Alma Lasers, Inc. v. Yigazu Isthetics, Inc.

2021 IL App (1st) 191894-U

• Court: Appellate Court of Illinois
• Decided: February 26, 2021
• Docket: 1-19-1894
• Status: Unpublished

Opinion

2021 IL App (1st) 191894-U

No. 1-19-1894

Order filed February 26, 2021

SIXTH DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

ALMA LASERS, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 L 10486 ) YIGAZU ISTHETICS, INC., ) Honorable ) Daniel J. Kubasiak, Defendant-Appellant. ) Judge presiding.

JUSTICE HARRIS delivered the judgment of the court. Justice Connors and Justice Oden Johnson concurred in the judgment.

ORDER

¶1 Held: Trial court did not err in denying defendant’s motion to dismiss breach of contract complaint or partially granting plaintiff’s motion to dismiss counterclaim. Court did not err in granting summary judgment for plaintiff on its complaint or remaining counterclaims. Court did not err in entering money judgment upon the summary judgment, nor in not vacating the judgment.

¶2 This case concerns the sale of laser aesthetics machines or systems by plaintiff Alma

Lasers, Inc. to defendant Yigazu Isthetics, Inc. Defendant appeals from orders of the circuit court

(1) granting summary judgment for plaintiff in its breach of contract action and on defendant’s

counterclaims, (2) entering a money judgment upon the summary judgment, and (3) denying No. 1-19-1894

defendant’s motion to vacate the judgment. On appeal, defendant contends that the court erred in

(1) denying defendant’s motion to dismiss the complaint as amended and granting plaintiff’s

motion to dismiss defendant’s fraud counterclaim, (2) granting plaintiff’s summary judgment

motion, and (3) entering judgment and not vacating it. For the reasons stated below, we affirm.

¶3 I. JURISDICTION

¶4 Upon plaintiff’s 2016 breach of contract complaint as amended, and defendant’s 2017

counterclaims, the trial court in November 2017 denied a motion to dismiss the amended complaint

and partially granted a motion to dismiss the counterclaims without prejudice. The court granted

summary judgment for plaintiff on its complaint and the remaining counterclaims on August 19,

2019, and entered judgment for plaintiff for $212,309.55 on August 21, 2019. Defendant filed a

motion to vacate the judgment on August 26, 2019, and a notice of appeal on September 18, 2019,

and the court denied defendant’s motion on September 20, 2019. See Supreme Court Rule

303(a)(2) (eff. July 1, 2017) (notice of appeal filed before disposition of timely postjudgment

motion takes effect upon disposition of motion.) Accordingly, this court has jurisdiction in this

matter pursuant to article VI, section 6 of the Illinois Constitution and Illinois Supreme Court

Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017) governing appeals in civil cases.

¶5 II. BACKGROUND

¶6 Plaintiff filed its verified breach of contract complaint in October 2016, alleging that the

parties entered into contracts on December 3, 2015, for plaintiff to sell defendant laser equipment

or systems, which were described in more detail in two invoices plaintiff sent on December 9,

2015, and plaintiff on or about the invoice date shipped that equipment to defendant. Plaintiff

alleged that the contracts and invoices obligated defendant to pay within 90 days of the invoice

date, and defendant paid $5000 on each invoice for a total of $10,000 paid. On the 90th day, March

8, 2016, defendant owed on the invoices a total of $130,912 not including interest at the 18% -2- No. 1-19-1894

annual rate in the contracts. Plaintiff sent defendant letters on September 23 and October 16, 2016,

requesting payment but defendant made no payment following either letter. Upon these factual

allegations, plaintiff alleged that it performed all its duties under the binding contract created by

the contracts and invoices while defendant had breached that contract by its nonpayment following

demand so that defendant owed plaintiff $130,912 plus $14,911.75 in accrued interest as of

October 25, 2016, plus interest accruing thereafter at $64.55 per day.

¶7 Attached to the complaint were said contract documents, invoices, and letters. One contract

was for a “Soprano” system and the other for a “VShape” system, and both documents bore the

apparent signature of Dr. Solomon Yigazu as “owner” of defendant. Both contracts provided:

“Until [plaintiff] (‘Seller’) receives and countersign’s [sic] Buyer’s acceptance in writing

and in accordance with these terms and conditions, all prices shall be subject to change

upon notice to Buyer (notwithstanding the receipt by Seller of the Buyer’s deposit). Buyer

agrees to make payments in accordance with Seller's payment schedule attached hereto and

incorporated herein by reference (the ‘Payment Schedule’). Seller shall send invoices for

amounts due pursuant to the Payment Schedule. Payment shall be due within seven days

after Buyer’s receipt of Seller’s invoice, unless Seller requires payment in advance. Interest

shall be charged al the rate of 18% per year or the highest rale permitted by applicable law,

whichever is less, on any invoice more than 30 days past due.”

Neither contract document in the complaint had a payment schedule attached. Both stated that each

machine required a new password from plaintiff every 30 days, which it would provide if

defendant’s account had no unpaid past-due balance. The Soprano invoice was for $60,642 and

the VShape invoice was for $70,270, with each invoice reflecting a $5000 payment and both

invoices stating “Due 90 Days from Invoice.”

-3- No. 1-19-1894

¶8 Defendant appeared in March 2017, and in April 2017 filed a motion to dismiss and a

motion for leave to file a counterclaim.

¶9 The motion to dismiss cited section 2-619(a)(9) of the Code of Civil Procedure. 735 ILCS

5/2-619(a)(9) (West 2018). It primarily alleged that the sale of the two systems was supposed to

be financed according to a payment schedule, but because the parties never agreed to a schedule

there was no enforceable contract between them regarding the systems. The motion noted that the

complaint did not mention that (1) the machines were locked so that defendant could not use them,

or (2) the parties had earlier contracted for the sale of two other systems, but those transactions

had payment schedules. Defendant argued that plaintiff’s

“decision to disregard the Payment Schedule provision and invoice for the later two

machines, and instead invoice and demand full lump sum amounts within days of a

preliminary Terms and Conditions of Sale calling for a Payment Schedule, just as occurred

for the first two machines, is invalid and outside the parties established course of conduct.”

¶ 10 Defendant alleged that plaintiff’s representative Dave “Maslowski emphasized a special

promotion, which allowed Yigazu to pay $29/month for six months before regular monthly

payments would start for 36, 48, or 60 month terms,” and emphasized his “close relationship” with

financing company Ascentium Capital as well as generally describing financing as easily obtained.

The first two systems were sold in September 2015 upon deposits of “between $5000 and $15,000”

total. Payment schedules – $29 monthly for 6 months for each system, then for 48 months

$2,698.44 monthly on one system and $2541.62 monthly on the other – were reached by the

parties, and defendant made all payments on these two systems. However, the payment schedules

did not account for defendant’s down payments. Defendant also alleged that plaintiff promised

$10,000 in marketing and web-development services that it did not provide.

-4- No. 1-19-1894

¶ 11 The motion alleged regarding the two systems at issue in the complaint that the parties

discussed financing options but Yigazu signed preliminary contracts for the systems in December

2015 that did not have payment schedules. Plaintiff then invoiced defendant for the full price of

the systems with no payment schedule. The machines were delivered locked and, except for a

training session by a representative of plaintiff, remained locked since.

¶ 12 Attached to the motion to dismiss, in addition to the contracts and invoices for the systems

at issue in the complaint, were September 2015 contracts for the first two systems referenced in

the motion, described as a Harmony and a FemiLift, reflecting deposits of $10,000 and $5000

respectively. Also attached was Yigazu’s April 2017 affidavit averring in detail the allegations in

the motion to dismiss.

