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SECOND DIVISION
September 30, 2003

No. 1-02-1363

JUSTICE WOLFSON delivered the opinion of the court:

Plaintiff Thomas Petty brought this action againstdefendants Chrysler Corporation (Chrysler) and his formeremployer North Shore Dodge, Incorporated, also known as GregoryDodge (Gregory Dodge), based on statutory fraud under theConsumer Fraud and Deceptive Business Practices Act (ConsumerFraud Act) and common law misappropriation of identity.

The dispute arose when Petty's name appeared in a massmailing conducted by Chrysler to promote Gregory Dodge afterPetty stopped working at that dealership. Plaintiff appeals thecircuit court's order granting summary judgment to defendants. We affirm in part and reverse and remand in part.

FACTS

Petty worked as a sales manager for defendant Gregory Dodge,an authorized Chrysler dealership, during 1993 and 1994. OnMarch 31, 1994, Petty resigned his position at Gregory Dodge andimmediately began working for Dodge of Glenview. Both GregoryDodge and Dodge of Glenview are in Chrysler's ChicagoMetropolitan Sales Locality.

Defendant Chrysler, an automobile manufacturer, establisheda marketing program called "Customer One Ownership LoyaltyProgram" ("Customer One") to increase repeat business fromprevious purchasers. To participate in the program, a dealershippaid a fee for each car it sold and, in return, Chrysler sent thepurchasing customer newsletters and quarterly magazines promotingthe dealership. Each dealership selected a representative, whosename appeared as a computer-generated signature on the mailingsalong with the dealership's information. A dealership couldchange its designated representative by indicating the change ona quarterly form or by calling a toll-free number. In May 1993,Gregory Dodge submitted its quarterly "Customer One" form toChrysler listing Petty as the dealership's representative. Chrysler distributed the first issue of the "Customer One"magazine in October 1994.

In October 1994, Lother Siegel, one of Petty's formercustomers from Gregory Dodge, showed Petty the "Customer One"magazine and cover letter Siegel had received. The cover letterwas signed "Thom Petty" and promoted Gregory Dodge's customerservice. Petty notified Chrysler's District Sales Manager RonaldFries that Petty's name should not have appeared on the GregoryDodge mailings because he no longer worked there. That same day,Fries called the toll-free "Customer One" number and removedPetty's name from the database before the next quarterly mailing.

Petty contends he never authorized Gregory Dodge to use hisname in the "Customer One" mailings. In a deposition, Pettytestified he told Fries on his first day of work at Dodge ofGlenview that he no longer worked for Gregory Dodge. That sameday, Petty also notified George Oswald that he switcheddealerships. Oswald was the Chrysler Field Operations manager incharge of the district sales and service managers in the Chicagoarea.

Petty testified in a deposition that he was shocked andupset when he discovered his name was used in the "Customer One"mailings for Gregory Dodge. He stated he lost two or threenights' sleep and his reputation was damaged, especially amonghis coworkers at Dodge of Glenview who teased him about being "incahoots" with a competitor.

Petty filed a series of amended complaints against Chryslerand Gregory Dodge alleging violations of the Consumer Fraud Actand common law misappropriation of identity for using his namewithout his consent.

In Chrysler's answer to Petty's complaint, it denied knowingPetty became sales manager for Dodge of Glenview or that his namewas appearing in the "Customer One" magazine for Gregory Dodge.

Shahan Alexanian, a Gregory Dodge employee, signed the"Customer One" form listing Petty as the "acting principaldealer" for the dealership. Alexanian stated in an affidavitthat Petty had directed him to use his name on the form. However, in a subsequent deposition, Alexanian admitted Pettynever told him to use his name for the "Customer One" program.

In Petty's second amended complaint, he contended Chryslerand Gregory Dodge diluted his goodwill and caused him to losepotential commission income (Counts I & II). In addition, Pettysought attorney fees (Count III) and punitive damages (Count IV)for the alleged violation of the Consumer Fraud Act. In Count Vand VI, Petty claimed common law misappropriation of his identityand punitive damages for the misappropriation. In total, Pettyrequested the court award him $3 million or 10% of thedefendants' net worth, attorney fees, and costs.

