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Check v. Clifford Chysler-Plymouth of Buffalo Grove

June 13, 2003

ERIC CHECK, PLAINTIFF-APPELLEE,
v.
CLIFFORD CHRYSLER-PLYMOUTH OF BUFFALO GROVE, INC., DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ALLEN S. GOLDBERG, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Campbell

UNPUBLISHED

This dispute arises out of plaintiff Eric Check's purchase of a new 1997 Jeep Cherokee (Cherokee) from defendant Clifford Chrysler-Plymouth of Buffalo Grove, Inc. (Clifford). Following a trial in the circuit court of Cook County, a jury found defendant: (1) not liable for an alleged violation of the Illinois Motor Vehicle Franchise Act (815 ILCS 710/1 et seq. (West 1996)); (2) liable for common law fraud; and (3) liable for breaching the implied warranty of merchantability pursuant to the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (Magnuson-Moss Act) (15 U.S.C. § 2301 et seq. (1994)), awarding plaintiff $6,000 in actual damages and $75,000 in punitive damages.

Defendant filed posttrial motions. The trial court vacated the verdict on the common law fraud claim and ordered a new trial. The trial court upheld the verdict on the Magnuson-Moss Act claim. As the trier of fact in a simultaneous bench trial, the trial court found that defendant violated the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)). The trial court entered a judgment of $2,500 for actual damages and $20,000 in punitive damages. The trial court also awarded plaintiff $36,110.90 in attorney fees and costs. Defendant appeals.

The record on appeal discloses the following facts. In February 1997, Clifford received the Jeep at issue, which had a manufacturer's suggested retail price (MSRP) of $32,045, from the Chrysler Corporation. In March 1997, the Jeep was vandalized, along with other vehicles on Clifford's lot. The Jeep was scratched, as if by a key, from the left front fender to the left rear quarter panel. Clifford hired Casten Body Shop Carstar, Inc. (Casten), to repair the damage to the Jeep. Clifford requested that the entire left side of the Jeep be repainted. Casten billed Clifford $740.80 for the repair work and labor.

On June 9, 1997, plaintiff purchased the Jeep from Clifford. Clifford did not disclose to plaintiff that the Jeep had been scratched and repainted. Peter Clifford, the general manager of defendant, testified that he was aware that the Illinois Motor Vehicle Franchise Act required disclosure of any repair of the vehicle exceeding 6% of the vehicle's MSRP. Peter testified that the repair order would have been placed in a service file and, had it been deemed a major repair, into the sales "deal jacket." Peter testified that there was no note or repair order or note in the deal jacket for the Jeep; thus, the salesperson and plaintiff would not have been aware of the repair order. Peter stated that Clifford "did not specifically not want [plaintiff] to know" about the repair. Peter also testified that Casten had repaired many cars for Clifford over the years without having a quality problem.

Plaintiff testified that in August 1997, he noticed a wave or ripple on the driver's side of the Jeep. Upon further examination, plaintiff noticed that paint on the driver's side of the Jeep was flaking and chipping. Plaintiff also noticed paint overspray around the door lock and bumpers. Plaintiff telephoned Clifford about his discovery. According to plaintiff, the salesman said he had no knowledge of the Jeep being damaged, but would look into it. According to plaintiff, the salesman never telephoned him.

Plaintiff telephoned Clifford a second time, speaking to Kevin Clifford, whom plaintiff described as a general manager of Clifford. Plaintiff testified that Kevin stated that he would check into the matter, explaining that vehicles are sometimes damaged in transit from Chrysler. Plaintiff testified that Kevin telephoned him the next day, stating that he had no record of the Jeep being damaged and suggesting that plaintiff contact Chrysler. Plaintiff sent a letter to Chrysler and was contacted by a Chrysler employee who told plaintiff that the Jeep was not damaged in transit to Clifford. Plaintiff testified that he telephoned Clifford several times over the next three weeks, speaking to several people before being told that the Jeep had been vandalized on the lot prior to sale.

Plaintiff later spoke with three of Clifford's employees, seeking to return the Jeep and receive a refund or to exchange his Jeep for another. Clifford offered to repaint the Jeep to plaintiff's satisfaction, but this suggestion was not acceptable to the plaintiff.

William Thomas Carol, who had been working in the automobile collision repair business since 1983, testified that he was retained by plaintiff to examine the Jeep's paint problems and give an estimate of the cost to "return it back to pre-whatever was done to it condition." William J. Anderton, a consultant to the automotive industry on the subject of designing cars that are easier to repair and more difficult to damage, was also retained by plaintiff. These witnesses testified that the repainting of the Jeep lacked gloss and exhibited adhesion problems causing the paint to chip. Both witnesses testified that these problems could have a variety of causes.

