Accettura v. Vacationland, Inc.

                             2018 IL App (2d) 170972

                                  No. 2-17-0972

                         Opinion filed September 28, 2018 

______________________________________________________________________________

                                           IN THE


                            APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

KIMBERLY ACCETTURA and                 ) Appeal from the Circuit Court
ADAM WOZNIAK,                          ) of Kane County.
                                       )
      Plaintiffs-Appellants,           )
                                       ) No. 14-CH-1467
v. 	                                   )
                                       )
VACATIONLAND, INC.,                    ) Honorable
                                       ) David R. Akemann,

      Defendant-Appellee.              ) Judge, Presiding.

____________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Birkett and Spence concurred in the judgment and opinion.

                                          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
2018 IL App (2d) 170972


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

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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



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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 (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

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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. “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 (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 (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. 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. 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)

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2018 IL App (2d) 170972


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.” Rather, it merely prescribes certain requirements with which a plaintiff must comply in

order to recover under section 2310(d).

¶ 22   Accordingly, to determine the meaning of “reasonable opportunity to cure,” we look to

state law. See Razor v. Hyundai Motor America, 222 Ill. 2d 75, 86 (2006). The UCC does not

define these terms. However, section 3(b) of the Act provides guidance:

              “A presumption that a reasonable number of attempts have been undertaken to

       conform a new vehicle to its express warranties shall arise where, within the statutory

       warranty period,

                      (1) the same nonconformity has been subject to repair by the seller, its

              agents or authorized dealers during the statutory warranty period, 4 or more times,

              and such nonconformity continues to exist; or

                      (2) the vehicle has been out of service by reason of repair of

              nonconformities for a total of 30 or more business days during the statutory

              warranty period.” 815 ILCS 380/3(b) (West 2016).

¶ 23   Typically, reasonableness is a question of fact. See Basselen v. GMC, 341 Ill. App. 3d

278, 283-84 (2003) (citing Magnum Press Automation, Inc. v. Thomas & Betts Corp., 325 Ill.

App. 3d 613, 622 (2001)), overruled on other grounds by Kinkel v. Cingular Wireless, LLC, 223

Ill. 2d 1 (2006). When more than one inference could be drawn from undisputed facts, a triable

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issue exists and summary judgment may not be granted. Gordon v. Oak Park School District

No. 97, 24 Ill. App. 3d 131, 134 (1974). However, where, as here, undisputed facts give rise to a

single inference, summary judgment should be granted. See id. at 135.

¶ 24   Here, on defendant’s motion for summary judgment, plaintiffs were obligated to establish

facts that would satisfy their burden of showing that they provided defendant with a reasonable

opportunity to cure. The undisputed facts establish that plaintiffs brought the RV to defendant in

June 2014 because water leaked into the RV from the emergency-exit window. Defendant

repaired this problem to plaintiffs’ satisfaction. In early July 2014, a separate and distinct

problem arose in the RV during a rainstorm; significant water leaked into the dinette area,

causing electrical-system and other problems. Plaintiffs brought the RV to defendant for repair

on July 14, 2014, and revoked acceptance, “sometime before August 2, 2014.”

¶ 25   Although a plaintiff need not prove his case at the summary judgment stage, he must

present a factual basis that would arguably entitle him to a judgment at trial. Bruns v. City of

Centralia, 2014 IL 116998, ¶ 12. Mere speculation, conjecture, or guess is insufficient to

survive summary judgment. O’Gorman v. F.H. Paschen, S.N. Nielsen, Inc., 2015 IL App (1st)

133472, ¶ 82.

¶ 26   Here, plaintiffs have failed to point to any authority or facts to support their assertion that

their revocation of acceptance, approximately two weeks after asking defendant to repair the RV,

was reasonable. Rather, the undisputed facts give rise to only one inference: plaintiffs failed to

provide defendant a reasonable opportunity to cure. There is no genuine issue of material fact on

this question. Accordingly, the trial court properly entered summary judgment in defendant’s

favor on counts I and II.

