Totz v. Continental Du Page Acura

• Decision Date: 03 November 1992
• Docket Number: No. 2-91-0633,2-91-0633
• Citation: Totz v. Continental Du Page Acura, 236 Ill.App.3d 891, 602 N.E.2d 1374, 177 Ill.Dec. 202 (Ill. App. 1992)
• Parties: , 177 Ill.Dec. 202 Terrence TOTZ et al., Plaintiffs-Appellees, v. CONTINENTAL DU PAGE ACURA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1374

602 N.E.2d 1374

236 Ill.App.3d 891, 177 Ill.Dec. 202

Terrence TOTZ et al., Plaintiffs-Appellees, v.CONTINENTAL DU PAGE ACURA, Defendant-Appellant.

No. 2-91-0633.

Appellate Court of Illinois Second District.

Nov. 3, 1992.

John R. Wimmer(argued), Downers Grove, Thomas F. Roche, Halfpenny, Hahn & Roche, Chicago, for Continental Du Page Acura.

Maureen Flaherty(argued), Lehrer, Flaherty & Canavan, P.C., Wheaton, for Terrence Totz and Mary Totz.

Justice McLARENdelivered the opinion of the court:

Defendant, Continental Du Page Acura(Continental), appeals from a judgment of the circuit court of Du Page County in favor of plaintiffs, Terrence and Mary Totz(Totzes).Following a bench trial, the court ruled that Continental had violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (Act)(Ill.Rev.Stat.1989, ch. 121 1/2, par. 262), with regard to the sale of a used car to the Totzes.The court awarded the Totzes $407.50 in compensatory damages, $5,000 in punitive damages, and $19,674.60 in costs and attorney fees.Continental argues on appeal that: (1)the court's determination that Continental violated the Act was against the manifest weight of the evidence; (2)the trial court erred by barring the testimony of an expert witness offered by Continental; (3) Continental's conduct did not justify a punitive damage award; and (4) the award of costs and attorney fees was excessive.We affirm.

Continental operates an automobile dealership in Lisle at which new and used cars are displayed for sale to the public.On May 4, 1989, the Totzes went to Continental and looked at some used cars.They took several for test drives, including a 1984 Honda Accord.Michael Delvin, a Continental used car salesman, dealt with the Totzes that day.Terrence Totz testified that Delvin referred to the Accord as "the cream of the crop."Terrence saw a sticker on the front window of the Accord which stated that the car had undergone a 26-point inspection by a Continental mechanic.He testified that this was very important to him.

The Totzes did not buy the car on May 4 because it was not in their price range.Mike Delvin telephoned the Totzes on May 9, however, and spoke to Terrence.Delvin stated during this conversation that he felt he could get the car into the Totzes' price range.As a result, Terrence returned to Continental on Saturday May 13.

When Delvin saw Terrence on the 13th, he asked if Terrence wished to take the Accord for another test drive.Terrence and Delvin then took the car out of the dealership.According to Terrence, Delvin told him during this test drive that the car was "in perfect condition" and "[t]he only thing wrong with the car, the radio doesn't work."Delvin also stated again that the car was "the cream of the crop."

When Delvin and Terrence returned to the dealership they began negotiating about the price of the car.Terrence testified that he made an offer for the car and gave Delvin a $100 cash deposit because Delvin asked him to do so.Continental's used car manager, Carmen Buonauro, became involved in the negotiations.Terrence eventually agreed to buy the car for $5,150 plus title and tax, a total of $5,512.62.He gave the dealership an additional $300 in cash and a check for $5,112.62.

Terrence also signed an agreement to purchase the car which provided that the Accord was being sold "as is" and that any deposit was not refundable.He was told to return to Continental later that day to pick up the car.Terrence and Mary returned later and took the Accord home.

The next day, Sunday the 14th, the Totzes noticed that some of the paint on the hood of the Accord appeared to be a slightly different shade of color than the paint on the rest of the car.This made them suspicious.Mary called the bank upon which the check to Continental was drawn in order to advise it that the Totzes intended to stop payment on the check.

The next morning, Terrence called Continental and spoke to Mike Delvin.He reminded Delvin to contact the previous owner of the vehicle to see if Terrence could obtain the owner's manual.According to Terrence, Delvin agreed to do so and also stated that there was no reason to worry about the car because it had undergone a stringent inspection.

