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Sterling Homes, Ltd. v. Rasberry

November 05, 2001

STERLING HOMES, LTD., PLAINTIFF-APPELLEE,
v.
LEO C. RASBERRY AND BRIDGETTE H. RASBERRY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 98--AR--2223 Honorable Robert K. Kilander and Richard A. Lucas, Judges, Presiding.

The opinion of the court was delivered by: Justice Geiger.

Ordered published December 19, 2001.

STERLING HOMES, LTD., PLAINTIFF-APPELLEE,
v.
LEO C. RASBERRY AND BRIDGETTE H. RASBERRY, DEFENDANTS-APPELLANTS.

Appeal from the Circuit Court of Du Page County. No. 98--AR--2223 Honorable Robert K. Kilander and Richard A. Lucas, Judges, Presiding.

The opinion of the court was delivered by: Justice Geiger.

The pro se defendants, Leo Rasberry and Bridgette Rasberry, appeal from the March 2, 2000, order of the circuit court of Du Page County entering judgment on behalf of the plaintiff, Sterling Homes, Ltd., in the amount of $35,007.28. On appeal, the defendants raise numerous objections to the proceedings below. For the following reasons, we affirm and order a response from the defendants pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)).

The following facts are relevant to the instant appeal. On April 20, 1997, the parties executed a construction and purchase agreement for the construction of a new home. The agreement required the defendants to pay the plaintiff $25,000 toward the purchase price of the home prior to closing. The agreement also contained the following provision:

"Builder, by accepting the final payment, waives all claims against Purchaser except those which Builder has previously made in writing and which remain unsettled at the time of closing and occupancy by Purchaser."

Prior to closing, the defendants gave the plaintiff three separate checks totaling $25,000. These were dated May 8, 1997, June 3, 1997, and July 5, 1997. The check written on July 5, 1997, was in the amount of $15,000. When this check was presented to the defendants' bank, the bank refused to honor the check due to insufficient funds.

The closing of the transaction took place on July 25, 1997. At the time of the closing, the defendants' $15,000 check had not yet been returned to the plaintiff unpaid. The amount of this check was therefore credited toward the purchase price. The defendants tendered a check for the remaining amount at the closing, and the plaintiff turned over possession of the home.

On September 11, 1998, the plaintiff filed a three-count complaint against the defendants. Count I sought payment on the bad check pursuant to Article 3 of the Uniform Commercial Code (the Code) (810 ILCS 5/3--101 et seq. (West 1998)). Counts II and III sought recovery for breach of contract. The plaintiff sought judgment in the amount of $15,000, plus interest, attorney fees, and costs. The defendants appeared pro se.

On January 21, 2000, the trial court entered summary judgment on behalf of the plaintiff. On March 2, 2001, following a hearing on attorney fees and the calculation of interest, the trial court entered judgment on behalf of the plaintiff in the amount of $35,007.28. This amount included an award of $6,466.78 for interest and costs and an award of $13,540.50 for attorney fees. Following the denial of their motion to reconsider, the defendants filed a timely notice of appeal.

On appeal, the defendants raise six different issues. The defendants' first argument on appeal is that the trial court erred in granting the plaintiff's motion for summary judgment and in denying the motion for summary judgment that the defendants had filed earlier in the proceedings. In their motion for summary judgment, the defendants argued that the plaintiff's complaint was barred because the plaintiff had accepted final payment on the house at the closing and had therefore waived all claims against the defendants under the contract. The defendants also argued that their motion should have been granted because the plaintiff failed to file any counteraffidavits.

The purpose of a motion for summary judgment is to determine whether a genuine issue of triable fact exists and should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 1998). Our ...


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