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SECOND DIVISION

November 27,2001

No. 1-00-4255

OPINION UPON DENIAL OF REHEARING

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

Plaintiff Otha Miller appeals from an order of the CookCounty circuit court granting summary judgment in favor ofdefendants William Chevrolet/GEO, Inc. (William Chevrolet) andHFC Auto Credit Corp. (HFC).⁽¹⁾ Miller's lawsuit arose fromallegedly fraudulent misrepresentations made by William Chevroletduring the sale of a used Nissan Altima. The circuit court foundthat Miller suffered no legally cognizable injury and thus failedto establish a prima facie case for either his common law fraudclaims or for his claims under Section 2 of the Consumer Fraudand Deceptive Business Practices Act. 815 ILCS 505/2 (West

No. 1-00-4255

1998). On appeal Miller argues that the circuit court erredbecause Illinois law recognizes diminished value as a compensableinjury. Miller also contends that he has raised a materialquestion of fact on all other elements of his statutory andcommon law fraud claims. For the reasons set forth below, wereverse in part, affirm in part, and remand for furtherproceedings.

BACKGROUND

Miller filed his original complaint on August 26, 1999. OnJanuary 21, 2000, the trial judge dismissed this complaintwithout prejudice in response to Section 2-615 Motions to Dismisstimely filed by both defendants. 735 ILCS 5/2-615 (West 1998). The matter went to arbitration in March, 2000 and the defendantswere granted an award. As permitted under Supreme Court Rule 93(166 Ill. 2d R. 93), Miller rejected the arbitrator's award andon April 10, 2000 he filed an amended complaint against bothdefendants. William Chevrolet filed a timely motion for summaryjudgment which the trial court granted as to both WilliamChevrolet and HAFC in December, 2000. 735 ILCS 5/2-1005 (West2000).

Attached to defendant's motion for summary judgment wasplaintiff's deposition including exhibits. From that deposition,a picture of the transaction between William Chevrolet'ssalespeople and Miller emerges. It is uncontested that in lateFebruary 1998, Miller went into the William Chevrolet dealershipand began looking at used vehicles. Miller admits that he hadnot dealt with defendant dealership on any prior occasion andcalled his decision to look at their cars "random." Afterdiscussing available cars and financing with William Chevroletpersonnel, Miller took a Nissan Altima (different than the one heeventually purchased) home for the night as a test drive. Thefollowing day, Miller returned the car to William Chevrolet andbegan discussions about the 1997 Nissan Altima that he ultimatelypurchased.

During his deposition, Miller alleged that WilliamChevrolet's salesperson told him that the 1997 Altima was"executive driven" and that it was a "great car." In itsresponse to interrogatories, William Chevrolet stated that theonly representation its salespeople ever attached to the vehiclewas "used."

In his deposition, Miller stated that he interpreted thephrase "executive driven" to mean that the car had previouslybeen used by high ranking employees of either Nissan or WilliamChevrolet and had therefore been well cared for. It is notdisputed that the Altima had not been driven by these executivesand that William Chevrolet had recently purchased the vehiclefrom Enterprise Leasing Corporation.

Miller admitted to knowing at the time that the Altima wasused (he was buying a 1997 model year car in 1998) but claims hedid not know, nor did he inquire further, about the Altima'shistory or previous owner.

Upon his decision to purchase the Altima, Miller waspresented a number of documents to sign. At his deposition,Miller recognized his signature on a number of exhibits,including a retail installment contract, an odometer disclosureform, a handwritten vehicle sales order, and a typed vehiclesales order. Although Miller did not remember in detail eachform he signed, he did recall that he was neither pressured norrushed to complete the paperwork.

From the record it appears that these documents describe thecar in question as a 1997 Nissan Altima and all containplaintiff's signature and are dated February 27, 1998. Theretail installment contract contains the typed word "used" in abox designated "New or Used." Both vehicle sales orders containchecks in the "Used" box of a section which also contains boxestitled "New" and "Demo." None of these documents make referenceto the car's prior owner, Enterprise Leasing Company.

During his deposition, Miller was also shown an Indianacertificate of title, the front of which lists "ENTERPRISE LSGCO. OF INDIANAPOLIS" as the original owner. The back of thistitle contains a section labeled "First Re-Assignment ByRegistered Dealer Only" under which William Chevrolet is listedas dealer and Otha Miller is listed as purchaser. Milleracknowledged signing every document he was asked to sign,including the title. Next to the purchaser's signature block onthe back of the title is a date of sale box in which "3/25/98" iswritten.

After the sale to Miller, William Chevrolet assigned theretail installment contract to HAFC Miller asserted claimsagainst HAFC in its original and amended complaints.

In response to defendant's motion for summary judgment,Miller submitted a summary of proposed testimony from an opinionwitness who was to address the financial significance of a car'shistory of rental use.

Miller admits having driven the Altima since its purchasewithout any serious malfunction. Based primarily on thisadmission, the trial court granted defendants' motions forsummary judgment, finding that Miller's submissions did not raiseany legally cognizable injury. This appeal followed.