¶ 27                                     C. The Act



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¶ 28   Plaintiffs argue that the Act’s standards do not define “reasonableness” for claims that do

not involve the Act. Plaintiffs contend that the trial court erred by using the Act’s language to

determine the meaning of “reasonableness.” We disagree with plaintiffs.

¶ 29   When interpreting a statute, it is appropriate and common for courts to refer to another

statute by analogy. McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 424

(1998). The Act is related to the section of the Magnuson-Moss Act at issue here, because both

apply to “similar persons, things, or relationships.” Id. at 424 (quoting 2B Norman J. Singer,

Sutherland on Statutory Construction § 53.03, at 233 (5th ed. 1992)). For example, both acts

address buyers and sellers of new motor vehicles and the remedies available to buyers when

vehicles fail to conform. See, e.g., 815 ILCS 380/3(b) (West 2016). Thus, the trial court’s

reference to section 3(b) of the Act, by analogy, was appropriate.

¶ 30                              D. Section 2-508(2) of the UCC

¶ 31   Plaintiffs argue that the trial court erred by entering summary judgment on counts I and

II, because defendant failed to establish its satisfaction of section 2-508(2) of the UCC (810

ILCS 5/2-508(2) (West 2016)).

¶ 32   Defendant argues that plaintiffs forfeited this issue because they failed to raise it until

their second motion to reconsider. However, the record indicates that plaintiffs raised this issue

in their initial motion to reconsider and that the trial court considered it. Therefore, plaintiffs’

argument is not forfeited.

¶ 33   We begin with the language of section 2-508, which provides:

               “Cure by Seller of Improper Tender or Delivery; Replacement. (1) Where any

       tender or delivery by the seller is rejected because non-conforming and the time for

       performance has not yet expired, the seller may seasonably notify the buyer of his

       intention to cure and may then within the contract time make a conforming delivery.

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               (2) Where the buyer rejects a non-conforming tender which the seller had

       reasonable grounds to believe would be acceptable with or without money allowance the

       seller may if he seasonably notifies the buyer have a further reasonable time to substitute

       a conforming tender.” (Emphases added.) Id. § 2-508.

¶ 34   Plaintiffs argue that defendant was required to cure by replacing the nonconforming RV

with a new RV, pursuant to section 2-508(2) of the UCC. Plaintiffs cite Belfour v. Schaumburg,

306 Ill. App. 3d 234 (1999), to support their argument. However, in Belfour the defendants were

not able to repair the vehicle, as it “was a total loss.” Id. at 236. In this case, the RV was not a

“total loss”; in fact, it had already been repaired before plaintiffs’ attorney sent the letter

confirming revocation and before plaintiffs filed suit. Therefore, Belfour does not support

plaintiffs’ argument.

¶ 35                    E. Opportunity to Cure Under UCC Section 2-608(1)(b)

¶ 36   Next, plaintiffs argue that the trial court erred by entering summary judgment in

defendant’s favor on counts I and III of their complaint because the trial court improperly

determined that an opportunity to cure is a prerequisite for a claim under section 2-608(1)(b) of

the UCC. Defendant argues that plaintiffs have forfeited this issue because they failed to raise it

in the trial court. However, the record indicates that plaintiffs raised this issue in their initial

motion to reconsider, but only as to count III. Because plaintiffs raise this issue as to count I for

the first time on appeal, the issue is forfeited as to that count. Hytel Group, Inc. v. Butler, 405

Ill. App. 3d 113, 127 (2010) (arguments raised for the first time on appeal are forfeited). Thus,

we consider plaintiffs’ argument only as to count III.

¶ 37   Count III hinges on whether the trial court erred in finding that plaintiffs were required to

provide defendant with an opportunity to cure prior to revoking acceptance. Section 2-608 of the

UCC provides:

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       § 2-608. Revocation of Acceptance in Whole or in Part.

               “(1) The buyer may revoke his acceptance of a lot or commercial unit whose non­

       conformity substantially impairs its value to him if he has accepted it

                       (a) on the reasonable assumption that its non-conformity would be cured

               and it has not been seasonably cured; or

                       (b) without discovery of such non-conformity if his acceptance was

               reasonably induced either by the difficulty of discovery before acceptance or by

               the seller’s assurances.

