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Hernandez v. New Rogers Pontiac, Inc.

Case Date: 06/28/2002
Court: 1st District Appellate
Docket No: 1-01-3083 Rel

SIXTH DIVISION
June 28, 2002



No. 1-01-3083


WENDY HERNANDEZ, 

             Plaintiff-Appellant,

v.

NEW ROGERS PONTIAC, INC.,
and GENERAL MOTORS CORPORATION,

             Defendants-Appellees.

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) 		Appeal from the
Circuit Court of
Cook County.




Honorable
John G. Laurie,
Judge Presiding.


JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, Wendy Hernandez, appeals the order of the circuit court dismissing her complaintagainst defendants, New Rogers Pontiac, Inc., and General Motors Corporation, on res judicata grounds. On appeal, plaintiff argues that res judicata does not apply, because there was no prior final judgmenton the merits of her lawsuit. We affirm.

At the evidentiary hearing on defendants' motion to dismiss, plaintiff testified that she purchaseda 1999 Pontiac Grand Am from defendant New Rogers Pontiac, Inc. Plaintiff subsequently discoveredthat her Grand Am was defectively sealed, causing water to leak into the car during rainstorms.

Plaintiff testified that in April 2000 she e-mailed an attorney, Adam Krohn, to "see if [she] hada case." Mr. Krohn called plaintiff at work, and they discussed the problems that she was having withthe car. However, plaintiff testified that she did not authorize Mr. Krohn to file a lawsuit on her behalf.

On April 25, 2000, plaintiff received a letter from Mr. Krohn stating in pertinent part:

"Please allow this letter to confirm our conversation of April 25, 2000, at which time youengaged our firm to represent you regarding your 'lemon law/breach of warranty' claim. *** Wehave agreed that you will remain responsible only for the 'out-of-pocket' costs (not attorney time)associated with your claim. These costs total anywhere from $303.40 to $466.80 (depending onthe defendant)***. We have agreed to defer these costs until the resolution of your case. Theonly cost you have to pay during the pendency of your claim is the $150.00 inspection fee." (Emphasis in original.)

Plaintiff never signed the letter or had the car inspected.

In April and May, plaintiff received the following correspondence from Mr. Krohn: a letterthanking her for choosing the law firm of Krohn & Moss; a letter stating that plaintiff had a claim underthe Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Magnuson-Moss Act)(15 U.S.C.