Chrysler filed a motion for summary judgment on all counts,which Gregory Dodge joined, contending Petty failed to produceany evidence to support his claims for damages for dilution ofgoodwill or lost income. In Petty's response to the motion, hecontended Gregory Dodge's financial reports contained sufficientevidence to support his claims. The reports indicated GregoryDodge earned $9,881 in gross profits in the "Customer Labor-Mechanical" account in August 1994. In September 1994, the monthChrysler published the "Customer One" letters, the gross profitsin that account increased to $14,717 and remained above theAugust level for the rest of that year. Gregory Dodge also soldmore used cars in September than in August.

The trial court granted the defendants' motion for summaryjudgment on Counts I through IV. The court found Petty failed tooffer any evidence presenting a factual issue on damages and saidPetty's evidence did not indicate a connection between profitsand the mailings. The court stated, "[Petty's] selective use ofsales figures is misleading in that new car sales droppedbeginning September 1994 and profits for the mechanicaldepartment as a whole show no pattern after September of 1994."

The court subsequently held a pretrial conference to hearthe parties' arguments on damages for the remainingmisappropriation counts. Petty's attorney argued Pettyadequately pleaded damages, because nominal damages are presumedin misappropriation cases. Petty's attorney also argued thecourt should not limit Petty to recovering nominal damages on theremaining counts for misappropriation of Petty's name. Heattempted to persuade the court that damages for economic loss,mental suffering, personal humiliation, and impairment ofreputation should also be presumed. The court disagreed, butallowed Petty to amend Counts V and VI of his complaint to allegespecial damages.

Petty subsequently amended Counts V and VI to includespecial damages for mental suffering and damage to hisreputation. Petty also repleaded Counts I, III, and IV as theyappeared in the second amended complaint. In addition, Pettypleaded new versions of Counts I, III, and IV, alleging the samespecial damages as Count V.

Chrysler and Gregory Dodge filed a hybrid motion asking thecourt to dismiss the remaining counts or grant them summaryjudgment. Defendants contended Petty failed to sufficientlyplead special damages in Count V and punitive damages under CountVI were not available in the absence of actual damages. The onlyevidence of Petty's special damages was his deposition testimony,which did not include any specific facts to establish his allegedmental suffering or harm to his reputation.

The trial court concluded Petty failed to allege sufficientfacts to establish special damages and granted defendants'motion. The court's order did not specify whether it wasdismissing all counts or granting summary judgment; however, asubsequent handwritten order mentioned only defendants' motionfor summary judgment and that the court granted the motion infavor of defendants on all counts.

On appeal, Petty contends the trial court erred in grantingsummary judgment on his Consumer Fraud Act claims because agenuine issue of material fact exists as to damages. Second,Petty contends he is entitled to attorney fees under the ConsumerFraud Act. Third, Petty contends he presented sufficientevidence of the defendants' "reckless indifference" toward hisrights to warrant an award of punitive damages. Fourth, Pettycontends the trial court improperly dismissed his remainingmisappropriation of identity claims because special damages formental anguish are presumed. Finally, Petty contends the trialcourt improperly disregarded the revised Counts I, III, and IV inthe third amended complaint.

DECISION

Before reaching the merits of this appeal, we must addressthe parties' confusion about whether the trial court dismissedCounts V and VI pursuant to section 2-615 of the Illinois Code ofCivil Procedure (Code) (735 ILCS 5/2-615 (West 2002)) or grantedsummary judgment.

A section 2-615 dismissal recognizes the legal insufficiencyof the complaint due to defects in the complaint's allegations. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d1282 (1994). Alternatively, a trial court will grant summaryjudgment if it reviews the pleadings and the evidence in therecord in a light most favorable to the nonmoving party and findsthe nonmoving party failed to present a genuine issue of materialfact. Harrison v. Hardin County Community School District No. 1,197 Ill. 2d 466, 470, 758 N.E.2d 848 (2001). To determinewhether the court dismissed this matter or granted summaryjudgment, we review how defendants' motion was decided by thetrial court. See Carter v. New Trier East High School, 272 Ill.App. 3d 551, 555, 650 N.E.2d 657 (1995).

