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Gent v. Collinsville Volkswagen

OPINION FILED JULY 21, 1983.

PATRICK GENT, PLAINTIFF-APPELLEE,

v.

COLLINSVILLE VOLKSWAGEN, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. P.J. O'Neill, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This appeal challenges awards for both compensatory and punitive damages as well as an award of attorney fees made pursuant to section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 270a(c)). Appellant contends it was reversible error for the trial court to have heard evidence pertaining to the amount of attorney fees at a post-trial hearing after the discharge of the jury because the jury should have heard such evidence during the trial.

The jury found in favor of the plaintiff, Patrick Gent, and against the defendant, Collinsville Volkswagen, Inc., awarding compensatory damages in the amount of $6,000 and punitive damages in the amount of $12,000. The case went to the jury on two counts of the plaintiff's second amended complaint, alleging in one count damages resulting from defendant's violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 261 et seq.) and in the other count damages resulting from defendant's wilful and wanton misrepresentations. Post trial the trial court denied defendant's motion for a new trial or, in the alternative, remittitur and, after hearing evidence on plaintiff's motion for attorney fees, ordered the defendant to pay attorney fees in the amount of $3,075. On appeal the defendant raises three issues: (1) whether the award of $6,000 in compensatory damages was against the manifest weight of the evidence; (2) whether the award of $12,000 in punitive damages was against the manifest weight of the evidence; and (3) whether the trial court erred in awarding attorney fees "in a post-trial hearing when no evidence in regard to attorney's fees incurred by appellee was introduced during the jury trial."

In lieu of a transcript of proceedings, a stipulated bystander's report of proceedings has been submitted as part of the record for review. According to the bystander's report, the plaintiff testified at the two-day trial held on October 26 and 27, 1981, that in May of 1978, when he was 19 years of age, he purchased a white 1968 Mercedes Benz automobile from the defendant. While he was looking at the vehicle, he said, a salesman named Dennis approached him and told him that the car might have a problem with the transmission and might have a "few" rust spots. Plaintiff testified, "To me, the car looked as though it was in excellent shape and had no rust spots." Dennis told plaintiff that it was his first day on the job as a salesman and that these particular problems with the car could be remedied. At that time the sales manager, named Smitty, approached Dennis and the plaintiff. According to plaintiff,

"He identified himself by name and said that he was the sales manager. He told Dennis that he would be able to take care of me. When Dennis left, Smitty said that he (Dennis) must have had his cars mixed up; that the car was in `fine shape'; that there was nothing wrong with the body or transmission; that the car was in excellent condition. I did not ask Smitty about the condition of the engine or the drive train. I believed him because he was the sales manager and because I thought that this was a reputable dealership.

I drove the car. I noticed that the transmission did not shift when it should. I thought there might be something wrong with it. I asked Smitty about this, and he stated that there was nothing wrong, but in any event, he could have the transmission checked out and it would be fixed prior to my purchase of the vehicle."

Prior to agreeing, apparently a few days later, to purchase the automobile, plaintiff asked Smitty "if I could put the car up on a rack so that I could look underneath the car. Smitty stated that it was not the policy of the dealership to allow customers to do this."

When plaintiff inquired about a warranty, "Smitty replied," according to plaintiff's testimony, "that there would be a `full 30 day warranty' that covered all moving parts and labor if I were to purchase the Mercedes Benz. Smitty did not tell me that the warranty was only limited to a 10% discount on parts and labor for 30 days." Plaintiff stated that when he signed the "Vehicle Buyer's Order," admitted into evidence as defendant's exhibit No. 2, "it did not contain any notation regarding a `10% discount on parts and labor for work done at Collinsville Volkswagen for 30 days.' I gave it to Smitty. He went into his office, and when he returned, it had that notation on it." On defendant's exhibit No. 2, on which is printed at the top "Vehicle Buyer's Order," appear the words, handwritten in the same color of ink and same size of ball-point pen as the other handwritten notations appearing thereon: "10% Discount Parts and Labor Work done at Coll VW for 30 Days." The order is dated May 31, 1978. Before plaintiff took the car home Smitty told him that the car had been "completely checked out, and that there was nothing wrong with the transmission."

