                                  Illinois Official Reports

                                          Appellate Court



                  Rohr Burg Motors, Inc. v. Kulbarsh, 2014 IL App (1st) 131664



Appellate Court              ROHR BURG MOTORS, INC., d/b/a Bob Rohrman’s Schaumburg
Caption                      Ford, Plaintiff and Counterdefendant-Appellee, v. BRUCE
                             KULBARSH, Defendant and Counterplaintiff-Appellant.



District & No.               First District, First Division
                             Docket No. 1-13-1664


Filed                        August 25, 2014


Held
(Note: This syllabus         In an action arising from defendant’s purchase of a used car from
constitutes no part of the   plaintiff dealership that had been involved in a major accident,
opinion of the court but     contrary to plaintiff’s representations, the trial court’s order entering
has been prepared by the     summary judgment dismissing defendant’s counterclaims against
Reporter of Decisions        plaintiff and his affirmative defenses to plaintiff’s complaint was
for the convenience of
                             affirmed, since the record showed that upon the discovery of the
the reader.)
                             problem with the car defendant purchased, the parties entered into a
                             release agreement under which plaintiff agreed to refund defendant’s
                             money, pay off the loan he obtained to pay the balance of the purchase
                             price, and basically make defendant whole and defendant agreed to
                             return the vehicle, and despite several problems in connection with
                             checks tendered by plaintiff and defendant’s temporary refusal to
                             return the vehicle, the parties’ agreement was ultimately performed.


Decision Under               Appeal from the Circuit Court of Cook County, No. 10-M3-3963; the
Review                       Hon. Sandra Tristano, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                 Law Office of Sheila A. Genson, Ltd., of Schaumburg, (S.A. Genson,
     Appeal                     of counsel), and Zane D. Smith & Associates, of Chicago (Zane D.
                                Smith, of counsel), for appellant.

                                William G. Hutul, P.C., of Carol Stream (William G. Hutul, of
                                counsel), for appellee.

     Panel                      JUSTICE CUNNINGHAM delivered the judgment of the court, with
                                opinion.
                                Justices Hoffman and Delort concurred in the judgment and opinion.

                                                   OPINION

¶1         Defendant and counterplaintiff-appellant Bruce Kulbarsh (Kulbarsh) appeals from the trial
       court’s order of April 17, 2013, granting summary judgment dismissing his counterclaims
       against plaintiff and counterdefendant-appellee Rohr Burg Motors, Inc., d/b/a Bob Rohrman’s
       Schaumburg Ford (Rohr Burg), and dismissing Kulbarsh’s first four affirmative defenses to
       Rohr Burg’s complaint against him. Kulbarsh argues that: (1) the trial court erred in finding
       that Kulbarsh’s counterclaims were barred by operation of a release contained in a written
       agreement between the parties; and (2) the affirmative defenses were not subject to summary
       judgment.

¶2                                          BACKGROUND
¶3         This appeal arises from a dispute between the buyer of an allegedly damaged used car and
       the dealership that sold him the vehicle. In July 2010, Kulbarsh visited a car dealership in
       Schaumburg, Illinois, known as Bob Rohrman’s Schaumburg Ford (Schaumburg Ford), which
       is operated by Rohr Burg. According to Kulbarsh, he spoke to sales personnel at Schaumburg
       Ford and expressly communicated that he only wished to purchase a vehicle without any
       history of collisions. Sales personnel at Schaumburg Ford showed Kulbarsh a 2010 Ford
       Mustang convertible (the vehicle). Interested in the vehicle, Kulbarsh requested that the
       dealership show him the corresponding vehicle history reports. Kulbarsh was provided a report
       issued by CarFax dated June 25, 2010. The CarFax report indicated that the vehicle had
       originally been purchased in May 2009 and stated there were “[n]o accidents or damage
       reported to CarFax.” Kulbarsh asked sales personnel to show him an AutoCheck vehicle
       history report, but he was told such a report was not available.
¶4         Kulbarsh agreed to purchase the vehicle for the price of $19,600 and entered into a sales
       contract dated July 6, 2010.1 Kulbarsh tendered a down payment of $4,000. The remainder of
       the purchase price was financed through a loan from American Eagle Bank, which is not a
       party to this action.


           The sales contract states that the vehicle was being “[s]old as is, with all faults.” Kulbarsh signed
             1

       below the accompanying statement: “I hereby make this purchase knowingly without any guarantee,
       expressed or implied, by this dealer or his agent.”

                                                       -2-
¶5       In September 2010, approximately two months after purchasing the vehicle, Kulbarsh
     developed new concerns about the vehicle’s history. He brought the vehicle to another car
     dealership where he had previously purchased vehicles. Employees at that dealership
     examined the vehicle and told Kulbarsh their suspicion that the vehicle had sustained prior
     damage. An employee of that dealership obtained an AutoCheck report for the vehicle, which
     indicated that the vehicle had frame damage due to a “major accident.”
¶6       On September 3, 2010, Kulbarsh retained an attorney, Andy Norman, in order to seek a
     rescission of the purchase of the vehicle from Schaumburg Ford. Kulbarsh returned to the
     dealership and complained that he had been sold a damaged car. After discussing his complaint
     with the Schaumburg Ford salesperson who had sold him the vehicle, an agreement was
     reached under which Kulbarsh would return the car and the dealership would refund the
     purchase price as well as pay off the American Eagle Bank loan. This arrangement was
     reflected in a letter to Kulbarsh from Rohr Burg dated September 8, 2010 that acknowledged
     Kulbarsh’s concern regarding “a possible frame damage incident that your vehicle may have
     sustained” and offered: “If you are not completely satisfied please return the vehicle to
     Schaumburg Ford for a full refund including the interest that you have paid since the time of
     purchase.”
¶7       The following day, September 9, 2010,2 Kulbarsh and Rohr Burg executed a document
     entitled “General Release.” Kulbarsh testified that he was advised by his legal counsel at the
     time he signed the document. The General Release provides:
             “I, Bruce D. Kulbarsh *** in reference to the purchase of a 2010 Ford Mustang *** on
             July 6, 2010, do hereby accept $21802.00, the repurchase amount and rescission of the
             contract, due to my concerns associated with the fact of a possible frame damage
             reported on an Autocheck Report of said vehicle. It is also understood that I, Bruce D.
             Kulbarsh do hereby acknowledge, remise, release, and forever discharge Rohr-burg
             Motors Inc. DBA Bob Rohrman Schaumburg Ford *** from any and all obligations of
             any kind and nature that I may have against said Rohr-burg Motors Inc. *** and any
             and all other related, parent and/or subsidiary corporations if any because of anything
             done or omitted to be done by them from the beginning of the world to date hereof. It is
             hereby agreed by both parties that said vehicle has been returned in the same condition
             for which it was purchased. The Undersigned intends hereby to release all unknown
             and unanticipated claims, if any. In signing this release, the undersigned does not rely
             upon any representations made by any persons or party or Agent or the Agent of any
             person or party hereby released.”
     The document was signed by Kulbarsh as well as by Mike Sabzali, a general manager at
     Schaumburg Ford. Following the language noted above, the General Release contains
     handwritten language certifying that American Eagle Bank had confirmed to Sabzali that the
     “payoff figure” for the loan on the vehicle was $17,731.45, and that “Schaumburg Ford insures
     full and complete payoff of the indebtedness” to American Eagle Bank.
¶8       According to Kulbarsh, after executing the General Release on September 9, 2010, Sabzali
     showed him a check made out to Kulbarsh for the refund of his down payment. However,

        2
          The typewritten date recited in the General Release is September 8, 2010; however, the notary’s
     signature indicates the document was executed on September 9, 2010, and Kulbarsh’s deposition
     testimony confirmed that the document was signed on September 9, 2010.