In this case, defendants' hybrid motion sought dismissalpursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West2002)) or, alternatively, summary judgment. Although the trialcourt did not specify whether it was granting a dismissal orsummary judgment, the order stated, "the motion for summaryjudgment must be granted." More important, the court consideredPetty's deposition testimony, which falls outside the scope of asection 2-615 dismissal on the pleadings.

Based on the language in the order and the parties'treatment of it, we conclude the trial court granted summaryjudgment and review the matter accordingly. The standard ofreview is de novo. Harrison, 197 Ill. 2d at 470-71.

I. CONSUMER FRAUD ACT -- COUNTS I, III, & IV

A. Actual damages - Count I

First, we must decide whether Petty presented a factualissue on actual damages to support the consumer fraud counts inhis second amended complaint.

To sufficiently plead a private cause of action undersection 2 of the Consumer Fraud Act, a plaintiff must allege: (1)the defendant engaged in a deceptive act; (2) the defendantintended that the plaintiff rely on the deception; (3) thedeception occurred in the course of trade or commerce; (4) theplaintiff suffered actual damages; and (5) the damages wereproximately caused by the deception. Oliveira v. Amoco Oil Co.,201 Ill. 2d 134, 149, 776 N.E.2d 151 (2002), see 815 ILCS 505/2(West 2002). Although the Attorney General may prosecute aviolation without showing damages, a private party must show botha violation and actual damages to recover under the ConsumerFraud Act. Oliveira, 201 Ill. 2d at 149.

A plaintiff need not prove the amount of damages to anabsolute certainty; however, he must present enough evidence tocreate a genuine issue of fact pertaining to damages. City ofChicago v. Michigan Beach Housing Cooperative, 297 Ill. App. 3d317, 323, 698 N.E.2d 804 (1998). That evidence must include abasis for computing damages with a fair degree of probability. Chicago, 297 Ill. App. 3d at 323. "[D]amages may not bepredicated on 'mere speculation, hypothesis, conjecture or

whim.' " Chicago, 297 Ill. App. 3d at 323, quoting In ReApplication of Busse, 124 Ill. App. 3d 433, 438-39, 464 N.E.2d651 (1984). Generally in fraud cases, "damages are measured bythe plaintiff's loss, not the defendant's gain." Chicago, 297Ill. App. 3d at 326.

In Petty's second amended complaint, he pleaded two types ofactual damages under his consumer fraud counts -- lostcommissions and dilution of goodwill. Thus, we consider whetherPetty created a fact issue as to the alleged damages.

1. Lost commissions

Because damages must be based on the plaintiff's loss andnot the defendants' gain (Chicago, 297 Ill. App. 3d at 326), wefind Petty failed to present a question of material fact on hisalleged lost commissions. Petty bases his claim for lostcommissions on Gregory Dodge's financial reports which show thedealership enjoyed increased profits from "Customer Labor" andused car sales after the "Customer One" letters were published. However, the reports do not show any evidence of how the lettersaffected Petty's own commissions. For instance, Petty did notpresent any evidence that his commissions dropped after the"Customer One" letters were mailed. Instead, Petty relies onGregory Dodge's used car sales and one of the mechanicaldepartment's accounts which showed increased profits beginning inSeptember 1994. Petty asks this court to infer that theincreases are due to the publication of the "Customer One"mailings.

We believe such an inference is inappropriate, especiallybecause Petty did not dispute the fact that customers did notactually receive the letters until October. This fact supportsthe trial court's conclusion that, based on Gregory Dodge'sprofits, Petty merely speculated he lost commissions as a resultof the letters.

2. Dilution of goodwill

Second, we find Petty did not acquire personal goodwill as asalesman; therefore, no question of fact exists to support recovery of actual damages under the theory of dilution ofgoodwill.

" 'Goodwill is the value of a business or practice thatexceeds the combined value of the physical assets.' " In reMarriage of Talty, 166 Ill. 2d 232, 238, 652 N.E.2d 330 (1995). Courts have also defined goodwill as the advantages that abusiness enjoys over its competitors as a result of its name,location and owner's reputation. Russell v. Jim Russell Supply,Inc., 200 Ill. App. 3d 855, 862-63, 558 N.E.2d 115 (1990). Notall businesses possess goodwill, which is an intangible asset. Russell, 200 Ill. App. 3d at 863.

