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11/18/87 Kurt A. Spengler, v. Rathon

November 18, 1987

KURT A. SPENGLER, PLAINTIFF-APPELLANT

v.

V & R MARATHON, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 787, 162 Ill. App. 3d 715, 114 Ill. Dec. 632 1987.IL.1706

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

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff, Kurt A. Spengler, appeals from the order of the circuit court which granted the motion of defendant, V & R Marathon, Inc., to dismiss plaintiff's complaint for failure to state a cause of action. On appeal, plaintiff contends that the trial court erred when it dismissed his complaint for failure to state a cause of action pursuant to section 2 of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 262). We affirm.

In his complaint, plaintiff alleged as follows:

"2. On or about November 11, 1986, plaintiff brought his Chevrolet station wagon to defendant's place of business in order to have defendant complete the repairs to plaintiff's vehicle which were initiated October 14, 1986, so as to permit the vehicle to pass the Illinois vehicle emission test. Plaintiff's station wagon had failed to pass such a test immediately preceding November 11, 1986.

3. On November 11, 1986, the parties discussed the cost of the work defendant was to perform on plaintiff's station wagon as being in the nature of $150.00 to $200.00.

4. On November 13, 1986, defendant informed plaintiff that plaintiff's station wagon had been repaired and might be picked up at defendant's place of business.

5. Plaintiff's son, Mark, went to defendant's place of business and was told by defendant that he would have to sign the repair order, a copy of which is attached hereto as Exhibit A and made a part hereof, and a credit card charge in order to remove the automobile from defendant's premises.

6. At that time plaintiff learned that instead of a charge by defendant of approximately $150.00 to $200.00, defendant charged plaintiff $743.00 which included a large amount of labor and parts in no way related to the failure of defendant's station wagon to pass the vehicle emission test and which was not authorized by plaintiff or even known to plaintiff to have been provided by defendant.

7. Defendant's conduct constitutes an unfair and deceptive act under Section 2 of the Consumers Fraud and Deceptive Business Practices Act, Section 262, Chapter 121 1/2, Illinois Revised Statutes."

On February 3, 1987, defendant filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615). On February 19, 1987, the court dismissed the complaint and allowed plaintiff 21 days to file an amended complaint. Plaintiff elected to stand on his pleadings, and on February 19, 1987, the court entered an ...


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