Majcher v. Laurel Motors, Inc.
Annotate this Case
Nos. 2--96--0656, 2--96--0664 cons.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
LINDA MAJCHER, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee and )
Cross-Appellant, )
)
v. ) No. 91--L--2297
)
LAUREL MOTORS, INC.; ROBERT A. )
LANGER and DIANA M. LANGER, Indiv., )
)
Defendants-Appellants and )
Cross-Appellees ) Honorable
) Edward R. Duncan, Jr.,
(Beverly Bank, Defendant-Appellee). ) Judge, Presiding.
JUSTICE INGLIS delivered the opinion of the court:
The facts of this case arose when plaintiff, Linda Majcher,
purchased a car with a tampered odometer from defendant Laurel
Motors, Inc. (Laurel). Plaintiff subsequently sued Laurel as well
as the previous owners, defendants Robert and Diana Langer
(Langers), and the financing institution, defendant Beverly Bank
(Bank). Following a jury trial at which Laurel was found liable to
plaintiff for damages of $7,754.48 and attorney fees and costs of
$44,807.41, and the Langers were found liable to plaintiff for
damages of $12,000 and attorney fees and costs of $32,876.41,
Laurel and the Langers appealed. Plaintiff cross-appealed from the
judgment of the trial court finding her contingent fee agreement to
be unlawful. We affirm as modified.
BACKGROUND
The facts of this case, as opposed to the multitudinous legal
arguments, are relatively straightforward. In August 1989, the
Langers purchased a used Cadillac in Arizona for between $7,500 and
$8,000. At the time of purchase, the odometer read over 80,000
miles. The Langers testified that, as they drove their car back to
Illinois, they noticed that the odometer ticked and ran in reverse.
On December 27, 1989, the Langers sold the car to Laurel for
$9,995 as a trade-in for the purchase of another vehicle. The
Langers signed an odometer disclosure statement certifying that the
odometer reading of 35,011 miles was accurate. Conflicting
testimony was presented on this point. The Langers testified that
they told Laurel that the odometer had been rolling back during
their drive from Arizona; Laurel averred that it had no knowledge
of the low odometer reading.
Plaintiff purchased the vehicle from Laurel on January 6,
1990. At that time, Laurel signed another odometer disclosure
statement certifying that the odometer reading of 35,093 miles was
accurate. Plaintiff purchased the car for a total of $10,197.
Laurel assigned the approximately $7,500 loan to the Bank, and
plaintiff thereafter made her car payments to the Bank.
After purchasing the car, plaintiff began to experience some
problems which were not covered by the warranty. She investigated
the title history of the car and learned that the odometer had been
altered. She then sued Laurel, the Langers, and the Bank, seeking
damages under a variety of theories.
In counts I through VI of her amended complaint, plaintiff
sought damages from Laurel for breach of express and implied
warranty under the Magnusson-Moss Act (counts I and II), revocation
of acceptance of the contract (count III), consumer fraud (count
IV), common-law fraud (count V), and violation of the federal Motor
Vehicle Information and Cost Savings Act (15 U.S.C.A. 1981 et seq.
(West 1982)) (Federal Odometer Act) (count VI). Plaintiff sought
damages from the Langers for violation of the Federal Odometer Act
(count VII) and common-law fraud (count VIII). Finally, plaintiff
sought to revoke the retail installment agreement against the Bank
(count IX). Laurel filed a third-party action against the Langers
under the Federal Odometer Act. The Bank cross claimed against
Laurel, seeking revocation of the auto loan. Plaintiff continued
to drive the car after this case was filed for another 39,500
miles.
Approximately nine months before trial, Laurel offered to
settle the case for $10,000. Plaintiff refused the offer.
On November 4, 1994, after a jury trial, the following
verdicts were entered: (1) a general verdict for plaintiff against
Laurel for $750; (2) verdicts for plaintiff against Robert Langer
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud; (3) verdicts for plaintiff against Diana Langer
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud; and (4) a verdict for Laurel against the Langers
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud. Additionally, the court took plaintiff's
consumer fraud claim (count IV) under advisement. The jury
assessed no punitive damages in this matter.
On November 29, 1994, the trial court entered judgment for
plaintiff and against Laurel based on plaintiff's consumer fraud
claim, which rescinded plaintiff's purchase of the automobile and
awarded plaintiff $7,754.58 in damages. The court further ordered
the Bank to return to plaintiff the $5,154.78 she had paid on the
auto loan and ordered Laurel to pay $9,483.93 to the Bank. The
court also stated that if Laurel paid the amount to plaintiff, it
would be in satisfaction of the judgment for the Bank and against
Laurel.
Laurel filed a notice of appeal, but we dismissed the appeal
on September 13, 1995, as premature because issues regarding
attorney fees had not been settled in the trial court. Those
issues were settled on January 18, 1996, when the trial court found
that plaintiff's contingent fee agreement with her attorneys was
unethical and violated the rules of professional conduct.
Nevertheless, the court awarded plaintiff nearly $45,000 in
attorney fees and costs against Laurel and nearly $33,000 in
attorney fees and costs against the Langers pursuant to statute.
Defendants' timely appeals followed.
ANALYSIS
Nonpublishable material omitted under Supreme Court Rule 23.
I. Laurel Appeal
Turning to the merits of the various appeals, we will first
consider the issues raised by Laurel on appeal. Laurel raises, in
essence, five issues on appeal: (1) whether the doctrine of
election of remedies operates to void the judgment under the
Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud
Act) (815 ILCS 505/1 et seq. (West 1994)); (2) whether Laurel could
be restored to its position status quo ante by rescinding the
contract; (3) whether plaintiff will receive duplicative
rescissionary damages; (4) whether the judgment in favor of Laurel
and against the Langers should be modified to award Laurel its
total damages; and (5) whether attorney fees were properly awarded
to plaintiff.
A. Election of Remedies
In its first issue on appeal, Laurel argues that the judgment
under the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 1994))
should be vacated under the election of remedies doctrine because
plaintiff elected to receive actual damages under her common-law
fraud claims. According to Laurel, plaintiff's choice to enter
judgment on her fraud claims represents an affirmance of the
contract which bars plaintiff from accepting rescissionary damages
later. Laurel believes that the judgment on plaintiff's fraud
claims entered on November 4, 1994, is separate from the judgment
on plaintiff's Consumer Fraud Act claims entered on November 29,
1994. Laurel further contends that the November 4 judgment
represents actual damages in affirmance of the contract and that
the November 29 judgment represents rescissionary damages in
disaffirmance of the contract. Accordingly, Laurel contends that
the election of remedies doctrine bars plaintiff from collecting
damages on both judgments. While we acknowledge that plaintiff may
not receive a double recovery, we disagree with Laurel's
contentions.
We first provide an overview of the doctrine of election of
remedies.
"The doctrine of election of remedies is applicable where
a party has elected inconsistent remedies for the same injury
or cause of action. [Citations.] The prosecution of one
remedial right to judgment or decree constitutes an election
barring subsequent prosecution of inconsistent remedial
rights. [Citations.] For instance, a remedy based on the
affirmance of a contract (e.g., damages) is generally
inconsistent with one based on the disaffirmance of the
contract (e.g., rescission). [Citations.] Thus, the election
of either remedy is an abandonment of the other." Lempa v.
Finkel, 278 Ill. App. 3d 417, 423-24 (1996).
Laurel's argument, that the order of November 29, 1994, represents
a separate and subsequent action to the order of November 4, 1994,
simply misses the mark.
The order of November 4, 1994, stated that the trial court
took "the cause of action brought by [plaintiff] against [Laurel]
pursuant to the Illinois Consumer Fraud Act" under advisement. The
November 29, 1994, order renders the trial court's judgment arising
from the trial which concluded on November 4, 1994. The November
29, 1994, order does not, therefore, represent a "subsequent
prosecution of inconsistent remedial rights" (Lempa, 278 Ill. App.
3d at 424); rather, the order is simply the final resolution of the
combined bench and jury trial begun earlier. Thus, there is no
subsequent prosecution of an inconsistent remedial right.
Accordingly, for this reason, the doctrine of election of remedies
is not applicable to the case before us.
The cases relied upon by Laurel are distinguishable. Laurel
offers Lempa as the latest case stating the well-settled
proposition that the "prosecution of one remedial right to judgment
or decree constitutes an election barring subsequent prosecution of
inconsistent remedial rights." Lempa, 278 Ill. App. 3d at 424.
While this is an accurate statement of the law, the particular
facts of Lempa do not provide support for its application to the
facts of our case. In Lempa, a previous action rescinded a
building lease between the parties. Four months later another
action was instituted in which the former leaseholder sought to
recover damages for breach of the lease. Lempa, 278 Ill. App. 3d
at 421. The court concluded that the action sought relief based on
the breach of the rescinded lease and that the damages were
compensatory not rescissionary. The second action was therefore
precluded by the doctrine of election of remedies. Lempa, 278 Ill.
App. 3d at 427. Here, there is no "subsequent prosecution" of an
inconsistent action, nor is there a prior award of inconsistent
damages. Thus, Lempa, and its progenitors, are inapposite.
Laurel next asserts that the general verdict for $750 and the
verdicts against the Langers are damages in affirmance of the
contract and that the consumer fraud verdict for $7,754.48 is for
rescissionary damages. According to Laurel, these are inconsistent
and barred by the election of remedies doctrine. We disagree.
Plaintiff asserts that she sought rescission of the contract
in all of the counts of her amended complaint. While not strictly
true, we note that the $750 verdict was a general verdict covering
plaintiff's fraud, revocation, and implied warranty claims. "The
return of a general verdict creates a presumption that all issues
of fact upon which proof was offered were found in favor of the
prevailing party." Klingler Farms, Inc. v. Effingham Equity, Inc.,
171 Ill. App. 3d 567, 572 (1988). We cannot say that the jury
rejected one or more of plaintiff's claims in rendering its general
verdict. Moreover, we are unpersuaded by Laurel's analysis that
the amount of the general verdict is unrelated to the damages for
revocation of acceptance as the amount of the verdict is within the
discretion of the jury. Urban v. Zeigler, 261 Ill. App. 3d 1099,
1102 (1994). Additionally, we note that no challenge to the
propriety of the amount of the general verdict has been raised.
