Dewan v. Ford Motor Co.
| Decision Date | 30 December 2005 |
| Docket Number | No. 1-04-3020.,1-04-3020. |
| Parties | John DEWAN, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Aron D. Robinson, Law Office of Aron D. Robinson, Stuart Berks, Deutsch, Levy & Engel, Chartered, Chicago, for Appellant.
Stephen R. Swofford, Daniel K. Ryan, Hinshaw & Culbertson LLP, Chicago, Brian C. Anderson, David Guhse Caperton, O'Melveny & Myers, Washington, D.C., for Appellee.
This is the second appeal stemming from the plaintiff's, John Dewan, suit on behalf of himself and all others similarly situated, against the defendant, Ford Motor Company (Ford), alleging violations of the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C. § 2301 et seq. (1994)) and the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Act) (815 ILCS 505/1 et seq. (West 1998)). Our prior opinion in this case did not reach the merits of the issues raised on appeal. Instead, we determined that, while we had jurisdiction of the appeal, the appeal was premature because the circuit court had not yet ruled on the plaintiff's pending petition for attorney fees. The case was reversed and remanded to the trial court for either a hearing on the petition or a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)). Dewan v. Ford Motor Co., 343 Ill.App.3d 1062, 1075, 278 Ill.Dec. 673, 799 N.E.2d 391 (2003).1
On remand, the circuit court ordered the plaintiff's petition for attorney fees continued generally and made a finding that there was no reason to delay enforcement or appeal of its orders dismissing the complaint and denying the plaintiff leave to file an amended complaint. The plaintiff timely appeals, raising the following issues: (1) whether the circuit court erred in dismissing the complaint; (2) whether the trial court abused its discretion when it failed to rule on the motion to certify the class prior to ruling on the motion to dismiss; and (3) whether the denial of the plaintiff's motion for leave to file an amended complaint was an abuse of discretion.
The complaint alleged as follows. The plaintiff purchased a new Lincoln Continental automobile from Ford. After hearing a rattling sound in his new car, he returned the car to the dealership to be repaired. The dealership was unable to repair his car, and a second dealership was equally unsuccessful. Ford denied the plaintiff's request to replace the car. As a result of the defect, the car was worth less than the plaintiff paid for it. Had the plaintiff known of the defect, he would not have purchased the car.
After removing the case to federal court, Ford answered the complaint. Subsequently, the case was remanded to the circuit court of Cook County. The plaintiff filed his motion for class certification. Thereafter, Ford sought leave to file its motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9)) (West 1998) (claim barred by other affirmative matter) and to defer consideration of the plaintiff's motion for class certification. The circuit court granted Ford leave to file its motion to dismiss and continued generally the motion for class certification.
At the hearing on its motion to dismiss, Ford maintained that its replacement of the defective sensors mooted the complaint. The circuit court granted Ford's motion to dismiss, but indicated that it would consider an amended complaint. On March 23, 2000, the plaintiff filed a motion for leave to file an amended complaint.
On July 6, 2000, a hearing was held on the plaintiff's motion for leave to file an amended complaint. Ford argued that even though the plaintiff's amended complaint included two new factual allegations, the diminished value of his car and that Ford had failed to replace the front height sensors on his car; and two new legal counts, breach of promise to repair and injunctive relief; these allegations and theories had previously been raised and dealt with in the hearing on Ford's motion to dismiss. Ford also argued that the plaintiff could not now seek injunctive relief because he sought only legal remedies in his original complaint.
In response, the plaintiff argued that Ford was still in breach of its warranty because it had not replaced all of the defective sensors, even though the front sensors had not yet caused a problem. The plaintiff had pleaded damages because Ford had sold him a car with defects, making the car not worth its purchase price. The plaintiff sought injunctive relief to force Ford to inform other purchasers of the defective sensors so that they could be replaced prior to the expiration of the warranty period. The circuit court denied the plaintiff leave to file an amended complaint.
Motions to dismiss under section 2-619 of the Code are reviewed de novo. Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 344, 249 Ill.Dec. 303, 736 N.E.2d 145 (2000).