Carol testified that he could not recall whether he had performed this type of repair on a new Jeep but was often asked to repair new BMWs that had been scratched. Carol testified that in those cases it was not necessary to strip the car down to the bare metal to repair a scratch. Carol also testified that Casten's work actually made the condition of the car worse than the scratch did. According to Carol, had he had the job from the beginning, he may have charged between $1,000 and $1,500. Carol testified that he would now have to strip the paint down to the bare metal to completely redo the work, at an estimated cost of $2,011.21. Carol testified that he could not have charged $50 to $100 less and still make a profit.

Anderton, who inspected the Jeep in September 1998, testified that the paint on the repainted areas was probably 50% thicker than on the rest of the Jeep. Anderton testified that he probably would have approached the repair job in the same manner as Casten, but that something apparently went wrong in the process. Anderton estimated that he would have charged approximately $1,300 to $1,500 to repair the scratch in the first instance, but perhaps as much as $1,800 to repair the Jeep now. Anderton stated that if the repair work had been done well, so that no one could detect it, there would be no devaluation of the Jeep.

Drew Cheshier, Casten's body shop manager, testified that Casten stands behind its work with a lifetime warranty. Cheshier testified that the Jeep at issue was repaired by "feathering," a technique in which the scratch is sanded to smooth it and fade the level of the scratch into the existing panel, which allows painting and clear coating to be applied to a smooth surface. Cheshier testified that the Jeep was given two coats of primer, two coats of base color, and two coats of clear coat. Cheshier acknowledged that a primer or seal coat is not itemized on its invoice to Clifford. Cheshier testified that Clifford did not ask Casten to do the job for less than a certain amount, and had Clifford asked for a cheap cover-up job, he would have refused.

According to Cheshier, he inspected the Jeep in June 1998, at Clifford's request. Cheshier stated that he was not told in advance that he was looking at work performed by Casten. Cheshier opined that the paint job was not terrible. Cheshier testified that he did not observe any chipping or peeling paint.

Following closing arguments and deliberations, the jury found defendant: (1) not liable for an alleged violation of the Illinois Motor Vehicle Franchise Act; (2) liable for common law fraud; and (3) liable for breaching the implied warranty of merchantability pursuant to the Magnuson-Moss Act, awarding plaintiff $6,000 in actual damages and $75,000 in punitive damages. The trial court granted Clifford's posttrial motion in part, vacating the verdict on the common law fraud claim, and ordering a new trial thereon. The trial court upheld the verdict on the Magnuson-Moss Act claim. The trial court further found defendant liable for violating the Consumer Fraud and Deceptive Business Practices Act. The trial court awarded plaintiff $2,500 for actual damages $20,000 in punitive damages. Clifford now appeals.

I.

Clifford argues that the trial court erred in not reversing the verdict on the common law fraud claim, instead of ordering a new trial. A trial court should enter a judgment non obstante verdicto (judgment n.o.v.) only if all of the evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). That standard applies to a trial court's denial of a motion for judgment n.o.v. Knight v. Haydary, 223 Ill. App. 3d 564, 569, 585 N.E.2d 243, 247 (1992). Whether that standard is met is reviewed de novo. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999).

In contrast, the standard of review for the granting or denial of a motion for a new trial is whether the trial court abused its discretion. Pekelder v. Edgewater Automotive Co., 68 Ill. 2d 136, 138, 368 N.E.2d 900, 901 (1977). An abuse of discretion occurs when the ruling is arbi-trary, fanciful, or unreasonable, or when no reasonable person would take the same view. People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). An application of impermissible legal criteria also justifies reversal. Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194, 1199 (1993).

In granting a new trial on the common law fraud claim, the trial court cited the rule that where verdicts returned in the same action are legally inconsistent, such verdicts must be set aside and a new trial granted. Wottowa Insurance Agency, Inc. v. Bock, 104 Ill. 2d 311, 316, 472 N.E.2d 411, 413 (1984). The courts exercise all reasonable presumptions in favor of the verdicts, and the verdicts are not legally inconsistent unless they are "absolutely irreconcilable." Tedeschi v. Burlington Northern R.R. Co., 282 Ill. App. 3d 445, 448-49, 668 N.E.2d 138, 140 (1996), citing Wottowa, 104 Ill. 2d at 316, 472 N.E.2d at 413. The verdicts cannot be considered inconsistent if any "reasonable hypothesis" supports them. Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581, 612 N.E.2d 85, 88 (1993). The issue is the jury's intent. Mrowca v. Chicago Transit Authority, 317 Ill. App. 3d 784, 786, 740 N.E.2d 372, 374 (2000).

In this case, the jury found that Clifford did not violate the Illinois Motor Vehicle Franchise Act, section 5 of which provides in part as follows:

"A motor vehicle dealer shall disclose to the purchaser before delivery of the new motor vehicle, in writing, any damage that the dealer has actual knowledge was sustained or incurred by the motor vehicle at any time after the manufacturing process was complete but before delivery of the vehicle to the purchaser. This disclosure is not required when the cost to repair does not exceed 6% of the manufacturer's suggested retail price of the vehicle based upon the dealer's actual retail repair cost, ...


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