Laurel's resort to the verdict against the Langers is
similarly unpersuasive. The jury found the Langers liable for
$6,000 on plaintiff's common-law fraud claim. The amount of a
verdict is within the jury's discretion, and we will not indulge in
speculation about the jury's intent in choosing this amount.
Accordingly, we cannot say that the verdicts in this case are
inconsistent.
B. Status Quo
Laurel's second issue on appeal is that the rescission of the
purchase contract failed to restore it to the position it occupied
before the contract. Specifically, Laurel contends that it was
entitled to the car if it had to refund plaintiff's purchase price.
Laurel asserts, however, that plaintiff continued to drive the car
until it was worthless, and the return of the car cannot restore it
to its position before the contract. Laurel thus argues that it is
entitled either to vacate the rescission award or to modify it to
reflect the benefit plaintiff derived from her continued use of the
car.
The remedy of rescission requires the cancellation of the
contract and the restoration of the parties to their status before
contracting. Felde v. Chrysler Credit Corp., 219 Ill. App. 3d 530,
542 (1991). Not only must any consideration or property received
by the rescinding party be returned, but the rescinding party must
also account for any benefits it received from the other party
under the contract. Puskar v. Hughes, 179 Ill. App. 3d 522, 528
(1989).
Laurel's argument boils down to a contention that it is due a
setoff for the benefit plaintiff derived from driving the car
nearly 39,500 miles after she purchased it. Laurel contends that,
while it had to return plaintiff's payments on the car, the trial
court erred by failing to award it a setoff for the benefit
plaintiff enjoyed from driving the car. We disagree.
The trial court specifically found that "[t]here was no proof
as to the value of the mileage driven." Indeed, plaintiff
testified that the car ran terribly from the time she purchased it,
was unsafe, and was frequently in need of repair. From this
testimony, the trial court could reasonably conclude that the value
to plaintiff was negligible. Accordingly, we find no abuse of
discretion in the trial court's decision not to award a setoff.
Laurel asserts that the value of the benefit to plaintiff was
the 19 payments she made on the contract. Laurel argues that,
during the period in which plaintiff continued to drive the car,
she continued to make payments, discontinuing the payments in
October 1991, when the car stopped running. Accordingly, Laurel
contends that its damages should be reduced by the value of those
19 payments, or $4,897.06. Again, we disagree.
Rescission was granted under plaintiff's statutory consumer
fraud action. This action was tried to the court in a bench trial
proceeding simultaneously with the jury trial. Accordingly, the
trial court was the finder of fact. In deciding what value to
attach to the mileage, the trial court could accept plaintiff's
testimony about how the car performed and her aggravation and
inconvenience. Additionally, the court noted that there was no
testimony offered concerning the value of the mileage. The court's
decision not to award a setoff is not against the manifest weight
of the evidence and accordingly will not be disturbed on review.
C. Duplication of Damages
Laurel's next issue on appeal is whether the trial court has
awarded plaintiff duplicative damages. Laurel argues that the
damages awards, specifically the rescissionary awards, must be
modified to avoid giving a windfall to plaintiff.
On November 29, 1994, the trial court entered a series of
judgments. It first entered a judgment for plaintiff and against
Laurel in the amount of $7,754.48, representing a down payment of
$2,600 made to Laurel and payments of $5,154.48 made by plaintiff
to the Bank. The trial court also entered judgment for plaintiff
against the Bank in the amount of $5,154.48, representing the
payments plaintiff made to the Bank on her car loan. Additionally,
the trial court's order provided that Laurel's satisfaction of the
judgment it owed to plaintiff would satisfy the judgment of
plaintiff against the Bank. The trial court also entered a
judgment for the Bank against Laurel, pursuant to an agreement
between the Bank and Laurel, in the amount of $9,483.93,
representing the $5,154.48 plaintiff paid to the Bank and the
$4,329.45 remaining outstanding on plaintiff's auto loan.
Laurel argues that the judgment orders of November 29, 1994,
entitle plaintiff to receive only $7,754.48 in rescissionary
damages. We agree. Laurel also asserts that it should not have to
pay plaintiff $5,154.48 of the judgment against it because the Bank
has already satisfied that portion of the judgment. We agree. All
parties stipulated at oral argument that the Bank had satisfied the
$5,154.48 judgment against it in favor of plaintiff. Thus, Laurel
is entitled to a setoff for that amount and need pay plaintiff only
$2,600 in order to satisfy plaintiff's judgment against Laurel.
Laurel also appears to contend that it should not be liable
for the judgment entered in favor of the Bank and against Laurel.
We disagree.
The Bank's judgment against Laurel was the product of an
agreement between the Bank and Laurel. Such an agreed order is
"conclusive on the parties and can be amended or set aside by one
of the parties only upon a showing that the order resulted from
fraudulent misrepresentation, coercion, incompetence of one of the
parties, gross disparity in the position or capacity of the
parties, or newly discovered evidence." In re Haber, 99 Ill. App.
3d 306, 309 (1981). Laurel has raised no objection to the agreed
judgment order between it and the Bank below, nor does it raise any
of the above-enumerated grounds on appeal. Accordingly, we will
not disturb the judgment of the trial court. Thus, Laurel is to
satisfy plaintiff's judgment for rescission, and Laurel must honor
its agreement to indemnify the Bank for the funds of the auto loan
it had contracted to receive.
Nonpublishable material omitted under Supreme Court Rule 23.
E. Attorney Fees
Laurel's final issue on appeal is whether the trial court
properly awarded attorney fees. At the outset, we note that
Laurel's argument is directed solely toward the award of attorney
fees to plaintiff. Additionally, Laurel made no objection to the
award of attorney fees to the Bank before the trial court.
Accordingly, we deem this issue waived with respect to the Bank.
Laurel initially argues that the trial court abused its
discretion by awarding attorney fees to plaintiff. Section 10a(c)
of the Consumer Fraud Act provides that the trial court may award
attorney fees to the prevailing party. 815 ILCS 505/10a(c) (West
1994) The decision whether attorney fees should be awarded to the
prevailing party rests within the sound discretion of the trial
court. Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d
94, 114 (1994). Among the factors the trial court will consider in
deciding whether to award attorney fees are the degree of the
opposing party's bad faith; the opposing party's ability to satisfy
the fee award; the deterrent value of a fee award; whether the
party requesting fees sought to benefit all consumers or businesses
or to resolve a significant legal issue under the Consumer Fraud
Act; and the relative merits of the parties' positions. Graunke v.
Elmhurst Chrysler Plymouth Volvo, Inc., 247 Ill. App. 3d 1015,
1022-23 (1993).
Laurel claims that it did not act in bad faith in selling
plaintiff a vehicle with a tampered odometer. Laurel further
blames the Langers for defrauding it, contending its reliance on
the Langers' representations was reasonable and justifiable.
Because bad faith is often a controlling factor in the
determination to award attorney fees (see Graunke, 247 Ill. App. 3d
at 1023), according to Laurel, its lack of bad faith should have
precluded an award of attorney fees to plaintiff. Laurel also
argues that "innocently misrepresent[ing] the odometer reading" can
never be deterred by awarding attorney fees and that all the other
Graunke factors are either not present or in Laurel's favor.
Laurel's claim has no merit.
Contrary to Laurel's representations, the trial court found
that plaintiff had presented credible evidence "that the digits on
the odometer were not properly aligned and the car showed a great
deal of wear" leading to the conclusion that "a reasonable
inspection by Laurel *** should have alerted it to the
malfunctioning odometer." Or, in other words, Laurel essentially
closed its eyes to the true condition of the car in making its
statements to plaintiff regarding the mileage of the car. We fail
to see how Laurel can possibly characterize its actions as being in
"good faith." Additionally, the court specifically noted that
"since odometer fraud is a recurring problem within this country,
hopefully the award of attorney[] fees will deter such conduct in
the future." Thus, we find no abuse of discretion in the court's
findings under Graunke.
Even if Laurel's actions can somehow be said to have been
conducted with good faith, the Consumer Fraud Act does not require
bad faith as a prerequisite to an award of attorney fees. Grove v.
Huffman, 262 Ill. App. 3d 531, 539 (1994) ("Section 10a(c) of the
Act applies to cases involving innocent misrepresentations");
Haskell v. Blumthal, 204 Ill. App. 3d 596, 602 (1990) ("attorney
fees may, at times, be awarded plaintiffs without bad faith on the
part of defendants"). We hold, therefore, that the trial court did
not abuse its discretion in awarding plaintiff attorney fees.
Laurel next contends that the contingent fee agreement
executed between plaintiff and her counsel was unethical and,
therefore, should preclude the award of attorney fees to plaintiff.
Laurel fails, however, to provide any authority to support its
argument, in violation of Supreme Court Rule 341(e)(7) (155 Ill. 2d
R. 341(e)(7)). "Arguments made without citation of supporting
authority are deemed waived on appeal. [Citation.] The party who
thus waives the question is bound by his waiver, but the court,
which has the responsibility of reaching a just decision, is not so
bound." In re Marriage of Winters, 160 Ill. App. 3d 277, 281
(1987). Accordingly, we address this issue.
Laurel contends that the trial court's ruling that plaintiff's
fee agreement with her counsel created a proprietary interest in
the lawsuit in violation of Rule 1.8 of the Rules of Professional
Conduct (134 Ill. 2d R. 1.8) should preclude the award of attorney
fees because of the conflict of interest such a fee agreement
causes. We note that we do not reach the issue of whether the fee
agreement creates a proprietary interest in the litigation as the
attorney fees were properly allowed even if there is a proprietary
interest. We agree with the trial court that the defendants were
not "the intended beneficiaries of Rule 1.8." See Topps v. Pratt
& Callis, P.C., 206 Ill. App. 3d 298, 301 (1990) (harm from
unethical agreement was "to the administration of justice and
society at large because of the breach of the Code of Professional
Responsibility"). Moreover, the infirmities of the fee agreement
are more properly resolved by an action between plaintiff and her
counsel and are not the concern of Laurel.
We also note that Laurel, as well as plaintiff in responding
to Laurel's argument, have properly placed the fee agreement before
us for consideration. The agreement states, in part:
"The Undersigned Client agrees to pay said attorneys a
sum equal to 33 % (percent) of all amounts collected or
otherwise recovered. *** It is also agreed that any
attorneys [sic] fees awarded by the Court against the
defendant, are in addition to the fees payable by client, and
are outside this contact and will go directly to [counsel]."
