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SIXTH DIVISION

August 2, 2002

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff Thomas Mark Stone filed a four-count complaintagainst Clifford Chrysler-Plymouth, Inc. (Clifford), and ChryslerFinancial Corporation. Counts I and III are directed againstClifford and allege violations of the Consumer Fraud and DeceptiveBusiness Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq.(West 1992)) and common law fraud, respectively. The trial courtgranted Clifford's motion for summary judgment as to counts I andIII. Plaintiff appeals asserting the existence of genuine issuesof material fact. The issue before us is whether there are genuineissues of material fact as to whether the "cost to repair" thepresale damage to plaintiff's vehicle exceeded 6% of the manufac-turer's suggested retail price (MSRP) of the vehicle and, if so,whether Clifford had "actual knowledge" of the damage therebyrequiring Clifford to disclose the damage to plaintiff pursuant tothe Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/5(West 1998)). For the reasons that follow, we reverse and remand.

On September 26, 1998, plaintiff entered into a motor vehiclelease agreement with Clifford to lease a 1998 Jeep Grand Cherokee. The agreed-upon value of the vehicle stated on the lease agreementis $37,590.89. On October 24, 1998, the desired vehicle wasacquired by Clifford from Crossroads Lincoln Mercury ChryslerPlymouth, Inc. (Crossroads), and, on October 26, 1998, the vehiclewas delivered to plaintiff.

According to plaintiff's deposition testimony, on the day hedrove the car home from Clifford, he noticed a rattling in thedoor. When he opened the door he noticed two small pieces of glasson the frame. Plaintiff informed Jack Metz, a Clifford employee,about the glass. According to plaintiff, Metz told him that he didnot know how the glass got there. Plaintiff further testified thatat a later date, the entire inside door panel fell off and thepassenger door began leaking. Sometime thereafter, the car wasscratched by a valet service and plaintiff took the car to berepainted. According to plaintiff, the repair facility informedhim that the car had previously been repainted.

On December 17, 1999, plaintiff filed his four-count com-plaint. Counts I and III of the complaint are directed againstClifford and allege statutory and common law fraud. According tothe complaint, Clifford's employee, Jack Metz, who sold the vehicleto plaintiff, misrepresented to plaintiff that the vehicle was newand failed to inform plaintiff that it was in a "severe accident"prior to its sale to plaintiff. Plaintiff further alleges that herelied on Clifford's representations, which Clifford knew werefalse, and suffered damages as a result.

On January 17, 2001, Clifford filed its motion for summaryjudgment as to counts I and III of plaintiff's complaint. Themotion asserted that there is no evidence that the vehicle was everin an accident or that Clifford had actual knowledge of any damageto the vehicle prior to its delivery to plaintiff and, therefore,plaintiff cannot establish a material misrepresentation of fact. In support of its motion, Clifford attached the affidavit of JackMetz, which stated that upon being informed by plaintiff thatplaintiff had heard broken glass rattling in the vehicle, Metztelephoned Crossroads to find out the cause. On January 7, 2000,Crossroads provided Clifford with its statement to its insurancecompany and the repair order regarding the vehicle. The insurancestatement, which is attached to Clifford's motion, reflects abroken window, a stolen radio, and damage to the dash. In hisaffidavit, Metz stated that, although he eventually learned of thedamage and repairs to the vehicle, which occurred while in thepossession of Crossroads, neither he nor anyone at Clifford hadknowledge of this prior to the sale to plaintiff.

In addition, Clifford's motion further asserted that, pursuantto the Franchise Act (815 ILCS 710/5 (West 1998)), even if Cliffordhad knowledge of the damage, it had no duty to disclose it becausethe cost to repair the damage (which, under the Franchise Act, doesnot include the cost of repairs involving glass or in-dash audioequipment) did not exceed 6% of the retail price of the vehicle. The invoice amount listed on the Crossroads repair order shows atotal cost to repair of $2,557.62, which includes the cost torepair the glass and audio equipment.

In his response to Clifford's motion, plaintiff first assertedthat he was not making a claim under the Franchise Act and thatwhether the extent of the damage was in excess of 6% of the salesprice was irrelevant. Plaintiff argued that Clifford committedcommon law and statutory fraud based on its misrepresentation toplaintiff that the vehicle was new. Plaintiff further assertedthat even if the court found that the Franchise Act applied, therewere genuine issues of material fact as to whether the extent ofthe damage to the vehicle exceeded 6% of the price. Plaintiffcontended that if the vehicle had been properly repaired, therepairs would have cost in excess of 6% of the vehicle's price.

Plaintiff attached the affidavit of his expert, William J.Anderton, to his response. After inspecting the vehicle, Andertonmade the following conclusions:

"The subject vehicle has sustained damage thatrequired repair/repaint activity to the hoodpanel, left front door, left rear door and thefront of the left quarter panel (these repairshave not been properly completed). In addi-tion, the repairs likely included the replace-ment of the left front door glass and theradio. There may also have been damage andrepair to the instrument panel.

The selling dealer certainly would havepossessed knowledge of this damage and thecorrective repairs. However, the repaintmasking lines and the paint color and texturedifferences should have been obvious to anyprofessional working in the automobile salesor repair business.

When considering 'proper' repair/repaintactivity as well as the replacement of thedoor glass and the radio, the value of therepairs to the subject vehicle would have beenin excess of twenty-three hundred dollars($2300.00) in September of 1998.

