Appeal from the Circuit Court of Cook County. Honorable Allen S. Goldberg, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Plaintiff Thomas Petty brought this action against defendants Chrysler Corporation (Chrysler) and his former employer North Shore Dodge, Incorporated, also known as Gregory Dodge (Gregory Dodge), based on statutory fraud under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) and common law misappropriation of identity.
The dispute arose when Petty's name appeared in a mass mailing conducted by Chrysler to promote Gregory Dodge after Petty stopped working at that dealership. Plaintiff appeals the circuit court's order granting summary judgment to defendants. We affirm in part and reverse and remand in part.
Petty worked as a sales manager for defendant Gregory Dodge, an authorized Chrysler dealership, during 1993 and 1994. On March 31, 1994, Petty resigned his position at Gregory Dodge and immediately began working for Dodge of Glenview. Both Gregory Dodge and Dodge of Glenview are in Chrysler's Chicago Metropolitan Sales Locality.
Defendant Chrysler, an automobile manufacturer, established a marketing program called "Customer One Ownership Loyalty Program" ("Customer One") to increase repeat business from previous purchasers. To participate in the program, a dealership paid a fee for each car it sold and, in return, Chrysler sent the purchasing customer newsletters and quarterly magazines promoting the dealership. Each dealership selected a representative, whose name appeared as a computer-generated signature on the mailings along with the dealership's information. A dealership could change its designated representative by indicating the change on a quarterly form or by calling a toll-free number. In May 1993, Gregory Dodge submitted its quarterly "Customer One" form to Chrysler listing Petty as the dealership's representative. Chrysler distributed the first issue of the "Customer One" magazine in October 1994.
In October 1994, Lother Siegel, one of Petty's former customers from Gregory Dodge, showed Petty the "Customer One" magazine and cover letter Siegel had received. The cover letter was signed "Thom Petty" and promoted Gregory Dodge's customer service. Petty notified Chrysler's District Sales Manager Ronald Fries that Petty's name should not have appeared on the Gregory Dodge mailings because he no longer worked there. That same day, Fries called the toll-free "Customer One" number and removed Petty's name from the database before the next quarterly mailing.
Petty contends he never authorized Gregory Dodge to use his name in the "Customer One" mailings. In a deposition, Petty testified he told Fries on his first day of work at Dodge of Glenview that he no longer worked for Gregory Dodge. That same day, Petty also notified George Oswald that he switched dealerships. Oswald was the Chrysler Field Operations manager in charge of the district sales and service managers in the Chicago area.
Petty testified in a deposition that he was shocked and upset when he discovered his name was used in the "Customer One" mailings for Gregory Dodge. He stated he lost two or three nights' sleep and his reputation was damaged, especially among his co-workers at Dodge of Glenview who teased him about being "in cahoots" with a competitor.
Petty filed a series of amended complaints against Chrysler and Gregory Dodge alleging violations of the Consumer Fraud Act and common law misappropriation of identity for using his name without his consent.
In Chrysler's answer to Petty's complaint, it denied knowing Petty became sales manager for Dodge of Glenview or that his name was appearing in the "Customer One" magazine for Gregory Dodge.
Shahan Alexanian, a Gregory Dodge employee, signed the "Customer One" form listing Petty as the "acting principal dealer" for the dealership. Alexanian stated in an affidavit that Petty had directed him to use his name on the form. However, in a subsequent deposition, Alexanian admitted Petty never told him to use his name for the "Customer One" program.
In Petty's second amended complaint, he contended Chrysler and Gregory Dodge diluted his goodwill and caused him to lose potential commission income (Counts I & II). In addition, Petty sought attorney fees (Count III) and punitive damages (Count IV) for the alleged violation of the Consumer Fraud Act. In Count V and VI, Petty claimed common law misappropriation of his identity and punitive damages for the misappropriation. In total, Petty requested the court award him $3 million or 10% of the defendants' net worth, attorney fees, and costs.
Chrysler filed a motion for summary judgment on all counts, which Gregory Dodge joined, contending Petty failed to produce any evidence to support his claims for damages for dilution of goodwill or lost income. In Petty's response to the motion, he contended Gregory Dodge's financial reports contained sufficient evidence to support his claims. The reports indicated Gregory Dodge earned $9,881 in gross profits in the "Customer Labor-Mechanical" account in August 1994. In September 1994, the month Chrysler published the "Customer One" letters, the gross profits in that account increased to $14,717 and remained above the August level for the rest of that year. Gregory Dodge also sold more used cars in September than in August.
The trial court granted the defendants' motion for summary judgment on Counts I through IV. The court found Petty failed to offer any evidence presenting a factual issue on damages and said Petty's evidence did not indicate a connection between profits and the mailings. The court stated, "[Petty's] selective use of sales figures is misleading in that new car sales dropped beginning September 1994 and profits for the mechanical department as a whole show no pattern after September of 1994."
The court subsequently held a pretrial conference to hear the parties' arguments on damages for the remaining misappropriation counts. Petty's attorney argued Petty adequately pleaded damages, because nominal damages are presumed in misappropriation cases. Petty's attorney also argued the court should not limit Petty to recovering nominal damages on the remaining counts for misappropriation of Petty's name. He attempted to persuade the court that damages for economic loss, mental suffering, personal humiliation, and impairment of reputation should also be presumed. The court disagreed, but allowed Petty to amend Counts V and VI of his complaint to allege special damages.
Petty subsequently amended Counts V and VI to include special damages for mental suffering and damage to his reputation. Petty also repleaded Counts I, III, and IV as they appeared in the second amended complaint. In addition, Petty pleaded new versions of Counts I, III, and IV, alleging the same special damages as Count V.
Chrysler and Gregory Dodge filed a hybrid motion asking the court to dismiss the remaining counts or grant them summary judgment. Defendants contended Petty failed to sufficiently plead special damages in Count V and punitive damages under Count VI were not available in the absence of actual damages. The only evidence of Petty's special damages was his deposition testimony, which did not include any specific facts to establish his alleged mental suffering or harm to his reputation.
The trial court concluded Petty failed to allege sufficient facts to establish special damages and granted defendants' motion. The court's order did not specify whether it was dismissing all counts or granting summary judgment; however, a subsequent handwritten order mentioned only defendants' motion for summary judgment and that the court granted the motion in favor of defendants on all counts.
On appeal, Petty contends the trial court erred in granting summary judgment on his Consumer Fraud Act claims because a genuine issue of material fact exists as to damages. Second, Petty contends he is entitled to attorney fees under the Consumer Fraud Act. Third, Petty contends he presented sufficient evidence of the defendants' "reckless indifference" toward his rights to warrant an award of punitive damages. Fourth, Petty contends the trial court improperly dismissed his remaining misappropriation of identity claims because special damages for mental anguish are presumed. Finally, Petty contends the trial court improperly disregarded the revised Counts I, III, and IV in the third amended complaint.
Before reaching the merits of this appeal, we must address the parties' confusion about whether the trial court dismissed Counts V and VI pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ...