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Mrugala v. Fairfield Ford

September 28, 2001

FRANK MRUGALA, PLAINTIFF-APPELLANT,
v.
FAIRFIELD FORD, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 98 M1 120247 Honorable James McCarthy, Judge Presiding.

The opinion of the court was delivered by: Justice Reid

UNPUBLISHED

Frank Mrugala appeals the trial court's orders which held that Mrugala revoked acceptance to a 1995 Chevrolet S-10 and subsequently required Mrugala to surrender the title to Fairfield Ford, Inc. (Fairfield). Mrugala contends that (1) the trial court lacked jurisdiction to hear Fairfield's petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) due to improper notice, (2) the trial court lacked jurisdiction to modify the arbitration award, which was silent as to the issue of revocation or, alternatively, (3) Fairfield failed to act with due diligence in seeking to modify or reject the arbitration award. For the reasons that follow, we reverse.

BACKGROUND

On or about May 29, 1996, Mrugala, purchased a 1995 Chevrolet S-10 from Fairfield. The sale price of the Chevrolet S-10 was $34,037.70. Mrugala also purchased an extended warranty for the vehicle from GE Capital Insurance Services Agency, Inc. (GE). After experiencing continuous problems with the vehicle, which Fairfield was unable to repair, Mrugala attempted to revoke his acceptance of the vehicle. Fairfield refused to accept the revocation but remained in possession of the vehicle. Mrugala filed a complaint on April 15, 1998.

In his three-count complaint, Mrugala alleged claims against Fairfield for breach of written warranty and breach of implied warranty pursuant to the Magnuson-Moss Warranty Act and for revocation of acceptance pursuant to section 2310(d) of the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (15 U.S.C. §2301 et seq. (1994)). GE subsequently settled with Mrugala on August 3, 1998, and was dismissed as a party to this action on January 28, 1999.

On January 4, 1999, this matter was arbitrated in the Cook County mandatory arbitration program. Judgment was entered on the arbitration award, in favor of Mrugala, on February 18, 1999, in the amount of $30,447.20, inclusive of attorney fees and costs. The arbitration award was silent as to the issue of revocation or the requirement that Mrugala sign the vehicle over to Fairfield. Fairfield did not reject the award or file a notice of appeal.

Fairfield informed Mrugala that in order to receive the arbitration award he would have to present himself at Fairfield's offices and sign over the title to the vehicle and endorse a check which constituted a portion of the judgment made payable to Mrugala and the automobile lienholder. Mrugala refused.

Instead, Mrugala filed a levy with the sheriff's office. On April 8, 1999, Fairfield served on Mrugala's attorneys an emergency motion to stay the sheriff's sale and to enforce judgment pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 1998).

On April 9, 1999, in response to Fairfield's section 2-1401 petition, Mrugala's attorneys filed a special and limited appearance before the trial court objecting to the court's jurisdiction based on the lack of personal service. The court entered the special and limited appearance and continued the emergency motion until April 15, 1999. On April 15, 1999, the trial court entered an order where it held that: (1) there was a revocation of acceptance, (2) Fairfield's motion to clarify was denied, and (3) Fairfield's motion to stay sheriff's sale was denied.

On June 3, 1999, Fairfield filed a motion to enforce judgment and compel plaintiff to sign over to Fairfield the title to the vehicle. On August 4, 1999, the trial court entered an order requiring Mrugala to sign the title of the vehicle over to Fairfield. On August 18, 1999, the trial court entered an order requiring Mrugala to sign over the title of the vehicle to Fairfield within 21 days, and it also held that the previous orders of the court of April 9, April 15, August 4, and August 11 were final and appealable orders.

ANALYSIS

Fairfield argues that this court lacks jurisdiction to hear this appeal because Mrugala failed to timely file a notice of appeal. Fairfield argues that Mrugala is appealing from the order which held that there was a revocation of acceptance, which was entered by the trial court on April 15, 1999. Fairfield argues that Mrugala's notice of appeal was filed late because Mrugala filed it on August 19, 1999, more than 30 days after the order of April 15, 1999, was entered.

Mrugala contends that he is appealing the order of August 18, 1999, and therefore, the notice of appeal that he filed on August 19, 1999, was timely filed. Mrugala also contends that he is appealing the orders of April 4, April 15, August 4, and August 11, which became final and ...


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