The above-quoted clauses of the fee agreement are mutually
exclusive. Plaintiff's counsel cannot collect both its contingent
fee as well as an hourly fee. To do so would be to collect a
double payment--something which this court, and the Rules of
Professional Conduct, will not countenance.
Additionally, we note that plaintiff's counsel applied for,
and received, statutory attorney fees at a reasonable hourly rate
(which presumptively includes a reasonable profit margin) that
fully compensates counsel for the time spent on the resolution of
this matter. The purpose of the statutory fee award is to benefit
the plaintiff by allowing the plaintiff to obtain counsel in order
to pursue redress for relatively small claims. In light of that
purpose, we will not allow counsel to collect the contingent fee as
well as its reasonable hourly fee because this would work to the
detriment of the plaintiff. Accordingly, we hold that under the
fee agreement plaintiff's counsel is entitled to the statutory
attorney fees awarded by the trial court and no more. Plaintiff is
entitled to the full amount of the judgments entered in her favor.
Laurel's final contention is that its settlement offer should
act to limit the amount of attorney fees which may be awarded.
Laurel argues that it offered plaintiff $10,000 to settle the case
on January 28, 1994, which was later rejected by plaintiff. Laurel
asserts that plaintiff's judgment was less than the settlement
offer, prompting Laurel to conclude that any award of attorney fees
must be limited to those fees incurred before January 28, 1994, the
date of its settlement offer. The trial court rejected Laurel's
argument, holding that the word "judgment" in the Consumer Fraud
Act (815 ILCS 505/10a(f) (West 1994)) must "include the monetary
amount of costs and attorney[] fees awarded." We agree with the
trial court.
The fee-shifting portion of the Consumer Fraud Act provides,
in pertinent part:
"At any time more than 30 days before the commencement of
trial, a party, who is a new vehicle dealer or used vehicle
dealer *** and who is defending a claim under this Act, may
serve upon the party seeking relief under this Act an offer to
allow judgment to be taken against the defending party to the
effect specified in the offer with costs then accrued. ***
When a party seeking relief under this Act does not accept an
offer *** and when that party fails to obtain a judgment in an
amount more than the total offer of settlement, that party
shall forfeit and the court may not award any compensation for
attorney's fees and costs incurred after the date of the
offer." 815 ILCS 505/10a(f) (West 1994).
Laurel contends that "[s]tatutes in derogation of the common
law prohibition of attorney-fee awards to prevailing parties must
be strictly construed." Greenview AG Center, Inc. v. Yetter
Manufacturing Co., 246 Ill. App. 3d 132, 140 (1993). Thus,
according to Laurel, interpreting the word "judgment" to include
attorney fees would violate this rule. Accordingly, Laurel
believes that attorney fees cannot be included in order to
determine whether a judgment exceeds a settlement offer.
Laurel overlooks the fact that the legislature has mandated
that the Consumer Fraud Act "shall be liberally construed to effect
the purposes thereof." 815 ILCS 505/11a (West 1994). "[O]ne of
the purposes of allowing attorney fees to be awarded under section
10a(c) [of the Consumer Fraud Act] to prevailing parties is to
encourage consumers to bring actions to vindicate their rights
under the Act. [Citation.] Without such a provision, it would be
difficult for injured consumers to obtain counsel in light of the
sums of money that are in dispute in most consumer fraud
litigation." Totz v. Continental Du Page Acura, 236 Ill. App. 3d
891, 910 (1992).
We must, therefore, construe the term "judgment" to include
attorney fees. This conclusion is further bolstered by the fact
that the judgment in this case was not final until the petition for
attorney fees had been ruled upon. Cf. Cashmore v. Builders
Square, Inc., 207 Ill. App. 3d 267 (1990) (order dismissing
complaint with prejudice not final and appealable until ruling on
timely filed petition for sanctions is made). Accordingly, we do
not find that the court abused its discretion in determining the
amount of the fee award.
II. Langer Appeal
We next consider the issues raised by the Langers on appeal.
The Langers raise six issues on appeal: (1) whether the trial
court erred by granting plaintiff summary judgment on her Federal
Odometer Act count; (2) whether the jury was properly instructed
about the burden of proof and measure of damages for plaintiff's
common-law fraud count; (3) whether damages under the Federal
Odometer Act should have been joint and several and not individual
to the Langers; (4) whether the common-law fraud damages should
have been remitted to $2,000; (5) whether the damages on Laurel's
counterclaim should have been remitted to $750; and (6) whether
plaintiff should have been awarded attorney fees.
A. Summary Judgment
In their first issue on appeal, the Langers contend that the
trial court erroneously granted summary judgment in favor of
plaintiff on the issue of liability under the Federal Odometer Act.
The Langers assert that there was a genuine issue of material fact
concerning the issue of their intent to defraud. They argue that
the fact that they submitted to the Illinois Secretary of State an
Arizona title indicating that the odometer reading of the car may
not have been accurate undercuts the trial court's conclusion that
they intended to defraud under the Federal Odometer Act. We
disagree.
Summary judgment is properly granted if the pleadings,
depositions, and admissions on file, together with any affidavits,
show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. 735 ILCS
5/2--1005(c) (West 1994); Leschinski v. Forest City Steel Erectors,
243 Ill. App. 3d 124, 127 (1993). In ruling on the motion, the
court is required to construe all evidentiary material strictly
against the movant and liberally in favor of the respondent.
Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 908
(1994).
The propriety of an order granting summary judgment is a
question of law, and, as such, we review such orders de novo.
Pagano, 257 Ill. App. 3d at 909. If, after reviewing the pleadings
and evidentiary material before the trial court, the reviewing
court determines that a material issue of fact exists or that the
summary judgment was based on an erroneous interpretation of the
law, then reversal is warranted. Pagano, 257 Ill. App. 3d at 909.
Our review of the evidence that existed at the time the motion
for summary judgment was pending convinces us that the trial court
correctly granted summary judgment. The Federal Odometer Act
imposes liability on "[a]ny person who, with intent to defraud,
violates any requirement" of the statute. 15 U.S.C.A. 1989(a)
(West 1982). The transferor's intent to defraud "may be inferred
from a showing of gross negligence or of a reckless disregard of
facts indicating the vehicle's odometer is incorrect." Hall v.
Riverside Lincoln Mercury--Sales, Inc., 148 Ill. App. 3d 715, 720
(1986).
It is undisputed that the Langers knew that the odometer
reading was in error. It is likewise undisputed that the Langers
transferred their Illinois title to Laurel, signing the odometer
certification which listed the odometer reading at 35,011. The
Langers did not indicate that the reading might have been
inaccurate in the space provided. From these facts, the trial
court properly concluded that the Langers, at best, recklessly
disregarded the erroneous odometer reading in certifying its
accuracy. We hold, therefore, that the trial court properly
granted summary judgment on the odometer fraud count.
The Langers contend that Walt Bennett Ford, Inc. v. Goyne, 969 F.2d 603 (8th Cir. 1992), undercuts the trial court's finding of
intent under the odometer fraud count. There, the court held that
the dealer, Walt Bennett Ford, was equitably estopped from
prosecuting an odometer fraud action because the seller had
disclosed that the odometer reading was not accurate and thus
lacked the requisite intent to defraud. Walt Bennett Ford, 969 F.2d at 604-05. Similarly, the Langers assert that their
disclosure of the inaccuracy of the odometer to Laurel, as well as
the Secretary of State, indicates that they did not possess the
intent to defraud under the statute. We remain unpersuaded.
Whether the Langers may have questioned the accuracy of the
odometer statement to Laurel does not contradict the fact that the
Langers certified the odometer reading to be 35,011 when they
assigned their title to Laurel and did not indicate that the
odometer reading was inaccurate. Walt Bennett Ford is simply
inapposite to the facts of this case. Accordingly, summary
judgment on the issue of liability under the Federal Odometer Act
was appropriate.
B. Jury Instructions
The Langers' next issue on appeal is whether the jury was
properly instructed concerning the burden of proof and the measure
of damages in plaintiff's common-law fraud claim against them. We
first consider the Langers' contentions regarding the burden of
proof instructions.
Nonpublishable material omitted under Supreme Court Rule 23.
2. Measure of Damages
The Langers next dispute the jury instruction given on the
measure of damages. It stated, in pertinent part, that plaintiff
was to be compensated for "[a]ll amounts paid on the automobile."
Plaintiff's jury instruction No. 36--A; see Illinois Pattern Jury
Instructions, Civil, No. 30.01 (3d ed. 1995) (modified). The
Langers contend that the trial court erred by giving plaintiff's
instruction. Moreover, the Langers assert that the proper measure
of damages is "the difference between the actual value of the
property sold and the value the property would have had if the
representations had been true" (Gerill Corp. v. Jack L. Hargrove
Builders, Inc., 128 Ill. 2d 179, 196 (1989)), and that the trial
court erred by refusing to give defendants Langers' jury
instruction No. 1.
Jury instructions provide jurors with the correct principles
of law applicable to the evidence which has been submitted to them.
Gaines v. Townsend, 244 Ill. App. 3d 569, 576 (1993). The trial
court has the discretion to decide which issues have been raised by
the evidence and which instructions will be read to the jury.
Gaines, 244 Ill. App. 3d at 576. On review, we will grant a new
trial only where a party shows it has suffered serious prejudice to
its right to a fair trial due to the trial court's failure to read
a tendered jury instruction. Gaines, 244 Ill. App. 3d at 576.
Here, the Langers do not argue that they have been prejudiced
by the trial court's refusal of their tendered jury instruction No.
1. Moreover, we have examined the record and find the trial court
did not abuse its discretion. The court stated that the
rescissionary damages plaintiff sought under her fraud count
against the Langers were allowed by In re Estate of Neprozatis, 62
Ill. App. 3d 563, 570 (1978). Further, the court stated that the
measure of damages, return of consideration, was accurately stated
by "all amounts paid on the automobile." We agree, and,
accordingly, hold that the trial court did not err in refusing the
Langers' tendered jury instruction No. 1.
C. Joint and Several Liability
In their next issue on appeal, the Langers contend that the
trial court erroneously entered judgment on each of the odometer
fraud verdicts returned against Robert and Diana individually.
They assert that under the Federal Odometer Act liability is joint
and several. They argue this means that the trial court should
have modified the verdict to reflect their joint and several
liability for $6,000, rather than the individual and separate
liability of $6,000 for each of them.
