Tolve v. Ogden Chrysler Plymouth, Inc.
Case Date: 08/29/2001
Court: 2nd District Appellate
Docket No: 2-00-0527, 0947
cons. Rel
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JUSTICE RAPP delivered the opinion of the court: These consolidated appeals arise from an action brought in thecircuit court of Du Page County by plaintiffs, Nicola Tolve andPamela Tolve, against defendants, Ogden Chrysler Plymouth, Inc.,d/b/a Bill Kay Chrysler Plymouth, Inc. (Dealer), and ChryslerMotors Corporation, n/k/a DaimlerChrysler Motors Corp. (Chrysler),in connection with the purchase of a 1997 Plymouth Neon automobile. Nicola was dismissed from the suit by the trial court and is not aparty to either appeal. The trial court granted summary judgmentin favor of the Dealer and Chrysler. In appeal No. 2--00--0527,Pamela argues that the trial court erred in granting summaryjudgment. We affirm. The second appeal, No. 2--00--0947, was brought by Dealerafter the trial court dismissed its petition for attorney feespursuant to section 10a(c) of the Consumer Fraud and DeceptiveBusiness Practices Act (Consumer Fraud Act) (815 ILCS 505/10a(c)(West 1998)). We reverse and remand. The following facts are taken from the record on appeal. OnDecember 23, 1996, Pamela, her husband, and her in-laws, Nicola andFaustina Tolve, went to Dealer because Nicola was in the market fora new vehicle. Pamela and her husband accompanied Nicola andFaustina in order to interpret because Nicola and Faustina do notspeak English. Pamela's in-laws became interested in purchasing anew Plymouth Neon. According to Pamela, the salesman told her that there was a$400 rebate available to purchasers who graduated from college inthe last two years. Pamela asked the salesman if she qualified,explaining that she completed a program at the Institute ofManagement at Illinois Benedictine College. Pamela said that thesalesman advised her that if the certificate was earned in the lasttwo years she would be eligible for the rebate. Pamela furtheralleges that the salesman advised her that she should become a co-buyer of the vehicle so that Nicola could take advantage of the$400 rebate. Dealer asserts that Pamela misrepresented herself asa college graduate or at least misled the salesman. Pamela said that they did not want to take delivery of thevehicle that day because Nicola wanted to clean up his trade-in andPamela wanted to bring her certificate to the salesman. Accordingto Pamela, the Dealer wanted them to take delivery that day andrushed them through the paperwork. Nicola and Pamela purchased thePlymouth Neon as co-buyers. The $400 college-graduate rebate wascredited against the price of the vehicle. Pamela's in-laws alsodecided to buy a service contract. Ultimately, Chrysler refused to provide the college-graduaterebate because Pamela was not a college graduate. Pamela'scertificate from Illinois Benedictine College reads as follows: "This certifies that Pamela L. Tolve has completed the programof continuing education for middle managers of Chicagolandbusiness and industries in The Institute For Management and inrecognition thereof is awarded this Certificate Summa CumLaude Given at Lisle, Illinois, this 3rd Day of June, 1995." Dealer filed a small claims complaint in the circuit court ofDu Page County against Pamela and Nicola, seeking $400, costs, andattorney fees. When Pamela and Nicola moved to file acounterclaim, Dealer dismissed the suit. Pamela claimed that sheincurred over $400 in attorney fees defending the small claimssuit. After the small claims suit was dismissed, Nicola and Pamelafiled a two-count complaint against Dealer and Chrysler. Count I,pleaded under the Consumer Fraud Act, alleged that Dealer (a)advertised low financing rates that were actually unavailable; (b)sold the vehicle for more than sticker price; (c) sold a servicecontract that was actually duplicative of the manufacturer'swarranty; and (d) told Pamela she qualified for a $400 college-graduate rebate when she did not. Count I also alleged that Dealerwas acting as an agent or apparent agent of Chrysler. Count IIalleged a cause of action for common-law fraud based on the samefactual allegations made in count I. The complaint prayed for$30,000 in compensatory damages and $100,000 in punitive damages. On December 18, 1998, Dealer filed an answer, affirmativedefenses, and a counterclaim. The counterclaim