Preview:

FIFTH DIVISION November 7, 2008 No. 1-07-0755 TRACI HANSON-SUMINSKI ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 04 M1 162203 Honorable Patrick Lustig, Judge Presiding

Plaintiff-Appellee, v. ROHRMAN MIDWEST MOTORS, INC., d/b/a Arlington Acura in Palatine, Respondent-Appellant.

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court: Traci Hanson-Suminski (plaintiff) brought an action to recover damages arising from alleged misrepresentations by Rohrman Midwest Motors, Inc., doing business as Arlington Acura in Palatine (defendant). Following a jury trial, defendant was found guilty of common law fraud, and following a bench trial, judgment was entered in favor of plaintiff under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)). On appeal, defendant argues that (1) the jury verdict on the common law fraud claim and the trial court's judgment under the Consumer Fraud Act are against the manifest weight of the evidence, (2) damages awarded to plaintiff under the common law fraud claim and under the Consumer Fraud Act claim are erroneous, (3) the trial court improperly entered judgment under the Consumer Fraud Act, and (4) the trial court's judgment under the Consumer Fraud Act is barred by the doctrine of election of remedies. For the following reasons, we affirm and remand for plaintiff to petition for additional fees. I. BACKGROUND Plaintiff filed suit against defendant seeking damages in connection with her November

1-07-0755 29, 2003, purchase of a used 2002 Honda Civic (Honda) from defendant. Plaintiff alleged that defendant committed common law fraud and violated the Consumer Fraud Act, by erroneously claiming the Honda had not been involved in an accident prior to the purchase date. The trial court found that plaintiff had a right to a jury trial on the common law fraud issue and the right to a bench trial for the violation of the Consumer Fraud Act claim. At the jury trial, Andre Williams' testimony was presented first on behalf of plaintiff. Williams, a deputy custodian of records for the Alabama Department of Public Safety, averred that the Honda in question had been involved in an accident on July 29, 2003 in Marion, Alabama, where it had rotated and overturned. Williams further testified that the Honda was deemed "disabled" after the accident. Plaintiff testified next that prior to purchasing the Honda she had looked online and in the paper for an economical, reliable car. Plaintiff stated that she wanted to purchase a car from a dealership knowing it would be more reliable than purchasing one from an individual. She saw an advertisement by defendant online for the Honda and went to the dealership. She was introduced to Mike Dobin, a salesperson for defendant, and went on a 15 or 20 minute test-drive with him. Plaintiff testified that when the car exceeded 60 miles per hour, there was a vibration in the steering wheel. She asked if the car had a lot of repairs done to it, or if it had been in an accident, to which Dobin replied, "No, it's fine." Plaintiff testified that she would not have purchased the car if she had known it had been in an accident or if Dobin had been unsure of whether it had been in an accident. Plaintiff was never told she could get the car inspected on her own, and she was not given the option of asking for a Carfax sheet. She paid $10,899.31 for the

2

1-07-0755 car. Defendant replaced all four tires on the car, and when plaintiff test-drove it again, the vibration was gone. Plaintiff further testified that once she got the car home, she noticed a little bit of rust on the door, the driver's side door would not lock except manually from the outside, and the airconditioner came on when the defroster was turned on. Plaintiff attempted to trade the car in for another car in July of 2004, and she was offered only half of what she had paid for it because it had been in an accident. Plaintiff was shown a Carfax vehicle history report, which was dated four months prior to plaintiff's purchase. The Carfax report indicated that the car had been in an accident in Alabama, where the vehicle had overturned and suffered "moderate or severe" damage. Plaintiff testified that she then brought the car into a body shop, where she learned that her car had definitely been in an accident. She then wrote a letter to defendant. On cross-examination, plaintiff testified that after learning the vehicle had been in an accident and writing a letter to defendant, plaintiff received a call from Jeff Jafrani, the general manager for defendant. Jafrani told plaintiff to take a look online and see what other cars were in defendant's lot. Plaintiff called Jafrani and said there were no cars in the lot that she could afford and asked what else could be done but did not receive a response. She called again and left a message, but again did not receive a response. Plaintiff admitted that the document entitled "buyer's guide" that came with the car explained that plaintiff had the option of having her own mechanic come out and look at the vehicle, but that was not something she did prior to purchase. Jeff Jafrani testified next for the plaintiff. Jafrani averred that he purchases cars for

3

1-07-0755 defendant at auctions. He has an opportunity to inspect the cars at the auction, to see if the car has even paint, to make sure the car is running well, and to make sure there are no dents or cracks in the windshield. Jafrani testified that he is not certified and has no mechanical training in auto body repairs. He stated that during the auctions, the cars that have issues affecting their titles receive a red light, and those that do not have issues receive a green light. The Honda in this case had a green light at the auction. Once back at the dealership, defendant generally generates a performance inspection report on the purchased vehicle. Jafrani testified that the performance inspection report for the Honda indicated that the car needed brake service, transmission service, a new headlamp, and the driver's seat tightened. Jafrani further testified that defendant does not have a body shop, and no one at the dealership has auto body training or is certified in auto body repairs. Jafrani did not have the title history of the car checked prior to plaintiff's purchase because he claimed it could have taken two months to receive. Jafrani further testified that if there had been signs that the car had been in an accident, he would not have sold it at the dealership but, rather, would have returned it to the auction. He stated that he relied on the green light at the auction as evidence of a clean title. Jafrani further testified that at the time of plaintiff's purchase, defendant did not run Carfax reports on its cars, but that it does now. Jafrani stated that defendant paid $6,400 for the Honda, and defendant made $3,263.35 in profits on the sale to plaintiff, not including subsequent repairs. Ken Klein testified next, stating that he operated West Side Auto Body and Consumers Auto Detective and that he had an opportunity to inspect the Honda. He noticed a crack in the

4

1-07-0755 right quarterpanel, which was evidence of prior repairs. He noticed that the right fender had been replaced at some point, that some of the panels showed sand scratches from repairs, and that there was water damage in the trunk area. Klein further testified that normally paint build is between 3

Download 1070755.pdf

Illinois Law