Bernhauser v. Glen Ellyn Dodge, Inc.

• Decision Date: 11 June 1997
• Docket Number: 2-96-1174 and 2-96-1188,ROHR-MONT,Nos. 2-96-1171,ROHR-VILLE,s. 2-96-1171
• Citation: 683 N.E.2d 1194,288 Ill.App.3d 984,225 Ill.Dec. 531
• Parties: , 225 Ill.Dec. 531 Ernest BERNHAUSER, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. GLEN ELLYN DODGE, INC., et al., Defendants-Appellees. Monohar L. JASUJA, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v.MOTORS, INC., f/k/a/ Toyota of Westmont, Defendant-Appellee. Kimberleigh A. WEBER, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v.MOTORS, INC., d/b/a/ Saturn of Waukegan, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1194

683 N.E.2d 1194

288 Ill.App.3d 984, 225 Ill.Dec. 531

Ernest BERNHAUSER, Indiv. and on Behalf of All Others

Similarly Situated, Plaintiff-Appellant, v. GLEN ELLYN DODGE, INC., et al., Defendants-Appellees.

Monohar L. JASUJA, Indiv. and on Behalf of All Others

Similarly Situated, Plaintiff-Appellant, v. ROHR-MONT MOTORS, INC., f/k/a/ Toyota of Westmont,

Defendant-Appellee.

Kimberleigh A. WEBER, Indiv. and on Behalf of All Others

Similarly Situated, Plaintiff-Appellant, v. ROHR-VILLE MOTORS, INC., d/b/a/ Saturn of Waukegan,

Defendant-Appellee.

Nos. 2-96-1171, 2-96-1174 and 2-96-1188.

Appellate Court of Illinois Second District.

June 11, 1997.

Vincent L. DiTommaso, Glen E. Berman, DiTommaso & Berman, P.C., Oakbrook Terrace, Tarranpaul S. Chawla, Chawla & Associates, Hinsdale, for Ernest Bernhauser in No. 2-96-1171 and Monohar L. Jasuja in No. 2-96-1174.

Jerald M. Mangan, Steven R. Johnson, Best, Mangan & Langhenry, Wheaton, for Glen Ellyn Dodge, Inc., Rohr-Mont Motors, Inc., Rohr-Ville Motors, Inc. in No. 2-96-1171, Rohr-Mont Motors, Inc. in No. 2-96-1174 and Rohr-Ville Motors, Inc. in No. 2-96-1188.

Kendall R. Meyer, Todd A. Rowden, Wilson & McIlvaine, Chicago, Charles A. Newman, Roman P. Wuller, Christopher M. Hohn, Thompson Coburn, St. Louis, MO, Allan M. Huss, Chrysler Corporation, Auburn Hulls, MI, for Chrysler Corporation.

Vincent L. DiTommaso, Glen E. Berman, DiTommaso & Berman, P.C., Oakbrook Terrace, Robert E. O'Neill, O'Neill & Bockelman, Lake Forest, for Kimberleigh A. Weber in No. 2-96-1188.

Justice INGLIS delivered the opinion of the court:

In the above-entitled cases, consolidated for decision in this court, class plaintiffs, Ernest Bernhauser (Bernhauser), Monohar L. Jasuja (Jasuja), and Kimberleigh A. Weber (Weber) (collectively, plaintiffs), ask us to decide whether their allegations state a claim under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)) against defendants, Glen Ellyn Dodge Inc. (Glen Ellyn), Rohr-Mont Motors, Inc. (Rohr-Mont), and Rohr-Ville Motors, Inc. (Rohr-Ville) (collectively, dealerships). Additionally, we are also called upon to decide whether Bernhauser has stated a claim for civil conspiracy against defendant Chrysler Corporation (Chrysler).

In case No. 2-96-1171, Bernhauser v. Glen Ellyn Dodge, Inc., Bernhauser alleged that he purchased a car from Glen Ellyn pursuant to a retail installment contract (RIC). In addition to the car, Bernhauser also purchased an extended-service contract. In the itemization of the various amounts owing on the RIC, Bernhauser alleged that Glen Ellyn placed the amount for the extended-service contract under the heading "Amounts Paid to Others for You," which inaccurately represented that this was a pass-through charge. Bernhauser alleged that instead of passing on the charge Glen Ellyn's standard practice was to pay a small amount as an administrative fee to a third party and keep the rest as profit.

On December 29, 1995, Bernhauser filed a class action complaint alleging that Glen Ellyn had violated the Consumer Fraud Act through the use of deceptive or misleading statements in the RIC. Plaintiff also eventually filed an amended count II of his complaint, alleging that defendant Chrysler engaged in a conspiracy with its dealerships to retain a substantial portion of the money collected for the extended-service contracts, which were listed under "Amounts Paid to Others for You" on the Chrysler RICs. Glen Ellyn moved to dismiss Bernhauser's complaint, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)), on the ground that compliance with the Truth in Lending Act (15 U.S.C. § 1601 et seq. (1994)) was a complete bar to liability. Chrysler also filed a motion to dismiss Bernhauser's complaint pursuant to section 2-615 on the ground that Glen Ellyn's compliance with the Truth in Lending Act barred its own vicarious liability. The trial court granted the motions to dismiss, finding that the Truth in Lending Act permitted the nondisclosure of where the extended-service contract money was going. On September 11, 1996, the trial court dismissed Bernhauser's complaint with prejudice, and his timely appeal followed.

