                                                                 First Division
                                                                 May 1, 2006

No. 1-05-2120

SHUTKAS ELECTRIC, INC.,                            ) Appeal from
                                                   ) the Circuit Court
     Plaintiff-Appellant,                          ) of Cook County
                                                   )
             v.                                    ) 02 L 13241
                                                   )
FORD MOTOR COMPANY,                                )
                                                   ) Honorable
     Defendant-Appellee.                           ) Stuart Nudelman,
                                                   ) Judge Presiding
     JUSTICE McBRIDE delivered the opinion of the court:

       In May 2001, plaintiff, Shutkas Electric, Inc., purchased a super duty cargo van

manufactured by defendant, Ford Motor Company, for use in its commercial electrical

business. Following several mechanical problems, plaintiff filed a complaint against

defendant under the Magnuson-Moss Warranty Federal Trade Commission

Improvement Act (Act) (15 U.S.C. '2301 et seq. (2000)) seeking damages for breach of

express warranty, breach of implied warranty of merchantability, and revocation of

acceptance. Defendant filed a motion for summary judgment on all counts in plaintiff=s

complaint. On February 24, 2005, the trial court granted defendant=s motion for

summary judgment, finding that the cargo van was not a consumer product as defined

by the Act. Plaintiff filed a motion with the trial court seeking leave to file a second

amended complaint, which the court denied on June 3, 2005.

       Plaintiff appeals, arguing that (1) this court should dismiss the instant appeal as

premature; (2) the trial court erred in granting defendant=s motion for summary judgment

because genuine issue of material fact exists as to whether the cargo van is a

consumer product; and (3) the trial court abused its discretion when it denied plaintiff
1-05-2120

leave to file a second amended complaint.

       Nick Shutkas is the president and sole shareholder of plaintiff. In May 2001,

plaintiff, through Shutkas, purchased a 2001 Ford 760A Commercial Series E350 super

duty cargo van (cargo van) for $25,043.41 from Heller Ford Mercury Sales (Heller), an

authorized Ford dealership. In its amended complaint, plaintiff stated it purchased the

cargo van for use in its electrical contracting business. The cargo van purchased by

plaintiff had two seats, no carpeting in the back, no rear seat, and an empty van

compartment that could be fitted with gang boxes and shelving. Plaintiff purchased the

cargo van Aspecifically for business purposes, since being an electrician necessitated a

van with adequate space to carry his tools and equipment.@ Shutkas installed a tool

gang box, metal shelving for electrical parts, a pipe rack, a rear floor guard, and a wood

shelving unit in the cargo van.

       Plaintiff purchased the cargo van with a Ford 3-year/36,000-mile written

warranty. Shortly after the purchase, plaintiff began to experience problems with the

engine hesitating and emitting a strong exhaust smell, the side doors not closing

properly, and the alignment pulling right. Also, thick smoke would pour from the engine.

Plaintiff took the cargo van to Highland Park Ford for repairs in June 2001. Highland

Park Ford repaired the doors and worked on the engine problems. However, plaintiff

alleged that it continued to experience these engine problems as well as problems with

the paint. In May 2002, plaintiff attempted to revoke its acceptance of the cargo van.

       In October 2002, plaintiff filed a three-count complaint against defendant; alleging

(1) breach of express warranty, (2) breach of implied warranty of merchantability, and

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(3) revocation of acceptance. Plaintiff sought revocation of the purchase as well as

compensatory damages and attorney fees. Defendant filed a motion to dismiss, and in

the alternative, for summary judgment. In March 2003, the trial court granted

defendant=s motion to dismiss under section 2-615 of the Code of Civil Procedure (735

ILCS 5/2-615 (West 2002)), and gave plaintiff leave to file an amended complaint with

the written warranty attached. In April 2003, plaintiff filed its amended complaint, which

raised the same three counts and sought the same relief as the original complaint. All

three counts seek relief under the Act

       In August 2004, defendant filed its renewed motion for summary judgment,

arguing that the cargo van was not a consumer product under the Act, and therefore,

plaintiff was not entitled to any relief under the Act. On February 24, 2005, the trial

court granted summary judgment in favor of defendant and specifically found that the

cargo van does not qualify as a consumer product under the Act.

       On March 28, 2005, plaintiff filed a motion entitled a AMotion to Modify@ the

February 24, 2005 order, but the body of the motion sought leave to file a second

amended complaint. On June 3, 2005, the trial court denied plaintiff=s motion, and on

June 23, 2005, plaintiff filed its notice of appeal.

       Initially, we must determine whether we have jurisdiction to entertain this appeal.

