Appeal from the Circuit Court of Du Page County; the Hon.
Robert Cox and the Hon. Richard A. Lucas, Judges, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Plaintiff, Winifred Nelligan, appeals from the trial court's dismissal of her complaint filed against defendants Tom Chaney Motors, Inc. (Tom Chaney), and Volkswagen of America, Inc. (Volkswagen), alleging defects in her 1977 Volkswagen Rabbit and claiming revocation of acceptance, breach of implied warranty, and violation of the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (1976)).
On appeal, she raises four issues: (1) whether the trial court erred when it dismissed count I and count II of the complaint as being barred by the statute of limitations; (2) whether the trial court erred by dismissing count III of the complaint where plaintiff's cause of action was not barred by the applicable statute of limitations; (3) whether the trial court erred by dismissing the complaint where genuine issues of material fact existed with respect to its findings that the plaintiff's causes of action were barred by the statute of limitations; and (4) whether the trial court abused its discretion by denying plaintiff's motion to amend the complaint.
This action commenced on November 23, 1983, when plaintiff filed a three-count complaint against defendants. She alleged that in January 1977, she bought a 1977 Volkswagen Rabbit from Tom Chaney for $4,378.25 and that defendants warranted the motor vehicle for its use as a passenger vehicle. In count I, plaintiff sought revocation of acceptance, alleging that defendants informed plaintiff that the Volkswagen Rabbit would be the best motor vehicle for her needs; that plaintiff purchased the vehicle in reliance on advertisements, promises and warranties published by defendants; that on or about August 1978, plaintiff discovered the vehicle was defective, unsound and wholly unfit for the use for which it was purchased in the following manners: (a) faulty and defective emission control system; (b) faulty and defective engine; (c) faulty and defective carburetor; and (d) faulty and defective repair; that plaintiff retained the motor vehicle on the assumption that defendants would repair or cure the defects; and that in cooperating with defendants, plaintiff returned the motor vehicle on numerous occasions at plaintiff's expense and defendants failed to repair, fix and cure the defective product. Plaintiff asked the court to revoke the transaction for breach of warranty in accordance with section 2-608 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2-608); to order Tom Chaney to restore to plaintiff consideration paid for the motor vehicle plus additional expenditures; and to award plaintiff $4,378.25 plus additional expenses, attorney fees, and costs.
In count II, based upon implied warranty of merchantability, plaintiff additionally alleged that defendants promised and warranted that the motor vehicle would be of merchantable quality and fit for the ordinary purposes for which motor vehicles are used in accordance with section 2-314 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2-314) and that defendants breached their promise and warranty as the motor vehicle was not merchantable or fit for ordinary purposes.
Plaintiff, in count III, claimed a violation of the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (1976)), realleging the aforementioned complaints and alleging that section 2301(d) of the Act allows any buyer of a consumer product to bring suit for damages and for other legal and equitable relief in any court in any State. No exhibits such as a bill of sale or express warranty relating to the allegedly defective vehicle were attached to the complaint.
Volkswagen and Tom Chaney each filed a motion to dismiss, claiming that since, according to the complaint, the vehicle was delivered in January 1977 and problems with the vehicle were experienced in 1978, the applicable four-year statute of limitations period had expired. In a written response to the defendants' motions to dismiss, plaintiff argued, inter alia, that by performing repairs and by the continuous recall program, defendants waived the limitations period. She charged that defendants should be estopped from raising the statute of limitations as a defense because she relied on the recall notices and believed that repairs would be performed satisfactorily. She also sought extension of the discovery rule to this type of action.
The trial court on March 12, 1984, granted the motions of defendants to dismiss and entered judgment in their favor. On April 10, 1984, plaintiff filed a motion to vacate and a motion for leave to file an amended complaint in which, she stated, she would allege additional facts and causes of action that would plead a waiver or estoppel in her favor. However, a proposed amended complaint was not filed then or at any time prior to the hearing on April 23, 1984, on plaintiff's motions, which were denied.
On the same day notice of appeal was filed, May 23, 1984, plaintiff filed, without leave of court, a slightly modified motion to amend along with an amendment to the complaint. In this subsequent motion to amend, plaintiff stated she would allege a waiver or estoppel and causes under the Illinois Consumer Protection Act. In the accompanying amendment, a fourth count was added, which alleged violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, but made no mention of an estoppel or waiver theory.
• 1 Plaintiff first contends that counts I and II of her complaint are not barred by the four-year statute of limitations (Ill. Rev. Stat. 1983, ch. 26, par. 2-725) because the breach of warranty was discovered within the four-year period before plaintiff filed suit and did not occur when tender of delivery was made in 1977, as there was never a conforming tender of delivery.
The Uniform Commercial Code establishes a four-year period of limitations for actions for breach of contract for sale, providing, in pertinent part, that:
"(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered." (Ill. Rev. Stat. 1983, ch. 26, par. 2-725.)
A cause of action accrues when tender of delivery is made. Here, a tender of delivery was made in January 1977, and as suit was filed in November 1983, over 6 1/2 years after the tender of delivery, the four-year period of limitations had run. The language of the statute, as interpreted by the courts of this State, clearly proscribes the application of the discovery rule in breach of warranty cases (see Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 94, 435 N.E.2d 443; Tomes v. Chrysler ...