No. 2--06--0507 Filed: 1-28-08 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
RICHARD GEHRETT and DENISE ) Appeal from the Circuit Court GEHRETT, ) of Du Page County. ) Plaintiffs-Appellees, ) ) v. ) No. 98--L--754 ) CHRYSLER CORPORATION, CHRYSLER ) FINANCIAL CORPORATION, and ) AUTHORIZED AUTO RECOVERY, INC., ) ) Defendants ) ) Honorable (Naperville Jeep/Eagle, Inc., Defendant- ) Terence M. Sheen, Appellant). ) Judge, Presiding. ________________________________________________________________________________
JUSTICE ZENOFF delivered the opinion of the court:
Defendant, Naperville Jeep/Eagle, Inc. (or dealership), appeals from a judgment entered in
favor of plaintiffs, Richard and Denise Gehrett, and against the dealership by the circuit court of Du
Page County following a jury trial on January 27, 2005. Defendant also appeals from a judgment
entered in favor of plaintiffs and against the dealership by the trial court sitting without a jury as to
count V of plaintiffs' seventh amended complaint (violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West Supp. 1997)) on February
2, 2005. The trial court heard the evidence regarding count V simultaneously with the jury trial. For No. 2--06--0507
the reasons that follow, we affirm as modified and remand to the circuit court for further proceedings.
BACKGROUND
Defendant is a Jeep/Eagle dealership located at 3300 Ogden Avenue in Lisle, Illinois. A
dispute between plaintiffs and defendant arose in June 1997 regarding plaintiffs' lease of a 1997 Jeep
Grand Cherokee Laredo from defendant. The vehicle defendant leased to plaintiffs was not equipped
with a Quadra-Trac on-demand-four-wheel-drive system, although the transmission indicator plate
located next to the gear shift lever inside the vehicle stated it was so equipped. In January 2005, the
parties proceeded to trial on plaintiffs' sixth amended complaint, which alleged breach of written
warranty (count I), breach of express warranty (count II), breach of implied warranty of
merchantability (count III), revocation of acceptance (count IV), violation of the Act (count V), and
common-law fraud (count VI). The remaining counts of the sixth amended complaint alleged
breaches by certain defendants that are not part of this appeal.
During trial, plaintiffs filed their seventh amended complaint. The seventh amended complaint
alleged breach of written warranty (count I), breach of express warranty (count II), breach of implied
warranty of merchantability (count III), revocation of acceptance (count IV), violation of the Act
(count V), and common-law fraud (count VI). The remainder of the seventh amended complaint was
directed against the defendants that are not part of this appeal. The only counts submitted to the jury
were the breach of warranty and common-law fraud counts. For a reason not explained in the
record, the breach of warranty count was submitted to the jury as count I, and the common-law fraud
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count was submitted as count II. The trial court was the trier of fact on count V. At trial, plaintiffs
and defendant entered into the following stipulation:1
"(1) That the [d]efendants warranted the 1997 Jeep was equipped with a Quadra-Trac
4-wheel drive.
(2) That the 1997 Jeep was delivered to [plaintiffs] without a Quadra-Trac 4-wheel
drive.
(3) That [Chrysler] and [defendant] have breached the warranty as to the 1997 Jeep.
(4) That [p]laintiffs gave written notice of the breach to [Chrysler] and [defendant]
on February 5, 1998, and this notice of breach was proper and timely under the law.
(5) [Plaintiffs] and [defendant] have further stipulated that the damages to be assessed
in favor of [p]laintiffs, and against [defendant], for breach of warranty include the amounts
paid by [plaintiffs] at the time the lease was signed, in the amount of $2,058 and subsequently
13 monthly payments of $497.69 each, totaling $6,469.97, for a total of $8,527.97.
(6) It is for the jury to determine whether [p]laintiffs are also entitled to an award of
damages for aggravation and inconvenience, in addition.
(7) The parties have also stipulated that [p]laintiffs have returned the vehicle to
Chrysler, and this took place in 1998.
(8) The [d]efendants have also stipulated that they are financially able to pay any
punitive damages that may be awarded."
Testimony at trial showed the following. Plaintiffs leased a 1994 Jeep Grand Cherokee
Laredo from defendant. It was equipped with a Quadra-Trac, full-time, four-wheel-drive system that
1 The stipulation also included Chrysler Corporation, which is not a party to this appeal.
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required no driver input. Plaintiffs had researched the Quadra-Trac system before leasing the 1994
Jeep. In June 1997, plaintiff Richard Gehrett received a call from Michael "Lefty" Biondini, who,
according to Richard, introduced himself as a sales manager for defendant. Biondini informed
Richard that the lease on the 1994 Jeep was coming to an end. He invited Richard to come to the
dealership to talk to him about "buying out" the 1994 Jeep or purchasing or leasing a new 1997 Jeep.
According to Richard, Biondini told him in this conversation that plaintiffs had a "tremendous
amount" of equity in the 1994 Jeep that could be applied to the buyout of the 1994 Jeep or to the
purchase or lease of a new 1997 model. Richard made an appointment with Biondini for June 25,
1997, at 5 p.m.
Plaintiffs arrived at the dealership about 4 p.m. on that date. Denise testified that Biondini
was busy. She and Richard were approached outside the dealership by another salesman, later
identified as Storto, who showed them some vehicles on the lot. Plaintiffs then followed Storto inside
the dealership and into an office. Denise wanted to keep the 1994 Jeep, and she asked Storto about
the buyout Biondini had mentioned to Richard. According to Denise, Storto told her she had no
equity in the 1994 Jeep and that a buyout would be "very costly." Denise testified that Storto asked
her what was important "in the way of a car" and whether plaintiffs would consider another Jeep.
Denise said she would "definitely" consider another Jeep, but it had to have the same options as the
1994 Jeep, including Quadra-Trac. She testified that Storto checked a computer and then told her
the dealership had no Quadra-Tracs, that such a vehicle would be a special order.
