Graunke v. Elmhurst Chrysler Plymouth Volvo, Inc.

• Decision Date: 29 July 1993
• Docket Number: No. 2-92-0898,2-92-0898
• Citation: 187 Ill.Dec. 401,617 N.E.2d 858,247 Ill.App.3d 1015
• Parties: , 187 Ill.Dec. 401 Dean GRAUNKE, Plaintiff-Appellee, v. ELMHURST CHRYSLER PLYMOUTH VOLVO, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 858

617 N.E.2d 858

247 Ill.App.3d 1015, 187 Ill.Dec. 401

Dean GRAUNKE, Plaintiff-Appellee, v. ELMHURST CHRYSLER PLYMOUTH VOLVO, INC., Defendant-Appellant.

No. 2-92-0898.

Appellate Court of Illinois Second District.

July 29, 1993.

Steven P. Bloomberg (on brief), Stuart D. Gordon (argued and on brief), David J. Freeman, Moss & Bloomberg, Ltd., Bolingbrook, for Elmhurst Chrysler Plymouth Volvo, Inc.

Maureen Flaherty (argued and on brief), Lehrer, Flaherty & Canavan, P.C., Wheaton, for Dean Graunke.

Justice DOYLE delivered the opinion of the court:

Plaintiff, Dean Graunke, brought suit against defendant, Elmhurst Chrysler Plymouth Volvo, Inc., alleging claims of common-law fraud and a violation of the Consumer Fraud and Deceptive Business Practices Act (Act) ( Ill.Rev.Stat.1989, ch. 121 1/2, par. 262 et seq.) arising from the plaintiff's purchase of a vehicle from defendant. A jury found in favor of defendant on the common-law fraud claim. Contemporaneously, a bench trial was held on the Act claim, and the trial court also entered judgment in favor of defendant on that claim. Defendant subsequently filed a motion for attorney fees pursuant to section 10a(c) of the Act (Ill.Rev.Stat.1989, ch. 121 1/2, par. 270a(c)), which was denied by the trial court. Defendant filed a timely appeal contending that the trial court erred in refusing to award attorney fees.

The dispute in this case centered around plaintiff's purchase of a Chrysler New Yorker from defendant in September 1986. Plaintiff claimed he was led to believe that he had purchased a "brand new" 1987 New Yorker but discovered two years later that he had actually received a used 1986 New Yorker. In support of this claim, plaintiff offered a copy of a buyer's order which specified a 1987 vehicle.

Defendant maintained that plaintiff knew all along that he was purchasing a 1986 demonstration vehicle with 2,116 miles on it and that the "1987" in the buyer's order was a mistake which was brought to plaintiff's attention when he came to pick up the car. Defendant offered a number of documents, several of which were signed by plaintiff, identifying the vehicle as a 1986 New Yorker. These documents included a letter plaintiff wrote to Chrysler in 1987 complaining of problems with the performance of his "1986" New Yorker, an odometer statement signed by plaintiff indicating that the vehicle had 2,116 miles on it when he purchased the car, the title and registration forms for the vehicle, and an insurance application.

On January 28, 1992, the trial court entered judgment in favor of defendant on the Act claim, commenting:

"Mr. Graunke did indeed send a letter in which he referred to the vehicle as a 1986 Chrysler New Yorker * * * and this letter was sent in 1987. His testimony on direct examination had repeatedly been that he first determined in summer of 1988 * * * this was a 1986 vehicle.

I considered the other documents that were provided in the course of the transaction as well, and I noted Mr. Graunke's careful manner of going through those documents on the stand. And I noted his demeanor, and quite frankly I did not find his testimony to be credible. * * * I believe that it was a 1986 vehicle, he knew it, and the overwhelming majority of the documents indicated it was a 1986 vehicle."

The trial court ordered that upon the filing of a petition for costs, defendant was to be awarded reasonable costs. On February 13, 1992, defendant filed a petition for attorney fees in the amount of $20,878.75, and costs in the amount of $515.20. This petition relied on section 10 of the Act, the documentary evidence presented at trial and the trial court's finding that plaintiff's testimony was not credible. Defendant provided a statement itemizing the hours expended by its attorneys in connection with this case. Deducted from that statement were $6,711.75 in charges for time "expended in connection with portions of the case not related to the Consumer Fraud Act count." Although defendant's petition asserted that it was necessary to be represented by two attorneys at trial, $4,655, representing the time the second attorney expended at trial, was deducted from the amount of the statement, "in order to avoid any claim of a duplication of effort."

