Appeal from the Circuit Court of Cook County. Honorable David R. Donnersberger, Judge Presiding.
The opinion of the court was delivered by: Justice Burke
Plaintiff Fred Huss appeals from an order of the circuit court dismissing his claim against defendant Sessler Ford, Inc. for violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2 (West 2000)) set forth in count I of his complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2000)). On appeal, plaintiff contends that the trial court erred in granting defendant's motion because defendant's presuit offer to plaintiff did not render plaintiff's claim moot since the offer did not make plaintiff whole. For the reasons set forth below, we affirm.
On September 21, 2001, plaintiff purchased a Windstar van from defendant. Prior to the purchase, plaintiff advised defendant's employee that he needed a van that could be converted to a mobile office through a third party, Eclipse Conversions. According to plaintiff, defendant's employee told plaintiff that the Windstar could be so converted, that Eclipse could do it, and that the conversion would take four to six weeks. Plaintiff purchased the Windstar and the cost of the conversion was included in the amount plaintiff financed through Ford Motor Credit Company (Ford). *fn1
As of February 2002, plaintiff had not received the converted van and, on April 1, he filed a four-count complaint against defendant and Ford, alleging that defendant made numerous misrepresentations to him or omitted material facts at the time of the purchase. In count I, plaintiff alleged a claim against defendant for violation of the Consumer Fraud Act, seeking actual and punitive damages, recission of the transaction, and attorney fees and costs. In count II, plaintiff alleged a claim against defendant for common law fraud and, in count III, plaintiff alleged a claim against defendant for common law conversion. In count IV, plaintiff alleged a claim against Ford for violation of section 433.2 of the Code of Federal Regulations (16 C.F.R. §433.2), a Federal Trade Commission rule subjecting a lender (Ford) to the same claims and defenses as are available against a seller (defendant).
Prior to the filing of plaintiff's complaint, letters were exchanged between the parties. On February 4, 2002, defendant wrote to plaintiff's wife, apparently in response to a letter she had written, stating that the van had been sent to Eclipse on September 27, 2001. On February 18, plaintiff's attorney wrote to defendant, advising defendant that it had violated the Consumer Fraud Act and noting that car dealership cases often involved awards of punitive damages. At this time, plaintiff made a demand upon defendant for $60,000, inclusive of attorney fees and punitive damages. Plaintiff also sought repayment of all funds he had paid toward the vehicle, cancellation of the contract, and compensation for damages. On March 6, defendant's attorney wrote to plaintiff's attorney and offered two alternatives to plaintiff: (1) to go forward with the conversion and contract or (2) defendant would buy the van back, arrange for cancellation of the installment agreement, refund all payments plaintiff had made on the van, and pay any and all reasonable and documented attorney fees.
On March 18, plaintiff's counsel responded. At this time, plaintiff demanded $6,911.53, which included plaintiff's $200 down payment, payments on the van of $1,711.53, and $5,000 for aggravation, inconvenience, and attorney fees. Plaintiff also sought repurchase of the vehicle by defendant. On March 19, defendant's attorney wrote to plaintiff's attorney, stating that defendant would only pay demonstrable out-of-pocket costs and expenses along with reasonable attorney fees.
According to defendant, its offer did not contemplate paying plaintiff for aggravation, inconvenience, and unspecified attorney fees. Defendant requested that plaintiff provide it with a detailed statement of all losses, costs, and expenses plaintiff had incurred, as well as a detailed statement of attorney fees incurred. Defendant stated that upon receipt of same, it would arrange for cancellation of the contract and would reimburse plaintiff.
On March 27, plaintiff wrote to defendant, stating that the $5,000 contemplated $3,000 for attorney fees and $2,000 for aggravation and inconvenience. On April 2, defendant's counsel responded, noting that plaintiff's March 27 letter was non-responsive to defendant's letters with respect to its request for concrete amounts. Defendant noted that there was no possible way plaintiff's attorney had incurred $3,000 in attorney fees in such a short time and given the fact that only an initial consultation with plaintiff and the writing of a few letters had occurred. As noted above, plaintiff filed his complaint against defendant on April 1.
On May 8, defendant filed a motion to involuntarily dismiss counts I through III of plaintiff's complaint, arguing that they were barred by affirmative matter. Specifically, defendant maintained that its unconditional tender of an offer to make plaintiff whole meant that plaintiff could not demonstrate damages. Thereafter, plaintiff filed a response and defendant filed a reply. On October 25, the trial court granted defendant's motion and dismissed plaintiff's complaint in its entirety. *fn2 The trial court dismissed count I, relying on Hayman v. Autohaus on Edens, Inc., 315 Ill. App. 3d 1075, 734 N.E.2d 1012 (2000). According to the court, defendant had offered to make plaintiff whole by canceling the contract, refunding plaintiff the monies he had expended, and paying any reasonable attorney fees and expenses incurred by plaintiff. With respect to attorney fees, the trial court specifically noted that under the Consumer Fraud Act, plaintiff would only be entitled to reasonable attorney fees, which was what defendant had offered to pay. With respect to aggravation and inconvenience, the trial court found that plaintiff's claims were unspecified even though defendant had promptly offered to make plaintiff whole. Lastly, with respect to punitive damages, the trial court found that plaintiff would only be entitled to them if compensatory damages were allowed. However, because defendant tendered an offer to make plaintiff whole, plaintiff had no compensatory damages and, therefore, punitive damages were not available. This appeal followed.
Plaintiff contends that the trial court erred in granting defendant's motion to dismiss his Consumer Fraud Act claim because: (1) Hayman is distinguishable and the trial court erred in relying on it; (2) defendant's presuit offer was a compromise offer and, therefore, a fact question existed precluding dismissal; and (3) defendant's presuit offer did not make plaintiff whole and, therefore, plaintiff's lawsuit was not barred.
Defendant contends that the trial court properly dismissed plaintiff's consumer fraud claim because it tendered an unconditional offer to plaintiff and, based on this offer, plaintiff could not ...