Plaintiff responds by asserting that the trial court's
judgment was proper. Plaintiff first analogizes the Langers'
prayer for relief to a situation where one codefendant is seeking
contribution from another. Plaintiff contends that, under the
Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West
1994)), joint and several liability is not allowed for intentional
tortfeasors. Plaintiff argues that the intent to defraud under the
federal statute renders the Langers' actions an intentional tort.
Accordingly, plaintiff concludes that the Langers should not be
jointly and severally liable and that the court's judgment was
correct.
Plaintiff also contends that the better reasoned of the
federal odometer fraud decisions do not allow defendants to be
jointly and severally liable. Thus, according to plaintiff, the
trial court followed the correct reasoning in deciding to impose
individual liability on Robert and Diana for each Langer's
violation of the federal statute. We agree with plaintiff on this
point.
The parties, as well as our own research, have uncovered no
Illinois cases directly on point. We therefore turn to the federal
cases which have considered the issue of whether liability under
the Federal Odometer Act is joint and several. We find two
competing lines of authority: the United States Court of Appeals
for the Fourth Circuit concluded that the plain language of the
statute imposed separate and individual liability upon defendants
in Ferris v. Haymore, 967 F.2d 946, 955-56 (4th Cir. 1992); but the
United States Court of Appeals for the Sixth Circuit held that the
statute permitted joint and several liability in Rice v. Gustavel,
891 F.2d 594, 596 (6th Cir. 1989). We believe Ferris to be the
better reasoned analysis and, accordingly, follow the lead of the
fourth circuit in holding that the Langers are separately and
individually liable for the judgment entered against them under the
odometer fraud count.
Ferris arose from a suit against two auto dealerships in the
chain of title of a car with a rolled-back odometer. In its
analysis of whether to apply joint and several liability, the court
initially considered the plain language of section 1989(a), stating
that the statute "imposes treble damage liability on '[a]ny person
who, with intent to defraud, violates any requirement imposed under
this subchapter.' " (Emphasis in original.) Ferris, 967 F.2d at
955, quoting 15 U.S.C. 1989(a). The court next criticized the
premises of the sixth circuit's holding in Rice:
"That court did not even purport to rest its decision *** on
the terms of the statute. It simply stated that '[t]he fact
that each such person shall be liable . . . does not
necessarily preclude the conclusion that liability is to be
joint and several, rather than separate and individual.'
[Rice,] 891 F.2d at 596 (emphasis added). Then, without
analysis, the court invoked the common law rule that
'[l]iability for tortious conduct is normally joint and
several' in holding that the federal odometer statute does not
permit a plaintiff to recover the full measure of damages
against each defendant. [Rice, 891 F.2d] at 597.
We do not believe that this holding can be reconciled
with the plain terms of the odometer statute. *** The
statute *** provides to victims of odometer fraud a cause of
action against each violator of the statute [and] expressly
provides that each violator will be liable for treble or
statutory damages." Ferris, 967 F.2d at 956.
The court further disagreed with the Rice court for importing the
common-law principle of joint and several liability into this
statutory section, noting that congress was well able to explicitly
provide for joint and several liability in various statutory
schemes when it wished. Ferris, 967 F.2d at 956-57.
We acknowledge that the case at bar differs from Ferris in the
important respect that there was not the successive fraudulent
transfer of title from Robert to Diana. This does not, however,
change our analysis. We note that Robert and Diana were each found
to be individually liable for a violation of the Federal Odometer
Act. This, therefore, renders the instant case indistinguishable
from Ferris. Therefore, Robert and Diana are separately and
individually liable for each one's violation of the Federal
Odometer Act.
We also note that the Langers' arguments are untimely made.
The Langers did not object to the verdict forms sent to the jury
listing Robert and Diana separately under the odometer fraud count.
A timely objection interposed at that time would have alleviated
the Langers' present disappointment. Accordingly, we hold that the
trial court did not err by imposing separate and individual
liability upon each of the Langers.
D. Remittitur of Fraud Damages to $2,000
The Langers next argue that "Nonpublishable material omitted
under Supreme Court Rule 23." the trial court should have, in any
event, provided that the payment of the odometer fraud claim also
be in satisfaction of the common-law fraud claim. "Nonpublishable
material omitted under Supreme Court Rule 23."
Next, the Langers contend that the trial court should have
provided in its order that the satisfaction of the odometer fraud
judgment would also satisfy the common-law fraud judgment, because
to allow recovery on both judgments would be to allow plaintiff to
recover twice for a single harm. We note, however, that the
Langers failed to raise this issue in their post-trial motion and
have thus waived the issue for review. Doe v. Lutz, 281 Ill. App.
3d 630, 641 (1996). Nevertheless, we consider the issue, as waiver
is a limitation on the parties and not the reviewing court.
Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11
(1996).
The Langers' position is clearly correct. Plaintiff is able
to cite no authority which would allow plaintiff to collect damages
for both common-law fraud and statutory odometer fraud to remedy a
single injury. Indeed, the authority cited by plaintiff supports
the Langers' position. Verdonck v. Scopes, 226 Ill. App. 3d 484,
491-92 (1992) (the plaintiff may not recover both statutory
odometer fraud and common-law fraud damages, but instead is limited
to the greater award of common-law fraud damages). Accordingly,
pursuant to Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we modify
the trial court's judgment order of November 4, 1994, to reflect
that the satisfaction of the statutory odometer fraud judgments in
favor of plaintiff and against each Langer individually will
satisfy the common-law fraud judgments in favor of plaintiff and
against the Langers.
E. Indemnification to Laurel
The Langers' next issue on appeal deals with the judgments
entered against them on Laurel's counterclaim. They argue that the
thrust of Laurel's counterclaim is for indemnification and is
therefore barred under the statutory odometer fraud count. We
agree.
In accord with our holding above that the Federal Odometer Act
imposes separate and individual liability, we also hold that it
bars contribution or indemnification between codefendants. See
Ferris, 967 F.2d at 957-58 (reversing district court's reduction of
award due to settlement of claims against codefendants); Mataya v.
Behm Motors Inc., 409 F. Supp. 65, 70 (E.D. Wis. 1976) ("[t]his
phenomenon of separate and individual liability precludes recovery
on a cross-claim based on indemnification or contribution"). Thus,
Laurel should have been precluded from pressing its counterclaim
against the Langers as it merely sought indemnification.
Accordingly, we vacate the judgment in favor of Laurel and against
the Langers under count II of Laurel's counterclaim for statutory
odometer fraud.
F. Attorney Fees
The Langers' final issue on appeal concerns the propriety of
the trial court's award of attorney fees to plaintiff. The Langers
first contend that the trial court was without jurisdiction to
entertain plaintiff's fee petition. The Langers assert that the
fee petition, filed on February 2, 1995, was filed more than 30
days after the final judgment, the date of which the Langers claim
to have been November 4, 1994, the date the jury verdicts were
returned.
The Langers' argument is patently frivolous and baseless in
the record. The record plainly shows that the trial court ruled on
the Langers' post-trial motion on January 17, 1995. The trial
court further ordered that "plaintiff shall have 21 days to file a
petition for attorney fees." Plaintiff timely filed her petition
for attorney fees on February 2, 1995, 16 days after the entry of
final judgment. We thus reject the Langers' first contention.
The Langers next contend that the trial court should not have
granted plaintiff's request for attorney fees because plaintiff
failed to distinguish the time spent on each count of the
complaint. We disagree.
The trial court found that the hourly rates charged by
plaintiff's attorneys were reasonable and that the times spent on
the various tasks were appropriate. Our review of the record
reveals no objection by the Langers either to the rates charged,
the times spent performing various tasks, or the necessity of any
of the specific tasks performed by plaintiff's attorneys.
Moreover, the trial court found that all the claims were
inextricably intertwined, and the Langers did not dispute this
finding. Accordingly, we find no error in the trial court's award.
We point out, too, that the trial court adjusted the award to
reflect the time spent on the claim against the Langers by limiting
the award to fees incurred up until the summary judgment against
the Langers.
"Nonpublishable material omitted under Supreme Court Rule 23.
III. Plaintiff's Cross-Appeal
On cross-appeal, plaintiff objects to the trial court's
finding that the fee agreement was in violation of the Rules of
Professional Conduct and that it created a proprietary interest in
the litigation. After careful review, however, we conclude that
plaintiff lacks standing to challenge the trial court's finding
that her counsel committed an ethical violation. Northern Trust
Co. v. Brentwood North Nursing & Rehabilitation Center, Inc., 225
Ill. App. 3d 1039, 1041 (1992) ("plaintiff does not have standing
to raise arguments relating to the detriment suffered by its
attorneys from the order because [attorneys] did not file a notice
of appeal"). We note that this finding does not mean that
plaintiff may not challenge her counsel regarding the propriety of
the fee agreement in another forum.
IV. Bank's Motion to Dismiss
The Bank filed a motion to dismiss Laurel's appeal as it
related to the Bank which we ordered taken with the case. The
arguments advanced in that motion were substantially similar to
those raised in its brief on appeal. Accordingly, we choose to
deny the Bank's motion and resolve its arguments in the context of
this appeal.
CONCLUSION
In summary, then, we affirm the judgment of the trial court as
regards Laurel in all respects. We also affirm the trial court's
judgment as regards the Langers in all respects with the following
modifications: satisfaction of the statutory odometer fraud
judgments against each Langer individually will satisfy the common-
law fraud judgments in favor of plaintiff and against the Langers,
and we vacate the judgment in favor of Laurel and against the
Langers under count II of Laurel's counterclaim for statutory
odometer fraud. Thus, Laurel must pay $2,600 ($7,754.48 less
$5,154.48) in satisfaction of the judgment in favor of plaintiff
against Laurel; and Laurel must pay $9,483.93 in satisfaction of
the judgment for the Bank against Laurel. The Bank, by stipulation
of all parties, has already satisfied the $5,154.48 judgment in
favor of plaintiff against the Bank. Robert Langer must satisfy
the $6,000 judgment in favor of plaintiff and against him for
violation of the Federal Odometer Act; all remaining judgments
against him are vacated. Diana Langer must satisfy the $6,000
judgment in favor of plaintiff and against her for violation of the
Federal Odometer Act; all remaining judgments against her are
vacated. For the foregoing reason, the judgment of the circuit
court of Du Page County is affirmed as modified.
Affirmed as modified.
