Appeal from the Circuit Court of Du Page County. No. 98--L--513 Honorable John T. Elsner and James W. Jerz, Judges, Presiding.
The opinion of the court was delivered by: Justice Grometer
Plaintiffs, Paul F. Basselen and Dena Basselen, initiated an action against defendants, General Motors Corporation (GM), Larry Roesch Chevrolet, Inc. (Roesch or dealer), and the First National Bank of Chicago (bank), in the circuit court of Du Page County. Their complaint contained the following six counts: (1) a breach of express warranty claim under the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act (Magnuson-Moss) (15 U.S.C. §2301 et seq. (1994)) against GM and the dealer, (2) a claim alleging breach of an implied warranty of merchantability, also brought under Magnuson-Moss against the dealer and GM, (3) a claim against the dealer seeking revocation under state law, (4) a consumer fraud claim against the dealer (see 815 ILCS 505/1 et seq. (West 1994)), (5) a common-law fraud claim, which was also asserted solely against the dealer, and (6) a claim seeking rescission of the retail installment contract held by the bank. The trial court granted summary judgment in favor of Roesch on counts I, III, IV and V. At the close of plaintiffs' case, the court directed verdicts in favor of Roesch on the second count and the bank on the sixth count. The jury then returned a verdict in plaintiffs' favor and against GM for $34,034. The trial court later awarded plaintiffs $689.90 for costs, but denied their request for fees in the amount of $44,881.25.
Plaintiffs now appeal, contesting the trial court's orders granting Roesch's motions for summary judgment and directed verdicts on the bulk of their claims; however, they do not appeal the trial court's orders pertaining to their fraud claims. They also allege error in the trial court's denial of their request for attorney fees. For the reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.
Plaintiffs purchased a 1996 Chevrolet conversion van from Roesch on September 17, 1996. GM provided a 3-year or 36,000-mile warranty. Roesch purportedly disclaimed all warranties, express or implied. Soon after the purchase, plaintiffs began experiencing problems with the vehicle. On April 3, 1997, plaintiffs brought the van to King Chevrolet (King) because the service-engine-soon light had come on. King, an authorized GM dealer, serviced the van pursuant to the warranty. On April 21, 1997, plaintiffs again took the van to King, as the service-engine-soon light had again come on. Subsequently, the light came on again, and plaintiffs took the vehicle back to King on May 5, 1997. About three weeks later, the light activated again. Plaintiffs contacted King and were told that there was nothing more King could do. Someone at King advised plaintiffs to take the van to the original dealer that sold them the vehicle.
Two to three weeks later, plaintiffs contacted Roesch. Plaintiffs complained of problems with the electrical system and the brakes. The service-engine-soon light was on. They stated that a sofa bed in the back of the vehicle had come loose and would move back and forth. There were also acceleration and stalling problems. Outside of the brakes, the vehicle was still covered by the GM warranty at this time. The majority of these problems were never corrected. The sofa bed was welded back in place; however, Mr. Basselen, who is familiar with welding from his job, testified that the welds were inadequate and that the carpeting and the sofa were burned. The brakes were repaired by Midas at plaintiffs' expense; however, the van still pulled to one side when the brakes were applied.
Additionally, the tires on the van were wearing from one side only. Plaintiffs took the van to Huntley Automotive and replaced the tires. This cost plaintiffs $121.31. Huntley also repaired the front brakes on June 11, 1998.
Mr. Basselen testified that he began complaining to Roesch and GM shortly after he purchased the van. He complained to Roesch numerous times, with the last time being shortly before he stopped driving it. In August 1997 or September 1997, plaintiffs decided they no longer wanted the van. Mr. Basselen told a service manager at Roesch that if Roesch could not fix the van, it should keep the van and give plaintiffs a new one. The manager told him that Roesch would not do that. At this time, the van had 23,000 miles on it, and plaintiffs drove it at least an additional 19,000 miles thereafter. Plaintiffs ceased making payments on the van. Plaintiffs hired an attorney, and the attorney sent Roesch a letter on January 14, 1998, seeking revocation of their acceptance of the van and damages. Defendants denied this request, and the instant action subsequently ensued.
The issues raised by plaintiffs in this appeal fall into three main areas. Plaintiffs first take issue with the trial court's decision to grant summary judgment in favor of Roesch on the revocation count of their complaint. Next, plaintiffs complain of the trial court's grant of a directed verdict in favor of Roesch on the count alleging breach of an implied warranty of merchantability. Finally, they attack the trial court's denial of their request for attorney fees. We will consider these issues in turn.
