United States District Court, N.D. Illinois, Eastern Division
September 10, 2004.
BRAD FOOTE GEAR WORKS, INC., an Illinois corporation, Plaintiff,
DELTA BRANDS, INC., a Texas corporation, Defendant.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Brad Foote Gear Works, Inc. (BFG) brought this action
against Delta Brands, Inc. (Delta) for breach of contract and
account stated. In a Memorandum Opinion and Order dated August 5,
2004, we granted plaintiff summary judgment on its account-stated
claim and denied it on the breach of contract claim. Because
plaintiff sought the same relief for both counts, it moved for
dismissal of the breach of contract claim and entry of final
judgment on the account-stated claim. Defendant has now brought a
motion to reconsider our grant of summary judgment. The motion is
Motions for reconsideration serve to correct manifest errors of
law or fact or to present newly discovered evidence. Rothwell
Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.
1987) (citing Keene Corp. v. International Fidelity Insurance
Co., 561 F.Supp. 656 (N.D.Ill. 1976)). Defendant argues that the
court erred in interpreting two cases on which it relied in
reaching its decision on plaintiff's summary judgment motion.
First, defendant maintains that Fabrica de Tejidos Imperial,
S.A. v. Brandon Apparel Group, Inc., 218 F.Supp.2d 974 (N.D.
Ill. 2002) is distinguishable from the case before us and
provides no support for our ruling. In Fabrica de Tejidos Imperial, S.A., plaintiff brought claims
of breach of contract and account stated against a defendant for
failure to pay for delivered goods. The court held that there was
no genuine issue of material fact as to the breach of contract
claim and that plaintiff was entitled to summary judgment. Id.
at 978. After granting summary judgment as to the contract claim,
the court defined an "account stated" and discussed the elements
of such a claim. Id. at 978-79. Ultimately, the court dismissed
the count as moot because "it is merely an alternate theory for
proving the same damages asserted in a breach of contract claim."
Id. Our opinion granting plaintiff summary judgment cited
Fabrica de Tejidos Imperial, S.A. for its definition and
explanation of an account stated. The court's holding did not
rest on supposed similarities with the facts or outcome in that
case. Though defendant makes much of the fact that the court in
Fabrica de Tejidos Imperial, S.A., found no genuine issue of
material fact as to the breach of contract claim, while in this
case BFG conceded there was a disputed issue of fact as to its
contract claim, that distinction in no way precluded granting
summary judgment on the account-stated claim.
Defendant next asserts that summary judgment was improper
because the existence of an account stated was in dispute and was
an issue to be decided by a trier of fact. Defendant cites W.E.
Erickson Construction, Inc. v. Congress-Kenilworth Corp.,
132 Ill.App.3d 260, 267, 477 N.E.2d 513, 519 (1st Dist. 1985),
which we also cited in our opinion, in support of its argument.
In that case, the court correctly stated, "[W]here the existence
of an account stated is disputed, the issue of whether it exists
is a fact question which, in a bench trial is properly resolved
by the trial court." Id. at 268. However, as pointed out in our
previous opinion, the affidavits of defendant's executive
vice-president, dated July 26, 2004, do not create a dispute
regarding the existence of an account stated. The court in W.E.
Erickson Construction, Inc. noted, "Where a statement of account is rendered by one party to
another and is retained by the latter beyond a reasonable time
without objection, this constitutes a recognition by the latter
of the correctness of the account and establishes an account
stated." Id. at 267. Defendant provided no evidence that it
objected within a reasonable time to its president's statement of
account to BFG, and therefore it did not establish a genuine
issue of material fact regarding the existence of an account
For the foregoing reasons, defendant's motion to reconsider is
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