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Dixon v. Ford Motor Credit Corp.

OPINION FILED JUNE 5, 1979.

JACQUELINE DIXON, PLAINTIFF-APPELLANT,

v.

FORD MOTOR CREDIT CORP., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. O'BRIEN, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Jacqueline Dixon, appeals from two orders by the circuit court of Cook County dismissing her fourth amended complaint, which sought damages from various defendants, including Ford Motor Credit Company (Ford), for the allegedly wrongful repossession of plaintiff's automobile. Having entered into a settlement agreement which resulted in the dismissal of the other defendants, plaintiff appeals only from the dismissal as to Ford. The pertinent facts follow.

In 1973, plaintiff and her husband entered into a retail installment sales contract with Courtesy Ford Automotive Sales, Inc., for the purchase of a new Ford automobile. This contract was assigned to Ford. Subsequently, plaintiff defaulted in her payments under the contract with Ford. Thereafter, two attempts were made to repossess the automobile. The success of the second endeavor prompted plaintiff to commence litigation in the circuit court of Cook County.

On January 2, 1975, plaintiff filed a verified complaint against Ford, alleging the following: on November 12, 1974, plaintiff owned and was in possession of a 1973 Ford automobile, the value of which was $2800; at approximately 5 p.m. on November 12, 1974, Ford, by its agents, wrongfully attempted to take the automobile from plaintiff's home at 3408 Magnolia, Markham, Illinois; plaintiff refused to relinquish the automobile, but Ford's agents disregarded these protests and hitched the automobile to a tow truck; plaintiff then got into the hitched vehicle and refused to move; Ford's agents nevertheless towed the car for 15 blocks until stopped by the Markham police, who ordered them to release plaintiff and the automobile, which they did; between November 12 and November 25, 1974, Ford was notified that plaintiff would not voluntarily relinquish the automobile; despite plaintiff's warnings and protests, on November 25, 1974, Ford's agents again came to repossess the automobile; plaintiff did not interfere because she felt that further protests would cause another breach of the peace; section 9-503 of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 9-503) permits non-judicial repossession only if it can be accomplished without a breach of the peace; plaintiff was wrongfully deprived of her property, sustaining loss in the amount of $2800; and in count I she seeks that amount in damages plus $5000 in punitive damages. In count II of her complaint, plaintiff alleged that due to the disposition of the automobile by Ford, she was entitled to $1,449.98 pursuant to section 9-507(1) (Ill. Rev. Stat. 1977, ch. 26, par. 9-507(1)).

Ford filed an answer, denying or demanding strict proof of most of the allegations contained in the complaint. Plaintiff then filed her first amended complaint. This complaint, which was also verified, named James Early, Emil Van Rossen, Nick Simon, and Walter Zielinski as defendants in addition to Ford. These individuals were alleged to be the agents, servants, or employees of Ford. The remainder of the amended complaint essentially repeated the allegations of the original complaint. Defendant Van Rossen filed an answer denying all material allegations, stating that he was an agent at all times under the supervision and control of Reliable Repossession Service, Inc., and requesting that, as to him, the cause be dismissed.

Plaintiff then filed a second amended complaint adding Reliable Charge Plate and Repossession Systems, Inc. (Reliable), as a defendant. Otherwise the second amended complaint was essentially no different from plaintiff's two prior complaints, except for the fact that it was not verified. Ford filed a motion to dismiss the second amended complaint, supported by affidavits by officers of Ford and Reliable containing facts tending to negate the existence of an agency relationship between the two.

The motion to dismiss was apparently granted, but with leave to amend, for plaintiff filed a third amended complaint, which, like the second, was unverified. This complaint differed from prior complaints in that it couched its allegations in three counts, but its chief departure was that plaintiff's attorney now alleged that "[p]laintiff protested the [second] repossession, but did not intervene for fear that her safety would be endangered."

Ford then moved to dismiss the third amended complaint, but prior to any ruling on Ford's motion, plaintiff filed a motion for summary judgment as to liability under the third amended complaint. In support of the motion, plaintiff submitted inter alia her own affidavit and the deposition of defendant Van Rossen, a Reliable employee who was on the scene during both repossession attempts. In her affidavit, plaintiff stated that she orally and physically protested the first repossession on November 12, 1974, essentially as alleged in all prior complaints. However, as to the second, successful repossession, plaintiff averred:

"19. On November 25, 1974, I did not orally object to the tow truck operators nor get in my car, because I feared a repetition of what had happened on November 12, 1974.

20. On November 25, 1974, I did not object to the towing and get into the car, because I was fearful for my safety."

In the deposition of defendant Van Rossen submitted by plaintiff, Van Rossen stated that plaintiff did not even appear on the scene of the second repossession, nor did anyone else appear or object to the repossession.

Plaintiff's motion for partial summary judgment was ultimately denied. However, in the meantime the court granted Ford's motion to dismiss the third amended complaint as to Ford. Although the motion does not appear in the record, the order of dismissal recites that Ford had filed affidavits establishing that there was no agency relationship between Ford and the other defendants, but no counteraffidavits had been filed on behalf of plaintiff. Noting that plaintiff's complaint only alleged that Ford acted through its agents, and finding that the other defendants were not Ford's agents, the court struck and dismissed the portions of the complaint relating to Ford. The court then gave plaintiff leave to file a fourth amended complaint.

Plaintiff did file a fourth amended complaint, the dismissal of which she is now appealing. This complaint, which was also unverified, differed from prior complaints in that it set forth in somewhat more detail the notice given Ford between November 12 and November 25, 1974, that plaintiff would not voluntarily relinquish her automobile. Plaintiff now explicitly alleged that in spite of this notice, Ford requested that Reliable repossess the automobile. The fourth amended complaint alleged that "[p]laintiff protested the [second] repossession but did not intervene for fear that her safety would be endangered."

Ford moved to dismiss the fourth amended complaint, which motion does appear in the record. The motion, which states that it was being made pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45), recites the facts relating to the dismissal of plaintiff's third amended complaint as to Ford on the basis of the court's finding that the other defendants were not agents of Ford at any time relevant to the lawsuit. Noting that the only additional allegation as to Ford in the fourth amended complaint was that Ford requested Reliable to make the second repossession, the motion contended that the complaint was substantially ...


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