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THIRD DIVISION
August 09, 2000

JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff Bruce Hayman (Hayman) rented a car. When thelease ended, he bought the car. Then he filed a class actionsuit for fraudulent misrepresentation, statutory consumer fraud,and conversion against Autohaus on Edens (Autohaus) and ToyotaMotor Credit Corporation (TMCC). The trial judge dismissedHayman's complaint. Hayman appeals. We affirm.

Facts

On November 22, 1995, Hayman entered into a writtenagreement with Autohaus to lease a motor vehicle -- a 1996 ToyotaCamry -- for a period of 36 months. The lease agreement statedin paragraph 10:

"Estimated Residual Value: The estimated value of theVehicle at the scheduled end of the Lease Term. ***[W]ewill use this amount in calculating the Purchase OptionPrice in the event you exercise your option to purchase(Paragraph 16) ***."

The amount listed as the estimated value was $17,314.24.

On November 21, 1998, Hayman's lease term expired and heexercised his option to purchase the vehicle. However, the "cashprice of the vehicle" listed on the purchase agreement was$17,613.24, or $299 more than stated in the leasing agreement.

Without having the benefit of the leasing papers at the timehe closed on the purchase, Hayman paid the $17,613.24 amount. Later, however, Hayman reviewed his lease agreement and noted thediscrepancy. He then telephoned Autohaus for an explanation.

In a telephone conversation with an Autohaus finance agenton November 23, 1999, this $299 amount was represented to be a"service fee." Hayman balked at the hidden inclusion of such afee and demanded the return of the $299. His request was notwell-received. He was told, essentially, he could take the carwith the service fee or bring the car back for a full refund. Incensed, Hayman called his attorney, who immediately madepreparations to file suit against Autohaus.

In the meantime, Autohaus must have had second thoughtsabout its treatment of its customer. On November 25, 1998, just2 days later, it sent Hayman a check for $299, refunding the fullamount of the disputed service fee it had included in thepurchase price of the car.

Hayman received the check on November 28, 1998, but refusedto accept it. Instead, on December 30, 1998, he filed a four-count class action complaint against Autohaus and TMCC, allegingfraudulent misrepresentation and violation of the IllinoisConsumer Fraud and Deceptive Business Practices Act (815 ILCS505/1 et seq. (West 1996)). In his complaint, Hayman sought toproceed as the representative of a class of persons similarlysituated.

Defendants moved for dismissal and Hayman amended hiscomplaint, adding a fifth count against both defendants, allegingconversion.

After a hearing on September 8, 1999, the trial courtdismissed Hayman's Second Amended Complaint as to bothdefendants. The court found Hayman was unable to state any causeof action because Autohaus had tendered a check for $299 toHayman before litigation began. Hayman appeals dismissal of thecommon law fraud and conversion counts, not the statutoryconsumer fraud counts. We review the section 2-619 (735 ILCS5/2-619 (West 1998)) dismissals de novo. Kozak v. Moiduddin, 294Ill. App. 3d 365, 367, 689 N.E.2d 217 (1997).

Decision

Hayman contends his complaint contained valid claims forfraudulent misrepresentation and conversion and met all thestatutory prerequisites for a class action suit. Though heacknowledges Autohaus' tender of a check for $299, he claims thisunilateral action by Autohaus cannot defeat his claim. Healleges the $299 did not "grant [him] all the recovery to whichhe is entitled," namely, attorney fees, interest, and punitivedamages which he could have recovered if the class action hadproceeded.

This case is close to Hillenbrand v. Meyer Medical Group,S.C., 308 Ill. App. 3d 381, 720 N.E.2d 287 (1999). InHillenbrand, after litigation had begun, but before classcertification was determined, Meyer Medical sent plaintiffs'counsel a letter offering to "resolve the case as to the existingplaintiffs" by making full payment of the amount being sought. No response was made to the settlement offer. The court foundthe payment tendered by Meyer mooted the plaintiffs' claim, eventhough they refused to accept it. The court said, "Theplaintiffs cannot perpetuate the controversy by merely refusingMeyer's tender." Hillenbrand, 308 Ill. App. 3d at 389.

