Morris v. Harvey Cycle and Camper

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-3271 Rel

Case Date: 06/12/2009

Preview:SIXTH DIVISION June 12, 2009

No. 1-07-3271 MIA MORRIS, Plaintiff-Appellant and Cross-Appellee, v. HARVEY CYCLE AND CAMPER, INC., d/b/a Watson Motorsport, Ltd., and JOHN DOES 1 through 5, Defendants-Appellees and Cross-Appellants. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 06 L 4241

Honorable Dennis J. Burke, Judge Presiding.

JUSTICE CAHILL delivered the opinion of the court: Plaintiff Mia Morris appeals the dismissal of her second amended complaint against defendant Harvey Cycle & Camper, Inc., d/b/a Watson Motorsport, Ltd., under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2006)). Plaintiff alleged four counts in her complaint but on appeal she challenges only the dismissals of count I for violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2006)), and count IV for defamation per se. Defendant cross-appeals the denial of its motions for attorney fees from plaintiff for bringing a bad-faith law suit. We affirm. Plaintiff in the first version of her complaint named defendant's employees, John Does 1 though 5, as defendants, but omitted these parties from her second amended complaint. Plaintiff alleged in her second amended complaint defendant engaged in deceptive practices in the financing and sale of a car to her brother, Shawn, and in pressuring plaintiff to cosign a loan after

1-07-3271 Shawn failed to qualify for financing. Plaintiff claimed Shawn made a down payment on a car at defendant's dealership with the sale contingent on financing. Shawn was allowed to use the car while defendant attempted to arrange financing. After several days, defendant's employee called Shawn and asked him to come to the dealership to re-sign some loan papers. Plaintiff accompanied Shawn to the dealership, using the car Shawn was trying to buy, where they learned Shawn had not qualified for financing. Plaintiff alleged defendant's employees then pressured her to cosign the loan so the deal could go through. When plaintiff refused, an employee demanded the return of the car. Shawn agreed to return the car in exchange for his down payment. Defendant refused to return the down payment but continued to demand the car. Plaintiff further alleged defendant's employees started yelling at plaintiff and Shawn and blocked the car to prevent them from leaving the dealership. The employees then called the police, reporting the car as stolen. Several squad cars and police officers arrived. Defendant's employees told the officers plaintiff and Shawn had stolen the car. An officer later said the police considered defendant's call to be a false report. The officers told defendant's employees to stop yelling and trying to intimidate plaintiff and Shawn. Plaintiff and Shawn left in the car that Shawn had tried to purchase. He returned the car a few days later in exchange for his down payment. Plaintiff alleged that as a result of the ordeal, she suffered severe emotional distress, inconvenience and aggravation. Plaintiff in her second amended complaint called the court's attention to a 2005 lawsuit filed against defendant by William Reid and Renee Picl in the northern district of the federal court in Illinois. The action alleged misconduct similar to that alleged here. Plaintiffs Reid and Picl

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1-07-3271 claimed defendant violated the Consumer Fraud Act by: (1) making deceptive and fraudulent calls to them concerning paperwork for a car sale; (2) pressuring them to buy cars they didn't need; (3) trying to coerce a signature on a loan; (4) making deceptive statements on which they relied; (5) blocking the car's exit when they failed to comply with the defendant's demands; and (6) threatening them with arrest and calling the police. Reid v. Harvey Motorcycle & Camper, No. 05 C 5375, slip op. 1-4 (N.D. Ill. November 30, 2007) (unpublished memorandum opinion and order)). The district court held that Reid had failed to state a claim under the Consumer Fraud Act because he did not allege that he suffered proximate or actual damages separate from those suffered by Picl. Reid, slip op. at 5. Defendant moved to dismiss plaintiff's second amended complaint under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2006)), arguing plaintiff failed to state a cause of action and defendant had valid defenses to plaintiff's claims. The trial court dismissed count I, finding plaintiff's allegations of emotional distress failed to show damages. The court also dismissed count IV, defamation per se, finding defendant's statements to the police were protected by absolute privilege. The trial court then addressed defendant's motion for attorney fees under section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 2006)) and Supreme Court Rule 137 (155 Ill. 2d R. 137). Defendant argued it was entitled to attorney fees as the prevailing party in a matter where plaintiff had not acted in good faith. The trial court denied defendant's motion for attorney fees, finding plaintiff's action did not rise to the level of bad faith. The court based its conclusion in part on the fact that the plaintiffs in Reid alleged similar misconduct against the

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1-07-3271 same defendant as here. The trial court called plaintiff's allegations "somewhat serious" and opined plaintiff might have been entitled to relief, depending on the facts and legal theories she presented. The trial court denied defendant's motion for attorney fees. The court also denied plaintiff's motion for reconsideration. We review de novo a trial court's dismissal of a complaint under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2006)). Balmoral Racing Club, Inc. v. Gonzales, 338 Ill. App. 3d 478, 484, 788 N.E.2d 269 (2003). Section 2-619.1 is a combined motion that incorporates sections 2-615 and 2-619 of the Code. 735 ILCS 5/2-619.1, 2-615, 2-619 (West 2006). "[W]e accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party." Balmoral Racing Club, 338 Ill. App. 3d at 484. Plaintiff first challenges the trial court's conclusion that she failed to state a private cause of action under the Consumer Fraud Act. This Act bars unlawful or unfair methods of competition, unfair or deceptive acts or practices or the use deception, fraud, false pretense, false promise or misrepresentation. 815 ILCS 505/2 (West 2006). Section 10a(a) of the Consumer Fraud Act (815 ILCS 505/10a(a) (West 2006)) authorizes a private cause of action. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 179, 835 N.E.2d 801 (2005). Only a person who suffers actual damages as a result of a violation of the Consumer Fraud Act may bring a private action. 815 ILCS 505/10a(a) (West 2006); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 626-27, 888 N.E.2d 1190 (2008); Xydakis v. Target, Inc., 333 F. Supp. 2d 686, 688 (N.D. Ill. 2004). The Consumer Fraud Act provides remedies for purely economic injuries. White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278, 287, 856 N.E.2d 542 (2006). Actual