In some cases, individuals in professional practices acquire goodwill. See Talty, 166 Ill. 2d at 239. However, Illinoiscourts have distinguished personal goodwill acquired byprofessionals, such as attorneys, from personal goodwill claimedby nonprofessionals. See Talty, 166 Ill. 2d at 239. In Talty,the court had to determine the extent to which a car dealership'sgoodwill was based on the owner's personal efforts. Distinguishing the car dealership from professional practices,the court recognized personal and enterprise goodwill weredistinct from one another in the case of the dealership. Thecourt held any goodwill the dealership acquired due to theowner's personal efforts would cease to exist if his involvementwith the dealership ended. Talty, 166 Ill. 2d at 240.

However, Petty contends an individual can acquire goodwilland cites O'Hara v. Ahlgren, Blumenfeld, and Kempster, 127 Ill.2d 333, 344, 537 N.E.2d 730 (1989). In O'Hara, the court foundthe parties' contract was intended to transfer a deceasedattorney's goodwill. O'Hara is inapposite because it involvedthe goodwill acquired by a professional; here, we are dealingwith a nonprofessional.

Based on the above cases, we believe Petty, as an individualcar salesman, did not acquire goodwill outside of the dealershipswhich employed him. See Talty, 166 Ill. 2d at 239-40.

Even if Petty had a rightful claim to personal goodwill as asalesman, he presents no evidence that he lost any of it due tothe "Customer One" letters.

We agree with Petty's contention that courts shouldliberally construe the Consumer Fraud Act to effectuate itspurposes. 815 ILCS 505/11a (West 2002). But that does notexcuse a complete failure of proof. We believe Petty failed topresent a factual issue concerning damages to goodwill.

B. Attorney fees and punitive damages - Counts III & IV

Because we conclude Petty failed to show actual damages andsummary judgment was proper, we also conclude the trial courtproperly disposed of the additional counts for attorney fees andpunitive damages. See Brody v. Finch University of HealthSciences, 298 Ill. App. 3d 146, 161, 698 N.E.2d 257 (1998) (onlyprevailing parties are entitled to recover attorney fees); Haymanv. Autohaus on Edens, Inc., 315 Ill. App. 3d 1075, 1078, 734N.E.2d 1012 (2000) (denying punitive damages absent a showing ofactual damage in a fraudulent misrepresentation action).

C. Special Damages

Petty also contends the trial court erred in disregardingthe revised Counts I, III, and IV in his third amended complaint. Petty contends the court granted him leave to amend his complaintto plead special damages and then retracted it by stating Pettyonly had the right to amend Counts V and VI.

However, Petty never requested leave to amend Counts I, III,and IV to allege special damages, either after the court grantedsummary judgment or when he filed a motion to reconsider thesummary judgment in December 2000. Instead, Petty attempted torevive the counts more than two years later in his third amendedcomplaint. Petty contends the court allowed him to do this whenit granted Petty leave to amend during the pretrial conference.During that conference, the court reiterated that it had disposedof Counts I through IV for failure to show actual damages. Thefocus of the conference was to determine what damages Pettyclaimed with respect to the remaining counts formisappropriation. In reference to Count V, the court suggestedPetty move to amend the complaint to allege special damages,which his counsel did.

Based on the record, we believe Petty ignored the context ofthe court's leave to amend and mistakenly applied it to hisConsumer Fraud counts. Accordingly, the trial court did notabuse its discretion in restricting Petty's amendments to CountsV and VI and disregarding the revised Consumer Fraud counts inthe third amended complaint.

II. COMMON LAW MISAPPROPRIATION OF IDENTITY -- COUNTS V & VI

Next, we consider whether the trial court properly grantedsummary judgment on Petty's misappropriation of identity claimsfor failure to show damages.

A. Presumed damages

Misappropriation of identity is a tort arising from theright to privacy and is designed to prevent the commercial use ofone's name or image without consent. Ainsworth v. Century SupplyCo., 295 Ill. App. 3d 644, 648, 693 N.E.2d 510 (1998). To pleadmisappropriation of identity, the plaintiff must claim "anappropriation without consent, of one's name or likeness foranother's use or benefit." Dwyer v. American Express Co., 273Ill. App. 3d 742, 748, 652 N.E.2d 1351 (1995). A claimantalleging misappropriation of identity need not prove actualdamages, because the court will presume damages if someoneinfringes another's right to control his identity. Ainsworth,295 Ill. App. 3d at 650.

