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May 19, 1994


Appeal from the Circuit Court of Du Page County. No. 89-L-0549. Honorable Robert K. Kilander, Judge, Presiding.

Colwell, Inglis, Bowman

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Janice Ciampi, initiated a complaint against Ogden Chrysler Plymouth (Ogden) and Chrysler Motors Corporation (Chrysler) alleging common-law fraud and fraud under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)), and against Peerless Federal Savings and Loan (Peerless) for revocation of a retail installment contract in connection with Ciampi's purchase of a Chrysler LeBaron from Ogden that was financed by Peerless. Ciampi amended her complaint by alleging an additional violation of the Federal odometer statute (15 U.S.C. § 1981 et seq. (1982)) against Ogden. The trial court granted summary judgment to Chrysler and Ciampi settled with Peerless prior to trial, leaving Ogden as the only remaining defendant. A jury returned a verdict in favor of Ciampi on the common-law fraud count and awarded $5,000 in compensatory damages and $100,000 in punitive damages. The jury also found in favor of Ciampi on the Federal odometer violation and assessed $1,500 in damages. The Consumer Fraud Act claim was not tried to the jury, and the trial court took it under advisement and thereafter entered judgment in favor of Ciampi. The trial court awarded $35,070in attorney fees to Ciampi under the Consumer Fraud Act claim. In its judgment, this award of attorney fees was offset against the punitive damages awarded on the common-law fraud count. The trial court denied Ogden's motion for a judgment notwithstanding the verdict, and this appeal followed.

Ogden claims on appeal that: (1) Ciampi presented insufficient evidence of fraud or other violations; (2) the trial court erred in instructing the jury; (3) the trial court erred in admitting plaintiff's exhibit No. 2, the window sticker; (4) the compensatory damages were unjustified; (5) the punitive damages were improper and excessive; and (6) the award of attorney fees was improper. We affirm.

The jury trial began on April 13, 1992. Ciampi testified that she was looking for a new car in September 1988. At that time she owned a 1985 Honda Civic outright. She had purchased new cars before but always with the assistance of her husband or her father. On or about September 17, 1988, Ciampi drove by Ogden and decided to stop and look at cars. She was approached by a salesman named Todd Lee. She told Lee that she was interested in the new LeBarons but she thought they were out of her price range. Lee told her that Ogden had executive driven cars and "demos" that were more in her price range. Ciampi said she did not want an executive driven car because they were on the used car lot and she wanted a new car warranty. Lee then showed her three demos at the back of the new car lot. Lee said these cars included a new car warranty. Ciampi took one of these cars for a test drive. She asked Lee why the car did not have a window sticker. Ciampi testified that Lee had the sticker in his hand and proceeded to read to her the options on the car. She described the window sticker as the paper which lists the options and other information about the car and the manufacturer's suggested retail price.

Ciampi glanced at the odometer during the test drive and noticed that it read over 13,000 miles. She told Lee she thought this was a lot of miles for a demo. Lee said the salesman who drove the car lived in Chicago and that they were highway miles. Lee then asked Ciampi what he could do to sell her the car today. Ciampi replied that she was not buying a car today but they could talk about price. Lee indicated he wanted to have her Honda appraised before they talked price. Lee then told her he could not go to the sales manager with any offer unless he had a check or cash deposit from her. After Ciampi refused to give Lee a check or cash deposit, Lee told her she was never going to find out how much the LeBaron cost if she did not let the sales manager know she was serious. Ciampi thought it was all right at that point to see what kind of price she could get, so she gave Lee her Visa card.

Lee left and came back with another man who he introduced as the assistant sales manager. This man asked Ciampi what she could afford a month. Ciampi said $200. The assistant sales manager wrote it down, said he would show it to the sales manager, and left the room with Lee. Both men returned with a counteroffer from the sales manager of $280 or $289. Ciampi told the men she did not like buying a car like this because she did not know what the total price of the car was. She was then told she had to make a counteroffer, so she said $210. Ciampi said she still had not seen the window sticker although she had asked about it.

Ciampi said they counteroffered back and forth several times until the assistant sales manager came back with an agreement on $225. The men then congratulated her on buying a car. Ciampi told them she was not buying a car today and that she still wanted to know the total price of the car. She also wanted to know about the new college graduate rebate and the financing charges. Ciampi said Lee and the assistant sales manager told her that the finance manager would have that information. She was then left alone in the office for 45 minutes. Ciampi went looking for Lee to get her car keys and her Visa back but was unable to find him.