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1-07-3271 damages must be calculable and "measured by the plaintiff's loss." Chicago v. Michigan Beach Housing Cooperative, 297 Ill. App. 3d 317, 326, 696 N.E.2d 804 (1998). The failure to allege specific, actual damages precludes a claim brought under the Consumer Fraud Act. White, 368 Ill. App. 3d at 287. Here, plaintiff did not allege actual damages in the form of specific economic injuries. She alleged only emotional damages. For this reason, the trial court correctly dismissed plaintiff's count I for relief under the Consumer Fraud Act. Plaintiff challenges this result by citing Roche v. Fireside Chrysler-Plymouth, Mazda, Inc., 235 Ill. App. 3d 70, 86, 600 N.E.2d 1218 (1992). Plaintiff argues that in Roche this court held that nonmonetary damages were compensable under the Act. The plaintiff in Roche filed a complaint against a car dealership, seeking actual and punitive damages based on: (1) conversion of the plaintiff's property; and (2) violations of the Consumer Fraud Act. Roche, 235 Ill. App. 3d at 72. A jury awarded the plaintiff $2,405 in compensatory and punitive damages for conversion. Roche, 235 Ill. App. 3d at 72. The trial court also found the defendant had violated the Consumer Fraud Act and awarded the plaintiff $750 in damages for aggravation and inconvenience. Roche, 235 Ill. App. 3d at 72-73. The defendant appealed. Roche, 235 Ill. App. 3d at 72. This court determined the plaintiff was misled by the dealership to believe her trade-in was a sufficient down payment for a new car and the dealership could arrange financing for her. Roche, 235 Ill. App. 3d at 86. "When this representation proved to be untrue and [the dealership] failed to sell plaintiff the new [car] based on the terms of the original agreement or to return her used car or the equity in it, a direct violation of the [Consumer Fraud Act] occurred and resulted in damage to plaintiff." Roche, 235 Ill. App. 3d at 86. We affirmed the trial court's award of

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1-07-3271 $750 in damages for the plaintiff's aggravation and inconvenience. Roche, 235 Ill. App. 3d at 86. The northern district of the federal court distinguished Roche in Xydakis, 333 F. Supp. 2d at 688. The court explained that damages for aggravation are compensable under the Consumer Fraud Act only when they are part of a total award that includes actual economic damages. Xydakis, 333 F. Supp. 2d at 688. There is no cause of action under the Consumer Fraud Act when a plaintiff alleges only aggravation and not actual damages. Xydakis, 333 F. Supp. 2d at 688. We agree with the district court. Plaintiff here failed to allege damages other than emotional distress, inconvenience and aggravation. Roche does not authorize a private cause of action under the Consumer Fraud Act in these circumstances. We note that in her appellate brief plaintiff argues the trial court erred in an interim written order by assessing her claims under section 10b(5) of the Consumer Fraud Act (815 ILCS 505/10b(5) (West 2006)). This section states that the Consumer Fraud Act does not apply to: "Claims seeking damages for conduct that results in bodily injury, death, or damage to property other than the property that is subject to the practice claimed to be unlawful." 815 ILCS 505/10b(5) (West 2006). Plaintiff argues the trial court's dismissal of count I of her second amended complaint must be reversed because this section, which was cited in the earlier interim order, does not pertain to her claim of damages for emotional distress, aggravation and inconvenience. We have reviewed the order at issue and conclude the trial court's citation to this section was part of a general discussion of the provisions in the Consumer Fraud Act, not the grounds for dismissing her second amended complaint. But even if the trial court had relied on this section, reversal is not warranted. "It is established law that a correct decision on erroneous

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1-07-3271 grounds is not a basis for reversal, and is harmless error. It is the correctness of the court's ruling and not the reasons therefor that is before the reviewing court." Rees v. Spillane, 341 Ill. App. 647, 661, 94 N.E.2d 686 (1950). Plaintiff next argues that the trial court erred in dismissing count IV, defamation per se, on the grounds that defendant's stolen car report to the police was protected by absolute privilege. Plaintiff maintains the statements of defendant's employees to the police were not for the purpose of instituting legal proceedings but rather a "strong arm tactic" to recover the car without refunding Shawn's down payment. To establish defamation, the plaintiff must show the defendant: (1) made a false statement about the plaintiff; (2) made an unprivileged publication of that statement to a third party; and (3) the defendant damaged the plaintiff by publishing the statement. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579, 852 N.E.2d 825 (2006). A defamatory remark is "published" when it is communicated to someone other than the plaintiff. Gibson v. Philip Morris, Inc., 292 Ill. App. 3d 267, 275, 685 N.E.2d 638 (1997). A remark that imputes the commission of a crime is per se defamatory. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88, 672 N.E.2d 1207 (1996). Defamatory statements that would otherwise be actionable will escape liability when the conduct is to further an interest of social importance such as the investigation of an alleged crime. Thomas v. Petrulis, 125 Ill. App. 3d 415, 418, 465 N.E.2d 1059 (1984), citing W. Prosser, Torts

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