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Tolve v. Ogden Chrysler Plymouth

August 29, 2001

PAMELA TOLVE, PLAINTIFF-APPELLANT
v.
OGDEN CHRYSLER PLYMOUTH, INC., D/B/A BILL KAY CHRYSLER PLYMOUTH, INC., AND CHRYSLER MOTORS CORPORATION, N/K/A DAIMLERCHRYSLER MOTORS CORPORATION DEFENDANTS-APPELLEES (NICOLA TOLVE, PLAINTIFF)
PAMELA TOLVE, PLAINTIFF-APPELLEE,
v.
OGDEN CHRYSLER PLYMOUTH, INC., D/B/A BILL KAY CHRYSLER PLYMOUTH, INC. DEFENDANT-APPELLANT (NICOLA TOLVE, PLAINTIFF; CHRYSLER MOTORS CORPORATION, N/K/A DAIMLERCHRYSLER MOTORS CORPORATION, DEFENDANT)



Appeal from the Circuit Court of Du Page County. No. 98-L-541 Honorable Edward R. Duncan, Judge, Presiding

The opinion of the court was delivered by: Justice Rapp

UNPUBLISHED

These consolidated appeals arise from an action brought in the circuit court of Du Page County by plaintiffs, Nicola Tolve and Pamela Tolve, against defendants, Ogden Chrysler Plymouth, Inc., d/b/a Bill Kay Chrysler Plymouth, Inc. (Dealer), and Chrysler Motors Corporation, n/k/a DaimlerChrysler Motors Corp. (Chrysler), in connection with the purchase of a 1997 Plymouth Neon automobile. Nicola was dismissed from the suit by the trial court and is not a party to either appeal. The trial court granted summary judgment in favor of the Dealer and Chrysler. In appeal No. 2--00--0527, Pamela argues that the trial court erred in granting summary judgment. We affirm.

The second appeal, No. 2--00--0947, was brought by Dealer after the trial court dismissed its petition for attorney fees pursuant to section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a(c) (West 1998)). We reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

The following facts are taken from the record on appeal. On December 23, 1996, Pamela, her husband, and her in-laws, Nicola and Faustina Tolve, went to Dealer because Nicola was in the market for a new vehicle. Pamela and her husband accompanied Nicola and Faustina in order to interpret because Nicola and Faustina do not speak English. Pamela's in-laws became interested in purchasing a new Plymouth Neon.

According to Pamela, the salesman told her that there was a $400 rebate available to purchasers who graduated from college in the last two years. Pamela asked the salesman if she qualified, explaining that she completed a program at the Institute of Management at Illinois Benedictine College. Pamela said that the salesman advised her that if the certificate was earned in the last two years she would be eligible for the rebate. Pamela further alleges that the salesman advised her that she should become a co-buyer of the vehicle so that Nicola could take advantage of the $400 rebate. Dealer asserts that Pamela misrepresented herself as a college graduate or at least misled the salesman.

Pamela said that they did not want to take delivery of the vehicle that day because Nicola wanted to clean up his trade-in and Pamela wanted to bring her certificate to the salesman. According to Pamela, the Dealer wanted them to take delivery that day and rushed them through the paperwork. Nicola and Pamela purchased the Plymouth Neon as co-buyers. The $400 college-graduate rebate was credited against the price of the vehicle. Pamela's in-laws also decided to buy a service contract.

Ultimately, Chrysler refused to provide the college-graduate rebate because Pamela was not a college graduate. Pamela's certificate from Illinois Benedictine College reads as follows:

"This certifies that Pamela L. Tolve has completed the program of continuing education for middle managers of Chicagoland business and industries in The Institute For Management and in recognition thereof is awarded this Certificate Summa Cum Laude Given at Lisle, Illinois, this 3rd Day of June, 1995."

Dealer filed a small claims complaint in the circuit court of Du Page County against Pamela and Nicola, seeking $400, costs, and attorney fees. When Pamela and Nicola moved to file a counterclaim, Dealer dismissed the suit. Pamela claimed that she incurred over $400 in attorney fees defending the small claims suit.

After the small claims suit was dismissed, Nicola and Pamela filed a two-count complaint against Dealer and Chrysler. Count I, pleaded under the Consumer Fraud Act, alleged that Dealer (a) advertised low financing rates that were actually unavailable; (b) sold the vehicle for more than sticker price; (c) sold a service contract that was actually duplicative of the manufacturer's warranty; and (d) told Pamela she qualified for a $400 college-graduate rebate when she did not. Count I also alleged that Dealer was acting as an agent or apparent agent of Chrysler. Count II alleged a cause of action for common-law fraud based on the same factual allegations made in count I. The complaint prayed for $30,000 in compensatory damages and $100,000 in punitive damages.

On December 18, 1998, Dealer filed an answer, affirmative defenses, and a counterclaim. The counterclaim was against Pamela. Count I of the counterclaim alleged that her misrepresentation that she was a college graduate was an unfair business practice under the Consumer Fraud Act. Count II alleged that Pamela's conduct constituted common-law fraud. Dealer prayed for $400 in compensatory damages, punitive damages of $1,000, attorney fees, and costs. The trial court granted Pamela's motion to dismiss under section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 1998)) count I of Dealer's counterclaim. Count II of Dealer's counterclaim remained. Nicola and Pamela filed an amended complaint on September 22, 1999. The trial court granted Nicola's motion for the voluntary dismissal of his claims against Dealer and Chrysler pursuant to section 2--1009 of the Code (735 ILCS 5/2--1009 (West 1998)). Thereby, Pamela became the sole plaintiff in the lawsuit.

On April 6, 2000, the trial court granted summary judgment for Dealer and Chrysler on both counts of Pamela's amended complaint, which left Dealer's common-law fraud counterclaim against Pamela as the only remaining controversy between the parties. The trial court determined pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no ...


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