No: XXX
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IN THE
APPELLATE COURT OFXXX
THIRD DISTRICT
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CINDY VANDERPLOW, Plaintiff-Appellant,
v.
STEVEN MILLER, Defendant-Appellee |
Appeal from the Circuit Court of the Eighteenth Judicial Circuit, XXX County, Illinois
Circuit Court No. XXX Honorable XXX, Judge presiding Date of Appeal: Date of Judgment: XXX |
APPELLANT’S REPLY BRIEF
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STATEMENT OF POINTS AND AUTHORITIES
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RULE 341(c) CERTIFICATE OF COMPLIANCE. 8
APPENDIX TABLE OF CONTENTS. 10
A. THE TRIAL COURT ERRED IN DISMISSING COUNT 2 OF PLAINTIFF’S THIRD AMENDED COMPLAINT
Defendant argues that Plaintiff failed to meet her burden of proof of an oral contract. Defendant further argues that Plaintiff’s Count 2 is barred by the affirmative matter affirmative matter. The crux of said affirmative matter defense is that Plaintiff’s Count 2 fails to state a claim for relief.
It is Plaintiff’s contention that the law requires Courts that are ruling on a section 2-619 motion to dismiss, to “interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.” In re XXX “[T]he motion should be granted only where no material facts are in dispute” \ The relevant inquiry on appeal is “whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.” XXX
An objective probe of the record would show that there is a genuine issue of material fact as to the existence of the oral agreement. On one hand, in their Motion to Dismiss Plaintiff’s Third Amended Complaint, Defendant argued that “Plaintiff alleged an oral contract but failed to provide sufficiently definite terms and failed to allege the plaintiff’s performance of all contractual conditions required of it.” Defendant also stated that: “Plaintiff admitted the validity of the written contract and is estopped for asserting any written contract failed to exist. Plaintiff testified during the arbitration hearing, presented the written contract as evidence in discovery in the small claims proceeding in her 90(c) packet, and indicated the Defendant signed it and she signed it.”
In Defendant’s Reply Brief, they rehashed the arguments made in their Motion to Dismiss Plaintiff’s Third Amended Complaint. Notably, Defendant averred that Plaintiff has not met her burden to prove the existence of the oral contract. It is on this ground that Defendant argued that Plaintiff had presented a written contract in the small claims proceeding and during arbitration and now disputed this, and is estopped to set up that matter in a collateral attack.
On the other hand, Plaintiff’s Third Amended Complaint and the Appeal Brief clearly show the existence of a genuine issue of material fact. Plaintiff’s Brief, for instance, stated the following particulars of the oral agreement:
On or about March XXX, Plaintiff asked Defendant if he would build Plaintiff a deck at Plaintiff’s residence in exchange for money. (XXX, Plaintiff sent Defendant a text asking if materials for deck could be ordered so the installation of deck could start week of June XXX. (R. C116) Plaintiff then sent Defendant pictures of different deck designs to choose from. (R. C114)
Consequently, on or about July XXX, Plaintiff and Defendant entered into a verbal agreement to build the deck. Under the agreement, the Plaintiff would pay for all the building materials and Defendant would build the deck. Plaintiff therefore performed the contract by obtaining a permit, buying the materials, and making payments to the Defendant. (R. C118) On July XXX, Defendant sent Plaintiff three pictures via text message, showing demolition of the old deck. (R. C115) Defendant also intimated that they were ready to commence construction of the new deck.
Plaintiff met her part of the bargain by paying Defendant all amounts for the installation of the deck. Notably, on July XXX, Plaintiff withdrew $2,000.00 cash to give to Defendant as partial payment for deck installation. (R. C116) Consequently, on August XXXX, Defendant texted Plaintiff asking for further payment. Plaintiff therefore withdrew $4,400.00 cash on August XXX, to make final payment to Defendant.