                                                  -3-
       Sabzali told him that Schaumburg Ford “need[ed] two signatures to deposit” the check and that
       Sabzali needed to obtain another signature on the check before it would be valid. Sabzali thus
       asked Kulbarsh to come back to the dealership the next day and “they would have the check
       ready” for Kulbarsh. Kulbarsh maintained possession of the vehicle pending receipt of the
       check.
¶9          Kulbarsh returned with the vehicle to the dealership the next day, September 10, 2010, and
       was given a check in the amount of $4,325.75. After receiving the check, Kulbarsh took off the
       license plates from the vehicle and left it at Schaumburg Ford. Later on the same date,
       Kulbarsh brought the check to a Chase bank where he had an account and attempted to deposit
       it. However, the bank told Kulbarsh the check could not be deposited, as it was “NSF” due to
       insufficient funds. After the check was declined Kulbarsh called Schaumburg Ford, and
       another salesperson from the dealership (whose name Kulbarsh could not recall) met him at the
       Chase bank. According to Kulbarsh, after the bank told the Schaumburg Ford salesperson that
       the check was declined as “NSF,” the salesperson agreed to give Kulbarsh the vehicle back.
       Kulbarsh and the salesperson returned to the dealership, where Kulbarsh put his license plates
       back on the vehicle and drove the vehicle home.
¶ 10        Kulbarsh returned to the same Chase bank “the next day or so” to inquire about the check.
       At that second visit, the check cleared and the full amount of $4,325.75 was deposited into
       Kulbarsh’s account. Thus, within a few days after signing the General Release, Kulbarsh
       received the refund of his down payment on the vehicle. However, Kulbarsh did not return the
       vehicle after this check was deposited.
¶ 11        With respect to the repayment of the car loan contemplated by the General Release,
       American Eagle Bank sent Kulbarsh a letter dated September 13, 2010, which stated: “Please
       accept this letter as proof that American Eagle Bank has received a payoff from Schaumburg
       Ford on your account *** in the amount of $17,731.45. Your account will be closed as of
       today, and your paid papers will be sent to you in 21 days.” Despite receiving this letter,
       Kulbarsh doubted that American Eagle Bank had been paid off by Schaumburg Ford, as he did
       not know “if the check was any good” or “if the check ever went through.” Kulbarsh
       acknowledged at his deposition that he later spoke to personnel at American Eagle Bank, who
       told him the check had been deposited, but Kulbarsh maintained that the bank “couldn’t verify
       that it was actually paid off in full,” because he believed the check “could still come back bad
       at any time.”
¶ 12        Kulbarsh did not return the vehicle even after depositing the $4,325.75 check refunding his
       down payment and after receiving the letter from American Eagle Bank confirming payoff of
       the car loan. In a letter dated September 30, 2010, Rohr Burg demanded that Kulbarsh return
       the vehicle. The letter to Kulbarsh, signed by Mark J. Battista as director of the Bob Rohrman
       Auto Group, stated that “you have failed to return the above mentioned vehicle associated with
       the agreement both written and verbally. Please accept this as our formal demand for the return
       of our property the 2010 Ford Mustang due to the fact that you are in breach of our agreement.”
       Kulbarsh did not return the vehicle.
¶ 13        On October 22, 2010, Battista, who is not an attorney, filed a complaint on behalf of Rohr
       Burg in the municipal department of the circuit court of Cook County. The complaint named
       both Kulbarsh and his attorney, Andy Norman, as defendants. Battista filled out a “Pro Se
       Complaint” form provided by the court and attached a separate document titled “Complaint”
       detailing the history of Kulbarsh’s purchase, the execution of the General Release, and the

                                                  -4-
       parties’ subsequent communications. The complaint alleged that Kulbarsh had wrongfully
       retained the vehicle despite Rohr Burg’s refund of Kulbarsh’s down payment and payment of
       the American Eagle Bank loan. The complaint made no mention of any check to Kulbarsh
       being declined due to nonsufficient funds, but rather alleged that Kulbarsh “immediately
       cashed the Schaumburg Ford check and retains the money he paid for the car which was
       returned to him.” The complaint alleged that Kulbarsh committed “a conversion of [Rohr
       Burg] property.” The complaint “demand[ed] damages for breach of agreement, conversion,
       [and] trespass to chattel, as the vehicle is being diminished in value” and Kulbarsh was “being
       unjustly enriched by using a car he has not paid for.”
¶ 14        On November 12, 2010, Kulbarsh filed a handwritten pro se answer to Rohr Burg’s
       complaint claiming he had been “defrauded by Schaumburg Ford/Rohr Burg Motors into
       buying a car that they knew had major unibody damage and was unsafe to drive.” The answer
       claimed that “[w]hen [Rohr Burg] offered to buy the car back, *** the check they gave me was
       N.S.F. [nonsufficient funds] as was the payoff check on the loan.” Kulbarsh’s answer
       acknowledged “[t]hey have since covered the first check, but have refused to verify the loan
       payoff check,” adding that “[w]e are holding the car until then.”
¶ 15        According to Kulbarsh, when the parties first appeared in court on November 15, 2010, the
       trial court directed Kulbarsh to return the vehicle.3 Later that day Kulbarsh and his mother
       took the vehicle and met with Sabzali and Battista at another car dealership, a Kia dealership,
       also operated by Rohr Burg. According to Kulbarsh, Sabzali demanded an additional $3,000
       from Kulbarsh in addition to return of the vehicle. Kulbarsh refused to pay this amount but left
       the vehicle at the Kia dealership.4
¶ 16        Rohr Burg retained counsel, Frank Savaiano of the law firm Savaiano & Spear. On January
       11, 2011, Andy Norman, the attorney who had represented Kulbarsh with respect to the
       General Release, moved to dismiss the complaint’s allegations against him. By consent of the
       parties, the case was dismissed as to Norman on March 9, 2011.
¶ 17        Kulbarsh, again acting pro se, filed a verified answer on April 29, 2011 in which he stated
       that Rohr Burg had been in possession of the vehicle “since January 2011.” On May 19, 2011,
       Kulbarsh filed counterclaims against Rohr Burg asserting breach of contract, violation of the
       Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815
       ILCS 505/1-12 (West 2010)), and intentional infliction of emotional distress, as well as
       affirmative defenses of fraud, mistake and unclean hands. The counterclaims alleged, among
       other things, that the parties’ agreement to refund the purchase price in exchange for return of
       the vehicle was breached because the “refund check” given to Kulbarsh was “invalid.” On June
       16, 2011, Rohr Burg, through its counsel, moved to strike Kulbarsh’s affirmative defenses and
           3
            The record on appeal contains a motion call order dated November 15, 2010 setting a briefing
       schedule, but does not indicate whether the trial court instructed Kulbarsh to return the vehicle at that
       time. At oral argument on its motion for summary judgment, Rohr Burg’s counsel asserted that the car
       was not returned until a later date.

