Dreisilker Electric Motors, Inc. v. Rainbow Electric Co.

562 N.E.2d 970, 203 Ill. App. 3d 304, 150 Ill. Dec. 167, 1990 Ill. App. LEXIS 1701
CourtAppellate Court of Illinois
DecidedNovember 1, 1990
Docket2-89-1132
StatusPublished
Cited by40 cases

This text of 562 N.E.2d 970 (Dreisilker Electric Motors, Inc. v. Rainbow Electric Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dreisilker Electric Motors, Inc. v. Rainbow Electric Co., 562 N.E.2d 970, 203 Ill. App. 3d 304, 150 Ill. Dec. 167, 1990 Ill. App. LEXIS 1701 (Ill. Ct. App. 1990).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Dreisilker Electric Motors, Inc., appeals from an order of the circuit court granting summary judgment in favor of defendant, Rainbow Electric Company, on count I of plaintiff’s complaint. Count I alleged that defendant had violated the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 262 et seq.) by issuing to a third party a report which disparaged plaintiff in the performance of its business. The circuit court found that count I of plaintiff’s complaint was barred by the Act’s three-year statute of limitations (111. Rev. Stat. 1989, ch. 121V2, par. 270a(e)). On appeal, plaintiff contends that the discovery rule applies to causes of action filed under the Act and that it filed its complaint in a timely fashion after it discovered it had been injured by defendant’s wrongful conduct. We affirm.

The record before us establishes the following undisputed facts. Plaintiff is an Illinois corporation that is in the business of selling and repairing electric motors. Defendant is an Illinois corporation in the business of repairing electric motors, among other things. In October 1983, plaintiff repaired an electric motor owned by Instrumentalist Company (Instrumentalist), which is not a party to this action. A dispute arose between plaintiff and Instrumentalist over payment of plaintiff’s invoice for the repairs to the motor. Ultimately, Instrumentalist paid plaintiff for the repairs and arranged for the motor to be delivered to defendant for evaluation.

Defendant inspected the motor, performed some repairs on it and returned it to Instrumentalist on November 4, 1983. At Instrumentalist’s request, defendant prepared a written service report dated November 17, 1983, which described the tests and repairs defendant had performed on the motor. Specifically, defendant reported that it had replaced 12 carbon brushes and a bearing.

On July 12, 1984, Instrumentalist sued plaintiff in the circuit court of Cook County, alleging breach of the contract to repair the motor, negligent repair and fraudulent misrepresentation. Instrumentalist attached a copy of defendant’s November 17, 1983, report to its complaint. Plaintiff was served with a copy of the summons and the complaint on July 23, 1984, and its president, Henry Dreisilker, read the complaint and attached report shortly thereafter.

In June 1985, plaintiff deposed James Rohner, president of Instrumentalist, as part of the discovery in Instrumentalist’s lawsuit against plaintiff. In responses to questions posed by plaintiff’s attorney, Rohner testified that the motor and the printing press in which it was installed had been sold to Mall Graphics in Evanston, Illinois, in August or September 1984. Instrumentalist failed to comply in further discovery by refusing to submit its expert witnesses for depositions, and plaintiff obtained summary judgment on Instrumentalist’s complaint. The lawsuit was dismissed with prejudice on August 29, 1986.

Sometime after the dismissal of Instrumentalist’s complaint, plaintiff obtained Mall Graphics’ permission to inspect the motor. Henry Dreisilker testified in a deposition that he opened the motor and observed that 11 of the 12 carbon brushes installed by his company were still inside.

Plaintiff filed a three-count complaint against defendant on September 3, 1987. Pursuant to defendant’s motion, the circuit court struck count II, which alleged common-law fraud, but let stand a prior ruling that counts I and III stated causes of action. Defendant subsequently filed a motion for summary judgment on count I on the ground that the complaint had not been filed within the applicable statute of limitations. The circuit court heard the parties’ arguments and granted the motion. Plaintiff then filed a motion for a voluntary nonsuit of count III with prejudice. The trial court entered two agreed orders on September 29, 1989, granting plaintiff’s voluntary nonsuit of count III, striking the scheduled trial date, and making the dismissal of counts I and II final and appealable. Plaintiff’s timely appeal ensued.

The issues presented on appeal are: (1) whether the circuit court properly granted defendant’s motion for summary judgment on count I of plaintiff’s complaint on the ground that plaintiff’s cause of action was barred by the statute of limitations; and (2) whether this court should impose sanctions upon plaintiff or its counsel for pursuing a frivolous appeal pursuant to defendant’s motion under Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)). We ordered defendant’s motion for sanctions and plaintiff’s response thereto to be taken with the case. The parties’ appellate briefs suggest a subsidiary issue, i.e., whether the so-called discovery rule is applicable to toll the limitations period set forth in section 10a(e) of the Act (Ill. Rev. Stat. 1989, ch. 121V2, par. 270a(e)). In view of our resolution of the first issue above, however, we find it unnecessary to answer this question.

It is well settled in this State that summary judgment is a drastic and extraordinary measure which should be granted by the trial court only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The trial court’s function in considering a motion for summary judgment is to determine whether issues of fact which are material to the dispute exist, but not to try those issues. (Purtill, 111 Ill. 2d at 240.) Summary judgment should be granted by the trial court only when the court is satisfied that the pleadings, affidavits and other supporting evidence in the record present no genuine issue of material fact. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The trial court is obliged to construe the record before it most strictly against the movant and most liberally in favor of the nonmovant. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) Our function in reviewing a trial court’s entry of summary judgment is to determine whether the trial court correctly concluded that there were no genuine issues of material fact and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

Among other things, the Act prohibits a person engaged in business from “disparaging] the goods, services or business of another by false or misleading representation of fact.” (Ill. Rev. Stat. 1989, ch. 1211/2, par. 312(8).) Section 10a(e) provides, “[a]ny action for damages under this Section shall be forever barred unless commenced within 3 years after the cause of action accrued.” Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(e).

Count I of plaintiff’s complaint, filed September 3, 1987, alleges that defendant violated the Act by disparaging plaintiff’s business and services in its November 17, 1983, report to Instrumentalist. Simple arithmetic shows that the complaint was filed nearly four years after defendant committed the complained-of act. These facts would seem to dictate the conclusion that plaintiff’s complaint is barred by the Act’s own explicitly stated three-year limitation period. Plaintiff, however, urges this court to apply the “discovery rule” and hold that the limitation period did not commence until plaintiff “discovered” its injury and the wrongful cause of the injury.

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Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 970, 203 Ill. App. 3d 304, 150 Ill. Dec. 167, 1990 Ill. App. LEXIS 1701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dreisilker-electric-motors-inc-v-rainbow-electric-co-illappct-1990.