Dewan v. Ford Motor Co.

• Decision Date: 30 September 2003
• Docket Number: No. 1-01-3259.,1-01-3259.
• Citation: 278 Ill.Dec. 673,343 Ill. App.3d 1062,799 N.E.2d 391
• Parties: John DEWAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

799 N.E.2d 391

343 Ill. App.3d 1062

278 Ill.Dec. 673

John DEWAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

No. 1-01-3259.

Appellate Court of Illinois, First District, Third Division.

September 30, 2003.

Aron D. Robinson, Law Offices of Aron D. Robinson, Stuart Berks, Deutsch, Levy & Engel, Chartered, Chicago, for Appellant.

Stephen R. Swofford, Daniel K. Ryan, Hinshaw & Culbertson, Chicago, John H. Beisner, Brian C. Anderson, Teresa E. Dawson, O'Melveny & Myers LLP, Washington, D.C., for Appellee.

Justice HALL delivered the opinion of the court:

The plaintiff, John Dewan, appeals from orders of the circuit court of Cook County dismissing his complaint against the defendant, Ford Motor Company (Ford), denying him leave to amend his complaint and denying his motion to set a briefing schedule and hearing date for his petition for attorney fees.

During the pendency of this appeal, Ford filed a motion to strike those portions of the plaintiff's appellant's brief dealing with the dismissal of his complaint and the denial of leave to file an amended complaint on the basis that those matters were barred by the doctrines of res judicata and/or law of the case. We ordered Ford's motion taken with the case.

Ford also raises an issue as to this court's jurisdiction to hear this appeal.

For reasons set forth in this opinion, we conclude that we have jurisdiction of this appeal. However, we do not reach the merits of the issues raised by the plaintiff as to the dismissal of his complaint and the denial of his request to file an amended complaint because the July 6, 2000, order, denying him leave to file an amended complaint, was not final and appealable in the absence of a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)).

The jurisdictional questions raised by this appeal require that we set forth the procedural history of this case in some detail.

Circuit Court Proceedings

On November 17, 1998, the plaintiff, on behalf of himself and all others similarly situated, filed suit against Ford, alleging a breach of the warranty Ford provided to car purchasers and violations of the Magnuson-Moss Warranty-Federal Trade Commission Improvement 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)). The case was removed to federal court. The case was remanded to the circuit court of Cook County on April 13, 1999. On October 22, 1999, the plaintiff filed his motion for class certification. On October 29, 1999, Ford filed motions for 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)) and to defer consideration of the plaintiff's motion for class certification. On November 2, 1999, the circuit court granted Ford's motion for leave to file its motion to dismiss and continued generally the motion for class certification.

On February 24, 2000, a hearing was held on Ford's motion to dismiss. The arguments at the hearing centered on whether the plaintiff would be able to prove damages in light of the fact that the rear sensors on his car had been replaced by Ford. In response, the plaintiff maintained that his cause of action ripened when Ford failed and then refused to repair the defect or replace the car prior to the suit being filed. The plaintiff argued that in a breach of warranty action, the damages are based on value as warranted less value as received. The plaintiff's attorney related that the plaintiff had received an offer from a Ford dealer to purchase his car for $13,000 less than he had paid for it six months before. Therefore, the car the plaintiff purchased was not worth what he paid because of the defect.

The circuit court granted Ford's motion to dismiss. The following colloquy then occurred:

"THE COURT: Based on the argument, I'm not sure you can plead around the 2-619 motion. Or if you wish to, I'll give you an opportunity to file an amended complaint.

MR. ROBINSON (the plaintiff's attorney): Let me think about it. You had mentioned when they brought their motion that it may be a situation where we would replace the plaintiff with someone who hasn't had their car fixed.

THE COURT: You also need a complaint.

Maybe the best thing to do is dismiss it at this point unless you want to come in on a motion in 30 days to file an amended complaint, which I'll be amendable [sic] to. But this isn't substituting a defendant [sic].

