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Martin Brothers Implement Co. v. Diepholz

OPINION FILED SEPTEMBER 13, 1982.

MARTIN BROTHERS IMPLEMENT CO. ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

DELBERT DIEPHOLZ, D/B/A MATTOON FARM SERVICE, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT AND CROSS-APPELLEE. — (PAUL F. COMPTON, DEFENDANT AND CROSS-APPELLEE; LARRY ALLEN, D/B/A L & L CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT.)



Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

Defendant Diepholz appeals from the entry of summary judgment against him in an action for conversion of a tractor. Plaintiffs cross-appeal from the entry of summary judgment in favor of defendant Compton.

Larry Allen purchased a Caterpillar model D-5 bulldozer from Martin Brothers on June 14, 1976. The purchase of the bulldozer was financed on an installment basis and Martin Brothers retained a security interest in the bulldozer. Martin Brothers perfected its security interest by filing a financing statement with the Secretary of State on June 15, 1976.

Allen sold the bulldozer to Delbert Diepholz, a farm implement dealer, on May 3, 1977, for $19,350. Diepholz did not check with the Secretary of State regarding any outstanding security interest against the bulldozer and he had no actual knowledge of Martin Brothers' security interest. Compton purchased the bulldozer from Diepholz for $29,000. Compton testified that the sale took place in May of 1977. Diepholz, in an answer to an interrogatory, claimed the sale took place in December of 1979.

Allen defaulted on his obligation to the plaintiffs on June 15, 1977. Plaintiffs brought suit against Allen in Champaign County. On June 23, 1978, plaintiffs filed suit against Diepholz in Coles County. Diepholz joined Allen as a third-party defendant. Allen executed an agreement with Diepholz on August 17, 1978, agreeing to hold Diepholz harmless and assuming all responsibility for the transaction involving the bulldozer. On October 13, 1978, Allen conditionally assigned his beneficial interest in a land trust to plaintiffs as security for the payment of the judgment entered in the Champaign County case. In exchange for the conditional assignment, plaintiffs agreed not to pursue other remedies it might have had against Larry Allen.

Allen made payments on the Champaign County judgment until 1981, at which point he ceased making payments on the judgment. No further action was taken in the Coles County proceeding during this period. Plaintiffs filed a motion for summary judgment against Diepholz on June 29, 1981. Diepholz filed an affidavit in opposition to the motion, claiming that he had relied on the agreement between Allen and plaintiffs in the Champaign County proceeding and had substantially changed his position. The trial court granted plaintiffs' motion and entered judgment for $6,300 on August 20, 1981.

Plaintiffs also filed an amended complaint against Compton on August 20, 1981, seeking $29,000 in damages and replevin of the bulldozer. Compton filed a motion for summary judgment on September 2, 1981. In an affidavit accompanying the motion Compton stated that he purchased the bulldozer from Diepholz, who was engaged in the business of selling such equipment; that he paid fair market value for the bulldozer; and that he was unaware that the sale was in violation of Martin Brothers' security interest. The trial court granted Compton's motion on November 31, 1981.

Diepholz raises two issues on appeal: (1) whether the trial court erred in granting summary judgment without first ruling on his motion to dismiss and his motion to strike the complaint; and (2) whether the trial court erred in granting plaintiffs' motion for summary judgment because of the existence of genuine issues of material fact. Plaintiffs, in their cross-appeal, argue that the trial court erred in granting Compton's motion for summary judgment.

Diepholz contends that the trial court ignored his motion to dismiss and his motion to strike. Plaintiffs deny this and state that Diepholz failed to call his motions for hearing within 90 days, as required by Rule IV(c) of the rules of Practice of the Fifth Judicial Circuit. This being the case, plaintiffs argue, the trial court was within its power in ruling on plaintiffs' motion for summary judgment and ignoring Diepholz' motions.

• 1, 2 Diepholz has waived any objection to the trial court's handling of his motions. Circuit courts> have the power to enact and enforce rules regulating their calendars and dockets, as long as the rules do not conflict with supreme court rules or statutory law. (See Ill. Rev. Stat. 1979, ch. 110, par. 2(2).) Valid rules of practice of the circuit courts> have the binding effect of a statute and are to be obeyed. (Axtell v. Pulsifer (1895), 155 Ill. 141, 39 N.E. 615; Vasco Trucking, Inc. v. Parkhill Truck Co. (1972), 6 Ill. App.3d 572, 286 N.E.2d 383.) Diepholz failed to take the necessary steps to bring his motions before the court in a timely manner. He will not now be heard to complain that his motions were ignored, having slept on his rights below.

Diepholz also argues that genuine issues of material fact precluding summary judgment do exist. He contends that whether the conditional assignment by Allen to the plaintiffs was a future advance, which would release Diepholz from liability under section 9-307(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9-307(3)), was a genuine issue of material fact. Furthermore, Diepholz maintains that genuine issues of fact are present with respect to the affirmative defenses he offered below: laches, waiver and equitable estoppel.

• 3 Summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) is a drastic method of terminating litigation, but its use in proper cases is encouraged. (Green v. McClelland (1973), 10 Ill. App.3d 350, 293 N.E.2d 629.) The function of the trial court on a motion for summary judgment is not to try the facts presented, but to determine whether a triable issue of fact exists. (Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App.3d 778, 392 N.E.2d 1352.) The trial court determines whether, if what was contained in the pleadings and affidavits was presented at trial, the case would go to the jury. Fooden v. Board of Governors (1971), 48 Ill.2d 580, 272 N.E.2d 497.

Section 9-307(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9-307(3)) states that, under certain conditions, a buyer other than a buyer in the ordinary course of business takes free of a security interest which secures future advances. The term "future advance" is not defined by the Code. Black's Law Dictionary defines "future advances" as "[m]oney lent after a security interest has attached and secured by the original security agreement." (Black's Law Dictionary 609 (5th ed. 1979).) Using this definition, it is clear that the conditional assignment by Allen in favor of plaintiff was not a future advance. Plaintiffs lent no money to Allen; they merely took the assignment as additional security for the payment of the judgment in the Champaign County case. No genuine issue of material fact was present.

Diepholz also maintains that genuine issues of material fact exist with respect to his affirmative defenses of laches, waiver and equitable estoppel. The particular provision of the conditional assignment which Diepholz contends supports his position that jury questions ...


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