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Fred Guyton, Jr v. David G. Mitchell

November 6, 2012


The opinion of the court was delivered by: John A. Gorman John A. Gorman United States Magistrate Judge


Tuesday, 06 November, 2012 12:53:54 PM

Clerk, U.S. District Court, ILCD


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the Court are the Defendant's motion for partial summary judgment (#44) and the Plaintiff's motion for partial summary judgment (#46). These motions are fully briefed, and I have carefully considered the arguments and evidence submitted by the parties. As explained herein, the Plaintiff's motion is denied, and the Defendant's motion is granted in part and denied in part.

Plaintiff has also filed a motion for leave to supplement his memorandum (#48), a motion for leave to file an amended memorandum (#50), and a motion for leave to file plaintiff's declaration (#51). Defendant has filed no opposition to these motions. They are GRANTED. See Local Rule 7.1A. Finally, in light of this Order and Opinion, Plaintiff's motion for oral argument (#49) is DENIED AS MOOT.


Plaintiff Fred F. Guyton, Jr., is a citizen of Missouri. Defendant David G. Mitchell is a citizen of Illinois. The amount in controversy exceeds $75,000. This Court has jurisdiction over the subject matter of this dispute pursuant to 28 USC 1332(a).

Defendant resides within the Central District of Illinois, and a substantial number of the underlying events occurred within this District. Venue, which is not disputed, is proper in this District.


The following statement of facts is taken from the parties' motions, the responses and replies thereto, and the evidence submitted in support thereof.

Plaintiff Fred F. Guyton, Jr., ("Guyton") is an architect and planner who is chairman emeritus of Peckham Guyton Albers & Viets, Inc., an architectural and planning firm. He lives in St. Louis, Missouri. Defendant David G. Mitchell does business as Mitchell Motorcars International Ltd. or Mitchell Motors, in Geneseo, Illinois, which is also where Mitchell resides. The individual and the business are referred to cumulatively herein as "Mitchell." Mitchell has been in the business of restoring vintage vehicles since 1989.

Guyton owns 54 classic automobiles, many of which he has had restored over the years. One of his cars is a 1932 Nash. In early 2005, Guyton asked Mitchell if he was interested in restoring the Nash; Mitchell responded affirmatively. Guyton asked him to take the vehicle apart to see what would be needed to restore it. In May of 2005, Mitchell sent a written estimate for $127-825 -$130,325, broken down as follows:

53 weeks of labor at $1,750 per week $92,750.00 parts 7,575.00 paint and materials 14,000.00 car top and upholstery 10,000 - 12,500 This estimate did not include any costs for the following parts: running board trim side and end caps; parking light lenses; license light lens; cable pulley; left splash pan; piston rings; valves & guides; and firewall insulator (engine side). The weekly labor cost was based on a a three-member restoration team that would take about 6,360 man hours to complete the restoration. The two men discussed the estimate at length before Guyton authorized Mitchell to proceed with the project. The project was envisioned as restoration of the Nash as a touring or driving car, not as a car to be entered into a classic car show or similar event. The distinction is important, because a car being restored for a car show requires much more detailed and intricate restoration than does the restoration of a car that will be used as a touring or driving car.

At some point between November 2005 and February 2006, Guyton told Mitchell that he intended to show the restored Nash at the annual car show in Hershey, Pennsylvania. The parties agree that Mitchell did not have the car ready for the Hershey show in 2006, or in 2007, or even in 2008. Nonetheless, Guyton continued to allow Mitchell to work on the car. Mitchell never provided a new written estimate for the overall restoration, nor did he furnish Guyton with written estimates for any specific additional tasks. The parties dispute the nature of the communications between them about the additional work and the attendant costs necessitated by this change. Mitchell asserts that he had "ongoing communication" with Guyton concerning the additional work and the increased costs, and that he kept Guyton "fully advised" as the work progressed by sending him reports and thousands of photographs. Guyton denies these assertions

By the fall of 2008, Guyton's patience was wearing thin. Even Mitchell acknowledged that the car should have been completed, although he claimed to be working hard on it every day. Despite this, when Guyton decided in 2009 to show the Nash at the August 2010 Pebble Beach Concours d'Elegance show rather than the fall 2009 Hershey event, he advised Mitchell of his decision and continued to let Mitchell work on the car. Mitchell hired Upholstery Unlimited to perform upholstery work, committing to deliver the Nash to the upholsterer by late August or early September 2009. Sometime in October, Mitchell informed Guyton that the Nash had not yet been sent to the upholsterer.

Near the end of November 2009, Guyton received the application for the 2010 Pebble Beach show. He called Mitchell to obtain his assurance that the car would be ready for that event; Mitchell responded "no problem." Guyton then inquired about delivering the car to the upholsterer, and Mitchell responded that delivery would occur right after Christmas. Guyton added that he considered the application to Pebble Beach to be a binding agreement, and Mitchell said he understood.

Mitchell delivered the Nash to the upholsterer in March of 2010. He told Guyton the upholstery work was underway. In April, Mitchell reported that the upholstery was about 1/3 complete but that he would not be available to discuss the subject any more at that time because he was pre-occupied with buying a radio for the car. Guyton was unable to reach Mitchell, so he called the upholsterer and spoke to Steve Pearson, who told him that no work on the Nash upholstery had commenced and that he did not plan to start the work for a couple of weeks. He also reported that it would take 5-6 weeks to complete that work.

At that point, Guyton states that he became "deeply concerned" that the Nash restoration would not be complete in time for the show, so he hired D&D Restoration to complete the project. In late April 2010, movers hired by Guyton picked up the Nash and some parts. D&D completed the restoration.

Throughout the time that Mitchell had possession of the Nash, he continued to send Guyton invoices for his ongoing work, and Guyton continued to pay those invoices, even as the invoiced amounts ran well beyond the original estimate. The invoices paid by Guyton to Mitchell totaled $320,841.88. These amounts included 13,950 to 16,500 hours of labor. The invoices were not supported by individual work tickets or work orders. The final invoice - for some $55,000 - remains unpaid.


Plaintiff's First Amended Complaint (#21) consists of eleven counts, as follows: Counts I and II allege violations of the Illinois Consumer Fraud Act. Counts III and IV are fraud claims. Count V alleges a claim for Money Had and Received. Count VI is a common law breach of contract claim. Counts VII and VIII are claims for conversion. Count IX seeks a declaratory judgment. Count X alleges violations of the Illinois Automotive Repair Act, and Count XI asserts promissory estoppel. Generally speaking, what Guyton seeks is reimbursement of the funds he spent in excess of the original estimate, compensatory damages for breach of contract, punitive damages, and attorney's fees.

The Defendant's motion for summary judgment deals only with Counts V, X and XI. .As to those three Counts, in his Answer Defendant has denied all pertinent factual allegations. Defendant "demands judgment in bar of Plaintiff's claim" in Count V. As to Count X, Defendant adds to his denials "by way of separate or affirmative defense" that monetary damages are not recoverable under the Illinois Automotive Repair Act but only under the Illinois Consumer Fraud and Deceptive Business Practices Act, which requires a "knowing" violation. Because no such violation is plead, "defendant demands judgment in bar of plaintiff's action" in Count X. In answer to Count XI, Defendant denies the material allegations and adds "by way of separate or affirmative defense" that "delay in completing the restoration project was due to the ...

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