Hall v. Riverside Lincoln Mercury-Sales, MERCURY-SALES

• Court: United States Appellate Court of Illinois
• Writing for the Court: NASH
• Citation: 101 Ill.Dec. 789,148 Ill.App.3d 715,499 N.E.2d 156
• Parties: , 101 Ill.Dec. 789 Donald C. HALL, and Reba M. Hall, Plaintiffs-Appellees, v. RIVERSIDE LINCOLN, a Delaware corporation, Defendant-Appellant.
• Docket Number: No. 2-85-0290,MERCURY-SALES,2-85-0290
• Decision Date: 15 October 1986

Page 156

499 N.E.2d 156 148 Ill.App.3d 715, 101 Ill.Dec. 789 Donald C. HALL, and Reba M. Hall, Plaintiffs-Appellees,
v.
RIVERSIDE LINCOLN MERCURY-SALES, a Delaware corporation,
Defendant-Appellant. No. 2-85-0290. Appellate Court of Illinois,
Second District. Oct. 15, 1986.

Page 157

[148 Ill.App.3d 716] [101 Ill.Dec. 790] Nicholas M. Spina, Chicago, for defendant-appellant.

Goldsmith Thelin Schiller & Dickson, Bruce Goldsmith, Aurora, for plaintiffs-appellees.

Presiding Justice NASH delivered the opinion of the court:

Defendant, Riverside Lincoln Mercury Sales, Inc., appeals from a partial summary judgment granted to plaintiffs, Donald and Reba Hall, in their suit against defendant alleging a violation of Federal odometer requirements (15 U.S.C. § 1981 et seq. (1984)), fraud and breach of contract and awarding plaintiffs $4,365 in damages and $1,990.57 in attorney fees. Defendant contends the circuit court (1) lacked jurisdiction, (2) erred in granting partial summary judgment as there remained a genuine issue of material fact, (3) erred in refusing to dismiss plaintiffs' fraud and breach of contract counts, and (4) abused its discretion in the award of attorney fees to plaintiffs.

On May 7, 1984, plaintiffs purchased a used 1981 Oldsmobile Cutlass from defendant for $6,500. At that time, defendant certified the vehicle's odometer reading of 38,907 was accurate. Plaintiffs later found documentation in the car's glove compartment detailing the complete repair history of the vehicle and showing the car had last been serviced at 50,609 miles. Subsequently, plaintiffs had to have repaired several

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[101 Ill.Dec. 791] mechanical problems, including a malfunctioning on-board computer, which cost $190, the catalytic converter, which cost $225, and a wiper motor, which cost $80. As the vehicle's actual mileage exceeded 50,000 miles, a General Motors warranty covering catalytic[148 Ill.App.3d 717] converters and on-board computers for five years or 50,000 miles had expired.

On August 1, 1984, plaintiffs brought this action against defendant alleging a violation of section 1989(a) of the Motor Vehicle Information and Cost Savings Act ("Act") (15 U.S.C. § 1989(a) (1984)) for defendant's failure to disclose the true mileage to plaintiffs, fraud and breach of contract. Defendants answered the complaint and plaintiffs attached to their subsequent motion for summary judgment on the issues of liability and damages an affidavit from Donald Hall attesting to the above facts, the receipts for service discovered in the glove compartment, and an affidavit from Walter Schultz, the prior user of the vehicle, stating the car had actual miles of 59,873 when he returned the vehicle to a California leasing firm on December 29, 1983. In response, defendant submitted an affidavit from its salesman, Kenneth Morgan, stating that Auto Dealers Exchange of Indianapolis, Indiana had sold the vehicle to defendant and certified the odometer read 38,877, that defendant had no reason to doubt the certification at that time, and that defendant did not know and had no way of knowing the actual mileage was in excess of 38,907 at the time it sold the car to plaintiffs. The trial court granted summary judgment for plaintiffs solely on the issue of liability and denied a motion to dismiss by defendant.

At an evidentiary hearing on damages and the issue of attorney fees, plaintiffs presented receipts for the $495 they had expended in repair costs and an affidavit from Jeffrey Loveland, a bank collections officer, stating the difference between the certified mileage and the true mileage of the vehicle reduced the worth of the car by $1,000. Based on this evidence and the treble damages provision of 15 U.S.C. § 1989(a)(1) (1984), the court awarded plaintiffs $4,365 in damages. The only evidence offered by the parties regarding plaintiffs' attorney fees was an affidavit from plaintiffs' attorney stating he had expended 20 3/4 hours on the case, his usual hourly rate was $80 for routine matters and $100 for complex matters and major litigation, and the usual charge for attorneys in the community ranged from $75 to $125 per hour. Based upon this evidence, the court awarded $1,900 in attorney fees in accordance with section 1989(a)(2) of the Act. This appeal followed.

Defendant first contends the circuit court lacked jurisdiction to hear count I of plaintiffs' complaint because the claim was based upon a Federal statute. Section 1989(b) of the Motor Vehicle Information and Cost Savings Act provides,

"An action to enforce any liability created under subsection (a) [148 Ill.App.3d 718] of this section, may be brought in a United States district court without regard for the amount in controversy, or in any other court of competent jurisdiction within two years from the date on which the liability arises." 15 U.S.C. § 1989(b) (1984).

Defendant argues the Illinois courts have not considered an action based on the Motor Vehicle Information and Cost Savings Act and the present action should have been brought in Federal district court. We do not agree.

The circuit courts of Illinois "have original jurisdiction over all justiciable matters" (Ill. Const.1970, art. VI, § 9; Skilling v. Skilling (1982), 104 Ill.App.3d 213, 219, 59 Ill.Dec. 937, 432 N.E.2d 881, aff'd on remand sub nom. Levy v. Skilling (1985), 136 Ill.App.3d 727, 91 Ill.Dec. 431, 483 N.E.2d 917; In Interest of Vaught (1981), 103 Ill.App.3d 802, 803, 59 Ill.Dec. 474, 431 N.E.2d 1231), and Illinois courts recognize the general principle that state courts have concurrent jurisdiction with Federal courts where Congress has not demonstrated an intent to reserve exclusive jurisdiction to the Federal courts. (Reidelberger v. Bi-State Development Agency (1956), 8 Ill.2d 121, 124, 133 N.E.2d 272; Ninth Liberty

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[101 Ill.Dec. 792] Loan Corp. v. Hardy (1977), 53 Ill.App.3d 601, 605, 11 Ill.Dec. 363, 368 N.E.2d 971). Accordingly, actions premised upon Federal statutory schemes have been entertained in the Illinois courts in the absence of a statutory provision limiting jurisdiction to the Federal courts. See Reidelberger v. Bi-State Development Agency (1956), 8 Ill.2d 121, 124, 133 N.E.2d 272; Regan v. Kroger Grocery & Baking Co. (1944), 386 Ill. 284, 293, 54 N.E.2d 210; Ninth Liberty Loan...