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10/16/96 LAUREL MOTORS v. AIRWAYS TRANSPORTATION

October 16, 1996

LAUREL MOTORS, INC., PLAINTIFF-APPELLANT,
v.
AIRWAYS TRANSPORTATION GROUP OF COMPANIES, INC., AIRWAYS RENT A CAR COMPANY, AIRWAYS LEASING, INC., AIRWAYS RENT A CAR SYSTEM, ASTOR CHAUFFEURED LIMOUSINE, O'HARE VALET PARKING, LEASED CAR SALES, INC., JAMES COUVALL, PETER LEEB, LAWRENCE WRIGHT, BRIAN BARRISH, PETER NATHON, SIR MANAGEMENT, INC., BRYSSON CARE, INC., MARC ZARANSKY, MICHAEL ZARANSKY, DAVID ZARANSKY, VALET AUTOMOBILE LEASING, INC., HEDCO, A PARTNERSHIP, AND RIDGEVIEW MOTORS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 95--L--769. Honorable Robert K. Kilander, Judge, Presiding. This Opinion Substituted for Withdrawn Rule 23 Order.

Released for Publication December 5, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Laurel Motors Inc., appeals for the second time from an order of the circuit court of Du Page County. In the first appeal, plaintiff challenged the circuit court's order directing it to assign and deliver certificates of origin for four automobiles to defendant, Bank One. We dismissed that appeal for lack of jurisdiction. Plaintiff next asked leave to file an interlocutory appeal from the entry of summary judgment in favor of Bank One. We denied that request for leave to appeal. Plaintiff now appeals an order granting summary judgment in favor of SIR Management, Inc., Brysson Care, Inc., Bryan Barrish, Peter Leeb, Hedco Partnership, and Lawrence Wright (lessees) on counts I, II, and VII of plaintiff's third amended complaint in replevin. We affirm.

Plaintiff is a corporation engaged in the sale of new automobiles. Between January 31, 1995, and March 16, 1995, Leased Car Sales (LCS) entered into an agreement with plaintiff to purchase four new automobiles for a total purchase price of $349,833, which automobiles are the subject of the present controversy.

Prior to January 1995, plaintiff and LCS had a previous relationship in which LCS had purchased between 50 and 150 luxury vehicles from plaintiff. LCS would contact plaintiff by telephone and order a specific make and model of vehicle. Plaintiff would locate a vehicle matching LCS' request and prepare the necessary documentation.

Plaintiff would then transfer possession of the vehicle to LCS, often allowing LCS several days to make the necessary payments. Plaintiff did not sign a security agreement with LCS. Plaintiff would, however, retain a certificate of origin for the vehicle until LCS' checks had cleared the bank.

The present controversy began when lessees approached LCS about leasing several luxury automobiles. LCS contacted plaintiff and ordered four automobiles. LCS then contacted Valet Auto Leasing (VAL), a company in the business of arranging leases for second-party financial institutions. LCS asked VAL to prepare a Bank One lease and other appropriate forms for the sale and lease of the subject vehicles.

VAL forwarded to Bank One a copy of the Bank One lease, a copy of the certificate of origin, and additional information it received from LCS. After Bank One approved the lessees' credit, it issued a check payable to VAL for the purchase of the subject vehicles.

After receiving payment from Bank One, VAL drafted and delivered checks payable to LCS for each of the subject vehicles. LCS was then responsible for tendering those monies to plaintiff for the subject vehicles.

In February and March 1995, plaintiff delivered possession of the subject vehicles to LCS and, in several cases, directly to Bank One's lessees. The vehicles actually delivered by plaintiff had the following vehicle identification numbers (VINs): (1) WDBFA76E4SF110048 (048); (2) WDBGA51E8SA234692 (692); (3) WDBEA66E3SC212531 (531); and (4) WDBGA43E2SA239071 (071). While there is some dispute regarding certain VINs, the parties agree that the above VINs accurately represent the vehicles actually in the possession of the lessees.

LCS tendered three checks for three of the above automobiles (VINs 048, 692, and 071). LCS did not tender payment on the remaining automobile (VIN 531). Plaintiff presented the checks submitted by LCS, but the checks were returned for insufficient funds. In the interim, LCS transferred the vehicles to Bank One for what appears to be a total purchase price of $294,000.

On April 7, 1995, plaintiff filed a complaint in replevin, seeking possession of the subject vehicles. The trial court entered a replevin order, and plaintiff began repossessing the vehicles. Bank One and the lessees, however, all filed a motion to intervene and a motion to dismiss the replevin action. On April 24, 1995, the trial court entered an order requiring plaintiff to return the vehicles that it had repossessed and ...


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