Appeal from the Circuit Court of Cook County No. 95 M3 4210 The Honorable Michael B. Getty, Judge Presiding.
The opinion of the court was delivered by: Justice Tully
This matter comes before the court for the second time on appeal to determine (1) whether the trial court properly denied plaintiff leave to file a Third Amended Complaint; and (2) whether the trial court erred in granting summary judgment in favor of the defendants. We will note from the outset that we have another appeal pending in a related case. (No. 1-00-1161.) The cases were not consolidated, however, our decision here will affect the other case. As this court is very familiar with the history of this litigation, we will give a brief recitation of the facts from our 1997 order. (App. Order 1-97-0805, December 16, 1997.)
On October 11, 1991, the named-plaintiff in this class action, Deborah Charles, purchased a 1991 Saab 900 from defendant David Glen, Inc. d/b/a Downtown Motors. Plaintiff executed a standard form "RETAIL INSTALLMENT CONTRACT" created by Toyota Motor Corporation to finance $32,887.80 of the car's price.
The contract states that the number of monthly payments is 59 at an annual percentage rate of 12.75%. The contract further states the "FINANCE CHARGE" ("The dollar amount the credit will cost you") is $11,991.60, the "Amount Financed" ("The amount of credit provided to you on your behalf") is $32,887.80, the "Total of Payments" ("The amount you will have paid after you have made all payments as scheduled") is $44,879.40, and the "Total Sale Price" ("The total cost of your purchase on credit, including your down payment of $6,493.00") is $51, 372.40.
The plaintiff filed a class action in the circuit court of Cook County. The Second Amended Complaint alleged that at a 12.75% APR, the "Amount Financed" should be $11,757.98, not $11,991.60 as stated in the contract. Moreover, the "Total of Payments" should be $44,646, not $44,897.40 as stated in the contract. The plaintiff's Second Amended Complaint purported to state claims against the defendants for violation of the federal Truth in Lending Act (15 U.S.C. § 16- et seq. (1988)) (hereinafter "TILA"), violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch 121 ½, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 1996))) (hereinafter "CFA"), violation of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1991, ch 121 ½, par. 311 et seq. (now 815 ILCS 510/1 et seq. (West 1996))) (hereinafter "UDTPA"), negligence and breach of contract. The circuit court dismissed plaintiff's second amended complaint under sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)).
On appeal, this court affirmed in part and reversed in part and remanded with instructions. (App. Order 1-97-0805, December 16, 1997.) This court affirmed the dismissal of plaintiff's claims based on the TILA and the CFA as time barred. We also affirmed the dismissal of plaintiff's claims under the UDTPA because the plaintiff could not plead future damages. We affirmed the dismissal of the negligence claim based on the Moorman Doctrine. (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982). This left only plaintiff's breach of contract claim. We reversed on the breach of contract claim and directed the circuit court as follows: "to resolve, using Generally Accepted Accounting Principles, the question of whether 12.75% equals the payment schedule as set forth on the contract's face. We further direct the circuit court to grant plaintiff leave to file a third amended complaint containing only contract claims."
Apparently we should have used bold print as well as underlining the word "only" in our 1997 order as the plaintiff, on remand, sought leave to file a sixteen-count third amended complaint. The trial judge denied leave to file the third amended complaint stating that pursuant to the appellate court's direction, the plaintiff could only proceed on a breach of contract claim.
We first address whether the trial judge abused his discretion in denying plaintiff leave to file the third amended complaint. Whether an amendment to a pleading is granted or denied is within the sound discretion of the trial court. The trial court's decision to deny a motion to amend will not be reversed on appeal absent an abuse of discretion. Martin v. Yellow Cab Co., 208 Ill. App. 3d 572, 576, 567 N.E.2d 461, 464-65 (1990).
Among the factors to be considered in deciding whether discretion was properly exercised is whether plaintiff had been afforded previous opportunities to amend the pleadings. B.C. v. J.C. Penney Co., 205 Ill. App. 3d 5, 16, 562 N.E.2d 533, 540 (1990). The plaintiff does not have a right to file unlimited amendments. Metzger v. New Century Oil and Gas Supply, 230 Ill. App. 3d 679, 700, 594 N.E.2d 1218, 1233 (1992) (trial court's order denying motion for leave to file fourth amended complaint affirmed.) Based upon the record in this case, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion to file a sixteen count third amended complaint where (1) the dismissal of six of the counts had been previously affirmed by this court on appeal; (2) this court's direction on remand was that the circuit court allow the plaintiff to proceed only on a breach of contract claim; and (3) the plaintiff had already amended her complaint on two prior occasions.
Plaintiff contends that Illinois courts liberally allow for amendments to complaints. Plaintiff's counsel maintains he "uncovered" "several other fraudulent violations and misrepresentations" made by defendants. Plaintiff's counsel also contends that he should be allowed to file new TILA and CFA claims based upon these newly discovered violations. Not surprisingly, we disagree.
We suppose we may not have made it clear in our 1997 order exactly what we meant in finding plaintiff's TILA and CFA claims to be time barred. Our previous ruling encompassed not only the violations and misrepresentations which plaintiff alleged in the second amended complaint, but all conduct of the defendants which allegedly violated TILA or the CFA relating to the October 11, 1991 transaction. In other words, it is irrelevant whether plaintiff "uncovers" other ways the defendants allegedly violated the ...