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Cannon v. William Chevrolet/Geo

June 26, 2003

KATTRINA CANNON PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
WILLIAM CHEVROLET/GEO, INC., AND FIRSTAR BANK MILWAUKEE, N.A. DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 99 L 01102 Honorable Vanessa Hopkins, Judge Presiding.

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

UNPUBLISHED

Defendants, William Chevrolet/Geo, Inc. (William Chevrolet), and Firstar Bank Milwaukee, N.A. (Firstar Bank), appeal from the trial court's order of January 12, 2001, granting judgment in favor of plaintiff, Kattrina Cannon, for violations of the Magnuson-Moss Warranty Federal Trade Commission Improvement Act (Magnuson-Moss Act or Act) (15 U.S.C. §2310(d) (2000)), and violations of the Credit Services Organizations Act (Credit Services Act) (815 ILCS 605/1 et seq. (West 1998)). Additionally, defendants appeal from the award of attorney fees and costs entered on August 24, 2001.

Defendants contend that (1) the trial court erred in failing to dismiss Cannon's Magnuson-Moss Act claims for Cannon's failure to comply with the notice provisions of the Act; (2) the trial court erred in allowing Cannon to amend her complaint to add a cause of action under the Credit Services Act where William Chevrolet is not a credit service organization; (3) the trial court erred in finding that William Chevrolet committed interest rate fraud in violation of the Credit Services Act; and (4) the trial court abused its discretion in awarding attorney fees and costs. On cross-appeal, Cannon contends that the trial court erred in selecting a reasonable hourly rate in calculating the award of attorney fees. For the following reasons, we affirm in part, reverse in part and remand with directions.

BACKGROUND

In January 1999, Cannon filed a lawsuit against William Chevrolet and Firstar Bank, in connection with her purchase of a used 1998 Nissan Sentra. Therein, she alleged in her complaint that William Chevrolet failed to disclose that the vehicle had been in an accident. She later amended the complaint to raise additional disclosure issues relating to her retail installment contract assigned to Firstar Bank. She sought recovery under various legal theories, including the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)) (count I), common law fraud (count II), violations of the Magnuson-Moss Act (15 U.S.C. §2310(d) (2000)), including breach of the implied warranty of merchantability (count III), breach of the service contract (count IV),and revocation of acceptance and rescission (count V), and violations of the Credit Services Act (815 ILCS 605/1 et seq.) (West 1998)) (count VI). Cannon also sought to recover her costs and attorney fees. The matter proceeded to mandatory arbitration at which time Cannon was awarded $24,933.92. The award was rejected by defendants and the case was assigned to the trial calendar.

After a bifurcated bench and jury trial, on January 12, 2001, the trial court entered judgment on the jury's verdict in favor of Cannon for $34,130.82 on her Magnuson-Moss Act claims (count III, breach of implied warranty, and count V, revocation of acceptance and rescission), and entered judgment on the jury's verdict in favor of William Chevrolet on the common law fraud claim (count II). Additionally, the trial court entered judgment, based upon its findings of fact, in favor of Cannon for $471 under the Credit Services Act (count VI), and for William Chevrolet under the Consumer Fraud Act (count I). Firstar Bank, as assignee of the retail installment contract, was held jointly and severally liable for $10,807.96, the amount of money Cannon had paid under the retail installment contract. Thereafter, Cannon filed several posttrial motions and a petition for statutory attorney fees and costs. On August 24, 2001, after an evidentiary hearing, the trial court awarded attorney fees, costs, and expenses to Cannon's attorneys, totaling $70,115.20.

ANALYSIS

Jurisdiction

Initially, Cannon filed a motion, taken with the case, contending that we lack jurisdiction to address the arguments on appeal relating to the order of January 12, 2001, where the notice of appeal was filed on September 10, 2001, more than 30 days after the last pending posttrial motion was resolved by the trial court. Cannon specifically argues that the last posttrial motion was resolved by the order of July 6, 2001, and that the petition for attorney fees, which was not resolved until August 24, 2001, was not a posttrial motion such as to prevent the January 12 order, disposing of the main claims, from being appealable, citing Servio v. Paul Roberts Auto Sales, Inc., 211 Ill. App. 3d 751, 570 N.E.2d 662 (1991), in support.

In Servio, the appellate court determined that a postjudgment petition for attorney fees under section 10(a)(c) of the Consumer Fraud Act was collateral to the underlying action and therefore did not affect the finality or appealability of the judgment in the principal action. Servio, 211 Ill. App. 3d at 760-61, 570 N.E.2d at 667-68.

This case is distinguishable from Servio. Here, Cannon's complaint contained a claim for attorney fees pursuant to the Magnuson-Moss Act under which she was the prevailing party. Section 2310(d)(2) of the Act specifically provides:

"If a consumer finally prevails * * *, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate." (Emphasis added.) 15 U.S.C. §2310(d)(2) (2000)

Thus, where the trial court retained jurisdiction to hear the claim for fees "as part of the judgment," it was not collateral to the underlying action. Any other judgment entered in the case before the claim for fees was ruled upon became non-final and non-appealable when the claim for fees was made, unless the prior judgment contained the language set forth in Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal. Dewan v. Ford Motor Co., No. 1-01-3259 (December 18, 2002); F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 983-84, 640 N.E.2d 1313, 1317 (1994).

Here, the order of January 12, 2001, did not resolve the claim for attorney fees or contain a finding pursuant to Rule 304(a) that there was no just reason to delay enforcement or appeal. Therefore, in the absence of a Rule 304(a) finding, the January 12, 2001, order, even if final, remained unappealable until the resolution of Cannon's claim for attorney fees on August 24, 2001. F.H. Prince, 266 Ill. App. 3d at 983-84, 640 N.E.2d at 1317. Consequently, the notice of appeal filed on September 10, 2001, within 30 days after resolution of the attorney fee claim, was timely, providing this court with jurisdiction.

Magnuson-Moss Act Claims

We next address defendants' contention that the trial court erred in denying their motions in limine seeking to dismiss the Magnuson-Moss Act claims of breach of implied warranty of merchantability and revocation of acceptance and rescission. Defendants argue that Cannon failed to comply with the requisite notice requirements of the Act and therefore the trial court should have granted the motions in limine as a matter of law. Pursuant to section 2310(e) of the Magnuson-Moss Act, no action may be brought for failure to comply with any obligation under any written or implied warranty unless the person obligated under the warranty is afforded reasonable notice and opportunity to cure such failure to comply. 15 U.S.C. §2310(e) (2000); Belfour v. Schaumburg Auto, 306 Ill. App. 3d 234, 241, 713 N.E.2d 1233, 1238 (1999).

Cannon's complaint alleged that William Chevrolet was served with notice of its violations of the law and that the dealership was aware of the condition of the vehicle prior to any cause of action being brought. According to the record on appeal, no motion to dismiss or motion for summary judgment was ever filed in connection with the adequacy of those allegations pertaining to the notice requirement under the Magnuson-Moss Act. Nor do defendants argue on appeal that the allegations in the ...


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