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04/13/88 Cynthia Vieweg, v. Marshall Friedman

April 13, 1988

CYNTHIA VIEWEG, PLAINTIFF-APPELLANT

v.

MARSHALL FRIEDMAN, D/B/A MARSHALL PONTIAC, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 364, 173 Ill. App. 3d 471, 122 Ill. Dec. 105 1988.IL.516

Appeal from the Circuit Court of Lake County; the Hon. John G. Radosevich, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Plaintiff, Cynthia Vieweg, filed suit in the circuit court of Lake County seeking revocation of the purchase of a used automobile and attorney fees against defendant, Marshall Friedman, doing business as Marshall Pontiac. Following a bench trial, the trial court entered judgment for plaintiff, applied a setoff based upon plaintiff's use of the automobile, and ordered plaintiff's attorney fees to be split between the parties. Plaintiff appeals contending that the trial court improperly applied a setoff and that the award of attorney fees was inadequate. Defendant does not appeal from the judgment against him.

On April 29, 1985, plaintiff purchased from defendant a used 1984 Pontiac Fiero for $9,633.60, including tax and incidental expenses. Shortly after purchasing the vehicle, plaintiff experienced numerous problems with the vehicle, such as banging noises, overheating, and stalling.

As a result of these various mechanical difficulties, plaintiff, on several occasions, brought her vehicle to defendant for service and repair. During a period of approximately 11 months following the purchase of the vehicle, plaintiff brought it in for repair on numerous occasions, and defendant performed various services. The problems were not corrected.

Finally, in March 1986, plaintiff again brought the vehicle to defendant. An examination of the vehicle revealed a cracked cylinder head. Prior to defendant notifying her of this problem, plaintiff contacted an attorney, who prepared a letter on March 13, 1986, which plaintiff signed and mailed to defendant, expressly revoking her acceptance of the vehicle and demanding a refund of the purchase price. Plaintiff did not return to pick up the vehicle. Following defendant's failure to refund the purchase price, plaintiff filed a two-count complaint in the circuit court of Lake County.

Count I sought damages for breach of an implied warranty of merchantability pursuant to section 2-314 of the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 2-314) and revocation of the sale pursuant to section 2-608 of the UCC (Ill. Rev. Stat. 1985, ch. 26, par. 2-608). Count II sought attorney fees under section 2310(d)(2) of the Magnuson-Moss Warranty Act (Magnuson-Moss) (15 U.S.C.A. § 2310(d)(2) (West 1982)). Defendant filed an answer but did not assert any counterclaim or setoff.

Following a two-day bench trial, the trial court entered judgment in favor of plaintiff on count I. Additionally, the trial court awarded plaintiff the following: $1,240 for her down payment, $2,431.33 for her installment payments, $1,000 for aggravation and inconvenience, $295 for repair bills, and $182.80 in costs. The court then deducted $2,400 from the damage award as a setoff based upon the stipulated 12,000 miles that plaintiff drove the vehicle multiplied by a rate of $ .20 per mile, which rate the trial court derived from the Internal Revenue Code. As to count II, the trial court awarded plaintiff $2,176.88 in attorney fees, which was one-half the fees requested by plaintiff.

Plaintiff first contends on appeal that the court erred in awarding a setoff to defendant because defendant never alleged any setoff in his pleadings, defendant never offered any evidence to establish what the proper setoff should be, and the trial court had no proper basis for utilizing the $ .20-per-mile rate in calculating the setoff amount.

As to plaintiff's contentions regarding the setoff, we find the failure of defendant to include a claim for setoff in his pleadings to be dispositive. Defendant argues that he need not plead a setoff because Magnuson-Moss allows an award of the actual purchase price less reasonable depreciation based on actual use. Defendant's argument is inapplicable, however, because plaintiff expressly premised her damage claim in count I on UCC provisions rather than Magnuson-Moss.

Section 2-608 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-608) ...


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