This Opinion Substituted by the Court for Withdrawn Opinion of September 20, 1995, Previously Appeal from the Circuit Court of Cook County. Honorable Walter Bieschke, Judge Presiding.
As Corrected December 19, 1995.
The Honorable Justice Cerda delivered the opinion of the court. Greiman, P.j., And Rizzi, J. Concur.
The opinion of the court was delivered by: Cerda
The Honorable Justice CERDA delivered the opinion of the court.
This appeal arises from a class action of plaintiffs who were purchasers of Audi 5000 automobiles during model years 1983 through 1987. Defendants are Volkswagen of America, Inc., the importer and distributor of Audis in the United States, Audi A.G., the Audi manufacturer, and Volkswagen A.G., the parent corporation of Audi A.G. and Volkswagen of America. The claims arose out of alleged unintended acceleration of the Audi 5000 automobiles.
The trial court dismissed the fifth amended complaint for failure to allege specific defects under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act)(Ill. Rev. Stat. 1987, ch. 121 1/2, par. 262 (now codified as 815 ILCS 505/2 (West 1992))) and failure to allege proper notice on its Uniform Commercial Code (UCC) warranty claims (Ill. Rev. Stat. 1987 ch. 26, pars. 2-313, 314 (now codified as 810 ILCS 5/2-313, 2-314 (West 1992))) and Magnuson Moss Warranty Act claims (15 U.S.C. par. 2301 et seq.). For the reasons that follow, we reverse and remand.
In March 1987, three groups of plaintiffs filed class action lawsuits. The cases were later consolidated, and a consolidated complaint, filed on October 1, 1987, was brought on behalf of a class of all persons who purchased or leased 1983 through 1986 model Audi 5000 automobiles.
On May 5, 1988, the parties executed a settlement agreement subject to court approval. Under the agreement, defendants were to provide approximately 390,000 Audi owners with a rebate of up to $2,000 on the purchase of a new Audi depending on a variety of factors, including whether the class member still owned the car, the model year of the car, and when the class member purchased the new Audi. The trial court preliminarily approved the settlement agreement on May 19, 1988, and certified the class for purposes of settlement only.
On July 19, 1988, the case was transferred to another trial judge, who on August 11, 1988, vacated the court order approving the settlement. Subsequently, plaintiffs filed third and fourth amended consolidated class action complaints, which added model years 1978-1982 and a subclass, which was comprised of individuals who had allegedly experienced actual incidents of unintended acceleration. Ultimately, the third and fourth amended complaints were dismissed.
On March 4, 1992, a fifth amended complaint was filed by 12 plaintiffs purporting to represent a class of all purchasers and lessees of Audi 5000 automobiles, model years 1983 through 1986, and a subclass of persons whose automobiles allegedly experienced an incident of unintended acceleration. The complaint alleged four causes of action: (1) breach of implied warranties pursuant to section 2-314 of the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 2-314 (now codified as 810 ILCS 5/2-314 (West 1992))); (2) breach of express warranties pursuant to the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 2-313 (now codified as 810 ILCS 5/2-313 (West 1992))); (3) violations of the Magnuson Moss Warranty Act (15 U.S.C. par. 2301 et seq.); and (4) violations of the Consumer Fraud Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 262 (now codified as 815 ILCS 505/2 (West 1992))).
The facts alleged in the complaint are that during the 1980's, owners of 1983 through 1986 automatic transmission Audi 5000 automobiles experienced incidents where their automobiles accelerated from a stopped position to full throttle at times when the automobile was at a standstill or the driver had his or her foot on the brake pedal. At least 2,000 incidents of unintended acceleration occurred, resulting in at least 513 accidents, 271 injuries, and five deaths.
The complaint further alleges that these incidents were caused by defects in the design or manufacture of Audi 5000 automobiles manufactured and sold during the model years 1983 through 1986. The alleged defects include the lever and cable system linking the transmission shift lever, the brake and gas pedal placement and separation, the cruise control system, and the shift lock system.
Audi sent recall letters to its customers in April 1982, September 1983, and January 1987, recalling the Audi 5000 automobiles for repair, advising the owners of the problem, and instructing the drivers on certain vehicle safety procedures. Audi denied any mechanical or design defects. Its position was that driver error was responsible for the incidents of unintended acceleration. In addition, Audi issued two press releases regarding the unintended accelerations.
Plaintiffs further allege that defendants' proposed modifications are inadequate because Audi 5000 automobiles that have already been modified have continued to experience instances of sudden and unintended acceleration. As a result of the continuing alleged defects, plaintiffs claim that their Audis have lost their resale value. For that reason, plaintiffs are claiming damages in the amount of the full cost of their Audi 5000 automobiles. If the problem is eventually remedied, plaintiffs claim damages in the amount of the diminution of the resale value.
The trial court dismissed the consumer fraud claim for failure to state a cause of action in that it did not allege specific fraud or specific defects. The trial court also dismissed the claims for breach of implied and express warranties pursuant to the UCC and the Magnuson Moss Warranty Act on the basis that the named plaintiffs had failed to give actual notice of their complaints to the retailers or manufacturer of the automobile within a reasonable period of time after learning of the alleged defect.
The first issue is whether plaintiff Paul Perona is the only plaintiff who perfected an appeal. Defendants assert that the notice of appeal entitled "In re Audi" does not designate any appellant and the only attorney who signed the notice of appeal was Perona's attorney, Aaron Robinson of Holstein, Mack & Klein.
We find that the notice of appeal is sufficient for all plaintiffs because attorney Robinson from Holstein, Mack & Klein is the attorney for all the appellants. He signed the fourth and fifth amended complaints as attorney for plaintiffs and argued against the dismissal of the fourth and fifth amended complaints for all plaintiffs. All appellants do not have to be expressly named in the body of the notice of appeal. ( In re Estate of Bonjean (1980), 90 Ill. App. 3d 582, 413 N.E.2d 205, 45 Ill. Dec. 872.) ...