BOWMAN and RATHJE, JJ., concur.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
LINDA MAJCHER, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee and )
Cross-Appellant, )
)
v. ) No. 91--L--2297
)
LAUREL MOTORS, INC.; ROBERT A. )
LANGER and DIANA M. LANGER, Indiv., )
)
Defendants-Appellants and )
Cross-Appellees ) Honorable
) Edward R. Duncan, Jr.,
(Beverly Bank, Defendant-Appellee). ) Judge, Presiding.
JUSTICE INGLIS delivered the opinion of the court:
The facts of this case arose when plaintiff, Linda Majcher,
purchased a car with a tampered odometer from defendant Laurel
Motors, Inc. (Laurel). Plaintiff subsequently sued Laurel as well
as the previous owners, defendants Robert and Diana Langer
(Langers), and the financing institution, defendant Beverly Bank
(Bank). Following a jury trial at which Laurel was found liable to
plaintiff for damages of $7,754.48 and attorney fees and costs of
$44,807.41, and the Langers were found liable to plaintiff for
damages of $12,000 and attorney fees and costs of $32,876.41,
Laurel and the Langers appealed. Plaintiff cross-appealed from the
judgment of the trial court finding her contingent fee agreement to
be unlawful. We affirm as modified.
BACKGROUND
The facts of this case, as opposed to the multitudinous legal
arguments, are relatively straightforward. In August 1989, the
Langers purchased a used Cadillac in Arizona for between $7,500 and
$8,000. At the time of purchase, the odometer read over 80,000
miles. The Langers testified that, as they drove their car back to
Illinois, they noticed that the odometer ticked and ran in reverse.
On December 27, 1989, the Langers sold the car to Laurel for
$9,995 as a trade-in for the purchase of another vehicle. The
Langers signed an odometer disclosure statement certifying that the
odometer reading of 35,011 miles was accurate. Conflicting
testimony was presented on this point. The Langers testified that
they told Laurel that the odometer had been rolling back during
their drive from Arizona; Laurel averred that it had no knowledge
of the low odometer reading.
Plaintiff purchased the vehicle from Laurel on January 6,
1990. At that time, Laurel signed another odometer disclosure
statement certifying that the odometer reading of 35,093 miles was
accurate. Plaintiff purchased the car for a total of $10,197.
Laurel assigned the approximately $7,500 loan to the Bank, and
plaintiff thereafter made her car payments to the Bank.
After purchasing the car, plaintiff began to experience some
problems which were not covered by the warranty. She investigated
the title history of the car and learned that the odometer had been
altered. She then sued Laurel, the Langers, and the Bank, seeking
damages under a variety of theories.
In counts I through VI of her amended complaint, plaintiff
sought damages from Laurel for breach of express and implied
warranty under the Magnusson-Moss Act (counts I and II), revocation
of acceptance of the contract (count III), consumer fraud (count
IV), common-law fraud (count V), and violation of the federal Motor
Vehicle Information and Cost Savings Act (15 U.S.C.A. 1981 et seq.
(West 1982)) (Federal Odometer Act) (count VI). Plaintiff sought
damages from the Langers for violation of the Federal Odometer Act
(count VII) and common-law fraud (count VIII). Finally, plaintiff
sought to revoke the retail installment agreement against the Bank
(count IX). Laurel filed a third-party action against the Langers
under the Federal Odometer Act. The Bank cross claimed against
Laurel, seeking revocation of the auto loan. Plaintiff continued
to drive the car after this case was filed for another 39,500
miles.
Approximately nine months before trial, Laurel offered to
settle the case for $10,000. Plaintiff refused the offer.
On November 4, 1994, after a jury trial, the following
verdicts were entered: (1) a general verdict for plaintiff against
Laurel for $750; (2) verdicts for plaintiff against Robert Langer
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud; (3) verdicts for plaintiff against Diana Langer
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud; and (4) a verdict for Laurel against the Langers
for $6,000 based on statutory odometer fraud and $6,000 based on
common-law fraud. Additionally, the court took plaintiff's
consumer fraud claim (count IV) under advisement. The jury
assessed no punitive damages in this matter.
On November 29, 1994, the trial court entered judgment for
plaintiff and against Laurel based on plaintiff's consumer fraud
claim, which rescinded plaintiff's purchase of the automobile and
awarded plaintiff $7,754.58 in damages. The court further ordered
the Bank to return to plaintiff the $5,154.78 she had paid on the
auto loan and ordered Laurel to pay $9,483.93 to the Bank. The
court also stated that if Laurel paid the amount to plaintiff, it
would be in satisfaction of the judgment for the Bank and against
Laurel.
Laurel filed a notice of appeal, but we dismissed the appeal
on September 13, 1995, as premature because issues regarding
attorney fees had not been settled in the trial court. Those
issues were settled on January 18, 1996, when the trial court found
that plaintiff's contingent fee agreement with her attorneys was
unethical and violated the rules of professional conduct.
Nevertheless, the court awarded plaintiff nearly $45,000 in
attorney fees and costs against Laurel and nearly $33,000 in
attorney fees and costs against the Langers pursuant to statute.
Defendants' timely appeals followed.
ANALYSIS
Nonpublishable material omitted under Supreme Court Rule 23.
I. Laurel Appeal
Turning to the merits of the various appeals, we will first
consider the issues raised by Laurel on appeal. Laurel raises, in
essence, five issues on appeal: (1) whether the doctrine of
election of remedies operates to void the judgment under the
Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud
Act) (815 ILCS 505/1 et seq. (West 1994)); (2) whether Laurel could
be restored to its position status quo ante by rescinding the
contract; (3) whether plaintiff will receive duplicative
rescissionary damages; (4) whether the judgment in favor of Laurel
and against the Langers should be modified to award Laurel its
total damages; and (5) whether attorney fees were properly awarded
to plaintiff.
A. Election of Remedies
In its first issue on appeal, Laurel argues that the judgment
under the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 1994))
should be vacated under the election of remedies doctrine because
plaintiff elected to receive actual damages under her common-law
fraud claims. According to Laurel, plaintiff's choice to enter
judgment on her fraud claims represents an affirmance of the
contract which bars plaintiff from accepting rescissionary damages
later. Laurel believes that the judgment on plaintiff's fraud
claims entered on November 4, 1994, is separate from the judgment
on plaintiff's Consumer Fraud Act claims entered on November 29,
1994. Laurel further contends that the November 4 judgment
represents actual damages in affirmance of the contract and that
the November 29 judgment represents rescissionary damages in
disaffirmance of the contract. Accordingly, Laurel contends that
the election of remedies doctrine bars plaintiff from collecting
damages on both judgments. While we acknowledge that plaintiff may
not receive a double recovery, we disagree with Laurel's
contentions.
We first provide an overview of the doctrine of election of
remedies.
"The doctrine of election of remedies is applicable where
a party has elected inconsistent remedies for the same injury
or cause of action. [Citations.] The prosecution of one
remedial right to judgment or decree constitutes an election
barring subsequent prosecution of inconsistent remedial
rights. [Citations.] For instance, a remedy based on the
affirmance of a contract (e.g., damages) is generally
inconsistent with one based on the disaffirmance of the
contract (e.g., rescission). [Citations.] Thus, the election
of either remedy is an abandonment of the other." Lempa v.
Finkel, 278 Ill. App. 3d 417, 423-24 (1996).
Laurel's argument, that the order of November 29, 1994, represents
a separate and subsequent action to the order of November 4, 1994,
simply misses the mark.
The order of November 4, 1994, stated that the trial court
took "the cause of action brought by [plaintiff] against [Laurel]
pursuant to the Illinois Consumer Fraud Act" under advisement. The
November 29, 1994, order renders the trial court's judgment arising
from the trial which concluded on November 4, 1994. The November
29, 1994, order does not, therefore, represent a "subsequent
prosecution of inconsistent remedial rights" (Lempa, 278 Ill. App.
3d at 424); rather, the order is simply the final resolution of the
combined bench and jury trial begun earlier. Thus, there is no
subsequent prosecution of an inconsistent remedial right.
Accordingly, for this reason, the doctrine of election of remedies
is not applicable to the case before us.
The cases relied upon by Laurel are distinguishable. Laurel
offers Lempa as the latest case stating the well-settled
proposition that the "prosecution of one remedial right to judgment
or decree constitutes an election barring subsequent prosecution of
inconsistent remedial rights." Lempa, 278 Ill. App. 3d at 424.
While this is an accurate statement of the law, the particular
facts of Lempa do not provide support for its application to the
facts of our case. In Lempa, a previous action rescinded a
building lease between the parties. Four months later another
action was instituted in which the former leaseholder sought to
recover damages for breach of the lease. Lempa, 278 Ill. App. 3d
at 421. The court concluded that the action sought relief based on
the breach of the rescinded lease and that the damages were
compensatory not rescissionary. The second action was therefore
precluded by the doctrine of election of remedies. Lempa, 278 Ill.
App. 3d at 427. Here, there is no "subsequent prosecution" of an
inconsistent action, nor is there a prior award of inconsistent
damages. Thus, Lempa, and its progenitors, are inapposite.
Laurel next asserts that the general verdict for $750 and the
verdicts against the Langers are damages in affirmance of the
contract and that the consumer fraud verdict for $7,754.48 is for
rescissionary damages. According to Laurel, these are inconsistent
and barred by the election of remedies doctrine. We disagree.
Plaintiff asserts that she sought rescission of the contract
in all of the counts of her amended complaint. While not strictly
true, we note that the $750 verdict was a general verdict covering
plaintiff's fraud, revocation, and implied warranty claims. "The
return of a general verdict creates a presumption that all issues
of fact upon which proof was offered were found in favor of the
prevailing party." Klingler Farms, Inc. v. Effingham Equity, Inc.,
171 Ill. App. 3d 567, 572 (1988). We cannot say that the jury
rejected one or more of plaintiff's claims in rendering its general
verdict. Moreover, we are unpersuaded by Laurel's analysis that
the amount of the general verdict is unrelated to the damages for
revocation of acceptance as the amount of the verdict is within the
discretion of the jury. Urban v. Zeigler, 261 Ill. App. 3d 1099,
1102 (1994). Additionally, we note that no challenge to the
propriety of the amount of the general verdict has been raised.
Laurel's resort to the verdict against the Langers is
similarly unpersuasive. The jury found the Langers liable for
$6,000 on plaintiff's common-law fraud claim. The amount of a
verdict is within the jury's discretion, and we will not indulge in
speculation about the jury's intent in choosing this amount.