           4
             The parties dispute whether Kulbarsh told Rohr Burg that he was leaving the vehicle at the Kia
       dealership. Kulbarsh claims to have informed the dealership’s manager prior to leaving the vehicle.
       Rohr Burg claims that Kulbarsh did not inform dealership personnel about the origin of the car and thus
       it was towed away as an abandoned vehicle. However, that factual dispute is immaterial to the merits of
       this appeal.

                                                       -5-
       counterclaims. On July 20, 2011, Kulbarsh’s response to that motion requested leave to amend
       his pleading, which was granted.
¶ 18       Kulbarsh retained counsel, who appeared in the action on August 2, 2011. On September
       28, 2011, Kulbarsh filed amended counterclaims and affirmative defenses. The first two
       affirmative defenses, fraud and misrepresentation, alleged that Rohr Burg knowingly
       “misrepresented a material fact in that it stated it was giving [Kulbarsh] a check that was
       negotiable” when “Rohr Burg knew there were not enough funds in the account for the check
       to clear.” The third affirmative defense alleged that “Rohr Burg breached the written contract”
       in the General Release “by failing to give [Kulbarsh] a check that was negotiable,” and that
       Rohr Burg “voided” the contract by “giving the Vehicle back” to Kulbarsh.
¶ 19       The fourth affirmative defense states: “Upon the title being sent to Rohr Burg and the
       money being refunded, [Kulbarsh] returned the vehicle.” In that defense, Kulbarsh
       acknowledged that he had received his refund of the purchase price and that Rohr Burg had
       paid off the car loan: “After the written contract was voided, Rohr Burg again submitted two
       checks. These checks cleared; that is, [Kulbarsh’s] loan to the bank had been repaid, and the
       Rohr Burg check made payable to [Kulbarsh] for the funds that he had used to buy the vehicle
       had cleared. The title to the vehicle was sent by the Bank to Rohr Burg, and thereafter
       [Kulbarsh] *** returned the vehicle.”
¶ 20       In the same pleading, Kulbarsh asserted three counterclaims: breach of contract, fraud, and
       violation of the Consumer Fraud Act. Each of these counterclaims was based on allegations
       that Schaumburg Ford had concealed or made misrepresentations to Kulbarsh concerning the
       vehicle’s prior collision damage at the time of his July 2010 purchase.
¶ 21       Rohr Burg filed a motion to strike and dismiss Kulbarsh’s affirmative defenses and
       counterclaims on October 18, 2011. With respect to the counterclaims, Rohr Burg’s primary
       argument was that the General Release barred any claims related to the purchase of the vehicle.
       Rohr Burg’s motion to dismiss further noted that Kulbarsh’s fourth affirmative defense
       admitted that Kulbarsh had received “the funds called for by the General Release.”
¶ 22       As to Kulbarsh’s affirmative defenses, Rohr Burg argued that the defenses of fraud and
       misrepresentation “do[ ] not defeat any of the claims set forth in [Rohr Burg’s] complaint, but
       rather seek to reduce the amount that may be recovered.” The motion again noted that
       Kulbarsh’s “fourth affirmative defense make[s] it clear that all payments called for in the
       General Release were in fact made,” and that Kulbarsh had “admitted *** that he had in fact
       received the funds in relation to the check that [Kulbarsh] is alleging constituted fraud.” Rohr
       Burg argued that the third affirmative defense, which was also premised on the initially
       dishonored check, should fail for the same reason. With respect to the fourth affirmative
       defense–that Kulbarsh had returned the vehicle after receiving the refund checks–Rohr Burg
       argued that this was “merely a denial of the allegation contained in [Rohr Burg’s] complaint”
       and was not a valid affirmative defense.
¶ 23       In response, Kulbarsh’s brief to the trial court argued that his first three affirmative
       defenses were appropriate as defenses to enforcement of the contract in the General Release.
       With respect to the fourth affirmative defense, Kulbarsh’s brief stated: “The Affirmative
       Defense is that upon entering into an agreement, Rohr Burg Motors failed to comply with its
       terms by failing to give [Kulbarsh] a negotiable check. Rohr Burg Motors then gave the
       Vehicle back to [Kulbarsh]. As such, there was no written agreement anymore. However, there


                                                  -6-
       was an oral agreement that the Parties entered into. That is, when Rohr Burg Motors gave
       [Kulbarsh] a negotiable check that cleared, the Vehicle was returned.”
¶ 24       Rohr Burg’s reply argued that “[e]ven if the alleged delay in obtaining the funds” due to a
       nonnegotiable check “did make the agreement voidable, [Rohr Burg’s] payment of all funds
       called for *** and [Kulbarsh’s] acceptance of said funds establishes that the agreement was not
       in fact voided in this case.” Rohr Burg argued that Kulbarsh’s fourth affirmative defense
       “establish[ed] that [Rohr Burg] did abide by the terms and conditions of the agreement,” since
       that affirmative defense “admits that the checks [Kulbarsh] received from [Rohr Burg] cleared
       and that the loan on the vehicle was satisfied.” Rohr Burg’s reply also reiterated its argument
       that all of the counterclaims were waived by the General Release.
¶ 25       On January 11, 2012, the trial court denied Rohr Burg’s motion to strike Kulbarsh’s
       amended affirmative defenses and amended counterclaims. The parties conducted discovery,
       and Kulbarsh was deposed on October 28, 2012. On January 22, 2013, Rohr Burg moved for
       summary judgment with respect to Kulbarsh’s counterclaims and the first four affirmative
       defenses, again arguing that they were barred by the General Release. Rohr Burg noted
       Kulbarsh’s deposition testimony that he had received the payment called for by the General
       Release. Rohr Burg’s motion attached as exhibits the American Eagle Bank letter
       acknowledging payoff of the loan, copies of the checks from Rohr Burg to Kulbarsh and
       American Eagle Bank, and an affidavit from Schaumburg Ford’s comptroller attesting that “no
       check has ever been returned for insufficient funds” or had not been fully negotiable at the time
       that it was written.
¶ 26       Rohr Burg’s summary judgment motion further argued that, even assuming that the check
       to Kulbarsh had initially been denied as nonnegotiable, “the agreement would have been at
       best voidable by Kulbarsh.” However, instead of voiding it, Kulbarsh “reaffirmed the
       agreement when he subsequently cashed the check and retained the funds relating thereto.”
       Moreover, as each of the first four affirmative defenses concerned the alleged failure to
       provide a negotiable check, Kulbarsh’s “admi[ssion] that he received the funds that he had
       been promised and that the bank had been paid” demonstrated that Rohr Burg “fully performed
       under the terms of the release [and] Kulbarsh’s claims in relation thereto must be rejected.”
¶ 27       Kulbarsh’s opposition to the summary judgment motion attacked the validity of the
       General Release. First, Kulbarsh claimed that he received no consideration in exchange for his
       agreement to release any claims. Although the General Release stated that Kulbarsh agreed to
       accept “the repurchase amount and rescission of the contract,” Kulbarsh argued that this was
       consideration only for his agreement to return the vehicle, not for his release of claims.
¶ 28       Kulbarsh alternatively argued that if the release was valid with respect to Kulbarsh, it
       should also be read to preclude Rohr Burg from asserting any claims against Kulbarsh.
       Kulbarsh relied on the General Release’s language that “[t]he Undersigned intends her[e]by to
       release all unknown and unanticipated claims.” Kulbarsh argued that since a representative of
       Rohr Burg had also signed the General Release, Rohr Burg was also the “undersigned” and
       thus the release provision applied against Rohr Burg to prevent it from asserting claims against
       Kulbarsh.
¶ 29       Kulbarsh separately argued that the release was “voided” and any obligations of Kulbarsh
       were “extinguished” when Rohr Burg breached the agreement by giving him a nonnegotiable
       check. According to Kulbarsh, Rohr Burg had acknowledged that the General Release had
       been voided when its salesperson gave Kulbarsh a ride from the Chase bank back to the

