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Liberty Chevrolet, Inc. v. Rainey

Case Date: 06/11/2003
Court: 2nd District Appellate
Docket No: 2-02-0396 Rel

No. 2--02--0396

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

LIBERTY CHEVROLET, INC., ) Appeal from the Circuit Court
) of Du Page County.
                Plaintiff and Counter- )
                defendant-Appellee, )
)
v. ) No. 01--LM--3689
)
CONNIE RAINEY,  )
) Honorable
               Defendant and Counter- ) Hollis L. Webster,
               plaintiff-Appellant. ) Judge, Presiding.

JUSTICE CALLUM delivered the opinion of the court:

Plaintiff and counterdefendant, Liberty Chevrolet,Incorporated, sued in replevin (735 ILCS 5/19--101 et seq. (West2000)) to recover an automobile that it had sold to defendant andcounterplaintiff, Connie Rainey. Defendant filed a seven-countcounterclaim alleging that plaintiff violated several federal andstate consumer protection laws and seeking various types of relief. Relying on the arbitration clause in the parties' sales contract,plaintiff moved to compel arbitration of the counterclaim. Thetrial court granted the motion and allowed the voluntary dismissal(see 735 ILCS 5/2--1009 (West 2000)).

Defendant appeals (see 188 Ill. 2d R. 307(a)(1)), arguing thatplaintiff waived its contractual right to arbitration by choosingto sue in circuit court instead of demanding the arbitration of itsreplevin claim. We disagree and affirm.

The pertinent facts are not in dispute. On November 14, 2001,plaintiff filed its complaint in replevin, alleging that defendantwrongfully retained a 1998 Chevrolet Malibu valued at $9,750. Plaintiff demanded possession of the car, the value of property notdelivered, damages for the detention, and attorney fees and costs.

On January 25, 2002, defendant filed an answer and a seven-count counterclaim seeking damages (compensatory and punitive) anddeclaratory and injunctive relief. The counterclaim is based onthe circumstances under which plaintiff induced defendant to signthe purchase contract and the accompanying financing contract. Defendant signed these documents on July 11, 2001.

Counts I and II of the counterclaim, based on the Truth inLending Act (15 U.S.C.A.