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Joseph v. Evergreen Motors, Inc.

Court of Appeals of Illinois, First District, Fifth Division

September 20, 2019

MICHELLE JOSEPH, Plaintiff-Appellant,
v.
EVERGREEN MOTORS, INC., d/b/a Evergreen Kia, and WEST LAKE FINANCIAL SERVICES, LLC, Defendants Evergreen Motors, Inc., d/b/a Evergreen Kia, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County. No. 16 L 1349 Honorable Margaret A. Brennan, Judge, Presiding.

          Attorneys for Appellant Andrew Finko, of Chicago, for appellant.

          Attorneys for Appellee Adam M. Berger, of Kelley Kronenberg, of Chicago, for appellee.

          JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.

          OPINION

          HALL JUSTICE

         ¶ 1 On February 9, 2016, plaintiff, Michelle Joseph, filed suit against defendant Evergreen Motors, d/b/a Evergreen Kia (Evergreen), and West Lake Financial Services, LLC (West Lake), arising from her November 5, 2014, purchase of a used vehicle and a vehicle service contract (VSC). On July 14, 2017, Evergreen filed a motion to bar plaintiffs expert witness, which was granted by the circuit court on September 15, 2017. Also, on July 14, 2017, Evergreen filed a motion for summary judgment. Plaintiff filed an affidavit in response to Evergreen's motion for summary judgment, and Evergreen moved to strike that affidavit on September 29, 2017. On October 16, 2017, the circuit court granted Evergreen's motion to strike plaintiffs affidavit and granted summary judgment on two counts of plaintiff s complaint. Plaintiff voluntarily dismissed the remaining count.

         ¶ 2 On November 15, 2017, plaintiff filed a motion to reconsider the entry of summary judgment, the barring of her expert witness and the striking of her affidavit in response to the motion for summary judgment. On December 4, 2017, the circuit court struck plaintiffs motion to reconsider for her failure to provide the court with a courtesy copy. On December 27, 2017, plaintiff filed a notice of motion and attached the same motion to reconsider that it had previously filed (both date stamps are shown on the copy in the common law record). On January 16, 2018, the circuit court denied plaintiffs motion to reconsider, and she filed her notice of appeal on February 13, 2018.

         ¶ 3 Plaintiff appeals from the orders of the circuit court of Cook County barring her expert witness (entered September 15, 2017), striking her affidavit in response to Evergreen's summary judgment motion (entered October 16, 2017), and granting Evergreen's summary judgment motion (entered October 16, 2017). On appeal, plaintiff contends that (1) the circuit court erred in barring her expert witness, (2) the circuit court misapplied section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2016)) when it struck her affidavit in response to Evergreen's summary judgment motion, and (3) she stated facts that met her burden for establishing a claim under the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2016)) sufficient to defeat Evergreen's motion for summary judgment. For the reasons that follow, we dismiss the appeal.

         ¶ 4 BACKGROUND

         ¶ 5 A. Factual Background

         ¶ 6 Briefly stated, this case surrounds plaintiffs purchase of a used vehicle and VSC from Evergreen on November 5, 2014. At the time, plaintiff accepted dealer-arranged financing for the balance due on the vehicle and the VSC under a retail installment contract.

         ¶ 7 Prior to plaintiffs purchase, Evergreen executed a Blackhawk Finance Motor Vehicle Retail Installment Contract Purchase Agreement on May 12, 2009, by which Blackhawk Finance (Blackhawk) agreed to purchase retail installment contracts from Evergreen. Additionally, on July 1, 2013, Blackhawk's president, William Caan, entered into an Alpha Warranty Services producer dealer agreement under which Blackhawk became a dealer of extended warranty services. That agreement required Blackhawk to remit funds for each extended warranty contract within 10 days following the end of the month in which such services were sold.

         ¶ 8 Plaintiff experienced problems with her vehicle's transmission and sought services under the VSC in July or August 2015; she was informed that her VSC was not valid because it had not been paid for within the requisite time period. Plaintiff contacted Evergreen's finance manager, Ed Deany, who called Alpha Warranty Services on August 21, 2015. During the call, Deany was told that plaintiffs VSC was cancelled ...


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