In its jurisdictional statement, plaintiff asserts that we should dismiss the instant appeal

as premature because the orders of February 24, 2005, and June 3, 2005, did not

contain a finding under Supreme Court Rule 304(a) that there is no just reason to delay

the appeal. 155 Ill. 2d R. 304(a). Plaintiff claims that the trial court=s summary

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judgment order did not dispose of all issues before the trial court, and therefore, this

court does not have jurisdiction for this appeal. Plaintiff relies on the trial court=s

language in the order to support her argument. The trial court stated:

              AFord=s renewed motion for summary judgment is granted

              based on the Court=s assessment that the subject vehicle

              does not qualify as a consumer product under the standards

              of the Magnuson-Moss Warranty Act.@

Plaintiff contends that this finding only disposed of her claims under the Act, but left her

state law claims for breach of implied warranty of merchantability and revocation of

acceptance intact.

       We disagree with plaintiff=s contention that the summary judgment order of

February 24, 2005, was not a final order. All three of plaintiff=s counts relied, at least in

some part, on the Act. However, defendant=s motion sought summary judgment on all

three counts, and the trial court=s order explicitly granted defendant=s motion. The

court=s order did not withhold summary judgment for any of plaintiff=s claims. AA

judgment is final if it determines the litigation on the merits so that, if affirmed, nothing

remains for the trial court to do but to proceed with its execution.@ Big Sky Excavating,

Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 233 (2005). AAn order granting

summary judgment is a final order.@ Diggs v. Suburban Medical Center, 191 Ill. App. 3d

828, 836 (1989). Since the trial court=s order granted defendant=s motion for summary

judgment on all counts, the order effectively ended the litigation. The trial court=s basis

for summary judgment does not change the clear language entering summary

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judgment. Therefore, plaintiff=s claim that this appeal is premature and cannot be heard

without a Rule 304(a) finding must fail.

       However, this does not end our consideration as to jurisdiction of this appeal.

Defendant contends that this court does not have jurisdiction to consider the portion of

the appeal related to the February 24, 2005, summary judgment order because plaintiff

failed to file a timely notice of appeal. Defendant maintains that plaintiff=s motion to

modify the order was merely a motion for leave to file a second amended complaint and

as such is not a postjudgment motion as contemplated by Supreme Court Rule 303

(155 Ill. 2d R. 303) and it did not toll the time for plaintiff to file a notice of appeal.

         Supreme Court Rule 303 requires that the notice of appeal must be filed with

the clerk of the circuit court within 30 days after the entry of final judgment, or if a timely

posttrial motion directed against the final judgment has been filed, the notice of appeal

must be filed within 30 days of the entry of the order disposing of the last postjudgment

motion directed against the judgment. 155 Ill. 2d R. 303(a)(1). Here, plaintiff filed a

motion to modify the February 24, 2005, order, but the substance of the motion was not

directed at the order. Rather, the motion sought leave to file a second amended

complaint.

       A postjudgment motion must include a request for at least one of the forms of

relief specified in section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203

(West 2002)). Beck v. Stepp, 144 Ill. 2d 232, 240 (1991). Section 2-1203 provides:

                      AIn all cases tried without a jury, any party may, within

               30 days after the entry of the judgment or within any further

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              time the court may allow within the 30 days or any

              extensions thereof, file a motion for a rehearing, or a retrial,

              or modification of the judgment or to vacate the judgment or

              for other relief.@ 735 ILCS 5/2-1203(a) (West 2002).

       AThe >other relief= referred to in section 2-1203 must be similar in nature to the

other forms of relief specified in that section.@ Vanderplow v. Krych, 332 Ill. App. 3d 51,

53 (2002). Illinois courts have held that a motion for leave to amend a complaint is not

a motion directed at the final judgment within the meaning of Rule 303(a)(1) or

encompassed within relief provided for by section 2-1203. Andersen v. Resource

Economics Corp., 133 Ill. 2d 342, 346 (1990); Fultz v. Haugan, 49 Ill. 2d 131, 135-36

(1971); Vanderplow, 332 Ill. App. 3d at 53-54.

       In the instant appeal, plaintiff=s motion is titled AMotion to Modify Order Entered

February 24, 2005 Pursuant to 735 ILCS 5/2-1203.@ However, the relief requested in

the body of the motion is to add Nick P. Shutkas as a party plaintiff and for leave to file a

second amended complaint. AThe nature of a motion is determined by its substance

rather than its caption.@ J.D. Marshall International, Inc. v. First National Bank of

Chicago, 272 Ill. App. 3d 883, 888 (1995). A proper section 2-1203 motion specifically

seeks at least one of the forms of relief set out in section 2-1203, such as, a rehearing,

a retrial, a modification or vacation of the judgment, or other similar relief, and specifies

the grounds warranting the relief requested. Vanderplow, 332 Ill. App. 3d at 58-59; see

also Robertson v. Winnebago County Forest Preserve District, 301 Ill. App. 3d 520, 523

(1998). Plaintiff=s motion is, for all intents and purposes, a motion for leave to file a

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second amended complaint, and for this court to find otherwise Awould be to blindly

adhere to nomenclature at the expense of reality.@ Andersen, 133 Ill. 2d at 347.