ANALYSIS

Summary judgment is appropriate when the pleadings,depositions, admissions, and affidavits illustrate no genuineissue of material fact and the moving party is entitled tojudgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998);Largosa v. Ford Motor Co., 303 Ill.App.3d 751, 753, 708 N.E.2d1219, 1221 (1999). When examining a motion for summary judgment,the court must consider "all the evidence before it strictlyagainst the movant ... and liberally in favor of the nonmovant." Largosa, 303 Ill. App. 3d at 753, 708 N.E.2d at 1221. This courtreviews summary judgment orders de novo. Largosa, 303 Ill. App.3d at 753, 708 N.E.2d at 1221. An order granting summaryjudgment should be reversed if the evidence shows that a genuineissue of material fact exists or if the judgment was incorrect asa matter of law. In re Estate of Herwig, 237 Ill. App. 3d 737,604 N.E.2d 1164 (1992).

II Fraudulent Misrepresentation

Miller contends that the trial court erred in grantingsummary judgment on both his common law and statutory fraudulentmisrepresentation claims. We agree. We first consider whethersummary judgment is appropriate for Miller's common law fraudclaims.

A. Common Law Fraud

Fraud has been said to comprise anything calculated todeceive and may consist of a single act, a single suppression oftruth, suggestion of falsity, or direct falsehood, innuendo, lookor gesture. Russow v. Bobola, 2 Ill. App. 3d 837, 841, 277N.E.2d 769, 771 (1972). The elements of common law fraud are (1)false statement of material fact; (2) defendant's knowledge thatthe statement was false; (3) defendant's intent that thestatement induce the plaintiff to act; (4) plaintiff's relianceon the statement; and (5) plaintiff's damages resulting fromreliance on the statement. Connick v. Suzuki Motor Co. 174 Ill.2d 482, 496, 675 N.E.2d 584, 591 (1996). In analyzing theappropriateness of summary judgment in this case, we willconsider each element in turn.

1. False statement of Material Fact

This element encompasses three requirements: the defendantmust (1) make a misrepresentation, (2) it must involve a fact and(3) the misrepresentation must be material. Miller contends thatWilliam Chevrolet told him that the Altima was "executive driven"and that this characterization was false and affirmativelymisrepresented the car's true history as a rental vehicle. Defendant offered no evidence that the car was ever driven byexecutives of either William Chevrolet or Nissan. Miller hasthus raised a triable question on the misrepresentationrequirement of this element.

We conclude that a material controversy also exists on therequirement that defendant's misrepresentation involve a fact. Defendant argues that the designation "executive driven" has noclear meaning and at most is "puffing." Puffing is defined as a"bare and naked statement as to value" of a product and isconsidered a nonactionable assertion of opinion. People ex rel.Hartigan v. Maclean Hunter Publishing Corp., 119 Ill. App. 3d1049, 1059, 457 N.E.2d 480, 487 (1983) (quoting Duhl v. NashRealty Inc., 102 Ill. App.3d 483, 489, 429 N.E.2d 1267 (1981)). Statements of existing facts or comments that ascribe specificvirtues to a product are not generally considered puffing and maybe the subject of a fraud claim. Totz v. Continental Du PageAcura, 236 Ill. App. 3d 891, 904, 602 N.E.2d 1374, 1382 (1992). Whether a representation will be considered one of opinion orfact depends upon the circumstances of the case. Totz, 236 Ill.App. 3d at 904, 602 N.E.2d at 1382.

We find that a salesperson's description of a used car's as"executive driven" could be viewed as a statement about anexisting factual situation intended to conjure a specific,factual idea about the car's history in the mind of a typicalconsumer. Unlike phrases such as "expert workmanship," or"magnificent" which courts have found to be mere statements ofvalue (Breckenridge v. Cambridge Homes, Inc., 246 Ill. App. 3d810, 823, 616 N.E.2d 615, 623 (1993)), "executive driven" issufficiently susceptible of interpretation as a factualdescription of a car's history to defy our characterizing it as"puffing" as a matter of law. Miller has therefore put forwardsufficient question as to the categorization of "executivedriven" to survive summary judgment on this requirement of thefirst element of fraud.

Finally, a misrepresentation is "material" if the plaintiffwould have acted differently had he been aware of it, or if itconcerned the type of information upon which he would be expectedto rely when making his decision to act. Mackinac v. ArcadiaNational Life Insurance Co., 271 Ill. App. 3d 138, 141, 648N.E.2d 237, 239 (1995). Plaintiff's deposition indicated that hedid not want to purchase a car previously used for rentals andthat he would not have purchased the Altima in question had heknown of its history. Plaintiff's opinion witness also indicatedthat purchasers who request or knowingly accept cars previouslyused as rentals expect a reduction in price as a result. Furthermore, the fact that other states demand that rentalhistory be divulged in writing to prospective car buyers revealsthat this is precisely the type of information that people use asthe basis for purchasing decisions. See e.g., Mass. Regs. Codetit. 940,