A triable issue of fact exists where there is a dispute as to material facts or where the material facts are undisputed, but reasonable persons might draw different inferences from those facts. XXX. Accordingly, a genuine issue of material fact is when two sides disagree about important facts that are relevant to a legal claim.
From the foregoing analysis, Plaintiff and Defendant are having a factual dispute as to the existence of an oral agreement. This dispute is sufficient indication of a genuine issue of material fact, which therefore nullifies the applicability of section 2-619 motion to dismiss to the case. Disputed questions of fact must be decided by the trier of fact. Kedzie & 103rd Currency Exchange, Inc. v. XXX. The case was therefore wrongly dismissed.
Next, Defendant argues that their motion to dismiss was verified by swearing as to the facts therein, through an affidavit. Plaintiff goes further to argue that since Plaintiff did not file a counter affidavit, the facts stated in the affidavits are true. Plaintiff contends that a counter affidavit is not the only means available to contradict an affidavit. “When supporting affidavits have not been challenged or contradicted by counter affidavits or other appropriate means, the facts stated therein are deemed admitted.” (Emphasis added.)XXX, XXX In Plaintiff’s Response to Defendant’s Motion to Dismiss, Plaintiff challenged the averments in Defendant’s affidavits. This challenge is an appropriate means to contradict Defendant’s affidavit.
Defendant then emphasized their argument that Plaintiff testified during the arbitration hearing that there was a written contract between the parties, and that she admitted that she stated during the hearing that she requested the Defendant to comply with the mediation provision in an email. First, Plaintiff’s statement that she made several attempts to get Defendant to mediation with no success on his part, was not an admission to a valid written contract. Defendant omits pertinent details. Specifically, Defendant omit a statement made by Plaintiff during the mediation hearing where she stated: “Defendant knew this was an oral contract not a written contract.” Defendant tried arguing that the courts did not have jurisdiction over the case because there was a written contract. However, the arbitration panel disagreed with Defendant, because Defendant provided enough evidence that an oral contract existed not. She always said it was an oral contract. Plaintiff has not obtained a transcript of the mediation hearing. Defendant is therefore trying to use Plaintiff’s one sentence in that email against Plaintiff.
It is also notable that Plaintiff called the clerk’s office and requested a copy of the transcripts of the mediation hearing. The clerk informed Plaintiff that she would have had to pay for it. Being pro se, Plaintiff did not know that one had to request and pay for a court reporter Plaintiff therefore decided to email the Defendant’s counsel on October 12, 2022 asking if he paid for a court reporter at the mediation hearing. She needed the transcript from that hearing as it would have showed the whole testimony of what was actually stated/said in regards to the written contract. The transcript would also have explained in more detail Plaintiff’s “brief email” to opposing counsel. If that arbitration hearing had been recorded, Plaintiff could have proved the oral agreement existed. Besides, Defendant’s counsel stated in their response to Plaintiff’s email, that it was a waste of money to make a record of the mediation hearing.
A complaint should be dismissed under section 2-615 only if it is clearly apparent from the pleadings that no set of facts can be proved that would entitle the plaintiff to recovery. In XXXX.
Plaintiff has demonstrated facts that entitle her to recovery from Defendant. Defendant is only strategically twisting the facts to show the non-existence of an oral contract. Defendant also places Plaintiff’s email out of context, to further their arguments against the existence of the oral argument.
For the above stated reasons, the arguments in the Defendant’s Brief should be dismissed. Plaintiff further requests this Court grants her prayers in the Appeal Brief. Plaintiff prays for any other order this Court deems just.
Respectfully submitted
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Plaintiff, pro se
RULE 341(c) CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 341(a) and (b). The length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) table of contents and statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service, and those matters to be appended to the brief under Rule 342(a), is five pages.
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Plaintiff, pro se
The undersigned hereby certifies that she served a copy of the foregoing brief on the Defendant by depositing a copy, contained in a first-class postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as follows:
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Attorney for Appellee/Defendant XXX
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Plaintiff, pro se
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