                                                   -7-
       dealership and allowed Kulbarsh to leave the dealership with the vehicle. Kulbarsh contended
       that by the parties’ conduct, “any obligations that the Parties had under the ‘General Release’
       no longer existed” and any subsequent conduct involving the vehicle was based on oral
       agreement.
¶ 30        Rohr Burg’s reply argued that the $21,802 cited in the General Release and rescission of
       the initial purchase contract constituted consideration supporting Kulbarsh’s release of claims.
       Rohr Burg noted that the General Release specifically referred to Kulbarsh’s “concerns
       associated with the fact of a possible frame damage” to the vehicle, indicating the General
       Release expressly contemplated claims related to the condition of the vehicle. Rohr Burg also
       disputed Kulbarsh’s contention that the release could be construed to bar Rohr Burg’s lawsuit.
       With respect to the argument that the parties had treated the release as null and void, Rohr Burg
       denied that it had issued any bad checks but noted that Kulbarsh admitted he eventually cashed
       the refund check. Rohr Burg thus argued that, even assuming its check was initially
       nonnegotiable, “by cashing the checks and retaining the funds Kulbarsh reaffirmed the
       release.”
¶ 31        On April 17, 2013, the trial court heard oral argument on Rohr Burg’s motion for summary
       judgment. Kulbarsh’s counsel argued the release language was unenforceable due to lack of
       consideration because the payment to Kulbarsh called for by the General Release was only
       consideration for the return of the vehicle. The trial court rejected this argument and found that
       there was consideration supporting the release: “There are obligations of both sides here *** it
       is an exchange for value. You get the car back, *** and the other side gets the money back.”
       The court also rejected the argument that the release could operate to bar Rohr Burg from suing
       Kulbarsh to enforce the agreement, recognizing that “[y]ou can sue on a release.” The trial
       court explained that since Kulbarsh did not return the vehicle as called for by the agreement,
       “the plaintiff here, the dealership, had to sue on the obligations contained in this contract,
       which is a release.”
¶ 32        Kulbarsh’s counsel alternatively argued that even if the release was a valid contract,
       “[Rohr Burg] breached the contract by giving [Kulbarsh] a bad check.” As the parties disputed
       whether a nonnegotiable check had ever been issued, Kulbarsh’s counsel argued this
       constituted an issue of fact precluding summary judgment. However, as Kulbarsh did not
       dispute that he subsequently received the funds, the court found that whether the check was
       initially declined did not present a material issue of fact: “[F]rankly, I don’t think that there is
       an issue of fact as to whether this check was NSF. This is a major car dealer, a check given on
       a major car dealer’s account that did clear within the week.” The trial court concluded “that
       there is no issue of fact that would defeat summary judgment” on Kulbarsh’s counterclaims
       and first four affirmative defenses.
¶ 33        After the ruling, Kulbarsh’s counsel asked the trial court: “How can you have a motion for
       summary judgment on affirmative defenses?” The trial court responded: “The affirmative
       defenses do not relate to the underlying case here which is violation or breach of the waiver
       agreement, the agreement that this lawsuit is based on. Defendant waived these claims, plain
       and simple. *** He got money, he did not return the vehicle.” After stating its ruling, the trial
       court also granted Kulbarsh’s counsel’s request for “[Rule] 304(a) language” in the order. The
       written order of April 17, 2013 thus states: “Pursuant to Supreme Court Rule 304(a) this matter
       is final and appealable.” Kulbarsh filed a timely notice of appeal on May 16, 2013.


                                                    -8-
¶ 34                                             ANALYSIS
¶ 35        At the outset, we address the argument set forth in Rohr Burg’s appellate brief which
       asserts a lack of jurisdiction by this court because the trial court’s order did not make a
       sufficient, express written finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
       2010). That rule provides: “If multiple parties or multiple claims for relief are involved in an
       action, an appeal may be taken from a final judgment as to one or more but fewer than all of the
       parties or claims only if the trial court has made an express written finding that there is no just
       reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Feb. 26,
       2010). That rule is implicated here, since Rohr Burg’s complaint remained pending
       notwithstanding the order granting summary judgment with respect to Kulbarsh’s
       counterclaims and affirmative defenses. While Rohr Burg acknowledges that the trial court’s
       summary judgment order cited Rule 304(a) and found the order “final and appealable,” Rohr
       Burg argues that this is insufficient because “the order does not make an express written
       finding of both enforceability and appealability.” Rohr Burg claims that “because the judgment
       does not follow the strict language of the rule, this appeal must be dismissed for lack of
       jurisdiction.”
¶ 36        We disagree with Rohr Burg’s argument and find that the trial court’s order invoked
       appellate jurisdiction through its explicit reference to Rule 304(a). We recognize that
       jurisdiction is not automatically triggered where a trial court’s order is “accompanied by
       language indicating that it is ‘final and appealable,’ but not referencing immediate appeal, the
       justness of delay, or Rule 304(a).” Palmolive Tower Condominiums, LLC v. Simon, 409 Ill.
       App. 3d 539, 544 (2011). In the Palmolive decision, we explained that “[a] circuit court’s
       declaration that an order is ‘final and appealable,’ without reference to the justness of delay, or
       even reference to immediate appealability, evinces no application of the discretion Rule 304(a)
       contemplates. [Citation.] Instead, absent some other indication from the record that the court
       intended to invoke Rule 304(a) [citation], a circuit court’s declaration that an order is ‘final and
       appealable’ amounts to nothing more than a nonbinding interpretation.” Id. at 544.
¶ 37        Although the trial court in this case used the phrase “final and appealable” without
       additional language regarding the justness of delaying either enforcement or appealability, the
       trial court explicitly referenced Rule 304(a) in its written order. Moreover, the transcript of
       proceedings from the hearing on Rohr Burg’s summary judgment motion reflects that the trial
       court specifically agreed to counsel’s request for “[Rule] 304(a) language” in the order for the
       purpose of appeal. Thus, unlike the situation in Palmolive, where the phrase “final and
       appealable” was not accompanied by any reference to the rule, here it is apparent from the
       record that the trial court specifically intended to exercise its discretion pursuant to Rule
       304(a). As we stated in Palmolive, “[o]ur supreme court does not require that a circuit court
       parrot Rule 304(a) exactly in order to invoke it.” Palmolive, 409 Ill. App. 3d at 543 (citing In re
       Application of the Du Page County Collector, 152 Ill. 2d 545 (1992)). Indeed, we have
       previously held that we had jurisdiction on appeal from a trial court order stating that it was
       “final [and] appealable pursuant to Supreme Court Rule 304(a)” without additional express
       findings. (Internal quotation marks omitted.) Abrams v. City of Chicago, 338 Ill. App. 3d 179,
       184 (2003), rev’d on other grounds, 211 Ill. 2d 251 (2004). Accordingly, we conclude that the
       trial court’s order in this case, which explicitly references Rule 304(a), is sufficient for us to
       hear this appeal.



