Accettura v. Vacationland, Inc.

2018 IL App (2d) 170972

112 N.E.3d 1054

Kimberly ACCETTURA and Adam Wozniak, Plaintiffs-Appellants,

v.VACATIONLAND, INC., Defendant-Appellee.

No. 2-17-0972

Appellate Court of Illinois, Second District.

Opinion filed September 28, 2018

Rehearing denied November 27, 2018

Dmitry N. Feofanov, of ChicagoLemonLaw.com, P.C., of Lyndon, for appellants.

Lauryn E. Parks, Jennifer L. Friedland, and Daniel S. Porter, of Momkus McCluskey Roberts LLC, of Lisle, for appellee.

OPINION

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 This case involves an allegedly defective recreational vehicle (RV) purchased by plaintiffs, Kimberly Accettura and Adam Wozniak, from defendant, Vacationland, Inc. Plaintiffs' complaint alleged revocation of acceptance and breach of implied warrant of merchantability and sought to recover the purchase price. The trial court granted summary judgment in favor of defendant. Plaintiffs argue that the trial court erred because (1) whether defendant had a reasonable opportunity to cure is a disputed issue of material fact, (2) the standards of the New Vehicle Buyer Protection Act (Act) ( 815 ILCS 380/1 et seq. (West 2016) ) do not define "reasonableness" for claims that do not involve the Act, (3) defendant failed to establish its satisfaction of section 2-508(2) of the Uniform Commercial Code (UCC) ( 810 ILCS 5/2-508(2) (West 2016) ), (4) an opportunity to cure is not a prerequisite for a claim under section 2-608(1)(b) of the UCC ( 810 ILCS 5/2-608(1)(b) (West 2016) ), and (5) the trial court relied on section 2-1203 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1203 (West 2016) ) in striking their cross-motion to reconsider. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 19, 2014, plaintiffs bought the RV, a new 2014 Palomino trailer, from defendant for $26,000.25. On April 25, 2014, plaintiffs took possession of the RV. In June 2014, plaintiffs discovered water leaking into the RV from the emergency-exit window. Plaintiffs brought the RV to defendant for repair; defendant repaired the RV to plaintiffs' satisfaction, at no charge.

¶ 4 In July 2014, during a trip to Michigan, plaintiffs discovered a different leak in the RV. During a rainstorm, water leaked into the dinette area, damaging the walls and causing electrical failure. Plaintiffs brought the RV to defendant for repair on July 14, 2014. Defendant told plaintiffs that the RV needed to be sent to the manufacturer for repair. Defendant told Wozniak that it could not estimate how long the manufacturer would take to repair the RV. On August 2, 2014, Wozniak verbally revoked acceptance of the RV. The manufacturer had the RV in repair from approximately August 4 through September 23, 2014. On September 28, 2014, plaintiffs' attorney sent defendant a letter revoking acceptance of the RV.

¶ 5 A. Complaint

¶ 6 On October 29, 2014, plaintiffs filed a four-count complaint against defendant, alleging the following. Since they purchased the RV, it had experienced numerous mechanical problems, including (a) water leakage through a defective emergency-exit window, (b) water leakage through a defective dinette window, (c) water leakage into a paneled wall, (d) an inoperative electrical system, (e) and "generally massive water leaks," which "have the potential of causing mold and serious health issues." Further, these "defects cannot be repaired. The [RV] was in repair for almost the entire summer of 2014, and still has not been repaired properly. *** Prior to filing this suit, Plaintiff's [sic ] revoked their acceptance of the RV and canceled their contract. *** Defendant refused to return Plaintiffs' money."

¶ 7 Plaintiffs sought damages under the following theories: revocation of acceptance, pursuant to section 2310(d) of the Magnuson-Moss Warranty Act (Magnuson-Moss Act) ( 15 U.S.C. § 2310(d) (2012) ), breach of implied warranty of merchantability, pursuant to section 2310(d) of the Magnuson-Moss Act; and revocation of acceptance and cancellation of contract, under sections 2-608(1)(b) and 2-711(1) of the UCC ( 810 ILCS 5/2-608(1)(b), 2-711(1) (West 2016) ). They also sought to recover the purchase price, under section 2-711(1) of the UCC. Plaintiffs attached the following documents to their complaint: (1) the first page of the parties' contract for the sale of the RV, (2) an alleged expert's report regarding water leakage and mold, (3) the letter to defendant purporting to confirm the revocation of acceptance, and (4) rental rates for a 23-foot trailer.

