Rohr Burg Motors, Inc. v. Kulbarsh
| Decision Date | 25 August 2014 |
| Docket Number | Docket No. 1-13-1664 |
| Citation | 2014 IL App (1st) 131664 |
| Parties | ROHR BURG MOTORS, INC., d/b/a Bob Rohrman's Schaumburg Ford, Plaintiff and Counterdefendant-Appellee, v. BRUCE KULBARSH, Defendant and Counterplaintiff-Appellant. |
| Court | United States Appellate Court of Illinois |
Illinois Official Reports
Appellate Court
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In an action arising from defendant's purchase of a used car from plaintiff dealership that had been involved in a major accident, contrary to plaintiff's representations, the trial court's order entering summary judgment dismissing defendant's counterclaims against plaintiff and his affirmative defenses to plaintiff's complaint was affirmed, since the record showed that upon the discovery of the problem with the car defendant purchased, the parties entered into a release agreement under which plaintiff agreed to refund defendant's money, pay off the loan he obtained to pay the balance of the purchase price, and basically make defendant whole and defendant agreed to return the vehicle, and despite several problems in connection with checks tendered by plaintiff and defendant's temporary refusal to return the vehicle, the parties' agreement was ultimately performed.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 10-M3-3963; the Hon. Sandra Tristano, Judge, presiding.
Counsel on Appeal
Law Office of Sheila A. Genson, Ltd., of Schaumburg, (S.A. Genson, of counsel), and Zane D. Smith & Associates, of Chicago (Zane D. Smith, of counsel), for appellant.
William G. Hutul, P.C., of Carol Stream (William G. Hutul, of counsel), for appellee.
Panel
¶ 1 Defendant and counterplaintiff-appellant Bruce Kulbarsh (Kulbarsh) appeals from the trial court's order of April 17, 2013, granting summary judgment dismissing his counterclaims against plaintiff and counterdefendant-appellee Rohr Burg Motors, Inc., d/b/a Bob Rohrman's Schaumburg Ford (Rohr Burg), and dismissing Kulbarsh's first four affirmative defenses to Rohr Burg's complaint against him. Kulbarsh argues that: (1) the trial court erred in finding that Kulbarsh's counterclaims were barred by operation of a release contained in a written agreement between the parties; and (2) the affirmative defenses were not subject to summary judgment.
¶ 3 This appeal arises from a dispute between the buyer of an allegedly damaged used car and the dealership that sold him the vehicle. In July 2010, Kulbarsh visited a car dealership in Schaumburg, Illinois, known as Bob Rohrman's Schaumburg Ford (Schaumburg Ford), which is operated by Rohr Burg. According to Kulbarsh, he spoke to sales personnel at Schaumburg Ford and expressly communicated that he only wished to purchase a vehicle without any history of collisions. Sales personnel at Schaumburg Ford showed Kulbarsh a 2010 Ford Mustang convertible (the vehicle). Interested in the vehicle, Kulbarsh requested that the dealership show him the corresponding vehicle history reports. Kulbarsh was provided a report issued by CarFax dated June 25, 2010. The CarFax report indicated that the vehicle had originally been purchased in May 2009 and stated there were "[n]o accidents or damage reported to CarFax." Kulbarsh asked sales personnel to show him an AutoCheck vehicle history report, but he was told such a report was not available.
¶ 4 Kulbarsh agreed to purchase the vehicle for the price of $19,600 and entered into a sales contract dated July 6, 2010.1 Kulbarsh tendered a down payment of $4,000. The remainder of the purchase price was financed through a loan from American Eagle Bank, which is not a party to this action.
¶ 5 In September 2010, approximately two months after purchasing the vehicle, Kulbarsh developed new concerns about the vehicle's history. He brought the vehicle to another car dealership where he had previously purchased vehicles. Employees at that dealership examined the vehicle and told Kulbarsh their suspicion that the vehicle had sustained prior damage. An employee of that dealership obtained an AutoCheck report for the vehicle, which indicated that the vehicle had frame damage due to a "major accident."