                                                    -9-
¶ 38        Next, we address Kulbarsh’s contention on appeal that since Rohr Burg’s complaint was
       not filed by an attorney, the complaint and all subsequent orders of the trial court must be
       deemed void. Kulbarsh argues that “even after Rohr-Burg hired an attorney, orders that
       followed were void due to the inability to resurrect the null and void Complaint.”
¶ 39        The so-called “nullity rule,” under which a complaint filed by a nonattorney on behalf of a
       corporation nullifies subsequent proceedings, was thoroughly examined by our supreme court
       in Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL 112040. That decision
       recognized that “[c]ourts in this country, including this court, unanimously agree that a
       corporation must be represented by counsel in legal proceedings” but noted courts’
       “disagree[ment] on the consequences the lack of representation has on actions taken by
       nonlawyers on behalf of a corporation.” Id. ¶ 22. The supreme court recognized that our
       appellate decisions had previously “held that such actions are a nullity and warrant dismissal,
       the entry of a default judgment against the corporation, or vacatur of any judgment rendered.”
       Id. However, the supreme court noted that “[o]ther jurisdictions take the approach that actions
       by nonattorneys on behalf of a corporation are curable defects, allowing the corporation a
       reasonable time to obtain counsel and make any necessary amendments.” Id. ¶ 23.
¶ 40        The Downtown Disposal decision declined to take the view that “any unauthorized practice
       of law by a nonattorney is a nullity.” Id. ¶ 24. Instead, the supreme court held that “a per se
       nullity rule is unreasonable and that sanctions for violating the rule against the unauthorized
       practice of law ‘should be proportioned to the gravity of the violation’s consequences.’ ” Id.
       ¶ 30 (quoting In re IFC Credit Corp., 663 F.3d 315, 321 (7th Cir. 2011)). Our supreme court
       further held that “because the consequences of applying the nullity rule to a case can be harsh,
       it should be invoked only where it fulfills the purposes of protecting both the public and the
       integrity of the court system from the actions of the unlicensed, and where no other alternative
       remedy is possible.” Id. The Downtown Disposal decision instructed that courts consider a
       number of factors in deciding the consequences of actions by a nonattorney on behalf of a
       corporation:
               “The circuit court should consider, inter alia, whether the nonattorney’s conduct is
               done without knowledge that the action was improper, whether the corporation acted
               diligently in correcting the mistake by obtaining counsel, whether the nonattorney’s
               participation is minimal, and whether the participation results in prejudice to the
               opposing party. [Citations.] The circuit court may properly dismiss an action where the
               nonlawyer’s participation on behalf of the corporation is substantial, or the corporation
               does not take prompt action to correct the defect.” Id. ¶ 31.
¶ 41        Applying these principles to the facts of Downtown Disposal, the supreme court held that
       the filing of a complaint for administrative review by a nonattorney officer on behalf of a
       corporation did not render the action a nullity. In that case, a corporation’s nonattorney
       president had filed complaints seeking review of judgments rendered against the corporation
       after administrative hearings found the corporation in violation of City of Chicago ordinances.
       The corporation’s president filed the complaints by “fill[ing] out four blank pro se complaints
       for administrative review” on “preprinted form[s] supplied by the clerk’s office.” Id. ¶ 5.
       Approximately six months later, but before the City of Chicago had challenged the complaints,
       an attorney filed appearances on behalf of the corporation. Id. ¶¶ 5-6. The circuit court had
       granted the City’s motion to dismiss the complaints based upon the nullity rule. Id. ¶ 7.
       However, the supreme court found that nullification was unduly harsh, since it was “evident

                                                  - 10 -
       that [the corporation’s president] was unaware he could not prepare and sign the complaints on
       behalf of the corporation,” his “participation was minimal” as he simply “filled in a preprinted
       blank form,” and the corporation had “retained counsel prior to any involvement by the City in
       the case other than having been served.” Id. ¶ 32. The supreme court reasoned that “the
       absence of counsel at the threshold stage of the lawsuit–filing the complaint for administrative
       review–could not have prejudiced the City” and that the corporation’s “commencement of the
       proceedings without the assistance of counsel was essentially inconsequential.” Id.
¶ 42        On the facts underlying this appeal, we similarly decline to find that the filing of Rohr
       Burg’s complaint by a nonattorney agent was so egregious that it invalidates the subsequent
       proceedings. Kulbarsh’s reply brief on appeal recognizes that our supreme court’s decision in
       Downtown Disposal is controlling but argues that Rohr Burg’s “prosecution of the Complaint
       fulfills all of the requirements” to impose nullification under that decision. However, under our
       analysis of the relevant factors set forth in Downtown Disposal, we conclude that nullifying the
       proceedings here would be an unnecessarily harsh result. First, as to the factor of whether the
       nonattorney’s conduct was done “without knowledge that the action was improper,” there is
       nothing in the record to indicate that Battista, who was acting in his capacity as director of the
       Rohr Burg Group, knew or should have known that it was improper for him to file the
       complaint on behalf of Rohr Burg. Indeed, he did so using a form provided to him by the circuit
       court titled “Pro Se Complaint.” Nowhere does that form indicate that a corporation cannot
       proceed as a pro se plaintiff, and we will not presume that Battista, a nonattorney, knew that
       filing the complaint on behalf of Rohr Burg was improper.
¶ 43        Regarding the next Downtown Disposal factor, “whether the corporation acted diligently
       in correcting the mistake by obtaining counsel,” we note that Rohr Burg’s complaint was filed
       on October 22, 2010. Although the record does not specify the exact date that Rohr Burg
       retained Frank Savaiano as its counsel, Savaiano was listed as Rohr Burg’s attorney in an order
       entered December 13, 2010, and is named on Rohr Burg’s subsequent court submissions.
       Thus, at most, Rohr Burg proceeded without counsel for a period of less than two months
       following the filing of the complaint. Considering that the parties litigated the case for over
       two additional years before the trial court’s April 2013 order granting summary judgment, this
       relatively brief period does not weigh in favor of the harsh sanction of nullifying the trial court
       proceedings as to Rohr Burg.
¶ 44        As to the factor of whether the nonattorney’s participation was minimal, we acknowledge
       that Battista did not simply fill out a preprinted form, but drafted a complaint against Kulbarsh
       and Kulbarsh’s prior attorney, Andy Norman, who later was dismissed from the action.
       Kulbarsh argues that the litigation by Rohr Burg before it retained counsel was “not minimal”
       with respect to this Downtown Disposal factor. Nevertheless, the majority of the litigation
       occurred with Savaiano acting as Rohr Burg’s counsel. Notably, Savaiano drafted Rohr Burg’s
       motions and argument seeking to dismiss Kulbarsh’s counterclaims, as well as the motion for
       summary judgment that resulted in the order at issue in this appeal. As Rohr Burg was
       represented by counsel for virtually the entire litigation after the pleading stage, the
       nonattorney’s participation was relatively minimal.
¶ 45        Finally, as to the Downtown Disposal factor of “prejudice to the opposing party,” we do
       not find that Kulbarsh suffered prejudice as a result of Rohr Burg filing its complaint while
       unrepresented by counsel. Kulbarsh’s reply claims he was prejudiced by being forced to
       respond to a complaint that “does not state a recognizable cause of action,” but Kulbarsh