¶ 8 B. Motion for Summary Judgment

¶ 9 On November 14, 2016, defendant filed a motion for summary judgment pursuant to section 2-1005 of the Code ( 735 ILCS 5/2-1005 (West 2016) ). Defendant argued that plaintiffs' failure to give defendant a reasonable opportunity to cure was fatal to their claims, as a matter of law. Plaintiffs responded that there was a genuine issue of material fact regarding whether the RV was repaired within a reasonable time. Defendant replied that plaintiffs failed to rebut material facts set forth in defendant's motion.

¶ 10 On February 10, 2017, the trial court granted defendant summary judgment on all four counts of plaintiffs' complaint. The trial court stated that reasonableness is a question of fact but that, in this case, the record clearly showed that plaintiffs revoked acceptance sometime before August 2, 2014, which did not provide a reasonable time for defendant to cure.

¶ 11 C. Postjudgment Motions

¶ 12 On February 27, 2017, plaintiffs filed a motion to reconsider. On July 5, 2017, the trial court denied plaintiffs' motion in part on, counts I and II, and granted it in part, reinstating counts III and IV, brought under sections 2-608(b)(1) and 2-711(1) of the UCC. The court stated that, "while the [UCC] anticipated that the seller would be provided with a ‘reasonable opportunity to cure,’ the Court did not consider the substantial impairment standard."

¶ 13 On August 1, 2017, defendant filed a motion to reconsider. On September 6, 2017, plaintiffs filed a combined response to defendant's motion and cross-motion to reconsider. On November 27, 2017, the trial court granted defendant's motion and struck plaintiffs' cross-motion. The trial court determined that "a reasonable opportunity to cure is a threshold requirement for all attempts to revoke." The trial court stated, again, that plaintiffs "failed to provide a reasonable opportunity to cure." The trial court also stated: "Accordingly, as this court found originally in its February 10, 2017[,] Order, summary judgment was and is appropriate as to all counts."

¶ 14 Plaintiffs filed their notice of appeal on November 27, 2017.

¶ 15 II. ANALYSIS

¶ 16 A. Standard of Review

¶ 17 Our review of the trial court's grant of summary judgment is de novo . Home Insurance Co. v. Cincinnati Insurance Co. , 213 Ill. 2d 307, 315, 290 Ill.Dec. 218, 821 N.E.2d 269 (2004). "Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. ; see 735 ILCS 5/2-1005(c) (West 2016). A genuine issue of material fact exists when the material facts are disputed or when the material facts are undisputed but reasonable persons might draw different inferences from those undisputed facts. Carney v. Union Pacific R.R. Co. , 2016 IL 118984, ¶ 25, 412 Ill.Dec. 833, 77 N.E.3d 1. "Although summary judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means of disposing of litigation and, therefore, should be allowed only where the right of the moving party is clear and free from doubt." Williams v. Manchester , 228 Ill. 2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008).

¶ 18 The movant bears the initial burden of production on a motion for summary judgment. Williams v. Covenant Medical Center , 316 Ill. App. 3d 682, 689, 250 Ill.Dec. 40, 737 N.E.2d 662 (2000). A defendant moving for summary judgment can meet its burden of production either by presenting evidence that, left unrebutted, would entitle it to judgment as a matter of law or by demonstrating that the plaintiff will be unable to prove an element of its cause of action. Id. at 688, 250 Ill.Dec. 40, 737 N.E.2d 662. Until the defendant supplies facts that would demonstrate its entitlement to judgment as a matter of law, the plaintiff may rely on the pleadings to create questions of material fact. Id. at 689, 250 Ill.Dec. 40, 737 N.E.2d 662. However, if the defendant presents such facts, the burden then shifts to the plaintiff to present some evidence supporting each element of his cause of action, thereby defining an issue of material fact to be determined at trial. Id.

¶ 19 B. Reasonable Opportunity to Cure

¶ 20 Plaintiffs argue that whether defendant had a reasonable opportunity to cure is a disputed issue of material fact. Defendant contends that the trial court correctly determined that plaintiffs did not provide defendant with a reasonable opportunity to cure, as a matter of law.

¶ 21 Plaintiffs fail to inform us which counts of their complaint this argument addresses. Counts I and II alleged revocation of acceptance and breach of implied warranty of merchantability, pursuant to section 2310(d)(1) of the Magnuson-Moss Act. Section 2310(d)(1) allows a consumer to bring suit where he is "damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this [Act] or under a written warranty, implied warranty, or service contract." 15 U.S.C. § 2310(d)(1) (2012). However, "[n]o action *** may be brought under subsection (d) *** under any written or implied warranty or service contract *** unless the [warrantor] *** is afforded a reasonable opportunity to cure such failure to comply." Id. § 2310(e). The Magnuson-Moss Act does not define "reasonable opportunity to cure."...