According to Denise, plaintiffs then went back outside to wait for Biondini because they
wanted to talk to him about the buyout on the 1994 Jeep. At 7 p.m. Biondini became available to talk
to plaintiffs. According to Denise, he introduced himself as a sales manager. Denise testified that
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Biondini told them they had no equity in the 1994 Jeep and they should lease a new one. Either
Denise or Richard told Biondini that Storto had informed them the dealership did not have a Jeep
with Quadra-Trac in stock. Biondini said he was sure he had one and he would "go find it." Denise
testified that she would not have agreed to lease another vehicle from defendant if it did not have
Quadra-Trac. She testified that this would be a "deal breaker." Biondini was gone for about 30 to
45 minutes. Denise testified that Biondini then pulled up to the front of the dealership in the 1997
Jeep they eventually leased. She testified that Biondini jumped out of the vehicle and said "he found
it." He asked Denise to get into the driver's seat, and he showed her the "indicator which indicated
it was a Quadra-Trac." She testified that this indicator, or emblem, was a plastic part that appeared
to snap in and out. According to photos in evidence, this part is located to the left of the gear shift
lever. According to Denise, at the bottom of the emblem were the words "Quadra-Trac" and a
Chrysler symbol. She testified that she saw other Jeeps on the lot with similar emblems that appeared
to snap in and out but were labeled "Selec-Trac." She knew that Selec-Trac was a less expensive
option than Quadra-Trac that was not full-time four-wheel drive but had to be manually operated.
Denise testified that plaintiffs leased the 1997 Jeep that evening, based upon Biondini's representation
that it was equipped with Quadra-Trac. Plaintiffs did not test-drive the vehicle before signing the
lease, and Denise did not see a window sticker on it before signing the lease.
Denise testified that primarily she drove the 1997 Jeep. She noticed that it hydroplaned. On
Christmas Eve, Richard was driving when the Jeep slid off the driveway and got stuck in snow. In
another incident a little bit later, Denise was picking up her youngest son at school, and Richard was
there also. According to Denise, Richard noticed that the wheels on the 1997 Jeep were not turning
at the same time. Richard commented that the transmission was not engaged. Denise took the
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vehicle to defendant's service manager. She told him that there was something wrong with the
Quadra-Trac, that only two wheels, instead of all four, were engaging. After inspecting the vehicle,
the service manager informed Denise that there was nothing wrong, that the 1997 Jeep was a Selec-
Trac and not a Quadra-Trac. The manager further informed Denise that the 1997 Jeep had "a wrong
indicator plate on it."
Denise testified she told the service manager she did not want the Selec-Trac and she asked
what defendant was "going to do about this." According to Denise, the service manager said he had
ordered the correct indicator plate, and there was nothing further to be done. When Denise asked
to speak with Biondini, the service manager told her that Biondini no longer worked for defendant.
Denise then asked to speak with defendant's manager. The service manager replied that he had
already spoken to the dealership's manager and that the "matter was taken care of." According to
Denise, the service manager told her that if she still had a problem, she should call her lawyer.
Richard testified about plaintiffs' visit to defendant on June 25, 1997. A salesman whose name
Richard did not recall told them Biondini was not available. Richard mentioned to the salesman
Biondini's statement that they had equity in the 1994 Jeep. The salesman replied, "that wasn't going
to be a possibility." Richard then expressed interest in a 1997 Jeep with Quadra-Trac and certain
other options. Richard testified he and Denise went into an office with the salesman, where the
salesman "started looking through I believe a computer at that time and some paperwork and so on
and so forth." The salesman informed plaintiffs he did not have a Jeep with Quadra-Trac on the lot.
Richard testified that he said he would not lease a vehicle without Quadra-Trac. According to
Richard, plaintiffs then waited approximately two hours to speak with Biondini.
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Biondini, who represented himself to customers as a floor manager, told Richard he must have
misunderstood their telephone conversation, because it was not possible to realize any equity in the
1994 Jeep. Richard testified he told Biondini plaintiffs wanted a like vehicle with Quadra-Trac and
he asked Biondini to call other dealerships to locate one. According to Richard, Biondini "took off
for a while," and, when he returned, he told plaintiffs, "[W]e got the vehicle for you. Found one."
Biondini pointed at the plate on the "shifter" and said, "See. We found a Quadra-Trac for you." At
that point, plaintiffs agreed to lease the 1997 Jeep. Richard testified he would not have signed the
lease agreement if he had known the 1997 Jeep did not have Quadra-Trac. Richard then testified to
the problems plaintiffs had getting stuck in the snow. He stated that all the problems with the vehicle
caused him to become upset and aggravated.
Biondini testified he was a floor manager for defendant in 1996, 1997, and 1998. He stated
his right arm was paralyzed and in a sling. Biondini recalled that Richard specifically wanted a Jeep
with Quadra-Trac and that he had to "search the lot for it." Biondini testified that he did not have
access to computers and that the only way he could tell if a particular vehicle was equipped with
Quadra-Trac was to look inside the vehicle at the "shifter." He also stated he would not consult the
window sticker to determine whether a vehicle was a Quadra-Trac. He stated he routinely
determined a vehicle's options by visual examination rather than consulting paperwork. According
to Biondini, the vehicle he presented to plaintiffs did have Quadra-Trac. Biondini denied that anyone
had told him otherwise. He further denied that he switched indicators on the transmission lever to
deceive plaintiffs into leasing the 1997 Jeep.
Samuel Guzzino was defendant's general manager in June 1997. He testified that Biondini
was a salesman, not a floor manager. According to Guzzino, the salesmen did not have access to
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computers at the time plaintiffs leased the 1997 Jeep, and defendant did not keep any spare
transmission indicator plates on hand. Guzzino testified that a new vehicle arrives at defendant's
premises from Chrysler with a window sticker that details all the options on the vehicle and that an
invoice with that information is also available to the customer, if the customer asks to see it.
On January 27, 2005, the jury returned a verdict in favor of plaintiffs and against defendant.