                                                   - 11 -
       cannot argue that he was not sufficiently apprised of the nature of Rohr Burg’s claim. The
       complaint signed by Battista clearly states the factual background and the simple basis of Rohr
       Burg’s claims–namely, that Kulbarsh violated the parties’ agreement by failing to return the
       vehicle. We note that Kulbarsh did not file a motion to dismiss the complaint, even after he
       retained counsel in August 2011. Moreover, there is no indication that Kulbarsh or his counsel
       ever requested that Rohr Burg’s attorney file a new complaint, let alone argue that the
       proceedings should be nullified. Indeed, Kulbarsh’s affirmative defenses and counterclaims
       indicate that Kulbarsh understood the allegations being made against him. This is further
       indication that Kulbarsh was not prejudiced in his ability to litigate this dispute. In short,
       considering the extent to which this action was litigated after Rohr Burg corrected its initial
       failure to retain counsel, the factors identified by our supreme court weigh against imposing
       the penalty of nullification here.
¶ 46       As we do not find that the proceedings were nullified by Rohr Burg’s failure to use counsel
       in preparing its complaint, we turn to the merits of the underlying order. We apply the de novo
       standard of review to a trial court order granting summary judgment. Inter-Rail Systems, Inc. v.
       Ravi Corp., 387 Ill. App. 3d 510, 515 (2008). “ ‘Summary judgment is proper if, and only if,
       the pleadings, depositions, admissions, affidavits and other relevant matters on file show that
       there is no genuine issue of material fact and that the movant is entitled to judgment as a matter
       of law.’ ” Id. at 515-16 (quoting Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822 (2003)).
       “In determining whether a genuine issue of material fact exists, the pleadings, admissions and
       affidavits are construed strictly against the movant and liberally in favor of the nonmovant.”
       Inter-Rail Systems, 387 Ill. App. 3d at 516. “ ‘A triable issue precluding summary judgment
       exists where the material facts are disputed or reasonable persons might draw different
       conclusions from undisputed facts.’ ” Id. (quoting Prowell, 339 Ill. App. 3d at 822).
¶ 47       We first address Kulbarsh’s argument that the release of claims in the General Release was
       not enforceable due to lack of consideration. “A release is the abandonment of a claim to the
       person against whom the claim exists.” (Internal quotation marks omitted.) Borsellino v.
       Putnam, 2011 IL App (1st) 102242, ¶ 103. “It is a contract and is therefore governed by
       contract law.” Id. “The construction of a contract presents a question of law,” for which our
       standard of review is de novo. Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). “The primary
       objective in construing a contract is to give effect to the intent of the parties.” Id. at 232. “A
       court must initially look to the language of a contract alone, as the language, given its plain and
       ordinary meaning, is the best indication of the parties’ intent. [Citations.] Moreover, *** a
       contract must be construed as a whole ***. [Citation.] The intent of the parties is not to be
       gathered from detached portions of a contract or from any clause or provision standing by
       itself.” Id. at 232-33.
¶ 48       As with any contract, “ ‘[a] release must be based upon consideration which consists either
       of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment,
       loss of responsibility given, suffered or undertaken by another.’ ” Hurd v. Wildman, Harrold,
       Allen & Dixon, 303 Ill. App. 3d 84, 93 (1999) (quoting Gavery v. McMahon & Elliott, 283 Ill.
       App. 3d 484, 489 (1996)). “Any act or promise that is a benefit to one party or a detriment to
       the other is a sufficient consideration to support a contract.” Hurd, 303 Ill. App. 3d at 93.
       Although some consideration is necessary, “ ‘[a] court’s inquiry into whether a contract is
       supported by consideration does not extend to examining the adequacy of the consideration.’ ”
       Id. (quoting Gavery, 283 Ill. App. 3d at 490). “It is not [the] court’s function to review the


                                                   - 12 -
       amount of consideration unless the amount is so grossly inadequate as to shock the
       conscience,” and thus “[m]ere inadequacy of consideration, in the absence of fraud or
       unconscionable advantage, ordinarily is insufficient to justify setting aside a contract.”
       (Internal quotation marks omitted.) Hurd, 303 Ill. App. 3d at 93.
¶ 49        It is well settled that valid consideration exists for a release when a party promises not to
       file suit against another party in exchange for payment. See American National Trust Co. v.
       Kentucky Fried Chicken of Southern California, Inc., 308 Ill. App. 3d 106, 120 (1999)
       (rejecting argument that defendant “did not provide sufficient, separate consideration for the
       release” where stipulation provided that appellant “received more tha[n] $64,000 as
       consideration in exchange for releasing” claims); Hurd, 303 Ill. App. 3d at 93 (finding
       “adequate consideration” where plaintiff, “by signing the release *** obligated himself to
       never file suit against [defendant] in exchange for thousands of dollars in benefits he was not
       entitled to”). Here, we agree with the trial court that the release of claims set forth in the
       General Release was supported by consideration consisting of the refund of the purchase price
       paid by Kulbarsh and rescission of the purchase contract. Kulbarsh argues that the refund and
       rescission referenced in the General Release related only to Kulbarsh’s agreement to return the
       vehicle, and did not additionally constitute consideration for his release of claims against Rohr
       Burg. Kulbarsh’s appellate brief argues that “there was no consideration paid to Kulbarsh to
       give up any claims,” as the “money he was offered matched the price that he paid for the
       Vehicle, with interest paid.” We do not find this argument persuasive. Kulbarsh’s argument
       suggests that because the cash amount in the General Release was based on the purchase price
       of the vehicle, it cannot serve as consideration to support any obligation from Kulbarsh beyond
       his agreement to return the vehicle. To the extent Kulbarsh argues that the purchase price was
       an inadequate amount of consideration to support both Kulbarsh’s agreement to return the
       vehicle and his obligations under the release, we note that it is not a reviewing court’s role to
       assess whether the amount of consideration was adequate. See Hurd, 303 Ill. App. 3d at 93.
¶ 50        Alternatively, Kulbarsh’s position appears to be that the parties intended for the refund and
       rescission of the purchase to serve as consideration only for Kulbarsh’s agreement to return the
       vehicle, and that the parties could not have intended for the repayment and rescission to
       represent consideration for Kulbarsh’s release of claims against Rohr Burg. Our review of the
       General Release, however, leads us to the opposite conclusion. There is no indication in the
       contract’s language that the refund and rescission of the purchase are intended to serve as
       consideration only for the return of the vehicle. To the contrary, the General Release ties the
       payment of consideration to Kulbarsh’s release of claims. The agreement states that Kulbarsh
       “hereby accept[s] $21802.00, the repurchase amount and rescission of the contract, due to my
       concerns associated with the fact of a possible frame damage reported on an Autocheck Report
       of said vehicle,” and the very next sentence states that Kulbarsh “release[s], and forever
       discharge[s] Rohr-burg Motors *** from any and all obligations of any kind and nature that
       [Kulbarsh] may have against said Rohr-burg Motors.” Construing these provisions together
       with the contract as a whole, we find the agreement evidences the parties’ intention that the
       payment of $21,802 to Kulbarsh and the rescission of the original purchase served as
       consideration for his release of claims.5

          5
           Although resort to extrinsic evidence is not necessary to support our conclusion, our view is
       consistent with the fact that Kulbarsh, who was represented by counsel at the time he signed the