Terrence took the Accord to Village Auto Body in Batavia later that morning.Donald Lowe, who had worked in the automobile body repair area for 19 years, examined the car.He told Terrence that the Accord had been damaged extensively in an accident involving a severe front-end impact which had penetrated to the windshield of the car.Lowe told Terrence that the extensive damage beneath the hood of the car had not been adequately repaired and approximately $5,000 to $6,000 in further repairs should be made.Lowe also told him the dealership knew about the damage from the accident.Terrence then took the car to two other body shops.Mary went to the bank in order to fill out a form to have a stop payment order issued for the check to Continental.

Later that day, the Totzes went back to Continental and confronted Carmen Buonauro.They informed Buonauro that they had taken the car to Lowe's body shop and Lowe had told them that the car had been severely damaged in an accident.It is undisputed that no Continental employee told the Totzes prior to the time they bought the car that it had previously been damaged in an accident.Terrence testified that he would not have agreed to buy the car had he known this.

Buonauro told the Totzes that Continental had not known about the accident and had been told by the prior owner that the car ran fine.After the Totzes told him that they wanted to return the car, Buonauro stated that they had signed for it and were going to take it home.When Terrence then said that there had to be some sort of compromise that could be worked out, Buonauro stated that he would talk to the owner of the dealership the next day.The Totzes also informed Buonauro that they had stopped payment on the check to Continental.Buonauro told them that this was a Federal offense, but he said they should not worry about it.

The next afternoon, Tuesday the 16th, the Totzes returned to Continental with the car.Buonauro had the car taken to the garage area, and he walked over there with the Totzes.At first, according to Terrence, he disputed the Totzes' claim that the car frame was damaged and stated that the Totzes' body shop must have lied to them.When Terrence tried to point out some of the damage under the hood Buonauro walked away and stated that he did not want to see it.Buonauro also stated that it did not matter because they had bought the car "as is."

According to Terrence, Buonauro had the car placed on a lift.Buonauro pointed out some marks on the undercarriage of the Accord and stated that he was not trying to cover up anything.He stated further that the Totzes had bought the car and had no right to return it, but he would allow them to select another car from the lot if they wished to do so.

Terrence testified that Mary then asked what would happen if they left the car at the dealership.Buonauro stated that he would have the car towed to the Totzes' home and would sue them for the towing charges and the remaining amount due on it.The Totzes eventually agreed to take a different 1984 Honda home with them that day.They decided not to keep that car because it had over 117,000 miles on it.

The next day the Totzes returned the second Honda to the dealership.They presented a letter to Buonauro which stated that they had returned the first Honda because they were not aware when they purchased it that the car had been in a major front-end accident.The letter also stated that the Totzes wished to have their $400 deposit returned by the dealership.

Buonauro tore the letter up and threw it away without looking at it, telling the Totzes that it meant nothing to him.The Totzes left the second car and the keys at the dealership, and they left.Buonauro testified that he told the Totzes that the $400 deposit could be applied to any Continental car they chose to purchase during the remainder of the year.Terrence testified that Buonauro never said this to them.The Totzes introduced into evidence one of Continental's copies of the purchase agreement for the Accord.Buonauro had written on this copy, "Cancell [sic ] Deal No Refund on 400.00 Carm."

Michael Morrison purchased the Accord as a new car in February 1984.Morrison testified that he was involved in two accidents while driving the car, with the first occurring in June 1984.In that accident the front end of the Accord collided with the side of another car.According to Morrison, the whole front end of the car was damaged, and the fender was "like an accordion."Morrison had the car repaired after this accident and was told it was as good as new.

Morrison characterized the second accident, which took place in 1985, as a minor front-end accident.He had the hood and the front bumper repaired after this accident.Morrison traded the car into a Honda dealership in Lisle in 1986.He testified that he informed the dealership that the car had been involved in an accident.

The Honda dealership transferred the car to an affiliated Volvo dealership in Lisle where John Krahulec bought it in 1986.Krahulec did not know when he purchased it that the car had been involved in an accident.Krahulec testified that the car ran well and he never noticed anything wrong with the body of the car.Krahulec had no accidents while he owned the car and had no body work done on it.Krahulec also stated that he looked under the hood of the car shortly before he traded it in.When counsel for the Totzes showed him pictures taken of the area underneath the hood of the car during the short time the Totzes possessed it, Krahulec stated that he did not believe this area was in the same condition when he traded it in to Continental in August 1988....