Ford's motion to dismiss was brought pursuant to section 2-619(a)(9), which provides that a complaint may be dismissed when it is barred by an affirmative matter avoiding the legal effect of or defeating the claim. Giles v. General Motors Corp., 344 Ill.App.3d 1191, 1194, 280 Ill.Dec. 607, 802 N.E.2d 858 (2003); 735 ILCS 5/2-619(a)(9) (West 1998). A section 2-619(a)(9) motion assumes a cause of action has been stated but asserts that the claim is defeated by some affirmative matter that avoids the legal effect of or defeats the claim. Cwikla v. Sheir, 345 Ill. App.3d 23, 29, 280 Ill.Dec. 158, 801 N.E.2d 1103 (2003). An "`affirmative matter'" in a section 2-619(a)(9) motion is something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint. Cwikla, 345 Ill.App.3d at 29, 280 Ill.Dec. 158, 801 N.E.2d 1103. An affirmative matter encompasses any defense other than a negation of the essential elements of the plaintiff's cause of action. Cwikla, 345 Ill.App.3d at 30, 280 Ill.Dec. 158, 801 N.E.2d 1103. If a cause of action is dismissed pursuant to a section 2-619(a)(9) motion, the question on appeal is whether there is a genuine issue of material fact and whether the defendant is entitled to a judgment as a matter of law. Cwikla, 345 Ill.App.3d at 30, 280 Ill.Dec. 158, 801 N.E.2d 1103. The reviewing court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the plaintiff. Cwikla, 345 Ill.App.3d at 29, 280 Ill.Dec. 158, 801 N.E.2d 1103.
The plaintiff contends, first, that, the repair of his vehicle did not moot his cause of action under the Consumer Act. The complaint alleged that the defect caused the car to be worth less than the plaintiff paid for it and, had the plaintiff known of the defective sensors, he would not have purchased the vehicle or would have paid substantially less for it.
The diminished value of a product due to defects associated with the product is a compensable injury in consumer fraud and breach of warranty causes of action. Schiffner v. Motorola, Inc., 297 Ill.App.3d 1099, 1108, 232 Ill.Dec. 126, 697 N.E.2d 868 (1998). The Schiffner court noted that in Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996), our supreme court reinstated a consumer fraud count where the damage claim was based on diminished value. Schiffner, 297 Ill.App.3d at 1109, 232 Ill. Dec. 126, 697 N.E.2d 868; Connick, 174 Ill.2d at 501-05, 221 Ill.Dec. 389, 675 N.E.2d 584. The Schiffner court observed that in Perona v. Volkswagen of America, Inc., 292 Ill.App.3d 59, 225 Ill.Dec. 868, 684 N.E.2d 859 (1997), while the damage allegations were not addressed, the Perona court noted and did not disagree with the plaintiffs' claim that if the problem with the vehicles was eventually remedied, their damages would be the amount of the diminution of the resale value. Schiffner, 297 Ill.App.3d at 1109, 232 Ill.Dec. 126, 697 N.E.2d 868; Perona, 292 Ill.App.3d at 62-63, 225 Ill.Dec. 868, 684 N.E.2d 859. The court distinguished Verb v. Motorola, Inc., 284 Ill.App.3d 460, 220 Ill.Dec. 275, 672 N.E.2d 1287 (1996) on the basis that in Verb, the complaint did not plead sufficient facts showing the diminished value of the product. Schiffner, 297 Ill.App.3d at 1108, 232 Ill.Dec. 126, 697 N.E.2d 868.
Ford responds that, under Illinois law, where a manufacturer repairs the defect complained of, the plaintiff has suffered no legally cognizable damage, relying on Kelly v. Sears Roebuck & Co., 308 Ill.App.3d 633, 242 Ill.Dec. 62, 720 N.E.2d 683 (1999). In Kelly, the court found that the plaintiff sufficiently established that Sears had defrauded its customers by selling used batteries as new ones. The plaintiff alleged that, had he been aware of Sears' practice, he would not have purchased the batteries or not paid the price he did for them. However, after filing suit, the plaintiff received a refund from Sears, which he used to purchase a similar battery under the terms of the warranty. The court concluded that Kelly, 308 Ill.App.3d at 645, 242 Ill.Dec. 62, 720 N.E.2d 683.
Kelly is distinguishable. First, the complaint in that case was dismissed for failure to state a cause of action under section 2-615 (735 ILCS 5/2-615 (West 1998)). In the present case, by seeking dismissal pursuant to section 2-619(a)(9), Ford concedes that the complaint stated a cause of action. Secondly, in Kelly, the plaintiff alleged only that he believed that the battery he purchased...
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