Miller v. William Chevrolet/GEO, Inc.

• Decision Date: 28 September 2001
• Docket Number: No. 1-00-4255.,1-00-4255.
• Citation: 260 Ill.Dec. 735,326 Ill. App.3d 642,762 N.E.2d 1
• Parties: Otha MILLER, Plaintiff-Appellant, v. WILLIAM CHEVROLET/GEO, INC. and HFC Auto Credit Corp., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

762 N.E.2d 1

326 Ill. App.3d 642

260 Ill.Dec. 735

Otha MILLER, Plaintiff-Appellant, v. WILLIAM CHEVROLET/GEO, INC. and HFC Auto Credit Corp., Defendant-Appellee.

No. 1-00-4255.

Appellate Court of Illinois, First District, Second Division.

September 28, 2001.

Rehearing Denied November 16, 2001.

As Modified on Denial of Rehearing November 27, 2001.

Krohn & Moss, Ltd., Chicago, for Plaintiff.

Ira M. Levin and Barbara A. Gimbel, Rosenthal and Schanfield, Chicago, for William Chevrolet/GEO, Inc.

Luke DeGrand and Tracey L. Wolfe, Clark & DeGrand, Chicago, for HFC Auto Credit Corp.

OPINION UPON DENIAL OF REHEARING

Justice GORDON delivered the Opinion of the Court:

Plaintiff Otha Miller appeals from an order of the Cook County circuit court granting summary judgment in favor of defendants William Chevrolet/GEO, Inc. (William Chevrolet) and HFC Auto Credit Corp. (HFC).¹ Miller's lawsuit arose from allegedly fraudulent misrepresentations made by William Chevrolet during the sale of a used Nissan Altima. The circuit court found that Miller suffered no legally cognizable injury and thus failed to establish a prima facie case for either his common law fraud claims or for his claims under Section 2 of the Consumer Fraud and Deceptive Business Practices Act. 815 ILCS 505/2 (West 1998). On appeal Miller argues that the circuit court erred because Illinois law recognizes diminished value as a compensable injury. Miller also contends that he has raised a material question of fact on all other elements of his statutory and common law fraud claims. For the reasons set forth below, we reverse in part, affirm in part, and remand for further proceedings.

BACKGROUND

Miller filed his original complaint on August 26, 1999. On January 21, 2000, the trial judge dismissed this complaint without prejudice in response to Section 2-615 Motions to Dismiss timely filed by both defendants. 735 ILCS 5/2-615 (West 1998). The matter went to arbitration in March, 2000 and the defendants were granted an award. As permitted under Supreme Court Rule 93 (166 Ill.2d R. 93), Miller rejected the arbitrator's award and on April 10, 2000 he filed an amended complaint against both defendants. William Chevrolet filed a timely motion for summary judgment which the trial court granted as to both William Chevrolet and HAFC in December, 2000. 735 ILCS 5/2-1005 (West 2000).

Attached to defendant's motion for summary judgment was plaintiff's deposition including exhibits. From that deposition, a picture of the transaction between William Chevrolet's salespeople and Miller emerges. It is uncontested that in late February 1998, Miller went into the William Chevrolet dealership and began looking at used vehicles. Miller admits that he had not dealt with defendant dealership on any prior occasion and called his decision to look at their cars "random." After discussing available cars and financing with William Chevrolet personnel, Miller took a Nissan Altima (different than the one he eventually purchased) home for the night as a test drive. The following day, Miller returned the car to William Chevrolet and began discussions about the 1997 Nissan Altima that he ultimately purchased.

During his deposition, Miller alleged that William Chevrolet's salesperson told him that the 1997 Altima was "executive driven" and that it was a "great car." In its response to interrogatories, William Chevrolet stated that the only representation its salespeople ever attached to the vehicle was "used."

In his deposition, Miller stated that he interpreted the phrase "executive driven" to mean that the car had previously been used by high ranking employees of either Nissan or William Chevrolet and had therefore been well cared for. It is not disputed that the Altima had not been driven by these executives and that William Chevrolet had recently purchased the vehicle from Enterprise Leasing Corporation.

Miller admitted to knowing at the time that the Altima was used (he was buying a 1997 model year car in 1998) but claims he did not know, nor did he inquire further, about the Altima's history or previous owner.

Upon his decision to purchase the Altima, Miller was presented a number of documents to sign. At his deposition, Miller recognized his signature on a number of exhibits, including a retail installment contract, an odometer disclosure form, a handwritten vehicle sales order, and a typed vehicle sales order. Although Miller did not remember in detail each form he signed, he did recall that he was neither pressured nor rushed to complete the paperwork.

