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Boeckenhauer v. Joe Rizza Lincoln Mercury

Case Date: 10/12/2005
Court: 2nd District Appellate
Docket No: 2-04-1213 Rel

No. 2--04--1213

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

TOM R. BOECKENHAUER and JEANBOECKENHAUER,

              Plaintiffs-Appellees,

v.

JOE RIZZA LINCOLN MERCURY and
OLD KENT BANK,

               Defendants

(Ford Motor Company, Defendant-
Appellant).

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)		Appeal from the Circuit Court
of Du Page County.



No. 99--L--1149





Honorable
Kenneth L. Popejoy,
Judge, Presiding.
 

JUSTICE GROMETER delivered the opinion of the court:

Defendant Ford Motor Company (Ford) appeals an order of the circuit court of Du PageCounty denying its request that plaintiffs Tom R. Boeckenhauer and Jean Boeckenhauer be requiredto pay Ford's attorney fees pursuant to section 10a(c) of the Consumer Fraud and Deceptive BusinessPractices Act (Consumer Fraud Act) (815 ILCS 505/10a(c) (West 2002)). For the reasons set forthbelow, we vacate the order of the circuit court and remand this cause for further proceedings.

In September 1998, plaintiffs executed a retail installment contract for the purchase of a used1997 Mercury Villager from Joe Rizza Lincoln Mercury (Rizza). The vehicle was manufactured byFord. The retail installment contract was subsequently assigned to Old Kent Bank. Approximatelytwo months after plaintiffs bought the car, the right front wheel of the vehicle fell off while Jean wasdriving it. Plaintiffs later discovered that the vehicle had been in an accident before they acquired itand that the vehicle had been repaired with salvage parts.

On November 9, 1999, plaintiffs filed a multiple-count complaint in the circuit court of DuPage County, naming Rizza, Ford, and Old Kent Bank as defendants.(1) Plaintiffs subsequentlyamended their complaint, which, with respect to both Ford and Rizza, alleged common-law fraud andviolations of the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 1998)) and the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act (Magnuson-Moss) (15 U.S.C.