¶ 13 Plaintiff responded to the motion to dismiss, arguing that the motion was meritless in

alleging an affirmative matter. Because plaintiff filed a verified complaint alleging that contracts

existed between the parties and that defendant breached those contracts, while defendant

acknowledged signing contract documents and admitted its possession of the systems contracted

for, “it is therefore certainly possible that [plaintiff] has valid and enforceable contracts.” A motion

to dismiss accepts the facts alleged in the complaint as true, and a dispute whether a contract exists

is not an easily-proven fact appropriate for such a motion.

¶ 14 Defendant replied in support of its motion to dismiss, arguing that the failure to have a

meeting of the minds was shown by (1) the documents themselves, referencing a required but

nonexistent payment schedule, and (2) the course of dealings between the parties, with their earlier

contracts having payment schedules. Defendant argued that Yigazu’s affidavit refuted the

complaint and was not itself refuted in plaintiff’s response, and that failure to satisfy a condition

precedent – here, agreeing to payment schedules – is a proper basis for a motion to dismiss.

-5- No. 1-19-1894

¶ 15 In June 2017, the court granted the motion to dismiss without prejudice, granting plaintiff

time to file an amended complaint. The court noted that the signed agreements provided for

payment schedules but did not include them, nor had plaintiff produced any payment schedule,

and that Yigazu averred to the machines being locked but plaintiff provided no counteraffidavit.

¶ 16 A. Amended Complaint.

¶ 17 Plaintiff filed its amended verified complaint in July 2017. It alleged that the contracts

provided for pretax prices of $60,850 for the Soprano system and $69,950 for the VShape system,

and for credit for defendant’s deposit on its earlier purchase. “Under the terms of the Contracts,

and pursuant to the Payment Schedule called for by the Terms and Conditions of Sale,” defendant

agreed to pay the balance due on the Soprano and VShape systems “in full upon delivery and

installation.” The invoices reflected taxes and a $5000 credit for each system for defendant’s

deposit on the earlier purchase. The amended complaint acknowledged the contractual provision

for password locking of the machines but alleged that (1) plaintiff provided defendant’s employees

training on the systems, with “training only possible if [they] are unlocked,” and (2) plaintiff

provided defendant passwords for the machines through March 15, 2016, based on the 90-day term

in the invoices. The amended complaint sought $130,912 plus $31,629.50 in accrued interest as of

July 11, 2017, plus interest accruing thereafter at $64.55 per day.

¶ 18 Attached to the amended complaint, in addition to the original attachments, were additional

pages of the contracts. The VShape contract included a line item for “Marketing Assistance” for a

“Social Media Success Package,” initially priced at $5000 but then discounted to zero. The new

pages did not include anything labeled a payment schedule but did state “Terms: USD Deposit

with Order $10,000. Balance to be paid in full upon delivery” in the Soprano contract and “Terms;

USD Deposit with Order $10,000 with balance due upon installation” in the VShape contract, both

on pages bearing Yigazu’s apparent signature. Also attached to the amended complaint was a copy -6- No. 1-19-1894

of a February 2016 email from an employee of plaintiff instructing defendant on how to “extend

the lock on the system” until March 15, 2016.

¶ 19 Defendant filed a motion to dismiss under section 2-619, arguing that the amended

complaint “fails to contemplate” that the parties did not agree to lump-sum payment for the two

systems. Defendant argued that the additional contract pages did not include a payment schedule

for either contract at issue. By contrast, the contracts for the first two systems included payment

schedules. Also, the “advertising and representations of the availability of periodic payment

financing, and actual extension and execution of periodic monthly financing for earlier transactions

combined with its present ‘bait-and-switch’ attempt to collect full lump-sums from [defendant] is

an unlawful trade practice - which should independently nullify the Amended Complaint.”

Defendant argued that the amended complaint again did not acknowledge that defendant had no

use of the two systems at issue as Yigazu averred. The motion to dismiss the amended complaint,

in addition to alleging a failed meeting of the minds for an enforceable contract, argued that

plaintiff’s “bait and switch” violated section 2J of the Consumer Fraud and Deceptive Practices

Act (the Act) (815 ILCS 505/2J (West 2018)) and “nullified” the amended complaint.

¶ 20 Plaintiff responded to the motion to dismiss, claiming that the contracts for all four systems

were substantively identical. Indeed, the contracts for the first two systems provided for payment

on delivery while the Soprano and VShape contracts provided for payment within 90 days. While

defendant alleged certain payment schedules for the first two systems, plaintiff claimed that the

parties did not agree to those payment schedules. In other words, plaintiff “never extended periodic

monthly financing to Dr. Yigazu or [defendant] in prior transactions. Financing for prior

transactions was separately arranged by Yigazu himself through Ascentium Capital, an entirely

separate entity from” plaintiff. As to the allegation that the parties did not agree to payment

schedules for the latter two systems, plaintiff argued that the terms in the contracts – down -7- No. 1-19-1894

payments applied as deposits, with balance due in 90 days from the invoices – were indeed

payment schedules. Even if a payment schedule was absent, that would not be the failure of a

condition precedent because payment is due on delivery when a sales contract does not address

the timing of payments. Also, defendant did not assert this alleged failure of condition precedent

while the systems were in its possession, its employees were trained to use them, and it could use

them subject to password control but instead waited until plaintiff sued. Plaintiff argued that the

motion to dismiss did not accept the allegations of the complaint and plead an affirmative matter

to defeat the complaint, as a section 2-619 motion should, but challenged the complaint’s

allegations. Defendant’s claim under the Act would fail because defendant was not misled by

plaintiff and because the Act was inapplicable to the transactions between these parties.

¶ 21 The response was supported by Maslowski’s affidavit. He averred that, after he and Yigazu

met at a 2015 sales presentation, Yigazu contracted with plaintiff on September 12, 2015, to buy

the Harmony and FemiLift systems for $97,450 and $95,000 respectively, plus taxes. The payment

schedule referenced in both contracts was on both purchase orders: “USD Deposit with order

$10,000. Balance to be paid in full upon delivery.” However, plaintiff accepted a $5000 deposit

on the FemiLift. On September 17, 2015, plaintiff shipped the Harmony system and invoiced

defendant for $104,530 including taxes, with payment due in 30 days. On September 29, 2015,

plaintiff shipped the FemiLift system and invoiced defendant for $101,524 including taxes, with

payment due in 30 days. Defendant received the Harmony system on September 25, plaintiff

trained defendant on it on September 30, defendant received the FemiLift system on October 2,

and plaintiff trained defendant on it on October 31. Maslowski averred that:

“Yigazu later obtained third-party financing for the Harmony System from Ascentium

Capital, and on October 29, 2015, Ascentium paid Alma $104,530, representing the full

amount due on the Harmony System. At no time did Alma enter into an agreement with -8- No. 1-19-1894

Dr. Yigazu or Yigazu Isthetics regarding financing the purchase of the Harmony System.

Moreover, Alma has never received periodic monthly payments from Dr. Yigazu or Yigazu

Isthetics for the Harmony System.”

Maslowski averred a similar third-party financing transaction regarding the FemiLift system

whereby Ascentium paid plaintiff $96,524, which was the balance due minus $5000, on December

15, 2015. Maslowski similarly denied that plaintiff had a financing agreement with defendant, or

received periodic payments, for the FemiLift system. Plaintiff applied the remaining $5000 deposit

so that the FemiLift system was paid in full.