Accordingly, we cannot say that the verdicts in this case are
inconsistent.
B. Status Quo
Laurel's second issue on appeal is that the rescission of the
purchase contract failed to restore it to the position it occupied
before the contract. Specifically, Laurel contends that it was
entitled to the car if it had to refund plaintiff's purchase price.
Laurel asserts, however, that plaintiff continued to drive the car
until it was worthless, and the return of the car cannot restore it
to its position before the contract. Laurel thus argues that it is
entitled either to vacate the rescission award or to modify it to
reflect the benefit plaintiff derived from her continued use of the
car.
The remedy of rescission requires the cancellation of the
contract and the restoration of the parties to their status before
contracting. Felde v. Chrysler Credit Corp., 219 Ill. App. 3d 530,
542 (1991). Not only must any consideration or property received
by the rescinding party be returned, but the rescinding party must
also account for any benefits it received from the other party
under the contract. Puskar v. Hughes, 179 Ill. App. 3d 522, 528
(1989).
Laurel's argument boils down to a contention that it is due a
setoff for the benefit plaintiff derived from driving the car
nearly 39,500 miles after she purchased it. Laurel contends that,
while it had to return plaintiff's payments on the car, the trial
court erred by failing to award it a setoff for the benefit
plaintiff enjoyed from driving the car. We disagree.
The trial court specifically found that "[t]here was no proof
as to the value of the mileage driven." Indeed, plaintiff
testified that the car ran terribly from the time she purchased it,
was unsafe, and was frequently in need of repair. From this
testimony, the trial court could reasonably conclude that the value
to plaintiff was negligible. Accordingly, we find no abuse of
discretion in the trial court's decision not to award a setoff.
Laurel asserts that the value of the benefit to plaintiff was
the 19 payments she made on the contract. Laurel argues that,
during the period in which plaintiff continued to drive the car,
she continued to make payments, discontinuing the payments in
October 1991, when the car stopped running. Accordingly, Laurel
contends that its damages should be reduced by the value of those
19 payments, or $4,897.06. Again, we disagree.
Rescission was granted under plaintiff's statutory consumer
fraud action. This action was tried to the court in a bench trial
proceeding simultaneously with the jury trial. Accordingly, the
trial court was the finder of fact. In deciding what value to
attach to the mileage, the trial court could accept plaintiff's
testimony about how the car performed and her aggravation and
inconvenience. Additionally, the court noted that there was no
testimony offered concerning the value of the mileage. The court's
decision not to award a setoff is not against the manifest weight
of the evidence and accordingly will not be disturbed on review.
C. Duplication of Damages
Laurel's next issue on appeal is whether the trial court has
awarded plaintiff duplicative damages. Laurel argues that the
damages awards, specifically the rescissionary awards, must be
modified to avoid giving a windfall to plaintiff.
On November 29, 1994, the trial court entered a series of
judgments. It first entered a judgment for plaintiff and against
Laurel in the amount of $7,754.48, representing a down payment of
$2,600 made to Laurel and payments of $5,154.48 made by plaintiff
to the Bank. The trial court also entered judgment for plaintiff
against the Bank in the amount of $5,154.48, representing the
payments plaintiff made to the Bank on her car loan. Additionally,
the trial court's order provided that Laurel's satisfaction of the
judgment it owed to plaintiff would satisfy the judgment of
plaintiff against the Bank. The trial court also entered a
judgment for the Bank against Laurel, pursuant to an agreement
between the Bank and Laurel, in the amount of $9,483.93,
representing the $5,154.48 plaintiff paid to the Bank and the
$4,329.45 remaining outstanding on plaintiff's auto loan.
Laurel argues that the judgment orders of November 29, 1994,
entitle plaintiff to receive only $7,754.48 in rescissionary
damages. We agree. Laurel also asserts that it should not have to
pay plaintiff $5,154.48 of the judgment against it because the Bank
has already satisfied that portion of the judgment. We agree. All
parties stipulated at oral argument that the Bank had satisfied the
$5,154.48 judgment against it in favor of plaintiff. Thus, Laurel
is entitled to a setoff for that amount and need pay plaintiff only
$2,600 in order to satisfy plaintiff's judgment against Laurel.
Laurel also appears to contend that it should not be liable
for the judgment entered in favor of the Bank and against Laurel.
We disagree.
The Bank's judgment against Laurel was the product of an
agreement between the Bank and Laurel. Such an agreed order is
"conclusive on the parties and can be amended or set aside by one
of the parties only upon a showing that the order resulted from
fraudulent misrepresentation, coercion, incompetence of one of the
parties, gross disparity in the position or capacity of the
parties, or newly discovered evidence." In re Haber, 99 Ill. App.
3d 306, 309 (1981). Laurel has raised no objection to the agreed
judgment order between it and the Bank below, nor does it raise any
of the above-enumerated grounds on appeal. Accordingly, we will
not disturb the judgment of the trial court. Thus, Laurel is to
satisfy plaintiff's judgment for rescission, and Laurel must honor
its agreement to indemnify the Bank for the funds of the auto loan
it had contracted to receive.
Nonpublishable material omitted under Supreme Court Rule 23.
E. Attorney Fees
Laurel's final issue on appeal is whether the trial court
properly awarded attorney fees. At the outset, we note that
Laurel's argument is directed solely toward the award of attorney
fees to plaintiff. Additionally, Laurel made no objection to the
award of attorney fees to the Bank before the trial court.
Accordingly, we deem this issue waived with respect to the Bank.
Laurel initially argues that the trial court abused its
discretion by awarding attorney fees to plaintiff. Section 10a(c)
of the Consumer Fraud Act provides that the trial court may award
attorney fees to the prevailing party. 815 ILCS 505/10a(c) (West
1994) The decision whether attorney fees should be awarded to the
prevailing party rests within the sound discretion of the trial
court. Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d
94, 114 (1994). Among the factors the trial court will consider in
deciding whether to award attorney fees are the degree of the
opposing party's bad faith; the opposing party's ability to satisfy
the fee award; the deterrent value of a fee award; whether the
party requesting fees sought to benefit all consumers or businesses
or to resolve a significant legal issue under the Consumer Fraud
Act; and the relative merits of the parties' positions. Graunke v.
Elmhurst Chrysler Plymouth Volvo, Inc., 247 Ill. App. 3d 1015,
1022-23 (1993).
Laurel claims that it did not act in bad faith in selling
plaintiff a vehicle with a tampered odometer. Laurel further
blames the Langers for defrauding it, contending its reliance on
the Langers' representations was reasonable and justifiable.
Because bad faith is often a controlling factor in the
determination to award attorney fees (see Graunke, 247 Ill. App. 3d
at 1023), according to Laurel, its lack of bad faith should have
precluded an award of attorney fees to plaintiff. Laurel also
argues that "innocently misrepresent[ing] the odometer reading" can
never be deterred by awarding attorney fees and that all the other
Graunke factors are either not present or in Laurel's favor.
Laurel's claim has no merit.
Contrary to Laurel's representations, the trial court found
that plaintiff had presented credible evidence "that the digits on
the odometer were not properly aligned and the car showed a great
deal of wear" leading to the conclusion that "a reasonable
inspection by Laurel *** should have alerted it to the
malfunctioning odometer." Or, in other words, Laurel essentially
closed its eyes to the true condition of the car in making its
statements to plaintiff regarding the mileage of the car. We fail
to see how Laurel can possibly characterize its actions as being in
"good faith." Additionally, the court specifically noted that
"since odometer fraud is a recurring problem within this country,
hopefully the award of attorney[] fees will deter such conduct in
the future." Thus, we find no abuse of discretion in the court's
findings under Graunke.
Even if Laurel's actions can somehow be said to have been
conducted with good faith, the Consumer Fraud Act does not require
bad faith as a prerequisite to an award of attorney fees. Grove v.
Huffman, 262 Ill. App. 3d 531, 539 (1994) ("Section 10a(c) of the
Act applies to cases involving innocent misrepresentations");
Haskell v. Blumthal, 204 Ill. App. 3d 596, 602 (1990) ("attorney
fees may, at times, be awarded plaintiffs without bad faith on the
part of defendants"). We hold, therefore, that the trial court did
not abuse its discretion in awarding plaintiff attorney fees.
Laurel next contends that the contingent fee agreement
executed between plaintiff and her counsel was unethical and,
therefore, should preclude the award of attorney fees to plaintiff.
Laurel fails, however, to provide any authority to support its
argument, in violation of Supreme Court Rule 341(e)(7) (155 Ill. 2d
R. 341(e)(7)). "Arguments made without citation of supporting
authority are deemed waived on appeal. [Citation.] The party who
thus waives the question is bound by his waiver, but the court,
which has the responsibility of reaching a just decision, is not so
bound." In re Marriage of Winters, 160 Ill. App. 3d 277, 281
(1987). Accordingly, we address this issue.
Laurel contends that the trial court's ruling that plaintiff's
fee agreement with her counsel created a proprietary interest in
the lawsuit in violation of Rule 1.8 of the Rules of Professional
Conduct (134 Ill. 2d R. 1.8) should preclude the award of attorney
fees because of the conflict of interest such a fee agreement
causes. We note that we do not reach the issue of whether the fee
agreement creates a proprietary interest in the litigation as the
attorney fees were properly allowed even if there is a proprietary
interest. We agree with the trial court that the defendants were
not "the intended beneficiaries of Rule 1.8." See Topps v. Pratt
& Callis, P.C., 206 Ill. App. 3d 298, 301 (1990) (harm from
unethical agreement was "to the administration of justice and
society at large because of the breach of the Code of Professional
Responsibility"). Moreover, the infirmities of the fee agreement
are more properly resolved by an action between plaintiff and her
counsel and are not the concern of Laurel.
We also note that Laurel, as well as plaintiff in responding
to Laurel's argument, have properly placed the fee agreement before
us for consideration. The agreement states, in part:
"The Undersigned Client agrees to pay said attorneys a
sum equal to 33 % (percent) of all amounts collected or
otherwise recovered. *** It is also agreed that any
attorneys [sic] fees awarded by the Court against the
defendant, are in addition to the fees payable by client, and
are outside this contact and will go directly to [counsel]."
