Duran v. Leslie Oldsmobile, Inc.
Decision Date | 11 June 1992 |
Docket Number | No. 2-91-0701,2-91-0701 |
Citation | 171 Ill.Dec. 835,229 Ill.App.3d 1032,594 N.E.2d 1355 |
Parties | , 171 Ill.Dec. 835 Linda DURAN, Plaintiff-Appellant, v. LESLIE OLDSMOBILE, INC., Defendant-Appellee (CIM Insurance Corporation, Defendant). |
Court | United States Appellate Court of Illinois |
Lehrer, Flaherty & Canavan, Maureen Flaherty (argued), Wheaton, for Linda Duran.
Lord, Bissell & Brook, Chicago, Gerald O. Sweeney, Jr. (argued), Sandra K. Macauley, for Leslie Oldsmobile, Inc., CIM Ins. Corp.
The circuit court of Du Page County granted defendant's, Leslie Oldsmobile, Inc.'s (dealer's), motion for summary judgment, which plaintiff now appeals. Plaintiff's complaint sought actual and punitive damages and attorney fees and costs based on common-law fraud and statutory fraud under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) ( ). Specifically, plaintiff alleged that the dealer made four misrepresentations as follows: (1) a 1988 Volkswagen Jetta was a demonstrator (demo) car; (2) an extended warranty on the Jetta would be effective from the date and mileage at which plaintiff purchased the car; (3) the dealer could and would obtain the lowest possible new-car financing rate; and (4) such rate was 14.25%. In fact, the Jetta was used and had been previously titled to and driven by a national rental-car company located at O'Hare International Airport; 11 months and 7,000 miles of any extended warranty had expired during such prior usage, and the 14.25% financing rate was for a used car, which was significantly higher than the prevailing rate for financing new cars. The circuit court held that plaintiff's reliance on the dealer's alleged oral misrepresentations concerning the Jetta and the extended warranty was unreasonable in light of plaintiff's signature on certain documents (sales forms) that expressly contradicted the alleged misrepresentations. The circuit court further found that the dealer's representation that it could obtain the lowest financing rate was a future promise inactionable under both the common law and the Consumer Fraud Act. Finally, the circuit court found that plaintiff suffered no damages as a result of the dealer's alleged misrepresentation that the 14.25% rate was the lowest available because she returned the car without making any installment payments.
Plaintiff appeals asserting summary judgment was inappropriate because: (1) either her prior execution of a "Retail Order for a Motor Vehicle" (retail order form), which did not contradict the dealer's salesman's alleged misrepresentations, or the lack of the opportunity to review the subsequently completed sales forms and discover the contradiction created a question of material fact as to the reasonableness of her reliance; and (2) the pleadings, depositions, and affidavits demonstrated a factual basis to infer damages; proof of damages is unnecessary to sustain a cause of action under the Consumer Fraud Act; or nominal damages may be presumed under the Consumer Fraud Act based on the dealer's alleged violation of the Act.
The over 1,300 pages of pleadings, affidavits and depositions describe the events before, during, and after plaintiff's purchase of a 1988 Volkswagen Jetta from the dealer. On Friday, December 9, 1988, plaintiff spontaneously visited the dealer's Volkswagen showroom, although she had been planning on purchasing a car for several weeks and was specifically interested in a Jetta. Plaintiff was temporarily driving a rental car because her insurer had determined that an accident had totally destroyed plaintiff's previous car.
Plaintiff spent two hours with the dealer's salesman, during which time plaintiff inspected the Jetta, discussed financing, negotiated the price of the vehicle, and ascertained the cost of a 6-year/60,000-mile extended warranty. Plaintiff alleged that she specifically told the salesman that she wanted a new or demo car and not one that had been used. As the dealer's general manager testified at his deposition, a demo in Illinois is a car that has not been titled and is the equivalent in value to a new car, although it has been previously driven by an employee of either the manufacturer or the dealer.
