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08/15/89 Claud Thompson, D/B/A C & v. Patrick Cadillac Et Al.

August 15, 1989

CLAUD THOMPSON, D/B/A C & D CORPORATION, PLAINTIFF-APPELLANT

v.

PATRICK CADILLAC ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 308, 187 Ill. App. 3d 104, 135 Ill. Dec. 73 1989.IL.1252

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Claud Thompson, d/b/a C & D Corporation, appeals from a summary judgment entered in favor of defendants, Patrick Cadillac, David Hoffman, and Greater Chicago Auto Auction, Inc., contending that the trial court erred when it found that plaintiff did not have standing to sue because C & D Corporation was not incorporated under the Business Corporation Act of 1983 (see Ill. Rev. Stat. 1987, ch. 32, par. 1.01 et seq.). We reverse and remand.

In November 1983, plaintiff purchased a 1981 Cadillac from defendant Patrick Cadillac Company, which had purchased the car from defendants David Hoffman and Greater Chicago Auto Auction, Inc. (Greater Chicago). At the time of purchase plaintiff received an odometer statement which certified that the car had been driven 34,145 miles. The sales agreement identified the purchaser as "C & D Corp DBA Jo Ann's Bakery," and the transferee listed on the odometer statement and automobile title and registration was C & D Corp. The car was paid for by a check drawn on the account of "C & D Corp. D.B.A. Joann's Bakery." All transaction documents were signed by plaintiff as Claud Thompson and the record also shows that his C & D Corporation was the owner of Jo Ann's Bakery. In November 1984, the odometer records section of the Michigan Department of State notified plaintiff that the odometer on the Cadillac might have been tampered with as their records showed that the car had 87,000 miles on it at the time of its transfer to plaintiff. On December 30, 1985, plaintiff notified Patrick Cadillac that he was revoking his acceptance of the vehicle, and he demanded the return of the full purchase price of the car, incidental costs, and attorney fees. Defendant Patrick Cadillac refused the revocation.

Plaintiff filed a five-count complaint seeking a judicial revocation of the contract; damages for violation of the Illinois Vehicle Title and Registration Law (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 3-112.1), the Motor Vehicle Information and Cost Savings Act (15 U.S.C. § 1987 (1982)), and "An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . ." (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.); and damages for fraud. The complaint alleged, inter alia, that plaintiff Claud Thompson, d/b/a C & D Corporation, is an individual plaintiff, and that plaintiff C & D Corporation is an Illinois corporation solely owned by Claud Thompson. Defendant Patrick Cadillac admitted this allegation in its answer, and, as to the counts pertaining to defendants Hoffman and Greater Chicago, those defendants answered that, because this allegation did not refer to or concern David Hoffman or Greater Chicago Auto Auction, Inc., defendants need not, and do not, answer it.

Defendant Patrick Cadillac moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005) alleging that neither C & D Corporation nor Jo Ann's Bakery had capacity to sue because a corporate plaintiff cannot maintain a civil action unless it is authorized to do business in Illinois and has paid all franchise taxes and other fees due to the State of Illinois; that Claud Thompson's use of the name C & D Corporation would violate section 220 of the Business Corporation Act (Ill. Rev. Stat. 1987, ch. 32, par. 211.1) and section 1 of "An Act in relation to the use of an assumed name in the conduct or transaction of business in this State" (Assumed Name Act) (Ill. Rev. Stat. 1987, ch. 96, par. 4); that Claud Thompson did not have standing to sue because he had no legal or equitable right, title, or interest in the subject matter of the controversy; and that the suit was barred by laches.

Defendants Hoffman and Greater Chicago also moved for summary judgment raising, inter alia, as an additional basis that there was no evidence that defendants Hoffman and Greater Chicago intended to defraud plaintiff.

The trial court granted defendants' motions for summary judgment, stating:

"The attack on the motion for summary judgment is a three-prong attack by both parties. Okay. You've got capacity to sue, question of intent and the question of delay. I am most troubled by the capacity to sue, standing to sue.

I don't have to consider intent; I don't have to consider Statute of Limitations; I don't have to consider laches.

Motion is granted on that basis [capacity and standing to sue]. That's the determining fact, in my opinion. . . . I'm not so sure that the question of laches applies; I'm not so sure about this intent, but I think that is ...


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