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08/03/87 Nancy Buechin, v. Ogden Chrysler-Plymouth

August 3, 1987

NANCY BUECHIN, PLAINTIFF-APPELLANT

v.

OGDEN CHRYSLER-PLYMOUTH, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

511 N.E.2d 1330, 159 Ill. App. 3d 237, 111 Ill. Dec. 35 1987.IL.1110

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Nancy Buechin (Buechin), appeals from a judgment entered by the circuit court of Du Page County granting the motion of defendant, Ogden Chrysler-Plymouth (Ogden), for a directed finding pursuant to section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1110). The issues raised on appeal are: (1) whether the trial court erred in granting defendant's motion; and (2) whether the trial court erred in refusing to allow plaintiff's expert witness to testify regarding certain economic matters raised by the case. We affirm in part, reverse in part and remand.

Plaintiff filed a four-count complaint. In count I, plaintiff alleged defendant committed common law fraud. Count II alleged that defendant's conduct was violative of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). In count III, plaintiff alleged that defendant violated the Motor Vehicle Information and Cost Savings Act (15 U.S.C. secs. 1981 through 1991 (1982)). Count IV alleged that defendant violated the provisions of section 3-112.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 3-112.1). At the end of the trial, the court granted plaintiff's motion to file an amendment to her first amended complaint pursuant to sections 2-616(a) and (c) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-616(a), (c)) to allow the pleadings to conform with the evidence presented at trial.

Buechin testified that on the evening of February 25, 1984, she talked to Tom Komes (Komes), a salesman for Ogden, regarding her desire to purchase a new car. During her testimony Buechin was asked what she understood a new car to be. She answered that "a new car is a car that has not been owned by anybody else, taken off the lot and in their possession."

Buechin explained to Komes the type of car she wanted and specified the options and the price range she was prepared to pay. Komes took her to the lot and showed her a Plymouth Turismo 2.2. Komes took her for a test drive around the lot for approximately a minute or two. She testified that she noticed the exterior and the color of the car and that the car had only an AM radio (she was interested in an AM/FM radio). The only instrument on the dashboard Buechin testified to have noticed was the tachometer, which she observed "when she shifted." She said she did not notice any other instrumentation because she did not "really look" in that direction. Buechin expressed reservations regarding the car when she and Komes returned to his office after inspecting the Turismo. After allaying her concerns, Komes prepared for Buechin's signature a worksheet giving a description of the car and the options with prices. Buechin testified that on the evening she bought the Turismo, the space providing for mileage information on the worksheet was left blank.

Following the completion of the worksheet, Buechin testified that she was directed to see Charles Cycholl (Cycholl), Ogden's business manager. Buechin was asked to sign various forms and papers, including a buyer's order sheet and an odometer statement form. She questioned the accuracy of the odometer statement, which indicated that the Turismo had 10 miles on it, in view of the fact that she had not personally observed the odometer while she was inspecting the car. Buechin testified that Komes, who came after her to Cycholl's office, indicated to her that the car had 10 miles on it "give or take a few" and encouraged her to sign the odometer statement. Cycholl signed the statement on behalf of the dealership.

After Buechin completed signing all the forms, she left the dealership in the Turismo. While driving she noticed that the odometer registered 650 miles. Buechin was not able to return to the dealership that night because it was closed, so she returned the following day, February 16, 1984, to talk to Komes about the mileage. He offered to extend the warranty on the car by 700 miles, which was the current mileage on the Turismo on that day. Buechin testified that at that time Komes filled in the blank mileage space on the worksheet.

Buechin returned to Ogden the following day to have the AM/FM radio and the air conditioner installed and have some adjustments performed on the car. During the next few days, Buechin secured financing for the car, and on March 1, 1984, she tendered a certified check for $9,914.13 as full payment for the Turismo.