Soon after, Lee reappeared and took Ciampi to see the finance manager. Ciampi told the finance manager she was not buying the car and she wanted her keys and her Visa back. The finance manager then pushed some papers toward her. Ciampi said she wanted to check the teacher's credit union because she thought she could beat the 12% financing drawn up in the papers. The finance manager put the papers into a computer and then drew up new documents with a lower interest rate. The payments were to be $229 per month for five years. When Ciampi pointed out that this amount was over the agreed payment of $225, the finance manager said "what's four bucks." Ciampi then started signing papers. She said she had been there almost four hours and "it seemed to me it was easier to buy the car than just deal with it any more."

At this point, Ciampi still had not seen the window sticker from the LeBaron. She signed the papers in reliance on the sales-persons' statements that she would receive a new car warranty on the vehicle. The basic warranty on this particular vehicle was supposed to be 12 months or 12,000 miles. She testified that she was given a credit of $3,800 for her Honda. Ciampi could not sign over title to her Honda because she did not have the document with her.

Ciampi said the purchase order, the finance contract, and the tax form described the LeBaron as "new." She was shown a prepared odometer certificate on the LeBaron with the number "12" typed infor the miles on the car. Ciampi testified that the odometer certificate contained a signature of certification when it was given to her. Ciampi pointed out to the finance manager that the number was incorrect. The finance manager told her that "they all come up with 12 miles on it." Ciampi asked the finance manager if she could correct it. She wrote in 13,675 for the mileage, they both initialed it, and Ciampi signed the statement.

Ciampi returned to Lee's office where he gave her a check sheet to sign and a warranty booklet. The warranty booklet had her name on the back and listed the warranty start date as "12/31/87." The mileage at delivery space was left blank. Ciampi did not look at the warranty booklet until she went home. She then picked up her jacket in Lee's office and saw the window sticker from the LeBaron. She picked it up without reading it and put it in her purse.

Ciampi said she did not multiply $229 per month for 60 months until she went home. Later at home, Ciampi matched the figures on her car documents with the window sticker and determined she had been overcharged. She called an attorney friend, Ray Stauber, who agreed to accompany her to the dealership on Monday. On September 19, Ciampi and Stauber met with Lee and later met with the manager. Stauber told the manager that the contract bordered on consumer fraud. The manager replied that they would have to talk to his lawyer. Stauber requested that the Honda not be sold or traded. Ciampi later authorized Stauber to send a letter to Ogden; however, she never received a reply. A second letter sent to Ogden in October 1988 also received no response. Ogden called Ciampi in mid-October 1988 for the title to the Honda. Ciampi refused to send the title because she wanted her car back.

Ciampi kept the LeBaron and continued to drive it. She took the car in for service on October 10, 1988, to correct problems that Ogden had agreed to fix at the time of purchase. After this service date, she never spoke to anyone at Ogden. Ciampi admitted that no one at Ogden ever told her she did not have a warranty on the car for 12 months or 12,000 miles from the date she put her car in service. Ciampi had the car in her possession for about two years. During this period, she never made any payments pursuant to the terms of the contract.

The buyer's order on the purchase of the LeBaron showed the price of the LeBaron as $14,100 plus destination charge, delivery fee, and taxes for a total of $15,397.66. Ciampi was given a trade-in credit of $3,800 for her Honda and a Chrysler rebate of $1,000 for an unpaid cash balance due of $10,597.66. Ciampi was shown defendant's exhibit No. 1, the sheet on which Lee wrote her estimated possiblepayments of $200 per month and with which she had bartered back and forth with the sales manager. The writing on the back of the sheet states "225 a month That's it or I'll go shopping! O.K. Jan." Ciampi testified that the only word she had written was "Jan" and that some of the words on the exhibit were not there when she signed it.

Ciampi testified that she recognized plaintiff's exhibit No. 2, the window sticker, as the same one Lee had in his hands during the test drive because of the way it was folded. She said the vehicle identification number matched that of the LeBaron. Ciampi was not sure if the window sticker she picked up off of Lee's desk was an original or a copy. The word "copy" in blue ink was not on the document when she picked it up.

Judith Spellman testified that she works at Bill Kay Chrysler as general manager and worked at Ogden prior to 1987. She was not working for Ogden in September 1988. Spellman was shown plaintiff's exhibit No. 2, the copy of the window sticker. Spellman stated that it was Ogden's policy not to remove window stickers until a vehicle was delivered to the purchaser, although this was not a written policy. She testified that the manufacturer's suggested retail price on plaintiff's exhibit No. 2 was $13,637 if the LeBaron was new. Ciampi's buyer's order lists the total amount of charges on the LeBaron as $15,397.66. Spellman could not state whether Ciampi was charged more than the manufacturer's suggested retail price since she did not know how much the Honda trade-in vehicle was worth. Spellman stated that when she worked at Ogden, there was no upper limit as to how many miles a car could have on it and still be sold as a new car.