The jury assessed actual damages in the sum of $8,527.97. The jury assessed damages for
aggravation and inconvenience in the amount of $15,750 and punitive damages of $88,168.50. On
February 2, 2005, the trial court entered a verdict in favor of plaintiffs and against defendant on count
V (consumer fraud) of the seventh amended complaint. On February 14, 2005, plaintiffs filed a
petition for an award of costs and attorney fees. On October 17, 2005, the trial court allowed the
petition and awarded plaintiffs the costs of filing the complaint and jury demand, servicing defendant,
and filing a second appeal (involving an entity that is not a party to this appeal). In addition, the trial
court awarded plaintiffs attorney fees in the amount of $53,087.50. On November 15, 2005,
defendant filed a posttrial motion, which the trial court denied on April 25, 2006. The trial court gave
plaintiffs leave to file a supplemental fee petition, and the trial court awarded supplemental fees of
$4,400 on May 6, 2006. Defendant filed a timely notice of appeal.
ANALYSIS
A. Plaintiffs' Motion to Strike Defendant's Reply Brief
On December 7, 2006, plaintiffs filed a motion to strike defendant's reply brief on the grounds
that it contains in footnotes facts de hors the record and is not confined strictly to replying to
arguments in the appellee's brief. We ordered the motion taken with the case, and we will address
the motion now. Supreme Court Rule 341(j) (210 Ill. 2d R. 341(j)) provides, "The reply brief, if any,
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shall be confined strictly to replying to arguments presented in the brief of the appellee and need
contain only Argument." Plaintiffs do not point out how in particular defendant's reply brief violates
this rule, and a violation is not apparent to us in reading the reply brief. However, defendant's reply
brief contains two footnotes that make factual assertions with no citations to the record. Moreover,
it is clear that the facts contained in the footnotes are de hors the record. While this is improper,
rather than employ the harsh sanction of striking the reply brief, we have disregarded any improper
information, and our disposition of the case on the merits is based entirely on information contained
in the record. See Tekansky v. Pearson, 263 Ill. App. 3d 759, 763 (1994).
B. Whether the Jury's Verdict On the Common-Law Fraud Count Was Against the Manifest
Weight of the Evidence
We turn now to the merits of the appeal. Defendant's first contention is that the jury's verdict
in favor of plaintiffs on the count of common-law fraud (count II as submitted to the jury) is against
the manifest weight of the evidence.2 Defendant maintains the evidence does not support a finding
that defendant knew its representation was false or that it acted in reckless disregard of the truth. A
reviewing court "will not set aside a jury verdict unless the verdict is determined to be contrary to the
manifest weight of the evidence." Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1010 (2003).
" 'A verdict is against the manifest weight of the evidence if the opposite conclusion is clearly evident
or where the findings of the jury are unreasonable, arbitrary[,] and not based upon any of the
evidence.' " Hawkes, 336 Ill. App. 3d at 1010, quoting Carter v. Azaran, 332 Ill. App. 3d 948, 959
(2002). The jury's verdict should be upheld if there is sufficient credible evidence to support it.
2 This argument assumes that the verdict was for common-law fraud rather than breach of
warranty, an issue we address later.
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Hawkes, 336 Ill. App. 3d at 1010. The appellate court "will not disturb a jury verdict unless there
is no evidence that fairly tends to support the verdict." Hawkes, 336 Ill. App. 3d at 1011. "[The]
jury's verdict is entitled to respect and deference, and [we] will not invade the function of the jury and
substitute [our] judgment for the jury's." Hawkes, 336 Ill. App. 3d at 1011.
We first examine defendant's claim that plaintiffs failed to present clear and convincing
evidence that it knew that the 1997 Jeep it leased to plaintiffs was not equipped with the Quadra-Trac
four-wheel-drive system. "The elements of common law fraud are: (1) a false statement of material
fact; (2) defendant's knowledge that the statement was false; (3) defendant's intent that the statement
induce the plaintiff to act; (4) plaintiff's reliance upon the truth of the statement; and (5) plaintiff's
damages resulting from reliance on the statement." Connick v. Suzuki Motor Co., 174 Ill. 2d 482,
496 (1996). The first element encompasses three requirements: (1) the defendant must make a
misrepresentation; (2) the misrepresentation must involve a fact; and (3) the misrepresentation must
be material. Hart v. Boehmer Chevrolet Sales, Inc., 337 Ill. App. 3d 742, 751 (2003). Defendant
in our case bases its argument on the testimony of Biondini and Guzzino. Defendant contends that
any inference Biondini switched the Selec-Trac indicator plate on the transmission lever in the 1997
Jeep for a Quadra-Trac indicator plate is nothing more than impermissible innuendo, conjecture, and
speculation, because it contradicts the "unrebutted" evidence presented by defendant. However, " '[i]t
is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the
witnesses, and to decide what weight should be given to the witnesses' testimony.' [Citation.]"
Hawkes, 336 Ill. App. 3d at 1000.
Defendant recognizes that it admitted it misrepresented the type of transmission on the 1997
Jeep, when it stipulated that it warranted the vehicle to have Quadra-Trac four-wheel drive and that
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it delivered a vehicle with Selec-Trac. Defendant seeks to undo this admission by claiming, "In
hindsight, Naperville Jeep should not have been a party to this stipulation." Defendant does not argue
that it was misled into making the admission or that the admission was the product of fraud or duress.
Furthermore, Biondini admitted he represented the 1997 Jeep as being equipped with Quadra-Trac,
and defendant's service manager admitted to Denise that the vehicle was not a Quadra-Trac.
Therefore, there is no basis for defendant to attempt to withdraw the admission at this stage.
Defendant maintains that the jury could not have believed plaintiffs' testimony that an
"unidentified" salesman checked through paperwork and the inventory database before advising
plaintiffs there was no Quadra-Trac in stock, because Guzzino testified that salesmen did not have
access to computers. Guzzino also testified that the salesmen were required to search the lot for
vehicles and that defendant did not keep Quadra-Trac indicator plates in stock. Biondini testified that
he physically searched the lot to locate vehicles, that he had no access to computers, and that he
visually examined the vehicles to determine their options rather than referring to window stickers or
other paperwork.
The jury could have reasonably rejected Guzzino's and Biondini's testimony. Biondini
misrepresented himself to customers, including plaintiffs, as a manager, when he was actually a
salesman. The jury would be justified in looking askance at anything Biondini said. The jury could
have determined that Guzzino's testimony denying that the salesmen had access to the computer
inventory was inherently incredible as being contrary to common sense. Moreover, the jury could
have found Guzzino's testimony, that defendant did not keep a stock of Quadra-Trac indicator plates,
not relevant. That testimony was offered to show that Biondini could not have switched the plates.
