to enter the Agreed Judgment Order, then it is agreed that Ace shall be entitled to judgment in any other court for the remaining amount owed under this Agreement. Defendant will not object to the enforcement of the obligations required herein except that it may request a reduction for any payment actually made under this Agreement." Exhibit A ¶3

5. Defendant executed the Agreed Judgment Order pursuant to the Settlement Agreement. A true and accurate copy of the executed Agreed Judgment Order is attached as Exhibit D, and is the last page of Exhibit A.

6. The Agreement, further states:

"Failure to Make Payment. Time is of the essence in this Agreement. If any payment due under this Agreement is not received by the date set for that particular payment or does not clear the bank, then Plaintiff shall have ten (10) days from delivery of notice of default to cure the default. If the Defendant fails to cure any default within ten (10) days from the Plaintiff's notice of default, or if Defendant defaults more than twice in any calendar year, then all outstanding payments shall be accelerated and due immediately. Furthermore, Defendant shall pay all reasonable attorneys fees and costs incurred by Ace in enforcing this Agreement or the Agreed Judgement Order." Exhibit A ¶4

7. Ace, through its counsel, notified Defendant of the non-payment. A true and accurate copy of the notice is attached as Exhibit E. The ten day cure period has passed and Defendant has failed to cure the default.

8. There is presently the sum of $118,000 owed to Ace under the Agreement.

Wherefore, the Plaintiff Ace Hardware Corporation requests the Court enter the attached Agreed Judgement Order, reduced by $40,000, for a total of $118,000 against Defendant, plus an additional award of its attorney fees and for such other relief as this Court deems appropriate.

EXHBIT A

SETTLEMENT AGREEMENT

This Settlement Agreement (the "Agreement") describes the settlement reached on July 29, 2016, by among all the parties in Ace Hardware Corporation v. H.N, Hinckley & Sons, Inc., 16-cv 03485, filed in the Northern District of Illinois (the "Lawsuit"). Pursuant to this Agreement, H.N. Hinckley & Sons, Inc. ("Defendant") has agreed to make certain payments to Ace Hardware Corporation ("Plaintiff" or "Ace").

THEREFORE, in consideration of the foregoing, Plaintiff and Defendant each agree to the terms set forth below.

1. Dismissal of this Action. The parties shall jointly move the Court to dismiss the Lawsuit without prejudice but with the stipulation that it shall automatically convert to a dismissal with prejudice on February 28, 2018 if all of the payments required herein are timely made.

2. Payment by Defendant. Defendant shall pay to Ace $158,000.00 as follows:

(a) $10,000.00 shall be paid on or before August 1, 2016; and (b) $10,000.00 shall be paid by September 1, 2016; and (c) $10,000.00 shall be paid by October 1, 2016; and (d) $10,000.00 shall be paid on November 1, 2016; and (e) $10,000.00 shall be paid on December 1, 2016; and (f) $10,000.00 shall be paid on January 1, 2017; and (g) $10,000.00 shall be paid on February 1, 2017; and (h) $10,000.00 shall be paid on March 1, 2017; and (i) $10,000.00 shall be paid on April 1, 2017; and (j) $10,000.00 shall be paid on May 1, 2017; and (k) $10,000.00 shall be paid on June 1, 2017; and (l) $10,000.00 shall be paid on July 1, 2017; and (m) $10,000.00 shall be paid on August 1, 2017; and (n) $10,000.00 shall be paid on September 1, 2017; (o) $10,000.00 shall be paid on October 1, 2017; and (p) $8,000.00 shall be paid on November 1, 2017.

All payments shall be made in certified funds payable to Ace Hardware Corporation and must be received on or before the dates set forth above by making payments to:

Gordon Hampton Ace Hardware Corporation 2200 Kensington Court Oak Brook, IL 60523

3. Juditment. Defendant will execute an Agreed Judgment Order which appears as Exhibit "A". This Agreed Judgment Order shall be held by counsel for Ace and shall not be filed unless and until a default in payment is made and after the applicable cure period. If the Court is unwilling to enter the Agreed Judgment Order, then it is agreed that Ace shall be entitled to judgment in any other court for the remaining amount owed under this Agreement. Defendant will not object to the enforcement of the obligations required herein except that it may request a reduction for any payments actually made under this Agreement.