¶ 6 On September 3, 2010, Kulbarsh retained an attorney, Andy Norman, in order to seek a rescission of the purchase of the vehicle from Schaumburg Ford. Kulbarsh returned to the dealership and complained that he had been sold a damaged car. After discussing his complaint with the Schaumburg Ford salesperson who had sold him the vehicle, an agreement was reached under which Kulbarsh would return the car and the dealership would refund the purchase price as well as pay off the American Eagle Bank loan. This arrangement was reflected in a letter to Kulbarsh from Rohr Burg dated September 8, 2010 that acknowledged Kulbarsh's concern regarding "a possible frame damage incident that your vehicle may have sustained" and offered: "If you are not completely satisfied please return the vehicle to Schaumburg Ford for a full refund including the interest that you have paid since the time of purchase."
¶ 7 The following day, September 9, 2010,2 Kulbarsh and Rohr Burg executed a document entitled "General Release." Kulbarsh testified that he was advised by his legal counsel at the time he signed the document. The General Release provides:
The document was signed by Kulbarsh as well as by Mike Sabzali, a general manager at Schaumburg Ford. Following the language noted above, the General Release contains handwritten language certifying that American Eagle Bank had confirmed to Sabzali that the "payoff figure" for the loan on the vehicle was $17,731.45, and that "Schaumburg Ford insures full and complete payoff of the indebtedness" to American Eagle Bank.
¶ 8 According to Kulbarsh, after executing the General Release on September 9, 2010, Sabzali showed him a check made out to Kulbarsh for the refund of his down payment. However,Sabzali told him that Schaumburg Ford "need[ed] two signatures to deposit" the check and that Sabzali needed to obtain another signature on the check before it would be valid. Sabzali thus asked Kulbarsh to come back to the dealership the next day and "they would have the check ready" for Kulbarsh. Kulbarsh maintained possession of the vehicle pending receipt of the check.
¶ 9 Kulbarsh returned with the vehicle to the dealership the next day, September 10, 2010, and was given a check in the amount of $4,325.75. After receiving the check, Kulbarsh took off the license plates from the vehicle and left it at Schaumburg Ford. Later on the same date, Kulbarsh brought the check to a Chase bank where he had an account and attempted to deposit it. However, the bank told Kulbarsh the check could not be deposited, as it was "NSF" due to insufficient funds. After the check was declined Kulbarsh called Schaumburg Ford, and another salesperson from the dealership (whose name Kulbarsh could not recall) met him at the Chase bank. According to Kulbarsh, after the bank told the Schaumburg Ford salesperson that the check was declined as "NSF," the salesperson agreed to give Kulbarsh the vehicle back. Kulbarsh and the salesperson returned to the dealership, where Kulbarsh put his license plates back on the vehicle and drove the vehicle home.
¶ 10 Kulbarsh returned to the same Chase bank "the next day or so" to inquire about the check. At that second visit, the check cleared and the full amount of $4,325.75 was deposited into Kulbarsh's account. Thus, within a few days after signing the General Release, Kulbarsh received the refund of his down payment on the vehicle. However, Kulbarsh did not return the vehicle after this check was deposited.
¶ 11 With respect to the repayment of the car loan contemplated by the General Release, American Eagle Bank sent Kulbarsh a letter dated September 13, 2010, which stated: Despite receiving this letter, Kulbarsh doubted that American Eagle Bank had been paid off by Schaumburg Ford, as he did not know "if the check was any good" or "if the check ever went through." Kulbarsh acknowledged at his deposition that he later spoke to personnel at American Eagle Bank, who told him the check had been deposited, but Kulbarsh maintained that the bank "couldn't verify that it was actually paid off in full," because he believed the check "could still come back bad at any time."
¶ 12 Kulbarsh did not...
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