However, plaintiffs surrendered their 1994 leased Jeep with Quadra-Trac to defendant. Biondini had
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access to the plate on that vehicle. The indicator plates are plastic parts that snap in and out of place.
Defendant suggests that Biondini, with his paralyzed right arm, could not perform that maneuver.
However, nothing in the record supports the inference that "Lefty" Biondini was incapable of
switching the plates using his good left hand. He testified he searched the lot for the 1997 Jeep and
then drove the Jeep to where he presented it to plaintiffs, so he apparently had no trouble driving with
one arm. Defendant's assertion that the salesman who initially helped plaintiffs was "unidentified"
and, therefore, presumably a phantom, is not supported by the record. The salesman was identified
as a Mr. Storto. Defendant argues that plaintiffs did not testify to what Storto looked at on the
computer screen or in the paperwork he consulted and, therefore, their testimony in that regard must
be disregarded. The jury heard this evidence, and it was within its province to draw the inference that
Storto was searching through defendant's inventory of vehicles and did not find a 1997 Jeep with
Quadra-Trac.
The evidence showed that plaintiffs were adamant they would accept only a Jeep with the
Quadra-Trac four-wheel-drive system. Denise testified that anything else was a "deal breaker." After
luring plaintiffs into the dealership by telling them they had equity in the 1994 leased Jeep that could
be used to purchase or lease a new Jeep, Biondini retracted that representation. The lease on the
1994 Jeep was about to expire, and plaintiffs desired to lease a new Jeep with the same options, and
particularly the Quadra-Trac. They informed Biondini of Storto's statement that defendant did not
have a Quadra-Trac on the lot. Biondini assured plaintiffs he had one. Biondini disappeared for a
considerable period of time. When he returned, he informed plaintiffs he found a vehicle with
Quadra-Trac, and he pointed out specifically the emblem on the indicator plate. This was plaintiffs'
only signifier that the transmission was a Quadra-Trac. Denise testified she did not see a window
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sticker. Based on Biondini's representation, plaintiffs entered into the lease without test-driving the
vehicle. Guzzino admitted that defendant kept window stickers that detailed options on particular
vehicles and that invoices were available with that information if customers asked for it. Yet
defendant chose not to introduce into evidence at trial those items pertaining to the 1997 Jeep. The
jury could have drawn the inference that the evidence would be unfavorable to defendant. In sum,
there is sufficient credible evidence to support the jury's finding that defendant knew the 1997 Jeep
it delivered to plaintiffs on June 25, 1997, was not equipped with a Quadra-Trac four-wheel-drive
system.
Defendant alternatively argues that plaintiffs failed to provide clear and convincing evidence
that defendant recklessly disregarded the misplating of the 1997 Jeep. Defendant relies on Harte-
Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 105 L. Ed. 2d 562, 109 S. Ct. 2678
(1989), a libel case against a newspaper, which had nothing to do with fraud. In any event, we
believe the record amply supports the claim that defendant acted recklessly. Biondini testified he
relied solely on the appearance of the vehicle, rather than on the window sticker or invoice, to
determine what options were on the vehicle. If the 1997 Jeep had been misplated elsewhere, and
presuming the relevant paperwork showed it was misplated, then Biondini acted in culpable ignorance
of the truth when he failed to consult the documentation for the vehicle and nevertheless represented
the vehicle as a Quadra-Trac. Accordingly, the evidence of liability supported the jury's verdict for
common-law fraud.
C. Whether the Trial Court's Judgment In Favor of Plaintiffs for Consumer Fraud Was Against
the Manifest Weight of the Evidence
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We next consider defendant's contention that the trial court's judgment in favor of plaintiffs
for violation of the Act was against the manifest weight of the evidence. "The elements of a private
cause of action for damages based on a violation of the Act are: (1) a deceptive act or practice; (2)
intent by the defendant that the plaintiff rely on the deception; (3) the deception occurred in the
course of conduct involving trade or commerce; and (4) the plaintiff's injury was proximately caused
by the fraud complained of." Rockford Memorial Hospital v. Havrilesko, 368 Ill. App. 3d 115, 121
(2006). Although the plaintiff need not prove that he relied on the deceptive act, he must prove that
the deception proximately caused his injury. Connick, 174 Ill. 2d at 502. The same facts recited
above with reference to the common-law fraud count are applicable here and will not be repeated.
Defendant claims that, when the trial court awarded plaintiffs actual damages in the same
amount as those awarded by the jury on the breach of warranty count, plaintiffs received a double
recovery. Defendant further claims that if the jury also awarded actual damages on the common-law
fraud count, plaintiffs actually recovered the same amount three times. Although a plaintiff may plead
and prove multiple causes of action, there may be only one recovery for an injury. Catania v. Local
4250/5050, 359 Ill. App. 3d 718, 728 (2005).
For the moment, defendant leaves aside, for reasons discussed in the next section of the
opinion, the possibility that the jury awarded actual damages on the common-law fraud count and
posits that we must vacate the duplicative award of actual damages on the consumer fraud count,
which, defendant argues, would then vacate the award of attorney fees. This would be unjust to
plaintiffs. The law allows a plaintiff to pursue as many causes of action as the facts and good-faith
pleading permit. In this opinion, we determine that the trial court's judgment in favor of plaintiffs on
the consumer fraud count should be upheld. Therefore, plaintiffs are entitled to recover fees. The
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same rationale is true of the common-law fraud verdict. Assuming the jury awarded actual damages
of $8,527.95 for common-law fraud, plaintiffs are entitled to recover punitive damages. Consequently,
we decline to vacate any of the judgments. However, it is unjust to defendant to allow plaintiffs to
recover actual damages on three alternative theories of liability, where there is only one injury. Dowd
& Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 486 (1998). Accordingly, pursuant to our authority under
Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), we reduce the actual damages plaintiffs can
recover to $8,527.97. On remand, the trial court is instructed to enter an order reflecting the
reduction of actual damages to this amount.