I find this defendant [sic] doesn't have a cause of action based upon what I have before me. So in any event, even if you did find a new plaintiff, the plaintiff would have to allege something more than Mr. Dewan alleged here.

MR. ROBINSON: To assist me in determining whether to amend, the repair negated any damages—

THE COURT: There doesn't appear to be any cognizable damages here.

Prepare an order. As I said, if you come within 30 days, I'll consider the possibility of allowing an amended complaint."

The February 24, 2000, order of dismissal provided in pertinent part as follows:

"PLAINTIFF'S COMPLAINT IS DISMISSED WITH PREJUDICE FOR

THE REASONS STATED IN COURT."

On March 23, 2000, the plaintiff filed a motion for leave to file an amended complaint. Ford filed an objection to the motion arguing that because the complaint was dismissed with prejudice, there was nothing left to amend. Ford also argued that the plaintiff's proposed amendments did not resolve the problems that had resulted in the dismissal of the plaintiff's complaint.

On April 26, 2000, the plaintiff presented his motion for leave to file his amended complaint. Ford maintained that the circuit court lacked jurisdiction to consider whether the amended complaint stated a cause of action because the plaintiff had not filed a proper postjudgment motion challenging the February 24, 2000, order. Addressing the jurisdictional question, the circuit court stated as follows:

"I indicated that if there was some basis, I might allow them to amend, and indicated that within the 30 day period that I retain jurisdiction, I would consider such a motion. They say they filed such a motion within 30 days. So it is consistent with my holding.

"Ford's attorney also represented to the court that at the time the dismissal order was drafted, the plaintiff's attorney preferred that the dismissal be with prejudice because he intended to appeal the decision immediately. The circuit court then stated as follows:

"I will decide that question now. I have jurisdiction.

I think it is clear on the record I indicated that if he filed within 30 days, I would consider granting him the opportunity to file a new complaint.

With prejudice is to allow a party to attempt to express a cause of action until it becomes abundantly clear they can't do so. They really haven't filed that much. They haven't made that much effort in that respect."

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 relating to the diminished value of 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 maintained that Ford was still in breach of its warranty because it had not replaced all of the sensors, even though the front sensors had not yet caused a problem. The plaintiff argued that he 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 car purchasers of the defective sensors so that they could be replaced prior to the expiration of the warranty period.

Based on section 2-619, the circuit court denied the motion for leave to amend the complaint, finding that the plaintiff had failed to plead any real cognizable damages.

The plaintiff's attorney informed the court that he intended to file a petition for attorney fees, since the plaintiff's car was not repaired until after he filed suit. The court responded, "I think you can do that." The plaintiff's request for a finding pursuant to Rule 304(a) was denied because the circuit court believed that there was nothing else pending. On August 3, 2000, the plaintiff filed a petition for attorney fees pursuant to the Consumer Act and Magnuson-Moss. Then, on August 7, 2000, the plaintiff filed a notice of appeal from the circuit court's orders of February 24, 2000, dismissing his original complaint and July 6, 2000, denying leave to amend his complaint. On September 13, 2000, the circuit court entered an order continuing generally the plaintiff's petition for attorney fees.

Appellate Court Proceedings

Ford filed a motion to dismiss the plaintiff's appeal for lack of appellate jurisdiction. Ford contended that the plaintiff's August 7, 2000, notice of appeal was untimely since the plaintiff's complaint was dismissed with prejudice on February 24, 2000, and that a motion for leave to file an amended complaint did not extend the time for filing the notice of appeal. In addition, Ford argued that the circuit court had no jurisdiction to enter the July 6, 2000, order since the court had lost jurisdiction 30 days after the entry of the February 24, 2000, order.

On January 4, 2001, this court entered an order granting Ford's motion and dismissed the plaintiff's appeal.

The plaintiff filed a petition for rehearing requesting that this court provide a basis for its dismissal of his appeal. The plaintiff argued, inter alia, that the...