               (2) Revocation of acceptance must occur within a reasonable time after the buyer

       discovers or should have discovered the ground for it and before any substantial change

       in condition of the goods which is not caused by their own defects. It is not effective

       until the buyer notifies the seller of it.

               (3) A buyer who so revokes has the same rights and duties with regard to the

       goods involved as if he had rejected them.” 810 ILCS 5/2-608 (West 2016).

¶ 38   Plaintiff contends that, although section 2-608(1)(a) requires an opportunity to cure,

section 2-608(1)(b) does not. Plaintiff correctly notes that this is an issue of first impression.

¶ 39   When interpreting a statute, our primary objective is to ascertain and give effect to the

legislature’s intent. Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 22. The

best indication of the legislature’s intent is the language used in the statute, which must be given

its plain and ordinary meaning. Id.

¶ 40   Section 2-608(1)(b) does not specify whether the seller has a right to cure prior to a

proper revocation of acceptance. However, in Belfour, 306 Ill. App. 3d at 241, this court rejected

the argument that the seller did not have a right to cure before the buyer revoked acceptance

under section 2-608. Id. We stated that, “[u]nder the UCC, the buyer must allow the seller time

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to cure before invoking revocation of acceptance.” Id. (citing Collum v. Fred Tuch Buick, 6 Ill.

App. 3d 317 (1972)). We explained, “courts will resort to revocation of acceptance only after

attempts at adjustment have failed.” Id. at 242 (citing 810 ILCS Ann. 5/2-608(1)(a), Uniform

Commercial Code Comment, at 380 (Smith-Hurd 1993)).              We concluded that the buyer’s

revocation of acceptance was improper because the seller had offered a proper cure. Id. In

addition, our supreme court has stated that “[r]evocation of acceptance is a form of equitable

relief.” Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 327 (2007).

¶ 41   In this case, the record clearly establishes that on July 14, 2014, plaintiffs asked

defendant to cure the defects discovered during their trip to Michigan and defendant offered

plaintiffs a proper cure. Plaintiffs revoked acceptance about two weeks later, knowing that the

RV was going to the manufacturer to be repaired under the warranty. Thus, the material facts are

undisputed and all reasonable minds would agree that plaintiffs failed to allow defendant a

reasonable time to cure before their purported revocation, as a matter of law. See Carney, 2016

IL 118984, ¶ 25. Accordingly, the trial court properly determined that plaintiffs’ revocation was

improper under section 2-608(1)(b) of the UCC. Accordingly, the trial court properly granted

summary judgment in defendant’s favor as to count III.

¶ 42                      F. Plaintiffs’ Cross-Motion to Reconsider

¶ 43   Plaintiffs argue that the trial court erred by relying on section 2-1203 of the Code (735

ILCS 2-1203 (West 2016)) in striking their cross-motion to reconsider. We note that we may

affirm on any basis appearing in the record, whether or not the trial court relied on that basis and

even if the trial court’s reasoning was incorrect. Bank of New York v. Langman, 2013 IL App

(2d) 120609, ¶ 31.

¶ 44   Here, plaintiffs filed a combined “Response to Defendant’s Motion to Reconsider and

Cross-Motion (Second) to Reconsider.”        The trial court stated in its written order that it

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“considered the pleadings and arguments of counsel.” Plaintiffs have failed to provide this court


with a transcript of the hearing. Plaintiffs, as the appellants, had the burden to present a


sufficiently complete record of the proceedings to support their claim of error. See Foutch v. 


O’Bryant, 99 Ill. 2d 389, 391 (1984). As such, we presume that “the order entered by the trial


court was in conformity with [the] law and had a sufficient factual basis” Id. at 391-92. 


¶ 45                                 III. CONCLUSION


¶ 46   For the reasons stated, we affirm the judgment of the circuit court of Kane County. 


¶ 47   Affirmed.





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