4. Failure to Make Payments. Time is of the essence in this Agreement. If any payment due under this Agreement is not received by the date set for that particular payment or does not clear the bank, then Plaintiff shall give Defendant, through its counsel of record in the Lawsuit, notice in writing of that default. Defendant shall have ten (10) days from delivery of notice of default to cure the default. If the Defendant fails to cure any default within ten (10) days from Plaintiffs notice of default, or if Defendant defaults more than twice in any calendar year, then all outstanding payments shall be accelerated and due immediately. Furthermore, Defendant shall pay all reasonable attorneys fees and costs incurred by Ace in enforcing this Agreement or the Agreed Judgment Order.

5. Release or Claims. Upon full payment of amounts due herein, Plaintiff shall release Defendant from any and all claims relating to its payment obligations as alleged in the Lawsuit or that could have been alleged in the Lawsuit.

7. General Release. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, H.N. Hinckley & Sons, Inc. (hereinafter "Releasor") does hereby release, remise and forever discharge and covenant not to sue Ace Hardware Corporation, its officers, directors, agents, employees, attorneys, successors and assigns (hereinafter collectively "Releasees"), from all accounts, actions, causes of action, suits, debts, dues, sums of money, and any and all claims and demands whatsoever, in law or in equity, whether known or unknown, vested or contingent, suspected or unsuspected, which the undersigned ever had, now has or hereafter can or may have against Releasees by reason of anything whatsoever up to and including the date of this Release including, without limitation, all claims arising out of the former Ace membership of the Defendant.

8. Good and Valuable Consideration. The Parties acknowledge that they have or will receive good and valuable consideration for entering into this Agreement, the sufficiency of which is acknowledged by the Parties.

9. Independent Counsel. The Parties acknowledge that they have been represented by independent legal counsel of their own choosing throughout all of the negotiations which preceded the execution of this Agreement and the Parties have executed this Agreement with the consent and on the advice of their respective independent counsel.

10. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Parties.

11. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Copies of this Agreement transmitted by facsimile, including signatures transmitted by facsimile, shall be deemed and considered as originals.

12. Construction. The Parties have participated in the drafting and negotiation of this Agreement such that no provision contained in this Agreement shall be construed against any party on the basis that such party was the drafter of the same. No rule of construction resolving any ambiguity against the drafting party shall be applicable to this Agreement.

13. Authority: The parties signing this Agreement certify that they are duly authorized to execute this Agreement on behalf of the parties.

IN WITNESS WHEREOF, the undersigned have executed this on this 29th day of July, 2016.

Ace Hardware Corporation H.N. Hinckley & Sons, Inc., By: __________________________ By: _________________________ UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ACE HARDWARE CORPORATION, Plaintiff, Case No. 16 cv 3485 v. H.N. HINCKLEY & SONS, INC., a Massachusetts Corporation, Defendant.

AGREED JUDGMENT ORDER

This matter before the Court for Plaintiffs Motion for Entry of Agreed Judgment Order, this Court having jurisdiction over the parties and the parties being in agreement as to the entry of this Agreement Judgment Order, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. The Court has personal jurisdiction over the Defendant in this action.

2. Judgment is entered in favor of Ace Hardware Corporation and against H.N. Hinckley & Sons, Inc., in the amount of $158,000.00.

ENTERED: ________________ ________________ Agreed by H.N. Hinckley & Sons, Inc., By: _____________________________

EXHBIT B

UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois — CM/ECF LIVE, Ver 6.1.1 Eastern Division Ace Hardware Corporation Plaintiff, Case No.: 1:16-cv-03485 v. Honorable Harry D. Leinenweber H.N. Hinckley & Sons, Inc. Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, October 18, 2016:

MINUTE entry before the Honorable Harry D. Leinenweber: Status hearing held on 10/18/2016. This case is dismissed without prejudice and that the dismissal shall automatically convert to a dismissal with prejudice pursuant to the Settlement Agreement. Civil case terminated. Mailed notice(wp,) ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

EXHBIT C

Declaration Of Gordon Hampton

Pursuant to 28 USC § 1746, I swear under penalty of perjury that the following information is true:

1. My name is Gordon Hampton. I am over the age of twenty-one, I am competent to make this Declaration, and I have personal knowledge of the matters set forth herein.

