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Rohr Burg Motors, Inc. v. Kulbarsh

Court of Appeals of Illinois, First District, First Division

August 25, 2014

ROHR BURG MOTORS, INC., d/b/a Bob Rohrman's Schaumburg Ford, Plaintiff and Counterdefendant-Appellee,
BRUCE KULBARSH, Defendant and Counterplaintiff-Appellant

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. No. 10 M3 3963. Honorable Sandra Tristano, Judge Presiding.


In an action arising from defendant's purchase of a used car from plaintiff dealership that had been involved in a major accident, contrary to plaintiff's representations, the trial court's order entering summary judgment dismissing defendant's counterclaims against plaintiff and his affirmative defenses to plaintiff's complaint was affirmed, since the record showed that upon the discovery of the problem with the car defendant purchased, the parties entered into a release agreement under which plaintiff agreed to refund defendant's money, pay off the loan he obtained to pay the balance of the purchase price, and basically make defendant whole and defendant agreed to return the vehicle, and despite several problems in connection with checks tendered by plaintiff and defendant's temporary refusal to return the vehicle, the parties' agreement was ultimately performed.

The Law Office of Sheila A. Genson, Ltd., Schaumburg, Illinois; Zane D. Smith & Associates, Chicago, Illinois (Zane D. Smith, of counsel) for APPELLANT.

William G. Hutul, P.C., Carol Stream, Illinois, (William G. Hutul, of counsel), for APPELLEE.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Hoffman and Delort concurred in the judgment and opinion.


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[¶1] Defendant and counterplaintiff-appellant Bruce Kulbarsh (Kulbarsh) appeals from the trial court's order of April 17, 2013, granting summary judgment dismissing his counterclaims against plaintiff and counterdefendant-appellee Rohr Burg Motors, Inc., d/b/a Bob Rohrman's Schaumburg Ford (Rohr Burg), and dismissing Kulbarsh's first four affirmative defenses to Rohr Burg's complaint against him. Kulbarsh argues that: (1) the trial court erred in finding that Kulbarsh's counterclaims were barred by operation of a release contained in a written agreement between the parties; and (2) the affirmative defenses were not subject to summary judgment.


[¶3] This appeal arises from a dispute between the buyer of an allegedly damaged used car and the dealership that sold him the vehicle. In July 2010, Kulbarsh visited a car dealership in Schaumburg, Illinois, known as Bob Rohrman's Schaumburg Ford (Schaumburg Ford), which is operated by Rohr Burg. According to Kulbarsh, he spoke to sales personnel at Schaumburg Ford and expressly communicated that he only wished to purchase a vehicle without any history of collisions. Sales personnel at Schaumburg Ford showed Kulbarsh a 2010 Ford Mustang convertible (the vehicle). Interested in the vehicle, Kulbarsh requested that the dealership show him the corresponding vehicle history reports. Kulbarsh was provided a report issued by CarFax dated June 25, 2010. The CarFax report indicated that the vehicle had originally been purchased in May 2009 and stated there were " [n]o accidents or damage reported to CarFax." Kulbarsh asked sales personnel to show him an AutoCheck vehicle history report, but he was told such a report was not available.

[¶4] Kulbarsh agreed to purchase the vehicle for the price of $19,600 and entered into a sales contract dated July 6, 2010.[1] Kulbarsh tendered a down payment of $4,000. The remainder of the purchase price was financed through a loan from American Eagle Bank, which is not a party to this action.

[¶5] In September 2010, approximately two months after purchasing the vehicle, Kulbarsh developed new concerns about the vehicle's history. He brought the vehicle

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to another car dealership where he had previously purchased vehicles. Employees at that dealership examined the vehicle and told Kulbarsh their suspicion that the vehicle had sustained prior damage. An employee of that dealership obtained an AutoCheck report for the vehicle, which indicated that the vehicle had frame damage due to a " major accident."

[¶6] On September 3, 2010, Kulbarsh retained an attorney, Andy Norman, in order to seek a rescission of the purchase of the vehicle from Schaumburg Ford. Kulbarsh returned to the dealership and complained that he had been sold a damaged car. After discussing his complaint with the Schaumburg Ford salesperson who had sold him the vehicle, an agreement was reached under which Kulbarsh would return the car and the dealership would refund the purchase price as well as pay off the American Eagle Bank loan. This arrangement was reflected in a letter to Kulbarsh from Rohr Burg dated September 8, 2010 that acknowledged Kulbarsh's concern regarding " a possible frame damage incident that your vehicle may have sustained" and offered: " If you are not completely satisfied please return the vehicle to Schaumburg Ford for a full refund including the interest that you have paid since the time of purchase."

[¶7] The following day, September 9, 2010,[2] Kulbarsh and Rohr Burg executed a document entitled " General Release." Kulbarsh testified that he was advised by his legal counsel at the time he signed the document. The General Release provides:

" I, Bruce D. Kulbarsh *** in reference to the purchase of a 2010 Ford Mustang *** on July 6, 2010, do hereby accept $21802.00, the repurchase amount and rescission of the contract, due to my concerns associated with the fact of a possible frame damage reported on an Autocheck Report of said vehicle. It is also understood that I, Bruce D. Kulbarsh do hereby acknowledge, remise, release, and forever discharge Rohr-burg Motors Inc. DBA Bob Rohrman Schaumburg Ford *** from any and all obligations of any kind and nature that I may have against said Rohr-burg Motors Inc. *** and any and all other related, parent and/or subsidiary corporations if any because of anything done or omitted to be done by them from the beginning of the world to date hereof. It is hereby agreed by both parties that said vehicle has been returned in the same condition for which it was purchased. The Undersigned intends hereby to release all unknown and unanticipated claims, if any. In signing this release, the undersigned does not rely upon any representations made by any persons or party or Agent or the Agent of any person or party hereby released."