On the second day plaintiff had the car he found that the electric window on the front door of the driver's side of the automobile would not go up and that the automatic transmission did not shift properly. On his way to defendant's place of business to have these problems attended to, the engine began to sputter. Once there, plaintiff told Smitty about these problems, whereupon Smitty provided plaintiff with a tool kit, telling him to fix the window himself. Plaintiff fixed the window after working on it "for several hours." Despite several attempts to speak to Smitty over the course of apparently the next few days, plaintiff was unable to do so. Over the course of the next few weeks plaintiff drove the car 2,600 miles without incident. However, on or about June 27, 1978, the automobile stopped, smoke coming from the engine. Plaintiff and his father examined the car, determined that the oil and water levels were full, and called a tow truck. When the operator of the tow truck arrived and attempted to lift the car by the front bumper, plaintiff and the others present discovered that he could not do so, according to plaintiff's testimony, because

"the front bumper and body in that area were so rusted that the front bumper would have come off if the tow truck had attached to the front end. We looked underneath the car and observed rust throughout the underside of the car. I also observed a two inch square hole in the driver's floor board. The Mercedes was towed from the rear to the defendant's place of business."

A repair estimate from the defendant, defendant's exhibit No. 1, stated that the engine "[n]eeds overhaul." At that time defendant's employee informed plaintiff, he testified, that they "do not do any work on Mercedes Benz cars at their dealership. They refused to repair my car."

Upon receiving this information plaintiff had the car towed to Isom's Import Service (hereafter referred to as Isom's) where a minimum of the repairs needed to be made on the car was made at a cost of $753.21, which plaintiff paid in addition to $25 for the cost of towing. Isom's provided plaintiff with an estimate for further repairs to the vehicle totaling $1,925.35, an amount plaintiff could not afford to pay. While the car was at Isom's plaintiff looked underneath the car and found that "the entire underside of the car was rusted and there had been paint sprayed over it to camouflage the rust." The car was unusable for three months while the minimum repairs were made. When plaintiff got the car at the end of the three-month period, he noticed holes in the radiator, which he had repaired at a cost of $43. From the time of that repair through the time of trial three years later plaintiff was unable to drive the automobile, which had been in storage. The attorneys for both parties stipulated that "$10 per day is a usual and reasonable charge for a rental car." Plaintiff said that he had borrowed money to purchase the car and had "incurred interest in the amount of $855.87 in this purchase." Plaintiff testified that he would not have purchased the automobile had it not been for Smitty's statements about the excellent condition of it and the "full warranty" Smitty had given "for all parts and labor for 30 days."

George Gent, plaintiff's father, testified that prior to his son's purchase of the automobile he had examined it and found it in apparently good condition. Smitty told him there would be "a full 30 day warranty on all parts and labor." The witness had driven the car after his son's purchase of it and had experienced difficulty with the transmission. He was aware as well of his son's problems with the car, such as those with the window and engine and for those reasons "asked Smitty if he would be willing to take the Mercedes Benz back and cancel the deal," a proposition which Smitty refused and at which he "laughed." Like plaintiff, the witness had observed smoke coming from the engine. His account of the events thereafter is like that of plaintiff. He said that "[t]he tow truck operator could not tow the vehicle from the front because we found that the body of the car in the area of the bumper and the bumper itself were rusted." The witness was told apparently by defendant's service manager that the engine needed to be overhauled but that defendant "did not do any work on Mercedes Benz cars." While the automobile was at Isom's the witness looked under it and "observed a large amount of rust on the under-carriage. The rust spots appeared to have been camouflaged by spray paint. I observed that the mounting above the carriage had been rusted through. I observed a hole in the floorboard."

Plaintiff called as a witness Dave Isom, proprietor of Isom's, who testified that the repair bill for the work already done was "reasonable and necessary" and that the estimate was for ...


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