2. I am employed by Ace Hardware Corporation ("Ace") as a Divisional Credit Manager. I have been directly involved in the relationship between Ace and H.N. Hinckley & Sons, Inc. ("Defendant").

2. Under the Settlement Agreement, which was entered into between Ace and Defendant and which is attached to the Motion to Enter Agreed Judgement Order, the Defendant is obligated to pay $158,000 to Ace.

3. Defendant has only made four payments to Ace pursuant to the Agreement for a total of $40,000.

4. The Defendant has defaulted under the Agreement. A payment of $10,000 was to be made on December 1, 2016. Exhibit A, 2(e). A payment of $10,000 was to be made on January 1, 2017. Exhibit A, ¶ 2(f). These payments were not received.

5. Through its counsel, Ace has provided notice of default to the Defendant's counsel. The ten day cure period has since passed and Defendant has not cured the default.

6. The sum of $118,000 is owed to Ace under the Agreement.

7. Ace did not receive payment for the $10,000 amount due on December 1, 2016. Ace did not receive payment for the $10,000 amount due on January 1, 2017.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on January 31, 2017. _________________________ Gordon Hampton

Exhibit D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ACE HARDWARE CORPORATION, Plaintiff, Case No. 16 cv 3485 v. H.N. HINCKLEY & SONS, INC., a Massachusetts Corporation, Defendant.

AGREED JUDGMENT ORDER

This matter before the Court for Plaintiff's Motion for Entry of Agreed Judgment Order, this Court having jurisdiction over the parties and the parties being in agreement as to the entry of this Agreement Judgment Order, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

1. The Court has personal jurisdiction over the Defendant in this action.

2. Judgment is entered in favor of Ace Hardware Corporation and against H.N. Hinckley & Sons, Inc., in the amount of $158,000.00.

ENTERED: ____________________ ____________________ Agreed by H.N. Hinckley & Sons, Inc., By: _______________________________

Exhibit E

THE FISH LAW FIRM P.C.

January 10, 2016 Via Email and Mail Denny Esford Windy City Trial Group, Inc. 233 S. Wacker Drive, 84th Floor Chicago, IL 60606 denny @windcitytrial_group.com Re: Ace Hardware Corporation v. H.N. Hinkley & Sons, Inc.

Dear Mr. Esford:

As you know, this office represents Ace Hardware Corporation ("Ace"). This letter shall receive as a formal notice of default pursuant to the Settlement Agreement. The payments for December 2016 and January 2017 remain unpaid. Ace previously provided a notice of default for those payments.

As you know, under the Settlement Agreement, Ace is entitled to enter judgment in its favor for the entire amount outstanding along with attorney fees.

Please contact me immediately upon receipt of this letter and have payment tendered immediately. Ace reserves all rights.

Sincerely, David J. Fish 5TH AVENUE STATION T: 630.355.7590 200 E. 5TH AVENUE, STE. 123 F: 630.778.0400 NAPERVILLE, IL 60563 WWW.FISHLAWFIRM.COM From: David Fish dtish@fistilawfirm corn Subject: Hinkley Date: January 3, 2017 at 2:27 PM To: Denny Esford denny@windycitytrialgroup.corn Cc: Ace Hardware Corporation ghamp@acehardware.com Denny—please confirm that status of Hinkley's December payment David Fish The Fish Law Firm, P.C. 200 E. 5th Avenue, Suite 123 Naperville, IL 60563 (331) 425.7083 Direct (630) 778-0400 Facsimile

dfish@fishlawfirm con

CIRCULAR 230 DISCLOSURE: Except to the extent that this advice concerns the qualification of any qualified plan, unless otherwise expressly indicated, any federal tax advice contained in this communication, including any attachments, is not intended or written by us to be used, and cannot be used, by anyone for the purpose of avoiding federal tax penalties that may be imposed by the federal government or for promoting, marketing or recommending to another party any tax-related matters addressed herein.

CONFIDENTIALITY NOTICE: This E-mail and any attachments are confidential and may be protected by legal privilege. If you are not the intended recipient, be aware that any disclosure, copying, distribution, or use of this E-mail or any attachment is prohibited. If you have received this E-mail in error, please notify us immediately by returning it to the sender and delete this copy


Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases