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07/08/88 Walter Kleidon Et Al., v. Rizza Chevrolet

July 8, 1988

WALTER KLEIDON ET AL., PLAINTIFFS-APPELLEES

v.

RIZZA CHEVROLET, INC., DEFENDANT-APPELLANT

10. THE FOREGOING REPRESENTATIONS AND COURSE OF CONDUCT ON THE PART OF RIZZA WAS UNFAIR AND DECEPTIVE, IN VIOLATION OF ILL. RE

v.

STAT. CH. 121 1/2, SEC. 262 (AND BY INCORPORATION THEREIN, 312).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

527 N.E.2d 374, 173 Ill. App. 3d 116, 122 Ill. Dec. 876 1988.IL.1072

Appeal from the Circuit Court of Cook County; the Hon. Sidney A. Jones III, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiffs, husband and wife, Walter and Fayle Kleidon, initiated their three-count complaint against the defendant, Rizza Chevrolet, Inc. (Rizza), a retail merchant of new and used motor vehicles. The complaint alleged that Rizza misrepresented or misstated the purchase price and interest rate contained in the 1984 purchase contract and retail installment contract of a Chevrolet Celebrity automobile purchased by plaintiffs from Rizza. In count I of the complaint, plaintiffs maintained these alleged misstatements violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) and sought $5,000 in damages plus attorney fees. In count II of the complaint, plaintiffs alleged that these misstatements constituted common law fraud and sought $5,000 in punitive damages. Count III, which was settled by agreement prior to trial, alleged the misstatements violated the Truth-in-Lending Act and sought actual damages of $1,000 plus attorney fees at the Conclusion of trial. The trial court found that the misrepresentations or misstatements had occurred with respect to the interest rate, but that they were not fraudulent or intentional on the part of Rizza. Based upon these findings, the trial court found for the plaintiffs on count I and for Rizza on count II. The trial court awarded plaintiffs $1,723.20 in actual damages, $1,000 in punitive damages and $1,000 in damages for pain and suffering. The trial court also awarded plaintiffs' attorneys $14,400 in attorney fees and $101.92 in costs, all under count I of the complaint. Rizza has appealed from the trial court's entry of judgment and award of damages under count I.

In their complaint plaintiffs alleged that on October 30, 1984, they purchased from Rizza a new 1985 Chevrolet Celebrity automobile and that Rizza made the following misrepresentations or misstatements to plaintiffs, in violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.), which allegedly constituted common law fraud:

"7. Prior to sale Rizza represented to the Kleidons that although the sticker price of the car was $10453.00, the Kleidons could purchase the car for $9,000.00.

8. In the purchase order the price of the car was listed as $10998.00.

9. In the retail installment contract the purchase price was listed as $11731.15 (including taxes but no accessories or services).

11. On October 30, 1984 Rizza had the Kleidons execute the retail installment contract in blank, and did not give the Kleidons a filled in copy until approximately three weeks after the transaction had been consummated, which was unfair and deceptive.

12. Upon receiving the retail installment contract from Rizza the Kleidons learned that Rizza had charged them $273.66 for a credit life insurance policy that they had not requested, which was unfair and deceptive.

13. Prior to purchase of the Chevrolet Rizza represented to Mr. & Mrs. Kleidon that Rizza would arrange financing through General Motors Acceptance Corporation at an annual percentage rate of 12.5%.

14. This representation was false, unfair and deceptive in that the annual percentage rate in the retail installment ...


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