Defendant asserts that plaintiffs' claim under the Act is based solely on the stipulated
misrepresentation of the vehicle, which, according to defendant, is simply a breach of contract that will
not support a finding of liability under the Act. Defendant relies on Zankle v. Queen Anne
Landscaping, 311 Ill. App. 3d 308 (2000). In Zankle, the appellate court affirmed the trial court's
dismissal of a consumer fraud complaint, where the allegations amounted only to the defendant's
failure to fulfill its contractual obligations. Zankle, 311 Ill. App. 3d at 312. Zankle is inapplicable to
our case. Count V of plaintiffs' seventh amended complaint alleged that defendant misrepresented that
the 1997 Jeep was a Quadra-Trac, and, as part of defendant's scheme to defraud, defendant removed
the window sticker from the vehicle, or failed to maintain the sticker on the window, so as to deceive
plaintiffs about the true options on the vehicle and the true manufacturer's retail price. At trial,
plaintiffs presented evidence of the lack of a window sticker and the presence of the Quadra-Trac
indicator plate on the 1997 Jeep, when plaintiffs had been informed defendant had no Quadra-Tracs
on the lot. Thus, the evidence established a deceptive act and not merely a breach of contract.
Consequently, we reject defendant's argument. We cannot say that the trial court's judgment as to
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liability was against the manifest weight of the evidence. Accordingly, we affirm the judgment as to
liability on count V.
D. Whether Defendant Is Entitled To A New Trial On Damages
Defendant's next contentions are grouped around the jury's award of actual and punitive
damages. Defendant argues that (1) the jury awarded no actual damages for common-law fraud and
punitive damages were, therefore, improper; (2) the jury's award of punitive damages was against the
manifest weight of the evidence; (3) the trial court abused its discretion by failing to make a finding
that plaintiffs established a prima facie case for the recovery of punitive damages; and (4) the trial
court abused its discretion in denying defendant's motion for a remittitur on the punitive damages
award.
1. Whether Verdict Form A Awarded Actual Damages For Common-Law Fraud
Initially, defendant argues that the verdict does not support a finding that the jury awarded
actual damages pursuant to the common-law fraud claim. If the jury did not award actual damages,
defendant reasons, it could not award punitive damages. According to defendant, the stipulation that
actual damages were $8,527.97 was entered on the breach of warranty count, not the common-law
fraud count. Therefore, defendant concludes that the jury awarded no actual damages for common-
law fraud.
This issue raises the question of the sufficiency of the general verdict in this case. "The validity
of a general verdict is tested by whether it expresses the intent of the jury so that the trial court can
understand it and enter judgment thereon." In re Estate of Payton, 79 Ill. App. 3d 732, 739 (1979).
Here, the trial court submitted two separate theories of liability to the jury, breach of warranty and
common-law fraud. The parties stipulated that $8,527.97 was the amount of damages on the breach
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of warranty count. The trial court instructed the jury that this amount represented damages for breach
of warranty. The trial court did not similarly instruct the jury with respect to the fraud count. Instead,
the trial court instructed the jury that it was to determine whether plaintiffs suffered damages as a
result of their reliance on the misrepresentation and that defendant denied that plaintiffs were damaged.
The jury was instructed to return Verdict Form A if it found in favor of plaintiffs and against
defendant on any count. Verdict Form A provided three lines:
"We assess actual damages in the sum of $8,527.97.
We assess aggravation and inconvenience in the amount of $ _______.
We award punitive damages in the sum of $ ___________."
The figure $8,527.97 was preprinted on the form. The jury filled in the line for aggravation and
inconvenience with the sum of $15,750, and the line for punitive damages with the sum of $88,168.50.
Defendant asserts that the jury awarded actual damages for breach of warranty, a count upon which
it could not legally assess punitive damages, because the preprinted amount of damages was the
damages stipulated to for breach of warranty, and the award for aggravation and inconvenience was
based on an instruction that the jury could find additional damages for breach of warranty.
It is not clear to us that this is the only conclusion to be drawn. The jury was instructed to
use Verdict Form A if it found for plaintiffs on any count. Thus, the fact that the jury returned Verdict
Form A indicates that it found in plaintiffs' favor on the common-law fraud count. Conversely, the jury
was also instructed that, if it found in favor of defendant on the common-law fraud count, it was to
return Verdict Form B. It did not return Verdict Form B, which supports the conclusion that it found
in plaintiffs' favor on the common-law fraud count. Moreover, because the jury was instructed that
punitive damages applied only to common-law fraud, its award of punitive damages further supports
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the conclusion that it found in favor of plaintiffs on that count. We are not long detained by
defendant's assertion that the sum of $8,527.97, preprinted on Verdict Form A, represented damages
only for breach of warranty, because defendant, in its opening brief, in its reply brief, and at oral
argument, conceded that plaintiffs' actual damages on all counts were $8,527.97. Thus, there is
evidence in the record both to support and to invalidate the verdict.
However, we need not resolve this issue. Defendant did not object to Verdict Form A or
tender a remedial form or a special interrogatory. "On appeal, a litigant waives the right to object to
instructions or verdict forms that are given to a jury when the party fails to make a specific objection
during the jury instruction conference or when the form is read to the jury." Compton v. Ubilluz, 353
Ill. App. 3d 863, 869 (2004). "Even if the litigant properly objects to an instruction or verdict form,
[he] must still submit a remedial instruction or verdict form to the trial court." Compton, 353 Ill. App.
3d at 869. Accordingly, we find that defendant waived this issue.
At oral argument, defendant urged us to consider this issue despite its waiver in furtherance
of this court's responsibility to provide a just result and to maintain a sound and uniform body of
precedent pursuant to the holding in Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). We
note defendant did not cite Dillon in its briefs, nor did it seek leave to cite additional authority at oral
argument. However, plaintiffs did not object, and we distinguish Dillon from the present case.