                                                   - 13 -
¶ 51        We recognize Kulbarsh’s anger and feelings of having been the victim of dishonest
       treatment by Rohr Burg. Understandably, he sought to fight back in a manner he thought
       appropriate for the initial wrong that had been done to him. However, procedural and
       substantive rules which govern resolution of a dispute such as this are not based on emotion.
       So while we may empathize with the outrage which Kulbarsh experienced as a consumer at the
       hands of Rohr Burg, such empathy cannot influence resolution of the legal issues in the case.
¶ 52        Similarly, we reject Kulbarsh’s argument that the release language was insufficiently
       specific to bar Kulbarsh’s asserted claims against Rohr Burg. Kulbarsh’s appellate briefs rely
       on case law supporting the premise that courts “restrict the language of a general release to the
       thing or things intended to be released” such that “[g]eneral words of release are inapplicable
       to unknown claims.” This principle is correct, but under these facts does not serve to invalidate
       the release at issue here, which expressly contemplated the sort of claims asserted by Kulbarsh.
¶ 53        We recognize that a release applies to claims intended to be released, but that “a release
       will not be construed to include claims that were not within the contemplation of the parties.”
       Goodman v. Hanson, 408 Ill. App. 3d 285, 292 (2011). Thus the mere fact that a document is
       titled a “general release” does not automatically constitute a valid release as to all
       unanticipated claims. See Gallagher, 226 Ill. 2d at 236 (noting that “ ‘general release’ is a
       conclusory term, and determining whether particular language constitutes a general release is
       entirely a matter of construing that language”). Thus, “[i]f a release is a general release and the
       releasing party was unaware of other claims, the release is restricted to the specific claims
       contained in the release agreement.” Goodman, 408 Ill. App. 3d at 293. On the other hand,
       “[w]here both parties were aware of an additional claim at the time of signing the release, the
       general release will be interpreted to release that claim as well.” Id.
¶ 54        Applying these principles here, the language of the General Release indicates that the
       parties were aware of potential claims by Kulbarsh regarding the alleged damage to the vehicle
       and intended for such claims to be released. We note that the sentence in which Kulbarsh
       “release[s] and discharge[s]” Rohr Burg is immediately preceded by the statement that
       Kulbarsh “accept[s] *** the repurchase amount and rescission of the contract, due to my
       concerns associated with the fact of a possible frame damage reported on an Autocheck Report
       of said vehicle” (emphasis added). From this language, it is apparent that the parties executed
       the General Release in contemplation of claims related to the existence of such damage. Thus,
       we reject the suggestion that the counterclaims asserted by Kulbarsh–which are premised on
       allegations regarding such vehicle damage–were unknown when the parties executed the
       release. To the contrary, the General Release makes clear that such claims were specifically
       contemplated and encompassed by the release.
¶ 55        Moreover, we note that even if the release here was initially unenforceable, Kulbarsh’s
       retention of the payment made to him under the General Release independently ratified that
       release. “ ‘If a releasor *** retains the consideration after learning that the release is voidable,
       *** continued retention of the benefits constitutes a ratification of the release.’ ” Hurd, 303 Ill.
       App. 3d at 93 (quoting Seward v. B.O.C. Division of General Motors Corp., 805 F. Supp. 623,
       632 (N.D. Ill. 1992)); see also Golden v. McDermott, Will & Emery, 299 Ill. App. 3d 982, 993

       General Release, admitted at his deposition that he understood that he was “waiving any and all claims
       that [he] may have in regards to the 2010 Mustang that [he] had purchased from Schaumburg Ford”
       when he signed the document.

                                                    - 14 -
       (1998) (“the retention of the consideration by one sui juris, with knowledge of the facts will
       amount to a ratification of a release executed by him in settlement of a claim, where the
       retention is for an unreasonable time under the circumstances of the case” (internal quotation
       marks omitted)). Thus, even assuming arguendo that the release was unenforceable, Kulbarsh
       ratified the agreement by his subsequent conduct. See Hurd, 303 Ill. App. 3d at 94
       (“[F]ollowing the execution of the release, plaintiff was compensated ***. *** After accepting
       this compensation, plaintiff waited close to three years to file suit. As a result, plaintiff ratified
       the purportedly unenforceable release.”). In this case, it is not disputed that the check to
       Kulbarsh cleared within a day or two following execution of the General Release on
       September 9, 2010, and that American Eagle Bank notified Kulbarsh by letter dated September
       13, 2010 that Rohr Burg had satisfied its loan. Kulbarsh admittedly retained the proceeds from
       the refund check. Thus, even if we concluded that the release was voidable, we would find that
       Kulbarsh ratified the release by his retention of the consideration for his promise not to sue.
¶ 56        We also reject Kulbarsh’s argument that the General Release precluded Rohr Burg from
       suing Kulbarsh for his failure to return the vehicle. Kulbarsh’s argument is premised upon the
       portion of the General Release stating that “[t]he Undersigned intends hereby to release all
       unknown and unanticipated claims, if any.” Kulbarsh contends that since Sabzali signed the
       General Release, the “Undersigned” includes Rohr Burg as well as Kulbarsh, and thus Rohr
       Burg also released its right to assert claims against Kulbarsh. This argument is untenable.
       Although “the Undersigned” is not explicitly defined in the General Release, construing the
       contract as a whole it is clear that Kulbarsh is intended as the releasing party. Prior to using the
       term “Undersigned,” the General Release recites that “I, Bruce D. Kulbarsh *** do hereby
       accept *** the purchase amount and rescission of the contract” and “It is also understood that I,
       Bruce D. Kulbarsh do hereby acknowledge, remise, release and forever discharge [Rohr Burg]
       *** from any and all obligation of any kind and nature that I may have against [Rohr Burg]
       ***.” In any event, even assuming that Rohr Burg was included in the definition of
       “Undersigned,” this would not preclude Rohr Burg from suing to enforce the parties’
       obligations under release. As the trial court recognized, a party to a release “can sue on a
       release.” Under Kulbarsh’s logic, neither party could sue to enforce the very contract
       containing the release. Such an interpretation is illogical, as it would render the document
       unenforceable. The trial court correctly recognized that Rohr Burg sued to enforce the General
       Release since Kulbarsh had failed to return the vehicle. We agree with the trial court and reject
       the suggestion that the General Release precluded Rohr Burg from suing Kulbarsh for his
       breach of the same agreement.
¶ 57        Kulbarsh’s next argument on appeal is that, even assuming the release was initially valid, it
       was voided by Rohr Burg’s failure to deliver a negotiable check. Kulbarsh contends that this
       failure, together with Rohr Burg’s conduct in driving Kulbarsh back from the bank and
       allowing him to retake possession of the vehicle, voided Kulbarsh’s obligations under the
       General Release. Kulbarsh’s appellate briefing cites case law supporting the principle that
       where a party has materially breached a contract, he cannot recover damages from the other
       party to the contract. The key term here is “material.” That is, “[u]nder general contract
       principles, only a material breach of a contract provision by one party will justify
       nonperformance by the other.” William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d
       324, 346 (2005). “The test of whether a breach is ‘material’ is whether it is ‘so substantial and
       fundamental as to defeat the objects of the parties in making the agreement, or whether the


