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Casey v. Jerry Yusim Nissan Inc.

April 27, 1998

BRIAN F. CASEY, PLAINTIFF-APPELLANT,
v.
JERRY YUSIM NISSAN, INC., AN ILLINOIS CORPORATION, ROBERT SCHMERLER, AND MARY ANN SCOTT, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 18th Judicial Circuit Du Page County, Illinois No. 93-L-44 Honorable Hollis L. Webster Judge, Presiding.

The opinion of the court was delivered by: Justice Lytton

Plaintiff Brian Casey filed a complaint against Jerry Yusim Nissan, a car dealership, and two of its employees under the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 1996)). In his complaint, Casey alleged that the defendants had misrepresented the condition of a car that he had purchased from them.

After a bench trial, the court found in favor of the defendants. The defendants then requested attorney fees and costs under section 10a(c) of the Act (815 ILCS 505/10a(c) (West 1996)), and the trial court awarded them $30,000. Casey appeals the award of attorney fees. We reverse.

FACTS

In 1992, Casey purchased a 1983 BMW from Jerry Yusim Nissan for $5,100. Prior to buying the car, Casey took it out for a test drive and noticed smoke or steam rising from under the hood. Casey testified that the salesperson told him the dealer would fix the problem. Casey stated that on the following day another salesperson, defendant Mary Ann Scott, confirmed that the dealer would take care of the problem. Scott, however, denied telling Casey that the problem would be fixed. Casey also testified that a third salesperson, defendant Robert Schmerler, stated the dealership would take care of the problem.

The next time Casey spoke to Schmerler, Schmerler indicated that the car's heater core valve was being replaced. On the same day, Scott left a message for Casey, indicating that the car was not ready because the radiator was being fixed. When Casey picked up the car, he was told that it had been fixed and that the heater core valve had been replaced. However, when the heater core valve was replaced later in the year, it was found to be part of the car's original equipment.

An inspection at a gas station revealed no major problems, and as Casey saw no more smoke or steam emitting from the car, he decided to purchase it. Later, his family mechanic inspected the car for leaks and found none.

When Casey had no problems with the car during the next two weeks, he drove it to California. During the trip, the oil light came on, and Casey added a quart of oil. He did not see any smoke or steam coming from the engine at that time. The next day, the coolant light came on, and Casey added nearly a gallon of antifreeze. After he had been in California for about three weeks, Casey noticed smoke coming from under the hood and from the car's tail pipe.

Casey took the car to a BMW repair shop, which estimated the cost of repairs at $5,000 to $6,000. Casey began to consider legal action against the defendants and took the car to another BMW repair shop. He told the mechanic at that shop, Hal Epstein, about the problems he had originally noticed with the car and showed him documents from the dealership and the gas station. Casey told Epstein that he saw smoke coming from the tail pipe when he started the car. Epstein diagnosed the problem as a cracked cylinder head, which he believed existed when Casey bought the car. Epstein told Casey the dealership had used Stop Leak to temporarily fix the leak, but this was not a permanent solution. Epstein repaired the car, and the problems ended.

Casey filed a complaint under the Act against the defendants, claiming that they had sold him a used car with serious engine problems that they claimed to have repaired prior to the sale. Casey also asked Epstein to write a letter outlining his findings and opinions, which he did. In the letter, Epstein stated that Casey had told him the tail pipe emitted steam each time the car was started. Epstein also indicated that Casey had told him the dealership had used Stop Leak in the car. At trial, Casey denied making this statement to Epstein and indicated that he had not even heard of Stop Leak before he met Epstein. The invoice from the gas station, however, noted the presence of sealer in the car's radiator.

Epstein later reviewed Casey's deposition and changed several of his opinions based on new information in it. Epstein noted several conflicts between Casey's initial statements to him and the statements in the deposition. For example, Epstein claimed that Casey's deposition testimony that the tail pipe did not smoke until just before he took the car in for repair in California contradicted his prior statement to Epstein that the tail pipe smoked every time he started the car. Casey's deposition also indicated that he did not have any real problems with the car until after he arrived in California.

Epstein stated that Casey could not have driven the car from Illinois to California if the cylinder head had been in the condition he had found it. He testified that the point at which the tail pipe began to smoke was critical to determining when the crack developed. At trial, Epstein's videotaped evidence deposition was played. In it, Epstein stated that he believed the crack developed while Casey was in California and that it was caused by a defect in the casting of the cylinder head. Epstein also believed that the steam under the hood that Casey saw after test driving the car was probably caused by a minor cooling system leak. Although Epstein had not looked for sealer in the cracked head when he repaired the car, he expressed doubts that Casey's trial expert could have found any sealer in the crack after Epstein took the car apart and washed the block.

Epstein's testimony was contradicted by that of Casey's expert witness, Philip Arendt. Arendt reviewed Casey's deposition, Epstein's letter, the documents from the dealership, and the damaged cylinder head. When Arendt examined the cylinder head under a microscope, he found traces of sealer in the crack. He testified that the sealer could have temporarily prevented a mechanic from seeing the symptoms of a cracked head, but that the problem would eventually return. Arendt concluded that there was a small crack in the head when Casey bought the car and that the crack grew over time as the car was driven. The growth in the crack was signaled by the large increase in the car's use of antifreeze and oil that Casey noted during his trip to California.

At the bench trial, the trial court found in favor of the defendants, who then requested more than $41,000 in attorney fees as prevailing parties under section 10a(c) of the Act (815 ILCS 505/10a(c) (West 1996)). The court awarded the defendants ...


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