¶ 22 Maslowski also averred that defendant, on December 3, 2015, contracted with plaintiff to

buy the Soprano and VShape systems for $60,850 and $69,950 respectively, plus taxes. As before,

the payment schedule referred to in the contracts was on the purchase orders: “USD Deposit with

order $10,000. Balance to be paid in full upon” delivery or installation. However, Maslowski

agreed to modify the payment schedules for both systems to 90 days, which was noted on the

Soprano contract but not noted by Maslowski on the VShape contract. Yigazu requested that his

“leftover deposit” be applied to the Soprano and VShape contracts; plaintiff agreed and Maslowski

noted so on both purchase orders. On December 9, 2015, plaintiff shipped the Soprano and VShape

systems and invoiced defendant for each, with each invoice applying $5000 of the deposit. The

balances due on the invoices, including taxes, were $60,642 on the Soprano and $70,270 on the

VShape. Defendant received both systems on December 10 and was trained on them by December

17. Maslowski had plaintiff’s employees unlock the Soprano and VShape systems by password,

or provided defendant passwords, through March 15, 2016. Maslowski learned in the summer of

2016 that Yigazu had been trying to arrange financing of the Soprano system with Partners Capital

Group (Partners) and learned in October 2016 that Yigazu told Partners he would not be financing

either the Soprano or VShape system through Partners. Maslowski averred that plaintiff never -9- No. 1-19-1894

agreed with defendant or Yigazu to finance the purchase of the Soprano or VShape systems, and

plaintiff had not been paid the balance due for either system as of the September 2017 affidavit.

¶ 23 Defendant replied in support of its motion to dismiss, claiming that plaintiff promoted sales

of its systems with financing on monthly payment plans by working with Ascentium, a lender

“affiliated” with plaintiff. Attached to the reply was Yigazu’s affidavit and various advertisements,

promotional documents, and emails from Maslowski mentioning payment plans and financing for

the systems bought by defendant and mentioning plaintiff and Ascentium together, including

Maslowski describing Ascentium to Yigazu as “my primary lender.”

¶ 24 Plaintiff filed a surresponse, arguing that the allegations of the motion to dismiss were

conclusory, and that plaintiff’s advertising and efforts to arrange financing were not misleading to

Yigazu and did not alter the payment schedule in the contracts.

¶ 25 Defendant filed a surreply, reiterating its argument that a payment schedule with monthly

payments was a condition precedent to the sales contracts at issue so that the failure to agree to

monthly payments was the failure of a condition precedent to the contracts being valid so that

defendant’s motion to dismiss should be granted.

¶ 26 B. Counterclaim.

¶ 27 In addition to its motion to dismiss the amended complaint, defendant sought leave to file

a “revised” counterclaim “adding Illinois Consumer Fraud Act claims.” The court granted leave

to file in August 2017, and defendant filed its verified counterclaims that same month.

¶ 28 In Count I, defendant alleged that the parties had agreed to the sale of the Harmony and

FemiLift systems with payment schedules but those schedules did not apply defendant’s down

payments. Defendant alleged that it was entitled to a refund of its down payment for each system

and asked the court to find that it was entitled to $10,000 “for promised but undelivered marketing

and website development services.” - 10 - No. 1-19-1894

¶ 29 Count II alleged that the sale of the Soprano and VShape systems was supposed to be

financed according to a payment schedule but the parties never agreed to a schedule so there was

no enforceable contract regarding the systems; that is, the failure to agree on payment schedules

was the “absence of a condition precedent to contract formation.” Defendant asked the court to

“declare there is no valid and enforceable contract between the parties as to those two machines,”

declare plaintiff’s invoices on those systems void, and allow plaintiff to recover the locked

machines at a reasonable time.

¶ 30 Count III of the counterclaims raised claims under sections 2B (815 ILCS 505/2B (West

2018)) and 2J of the Act that plaintiff “advertised and induced” defendant to purchase its systems

“by describing, offering, and leading [defendant] to believe that [the Soprano and VShape systems]

would be financed according to long term periodic monthly payment schedules” and then

committing “bait-and-switch” by invoicing for the full price and seeking to enforce the invoices.

Defendant also alleged that plaintiff failed to provide defendant “the required notice of [its] ability

to cancel the transaction within 3 business days” under the Act. Count III sought a declaration that

there “was never a valid and enforceable contract between the parties” as to the Soprano and

VShape systems, and that the invoices for those systems was null and void, an order that plaintiff

accept return of those systems, a finding that plaintiff’s “acts were misleading and deceptive and”

violated the Act, and an award of “all down payments,” damages under the Act, and attorney fees.

¶ 31 Plaintiff filed a motion to dismiss defendant’s counterclaims pursuant to sections 2-615

and 2-619(a)(9) of the Code of Civil Procedure. 735 ILCS 5/2-615, 2-619(a)(9) (West 2018). In

response to Count I, plaintiff argued that defendant requested that its down payments on the first

two systems be applied to the contracts for the latter two systems. In response to Count II, plaintiff

argued that it was “unequivocally untrue” that the parties had not agreed to payment schedules for

the latter systems “and the claim is further based on the faulty presumption that an agreement on - 11 - No. 1-19-1894

a payment schedule was a condition precedent to contract formation.” As to Count III, plaintiff

argued that the Act does not apply to the transactions here and that there was no “bait and switch.”

¶ 32 Defendant responded to the motion to dismiss its counterclaims, reiterating its claim that

plaintiff promoted sales of its systems with financing on monthly payment plans by working with

Ascentium. Defendant also argued that plaintiff’s motion failed to distinguish which portions were

brought under section 2-615 and which under section 2-619(a)(9), failed to specify the allegedly

missing elements of defendant’s counterclaims for section 2-615 purposes, and answers the factual

allegations of the counterclaims rather than pleading an affirmative matter under section 2-

619(a)(9). Defendant argued that plaintiff failed to address the claim regarding web development

and marketing services, and that the terms in the contracts for the latter two systems were not

payment schedules as the contracts required.

¶ 33 Plaintiff replied in support of its motion to dismiss the counterclaims, arguing that its

motion properly labeled each argument as being pursuant to section 2-615 or 2-619, and properly

argues the legal insufficiency of the counterclaims. It reiterated the arguments of the motion to

dismiss that defendant requested application of the down payments on the first two systems to the

purchase of the latter two systems, the contracts for the latter systems were valid and did not lack

any conditions precedent, and the counterclaims did not state valid claims under the Act.

¶ 34 C. Rulings on Motions to Dismiss.

¶ 35 In November 2017, the court ruled on defendant’s motion to dismiss the amended

complaint and plaintiff’s motion to dismiss defendant’s counterclaims. The court noted

defendant’s argument that there was no meeting of the minds, and thus no valid contract, on the

Soprano and VShape systems because the contracts required payment schedules but none were

agreed to. Yigazu averred that he did not agree to pay the full price for these systems, plaintiff

pointed to payment requirements in the contracts as the requisite schedules, and defendant argued - 12 - No. 1-19-1894

that those terms were not payment schedules. The court found that defendant raised issues of fact

not appropriate for dismissal under section 2-619. Defendant similarly raised issues of fact as to

whether it was deprived of use of the machines by plaintiff locking them. As to defendant arguing

that plaintiff violated section 2J of the Act (815 ILCS 505/2J (West 2018)) by not clearly setting

forth a payment schedule, defendant again raised an issue of fact inappropriate for dismissal.

¶ 36 As to plaintiff’s motion to dismiss the counterclaims, the court found that defendant

sufficiently pled the existence of a condition precedent – payment schedules – for Count II to

survive dismissal under section 2-615 or section 2-619. As to Count III, plaintiff argued that the

contracts between the parties are not subject to the Act. The court found that defendant sufficiently

alleged that plaintiff advertised the availability of monthly payments to fall under section 2J of the

Act and survive section 2-615 dismissal, but accepted plaintiff’s argument that section 2B of the

Act, applying to contracts made with a consumer in the consumer’s home, does not apply to Count

III. As to Count I of the counterclaims concerning deposits on the first two systems, both parties

presented affidavits disputing how the deposits were applied so that issues of fact were raised and

dismissal of Count I under section 2-619 would be inappropriate.