                                                    - 15 -
       failure to perform renders performance of the rest of the contract different in substance from
       the original agreement.’ [Citation.] ‘The breach must be so material and important to justify
       the injured party in regarding the whole transaction at an end.’ ” InsureOne Independent
       Insurance Agency, LLC v. Hallberg, 2012 IL App (1st) 092385, ¶ 43 (quoting Village of Fox
       Lake v. Aetna Casualty & Surety Co., 178 Ill. App. 3d 887, 900-01 (1989)). “The issue of
       whether a material breach of contract has been committed is a question of fact, and the trial
       court’s judgment will not be disturbed unless it is against the manifest weight of the evidence.”
       InsureOne, 2012 IL App (1st) 092385, ¶ 43.
¶ 58        Here, even assuming the truth of Kulbarsh’s testimony that the initial check did not clear
       and that he did not receive funds until a day or two afterward, the trial court could certainly
       find that this minor delay would not constitute a material breach that would void Kulbarsh’s
       obligations under the General Release. Although the parties dispute whether Rohr Burg
       initially issued a nonnegotiable check to Kulbarsh, there is no dispute that Kulbarsh received
       the funds due to him within a few days after execution of the General Release. In his
       deposition, Kulbarsh recalled that, after Chase bank initially told him the check was denied for
       nonsufficient funds, he returned either the next day or a “couple days” later, at which time the
       check cleared. Kulbarsh’s fourth affirmative defense also concedes that Rohr Burg’s “checks
       cleared; that is, [Kulbarsh’s] loan to the bank had been repaid and the Rohr Burg check made
       payable to [Kulbarsh] for the funds that he had used to buy the vehicle had cleared.”
¶ 59        In light of Kulbarsh’s admission that he received the full monetary consideration called for
       by the General Release within a short time period, any initial failure to provide a negotiable
       check would not constitute a material breach that would invalidate Kulbarsh’s obligations
       under the release. A slight delay of payment due under a contract that does not specify a time
       for payment will not constitute a material breach that excuses nonperformance by the other
       party. See, e.g., Midwest Television, Inc. v. Oloffson, 298 Ill. App. 3d 548, 558 (1998)
       (employer’s late payment of bonuses under contract did not support former employee’s
       affirmative defense of unclean hands, as “[m]inor delays in such payments do not constitute
       substantial nonperformance and a material breach of the contract”); Israel v. National Canada
       Corp., 276 Ill. App. 3d 454, 460 (1995) (lender’s delays in funding borrower’s requests for
       disbursement did not constitute material breach of loan agreement, as it was “uncontroverted
       that each of these requests was ultimately funded” and thus the “delays would constitute, at
       most, a partial breach of the loan agreement”). Thus, we agree with the trial court that, as there
       was no dispute that the check at issue “did clear within the week,” the question of whether
       Rohr Burg’s initial check was negotiable did not present an issue of material fact precluding
       summary judgment. Moreover, contrary to Kulbarsh’s assertion that the parties treated the
       General Release as “null and void” after issuance of a nonnegotiable check, we again note that
       Kulbarsh’s retention of the funds served to ratify, rather than undermine, the General Release.
       See Golden, 299 Ill. App. 3d at 993.
¶ 60        Having concluded that the release barred Kulbarsh’s counterclaims, we turn to that portion
       of the order that granted summary judgment with respect to the first four affirmative defenses
       asserted by Kulbarsh in response to Rohr Burg’s complaint. The first three affirmative
       defenses at issue allege fraud, misrepresentation, and breach of the General Release. These
       three defenses rely on the same premise: that because the initial refund check was denied for
       nonsufficient funds, Kulbarsh’s obligation to return the vehicle under the General Release was
       voided. The first two affirmative defenses, fraud and misrepresentation, consist of identical


                                                   - 16 -
       allegations that “Rohr Burg misrepresented a material fact in that it stated that it was giving
       [Kulbarsh] a check that was negotiable” and that the check “failed to clear because there were
       nonsufficient funds in the account.” The third affirmative defense claims that “Rohr Burg
       breached the [General Release] by failing to give [Kulbarsh] a check that was negotiable.”
       Thus, the first three affirmative defenses argue that Kulbarsh’s obligation to return the car was
       voided by Rohr Burg’s alleged initial failure to provide a negotiable check.
¶ 61       This argument fails since, as discussed above in the context of enforcement of the release,
       the admissions and pleadings establish that any such breach was not sufficiently material to
       excuse Kulbarsh’s nonperformance. Kulbarsh admitted that he received payment, at the latest,
       a “couple days” after the allegedly invalid check, and such a slight delay does not constitute a
       material breach that excuses Kulbarsh from his obligations under the General Release. Just as
       the alleged minor delay in payment did not invalidate Kulbarsh’s release of claims, it also does
       not serve as an affirmative defense invalidating his additional obligation under the same
       contract to return the vehicle. As such, the first three affirmative defenses were properly
       dismissed by the trial court.
¶ 62       Finally, the fourth affirmative defense asserted by Kulbarsh consists of statements that
       “[a]fter the written contract was voided” by the nonnegotiable check, Rohr Burg submitted
       checks that “cleared,” such that Kulbarsh’s “loan to the bank had been repaid, and the Rohr
       Burg check made payable to [Kulbarsh] for the funds that he had used to buy the vehicle had
       cleared.” This affirmative defense states that after these payments, “title to the vehicle was sent
       by [American Eagle] Bank to Rohr Burg, and thereafter [Kulbarsh] *** returned the vehicle.”
       These contentions do not constitute an affirmative defense to Kulbarsh’s obligation to return
       the vehicle, but rather amount to a denial of the complaint’s allegation that Kulbarsh
       wrongfully retained the vehicle after receiving payment.
¶ 63       “The test for whether a defense is an affirmative defense is whether the defense gives color
       to the opposing party’s claim and then asserts [a] new matter by which the apparent right is
       defeated.” American Family Mutual Insurance Co. v. Albers, 407 Ill. App. 3d 569, 573 (2011);
       Vanlandingham v. Ivanow, 246 Ill. App. 3d 348, 357 (1993). Thus, the mere denial of an
       element of a cause of action, without asserting any new matter, does not constitute an
       affirmative defense. Our supreme court recognized this in the context of a product liability
       action, explaining that a denial of the element of proximate cause is not an affirmative defense:
               “The defendant is not required to plead lack of proximate cause as an affirmative
               defense, which arises when the defendant concedes the viability of the plaintiff’s claim
               but then asserts a new matter in defense that defeats the plaintiff’s apparent right to
               recover. [Citation.] Consequently, the defense that an allegedly defective product was
               not the proximate cause of the injury merely denies an element of the plaintiff’s case
               and is not an affirmative defense. A claim of lack of proximate cause neither concedes
               the truthfulness of the plaintiff’s claim nor asserts a new matter to defeat the plaintiff’s
               claim; instead, it attacks the sufficiency of that claim.” Korando v. Uniroyal Goodrich
               Tire Co., 159 Ill. 2d 335, 344 (1994).
¶ 64       Here, the contentions in the fourth affirmative defense do not assert a new matter to defeat
       Rohr Burg’s apparent right to recover. Rather, the statement that Kulbarsh returned the vehicle
       after receiving payment simply denies Rohr Burg’s allegation that Kulbarsh remained in
       possession of the vehicle after receiving the funds due to him under the General Release. As


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       this does not constitute a separate affirmative defense, the fourth affirmative defense was also
       properly dismissed by the trial court.
¶ 65       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 66      Affirmed.




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