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March 28, 1994



Released for Publication May 5, 1994.

Campbell, Buckley, O'connor, Jr.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant Laurel Motors, Inc. ("Laurel Motors") appeals an order granting summary judgment in favor of plaintiff Bank of Hillside ("Bank") on both counts of plaintiff's complaint.

The record indicates the following facts. Prior to March 1989, Raymond Hazucka, Jr. ("Hazucka") had financed the purchase of a 1982 Porsche 911 Targa convertible from Hinsdale Motors through the Bank. The loan for the Porsche was evidenced by a promissory note given by Hazucka to the Bank in the principal amount of $22,000. The Bank took a security interest in the Porsche; a lien in the amount of $27,454.98 was reflected on the Porsche's certificate of title.

In 1989, Hazucka went to Laurel to trade the Porsche for a new BMW 325. The Bank cancelled the note on the Porsche. Hazucka executed a new note to finance the purchase of the BMW. Hazucka and the Bank agreed that the new note would be secured by the BMW in the principal amount of the balance due on the Porsche note plus $8,800.

Christopher Hodge, a Senior Vice President of the Bank, discussed the structure of the transaction with Bill Nuccio, an employee of Laurel Motors. At the end of March 1989, the Bank gave Hazucka a cashier's check in the amount of $8,800 made payable to Hazucka and Laurel Motors. The following language appeared on the back of the check:

"This instrument is delivered to payees on condition that a first lien in the amount of $31,857.60 in favor of Bank of Hillside, Hillside Shopping Center, Hillside, Illinois, be recorded upon the Certificate of Origin, Certificate of Title, and application for Certificate of Title. Title to be marked returnable to the Bank. Payees agree by acceptance of this check to perform above condition, and to place, Lien on 1989 BMW 325 Serial No. WBAAABO2K4143415"

Hazucka signed the check, gave the check to Laurel Motors and traded in the Porsche. The copy of the check that appears in the record indicates that the back of the check was endorsed by Laurel Motors. On May 19, 1989, Nuccio informed Hodge that Hazucka owed $619 on the purchase of the BMW and that no application for title for the BMW had been submitted. On June 1, 1989, Nuccio informed Hodge that Hazucka paid the outstanding amount to Laurel Motors.

Hazucka subsequently defaulted on the loan from the Bank. On June 8, 1990, Hodge sought information from Laurel Motors so that the Bank could repossess the BMW. Nuccio told Hodge that Hazucka had resold the BMW to Laurel Motors in January 1990. The certificate of title did not reflect the Bank's lien on the BMW. The Bank was not repaid upon the resale of the BMW. Hodge spoke to Tom Kinish, the general manager of Laurel Motors, who acknowledged that a copy of the check was in the file, that the above-quoted language appeared on that copy and that Laurel made a mistake in failing to place the lien on the application for certificate of title and the certificate of title. The Bank demanded full payment from Laurel, which refused.

On October 9, 1990, the Bank filed a two count complaint against Laurel Motors. Count I alleged negligence, contending that the Bank suffered monetary damages resulting from the breach of a statutory duty Laurel Motors owed it under the Motor Vehicle Code (see Ill. Rev. Stat. 1989, ch. 95 1/2, par. 3-104). Count II alleged breach of contract. Laurel Motors filed a verified answer and affirmative defenses. The parties later filed cross-motions for summary judgment. Following a hearing on the matter, the trial court entered an order granting summary judgment in favor of the Bank as to count II. Laurel Motors filed a motion to vacate the summary judgment. On May 29, 1992, the trial court denied the motion and entered an order granting summary judgment to the Bank on both counts of the complaint. Laurel Motors now appeals.

Summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 484, 507 N.E.2d 19, 21, 107 Ill. Dec. 355.) This court may affirm the entry of summary judgment if the decision of the trial court is justified by any reason appearing in the record, regardless of whether the trial court's reasoning was correct. Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 513 N.E.2d 506, 112 Ill. Dec. 92.

Laurel Motors contends that the summary judgment entered on count II of the complaint was in error because there were genuine issues of material fact regarding the formation and terms of the alleged contract between Laurel Motors and the Bank. Where the facts are undisputed, the existence and interpretation of a contract are questions of law that may be decided on summary judgment by the trial court and independently reviewed by this court. See Hicks v. Methodist Medical Center (1992), 229 Ill. App. 3d 610, 613, 593 N.E.2d 119, 121, 170 Ill. Dec. 577; Scottish & York ...

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