¶ 37 Therefore, the court denied the motion to dismiss the amended complaint without

prejudice, allowing defendant to raise the issues in the motion as affirmative defenses. The court

denied the motion to dismiss the counterclaim under section 2-615, granted it without prejudice

under section 2-619 as to Count III’s claim under section 2B of the Act, and denied it without

prejudice under section 2-619 as to the other counts of the counterclaim. Plaintiff could raise its

challenges to Counts I and II of the counterclaim as affirmative defenses, while defendant could

file an amended counterclaim as to Count III if after discovery it had enough facts to allege a cause

of action under section 2B.

- 13 - No. 1-19-1894

¶ 38 D. Subsequent Pleadings.

¶ 39 Defendant filed its answer and affirmative defenses in December 2017. It denied that there

were valid or enforceable contracts between the parties regarding the latter two systems, denied

that any term in the purported contracts or purchase orders for those systems constituted a payment

schedule, and maintained that the condition precedent of agreeing to payment schedules was not

completed. Defendant admitted that the systems were delivered, and regarding the password email

admitted that “an email was sent,” but denied that the systems were installed and unlocked.

¶ 40 Defendant’s affirmative defenses alleged that plaintiff’s practices and representations

including sales documents and advertisements were that systems would be delivered and then

financed. The parties’ transactions on the Harmony and FemiLift systems were consistent with

delivery followed by finance, and the preliminary contract documents required payment schedules

but none were finalized. As to the Soprano and VShape systems, plaintiff’s representative came to

defendant’s “place of business, represented limited ‘Black Friday’ prices were temporarily

available, and asked for a deposit to secure price.” The first affirmative defense was that plaintiff

was acting in bad faith contrary to the implied covenant of good faith and fair dealing by not

honoring its representations and promises of financing and by demanding full payment on delivery

of the latter two systems without payment schedules as required. The second affirmative defense

was that plaintiff violated the Act and the Uniform Deceptive Trade Practices Act, 815 ILCS

501/2(a) (West 2018), by not honoring its representations and promises of financing and by

demanding full payment on delivery without payment schedules. The third affirmative defense

was absence of a condition precedent: a final and enforceable contract was not formed regarding

the Soprano and VShape systems because payment schedules were required but not finalized.

¶ 41 Plaintiff filed its answer to defendant’s affirmative defenses in January 2018, maintaining

that the payment schedule was in the contract documents, denying that its practices or - 14 - No. 1-19-1894

representations were that systems would be delivered and then financed, and denying that the

parties’ transactions on the Harmony and FemiLift systems were consistent with delivery followed

by finance. Plaintiff admitted that its representative went to defendant’s place of business but

denied that he “represented limited ‘Black Friday’ prices were temporarily available, and asked

for a deposit to secure price” for the Soprano and VShape systems. Plaintiff denied the allegations

in all three affirmative defenses.

¶ 42 Plaintiff filed its answer and affirmative defenses to defendant’s counterclaims in

December 2017. Generally, plaintiff admitted that Maslowski provided Yigazu information

regarding plaintiff, its systems, “and available third-party financing” but denied that it agreed to

sell systems to defendant subject to payment schedules with monthly payments. Regarding Count

I, plaintiff admitted that defendant made deposits of $15,000 total for the first two systems and

that plaintiff did not “yet” provide a $10,000 marketing allowance. Plaintiff denied that defendant

paid plaintiff in full for the first two systems, maintaining instead that it applied “a portion” of the

deposits and otherwise Ascentium paid plaintiff. Regarding Count II, plaintiff admitted that the

parties discussed applying the remainder of the deposit on the first two systems to the latter two

systems but denied that invoicing defendant for the latter two systems upon delivery was contrary

to any term in the contracts for those systems. Plaintiff also denied locking the machines after

unlocking them for training. Regarding Count III, plaintiff noted that the section 2B claims had

been dismissed and otherwise denied the allegations except to admit that Maslowski went to

defendant’s office on December 3, 2015, to discuss buying the latter two systems “as well as

available third-party financing.”

¶ 43 Plaintiff raised four affirmative defenses: that the counterclaims fail to state a claim upon

which relief may be granted, that any relief on the counterclaims should be offset by plaintiff’s

relief on its breach of contract claim, that the “remaining deposits” on the first two systems were - 15 - No. 1-19-1894

not returned because defendant “instructed” plaintiff to apply them towards the latter purchase,

and that defendant’s counterclaims were “a purely private dispute between parties to certain

contracts” and thus “beyond the reach of the” Act.

¶ 44 Defendant moved to strike plaintiff’s affirmative defenses, arguing that they were not

actually affirmative defenses, including that they made no factual allegations. Defendant also

argued that the court had already denied three of the defenses: failure to state a claim, that the

deposits on the first two systems were not returned because they were to be applied towards the

latter two systems, and that the counterclaims did not fall under the Act. The court ordered in

March 2018 that plaintiff’s affirmative defenses were stricken with leave to refile.

¶ 45 Plaintiff refiled affirmative defenses to the counterclaim, adding factual allegations. After

plaintiff and Yigazu had discussions in late 2015, defendant contracted to buy the Harmony and

FemiLift systems. “Those contracts contained payment schedules calling for an initial deposit and

the balance owed to be paid in full upon delivery.” Defendant deposited $15,000 and plaintiff

issued an invoice for each system reflecting updated balances. Defendant then obtained financing

from Ascentium, which paid plaintiff for both systems; defendant financed the Harmony system

in full and financed all but $5000 of the FemiLift system. Plaintiff applied $5000 of the deposit.

In December 2015, defendant entered into contracts with plaintiff to buy the Soprano and VShape

systems, which “were nearly identical to” the contracts for the first two systems and “contained

payment schedules calling for an initial deposit and the balance owed to be paid in full in 90 days.”

At Yigazu’s request, plaintiff applied the remaining deposit. It then issued invoices for the latter

two systems, with balances adjusted for the deposit and taxes, requiring payment within 90 days.

Plaintiff learned in the summer of 2016 that defendant was working with Partners Capital to

finance the purchase of the Soprano system, but then learned in October 2016 that Yigazu had

informed Partners that he would not be financing through Partners. - 16 - No. 1-19-1894

¶ 46 Plaintiff’s first affirmative defense was that, contrary to Count I of the counterclaim

alleging improper failure to refund deposits after defendant financed the full price of both the

Harmony and FemiLift systems, defendant did not finance the full purchase price of both systems

and the remaining deposit was applied to the Soprano and VShape systems at Yigazu’s request.

The second affirmative defense was that, contrary to Count II alleging that the parties never

reached a meeting of the minds as to the payment schedules in the Soprano and VShape contracts,

those contracts “contain the payment schedule referenced in the Terms and Conditions of Sale,”

namely a $10,000 deposit with the balance due in 90 days from delivery or installation. Plaintiff

noted that both contracts provided that “[t]here are no conditions affecting this agreement which

are not expressed herein,” and argued that plaintiff was not a party to defendant’s financing

agreements with Ascentium for the first two systems and thus those agreements were not the

payment schedule for those contracts. The third affirmative defense was that, contrary to Count III

alleging “bait and switch” when plaintiff offered monthly payment schedules for the first two

systems but not the latter two, plaintiff did not offer monthly payment schedules for the first two

systems. Instead, defendant arranged financing with Ascentium and made monthly payments to

Ascentium, with Yigazu aware of the distinction as he signed the financing agreements for

defendant with Ascentium.

