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06/30/88 Diamond Headache Clinic, v. Loeber Motors

June 30, 1988

DIAMOND HEADACHE CLINIC, LTD., PLAINTIFF-APPELLANT

v.

LOEBER MOTORS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

526 N.E.2d 599, 172 Ill. App. 3d 364, 122 Ill. Dec. 340 1988.IL.1029

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

The plaintiff, Diamond Headache Clinic, Ltd. (Diamond), brought this action against the defendants, Mercedes-Benz of North America (Mercedes-Benz) and Loeber Motors, Inc. (Loeber), for breach of warranties and against Loeber for negligent repair of a Mercedes-Benz automobile which Diamond purchased from Loeber.

Diamond's four-count complaint filed in August 1978 alleged that in December 1975, Diamond purchased a new 1975 Mercedes-Benz automobile from Loeber. Subsequently, Diamond experienced numerous problems with the automobile's windshield washers, sunroof, foglamps, engine, exhaust and emission control system, radio, trunk, brakes, and door locks. Between January 19, 1976, and April 2, 1978, Diamond returned the automobile to Loeber 13 separate times for repairs. As Loeber did not properly repair the automobile, Diamond sent the automobile to another repair shop where the repairs were then made to Diamond's satisfaction. Diamond further alleged that in selling Diamond a defective automobile Loeber and Mercedes-Benz breached their warranties of merchantability and fitness for a particular purpose and that Loeber negligently failed to properly repair the aforementioned defects in the automobile.

On June 2, 1981, almost three years after Diamond filed the suit, Diamond executed a release of Mercedes-Benz for and in consideration of $500 and on June 29, 1981, Diamond and Mercedes-Benz filed a stipulation to dismiss the case against Mercedes-Benz, which stipulation read as follows:

"STIPULATION TO DISMISS

It is hereby stipulated by and between the Plaintiff, DIAMOND HEADACHE CLINIC, LTD., and Defendant, MERCEDES-BENZ OF NORTH AMERICA, INC., that this cause shall be dismissed as to MERCEDES-BENZ OF NORTH AMERICA, INC. with prejudice and without costs, all matters in controversy between and among said parties having been compromised and settled."

The stipulation to dismiss defendant Mercedes-Benz was signed by the attorneys for Mercedes-Benz and Diamond. Pursuant to said stipulation to dismiss, on July 7, 1981, the trial court entered the following order:

"This cause coming to be heard on the stipulation to dismiss, the court being advised that all matters in controversy between plaintiff and Mercedes-Benz of North America, Inc. have been compromised and settled,

It is hereby ordered that this cause shall be dismissed as to Mercedes-Benz of North America, Inc. with ...


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