Ray Stauber, an attorney and personal friend of Ciampi's, testified that he accompanied her to Ogden a couple of days after she purchased the LeBaron. Stauber believed that Ciampi had been grossly overcharged for the vehicle. Stauber and Ciampi met with the sales manager. Stauber said Ciampi had never been told the final price of the vehicle and that if an "adjustment" could not be made, she wanted her car back. Stauber suggested an adjustment of $2,500 in the price of the car, which Ogden rejected.

Carl Wascher, a former consumer loan officer, was called as an expert witness by Ciampi. Wascher defined a new car as one that had not been titled and had an odometer reading of around 30 miles or less. He opined that a car with over 13,000 miles on it would be a used car. Wascher examined the window sticker for the LeBaron, the retail order, the bill of sale, the purchase order, and the odometer mileage statement and opined that Ciampi had been overcharged by approximately $3,600. He believed the LeBaron had a retail value of$11,700, based on information in the "Red Book," a guide used to determine the value of cars. Wascher admitted he had never personally observed the vehicle.

Frederick Weissberg, president of Schaumburg Auto Sales, was also called by Ciampi as an expert witness. Weissberg reviewed the exhibits in this case and determined that the LeBaron was a used car based on the mileage and the fact that the car was no longer covered by the warranty. He also noted that Ciampi appeared to have been charged $425 twice for the destination charge. In his opinion, Ogden overcharged Ciampi $3,000 to $4,000 for the LeBaron. He believed the retail value of the vehicle to have been no more than $10,500 on September 17, 1988.

William Koloseike, owner of Ogden, testified that Ogden had an oral policy not to remove the window sticker from a vehicle until it is delivered to the purchaser. He stated that the stickers are sometimes removed from demos if they hinder the drivers' vision.

Koloseike said that people are willing to pay more than the manufacturer's suggested retail price for an automobile on some models. He said that the LeBaron purchased by Ciampi was a demo and is thus considered new. He said that the Illinois Secretary of State defines a car as "new" until that period of time when the vehicle is sold and titled in a person's name. Koloseike explained that this definition does not consider mileage in distinguishing between new and used.

Richard Ruscitti testified that he was the sales manager at Ogden and was involved with Ciampi's purchase of the LeBaron. He said that Ciampi never asked about the total manufacturer's suggested retail price of the car. Ciampi testified on rebuttal that she had never met Ruscitti or spoken to him.

Mark Koloseike testified that he was general manager of Ogden from 1987 to 1988. His policy during this period was to have a window sticker in every new vehicle. He said his experience in the automobile industry was that a car was still considered new if it was still on the manufacturer's certificate of origin and had never been sold and titled to a customer.

Koloseike recalled that Ciampi and Stauber came into his office in September 1988 to discuss the sale of the LeBaron and attempt to renegotiate the price. Koloseike told Ciampi that she would get the full warranty on her car. When Stauber stated that he wished to lower the price of the vehicle, Koloseike said his policy was never to renegotiate the price of a car after the sale.

With the aid of notes he prepared a few days before the trial, Koloseike demonstrated during his testimony how Ogden came up withthe selling price on the car. Koloseike said the selling price of the vehicle was $14,100, although he admitted that the finance application form lists the total cash price of the car as approximately $15,390. Ogden then subtracted $3,800 for the trade-in on Ciampi's Honda for a total of $10,300. He told Ciampi this was the amount she was paying for the car, plus her trade-in. Koloseike explained to Ciampi that Ogden had originally appraised the Honda at $1,800, which added to the destination charge of $425, meant the dealership actually received $12,525 for the car. He admitted that the trade-in value for the Honda was listed on the buyer's order as $3,800 rather than $1,800. Koloseike said the $3,800 is the trade-in allowance and the $1,800 is the actual appraised value of the Honda. He said the $2,000 difference was used to discount the car to show an offer allowance where, as here, there was no cash down payment. Ogden used the higher trade-in value to secure financing.

Koloseike showed Ciampi that Ogden gave her credit for a $1,000 rebate from the $12,525 because she had no cash to put into the deal; thus she was really paying $11,525. He then subtracted $400 for Ciampi's college graduate rebate, leaving a total of $11,125 that she was paying for the vehicle. Koloseike said the car cost the dealership $12,600, which was $1,499 more than Ciampi was paying, but they were able to sell it at that price because the car had been depreciated. ...

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