In case No. 2-96-1174, Jasuja v. Rohr-Mont Motors, Inc., Jasuja made substantially the same allegations as Bernhauser. He alleged that Rohr-Mont listed the price of the extended-service contract under a section of the RIC entitled "Amounts Paid to Others for You," which gave rise to the inference that this was a pass-through charge. He further alleged that Rohr-Mont kept most of the money, passing a small amount along to a third party as an administrative fee.

Jasuja filed his third amended class action complaint on April 26, 1996, alleging that Rohr-Mont's practice of placing the charges for an extended-service contract under the heading "Amounts Paid to Others for You" violated the Consumer Fraud Act. Rohr-Mont moved to dismiss Jasuja's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)) on the grounds that the Truth in Lending Act and its accompanying regulations permitted it to place the charges for extended-service contracts under the "Amounts Paid to Others for You" heading and Rohr-Mont's compliance was a bar to liability. Rohr-Mont also alleged that Jasuja's failure to attach a copy of the extended-service contract was an alternate ground to dismiss the complaint because it was a necessary document. See 735 ILCS 5/2-606 (West 1994). The trial court granted Rohr-Mont's motion to dismiss, finding that compliance with the Truth in Lending Act acted as a bar against liability under the Consumer Fraud Act. On September 11, 1996, the trial court dismissed Jasuja's complaint with prejudice, and his timely appeal followed.

In case No. 2-96-1188, Weber v. Rohr-Ville Motors, Inc., Weber alleged that Rohr-Ville also placed the charges for an extended-service contract under the heading, "Amounts Paid to Others for You," yet kept most of the money and passed along a small portion to a third party. She alleged that this practice violated the Consumer Fraud Act.

Weber filed her class action complaint on May 26, 1995, alleging that Rohr-Ville violated the Consumer Fraud Act in count I, was unjustly enriched in count II, and alleged that Bank One Milwaukee violated the Consumer Fraud Act in count III. Weber voluntarily dismissed counts II and III early in 1996. Rohr-Ville moved to dismiss Weber's complaint pursuant to section 2-615 of the Code of Civil Procedure on the grounds that Weber's allegations of misrepresentation were contradicted by exhibits attached to the complaint, her allegations were not made with sufficient specificity, and she did not sufficiently plead damages under the Consumer Fraud Act.

The trial court granted Rohr-Ville's motion on May 9, 1996, finding that Rohr-Ville's compliance with the Truth in Lending Act was a defense to a consumer fraud claim. Weber filed a motion to reconsider, which was denied on June 6, 1996. On June 24, 1996, Weber filed an "Emergency Motion to Present Additional Authority," the functional equivalent to a motion to reconsider the ruling on the first motion to reconsider. On July 11, 1996, the trial court entered an order purporting to stay the time for filing a notice of appeal for 45 days. On September 6, 1996, the trial court denied Weber's "Emergency Motion to Present Additional Authority." Weber filed a notice of appeal on October 2, 1996.

Before we reach the merits of the appeals, we must first consider whether we have jurisdiction over Weber's appeal. A notice of appeal must be filed within 30 days of the entry of the final judgment appealed from. 155 Ill.2d R. 303(a)(1). "No request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed under [Rule 303]." 155 Ill.2d R. 303(a)(2).

The trial court's ruling became final and appealable on June 6, 1996, when it denied Weber's motion to reconsider its May 9, 1996, order granting Rohr-Ville's motion to dismiss. Weber's notice of appeal was due on July 6, 1996. Weber's filing of her second motion to reconsider (the "Emergency Motion to Present Additional Authority") did not toll the running of the time period. Accordingly, her notice of appeal was almost three months late and is ineffective.

Weber argues that her second post-judgment motion was filed within the 30-day period during which a trial court retains jurisdiction over a matter after disposing of it. She contends that this is sufficient to allow the trial court to rule on her motion and that the trial court's "stay" of the notice of appeal was an implicit vacation of its June 6 ruling on Weber's first post-judgment motion, citing to Workman v. St. Therese Medical Center, 266 Ill.App.3d 286, 203 Ill.Dec. 690, 640 N.E.2d 349 (1994), for support.

Workman is factually distinguishable. There, the plaintiff filed a motion and an order was entered (1) vacating the trial court's order that struck the plaintiff's first post-judgment motion, and (2) reinstating the first post-judgment motion. Workman, 266 Ill.App.3d at 289, 203 Ill.Dec. 690, 640 N.E.2d 349. Here, Weber did not file a motion to vacate the trial court's June 6 order, and, equally importantly, the trial court did not vacate the June 6 order. It simply purported to stay the time for filing the notice of appeal. Workman does not support Weber's position, and we continue to regard Weber's second post-judgment motion as a second motion to reconsider.

Weber next argues that her second post-judgment motion raised new issues that could not have been raised in the first motion and, thus, falls within an exception to the rule that subsequent post-judgment motions will not extend the time to file a notice of appeal. Aetna Life Insurance Co. v. H.W. Stout & Associates, Inc., ...