Appeal from the Circuit Court of Cook County. No. 99 L 14253 The Honorable Loretta C. Douglas, Presiding Judge.
The opinion of the court was delivered by: Justice Buckley
Plaintiff Thomas Mark Stone filed a four-count complaint against Clifford Chrysler-Plymouth, Inc. (Clifford), and Chrysler Financial Corporation. Counts I and III are directed against Clifford and allege violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)) and common law fraud, respectively. The trial court granted Clifford's motion for summary judgment as to counts I and III. Plaintiff appeals asserting the existence of genuine issues of material fact. The issue before us is whether there are genuine issues of material fact as to whether the "cost to repair" the presale damage to plaintiff's vehicle exceeded 6% of the manufac-turer's suggested retail price (MSRP) of the vehicle and, if so, whether Clifford had "actual knowledge" of the damage thereby requiring Clifford to disclose the damage to plaintiff pursuant to the Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/5 (West 1998)). For the reasons that follow, we reverse and remand.
On September 26, 1998, plaintiff entered into a motor vehicle lease agreement with Clifford to lease a 1998 Jeep Grand Cherokee. The agreed-upon value of the vehicle stated on the lease agreement is $37,590.89. On October 24, 1998, the desired vehicle was acquired by Clifford from Crossroads Lincoln Mercury Chrysler Plymouth, Inc. (Crossroads), and, on October 26, 1998, the vehicle was delivered to plaintiff.
According to plaintiff's deposition testimony, on the day he drove the car home from Clifford, he noticed a rattling in the door. When he opened the door he noticed two small pieces of glass on the frame. Plaintiff informed Jack Metz, a Clifford employee, about the glass. According to plaintiff, Metz told him that he did not know how the glass got there. Plaintiff further testified that at a later date, the entire inside door panel fell off and the passenger door began leaking. Sometime thereafter, the car was scratched by a valet service and plaintiff took the car to be repainted. According to plaintiff, the repair facility informed him that the car had previously been repainted.
On December 17, 1999, plaintiff filed his four-count com-plaint. Counts I and III of the complaint are directed against Clifford and allege statutory and common law fraud. According to the complaint, Clifford's employee, Jack Metz, who sold the vehicle to plaintiff, misrepresented to plaintiff that the vehicle was new and failed to inform plaintiff that it was in a "severe accident" prior to its sale to plaintiff. Plaintiff further alleges that he relied on Clifford's representations, which Clifford knew were false, and suffered damages as a result.
On January 17, 2001, Clifford filed its motion for summary judgment as to counts I and III of plaintiff's complaint. The motion asserted that there is no evidence that the vehicle was ever in an accident or that Clifford had actual knowledge of any damage to the vehicle prior to its delivery to plaintiff and, therefore, plaintiff cannot establish a material misrepresentation of fact. In support of its motion, Clifford attached the affidavit of Jack Metz, which stated that upon being informed by plaintiff that plaintiff had heard broken glass rattling in the vehicle, Metz telephoned Crossroads to find out the cause. On January 7, 2000, Crossroads provided Clifford with its statement to its insurance company and the repair order regarding the vehicle. The insurance statement, which is attached to Clifford's motion, reflects a broken window, a stolen radio, and damage to the dash. In his affidavit, Metz stated that, although he eventually learned of the damage and repairs to the vehicle, which occurred while in the possession of Crossroads, neither he nor anyone at Clifford had knowledge of this prior to the sale to plaintiff.
In addition, Clifford's motion further asserted that, pursuant to the Franchise Act (815 ILCS 710/5 (West 1998)), even if Clifford had knowledge of the damage, it had no duty to disclose it because the cost to repair the damage (which, under the Franchise Act, does not include the cost of repairs involving glass or in-dash audio equipment) did not exceed 6% of the retail price of the vehicle. The invoice amount listed on the Crossroads repair order shows a total cost to repair of $2,557.62, which includes the cost to repair the glass and audio equipment.
In his response to Clifford's motion, plaintiff first asserted that he was not making a claim under the Franchise Act and that whether the extent of the damage was in excess of 6% of the sales price was irrelevant. Plaintiff argued that Clifford committed common law and statutory fraud based on its misrepresentation to plaintiff that the vehicle was new. Plaintiff further asserted that even if the court found that the Franchise Act applied, there were genuine issues of material fact as to whether the extent of the damage to the vehicle exceeded 6% of the price. Plaintiff contended that if the vehicle had been properly repaired, the repairs would have cost in excess of 6% of the vehicle's price.
Plaintiff attached the affidavit of his expert, William J. Anderton, to his response. After inspecting the vehicle, Anderton made the following conclusions:
"The subject vehicle has sustained damage that required repair/repaint activity to the hood panel, left front door, left rear door and the front of the left quarter panel (these repairs have not been properly completed). In addi-tion, the repairs likely included the replace-ment of the left front door glass and the radio. There may also have been damage and repair to the instrument panel.
The selling dealer certainly would have possessed knowledge of this damage and the corrective repairs. However, the repaint masking lines and the paint color and texture differences should have been obvious to any professional working in the automobile sales or repair business.
When considering 'proper' repair/repaint activity as well as the replacement of the door glass and the radio, the value of the repairs to the subject vehicle would have been in excess of twenty- ...