Defendant argued that the instructions in this case, taken as a whole, were so confusing that they
misled the jury. While we agree that Verdict Form A, the only instruction raised by defendant, is not
a model of clarity, we determine that this is not a proper case in which to override considerations of
waiver. In Dillon, our supreme court recognized a new element of damages, the increased risk of
future injury. Dillon, 199 Ill. 2d at 503. Because there was no pattern instruction on this element and
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the instruction given to the jury was inadequate, the supreme court ordered a retrial. Dillon, 199 Ill.
2d at 508. Such a situation is not present in our case. Here, defendant simply did not object to
Verdict Form A, tender its own verdict form, or tender a special interrogatory, even though it had the
opportunity to do so.
2. Whether the Award of Punitive Damages Was Against the Manifest Weight of the Evidence
Defendant contends that, while it stipulated it misrepresented the 1997 Jeep as having the
Quadra-Trac transmission system, the misrepresentation was made without any malicious or evil
intent. Defendant argues the evidence showed that the misrepresentation was simply a mistake.
"[P]unitive damages may be awarded where the wrongful act committed by the defendant 'is
characterized by wantonness, malice, oppression or other circumstances of aggravation.' [Citation]."
Los Amigos Supermarket, Inc. v. Metropolitan Bank & Trust Co., 306 Ill. App. 3d 115, 129 (1999).
Punitive damages are proper in a fraud action where the false representations are wantonly and
designedly made. Los Amigos, 306 Ill. App. 3d at 130. We review the jury's assessment of punitive
damages on a manifest-weight-of-the-evidence standard. Franz v. Calaco Development Corp., 352
Ill. App. 3d 1129, 1145 (2004).
In our case, the jury heard the evidence and determined that punitive damages were warranted.
This determination was not against the manifest weight of the evidence. The jury could have believed
that Storto told plaintiffs the truth when he informed them defendant had no Quadra-Trac vehicles on
the lot and that Biondini intentionally falsified the appearance of the 1997 Jeep he leased to plaintiffs.
Alternatively, the jury could have reasonably believed that Biondini was guilty of gross negligence that
showed a wanton disregard for plaintiffs' rights when he failed to look at the paperwork that
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accompanied the 1997 Jeep to verify it was equipped with Quadra-Trac. Accordingly, the jury's award
of punitive damages was not against the manifest weight of the evidence.
3. Whether the Trial Court Abused Its Discretion by Failing to Make a Finding That the Evidence
Established a Prima Facie Case for Punitive Damages
Defendant argues that the trial court abused its discretion by failing to make a finding that
plaintiffs established a prima facie case for the recovery of punitive damages. Once a trial court
determines that punitive damages are, as a matter of law, appropriate to the cause of action, the trial
court's decision to submit the issue to the jury will not be reversed absent an abuse of discretion.
Franz, 352 Ill. App. 3d at 1138. The record does not disclose that the trial court held a separate
hearing at which it made a specific finding that punitive damages were appropriate. However, the trial
court submitted to the jury the punitive damages instruction and the verdict form with a line for
punitive damages. Implicit in the decision to instruct the jury on the issue of punitive damages was
the trial court's determination that plaintiffs had established a prima facie case for such damages.
Franz, 352 Ill. App. 3d at 1138 ("[T]he trial court may submit the issue of punitive damages to the
jury only if the plaintiff has made out a prima facie case for such damages"). Defendant has provided
no authority for its position that the trial court needed to make an explicit finding on the record. The
decision whether to instruct the jury on punitive damages was made by the trial court, and the decision
whether to award punitive damages was made by the jury. This was appropriate. Knecht v. Radiac
Abrasives, Inc., 219 Ill. App. 3d 979, 983-84 (1991).
4. Whether the Trial Court Abused Its Discretion When It Denied Defendant's Motion for a
Remittitur of the Punitive Damages
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Defendant's contention that the trial court should have granted a remittitur of the punitive
damages award is, in essence, the same as a contention that the amount of punitive damages was
excessive. Franz, 352 Ill. App. 3d at 1145. Because defendant waived its argument that the jury failed
to award actual damages for common-law fraud, we consider $8,527.97 to be the amount of actual
damages upon which the jury based its award of punitive damages. Plaintiffs argue that we must add
the sum awarded for aggravation and inconvenience, $15,750, because this sum was awarded as
consequential damages for fraud. We disagree. The jury was clearly instructed that it was to consider
aggravation and inconvenience in awarding additional damages for breach of warranty, which plaintiffs'
counsel acknowledged at oral argument.
In determining whether an award is excessive, Illinois courts look to fact-specific relevant
circumstances, including: "(1) the nature and enormity of the wrong; (2) the financial status of the
defendant; and (3) the potential liability of the defendant." Franz, 352 Ill. App. 3d at 1143. In this
case, Biondini represented to Richard in a telephone call that plaintiffs had a "tremendous" amount of
equity in their 1994 leased Jeep that could be applied to the lease of a new Jeep or a "buyout" of the
lease. This representation was false. Biondini falsely represented himself as either a sales manager or
a floor manager. Defendant knew that plaintiffs would not purchase or lease a new Jeep that did not
have Quadra-Trac. Storto looked at defendant's inventory and determined that defendant did not have
a Quadra-Trac in stock. The vehicle Biondini located had a Quadra-Trac indicator plate but no
window sticker to verify that the vehicle was so equipped. The jury could draw the conclusion that
Biondini switched indicator plates and removed the window sticker in order to deceive plaintiffs. On
these facts, we cannot say that the jury's award was excessive as a matter of common-law principles,
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which require the award to be the product of passion, partiality, or corruption in order to be excessive.
Franz, 352 Ill. App. 3d at 1138.
Defendant next asserts that the award violated its due process rights, because there was no
evidence that defendant's conduct was "reprehensible" or intended to deceive or trick plaintiffs.