From the record it appears that these documents describe the car in question as a 1997 Nissan Altima and all contain plaintiff's signature and are dated February 27, 1998. The retail installment contract contains the typed word "used" in a box designated "New or Used." Both vehicle sales orders contain checks in the "Used" box of a section which also contains boxes titled "New" and "Demo." None of these documents make reference to the car's prior owner, Enterprise Leasing Company.

During his deposition, Miller was also shown an Indiana certificate of title, the front of which lists "ENTERPRISE LSG CO. OF INDIANAPOLIS" as the original owner. The back of this title contains a section labeled "First Re-Assignment By Registered Dealer Only" under which William Chevrolet is listed as dealer and Otha Miller is listed as purchaser. Miller acknowledged signing every document he was asked to sign, including the title. Next to the purchaser's signature block on the back of the title is a date of sale box in which "3/25/98" is written.

After the sale to Miller, William Chevrolet assigned the retail installment contract to HAFC Miller asserted claims against HAFC in its original and amended complaints.

In response to defendant's motion for summary judgment, Miller submitted a summary of proposed testimony from an opinion witness who was to address the financial significance of a car's history of rental use.

Miller admits having driven the Altima since its purchase without any serious malfunction. Based primarily on this admission, the trial court granted defendants' motions for summary judgment, finding that Miller's submissions did not raise any legally cognizable injury. This appeal followed.

ANALYSIS

I. Standard of Review

Summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits illustrate no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Largosa v. Ford Motor Co., 303 Ill.App.3d 751, 753, 237 Ill.Dec. 179, 708 N.E.2d 1219, 1221 (1999). When examining a motion for summary judgment, the court must consider "all the evidence before it strictly against the movant ... and liberally in favor of the nonmovant." Largosa, 303 Ill.App.3d at 753, 237 Ill.Dec. 179, 708 N.E.2d at 1221. This court reviews summary judgment orders de novo. Largosa, 303 Ill.App.3d at 753, 708 Ill.Dec. 179, 708 N.E.2d at 1221. An order granting summary judgment should be reversed if the evidence shows that a genuine issue of material fact exists or if the judgment was incorrect as a matter of law. In re Estate of Herwig, 237 Ill.App.3d 737, 178 Ill.Dec. 641, 604 N.E.2d 1164 (1992).

II. Fraudulent Misrepresentation

Miller contends that the trial court erred in granting summary judgment on both his common law and statutory fraudulent misrepresentation claims. We agree. We first consider whether summary judgment is appropriate for Miller's common law fraud claims.

A. Common Law Fraud

Fraud has been said to comprise anything calculated to deceive and may consist of a single act, a single suppression of truth, suggestion of falsity, or direct falsehood, innuendo, look or gesture. Russow v. Bobola, 2 Ill.App.3d 837, 841, 277 N.E.2d 769, 771 (1972). The elements of common law fraud are (1) false statement of material fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement induce the plaintiff to act; (4) plaintiff's reliance on the statement; and (5) plaintiff's damages resulting from reliance on the statement. Connick v. Suzuki Motor Co. 174 Ill.2d 482, 496, 221 Ill.Dec. 389, 675 N.E.2d 584, 591 (1996). In analyzing the appropriateness of summary judgment in this case, we will consider each element in turn.

1. False statement of Material Fact

This element encompasses three requirements: the defendant must (1) make a misrepresentation, (2) it must involve a fact and (3) the misrepresentation must be material. Miller contends that William Chevrolet told him that the Altima was "executive driven" and that this characterization was false and affirmatively misrepresented the car's true history as a rental vehicle. Defendant offered no evidence that the car was ever driven by executives of either William Chevrolet or Nissan. Miller has thus raised a triable question on the misrepresentation requirement of this element.

We conclude that a material controversy also exists on the requirement that defendant's misrepresentation involve a fact. Defendant argues that the designation "executive driven" has no clear meaning and at most is "puffing." Puffing is defined as a "bare and naked statement as to value" of a product and is considered a nonactionable assertion of opinion. People ex rel. Harticran v. Maclean Hunter Publishing Corp., 119 Ill.App.3d 1049, 1059, 75 Ill.Dec. 486, 457 N.E.2d 480, 487 (1983) (quoting Duhl v. Nash Realty Inc., 102 Ill.App.3d 483, 489, 57 Ill.Dec. 904, 429 N.E.2d 1267 (1981)). Statements of existing facts or comments that ascribe specific virtues to a product are not generally considered puffing and may be the subject of a fraud claim. Totz v. Continental Du Page Acuta, 236 Ill.App.3d 891, 904, 177 Ill.Dec. 202, 602 N.E.2d 1374, 1382, (1992). Whether a representation will be considered one of opinion or fact depends upon the circumstances of the case. Totz, 236 Ill.App.3d...