The above-quoted clauses of the fee agreement are mutually
exclusive. Plaintiff's counsel cannot collect both its contingent
fee as well as an hourly fee. To do so would be to collect a
double payment--something which this court, and the Rules of
Professional Conduct, will not countenance.
Additionally, we note that plaintiff's counsel applied for,
and received, statutory attorney fees at a reasonable hourly rate
(which presumptively includes a reasonable profit margin) that
fully compensates counsel for the time spent on the resolution of
this matter. The purpose of the statutory fee award is to benefit
the plaintiff by allowing the plaintiff to obtain counsel in order
to pursue redress for relatively small claims. In light of that
purpose, we will not allow counsel to collect the contingent fee as
well as its reasonable hourly fee because this would work to the
detriment of the plaintiff. Accordingly, we hold that under the
fee agreement plaintiff's counsel is entitled to the statutory
attorney fees awarded by the trial court and no more. Plaintiff is
entitled to the full amount of the judgments entered in her favor.
Laurel's final contention is that its settlement offer should
act to limit the amount of attorney fees which may be awarded.
Laurel argues that it offered plaintiff $10,000 to settle the case
on January 28, 1994, which was later rejected by plaintiff. Laurel
asserts that plaintiff's judgment was less than the settlement
offer, prompting Laurel to conclude that any award of attorney fees
must be limited to those fees incurred before January 28, 1994, the
date of its settlement offer. The trial court rejected Laurel's
argument, holding that the word "judgment" in the Consumer Fraud
Act (815 ILCS 505/10a(f) (West 1994)) must "include the monetary
amount of costs and attorney[] fees awarded." We agree with the
trial court.
The fee-shifting portion of the Consumer Fraud Act provides,
in pertinent part:
"At any time more than 30 days before the commencement of
trial, a party, who is a new vehicle dealer or used vehicle
dealer *** and who is defending a claim under this Act, may
serve upon the party seeking relief under this Act an offer to
allow judgment to be taken against the defending party to the
effect specified in the offer with costs then accrued. ***
When a party seeking relief under this Act does not accept an
offer *** and when that party fails to obtain a judgment in an
amount more than the total offer of settlement, that party
shall forfeit and the court may not award any compensation for
attorney's fees and costs incurred after the date of the
offer." 815 ILCS 505/10a(f) (West 1994).
Laurel contends that "[s]tatutes in derogation of the common
law prohibition of attorney-fee awards to prevailing parties must
be strictly construed." Greenview AG Center, Inc. v. Yetter
Manufacturing Co., 246 Ill. App. 3d 132, 140 (1993). Thus,
according to Laurel, interpreting the word "judgment" to include
attorney fees would violate this rule. Accordingly, Laurel
believes that attorney fees cannot be included in order to
determine whether a judgment exceeds a settlement offer.
Laurel overlooks the fact that the legislature has mandated
that the Consumer Fraud Act "shall be liberally construed to effect
the purposes thereof." 815 ILCS 505/11a (West 1994). "[O]ne of
the purposes of allowing attorney fees to be awarded under section
10a(c) [of the Consumer Fraud Act] to prevailing parties is to
encourage consumers to bring actions to vindicate their rights
under the Act. [Citation.] Without such a provision, it would be
difficult for injured consumers to obtain counsel in light of the
sums of money that are in dispute in most consumer fraud
litigation." Totz v. Continental Du Page Acura, 236 Ill. App. 3d
891, 910 (1992).
We must, therefore, construe the term "judgment" to include
attorney fees. This conclusion is further bolstered by the fact
that the judgment in this case was not final until the petition for
attorney fees had been ruled upon. Cf. Cashmore v. Builders
Square, Inc., 207 Ill. App. 3d 267 (1990) (order dismissing
complaint with prejudice not final and appealable until ruling on
timely filed petition for sanctions is made). Accordingly, we do
not find that the court abused its discretion in determining the
amount of the fee award.
II. Langer Appeal
We next consider the issues raised by the Langers on appeal.
The Langers raise six issues on appeal: (1) whether the trial
court erred by granting plaintiff summary judgment on her Federal
Odometer Act count; (2) whether the jury was properly instructed
about the burden of proof and measure of damages for plaintiff's
common-law fraud count; (3) whether damages under the Federal
Odometer Act should have been joint and several and not individual
to the Langers; (4) whether the common-law fraud damages should
have been remitted to $2,000; (5) whether the damages on Laurel's
counterclaim should have been remitted to $750; and (6) whether
plaintiff should have been awarded attorney fees.
A. Summary Judgment
In their first issue on appeal, the Langers contend that the
trial court erroneously granted summary judgment in favor of
plaintiff on the issue of liability under the Federal Odometer Act.
The Langers assert that there was a genuine issue of material fact
concerning the issue of their intent to defraud. They argue that
the fact that they submitted to the Illinois Secretary of State an
Arizona title indicating that the odometer reading of the car may
not have been accurate undercuts the trial court's conclusion that
they intended to defraud under the Federal Odometer Act. We
disagree.
Summary judgment is properly granted if the pleadings,
depositions, and admissions on file, together with any affidavits,
show there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. 735 ILCS
5/2--1005(c) (West 1994); Leschinski v. Forest City Steel Erectors,
243 Ill. App. 3d 124, 127 (1993). In ruling on the motion, the
court is required to construe all evidentiary material strictly
against the movant and liberally in favor of the respondent.
Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 908
(1994).
The propriety of an order granting summary judgment is a
question of law, and, as such, we review such orders de novo.
Pagano, 257 Ill. App. 3d at 909. If, after reviewing the pleadings
and evidentiary material before the trial court, the reviewing
court determines that a material issue of fact exists or that the
summary judgment was based on an erroneous interpretation of the
law, then reversal is warranted. Pagano, 257 Ill. App. 3d at 909.
Our review of the evidence that existed at the time the motion
for summary judgment was pending convinces us that the trial court
correctly granted summary judgment. The Federal Odometer Act
imposes liability on "[a]ny person who, with intent to defraud,
violates any requirement" of the statute. 15 U.S.C.A. 1989(a)
(West 1982). The transferor's intent to defraud "may be inferred
from a showing of gross negligence or of a reckless disregard of
facts indicating the vehicle's odometer is incorrect." Hall v.
Riverside Lincoln Mercury--Sales, Inc., 148 Ill. App. 3d 715, 720
(1986).
It is undisputed that the Langers knew that the odometer
reading was in error. It is likewise undisputed that the Langers
transferred their Illinois title to Laurel, signing the odometer
certification which listed the odometer reading at 35,011. The
Langers did not indicate that the reading might have been
inaccurate in the space provided. From these facts, the trial
court properly concluded that the Langers, at best, recklessly
disregarded the erroneous odometer reading in certifying its
accuracy. We hold, therefore, that the trial court properly
granted summary judgment on the odometer fraud count.
The Langers contend that Walt Bennett Ford, Inc. v. Goyne, 969 F.2d 603 (8th Cir. 1992), undercuts the trial court's finding of
intent under the odometer fraud count. There, the court held that
the dealer, Walt Bennett Ford, was equitably estopped from
prosecuting an odometer fraud action because the seller had
disclosed that the odometer reading was not accurate and thus
lacked the requisite intent to defraud. Walt Bennett Ford, 969 F.2d at 604-05. Similarly, the Langers assert that their
disclosure of the inaccuracy of the odometer to Laurel, as well as
the Secretary of State, indicates that they did not possess the
intent to defraud under the statute. We remain unpersuaded.
Whether the Langers may have questioned the accuracy of the
odometer statement to Laurel does not contradict the fact that the
Langers certified the odometer reading to be 35,011 when they
assigned their title to Laurel and did not indicate that the
odometer reading was inaccurate. Walt Bennett Ford is simply
inapposite to the facts of this case. Accordingly, summary
judgment on the issue of liability under the Federal Odometer Act
was appropriate.
B. Jury Instructions
The Langers' next issue on appeal is whether the jury was
properly instructed concerning the burden of proof and the measure
of damages in plaintiff's common-law fraud claim against them. We
first consider the Langers' contentions regarding the burden of
proof instructions.
Nonpublishable material omitted under Supreme Court Rule 23.
2. Measure of Damages
The Langers next dispute the jury instruction given on the
measure of damages. It stated, in pertinent part, that plaintiff
was to be compensated for "[a]ll amounts paid on the automobile."
Plaintiff's jury instruction No. 36--A; see Illinois Pattern Jury
Instructions, Civil, No. 30.01 (3d ed. 1995) (modified). The
Langers contend that the trial court erred by giving plaintiff's
instruction. Moreover, the Langers assert that the proper measure
of damages is "the difference between the actual value of the
property sold and the value the property would have had if the
representations had been true" (Gerill Corp. v. Jack L. Hargrove
Builders, Inc., 128 Ill. 2d 179, 196 (1989)), and that the trial
court erred by refusing to give defendants Langers' jury
instruction No. 1.
Jury instructions provide jurors with the correct principles
of law applicable to the evidence which has been submitted to them.
Gaines v. Townsend, 244 Ill. App. 3d 569, 576 (1993). The trial
court has the discretion to decide which issues have been raised by
the evidence and which instructions will be read to the jury.
Gaines, 244 Ill. App. 3d at 576. On review, we will grant a new
trial only where a party shows it has suffered serious prejudice to
its right to a fair trial due to the trial court's failure to read
a tendered jury instruction. Gaines, 244 Ill. App. 3d at 576.
Here, the Langers do not argue that they have been prejudiced
by the trial court's refusal of their tendered jury instruction No.
1. Moreover, we have examined the record and find the trial court
did not abuse its discretion. The court stated that the
rescissionary damages plaintiff sought under her fraud count
against the Langers were allowed by In re Estate of Neprozatis, 62
Ill. App. 3d 563, 570 (1978). Further, the court stated that the
measure of damages, return of consideration, was accurately stated
by "all amounts paid on the automobile." We agree, and,
accordingly, hold that the trial court did not err in refusing the
Langers' tendered jury instruction No. 1.
C. Joint and Several Liability
In their next issue on appeal, the Langers contend that the
trial court erroneously entered judgment on each of the odometer
fraud verdicts returned against Robert and Diana individually.
They assert that under the Federal Odometer Act liability is joint
and several. They argue this means that the trial court should
have modified the verdict to reflect their joint and several
liability for $6,000, rather than the individual and separate
liability of $6,000 for each of them.