¶ 47 Defendant moved to strike the refiled affirmative defenses to its counterclaims, arguing

that they were not affirmative defenses. In June 2018, the court found that they “merely negate the

factual allegations in the complaint and do not assert any new matter” and dismissed them without

prejudice. Plaintiff did not subsequently replead any affirmative defenses.

¶ 48 E. Summary Judgment.

¶ 49 Plaintiff filed its motion for summary judgment in June 2019, arguing that defendant’s

argument that there was no valid contract for the systems it bought in December 2015 was “entirely - 17 - No. 1-19-1894

reliant” on the September 2015 contracts to purchase two other systems. However, the contracts

between plaintiff and defendant in December 2015 were substantially identical to the contracts

between them in September 2015, with the payment schedule referenced in the contracts being

payment in full upon delivery or installation as stated in the purchase orders. When demanded to

produce the payment schedules for the earlier contracts to support its theory, defendant produced

documents concerning its financing agreements with Ascentium. Said agreements expressly

provided that plaintiff was not Ascentium’s agent and Ascentium was not plaintiff’s agent.

Defendant’s second counterclaim was similarly based on the lack of payment schedules and

similarly fails. Plaintiff argued that, even if a payment schedule was absent, a payment schedule

was not a condition precedent to a valid contract and an undefined payment schedule defaults by

law to payment upon delivery. Based on the affidavit of Alan Greer, plaintiff’s controller and vice

president of finance, “[a]s of June 20, 2019 [defendant] owes $208,307.45 on the contracts for [the

latter two systems], and interest continues to accrue at a rate of [$]64.55 per diem.”

¶ 50 The surviving third counterclaim under section 2J of the Act fails, the motion argued,

because there was no “bait and switch” under that statute. Defendant was provided marketing

documents showing that Ascentium could provide financing for the December 2015 systems as it

was available for the first two systems, including that a credit application and approval was

required. As shown in Yigazu’s deposition, defendant’s failure to obtain financing for these

systems was due to Yigazu’s decision to not provide materials that Ascentium requested,

specifically 2014 tax returns for defendant and Yigazu. While defendant then asked plaintiff to

take back the systems, plaintiff did not do so. Defendant then sought financing from Partners but

failed due to Yigazu not providing all the necessary information.

¶ 51 The first counterclaim concerning deposits fails, the motion argued, because the contract

documents, Yigazu’s deposition, and Maslowski’s affidavit showed that the September 2015 - 18 - No. 1-19-1894

deposits were applied to the December 2015 purchases at Yigazu’s behest. The first two systems

were not financed in full as defendant alleged – instead, $5000 in deposits was applied then – nor

did Yigazu demand the return of his deposit for the earlier systems.

¶ 52 Attached to the summary judgment motion were copies of the pleadings, Maslowski’s 2017

affidavit. Greer’s affidavit as stated above, and a transcript of Yigazu’s deposition.

¶ 53 Yigazu testified that he first heard of plaintiff when he was invited to a conference by

Maslowski and spoke with him there. Maslowski then came to one of defendant’s offices to meet

with Yigazu; he never came to Yigazu’s home. After negotiations, Yigazu agreed that defendant

would buy the Harmony system from plaintiff and made a $10,000 down payment. The Harmony

system was delivered and defendant’s technicians used it. He also ordered a FemiLift system that

was delivered to and used by defendant. However, the systems were locked until defendant

obtained financing from Ascentium by submitting applications to Maslowski. Yigazu could not

recall if he submitted the application in his own name or defendant’s, as he was defendant’s sole

representative. Defendant made payments on the two systems to Ascentium. When shown invoices

from plaintiff for these systems that were emailed to Yigazu, he did not recall receiving them. One

invoice showed $101,524 less a $5000 deposit, or $96,524. Yigazu met later with Maslowski and

Greer and agreed in December 2015 that defendant would buy the VShape system. Defendant

received the VShape and Soprano systems and its technicians were trained to use them. Yigazu

received invoices for these latter systems, and like the invoices for the first two systems the entire

balance due was shown. Yigazu applied to Ascentium to finance these systems, and Ascentium

repeatedly asked for additional information – 2014 tax returns for defendant – to complete the

application. Yigazu did not send defendant’s return because defendant corporation was not created

until November 2014. However, Yigazu responded by email that he would send the return that

day, rather than telling Ascentium he had no return. Ascentium did not finance the two systems. - 19 - No. 1-19-1894

¶ 54 While Yigazu spoke with someone from Partners, he did not pursue financing with Partners

because he had been “debating” financing after Ascentium denied financing, requested Yigazu’s

personal tax return “[b]ecause they say the business is overexposed,” “and then I say no” and “told

them to take the equipment.” Specifically, Yigazu told Maslowski and Greer that plaintiff should

take back the systems, but “[t]hey never accepted.” Yigazu later corresponded with Jason

Carpenter regarding a website development credit, which Carpenter said “won’t be released until,

as he says, the lease document is executed.” Yigazu expressed dismay at plaintiff linking the two

matters and proposed that the credit be released unconditionally. Maslowski then sent Yigazu a

list of things that needed to be done to “close” on the latter two systems, including credits from

the first two systems. Yigazu wanted the $10,000 deposit for the first two systems reimbursed. As

late as August 2016, Yigazu was discussing the latter two systems with Greer. When asked if he

had changed his mind about wanting to return the systems, Yigazu replied that he could not pay

for them without financing. Yigazu later received from Maslowski and Ascentium’s Jason Wise

documents with monthly payment options for each of the two systems and a credit application.

The documents bore logos of plaintiff and Ascentium and mentioned that they were prepared by

Maslowski and Wise but otherwise referred to Ascentium. Copies of the documents were included

with the transcript, and they include language on the first page of each that “[y]our proposed

finance agreement is subject to credit/document review and approval by Ascentium.”

¶ 55 Defendant responded to the summary judgment motion. It argued that plaintiff “advertises

and represents to aesthetics customers that transactions for [its] machines are highly profitable

almost immediately and involve three sets of documents: (1) Price Quotation/Purchase Order and

Deposit Documents; (2) Preliminary Terms and Conditions Documents; and (3) Lease Financing

Documents,” in that order. While all three sets of documents were finalized for the Harmony and

FemiLift systems, the “parties failed to materialize lease financing for” the Soprano and VShape - 20 - No. 1-19-1894

systems at issue. Defendant argued that plaintiff’s summary judgment motion should be denied

because plaintiff violated the Act and the implied covenant of good faith, and acted fraudulently

and unconscionably, and a condition precedent to valid contracts for the two systems was absent.

¶ 56 Defendant characterized Ascentium as plaintiff’s “finance partner” and noted that there

was “extensive litigation” against both according to Greer’s deposition testimony. Maslowski

made representations to Yigazu that plaintiff’s systems “were rapidly and highly profitable when

leased financed on a monthly basis *** because monthly lease costs would be much less than

monthly revenues generated by laser treatments performed each month.” The price quotations

included language that “ALL ORDERS ARE SUBJECT TO CREDIT APPROVAL BY ALMA

LASERS.” Defendant noted that when the financing stage was reached, the lease financing

application had logos of plaintiff and Ascentium. Yigazu completed the application and sent it to

Maslowski, who sent it to Ascentium. Wise asked Maslowski if the lease financing should be

priced “normal” or “skinny,” and Maslowski replied that it should be “[n]ormal but skinny if

necessary.” Wise and Maslowski then sent Yigazu financing proposals. The response describes

the proposals but does not state what happened to the proposals, such as whether Yigazu replied

to them, except to conclude that plaintiff and Ascentium approved lease financing for the Harmony

and FemiLift systems but did not approve lease financing for the Soprano and V-Shape systems.