Plaintiff alleged that the salesman told her that the Jetta, which had been driven over 7,000 miles, was a demo. In response to plaintiff's request to see the documents showing the history of the Jetta, the salesman told her that the paperwork on the history of the Jetta was unavailable because it was locked up for the weekend, but that he believed it had been a driven by an employee of the manufacturer rather than an employee of the dealer. However, both the general manager and sales manager were present at the dealership that day and had access to the files containing the Jetta's prior ownership history. As part of the negotiations, the salesman allegedly told plaintiff that the dealer would obtain financing at the lowest available new-car rate. In response to plaintiff's inquiry concerning a warranty that would last until she completed installment payments on such financing, the salesman told plaintiff that a 6-year/60,000-mile extended warranty effective beginning with plaintiff's purchase of the Jetta was available for a price of $625. However, the dealer's employee responsible for such extended warranties testified at her deposition that a 6-year/60,000-mile extended warranty costs $625 and begins with the date a car is first placed in service at 0 miles. Therefore, despite payment for 6 years and 60,000 miles of coverage, plaintiff would have received something less than 53,000 miles and 5 years and 1 month of coverage.
After negotiations over the price of the Jetta, the salesman completed in handwriting the blanks on the preprinted retail order form, including the price, plaintiff's deposit, and the transfer of the remaining manufacturer's factory warranty. However, the salesman did not complete that preprinted portion of the form requiring him to check a box describing the vehicle as either new or used. Plaintiff signed the retail order form and gave the salesman a $200 check as a deposit, and the order was accepted by the dealer. While waiting for the sales forms to be completed, plaintiff ran two brief errands, first to return her rental car and then later to pick up her young son from day-care, because the sales forms were still not complete.
Sometime after 5 p.m., the dealer's general manager, who was acting as the finance manager that day as well, eventually completed the sales forms including an invoice, retail installment contract, extended-warranty agreement, revenue department form, and odometer statement to conclude the sale, each of which plaintiff signed. However, plaintiff testified at her deposition that when she attempted to review the sales forms by laying them on a chair next to her while also trying to watch her young son, the dealer's manager asked plaintiff to wait until he completed the transaction so that the documents would not get out of order. Plaintiff gave the dealer a second check in the amount of $1,800 as partial payment for the Jetta.
Although the invoice, retail installment contract, and revenue department forms expressly indicated that the Jetta was a used car, those documents more specifically concerned the warranty, financing rates, and sales tax respectively. The description of the Jetta as used contained therein was merely incidental to such other information. When plaintiff noticed the 14.25% financing rate, she asked the general manager whether it was the lowest available new-car rate to which he replied affirmatively.
Plaintiff took delivery of the Jetta and drove it home. That evening, a friend of plaintiff's, who was also an attorney, spent the evening with her and noticed the 14.25% rate, which he thought excessive. However, due to the lateness of the hour, plaintiff insisted that her friend wait until the following morning to review the rest of the sales forms. At that time, both plaintiff and her friend discovered that the sales forms indicated that the Jetta was a used car. After confirming that new-car financing rates were significantly lower, they concluded that the 14.25% rate was for a used car. After several unsuccessful attempts to speak with the general manager by telephone, plaintiff together with her friend sought to return the Jetta in exchange for an actual new or demo model. Plaintiff's friend identified himself as her attorney during that discussion. The dealer refused to rescind the purchase or exchange the Jetta except at an increased cost to plaintiff. Therefore, plaintiff and her friend left the dealer's facilities with the Jetta.
On Monday, plaintiff discovered that the Jetta had in fact been titled to a national rental-car chain located at O'Hare International Airport. Plaintiff stopped payment on the checks she had issued as a deposit and down payment on the Jetta and at 5 p.m. that day returned the Jetta to the dealer's facility after requesting a police officer to be present to witness the return of the Jetta. The leasing company from whom plaintiff had rented temporary transportation prior to this transaction once again furnished her with a short-term leased car at that time.
In December 1988, two separate entities existed, one selling Volkswagens and one, which we have referred to as the dealer, selling Oldsmobiles. The facilities were located adjacent to each other and shared common management and salespersons. The forms used in this instance originated from both the Oldsmobile and Volkswagen entities. However, during the pendency of this proceeding on January 1, 1990, the separate identity of the Volkswagen entity was merged into the Oldsmobile entity. In March 1989, plaintiff filed this suit in two counts alleging common-law fraud and a violation of the Consumer Fraud Act and naming Leslie...
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