In Ainsworth, the plaintiff brought an action formisappropriation of identity after the defendants used theplaintiff's image from an instructional video in a televisioncommercial. Although the plaintiff agreed to appear in thevideo, he did not consent to the use of his image in acommercial. As in this case, the trial court granted thedefendants summary judgment on the misappropriation claims,finding the plaintiff failed to present an issue on damages. Onappeal, the court held that misappropriation of identityinfringes the right to control the use of one's image; therefore,the courts will presume nominal damages. Ainsworth, 295 Ill.App. 3d at 649. The court said:

"[P]laintiff has alleged the infringement ofhis legal right to use of his image. It isproper to vindicate plaintiff's right to theuse of his image against this deliberateviolation, even if plaintiff cannot proveactual damages. [Citation omitted.] Inaddition, we note that the courts of Illinoishave long presumed that nominal damages areavailable for this tort." Ainsworth, 295Ill. App. 3d at 650.

Based on this reasoning, the court reversed the order grantingsummary judgment. Following Ainsworth, we believe the trialcourt erred in granting summary judgment to defendants on CountV.

B. Actual damages vs. special damages

In addition to nominal damages, Petty contends specialdamages, such as mental distress, also are presumed inmisappropriation of identity actions.

First, it is helpful to distinguish actual and specialdamages.

" 'Special, as contradistinguished fromgeneral damage, is that which is the natural,but not the necessary, consequence of the actcomplained of.' Roberts v. Graham, 73 U.S.578, 579, 18 L. Ed. 791 (1867). *** Whetherthe particular kind of injury gives rise to'special' damages thus depends on the tortcommitted. The usual consequences of a wrongare 'general' damages, and the unusualconsequences are 'special.' [Citationomitted.] *** The classification of emotionaldistress can be difficult: are emotionalinjuries expected or unexpected ***?" Nealv. Honeywell, Inc., 191 F. 3d 827, 832(1999).

In this case, we must address whether emotional distress isan actual or special damage in tort cases based onmisappropriation of identity.

In Eick v. Perk Dog Food Co., 347 Ill. App. 293, 106 N.E.2d742 (1952), the plaintiff brought an action against the defendantfor using her photograph in an advertisement withoutauthorization. The plaintiff claimed she lost sleep and sufferedreputational damage, humiliation, and mental anguish; however,the plaintiff did not allege special damages. Recognizing a tortfor invasion of privacy, the court said:

"Basically, recognition of the right toprivacy means that the law will takecognizance of an injury, even though no rightof property or contract may be involved andeven though the damages resulting areexclusively those of mental anguish. Aperson may not make an unauthorizedappropriation of the personality of another,especially of his name or likeness, withoutbeing liable to him for mental distress aswell as the actual pecuniary damages whichthe appropriation causes." Eick, 347 Ill.App. at 299.

The court in Ainsworth presumed nominal damages in amisappropriation of identity case. Ainsworth, 295 Ill. App. 3dat 649. The court also found the plaintiff presented a factissue on actual damages. First, the court held the plaintiff,who testified he was angry about the misappropriation, did nothave to experience severe mental distress to recover more thannominal damages in a misappropriation of identity case. Second,the court found the plaintiff's image had value to the defendant,and as a result of the misappropriation, the defendant derived acommercial benefit. The court reversed summary judgment to givethe plaintiff the opportunity to prove the value of thedefendant's use of his image and damages arising from emotionaldistress. Ainsworth, 295 Ill. App. 3d at 650-51.

In Smith v. WGN, Inc., 47 Ill. App. 2d 183, 197 N.E.2d 482(1964), the plaintiff sued the defendant for using in itstelevision commercial video footage of the plaintiff playingtennis. This court relied on Eick for the proposition theplaintiff could "recover more than nominal damages" for anguish,distress, and humiliation in a right to privacy action. Smith,47 Ill. App. 2d at 186.