Ten days later, on March 10, 1984, Buechin returned to Ogden with her father to talk to Komes regarding the mileage. The two of them expressed concern that a car with that many miles on it was not new. Also, Buechin testified that she had found a buyer's order sheet in the glove compartment issued to another customer, Geri Heintz (Heintz), and that she confronted Komes with this information. Defendant objected to the introduction into evidence of this document in the form of a motion in limine which the trial court denied.

Buechin testified that when she confronted Komes with the Heintz buyer's order for the Turismo, Komes "shrugged" his shoulders. Komes referred Buechin and her father to Rick Evans (Evans), the new car manager. When Buechin expressed her desire to get a new car, Evans informed her that he could not do that since the car "was getting titled" to Buechin, and, therefore, "there was no possible way" she could get a new car. Evans offered to Scotchguard the interior of Buechin's car instead, which offer she refused.

Plaintiff called Komes as an adverse witness pursuant to section 2-1102 (Ill. Rev. Stat. 1985, ch 110, par. 2-1102). Komes testified that on the evening of February 25, 1984, he did not tell Buechin that there were 650 miles on the Turismo when, in fact, he had seen the mileage during the test drive. Komes did say, however, that he mentioned to Buechin that "there were some miles on the car." He also testified, contrary to Buechin's testimony, that he did fill in the mileage on the worksheet the same evening Buechin purchased the Turismo. Komes acknowledged that he did not recall whether he discussed the worksheet information and, specifically, the mileage with Buechin, and that he did not know whether, in fact, she had seen this figure on the worksheet. Komes contradicted Buechin's testimony regarding his presence during the meeting between Buechin and Cycholl and asserted that he did not advise her to sign the odometer statement as a routine matter.

Komas further testified that on the evening of February 25, 1984, no one advised Buechin that the Turismo had been in the possession of somebody else for a few weeks. Komes further stated that he first became aware that the Turismo had been in the possession of somebody else from Buechin, the day after she took possession of the Turismo. He said that Buechin called him at home and told him that there were 650 miles on the car. She also informed Komes that "she had found in the glove compartment of the car paperwork showing that it had been sold or . . . attempted [to be sold] to someone else." He also testified that he did not discuss the sale of the Turismo to Heintz with anyone from Ogden either before or after the transaction with Buechin and that he had no knowledge of that deal until Buechin alerted him to it.

Cycholl testified that he prepared the odometer statement for Buechin. He stated that the statement was generated automatically by computer and that he did not verify the accuracy of the computer printout by personally examining the odometer on the car.

Evans was called as an adverse witness pursuant to section 2-1102 (Ill. Rev. Stat. 1985,110, par. 2-1102). Evans was the new car manager at the time the transaction in question here took place. His testimony directly contradicted Komes' testimony regarding whether Buechin was informed and aware of the 650 miles on the car. He testified that on the evening of February 25, 1984, Buechin was aware of the 650 miles on the car and expressed concern over this fact. He reassured her that despite the mileage, the Turismo was a new car.

Evans also testified that on the evening Buechin picked up her car, he knew that the Turismo had been in the possession of someone else but that he did not remember communicating this information to either Komes or Buechin. When asked how he defined a buyer's order, the type of document Buechin signed the evening of February 25, 1984, Evans answered that it was "a binding contract" between the buyer and the dealership.

Since the paperwork regarding the Heintz transaction was not contained either in the "deal bag" or anywhere else, Evans was asked whether this situation was consistent with the "ordinary and customary practice of Ogden" to retain such paperwork in dead-deal files. Evans answered in the negative.

James Parota (Parota) was also called as an adverse witness. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102). He is the general manager of Ogden. Parota testified that the value of a car is not diminished simply by the possession of someone other than the dealership as long as ownership had not been transferred to someone else. He also testified as follows regarding the repurchase price of the car that has been transferred to a customer:

"[Plaintiff's counsel]:

Q. If you sold a new Plymouth Turismo 2.2 to a prospective purchaser and the customary papers were signed, the keys were transferred, and the purchaser took the vehicle off the lot and then a couple of weeks later they wanted to sell it back to you at the dealership, would you ...


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