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01/22/98 NANCY J. NIBERT v. AL PIEMONTE FORD SALES

January 22, 1998

NANCY J. NIBERT, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
AL PIEMONTE FORD SALES, INC., FORD MOTOR COMPANY, AND FORD MOTOR CREDIT COMPANY, DEFENDANTS (MECHANICAL BREAKDOWN PROTECTION, INC., DEFENDANT-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 95--L--0032. Honorable Hollis Webster, Judge, Presiding.

Rule 23 Order of December 4, 1997, Redesignated Opinion and Ordered Published Published January 22, 1998.

The Honorable Justice Rathje delivered the opinion of the court. Doyle and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

On January 9, 1995, plaintiff, Nancy J. Nibert, filed this action against defendants, Al Piemonte Ford Sales, Inc. (Piemonte), Ford Motor Company (Ford Motor), Ford Motor Credit Company (Ford Credit), and Mechanical Breakdown Protection, Inc. (MBPI).

Counts I and II alleged that Piemonte, Ford Motor, and MBPI were liable for breaches of express and implied warranties, respectively, under the Magnuson-Moss Act (Magnuson-Moss) (15 U.S.C.A. ยง 2301 et seq. (West 1982)). Count III sought the revocation of the contract between Piemonte and plaintiff. Count IV alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1994)) by Piemonte and MBPI. Count V alleged common-law fraud against Piemonte. Count VI sought the revocation of the retail installment contract plaintiff entered into with Ford Credit.

In the week before trial, which was scheduled for August 26, 1996, plaintiff settled with Piemonte, Ford Motor, and Ford Credit. MBPI had previously filed a motion for summary judgment, where it argued that it was not liable for any breaches of express or implied warranties and that it had not violated the Consumer Fraud Act. MBPI further claimed that it was entitled to an award of its attorney fees as a prevailing party under the Consumer Fraud Act. The trial court granted MBPI's motion for summary judgment as to all counts but denied its motion for attorney fees pursuant to the Consumer Fraud Act. A timely appeal and cross-appeal were filed.

On appeal, plaintiff raises three issues, namely, (1) whether the trial court erred in granting MBPI's motion for summary judgment; (2) whether the trial court erred in denying plaintiff leave to amend her complaint; and (3) whether the trial court abused its discretion in awarding MBPI's attorney fees as a sanction when MBPI failed to settle with plaintiff. On cross-appeal, MBPI argues that the trial court erred in denying it leave to file a petition for an award of attorney fees as the prevailing party in a Consumer Fraud Act cause of action.

We first address plaintiff's argument that the trial court erred in granting MBPI's motion for summary judgment on counts I, II, and IV. Regarding counts I and II, plaintiff maintains that there was a question of fact to be determined by the trier of fact as to who is the responsible party under the subject vehicle service contract (VSC) and what agreement, if any, exists as to the essential terms of that VSC or if a contract exists at all under the facts of this case. Defendant argues in response that this court's opinion in Saladino v. Team Chevrolet, Inc., 242 Ill. App. 3d 735, 183 Ill. Dec. 320, 611 N.E.2d 583 (1993), is virtually undistinguishable from the instant appeal and should control our determination of this issue as to counts I and II.

It is beneficial at this point to briefly describe MBPI's involvement in the instant appeal. MBPI is the administrator for vehicle service contracts (VSCs) sold through dealerships, such as Piemonte, to car buyers. Here, plaintiff had applied for a VSC administered by MBPI when she bought the 1993 Escort from Piemonte. MBPI subsequently accepted her application, and plaintiff paid $650 for the subject VSC.

Plaintiff testified via an evidence deposition taken on June 26, 1996. Plaintiff stated that in August 1993 she was working at Sky Chief Catering, a company that provided in-flight food for airlines. At that time, she owned a 1989 Ford Escort that she had purchased from Piemonte. Plaintiff testified that she went that month to Piemonte to look for a new car. She met a salesman named Jeff. According to plaintiff, she told Jeff that she did not want to buy a used car. Plaintiff came back to Piemonte two more times before she found the car she wanted. She described it as a 1993 powder blue Ford Escort (Escort). Plaintiff stated that she first saw the car in the Piemonte showroom, and Jeff told her it was a "demo," driven only by salespeople. Plaintiff testified that it was important to her that only Piemonte salespeople had driven the Escort. Further, Jeff's "boss," whose name plaintiff could not recall, talked with her on this third trip to Piemonte and emphasized that the Escort had only been driven by salespeople.

According to plaintiff, no Piemonte employees ever told her that the Escort had been owned by someone else. She testified that Jeff and his boss told her that Piemonte would take $3,000 off the price of the Escort because it was a "demo." Plaintiff testified that she believed the $3,000 would be taken from the $14,259.67 asking price. The Escort did not have a window sticker. Jeff told plaintiff that it had been lost or had fallen off and that he would send it to her. Plaintiff stated that she never received the window sticker from Piemonte. Jeff and his boss told her the Escort had a new car warranty that was bumper-to-bumper.

Plaintiff stated that she traded in her 1989 Escort as part of the deal. She estimated that the 1989 Escort to be worth $5,000. She stated that, after the deal was executed, Piemonte put the 1989 Escort up for sale with an asking price of $5,600.

Plaintiff stated that, after she had agreed to purchase the Escort, she was given a number of papers to sign. According to plaintiff, Jeff talked throughout the signing of the papers, and she could not recall if she had read through them. Included in the documents she signed, was one wherein she acknowledged that she had been told the Escort was a demonstrator. Further, she was given a brochure entitled "Can You Afford Not To?," which discussed a VSC administered by MBPI. Plaintiff further identified an application form signed by her for a VSC administered by MBPI.

Plaintiff further stated that she discussed an "extended warranty" with Jeff and his boss. She was told by them that this new car warranty "would last for 75,000 miles and that it would begin as soon as she [left] the place." They simply said the coverage was "bumper to bumper."

At a later point in her testimony, plaintiff could not recall if the salesmen used the term "warranty." Plaintiff further stated that she also had been told that the 75,000-mile "warranty" would begin at the end of the Ford bumper-to-bumper warranty.

According to plaintiff, the Escort was financed through Ford Credit. She made the first 15 payments of $270.76 per month, but stopped making payments in December 1994. During the months that she was making payments, plaintiff took the car into Piemonte for various repairs, including a faulty cassette player, exterior paint problems, and a broken fog lamp.

Plaintiff testified that in November 1994 she received a phone call from attorney Norman Lehrer, who informed her that the subject Escort had been previously owned and had been in an accident. She acknowledged that early in December 1994 she authorized her attorneys to send a letter to Ford Motor revoking the contract. Ford Motor never responded to this letter. Late in December 1994, she received a letter from Ford Credit in which the latter informed her that it was charging her late fees. She stated that she was later sued by Ford Credit in a replevin action filed in the circuit court of Cook County.

Finally, plaintiff stated that she would not have purchased the Escort if she had known that it had been previously owned and then repossessed and that she would not have purchased the vehicle if she had known that the Ford bumper-to-bumper warranty began to run before she bought it. Plaintiff further testified that Piemonte never offered to take the Escort back and that she was still driving it.

The record on appeal includes the following relevant documents that related to the August 14, 1993, sale of the Escort to plaintiff:

1. Piemonte "Bill of Sale." This was dated August 14, 1993. This shows that the selling price was $14,259.67, the trade-in allowance was $4,000, and the unpaid balance was $11,607.12.

2. "Acknowledgement of Disclosure by Dealer of Demonstrator Motor Vehicle." This was dated August 14, 1993, and signed the same day by plaintiff. Therein plaintiff acknowledged that she had been told that the Escort was a ...


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