In Hillenbrand, the court rejected the claim made by Haymanin this case -- that the tender didn't make him whole because itdidn't include attorney fees or other costs. Citing Kerns v.Engelke, 76 Ill. 2d 154, 166, 390 N.E.2d 859 (1979), the courtnoted a successful litigant is not entitled to an award forattorney fees "absent a statutory provision or contractualagreement to the contrary." There, as here, no statutoryprovision or contractual agreement existed. See Hess v. I.R.E.Real Estate Income Fund, LTD, 255 Ill. App. 3d 790, 800, 629N.E.2d 520 (1993).

Plaintiff's exceptional haste in making contact with hislawyer is not enough to create a right to recover compensatorydamages in this case. Even if we were to seriously consider theplaintiff's claim that he was entitled to interest for the threedays Autohaus held his $299, the amount would be too trivial tojustify an imposition upon the administration of civil justice. See Pacini v. Regopoulos, 281 Ill. App. 3d 274, 280-81, 665N.E.2d 493 (1996).

The question of whether Autohaus' inclusion of the $299amount as part of the "cash price of vehicle" was improper andconstituted fraudulent misrepresentation or conversion wasrendered moot by the tender of the check for $299. This was anevent which made it impossible for the court to grant effectualrelief and eliminated any actual controversy. See Wheatley v.Board of Education of Township High School District 205, 99 Ill.2d 481, 484-85, 459 N.E.2d 1364 (1984); Green v. Board ofMunicipal Employees', Officers' and Officials' Annuity andBenefit Fund of Chicago, 309 Ill. App. 3d 757, 763, 723 N.E.2d294 (1999).

The $299 check from Autohaus to Hayman was not a settlementor a compromise of an ongoing dispute. It was a total refund ofthe amount demanded. No suit had been filed. Obviously, nomotion for class certification had been made. Hayman's lawyerhad made no contact with the defendants. Once the payment wastendered, there was no controversy. These facts are fardifferent from those of Miner v. Gillette Co., 87 Ill. 2d 7, 428N.E.2d 478 (1981), relied on by the plaintiff.

In Miner, the plaintiff demanded Gillete keep its promise tosend him a free Accent table lighter. Instead, Gillette sent hima free "cricket" lighter. This, said the court, was an attemptto compromise the dispute, and "Any question of compromise is oneof fact which must await trial for determination." Gillette, 87Ill. 2d at 19.

Because full payment, not a compromise, was offered toHayman, thus mooting the controversy, the plaintiff had no rightto recover compensatory damages in the trial court. He sufferedno damage. Punitive damages "are in addition to compensatorydamages and cannot be allowed unless actual damage is shown." Inre Application of Busse, 124 Ill. App. 3d 433, 438, 464 N.E.2d651 (1984); Florsheim v. Travelers Indemnity Co. of Illinois, 75Ill. App. 3d 298, 310, 393 N.E.2d 1223 (1979)("***the plaintiffcan only be awarded punitive damages where actual damage isshown.") In addition, the facts of this case do not reflect thekind of "aggravated circumstances" that would warrant an award ofpunitive damages. PCx Corp. v. Ross, 209 Ill. App. 3d 530, 540,568 N.E.2d 311 (1991).

Hayman was the only named member of the putative class whenthe lawsuit was dismissed. No class was certified at the time ofdismissal. In fact, no motion for class certification had beenmade. At that point, he could not be a member of the class hedescribed. His interests would no longer be consistent with theinterests of the remaining putative class members. The trialjudge correctly dismissed the entire class action. Wheatley, 99Ill. 2d at 487; Green, 309 Ill. App. 3d at 765-66.

We affirm the dismissal of the plaintiff's second amendedcomplaint as to both Autohaus and TMCC.

Affirmed.

CAHILL, P.J., and CERDA, J., concur.