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11/14/96 CARMEN ORTIZ v. GENERAL MOTORS ACCEPTANCE

November 14, 1996

CARMEN ORTIZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,
v.
GENERAL MOTORS ACCEPTANCE CORPORATION, INC. AND MOTORS INSURANCE CORPORATION, INC., DEFENDANTS-APPELLEES-CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Thomas P. Quinn, Judge Presiding.

Released for Publication December 22, 1996.

The Honorable Justice O'brien delivered the opinion of the court. Hoffman, P.j., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiffs bought automobiles in Illinois and financed their purchases through retail installment contracts with the dealers who sold the autos. Each retail installment contract required plaintiffs to maintain property damage insurance coverage on the autos and allowed the contract holder to buy single interest insurance (SII), which protects only the contract holder's investment in the vehicle, if the plaintiffs failed to maintain their insurance. The contracts with plaintiffs were assigned to defendant, General Motors Acceptance Corporation (hereinafter GMAC), which later bought SII after the plaintiffs failed to maintain their insurance.

Plaintiffs filed a four-count class action. Count I alleges that GMAC's purchase of SII violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act). (815 ILCS 505/1 et seq. (West 1992). Count IV alleges that the purchase violated the Sales Finance Agency Act (205 ILCS 660/1 et seq. (West 1992)). Partial summary judgment was entered for each of the parties on count I. Summary judgment was entered for GMAC on count IV. The court made a written finding, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that "there is no just cause for delay of enforcement or appeal" of its order. Plaintiffs appeal from summary judgment for GMAC on part of count I and all of count IV. GMAC cross-appeals from partial summary judgment for plaintiffs on count I. Counts II and III are not part of this appeal.

First, we address our jurisdiction of count I. Prado v. Evanston Hospital, 72 Ill. App. 3d 622, 624, 28 Ill. Dec. 680, 390 N.E.2d 1270 (1979). A judgment must be final for the appellate court to have jurisdiction over an appeal, unless a statutory or supreme court rule exception applies. In re Marriage of Verdung, 126 Ill. 2d 542, 553, 129 Ill. Dec. 53, 535 N.E.2d 818 (1989). A judgment is final if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining is to proceed with execution of the judgment. Verdung, 126 Ill. 2d at 553.

Count I states a single theory of recovery--violation of the Consumer Fraud Act--by way of multiple subparagraphs. The trial court granted summary judgment for plaintiffs on only paragraphs 77(f) and 78(f) of count I, which alleged that GMAC violated the Consumer Fraud Act by charging for more insurance than provided under the policy. The trial court did not award damages, and, therefore, the order granting summary judgment on paragraphs 77(f) and 78(f) of count I is not final. Charter Bank v. Eckert, 198 Ill. App. 3d 499, 502, 144 Ill. Dec. 693, 555 N.E.2d 1212 (1990). As a result, we have no jurisdiction to review the partial summary judgment to each party on count I. See Hull v. City of Chicago, 165 Ill. App. 3d 732, 117 Ill. Dec. 369, 520 N.E.2d 720 (1987) (when a single claim is stated by multiple subparagraphs, an appeal cannot be taken until the trial court enters a final order on all of the subparagraphs). This is true even where, as here, the trial court made a Rule 304(a) finding. See Rice v. Burnley, 230 Ill. App. 3d 987, 991, 172 Ill. Dec. 826, 596 N.E.2d 105 (1992) ("the fact that an order contains the requisite Rule 304(a) language does not make a nonfinal order appealable"). Accordingly, we dismiss plaintiff's appeal and GMAC's cross-appeal from partial summary judgment on count I.

Next, we address our jurisdiction of count IV. We have reviewed the orders from which this appeal is taken, and the summary judgment for GMAC on subparagraphs 82, 83, 84, 85, 86, 87, and 88 of count IV is a final order.

It is well established that the trial court should grant summary judgment only when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1992).

First, plaintiffs argue the trial court erred by granting summary judgment for GMAC on paragraph 82 of count IV. Plaintiffs claim that GMAC's failure to send them a copy of the SII policy or otherwise explain its terms and limitations, as required by Rules 17(c)(4) and (c)(5) of the Department of Financial Institutions violated section 8.2 of the Sales Finance Agency Act.

Section 8.2 of the Sales Finance Agency Act prohibits:

"willful violation or aiding any person in the willful violation of *** any rule or regulation promulgated by the Director [of Financial Institutions]." 205 ILCS 660/8.2 (West 1992).

Department of Financial Institutions Rule 17(c)(4) states:

"It shall be the licensee's responsibility to explain clearly to the obligor the type, cost, benefits and limitations of any insurance requested by licensee after acquisition of the ...


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