was against Pamela. Count I of the counterclaim alleged that her misrepresentation thatshe was a college graduate was an unfair business practice underthe Consumer Fraud Act. Count II alleged that Pamela's conductconstituted common-law fraud. Dealer prayed for $400 incompensatory damages, punitive damages of $1,000, attorney fees,and costs. The trial court granted Pamela's motion to dismissunder section 2--615 of the Code of Civil Procedure (Code) (735ILCS 5/2--615 (West 1998)) count I of Dealer's counterclaim. CountII of Dealer's counterclaim remained. Nicola and Pamela filed anamended complaint on September 22, 1999. The trial court grantedNicola's motion for the voluntary dismissal of his claims againstDealer and Chrysler pursuant to section 2--1009 of the Code (735ILCS 5/2--1009 (West 1998)). Thereby, Pamela became the soleplaintiff in the lawsuit. On April 6, 2000, the trial court granted summary judgment forDealer and Chrysler on both counts of Pamela's amended complaint,which left Dealer's common-law fraud counterclaim against Pamela asthe only remaining controversy between the parties. The trialcourt determined pursuant to Supreme Court Rule 304(a) (134 Ill. 2dR. 304(a)) that there was no just reason to delay appeal of itsorder granting summary judgment. Pamela timely appealed. On May 10, 2000, Dealer filed a petition for attorney feespursuant to section 10a(c) as the prevailing party under theConsumer Fraud Act (815 ILCS 505/10a(c) (West 1998)). Pamela fileda motion to dismiss Dealer's petition for attorney fees, claimingthat the petition was untimely. At the hearing on Pamela's motion to dismiss Dealer's petitionfor attorney fees, Pamela argued that Dealer's petition wasuntimely because it was filed on May 10, 2000, more than 30 daysbeyond the April 6, 2000, order granting summary judgment. Accordingly, Pamela argued that the trial court was without thejurisdiction to hear Dealer's fee petition. Dealer argued in thefirst instance that the trial court had the jurisdiction to rule onthe fee petition because Dealer's counterclaim remained pending. Secondly, Dealer argued that its petition should be consideredfiled on May 4, 2000, the day it was mailed, and therefore thepetition was timely. The trial court rejected Dealer's arguments and dismissedDealer's petition. The trial court found that the Dealer'spetition was filed May 10, 2000. The trial court ruled that it didnot have the jurisdiction to hear Dealer's petition for attorneyfees because the petition was filed more than 30 days after theorder granting summary judgment. The trial court made a findingthat there was no just reason to delay the appeal of the orderpursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Dealer timely appealed. In appeal No. 2--00--0527, Pamela contends that the trialcourt erred as a matter of law in granting summary judgment forDealer and Chrysler on both counts of her complaint. We disagree. Summary judgment is proper only where the pleadings,depositions, and admissions on file, together with the affidavits,if any, show that no genuine issue as to any material fact existsand that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998). In ruling on the motion, thecourt is required to construe all evidentiary material strictlyagainst the movant and liberally in favor of the nonmovant. LaurelMotors, Inc. v. Airways Transportation Group of Cos., 284 Ill. App.3d 312, 316 (1996). While the nonmoving party in a summaryjudgment motion is not required to prove his case, he mustnonetheless present a factual basis that would arguably entitle himto a judgment. Gauthier v. Westfall, 266 Ill. App. 3d 213, 219(1994). If from the pleadings, depositions, affidavits, andadmissions on file, a plaintiff fails to establish an element ofhis cause of action, summary judgment for the defendant is proper. Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989). We conduct de novoreview of an order granting summary judgment. American Multi-Cinema, Inc. v. City of Warrenville, 321 Ill. App. 3d 349, 353(2001). In her amended complaint, Pamela made four allegations thatshe claimed violated the Consumer Fraud Act and constituted common-law fraud: (a) Dealer advertised low financing rates that wereactually unavailable; (b) Dealer charged more than the stickerprice; (c) Dealer misled her into purchasing a service contractthat provided duplicate coverage of the manufacturer's warranty;and (d) Dealer misrepresented the availability of a $400 college-graduate rebate. The elements of a cause of action for fraud under the ConsumerFraud Act are (1) a statement by the seller; (2) of an existing orfuture material fact; (3) that was untrue, without regard to thedefendant's knowledge or lack thereof of such untruth; (4) made forthe purpose of inducing the reliance; (5) on which the victimrelied; and (6) that resulted in damage to the victim. Duran v.Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1041 (1992). Theelements of a cause of action for common-law fraud are (1) a falsestatement of material fact; (2) known or believed to be false bythe party making it; (3) an intent to induce the other party toact; (4) action by the other party in reliance on the truth of thestatement; and (5) damage to the other party as a result of thereliance. Pawlikowski v. Toyota Motor Credit Corp., 309 Ill. App.3d 550, 563-64 (1999). In granting summary judgment, the trial court ruled thatPamela had not established the requisite element of damage becauseshe did not pay for, or use, the Plymouth Neon. Pamela only becamea co-buyer so that her father-in-law, Nicola, could enjoy the $400college-graduate rebate. Therefore, any damage caused by thedefendants' alleged fraudulent acts was not suffered by Pamela. The trial court also held that, even if the attorney fees expendedby Pamela to defend the small claims case filed by Dealer could beconsidered damage, Pamela had not presented facts sufficient toestablish that she paid such fees. Pamela contends that she has established in several ways damage as a result of Dealer's misrepresentations. First, Pamelacontends that she has established damage because she is a co-buyerof the Plymouth Neon and obligated as a signator under the contractof sale and the retail installment contract. Pamela argues thatbecause she could sue or be sued to enforce the contract shesuffered damage by the acts of Dealer and Chrysler. We reject thiscontention. There is no question that Pamela is technically inprivity of contract with Dealer. This fact, as Pamela points out,would allow her to maintain a cause of action for breach ofcontract if a breach occurred, but it does not establish therequisite element of damage for the common-law and statutory tortsthat Pamela has pleaded. Pamela also contends that the $400 rebate itself constitutesdamage and the fact that Dealer has counterclaimed to collect the$400 from Pamela is evidence of damage she suffered due to Dealer'stortious conduct. We fail to see how the $400 rebate couldconstitute damage. At this point, Pamela in theory and Nicola infact have received the benefit of the $400 college-graduate rebate,since it was credited against the Plymouth Neon and has not beenrecouped by Dealer. The attempt by Dealer to recoup that amountfrom Pamela was abandoned when Dealer dismissed the small claimssuit and only reemerged when Pamela decided to sue the Dealer. Inshort, Pamela is not out $400. Pamela contends that the attorney fees she expended to defendthe small claims lawsuit filed by Dealer constitute damagesufficient to establish that element of the torts alleged. Pamelacites Duran as authority for her argument. Duran, however, doesnot hold that damages in the form of attorney fees are recoverableagainst the same tortfeasor in a prior action concerning the samewrongful act. In fact, Duran cites the cases of Marvel EngineeringCo. v. Matson, Driscoll & D'Amico, 150 Ill. App. 3d 787 (1986), andNalivaika v. Murphy, 120 Ill. App. 3d 773 (1983), which hold that,where the wrongful acts of a defendant involve the plaintiff inlitigation with third parties, plaintiff may recover damagesagainst the wrongdoer, measured by the reasonable expenses of suchlitigation, including attorney fees. Marvel Engineering, 150 Ill.App. 3d at 793; Nalivaika, 120 Ill. App. 3d at 776. Moreover,section 914(2) of the Restatement (Second) of Torts states: "(2) One who through the tort of another has beenrequired to act in the protection of his interests by bringingor defending an action against a third person is entitled torecover reasonable compensation for loss of time, attorneyfees and other expenditures thereby suffered or incurred inthe earlier action." (Emphasis added.) Restatement (Second)of Torts |
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