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Pawlikowski v. Toyota Motor Credit Corp., No. 2-98-1649

2nd District, 23 December 1999

JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Candace Pawlikowski, appeals from the November 23, 1998, order of the circuit court of Du Page County dismissing, with prejudice, counts IV, V, and VI of her third amended complaint against the defendant, Toyota Motor Credit Corporation (TMCC). The plaintiff contends that she has sufficiently alleged causes of action for fraudulent misrepresentation, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/2 (West 1998)), and restitution to survive TMCC's motion to dismiss brought pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 1998)). We affirm in part and reverse in part.

I. Background

On February 24, 1994, the plaintiff filed her class action complaint against TMCC and Arlington Toyota, Inc. (Arlington), concerning a retail installment contract for the sale of a motor vehicle and an extended warranty.

The plaintiff alleged that she had entered into the retail installment contract on May 6, 1991, with Arlington. The contract was later assigned by Arlington to TMCC, a finance company. The plaintiff further alleged that the retail installment contract contained a certain disclosure as follows:

"OTHER CHARGES INCLUDING AMOUNTS PAID TO OTHERS ON YOUR BEHALF:

***

C. Cost of Optional Mechanical Breakdown Protection Paid to the MBP Company Named Below- Covering Certain Mechanical Repairs MECHANICAL BREAKDOWN INS. $900.00"

The plaintiff further alleged that although the retail installment contract provided that $900 was paid to the MBP (warranty company), this statement was misleading. The plaintiff alleged that the amount actually paid to the warranty company was substantially less, with the difference (upcharge) retained by Arlington.

This cause was certified to proceed as a class action on January 3, 1995. Thereafter, a class member filed an objection to a proposed settlement agreement. Following the trial court's denial of the objection and entry of an order approving the settlement, this court entered an order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23) reversing the trial court's order approving the settlement and remanding the cause for further proceedings. See Pawlikowski v. Grant-Davis, No. 2--96--0684 (1997) (unpublished order under Supreme Court Rule 23).

On August 26, 1998, the plaintiff filed her third amended complaint. Counts I, II, and III were directed at Arlington and are not at issue in this appeal. Counts IV, V, and VI were brought against TMCC. Count IV alleged fraudulent misrepresentation; count V, violations of the Consumer Fraud Act; and count VI, restitution. In count IV, the plaintiff alleged that TMCC had "printed and distributed" the form retail installment contract. The plaintiff also alleged that TMCC had conspired with Arlington to defraud consumers when TMCC knew that Arlington would retain an upcharge. In count V, the plaintiff alleged that TMCC had failed to advise the plaintiff of the misstatement on the retail installment contract. In count VI, the plaintiff alleged that TMCC had unjustly kept monies belonging to the plaintiff and requested "restitution."

On September 23, 1998, TMCC filed a motion to dismiss counts IV, V, and VI pursuant to section 2--615 of the Code. In its motion, TMCC argued that the plaintiff had failed to state viable causes of action and that the causes were not pled with specificity. TMCC contended that it was not liable under the Consumer Fraud Act as an assignee of the retail installment contract and that the plaintiff had failed to allege specifically the nature of the fraudulent conduct. TMCC also argued that it could not be held liable for fraud committed by Arlington.

On November 23, 1998, the trial court granted TMCC's motion to dismiss, with prejudice. The plaintiff filed a timely notice of appeal.

II. Discussion

On appeal, the plaintiff argues that (1) TMCC's "involvement" in the misstatement on the retail installment contract renders it liable for fraudulent misrepresentation and under the Consumer Fraud Act; (2) TMCC is liable under the preservation of claims provision of the retail installment contract; (3) her causes of action for fraudulent misrepresentation and under the Consumer Fraud Act were pled with sufficient specificity; and (4) restitution is a valid, independent cause of action. TMCC reasserts on appeal the same arguments made at the trial level and, in addition, requests that we review the trial court's order certifying the plaintiff class.

Because the complaint was dismissed in response to a section 2--615 motion to dismiss, the only question before this court is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). The issue is one of law, and our review is de novo. Vernon, 179 Ill. 2d at 344.

In reviewing a dismissal under section 2--615 of the Code, we must take all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts that are favorable to the pleader. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991). However, we will not take conclusions of law or fact as true unless they are supported by specific factual allegations. Ziemba, 142 Ill. 2d at 47. A cause of action should not be dismissed on the pleadings unless it is apparent that no set of facts can be proven that would entitle the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994).

A. Consumer Fraud Act

For her first contention on appeal, the plaintiff argues that she has properly stated a cause of action under the Consumer Fraud Act. TMCC argues that the plaintiff cannot state a claim under the Consumer Fraud Act because TMCC is not liable under the federal Truth in Lending Act (TILA) (15 U.S.C.