Grossly excessive punitive damages are in violation of the due process clause of the fourteenth
amendment to the United States Constitution. BMW of North America, Inc. v. Gore, 517 U.S. 559,
562, 134 L. Ed. 2d 809, 818, 116 S. Ct. 1589, 1592 (1996). In reviewing the constitutionality of
punitive damage awards, we are to consider three guideposts: (1) the degree of reprehensibility of the
defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff
and the punitive damages award; and (3) the difference between the punitive damages award and the
civil penalties authorized or imposed in comparable cases. Gore, 517 U.S. at 575, 134 L. Ed. 2d at
826, 116 S. Ct. at 1598-99. The most important of the three guideposts is the degree of
reprehensibility. Gore, 517 U.S. at 575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1599. Courts determine
the degree of reprehensibility by considering whether the harm imposed was physical, as opposed to
economic; the tortious conduct evinced an indifference to or a reckless disregard of the health and
safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated
actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or
deceit. Gore, 517 U.S. at 576-77, 134 L. Ed. 2d at 827, 134 S. Ct. at 1599. We review de novo the
constitutional question of whether a punitive damage award is excessive in violation of due process.
International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456, 469
(2006).
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Applying the reprehensibility factors in this case, the harm was economic, although defendant's
conduct evinced a reckless disregard for plaintiffs' safety. Plaintiffs were deceived into believing the
1997 Jeep was equipped with the Quadra-Trac system, which required no driver input. Therefore,
plaintiffs did not realize their vulnerability in icy conditions, and they experienced mishaps. There was
no evidence presented of plaintiffs' financial vulnerability. There was no evidence that this was
anything but an isolated instance of switching indicator plates, although Biondini made several
misrepresentations to plaintiffs. We find that the harm was the result of defendant's deceit and trickery
and that, therefore, its conduct can be described as reprehensible. We may make a finding of
reprehensibility utilizing only one of the factors. Lowe, 225 Ill. 2d at 483.
We now look at the second guidepost, the disparity between the actual or potential harm
suffered by plaintiffs and the punitive damages award. With regard to this guidepost, few awards
exceeding single-digit ratios will pass constitutional muster. State Farm Mutual Automobile Insurance
Co. v. Campbell, 538 U.S. 408, 425, 155 L. Ed. 2d 585, 605-06, 123 S. Ct. 1513, 1524 (2003).
However, ratios in the single digits are not binding, as there is no bright-line rule as to whether a
punitive damage award is excessive. Campbell, 538 U.S. at 425, 155 L. Ed. 2d at 605, 123 S. Ct. at
1524. In our case, the jury awarded stipulated out-of-pocket damages of $8,527.97. The punitive
damages award was $88,168.50, roughly 10 times the amount of compensatory damages. Defendant
urges that the ratio is "grossly" excessive and should be reduced to no more than quadruple damages.
Low compensatory damages awards may support higher ratios where a particularly egregious act has
resulted in a small amount of economic damage or where an injury is difficult to detect and the harm
is difficult to determine. Lowe, 225 Ill. 2d at 487. Our supreme court has instructed us that the best
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way to determine whether a given ratio is appropriate is to compare it to punitive damages awards in
similar cases. Lowe, 225 Ill. App. 3d at 487.
Plaintiffs attempt such a comparison of cases; however, the cases they cite are inapposite.
Plaintiffs cite Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003), which upheld
a punitive damages award of $186,000 where actual damages were only $5,000. That case is
dissimilar to ours, as it involved plaintiffs being bitten by bedbugs and damages were difficult to
quantify because they were largely emotional. Plaintiffs also rely on Ekl v. Knecht, 223 Ill. App. 3d
234 (1991), Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94 (1994), and Totz v.
Continental Du Page Acura, 236 Ill. App. 3d 891 (1992), for the proposition that proportionality
between actual damages and punitive damages is not required. These cases are inapposite because
they resolved the issue of the propriety of the amounts of punitive damages under the common law
and not pursuant to the constitutional principles in Gore, Campbell, and Lowe. Moreover, Totz was
concerned with an amount of attorney fees vis-a-vis actual damages, rather than with a punitive
damages award.
Our research has disclosed a recent case from the Arkansas Court of Appeals with facts similar
to those in our case. In Jim Ray, Inc. v Williams, No. CA06--789 (June 27, 2007), Williams purchased
a Nissan pickup truck from Jim Ray. Williams, slip op. at ___. After he drove the truck from the lot,
Williams realized the truck had about 3,000 miles on it and the invoice price was higher than the
sticker price. Williams, slip op. at ___. Williams returned the truck and convinced Jim Ray to set the
deal aside. Williams, slip op. at ___. Williams then picked out another truck with a sticker price of
$29,700. Williams, slip op. at ___. In completing the paperwork, Williams noticed the invoice price
was $34,125.87. Williams, slip op. at ___. When Williams pointed out the discrepancy to the finance
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manager, the finance manager assured Williams that the higher figure represented points or credits,
not dollars. Williams, slip op. at ___. Based on this representation, Williams signed the invoice.
Williams, slip op. at ___. Williams also purchased an extended warranty that the finance manager told
him he was required to buy. Williams, slip op. at ___. Williams later determined he had actually paid
$34,125.87 for the truck and, when he tried to cancel the warranty, Jim Ray never responded.
Williams, slip op. at ___. Williams's experts at trial testified that a year-old pickup is not ordinarily
sold above the sticker price, that the requirement that the customer purchase an extended warranty
on a used vehicle constituted fraud, and that the entire deal with Jim Ray resulted in an unconscionable
profit for the dealer. Williams, slip op. at ___. Williams was awarded $4,425.87 in actual damages
and $75,000 in punitive damages. Williams, slip op. at ___. Undertaking a de novo review of the
amount of the punitive damages award, pursuant to Gore, the Arkansas Court of Appeals remitted the
punitive damages to $30,000, which represented a single-digit ratio of seven to one. Williams, slip
op. at ___.
The Williams court reasoned that Jim Ray's conduct, even including the fact that the dealership
was a recidivist, was not highly reprehensible. Williams, slip op. at ___. The court then observed that
it had approved ratios higher than single digits in cases of extreme emotional distress or humiliation,
a significant disparity of bargaining power, and a "nightmarish" situation involving an improper arrest.
Williams, slip op. at ___. Taking into consideration all three guideposts set forth in Gore, the court
determined that a punitive damages award of no more than a single-digit ratio was warranted.
Williams, slip op. at ___.