Plaintiff responds by asserting that the trial court's
judgment was proper. Plaintiff first analogizes the Langers'
prayer for relief to a situation where one codefendant is seeking
contribution from another. Plaintiff contends that, under the
Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West
1994)), joint and several liability is not allowed for intentional
tortfeasors. Plaintiff argues that the intent to defraud under the
federal statute renders the Langers' actions an intentional tort.
Accordingly, plaintiff concludes that the Langers should not be
jointly and severally liable and that the court's judgment was
correct.
Plaintiff also contends that the better reasoned of the
federal odometer fraud decisions do not allow defendants to be
jointly and severally liable. Thus, according to plaintiff, the
trial court followed the correct reasoning in deciding to impose
individual liability on Robert and Diana for each Langer's
violation of the federal statute. We agree with plaintiff on this
point.
The parties, as well as our own research, have uncovered no
Illinois cases directly on point. We therefore turn to the federal
cases which have considered the issue of whether liability under
the Federal Odometer Act is joint and several. We find two
competing lines of authority: the United States Court of Appeals
for the Fourth Circuit concluded that the plain language of the
statute imposed separate and individual liability upon defendants
in Ferris v. Haymore, 967 F.2d 946, 955-56 (4th Cir. 1992); but the
United States Court of Appeals for the Sixth Circuit held that the
statute permitted joint and several liability in Rice v. Gustavel,
891 F.2d 594, 596 (6th Cir. 1989). We believe Ferris to be the
better reasoned analysis and, accordingly, follow the lead of the
fourth circuit in holding that the Langers are separately and
individually liable for the judgment entered against them under the
odometer fraud count.
Ferris arose from a suit against two auto dealerships in the
chain of title of a car with a rolled-back odometer. In its
analysis of whether to apply joint and several liability, the court
initially considered the plain language of section 1989(a), stating
that the statute "imposes treble damage liability on '[a]ny person
who, with intent to defraud, violates any requirement imposed under
this subchapter.' " (Emphasis in original.) Ferris, 967 F.2d at
955, quoting 15 U.S.C. 1989(a). The court next criticized the
premises of the sixth circuit's holding in Rice:
"That court did not even purport to rest its decision *** on
the terms of the statute. It simply stated that '[t]he fact
that each such person shall be liable . . . does not
necessarily preclude the conclusion that liability is to be
joint and several, rather than separate and individual.'
[Rice,] 891 F.2d at 596 (emphasis added). Then, without
analysis, the court invoked the common law rule that
'[l]iability for tortious conduct is normally joint and
several' in holding that the federal odometer statute does not
permit a plaintiff to recover the full measure of damages
against each defendant. [Rice, 891 F.2d] at 597.
We do not believe that this holding can be reconciled
with the plain terms of the odometer statute. *** The
statute *** provides to victims of odometer fraud a cause of
action against each violator of the statute [and] expressly
provides that each violator will be liable for treble or
statutory damages." Ferris, 967 F.2d at 956.
The court further disagreed with the Rice court for importing the
common-law principle of joint and several liability into this
statutory section, noting that congress was well able to explicitly
provide for joint and several liability in various statutory
schemes when it wished. Ferris, 967 F.2d at 956-57.
We acknowledge that the case at bar differs from Ferris in the
important respect that there was not the successive fraudulent
transfer of title from Robert to Diana. This does not, however,
change our analysis. We note that Robert and Diana were each found
to be individually liable for a violation of the Federal Odometer
Act. This, therefore, renders the instant case indistinguishable
from Ferris. Therefore, Robert and Diana are separately and
individually liable for each one's violation of the Federal
Odometer Act.
We also note that the Langers' arguments are untimely made.
The Langers did not object to the verdict forms sent to the jury
listing Robert and Diana separately under the odometer fraud count.
A timely objection interposed at that time would have alleviated
the Langers' present disappointment. Accordingly, we hold that the
trial court did not err by imposing separate and individual
liability upon each of the Langers.
D. Remittitur of Fraud Damages to $2,000
The Langers next argue that "Nonpublishable material omitted
under Supreme Court Rule 23." the trial court should have, in any
event, provided that the payment of the odometer fraud claim also
be in satisfaction of the common-law fraud claim. "Nonpublishable
material omitted under Supreme Court Rule 23."
Next, the Langers contend that the trial court should have
provided in its order that the satisfaction of the odometer fraud
judgment would also satisfy the common-law fraud judgment, because
to allow recovery on both judgments would be to allow plaintiff to
recover twice for a single harm. We note, however, that the
Langers failed to raise this issue in their post-trial motion and
have thus waived the issue for review. Doe v. Lutz, 281 Ill. App.
3d 630, 641 (1996). Nevertheless, we consider the issue, as waiver
is a limitation on the parties and not the reviewing court.
Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11
(1996).
The Langers' position is clearly correct. Plaintiff is able
to cite no authority which would allow plaintiff to collect damages
for both common-law fraud and statutory odometer fraud to remedy a
single injury. Indeed, the authority cited by plaintiff supports
the Langers' position. Verdonck v. Scopes, 226 Ill. App. 3d 484,
491-92 (1992) (the plaintiff may not recover both statutory
odometer fraud and common-law fraud damages, but instead is limited
to the greater award of common-law fraud damages). Accordingly,
pursuant to Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we modify
the trial court's judgment order of November 4, 1994, to reflect
that the satisfaction of the statutory odometer fraud judgments in
favor of plaintiff and against each Langer individually will
satisfy the common-law fraud judgments in favor of plaintiff and
against the Langers.
E. Indemnification to Laurel
The Langers' next issue on appeal deals with the judgments
entered against them on Laurel's counterclaim. They argue that the
thrust of Laurel's counterclaim is for indemnification and is
therefore barred under the statutory odometer fraud count. We
agree.
In accord with our holding above that the Federal Odometer Act
imposes separate and individual liability, we also hold that it
bars contribution or indemnification between codefendants. See
Ferris, 967 F.2d at 957-58 (reversing district court's reduction of
award due to settlement of claims against codefendants); Mataya v.
Behm Motors Inc., 409 F. Supp. 65, 70 (E.D. Wis. 1976) ("[t]his
phenomenon of separate and individual liability precludes recovery
on a cross-claim based on indemnification or contribution"). Thus,
Laurel should have been precluded from pressing its counterclaim
against the Langers as it merely sought indemnification.
Accordingly, we vacate the judgment in favor of Laurel and against
the Langers under count II of Laurel's counterclaim for statutory
odometer fraud.
F. Attorney Fees
The Langers' final issue on appeal concerns the propriety of
the trial court's award of attorney fees to plaintiff. The Langers
first contend that the trial court was without jurisdiction to
entertain plaintiff's fee petition. The Langers assert that the
fee petition, filed on February 2, 1995, was filed more than 30
days after the final judgment, the date of which the Langers claim
to have been November 4, 1994, the date the jury verdicts were
returned.
The Langers' argument is patently frivolous and baseless in
the record. The record plainly shows that the trial court ruled on
the Langers' post-trial motion on January 17, 1995. The trial
court further ordered that "plaintiff shall have 21 days to file a
petition for attorney fees." Plaintiff timely filed her petition
for attorney fees on February 2, 1995, 16 days after the entry of
final judgment. We thus reject the Langers' first contention.
The Langers next contend that the trial court should not have
granted plaintiff's request for attorney fees because plaintiff
failed to distinguish the time spent on each count of the
complaint. We disagree.
The trial court found that the hourly rates charged by
plaintiff's attorneys were reasonable and that the times spent on
the various tasks were appropriate. Our review of the record
reveals no objection by the Langers either to the rates charged,
the times spent performing various tasks, or the necessity of any
of the specific tasks performed by plaintiff's attorneys.
Moreover, the trial court found that all the claims were
inextricably intertwined, and the Langers did not dispute this
finding. Accordingly, we find no error in the trial court's award.
We point out, too, that the trial court adjusted the award to
reflect the time spent on the claim against the Langers by limiting
the award to fees incurred up until the summary judgment against
the Langers.
"Nonpublishable material omitted under Supreme Court Rule 23.
III. Plaintiff's Cross-Appeal
On cross-appeal, plaintiff objects to the trial court's
finding that the fee agreement was in violation of the Rules of
Professional Conduct and that it created a proprietary interest in
the litigation. After careful review, however, we conclude that
plaintiff lacks standing to challenge the trial court's finding
that her counsel committed an ethical violation. Northern Trust
Co. v. Brentwood North Nursing & Rehabilitation Center, Inc., 225
Ill. App. 3d 1039, 1041 (1992) ("plaintiff does not have standing
to raise arguments relating to the detriment suffered by its
attorneys from the order because [attorneys] did not file a notice
of appeal"). We note that this finding does not mean that
plaintiff may not challenge her counsel regarding the propriety of
the fee agreement in another forum.
IV. Bank's Motion to Dismiss
The Bank filed a motion to dismiss Laurel's appeal as it
related to the Bank which we ordered taken with the case. The
arguments advanced in that motion were substantially similar to
those raised in its brief on appeal. Accordingly, we choose to
deny the Bank's motion and resolve its arguments in the context of
this appeal.
CONCLUSION
In summary, then, we affirm the judgment of the trial court as
regards Laurel in all respects. We also affirm the trial court's
judgment as regards the Langers in all respects with the following
modifications: satisfaction of the statutory odometer fraud
judgments against each Langer individually will satisfy the common-
law fraud judgments in favor of plaintiff and against the Langers,
and we vacate the judgment in favor of Laurel and against the
Langers under count II of Laurel's counterclaim for statutory
odometer fraud. Thus, Laurel must pay $2,600 ($7,754.48 less
$5,154.48) in satisfaction of the judgment in favor of plaintiff
against Laurel; and Laurel must pay $9,483.93 in satisfaction of
the judgment for the Bank against Laurel. The Bank, by stipulation
of all parties, has already satisfied the $5,154.48 judgment in
favor of plaintiff against the Bank. Robert Langer must satisfy
the $6,000 judgment in favor of plaintiff and against him for
violation of the Federal Odometer Act; all remaining judgments
against him are vacated. Diana Langer must satisfy the $6,000
judgment in favor of plaintiff and against her for violation of the
Federal Odometer Act; all remaining judgments against her are
vacated. For the foregoing reason, the judgment of the circuit
court of Du Page County is affirmed as modified.
Affirmed as modified.
BOWMAN and RATHJE, JJ., concur.
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