The document was signed by Kulbarsh as well as by Mike Sabzali, a general manager at Schaumburg Ford. Following the language noted above, the General Release contains handwritten language certifying that American Eagle Bank had confirmed to Sabzali that the " payoff figure" for the loan on the vehicle was $17,731.45, and that " Schaumburg Ford insures full and complete payoff of the indebtedness" to American Eagle Bank.

[¶8] According to Kulbarsh, after executing the General Release on September 9, 2010, Sabzali showed him a check made out to Kulbarsh for the refund of his down

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payment. However, Sabzali told him that Schaumburg Ford " need[ed] two signatures to deposit" the check and that Sabzali needed to obtain another signature on the check before it would be valid. Sabzali thus asked Kulbarsh to come back to the dealership the next day and " they would have the check ready" for Kulbarsh. Kulbarsh maintained possession of the vehicle pending receipt of the check.

[¶9] Kulbarsh returned with the vehicle to the dealership the next day, September 10, 2010, and was given a check in the amount of $4,325.75. After receiving the check, Kulbarsh took off the license plates from the vehicle and left it at Schaumburg Ford. Later on the same date, Kulbarsh brought the check to a Chase bank where he had an account and attempted to deposit it. However, the bank told Kulbarsh the check could not be deposited, as it was " NSF" due to insufficient funds. After the check was declined Kulbarsh called Schaumburg Ford, and another salesperson from the dealership (whose name Kulbarsh could not recall) met him at the Chase bank. According to Kulbarsh, after the bank told the Schaumburg Ford salesperson that the check was declined as " NSF," the salesperson agreed to give Kulbarsh the vehicle back. Kulbarsh and the salesperson returned to the dealership, where Kulbarsh put his license plates back on the vehicle and drove the vehicle home.

[¶10] Kulbarsh returned to the same Chase bank " the next day or so" to inquire about the check. At that second visit, the check cleared and the full amount of $4,325.75 was deposited into Kulbarsh's account. Thus, within a few days after signing the General Release, Kulbarsh received the refund of his down payment on the vehicle. However, Kulbarsh did not return the vehicle after this check was deposited.

[¶11] With respect to the repayment of the car loan contemplated by the General Release, American Eagle Bank sent Kulbarsh a letter dated September 13, 2010, which stated: " Please accept this letter as proof that American Eagle Bank has received a payoff from Schaumburg Ford on your account *** in the amount of $17,731.45. Your account will be closed as of today, and your paid papers will be sent to you in 21 days." Despite receiving this letter, Kulbarsh doubted that American Eagle Bank had been paid off by Schaumburg Ford, as he did not know " if the check was any good" or " if the check ever went through." Kulbarsh acknowledged at his deposition that he later spoke to personnel at American Eagle Bank, who told him the check had been deposited, but Kulbarsh maintained that the bank " couldn't verify that it was actually paid off in full," because he believed the check " could still come back bad at any time."

[¶12] Kulbarsh did not return the vehicle even after depositing the $4,325.75 check refunding his down payment and after receiving the letter from American Eagle Bank confirming payoff of the car loan. In a letter dated September 30, 2010, Rohr Burg demanded that Kulbarsh return the vehicle. The letter to Kulbarsh, signed by Mark J. Battista as director of the Bob Rohrman Auto Group, stated that " you have failed to return the above mentioned vehicle associated with the agreement both written and verbally. Please accept this as our formal demand for the return of our property the 2010 Ford Mustang due to the fact that you are in breach of our agreement." Kulbarsh did not return the vehicle.

[¶13] On October 22, 2010, Battista, who is not an attorney, filed a complaint on behalf of Rohr Burg in the municipal department of the circuit court of Cook County. The complaint named both Kulbarsh

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and his attorney, Andy Norman, as defendants. Battista filled out a " Pro Se Complaint" form provided by the court and attached a separate document titled " Complaint" detailing the history of Kulbarsh's purchase, the execution of the General Release, and the parties' subsequent communications. The complaint alleged that Kulbarsh had wrongfully retained the vehicle despite Rohr Burg's refund of Kulbarsh's down payment and payment of the American Eagle Bank loan. The complaint made no mention of any check to Kulbarsh being declined due to nonsufficient funds, but rather alleged that Kulbarsh " immediately cashed the Schaumburg Ford check and retains the money he paid for the car which was returned to him." The complaint alleged that Kulbarsh committed " a conversion of [Rohr Burg] property." The complaint " demand[ed] damages for breach of agreement, conversion, [and] trespass to chattel, as the vehicle is being diminished in value" and Kulbarsh was " being unjustly enriched by using a car he has not paid for."

[¶14] On November 12, 2010, Kulbarsh filed a handwritten pro se answer to Rohr Burg's complaint claiming he had been " defrauded by Schaumburg Ford/Rohr Burg Motors into buying a car that they knew had major unibody damage and was unsafe to drive." The answer claimed that " [w]hen [Rohr Burg] offered to buy the car back, *** the check they gave me was N.S.F. [nonsufficient funds] as was the payoff check on the loan." Kulbarsh's answer acknowledged " [t]hey have since covered the first check, but have refused to verify the loan payoff check," adding that " [w]e are holding the car until then."

[¶15] According to Kulbarsh, when the parties first appeared in court on November 15, 2010, the trial court directed Kulbarsh to return the vehicle.[3] Later that day Kulbarsh and his mother took the vehicle and met with Sabzali and Battista at another car dealership, a Kia dealership, also operated by Rohr Burg. According to Kulbarsh, Sabzali demanded an additional $3,000 from Kulbarsh in addition to return of ...

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