Chrysler contends emotional and reputational damages arespecial damages which must be pleaded with particularityaccording to the holding in Schaffer v. Zekman, 196 Ill. App. 3d727, 736, 554 N.E.2d 988 (1990). Chrysler contends the evidenceobtained through Petty's deposition testimony consists of generalallegations, just like the allegations in Schaffer. SeeSchaffer, 196 Ill. App. 3d at 733 (holding special damages formental anguish and humiliation must be pleaded with particularityto sustain a false-light invasion of privacy cause of action).

In Petty's deposition, he testified he was shocked, puzzled,upset, and enraged by the "Customer One" letter bearing his name. Additionally, Petty testified he lost sleep and was teased by hiscoworkers. Chrysler argues this testimony is simply conclusoryevidence that is legally insufficient to survive summaryjudgment.

Schaffer is a false-light invasion of privacy case involvingdefamatory language. The present appeal is based on a commercialmisappropriation of identity. Schaffer, which raised free speechissues, is not instructive.

Based on the above cases, we conclude damages for mentalsuffering and distress could be expected and constitute actualdamages in misappropriation of identity cases. Furthermore,plaintiff's deposition testimony concerning lost sleep and thedistress he suffered due to his name appearing in Gregory Dodge'scustomer mailings is sufficient to present a fact issue ondamages. Not only are nominal damages presumed, plaintiff alsopresented a fact issue on actual damages. Accordingly, wereverse the trial court's judgment granting defendants' motionfor summary judgment on Count V.

C. Punitive damages - Count VI

Finally, we must decide whether the trial court properlybarred Petty from seeking punitive damages for misappropriationof identity.

Punitive damages are not favored in the law. Canal andHale, Ltd. v. Tobin, 304 Ill. App. 3d 906, 920, 710 N.E.2d 861(1999). A court may award punitive damages if the defendant'stortious acts are malicious or display reckless disregard foranother's rights. Ainsworth, 295 Ill. App. 3d at 651. Thepurpose of punitive damages is to punish the defendant and deterothers from the same conduct; however, they are awarded only incases with aggravated circumstances, such as fraud, willfulness,wantonness, or malice. Canal, 304 Ill. App. 3d at 920. "Punitive damages should not be awarded if the defendant'smisconduct is not above and beyond the conduct needed for thebasis of the underlying cause of action." Canal, 304 Ill. App.3d at 920, citing Parsons v. Winter, 142 Ill. App. 3d 354, 361,491 N.E.2d 1236 (1986). The initial decision of whether punitivedamages are available to the plaintiff is a matter of law for thetrial judge to determine. Ainsworth, 295 Ill. App. 3d at 651.

In Ainsworth, the court reversed summary judgment onpunitive damages because there were facts showing the defendants'culpable mental state. Specifically, the defendants failed toobtain the plaintiff's consent to use his image in the televisioncommercial because a defendant's sales manager assumed theplaintiff "would be thrilled" to appear in a commercial. Ainsworth, 295 Ill. App. 3d at 651. In addition, the defendantsinitially denied the plaintiff appeared in the commercial whenthe plaintiff confronted them about it. The record alsoindicated the defendants continued to air the commercial formonths after the plaintiff requested they stop broadcasting it. On appeal, the court found these facts presented a question ofmaterial fact concerning defendants' mental state and the courtreversed the order granting summary judgment, thus allowing theplaintiff's claim for punitive damages to proceed. Ainsworth,295 Ill. App. 3d at 652.

In this case, the only evidence Petty cites to support hisclaim for punitive damages is Gregory Dodge's unauthorized use ofhis name on the "Customer One" enrollment form, Alexanian's falseaffidavit submitted by Gregory Dodge during discovery, andChrysler's disputed knowledge of his departure from Gregory Dodgeprior to the mailings. These facts alone do not present evidenceof malice or a reckless disregard of Petty's rights, nor do thefacts in this case approach the egregiousness of Ainsworth. Furthermore, unlike Ainsworth, Chrysler immediately removedPetty's name from the mailings upon his request and before thenext publication. Absent some indication of malice or recklessdisregard, we conclude punitive damages are inappropriate in thiscase and the trial court did not err in granting defendantssummary judgment on Count VI.

CONCLUSION

For the above stated reasons, we affirm the trial court'sdecision on Counts I, III, IV, and VI, and reverse and remandCount V for further proceedings.

Affirmed in part; reversed and remanded in part.

CAHILL, and BURKE, JJ., concur.