Brooks v. Midas-International Corp.

• Decision Date: 24 March 1977
• Docket Number: No. 62159,MIDAS-INTERNATIONAL,62159
• Citation: 47 Ill.App.3d 266,5 Ill.Dec. 492,361 N.E.2d 815
• Parties: , 5 Ill.Dec. 492 Donald J. BROOKS and Howard T. Goffen, Plaintiffs-Appellants, v.CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 815

361 N.E.2d 815

47 Ill.App.3d 266, 5 Ill.Dec. 492

Donald J. BROOKS and Howard T. Goffen, Plaintiffs-Appellants, v. MIDAS-INTERNATIONAL CORPORATION, Defendant-Appellee.

No. 62159.

Appellate Court of Illinois, First District, Fourth Division.

March 24, 1977.

[5 Ill.Dec. 494] Jonas, Schey & Associates, Chicago, for plaintiffs-appellants; Alan L. Jonas, Edward A. Cooper, Chicago, of counsel

Kirkland & Ellis, Chicago, for defendant-appellee; E. Houston Harsha, Garrett B. Johnson, Chicago, of counsel.

LINN, Justice.

Plaintiffs appeal from the dismissal of those counts of their amended complaint which alleged a class action. The sole issue on appeal is whether the amended complaint sets forth facts sufficient to maintain a class action suit.

Plaintiff Brooks' counts of the amended complaint alleged that, although defendant guarantees that a replacement muffler will be installed for only an installation charge, ¹ defendant actually charges for replacement of parts such as clamps, hangers and pipes associated with the muffler system.

On July 7, 1971, plaintiff Brooks drove his automobile to a Midas Muffler Shop to purchase a muffler installation. He was charged $136.38 upon completion of the work. Two years later, plaintiff returned to a Midas Muffler Shop to have the muffler replaced. In addition to the installation charge of $9.50, a charge of $48.10 was assessed for replacement parts other than the muffler itself. Plaintiff Brooks alleged this additional charge to be in violation of the Consumer Fraud Act (Ill.Rev.Stat.1971, ch. 121 1/2, pars. 261 Et seq.) and the Uniform Deceptive Trade Practices Act (Ill.Rev.Stat.1971, ch. 121 1/2, pars. 311 Et seq.) in that defendant misrepresented its guarantee for the purpose of creating the impression in consumers' minds that no charges would be assessed other than an installation charge. It was further claimed that defendant's purpose was to induce plaintiff Brooks and other class members to purchase from defendant instead of its competitors.

The amended complaint seeks damages for Brooks and all members of the class for the various amounts paid in excess of the installation charge, and that a receiver be Plaintiff Goffen's counts of the amended complaint alleged defendant's violation of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1973, ch. 121 1/2, par. 261 Et seq.) Goffen's suit is based upon similar acts by defendant in misrepresenting its guarantee for similar purposes.

[5 Ill.Dec. 495] appointed to collect and administer the funds awarded as damages. In addition, injunctive relief is sought to enjoin defendant from its advertising practice, and from assessing any charges for muffler replacements other than an installation charge.

On April 27, 1974, plaintiff Goffen purchased a muffler installation and paid $67.00 upon completion of the work. Goffen seeks injunctive relief for himself and on behalf of all class members to restrain defendant from further advertising its mufflers in a misleading and deceptive manner, and to enjoin defendant from assessing any charge other than a nominal installation charge.

A separate count of the amended complaint alleged that, at the time the muffler installation was purchased by Goffen, defendant represented in its advertising that it would replace any muffler sold and installed by defendant without an installation charge. Goffen alleged he was nonetheless given a written guarantee which provided for an installation charge. Injunctive relief is sought to enjoin this practice and to further enjoin defendant from assessing any charges relative to the repair or replacement of the muffler system installation.

The trial court granted defendant's motion to strike and dismiss the amended complaint, ruling that the cause could not be maintained as a class action. Pursuant to Supreme Court Rule 304 (Ill.Rev.Stat.1975, ch. 110A, par. 304), the trial court found that there was no just reason to delay enforcement or appeal of its order.

OPINION

At the outset, we note that in determining the sufficiency of a complaint when attacked by a motion to strike or dismiss, all well pleaded facts must be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722.) The disposition of a motion to dismiss must be made upon the allegations contained in the complaint and, although defendant makes repeated references to plaintiff Brooks' testimony taken by discovery deposition, it cannot properly be considered in determining the sufficiency of the amended complaint. Mutual Tobacco Co. v. Halpin (1953), 414 Ill. 226, 111 N.E.2d 155.