We find Williams instructive. Here, defendant's conduct was reprehensible, but it was not
heinous or shocking to the conscience. There was no evidence of recidivism, and the transaction was
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at arm's length. We cannot say, based on the evidence, that plaintiffs were sophisticated business
persons, although they had prior experience negotiating a vehicle lease. However, defendant's deceit
and trickery did show a reckless disregard for plaintiffs' safety, because plaintiffs were unaware the
vehicle would not automatically go into four-wheel drive in bad road conditions. Thus, we would
place defendant's reprehensibility in the middle to slightly above the middle range. Punitive damages
of more than four to one but less than double digits are appropriate. We conclude that an award of
punitive damages in the amount of $59,695.79 is constitutional. This amount represents a seven to
one ratio. Accordingly, we modify the trial court's judgment, and we remand for a remittitur in the
punitive damages judgment against defendant to the amount of $59,695.79. See Turner v. Firstar
Bank, 363 Ill. App. 3d 1150, 1166 (2006). The remittitur is conditioned upon plaintiffs' consent. On
remand, the trial court shall set a reasonable amount of time for plaintiffs' consent, and, if plaintiffs do
not consent, then a new trial on the issue of the amount of punitive damages is proper. Turner, 363
Ill. App. 3d at 1166.
The third guidepost is not applicable, because there are no civil penalties for defendant's
conduct.
E. Whether the Trial Court Erred When It Denied Defendant's Motion for Judgment
Notwithstanding the Verdict
Defendant next contends that the trial court erred when it denied defendant's motion for
judgment notwithstanding the verdict. Defendant reiterates its argument that the jury did not award
actual damages on the common-law fraud count, and it requests that we vacate the finding of liability
for common-law fraud or that we reverse and remand for a new trial on the common-law fraud claim.
"A motion for judgment notwithstanding the verdict should be granted only when ' "all of the evidence,
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when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that
no contrary verdict based on that evidence could ever stand." ' [Citations.]" Petre v. Cardiovascular
Consultants, 373 Ill. App. 3d 929, 938 (2007). "We review a trial court's decision to deny a motion
for judgment notwithstanding the verdict de novo." Petre, 373 Ill. App. 3d at 938-39. This argument
has no merit because we have determined defendant waived the issue of whether the jury awarded
actual damages for fraud. Accordingly, the trial court did not err in denying the motion for judgment
notwithstanding the verdict.
F. Whether the Trial Court Erred When It Denied Defendant's Motion for a New Trial
Defendant next contends that the trial court erred when it denied defendant's motion for a new
trial. Defendant incorporates all of its prior arguments. "A motion for a new trial should be granted
where the jury's verdict is against the manifest weight of the evidence." Petre, 373 Ill. App. 3d at 939.
"A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly
evident or where the findings of the jury are unreasonable, arbitrary, and not based on any of the
evidence." Petre, 373 Ill. App. 3d at 939. Because the decision whether to grant a new trial rests
within the trial court's discretion, we will not reverse its ruling absent an abuse of discretion. Petre,
373 Ill. App. 3d at 939. We have already determined that the jury's verdict in this case was not against
the manifest weight of the evidence. Accordingly, the trial court did not err in denying defendant's
motion for a new trial by jury on the common-law fraud count. Similarly, we have already determined
that the trial court's verdict on the consumer fraud count was not against the manifest weight of the
evidence. Contrary to defendant's assertion that the trial court could not have concluded, based on
the evidence, that defendant's acts were intentional, the trial court could have reasonably disbelieved
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Biondini and Guzzino and found plaintiffs credible. Accordingly, the trial court did not err in denying
defendant's motion for a new trial as to liability on the consumer fraud count.
G. Whether the Trial Court Abused Its Discretion in Awarding Attorney Fees
Lastly, defendant contends that the trial court abused its discretion in awarding plaintiffs
attorney fees in the amount of $53,087.50. Defendant's first basis is that the trial court's judgment
against defendant on count V was improper. We have disposed of that issue in plaintiffs' favor.
Defendant's second basis is that we have previously found, in other cases, plaintiffs' counsel's
fee petitions wanting, and the fee petition in this case fails to differentiate between compensable and
noncompensable time, fails to provide evidence that counsel's hourly fee is reasonable in light of the
services performed, fails to provide evidence of the market rate for Du Page County, fails to identify
the timekeeper, fails to include specific facts, fails to show time actually incurred, and contains block
billing. Defendant recites this litany without further elaboration or argument or citation to authority.
The only cases defendant cites are cases where we supposedly criticized plaintiffs' counsel's billing
practices. Defendant urges us to dismiss the instant fee petition "out of hand" to teach counsel to heed
our prior admonishments in other, unrelated, cases. At page 33 of its brief, defendant concludes, "The
only way that this [c]ourt's previous admonitions *** are to have any binding effect is if plaintiffs' fee
petition is dismissed out of hand." Asking this court to punish plaintiffs for their attorney's past alleged
transgressions in other cases is meritless. Defendant has cited no authority to allow us to do that, and
we decline to do so. Moreover, we determine that defendant has waived the argument relating to the
sufficiency of the fee petition in this case by failing to comply with Supreme Court Rule 341(h)(7) (210
Ill. 2d R. 341(h)(7)). Defendant has lumped its conclusions about the perceived deficiencies in the fee
petition into one sentence in its brief, without supporting them with legal argument or appropriate case
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citations. "No amount of steadfastness relieves a party of its obligation to abide by this rule in
presenting its arguments on appeal." Novakovic v. Samutin, 354 Ill. App. 3d 660, 667 (2004).
Further, we note that defendant has filed an incomplete record. This litigation commenced in 1998.
The record defendant submitted on appeal is missing the first three years. Accordingly, we hold that
the trial court did not abuse its discretion in awarding plaintiffs $53,087.50 in attorney fees.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed as
modified by the remittitur of punitive damages, and the cause is remanded to the trial court with
instructions to set a reasonable date for plaintiffs' consent to the remittitur and to grant a new trial on
the issue of punitive damages should plaintiffs not consent to the remittitur. The court is also
instructed to reduce plaintiffs' actual damages to a total of $8,527.97.
Affirmed as modified; cause remanded.
HUTCHINSON and GROMETER, JJ., concur.
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