       Accordingly, we find that plaintiff=s motion to modify was not a postjudgment

motion under section 2-1203 and did not toll the time within which the notice of appeal

must be filed. Plaintiff=s notice of appeal was filed June 23, 2005, which is significantly

past the 30 days allowed under Rule 303. Therefore, we do not have jurisdiction to

consider any issues relating to the February 24, 2005, summary judgment order.

       Notwithstanding this finding, the notice of appeal was filed within 30 days of the

trial court=s denial of plaintiff=s motion for leave to file a second amended complaint, and

this issue is properly before this court. Plaintiff argues that the trial court abused its

discretion when it denied plaintiff=s motion for leave to file a second amended complaint

because the proposed second amended complaint cured any defects under the Act.

Whether to grant a motion to amend pleadings rests within the discretion of the trial

court, and a reviewing court will not reverse a trial court's decision absent an abuse of

that discretion. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467 (1992).

       Specifically, plaintiff=s second amended complaint added Nick P. Shutkas as a

plaintiff in addition to his business entity, and Heller as a defendant. The complaint then

added the following statement to paragraph four: AAlthough [Shutkas] caused [Shutkas

Electric, Inc.,] to purchase said vehicle for [Shutkas=s] use in his business, said vehicle

was purchased by [Shutkas] also for his personal and household use.@ The proposed

complaint also raised four additional counts; counts IV through VI raised identical claims

as counts I through III, but were brought by Shutkas individually, while count VII alleged

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consumer fraud against Heller. Plaintiff contends that these amendments are sufficient

to make the cargo van a Aconsumer product@ within the meaning of the Act. Defendant

maintains that these amendments do not cure any defects because the cargo van

remains the same regardless of what use is alleged.

      Pursuant to section 2-1005(g), the trial court shall permit pleadings to be

amended upon just and reasonable terms before or after the entry of summary

judgment. 735 ILCS 5/2-1005(g) (West 2002). In considering whether the trial court

has abused its discretion in denying plaintiff=s motion for leave to file a second amended

complaint, we look to the following four factors: whether (1) the proposed amendment

would cure the defective pleading; (2) other parties would sustain prejudice or surprise

by virtue of the proposed amendment; (3) the proposed amendment is timely; and (4)

previous opportunities to amend the pleading could be identified. Loyola Academy v. S

& S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992).

      Here, plaintiff=s statement in its proposed second amended complaint that the

cargo van was purchased for personal and household use is counter to Shutkas=

position in his amended complaint as well as his admissions in his sworn interrogatory

and deposition testimony, which were attached to defendant=s renewed motion for

summary judgment. As this court stated in Lajato v. AT&T, Inc., 283 Ill. App. 3d 126,

139 (1996), Aeven if the complaint were amended to more specifically allege [Shutkas=

use of the cargo van for personal and household use], the allegations of the complaint

would be superseded by the extrinsic facts already submitted which, as noted, would

militate for summary judgment.@ See also Werckenthein v. Bucher Petrochemical Co.,

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248 Ill. App. 3d 282 (1993) (where allegations in nonmovant's complaint are

contravened by movant's extrinsic submissions in summary judgment proceedings,

extrinsic submissions control); East Side Fire Protection District v. City of Belleville, 221

Ill. App. 3d 654 (1991) (nonmovant must controvert proofs offered by movant in support

of motion for summary judgment and cannot merely rest on pleadings). Plaintiff fails to

acknowledge this contradiction and does not cite any authority where previous sworn

statements can be superseded by a later pleading.

       When considering whether the plaintiff=s proposed amendment would cure the

deficiency, the Lajato court reasoned that this question was irrelevant since the

defendant Asucceeded in its motion for summary judgment, not because plaintiff's

complaint was improperly pleaded, but because the evidence presented at summary

judgment shows no genuine issue of material fact regarding the allegations in the

complaint.@ Lajato, 283 Ill. App. 3d at 140.

       Here, the trial court determined that summary judgment was proper because it

concluded that the cargo van did not qualify as a consumer product under the Act.

Plaintiff believes that the mere statement that the cargo van was used for personal and

household use will make it a consumer product. We disagree with plaintiff=s conclusion.

Aside from plaintiff=s conclusory statement, which we note is unsupported by any

specific facts, in the second amended complaint, the record indicates that the cargo van

was purchased for business purposes. In considering defendant=s summary judgment

motion, the trial court was apprised of plaintiff=s admissions that the cargo van was

purchased for business purposes. Plaintiff=s second amended complaint cannot

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overcome the sworn statements in the record. The trial court was within its discretion to

deny plaintiff leave to file a second amended complaint that contradicted the entire

record, including sworn deposition statements and interrogatories. Therefore, we do not

find that the trial court abused its discretion in denying plaintiff=s motion.

       Based on the foregoing reasons, we dismiss the portion of plaintiff=s appeal

relating to the February 24, 2005, order for lack of jurisdiction and affirm the June 3,

2005, decision of the circuit court of Cook County.

       Appeal dismissed in part; affirmed in part.

       CAHILL, P.J. and BURKE, J., concur.




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