I. BROOKS' CLASS ACTION.

The advantages inherent in a class action are to vindicate the rights of numerous claimants in one action when individual actions might be impracticable. (Adams v. Jewel Companies, Inc. (1976), 63 Ill.2d 336, 348 N.E.2d 161.) Class actions in Illinois are governed by case law. (Gaffney v. Shell Oil Co. (1974), 19 Ill.App.3d 987, 312 N.E.2d 753; People ex rel. Aramburu v. City of Chicago (1966), 73 Ill.App.2d 184, 219 N.E.2d 548.) It has been held that the basic test to be applied is 'the existence of a community of interest in the subject matter and a community of interest in the remedy,' among all who make up the purported class. (DePhillips v. Mortgage Associates, Inc. (1972), 8 Ill.App.3d 759, 291 N.E.2d 329; See also Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill.2d 532, 155 N.E.2d 595; Smyth v. Kaspar American State Bank (1956), 9 Ill.2d 27, 136 N.E.2d 796.) This requires that 'all members of the class (must be) found to have a common interest in the questions involved and the results * * *.' (Peoples Store of Roseland v. McKibbin (1942), 379 Ill. 148, 152--153, 39 N.E.2d 995, 998; Also see Hagerty v. General Motors Corp. (1974), 59 Ill.2d 52, 57, 319 N.E.2d 5; Fiorito v. Jones (1968), 39 Ill.2d 531, 541--544, 236 N.E.2d 698.) Among the factors to be considered in deciding whether the required community of interests exists are whether the class members share a common question of law and fact; whether the claims arise from the same transaction or transactions so similar that they are tantamount to the same transaction; whether the named party can adequately represent the rights of the class; and whether the number of class members renders separate litigation impossible or impractical. (Magro v. Continental Toyota, Inc. (1976), 37 Ill.App.3d 1, 344 N.E.2d 675. Landesman v. General Motors Corp. (1976), 42 Ill.App.3d 363, 1 Ill.Dec. 105, 356 N.E.2d 105.) These factors, while not conclusive of the question, serve as an aid in determining whether a valid class exists.

Section 2 of the Consumer Fraud Act (Ill.Rev.Stat.1971, ch. 121 1/2, par. 262) provides:

'The Act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact With intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise, Whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; * * *.' (emphasis supplied)

In Rice v. Snarlin, Inc. (1970), 131 Ill.App.2d 434, 442, 266 N.E.2d 183, 188--189, it was held that the Consumer Fraud Act authorized private causes of action for damages even though the express language of the Act gave the Attorney General exclusive powers under it. The court recognized that although the legislature did not expressly provide for private remedies under the Act, it did make the seller liable to the consumer for any violation of the Act. The court reasoned that:

'(T)he legislature obviously must have intended to invest the consumer with the right to enforce his claim. To deny this right would be to effectively release the seller from the liability provided for in the Act.'

Defendant, while conceding that Brooks' amended complaint states a valid invidual cause of action for damages, contends that a class action would be improper under the facts of this case. We disagree.

The community of interest requisite to the proper maintenance of a class action is present since the common interest centers on defendant's conduct in advertising its muffler guarantee. This advertising was alleged to have misrepresented and concealed the fact that the term 'muffler' as employed by defendant referred only to one portion of the muffler system, and that other parts would require additional charges, whereas it was defendant's purpose by its advertising to create the impression in the minds of consumers that its guarantee meant replacement for only an installation charge.

Defendant asserts that a class action may not be maintained since the element of reliance is a question which is individual to each class member and thus defeats class action status. Defendant's contention is based upon the argument that different customers would have individual reactions to defendant's advertising and that some may have relied on the advertising while others may not have seen it at all. Under the common law, reliance was an element which had to be alleged in order to constitute a valid cause of action for misrepresentation or deceit. (Kuch & Watson, Inc. v. Woodman (1975), 29 Ill.App.3d 638, 331 N.E.2d 350; Edwards v. Chicago & Northwestern Ry. Co. (1967), 79 Ill.App.2d 48, 223 N.E.2d 163; See also Private Remedies Under the Consumer Fraud Acts: The Judicial Approaches of Statutory Interpretation and Implication (1972), 67 N.W.L.Rev. 413.) However, the language employed in the Consumer Fraud Act clearly indicates that it is the intent of the defendant in his conduct, not the reliance or belief of the plaintiff, which is the pivotal point upon which an action arises. (Cf. Edelman v. Lee Optical Co. (1974), 24 Ill.App.3d 216, 320 N.E.2d 517.) Section 2 of the Act specifically provides that the question of...