Additionally, the value of the subjectvehicle would have been impaired by approxi-mately twenty-five hundred dollars ($2500.00)in September of 1998, when compared to anidentical 'new' vehicle that had never experi-enced any repair and repaint activity. Thereduction in value would be similar to that ofa dealer demonstrator car discount."

Relying on his expert's report and testimony, plaintiff arguedthat questions of material fact exist regarding Clifford's "actionsin misrepresenting the quality and characteristics of the[vehicle], and as to whether the damage to the vehicle was inexcess of 6% of the manufacturer's retail price."

On March 9, 2001, the trial court found that plaintiff failedto present competent evidence that Clifford had actual knowledge ofthe presale damage and that the cost to repair the presale damageamounted to greater than 6% of the retail sales price and grantedsummary judgment in favor of Clifford.

Our review of a trial court's grant of summary judgment is denovo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154Ill. 2d 90, 102 (1992); Dunlap v. Alcuin Montessori School, 298Ill. App. 3d 329, 338 (1998). A motion for summary judgment shouldbe granted when " 'the pleadings, depositions, and admissions onfile, together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law.' " Purtill v. Hess, 111Ill. 2d 229, 240 (1986), quoting Ill. Rev. Stat. 1983, ch. 110,par. 2-1005(c). Summary judgment is a drastic means of disposingof litigation and should be granted only in circumstances where theright of the moving party is clear and free from doubt. Harris v.Old Kent Bank, 315 Ill. App. 3d 894, 899 (2000).

Section 5 of the Franchise Act provides in pertinent part:

"A motor vehicle dealer shall disclose tothe purchaser before delivery of the new motorvehicle, in writing, any damage that thedealer has actual knowledge was sustained orincurred by the motor vehicle at any timeafter the manufacturing process was completebut before delivery of the vehicle to thepurchaser. This disclosure is not requiredwhen the cost to repair does not exceed 6% ofthe manufacturer's suggested retail price ofthe vehicle based upon the dealer's actualretail repair cost, including labor, parts,and materials if the damage is repaired or theretail estimate to repair the vehicle if it isnot repaired.

Damage to glass, tires, bumpers, and in-dash audio equipment is not to be consideredin determining the cost of repair if replacedwith the manufacturer's original equipment.

If disclosure is not required under thisSection, a purchaser may not revoke or rescinda sales contract due to the fact the newvehicle was damaged and repaired beforecompletion of the sale. In that circumstance,nondisclosure does not constitute a misrepre-sentation or omission of fact." 815 ILCS710/5 (West 1998).

Plaintiff asserts that summary judgment was improper becausehe presented evidence that if the vehicle were repaired properly,the cost to repair would have exceeded 6% of the price of the car. The Franchise Act provides that the "cost to repair" is based uponeither (1) "the dealer's actual retail repair cost, includinglabor, parts, and materials if the damage is repaired" or (2) "theretail estimate to repair the vehicle if it is not repaired." 815ILCS 710/5 (West 1998).

We find that there is a genuine issue of material fact as tothe total cost to repair the vehicle. Plaintiff relies on theaffidavit of his expert, who states that the cost to repair thevehicle is in excess of $2,300. Plaintiff's expert stated at hisdeposition that the repairs included in his estimate were "the timeand materials necessary to repair the vehicle for broken glass,replace the radio, and paint two doors, a quarter and a hood,portion of the hood, portion of the quarter." Plaintiff alsopoints out that the expert's estimate did not include certainrepairs that were not done and that would raise the estimate. Theexpert's affidavit raised an issue as to whether the repairs weredone properly. It is unclear whether the car has been repairedproperly. Because the evidence presented to the court on the "costto repair" raises a question of fact, summary judgment on thisissue is inappropriate.

Moreover, there is absolutely no evidence in the record on themanufacturer's suggested retail price of the vehicle in question. Clifford states in its memorandum, which accompanied its motion forsummary judgment, that the "value of the vehicle at the time ofsale was $37,590.39." Nowhere in the record is it indicated that$37,590.39 was the manufacturer's suggested retail price. Becausethe Franchise Act specifically refers to the MSRP and because thereremains an issue of fact as to the MSRP of the vehicle at issue,this also precludes summary judgment.

Accordingly, because there exists genuine issues of fact as towhether the cost to repair the vehicle amounts to greater than 6%of the MSRP, the trial court erred in granting summary judgment inClifford's favor.

Plaintiff also argues that a genuine issue of fact exists asto whether Clifford had actual knowledge of the damage.

According to the affidavit of Jack Metz, no one at Cliffordknew that the vehicle's window had been broken or that its radiohad been stolen while the vehicle was in possession of Crossroadsprior to delivery to Clifford. However, plaintiff argues thataccording to its expert anybody with automotive experience "wouldhave been able to see [the repaint masking lines and paint colorand texture differences] in the vehicle during any routine or evenin-depth type of inspection that they would have or should havedone to a vehicle prior to delivery."

Plaintiff's expert's affidavit is sufficient to at least raisea genuine issue of fact as to Clifford's "actual knowledge" of thedamage and precludes summary judgment.

Based on the foregoing, we hereby reverse summary judgment infavor of Clifford and remand for further proceedings.

Reverse and remand.

Gallagher, P.J., and O'Brien, J., concur.