After a hearing on July 1, 1992, the trial court denied defendant's request for attorney fees, but did award costs of $291.90. In reaching its decision on the question of fees, the trial court discussed the decision of the Appellate Court, Fourth District, in Haskell v. Blumthal (1990), 204 Ill.App.3d 596, 149 Ill.Dec. 619, 561 N.E.2d 1315:

"I think the issue that we have to address first * * * is the criteria for a defendant who is the prevailing party in a Consumer Fraud Act case to be awarded attorney's fees. As I understand it in looking at [the opinion in Haskell (204 Ill.App.3d at 602, 149 Ill.Dec. 619, 561 N.E.2d 1315) ], 'We have difficulty in envisioning a circumstance arising under the Act where fees should be awarded a defendant absent bad faith on the part of a plaintiff.' "

The trial court also noted a reference in Haskell to Friedman,Private Right of Action Under the Illinois Consumer Fraud and Deceptive Business Practices Act, 76 Ill.B.J. 748 (1987): "As Friedman has indicated, the purpose of awarding fees to a defendant is to deter bad-faith conduct by a plaintiff and to reimburse a defendant when that occurs." (Haskell, 204 Ill.App.3d at 602, 149 Ill.Dec. 619, 561 N.E.2d 1315.) Finally, the court quoted from Haskell 's discussion of Supreme Court Rule 137 (see 134 Ill.2d R. 137): "The special standard involved is whether the 'knowledge, information, and belief' of plaintiffs' pleader in allegations of the complaint are not 'warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,' and whether they are 'interposed * * * to harass or to cause unnecessary delay.' " Haskell, 204 Ill.App.3d at 603, 149 Ill.Dec. 619, 561 N.E.2d 1315, quoting Supreme Court Rule 137 (134 Ill.2d R. 137).

After hearing arguments on the issue of attorney fees, the trial court commented:

"This matter bothers me a great deal because I did find the testimony of the plaintiff in this case to be incredible. I did not believe it * * *.

I noted his occupation, his--the fact that the great number of documents that he was given on his second visit did indeed indicate that he had purchased a 1986 rather than 1987 automobile. His application for insurance indicated a 1986 rather than a 1987 automobile, his own letter contradicted * * * his testimony in open court that the first time he learned it was a 1986 automobile was when he telephoned Chrysler in 1988.

Yet the issue here to me, whether taking the facts as presented to a lawyer * * * in this case, whether there was an exercise of bad faith in filing this case.

* * * * * *

' "Since the Act affords even broader consumer protection than does the common law action of fraud, it is clear that * * * [the] plaintiff suing under the Act need not establish all of the elements of fraud as the Act prohibits any deception or false promise. [Citation.] And it is clear from the language of the Act, particularly its reference to false promise[ ], that liability is not limited to existing material facts. Furthermore, it is well established that under the Act the intention of the seller [and] (his good or bad faith) is not important and * * * [the] plaintiff can recover under the Act for innocent misrepresentations." ' [Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill.App.3d 237, 249-50, 111 Ill.Dec. 35, 511 N.E.2d 1330, quoting Duhl v. Nash Realty Inc. (1981), 102 Ill.App.3d 483, 495, 57 Ill.Dec. 904, 429 N.E.2d 1267.]

Under the Consumer Fraud Act and under this Buechin case I am not prepared to state that there's a bad faith attempt to extend the law under these facts, I say it even though I did find his testimony to be incredible and I didn't believe that he met his burden of proof but I'm not prepared to say there was bad faith in bringing the lawsuit, and if you wish to take the matter to the Appellate Court I would certainly understand. I think that the whole issue needs to be clarified."

On appeal, defendant contends that the trial court erred in several respects in denying defendant's petition for attorney fees. First, defendant argues there should be no distinction between the circumstances under which attorney fees can be awarded to a prevailing defendant and a prevailing plaintiff under the Act. Second, defendant argues that, under the Act, attorney fees should be awarded to a prevailing defendant where the complaint is not well grounded in fact, irrespective of bad faith. Finally, defendant argues that it should have been awarded attorney fees in this case even if awards to prevailing defendants under the Act are limited by a "bad faith" requirement. Plaintiff responds that the trial court did not abuse its discretion in denying defendant's petition for attorney fees.

Section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act provides:

"In any action brought by a person under this Section, the Court may award, in addition to the relief provided in this Section, reasonable attorney's fees and costs to the prevailing party." Ill.Rev.Stat.1989, ch. 121 1/2, par. 270a(c).

The common law does not contemplate an award of attorney fees to a prevailing party, and, therefore, statutes which allow for such awards must be strictly construed. (Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security (1989), 131 Ill.2d 23, 49, 136 Ill.Dec. 86, 544 N.E.2d 772; Warren v. LeMay (1986), 142 Ill.App.3d 550, 583, 96 Ill.Dec. 418, 491 N.E.2d 464.) However, the primary rule in statutory construction, to which all other rules are subordinate, is to determine and give effect to the true intent of the legislature. (People ex rel. Baker v. Cowlin (1992), 154 Ill.2d 193, 197, 180 Ill.Dec. 738, ...