In order to be entitled to revoke acceptance of goods, a buyer must show the following: (1) a nonconformity in the goods that substantially impairs the value of the goods to the buyer, (2) acceptance was made on the reasonable assumption that the defect would be cured or because the acceptance was made without knowledge of the defect due to either the difficulty of discovering the defect or the seller's assurances, (3) revocation was made within a reasonable time after the nonconformity was or should have been discovered, (4) revocation occurred before a substantial change in the goods took place not caused by their own defects, and (5) the buyer gave the seller due notification. 810 ILCS 5/2--608 (West 1996). The trial court found that plaintiffs had not satisfied the fourth element. It first noted that vehicles like cars and passenger vans are highly depreciable and that they depreciate both with use and time. It then observed that, at the time plaintiffs first sought to revoke, the van had been driven for 23,000 miles. The court also relied on the fact that there were some dents and scratches on the van. We find the reasoning of the trial court sound. Because this issue comes to us following a grant of summary judgment, we conduct de novo review. Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000). The record must be construed liberally in favor of the party opposing the motion and strictly against the movant. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999). Although the non-movant need not prove his or her case at this stage, he or she must present some facts that would arguably entitle him or her to judgment. Sunderman v. Agarwal, 322 Ill. App. 3d 900, 902 (2001). In the present case, we conclude that plaintiffs have not sustained their burden of producing some facts that would enable a jury to conclude that their continued and extensive use of the van was reasonable.
We note that, at times, the parties conflate the issue of whether the revocation was timely with the issue of whether it occurred prior to a substantial change in the condition of the goods. These questions are distinct. A buyer who totals a vehicle as he drives it off the seller's lot could issue a timely revocation by immediately running back to the dealership; however, the condition of the car would have surely changed substantially. Conversely, a buyer who purchases a car, hermetically seals it, and stores it for 20 years may be in possession of a vehicle that has not changed substantially; nevertheless, any attempted revocation would be untimely.
Generally speaking, following revocation, a buyer must preserve the goods for the seller. See Valentino v. Glendale Nissan, Inc., 317 Ill. App. 3d 524, 530 (2000). A buyer who continues to use goods of which acceptance has purportedly been revoked "could face the prospect of nullifying [the] revocation." Valentino, 317 Ill. App. 3d at 530. Exceptions exist; thus, the continued use of goods will not, in all circumstances, bar revocation. For example, where ceasing use of the goods would cause undue hardship to the buyer, continued use may not preclude revocation. See Gasque v. Mooers Motor Car Co., 227 Va. 154, 162, 313 S.E.2d 384, 389 (1984) ("Exceptions have been made to the rule in mobile home cases, where departure from the home before resolving the litigation would cause undue hardship to the buyer and where the buyer's continued occupancy might be the best means of safeguarding the property for a seller who refuses to take it back"). Moreover, in certain circumstances not applicable here, a buyer may continue to use the goods if such use is commercially reasonable. See Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co., 86 Ill. App. 3d 980, 986-87 (1980). In all cases, the inquiry turns on whether a buyer's postrevocation use of goods is reasonable under the circumstances. See Alden Press, Inc. v. Block & Co., 173 Ill. App. 3d 251, 262-63 (1988), quoting Johannsen v. Minnesota Valley Ford Tractor Co., 304 N.W.2d 654, 658 (Minn. 1981), and Fablok Mills, Inc. v. Cocker Machine & Foundry Co., 125 N.J. Super. 251, 257-58, 310 A.2d 491, 494-95 (1973). The plaintiff bears the burden of proving that postrevocation use was reasonable. Gray v. Davis, 45 Ill. App. 3d 55, 56-57 (1977).
Plaintiffs assert that reasonableness is a question of fact. This proposition is generally true. See Magnum Press Automation, Inc. v. Thomas & Betts Corp., 325 Ill. App. 3d 613, 618-19 (2001). However, beyond this bare assertion, plaintiffs point to no facts that would support the proposition that their use was reasonable. Obviously, for an issue of fact to exist, there must be some facts in the record that would allow plaintiffs to prevail. Absent some explanation for their continued use of the van, we hold that it bars revocation as a matter of law.
In fact, several of the cases upon which plaintiffs rely plainly demonstrate this principle. In Alden Press, the court held that a buyer's use of a portion of a lot of defective catalogues did not constitute acceptance of the whole lot. While Alden Press, 173 Ill. App. 3d at 263-64, is a rejection rather than revocation case, it is sufficiently analogous to provide some guidance here. Applying a standard of reasonableness, the court concluded that the buyer sufficiently raised the issue of whether its use of the catalogues was reasonable where it presented evidence that it could not acquire substitute ...