¶ 57 Attached to the response were transcripts of the depositions of Greer and Maslowski. Greer

testified that he did not know why plaintiff’s logo was on Ascentium documents. While he knew

that plaintiff’s salespeople discussed leasing and financing with prospective customers, he did not

know the particulars as he did not work in sales. Plaintiff’s contracts provided for 30-day password

control of its systems because “a customer may be given 60 days to pay and with two installments,”

and the system would be unlocked by password after the first installment was paid, and then

permanently unlocked when paid in full. Many of plaintiff’s customers lease “[f]rom various - 21 - No. 1-19-1894

financing entities.” The typical payment schedule is that payment is due on delivery, though

sometimes terms of 60 or 90 days are extended. The agreements include authority for plaintiff to

check the customer’s credit and a proviso that all orders are subject to credit approval by plaintiff.

Greer explained that plaintiff rarely if ever used that authority. Plaintiff advertises jointly with

lenders and facilitates introductions to third-party financing providers, but Greer expressly denied

that plaintiff promises approval for financing and maintained that customers must pay their

balances by “whichever means necessary.” Plaintiff rarely accepts return of its systems, only if the

vice-president of sales made a special request and the chief executive officer approved. When

Greer was shown messages to the effect that special efforts were being made to sell to Yigazu, he

noted that buying four systems in 60 days is atypical and would make Yigazu a “great customer.”

When shown an email by Maslowski stating that he was “working on financing with” Yigazu,

Greer denied that plaintiff was promising financing. While Greer emailed Wise to ask if there

would be “any hiccups” on financing Yigazu, he explained that he was “probably” asking about

the status of financing because defendant’s systems had already been shipped. When asked if

financing occurs after systems are shipped, Greer replied that “[e]very sale is different” and noted

that defendant asked for and received 90-day terms while some other customers pay cash.

Defendant’s $15,000 in deposits for the first two systems were not returned because they were

either used on those systems or applied towards the latter two systems. Maslowski emailed that

the Harmony deposit would be refunded and the FemiLift deposit had been applied to that invoice,

but also said that Maslowski would “need the [$10,000] to help him out for deposit reasons.”

¶ 58 Maslowski testified that he no longer worked for plaintiff as of his deposition. As a

salesman for plaintiff he worked with whatever financing or leasing companies he chose. He

worked with firms other than Ascentium including banks, and they did not pay him for bringing

them business. He knew Wise from Ascentium because his customers did business with Wise. He - 22 - No. 1-19-1894

met Yigazu at a conference on medical spas and kept in touch by telephone with some office visits.

He helped Yigazu establish a medical spa in hope that he would then buy plaintiff’s systems, and

he knew Yigazu for about a year before selling him any of plaintiff’s systems. In discussing

prospective sales, Maslowski and Yigazu both realized that Yigazu would have to finance his

purchases because he was still beginning his business. Maslowski sent him materials for

Ascentium because plaintiff did not do its own financing. For the first two systems, Maslowski

received a financing application from Yigazu and sent it on to Ascentium, which approved

financing after Maslowski kept in contact with Wise to expedite matters. When financing

proposals were sent to Yigazu, Wise prepared them with data from Maslowski and Ascentium sent

them. When Yigazu was considering buying the second two systems, Maslowski emailed Wise to

ask if Yigazu needed to submit another credit application, but he could not recall Wise’s answer.

He was aware of Ascentium’s request for tax returns but did not know why Ascentium wanted

them beyond that defendant was buying four systems.

¶ 59 Plaintiff replied in support of its summary judgment motion, arguing that defendant’s

response failed to identify any evidence sufficient to create a genuine issue of material fact and

did not dispute that defendant “executed contracts for the purchase of cosmetic laser equipment,

that [plaintiff] delivered and installed the equipment and provided training on how to use it, and

that after the installation and training were complete, [defendant] refused to remit payment as

called for in the contracts.” Plaintiff argued that its summary judgment motion and attached

exhibits established that “the financing marketing materials *** were not part of the purchase

agreement between the parties but instead were financing materials and applications provided by

Ascentium, an entity completely unrelated to” plaintiff. The motion also established, and the

response did not refute, that Ascentium provided a financing opportunity but defendant “refused

to provide necessary paperwork to allow for a proper finance review.” - 23 - No. 1-19-1894

¶ 60 On August 6, 2019, the court granted defendant leave to file deposition exhibits. Its order

also stated that the court would rule in writing upon the summary judgment motion by August 19,

2019, and the next court date would be August 21, 2019, “for exchange of trial documents.”

¶ 61 The Maslowski deposition exhibits included documents from litigation in which plaintiff

herein was suing a person unrelated to this case for paying for its equipment with bad checks, and

emails and promotional materials for plaintiff’s systems from Maslowski to Yigazu.

¶ 62 The court issued its order on the summary judgment motion on August 19, 2019. It found

that no genuine issues of material fact existed as to whether plaintiff (1) promised or offered to

provide financing on the latter two systems when it issued its payment schedules, (2) breached its

contract with defendant for the first two systems, or (3) violated the Act. Defendant alleged that

the parties had no meeting of the minds regarding the latter two systems, plaintiff and Maslowski

advertised and represented that any transactions for plaintiff’s products would involve lease

financing, plaintiff and Ascentium financed the first two machines but then failed to provide

financing for the latter systems. However, Yigazu testified in his deposition that he failed to

provide Ascentium defendant’s tax returns or his own tax returns for 2014, so that plaintiff did not

fail to provide financing as alleged. Defendant alleged that plaintiff violated the Act with a “bait

and switch” by advertising and inducing defendant to purchase its equipment, including the latter

two systems, and leading it to believe that those systems would be financed with long-term

schedules of monthly payments. However, the marketing documents stated that financing would

require applying for and receiving credit. Yigazu did not provide Ascentium documentation

required for financing and then was unsuccessful in obtaining financing from Partners. As to

defendant’s counterclaim for refund of its deposits on the first two systems, defendant itself alleged

that it asked for credit for its earlier down-payments and thus could not deny that it requested to

apply its earlier deposit to the latter two systems. The court therefore granted summary judgment - 24 - No. 1-19-1894

for plaintiff on its complaint as amended and on all three counts of defendant’s counterclaims. The

order stated that it was “a final order disposing of the case in its entirety” and did not mention the

August 21 court date, either to strike it or to change its purpose from the August 6 order.

¶ 63 F. Judgment.

¶ 64 On August 21, 2019, the court entered judgment for plaintiff for $212,309.55 in an order

reciting that the case was before the court on status of the summary judgment motion.

¶ 65 Defendant filed a motion to set aside or vacate the judgment on August 26, 2019. Noting

that the August 19 summary judgment order stated that it was a final disposition, the August 21

court date had been set earlier for exchange of trial documents, and plaintiff filed no written motion

to prove-up damages, defendant alleged that plaintiff’s counsel “[n]onetheless” attended court on

August 21, without defendant’s counsel present and without contacting defendant’s counsel, and

obtained the judgment. “Counsel for plaintiffs has insisted that counsel for defendants allegedly

failed to contest plaintiff’s motion for summary judgment damages - despite having filed a full

response including attachments and exhibits.” Defendant argued that the judgment “was obtained

without notice and in an ex-parte fashion.”

¶ 66 On September 11, 2019, the court entered and continued defendant’s motion to September

20, 2019. Defendant filed a notice of appeal on September 18, 2019. The court heard and denied

defendant’s motion to vacate the judgment on September 20, 2019.

¶ 67 III. ANALYSIS.

