EJ Construction 1 Corp. v. Pellegrino
254 N.E.3d 998
Ill. App. Ct.2024Background
- EJ Construction 1 Corporation bought a used cargo van from William Pellegrino, who allegedly misrepresented the van’s mileage as 103,538 miles when records showed over 600,000 miles.
- EJ Construction sued under the Illinois Uniform Commercial Code (UCC), seeking to revoke acceptance and recover the purchase price.
- Pellegrino denied selling the van to plaintiff and claimed he sold it to another individual prior to plaintiff’s purchase; he also denied being a merchant under the UCC.
- Pellegrino moved to dismiss, arguing that the UCC did not apply to private sales between nonmerchants and the complaint failed to plead required elements.
- The circuit court dismissed the case, holding the UCC applies only to transactions involving at least one merchant. EJ Construction appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Article 2 of the UCC apply to private sales between nonmerchants? | Article 2 applies to all sales of goods, not just those involving a merchant. | UCC does not apply unless at least one party is a merchant. | Article 2 applies to all transactions in goods, merchant status not required. |
| Was the Complaint Legally Sufficient? | The complaint sufficiently states a UCC claim. | Complaint lacks required factual allegations, so insufficient. | Defendant waived this challenge by answering without moving to withdraw and engaging with the facts. |
| Did defendant’s answer preclude later dismissal under Section 2-615? | Yes, by answering, defendant conceded sufficiency or waived objections. | Defendant claimed right to assert a Section 2-615 motion. | Filing answer without seeking withdrawal precludes Section 2-615 challenge. |
Key Cases Cited
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (Ill. 1994) (addresses motion practice standards for 2-615 and 2-619)
- Clemons v. Nissan North America, Inc., 2013 IL App (4th) 120943 (Illinois Appellate Court permits a Section 2-619 motion after an answer, under certain circumstances)
- Adcock v. Brakegate, Ltd., 164 Ill. 2d 54 (Illinois Supreme Court on waiver and complaint sufficiency)
- Green v. Trinity International University, 344 Ill. App. 3d 1079 (motions to dismiss must not present conflicting evidentiary material)