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08/19/88 Carol F. Andersen, v. Michael Koss

August 19, 1988

CAROL F. ANDERSEN, PLAINTIFF-APPELLEE

v.

MICHAEL KOSS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

527 N.E.2d 1098, 173 Ill. App. 3d 872, 123 Ill. Dec. 460 1988.IL.1284

Appeal from the Circuit Court of Cook County; the Hon. Robert J. Egan, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN

Defendant appeals from an order entering summary judgment in favor of plaintiff in a replevin action. He contends that there were genuine issues of material fact that precluded entry of summary judgment. For the reasons hereinafter stated, we reverse the order of the circuit court and remand the cause for further proceedings.

Plaintiff filed an amended complaint in replevin to determine rightful possession of a Skye Terrier show dog named Sand Island Sinclair which she alleged was being wrongfully detained by defendant. Plaintiff is in the business of breeding Skye Terriers; defendant is also an experienced dog breeder and is a licensed Judge of dog shows. In her amended complaint plaintiff asked that an order of replevin be issued and that judgment be entered against defendant for possession of Sand Island Sinclair. In his answer defendant denied the material allegations of the amended complaint and raised the affirmative defense that plaintiff had sold the dog to him outright for $500 pursuant to an oral contract.

Following an evidentiary hearing, the court found that plaintiff had established a prima facie case to a superior right to possession of the dog and had also demonstrated the probability that she would ultimately prevail on the underlying claim to possession. Accordingly, the court entered an order for replevin which was executed by the sheriff. Plaintiff thereafter filed a motion for summary judgment on her claim to possession. The motion incorporated by reference the transcript of the evidentiary hearing. The court granted plaintiff's motion, from which order defendant has appealed.

We believe that the court erred in entering summary judgment for plaintiff. Summary judgment should be granted only when, in considering the affidavits, depositions, admissions, exhibits, and pleadings on file, there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c); Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 595, 491 N.E.2d 803.) The court has a duty to construe the evidence strictly against the moving party and liberally in favor of the nonmoving party. (142 Ill. App. 3d at 595-96.) A triable issue precluding summary judgment exists where there is a dispute as to material facts or where, the material facts being undisputed, reasonable persons might draw different inferences from those facts. (142 Ill. App. 3d at 596.) While use of summary judgment aids in the expeditious Disposition of lawsuits, it is nonetheless a drastic means of disposing of litigation and should be allowed only when the right of the moving party is free from doubt and determinable solely as a question of law. 142 Ill. App. 3d at 596.

As we have noted, plaintiff's motion for summary judgment incorporated by reference the transcript of the evidentiary hearing. At that hearing, the parties presented conflicting versions of their contract negotiations and the nature of their agreement.

Plaintiff and her agent, Jacqueline Liddle, a professional dog handler and trainer, testified that defendant was offered a co-ownership interest in Sand Island Sinclair for $500, which he verbally accepted. The parties' agreement was to be incorporated into a detailed written contract which was sent to defendant several months after he had received Sand Island Sinclair "on approval." Defendant informed plaintiff that he was satisfied with the dog, but he refused to sign the written contract when he received it. Plaintiff never negotiated defendant's check.

Defendant testified that he had told Liddle that he wanted to purchase a Skye Terrier. Liddle, acting as plaintiff's agent, offered to sell Sand Island Sinclair to defendant to $500 pursuant to an oral contract under the terms of which he was required to pay the purchase price in advance and absorb all shipping costs. He would be allowed to inspect the dog upon delivery and payment of the air freight bill and if he were not satisfied, he was to return the dog immediately and plaintiff would refund the purchase price. Defendant agreed to these terms in a conversation with Liddle in late April 1986.

Defendant sent a check in the amount of $500 to Liddle, and Sand Island Sinclair was air shipped to O'Hare Airport, Chicago, Illinois, from St. Paul, Minnesota. Defendant paid the freight charges, accepted delivery of the dog and soon thereafter communicated his acceptance to plaintiff. The only documents that accompanied Sand Island Sinclair were an air waybill, a small animal health certificate, a rabies vaccination certificate and a handwritten note from Jacqueline Liddle. Defendant denied that he had had any Discussions with plaintiff or Liddle regarding the acquisition of a co-ownership interest in Sand Island Sinclair prior to receiving the dog.

It is apparent from a review of the evidentiary hearing that there was a genuine issue of material fact, i.e., the nature of the parties' agreement, which precluded the entry of summary judgment. Although plaintiff attacks the credibility of defendant's testimony regarding the alleged oral contract, questions of credibility cannot be resolved on summary judgment. Plaintiff, however, submits that the contract on which defendant relies is ...


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