¶ 68 On appeal, defendant contends that the trial court erred in (1) denying defendant’s motion

to dismiss the complaint as amended and granting plaintiff’s motion to dismiss defendant’s fraud

counterclaim, (2) granting plaintiff’s summary judgment motion, and (3) entering judgment ex

parte and not vacating it.

- 25 - No. 1-19-1894

¶ 69 A. Motions to Dismiss.

¶ 70 Defendant first contends that the court erred in denying its section 2-619 motion to dismiss

the complaint as amended and granting plaintiff’s motion to dismiss defendant’s fraud

counterclaim under section 2B of the Act. Plaintiff responds that the court properly denied

defendant’s section 2-619 motion because it did not raise affirmative matters defeating plaintiff’s

claim but challenged the allegations in the claim, and properly dismissed defendant’s section 2B

fraud counterclaim because defendant had abandoned it and section 2B is inapplicable to the sales

at issue. Defendant replies that plaintiff has not addressed defendant’s section 2C counterclaim

and that defendant established its other counterclaims under the Act.

¶ 71 A pleading or portion thereof may be dismissed pursuant to section 2-615 or 2-619. 735

ILCS 5/2-615(a), 2-619(a), (b) (West 2018). A section 2-615 motion challenges the legal

sufficiency of a pleading by alleging defects on its face. Tzakis v. Maine Township, 2020 IL

125017, ¶ 26. A cause of action should not be dismissed under section 2-615 unless it is clearly

apparent that no set of facts can be proved that would entitle the claimant to recovery. Id. A section

2-619 motion admits the legal sufficiency of the pleading but raises a defense that allegedly defeats

it. State ex rel. Leibowitz v. Family Vision Care, 2020 IL 124754, ¶ 31. In reviewing the disposition

of a section 2-619 motion, the key issue is whether the existence of a genuine issue of material fact

should have precluded dismissal or, absent such an issue of fact, whether dismissal is proper as a

matter of law. Rocha v. FedEx Corp., 2020 IL App (1st) 190041, ¶ 80.

¶ 72 On review of the disposition of a section 2-615 or 2-619 motion, we accept as true all well-

pled facts and all reasonable inferences that may be drawn from them, and we construe the

allegations in a complaint or counterclaim in the light most favorable to the claimant. Family

Vision Care, 2020 IL 124754, ¶ 8; Doe v. Coe, 2019 IL 123521, ¶ 20. We review de novo a

dismissal under section 2-615 or 2-619. Ammons v. Canadian National Ry., 2019 IL 124454, ¶ 13. - 26 - No. 1-19-1894

¶ 73 To establish a breach of contract, a plaintiff must prove (1) a valid and enforceable contract

exists, (2) the plaintiff substantially performed, (3) the defendant committed a breach, and (4)

damages resulted. Rocha v. FedEx Corp., 2020 IL App (1st) 190041, ¶ 95.

¶ 74 Section 2B of the Act (815 ILCS 505/2B (West 2018)) governs “a sale of merchandise

involving $25 or more *** made or contracted to be made whether under a single contract or under

multiple contracts, to a consumer by a seller who is physically present at the consumer’s

residence.” For purposes of the Act, a “consumer” is “any person who purchases or contracts for

the purchase of merchandise not for resale in the ordinary course of his trade or business but for

his use or that of a member of his household,” and a “person” includes a corporation and its

employees, officers, directors, and shareholders. 815 ILCS 505/1(c), (e) (West 2018).

¶ 75 Here, we find no error in the court dismissing defendant’s counterclaim under section 2B

of the Act. Defendant is a person and a consumer under the Act in this case, having purchased the

systems at issue to use them rather than resell them in the ordinary course of its business. However,

defendant did not allege that plaintiff or any employee or agent was physically present in Yigazu’s

residence, and we will not interpret “residence” in section 2B to encompass a person’s place of

business. Knowing that persons include businesses such as corporations, the legislature could have

expressly included a consumer’s place of business within the protections of section 2B but did not.

With regards to section 2B’s concern of sales pressure, there is a substantial difference between a

salesperson coming to one’s home and to one’s office or place of business. Moreover, it does not

follow from ordinary language usage, nor from the Act expressly defining persons to include

corporations, that we infer that a corporation’s place of business is its “residence.”

¶ 76 Defendant notes that the Act provides that “consideration shall be given to the

interpretations of the Federal Trade Commission” (815 ILCS 505/2 (West 2018)) and argues that

a regulation of that Commission similar to section 2B encompasses transactions outside a buyer’s - 27 - No. 1-19-1894

home. However, while the Commission’s regulation of “door-to-door sales” indeed encompasses

sale, lease, or rental of consumer goods in a broader range of locations than a buyer’s residence,

it also defines consumer goods significantly more narrowly than the Act, limiting them to goods

“primarily for personal, family, or household purposes.” 16 C.F.R. § 429.0(a), (b) (eff. Mar. 13,

2015). Noting that the transactions at issue here would not be “door-to-door” sales under the

Commission’s regulation, we conclude that said regulation is sufficiently distinguishable from

section 2B of the Act that we will not give it the consideration defendant desires. As the

transactions here did not fall under the ambit of section 2B as a matter of law, the trial court did

not err in concluding that defendant could not state a claim under section 2B.

¶ 77 As to section 2C, defendant did not refer to that statute in its motion to dismiss the

complaint, and plaintiff’s motion to dismiss defendant’s counterclaims was denied except as to

section 2B. Any claim that defendant may have had under section 2C was not disposed of until the

summary judgment, and we shall address it below.

¶ 78 Turning to defendant’s motion to dismiss the complaint under section 2-619, defendant’s

claim of a failure of a condition precedent did not admit the legal sufficiency of plaintiff’s breach

of contract complaint as a section 2-619 motion should. The existence of a valid contract is

elemental to a breach of contract claim, but defendant alleged in its motion that there was no valid

contract between the parties regarding the systems at issue in the complaint because a condition

precedent to forming a contract did not occur. More generally, as the trial court correctly noted, it

must accept the well-pled allegations of the complaint and the parties presented contradicting

affidavits from Yigazu and Maslowski. On the state of the record at the time the court ruled on the

motions to dismiss, the parties had created issues of fact and dismissal was precluded.

- 28 - No. 1-19-1894

¶ 79 B. Summary Judgment.

¶ 80 Defendant also contends that the trial court erred in granting plaintiff’s summary judgment

motion on plaintiff’s complaint and defendant’s counterclaims.

¶ 81 Both plaintiffs and defendants may file for summary judgment. 735 ILCS 5/2-1005(a), (b)

(West 2018). It should be granted only where the pleadings, depositions, admissions, and affidavits

on file show that there is no genuine issue of material fact and the movant is clearly entitled to

judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2018). Summary judgment may be

granted on the issue of liability although there is a remaining issue as to the amount of damages.

Id. A genuine issue of material fact precluding summary judgment exists where material facts are

disputed or reasonable persons may draw different inferences from undisputed facts. Lewis v. Lead

Industries Ass’n, 2020 IL 124107, ¶ 15. Because summary judgment is a drastic means of

disposing of litigation, it should be granted only where the movant’s right is clear and free from

doubt. Id. Therefore, we must construe the pleadings, depositions, admissions, and affidavits

strictly against the movant. Id. We review de novo a grant of summary judgment. Id.

¶ 82 We shall address the summary judgment on plaintiff’s complaint and the summary

judgment on Counts II and III of defendant’s counterclaims, alleging failure of a condition

precedent and “bait and switch” by plaintiff, together as they are closely related. The contract

documents support that the “payment schedule” for the systems at issue was payment within 90

days of delivery or installation. We agree with the trial court that the summary judgment evidence

shows that plaintiff did not promise defendant or Yigazu financing, the heart of defendant’s “bait

and switch” claim. Instead, Yigazu and defendant were informed that financing would require

applying for and receiving credit. The notation “ALL ORDERS ARE SUBJECT TO CREDIT

APPROVAL BY ALMA LASERS” in the price quotations is a double-edged sword: while it links

plaintiff (rather than Ascentium) to extending credit, it also shows that plaintiff’s orders are not - 29 - No. 1-19-1894

simply given financing but subjected to an approval process. Of similar effect is the notation on

the first page of the documents from Wise and Maslowski that “[y]our proposed finance agreement

is subject to credit/document review and approval by Ascentium.” Having been duly informed that

he would have to apply for financing to receive it, Yigazu then did not provide Ascentium

documentation it required for financing. He admitted not giving Ascentium his personal tax return

when requested, and while he testified that he had no return for defendant to provide Ascentium,

he told Ascentium that he would be providing the return. The evidence thus shows that defendant’s

failure to receive financing was not the result of a “bait and switch” by plaintiff nor was there a

failure of a condition precedent to contracts between the parties for the systems at issue.

¶ 83 As to Count I of the counterclaim, demanding refund of the deposit for the first two

systems, defendant’s counterclaim states that “Yigazu also emphasized in the course of these

discussions [for the latter two systems] that he would need to be credited for his down payments

from” the first two systems. (Emphasis added.) The contract documents show that he was indeed

credited on the latter two contracts.

¶ 84 Relatedly, defendant contends on appeal that he has a claim under section 2C of the Act.

While he has not cited that particular statute until now, we acknowledge that he alleged in the trial

court that he had claims under the Act generally. Section 2C of the Act provides in relevant part:

“If the furnishing of merchandise, whether under purchase order or a contract of sale, is

conditioned on the consumer’s providing credit references or having a credit rating

acceptable to the seller and the seller rejects the credit application of that consumer, the

seller must return to the consumer any down payment, whether such down payment is in

the form of money, goods, chattels or otherwise, made under that purchase order or contract

and may not retain any part thereof.” 815 ILCS 505/2C (West 2018).

- 30 - No. 1-19-1894

However, the deposits that were not returned and that were the subject of Count I of defendant’s

counterclaims were for the earlier two systems, where defendant’s credit applications were not

rejected. Specifically, it was only because of the financing defendant received for the first two

systems that $10,000 of the $15,000 in deposits on the first two systems was available to be applied

to the latter two systems. In sum, plaintiff did not retain deposits or down payments “made under

that purchase order or contract” as the “purchase order or a contract of sale” where “the seller

rejects the credit application of that consumer.” 815 ILCS 505/2C (West 2018).

¶ 85 In sum, we find that the trial court did not err in granting summary judgment for plaintiff

on its complaint and defendant’s counterclaims.

¶ 86 C. Entry of Judgment.

¶ 87 Lastly, defendant contends that the trial court erred in entering judgment and not vacating

it because the judgment was entered ex parte, based on an excessive interest rate, and had no proper

basis for computing damages with a fair degree of probability. Plaintiff responds that the court

properly entered judgment in a hearing of which defendant had notice, upon an affidavit not

challenged by defendant, at an interest rate that was not improper.

¶ 88 Section 2-1301(e) of the Code of Civil Procedure provides that the trial court “may on

motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms

and conditions that shall be reasonable.” 735 ILCS 5/2-1301(e) (West 2018). The decision to grant

or deny such a motion is within the court’s sound discretion and will not be reversed absent an

abuse of discretion or a denial of substantial justice. Litvak v. Black, 2019 IL App (1st) 181707, ¶

23. A court abuses its discretion if no reasonable person would take the position it adopted or it

acted arbitrarily or ignored recognized principles of law. Id. Whether substantial justice would be

achieved by vacating a judgment is not subject to precise definition, but relevant considerations

include diligence or the lack thereof, existence of a meritorious defense, severity of the penalty - 31 - No. 1-19-1894

resulting from the judgment, and relative hardships on the parties from granting or denying

vacatur. In re Marriage of Harnack & Fanady, 2014 IL App (1st) 121424, ¶ 45.

¶ 89 Here, as a threshold matter, we have no transcript or equivalent record (see Ill. S. Ct. R.

323 (eff. July 1, 2017)) for August 21, 2019, when the court entered judgment nor September 20,

2019, when it denied vacatur. The appellant – here, defendant – has the burden of presenting a

sufficiently complete record to support its claim of error, and any doubts that arise from an

incomplete record will be resolved against the appellant. In re Linda B., 2017 IL 119392, ¶ 43.

¶ 90 Defendant was well aware of the court’s August 6 order that an August 21 court date would

follow its scheduled (and actual) August 19 ruling on plaintiff’s summary judgment motion. That

date was not stricken in the summary judgment order. Moreover, while the summary judgment

order stated that it was final, it also found for plaintiff on its complaint seeking damages but did

not fix the amount of damages, so that a prove-up or issuance of a money judgment would be

necessary at some point. Diligence or prudence would suggest that defendant’s counsel attend the

August 21 court date under such circumstances even absent a motion seeking prove-up.

¶ 91 As to the damages assessed in the judgment, plaintiff’s summary judgment motion alleged

that defendant owed $208,307.45 as of June 20, 2019, with interest accruing at $64.55 daily, and

supported that allegation with Greer’s affidavit. Defendant’s response to the summary judgment

motion did not challenge this allegation except to argue that plaintiff was not entitled to summary

judgment. Accepting for the moment the $64.55 per diem interest, the judgment of $212,309.55

resulted from a simple calculation that 62 days passed from June 20 to the judgment date of August

21. Alternatively, going back further but calculated just as mechanically, $130,912 was owed on

the invoices for the two systems as of March 8, 2016, the end of the 90-day payment term, and

1261 days passed until judgment was entered.

- 32 - No. 1-19-1894

¶ 92 Turning back to the per diem interest, the terms and conditions of sale in the contracts

provided for an 18% interest rate “or the highest rate permitted by applicable law, whichever is

less.” Simple interest at 18% annually on $130,912 is $23,564 annually or $64.55 daily. Defendant

argued in the trial court that the applicable law is the Interest Act (815 ILCS 205/0.01 et seq. (West

2018)) with a 9% interest rate cap in section 4 (815 ILCS 205/4 (West 2018)) and contends here

that an interest rate above 9% was unlawful. However, “both state and federal courts in Illinois

have concluded that the Illinois Interest Act ‘does not apply to transactions involving

corporations.’ ” Asset Exchange II, LLC v. First Choice Bank, 2011 IL App (1st) 103718, ¶ 21.

This rule is “[b]ased on section 4’s plain meaning” (id.) that “[i]t is lawful to charge, contract for,

and receive any rate or amount of interest or compensation with respect to the following

transactions: (a) [a]ny loan made to a corporation.” 815 ILCS 205/4(1)(a) (West 2018).

“Defendant maintains that the contract at issue involves the sale of *** equipment rather

than a loan, and, therefore, is not exempt from the limitation on interest pursuant to

subsection (a) of the usury statute. As stated above, the general provision of the usury

statute does not apply to transactions involving corporations. Thus, it matters little whether

the transaction at issue is or is not exempt from the general limitation on interest.”

Computer Sales Corp. v. Rousonelos Farms, Inc., 190 Ill. App. 3d 388 (1989).

¶ 93 In sum, we cannot conclude on this record that the trial court abused its discretion in not

vacating the judgment nor that substantial justice was denied when the court entered its judgment.

¶ 94 IV. CONCLUSION.

¶ 95 Accordingly, we affirm the judgment of the circuit court.

¶ 96 Affirmed.

- 33 -