Walker v. Shults Auto Sales, Inc.

2025 IL App (2d) 240459

• Court: Appellate Court of Illinois
• Decided: May 28, 2025
• Docket: 2-24-0459
• Status: Published

Opinion

2025 IL App (2d) 240459 No. 2-24-0459 Opinion filed May 28, 2025 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

MALCHIE WALKER, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellant, ) ) v. ) No. 21-AR-235 ) SHULTS AUTO SALES, INC., ) Honorable ) Mark R. Facchini, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE KENNEDY delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Malchie Walker, sued defendant, Shults Auto Sales, Inc., for violations of the

Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1

et seq. (West 2020)) and the Uniform Commercial Code (UCC) (810 ILCS 5/1-101 et seq. (West

2020)), stemming from plaintiff’s purchase of a used vehicle. One of plaintiff’s UCC claims

alleged breach of the implied warranty of merchantability (see id. § 2-314). The matter proceeded

to arbitration, where an award was entered in defendant’s favor. Plaintiff rejected the award.

¶2 After plaintiff rejected the arbitration award, he filed a motion for leave to file a second

amended complaint, seeking to add his daughter as a party and include a federal claim for breach

of the implied warranty of merchantability under the Magnuson-Moss Warranty-Federal Trade 2025 IL App (2d) 240459

Commission Improvement Act (MMWA) (15 U.S.C. § 2301 et seq. (2018)). The trial court denied

plaintiff leave to amend, and the matter proceeded to trial.

¶3 Following a bench trial, the trial court found in favor of plaintiff on his implied warranty

claim and in favor of defendant on the remaining claims. Thereafter, plaintiff petitioned for

attorney fees under the MMWA. The court denied the petition for attorney fees and plaintiff’s

subsequent motion for reconsideration.

¶4 Plaintiff timely appealed. Plaintiff argues that the trial court erred (1) in denying his motion

for leave to file a second amended complaint and (2) in denying his petition for attorney fees. We

affirm.

¶5 I. BACKGROUND

¶6 On June 16, 2021, plaintiff filed his initial complaint against “James Shults and Bobbie

Shults, individually and D/B/A Shults Auto Sales, Inc.” Defendant moved to dismiss James Shults

and Bobbie Shults in their individual capacities. The trial court granted the motion and allowed

plaintiff leave to file an amended complaint.

¶7 On January 14, 2022, plaintiff filed a four-count amended complaint against defendant.

According to the amended complaint, on August 15, 2020, plaintiff purchased a used 2012 GMC

Terrain sport utility vehicle from defendant for $7,995. Under the terms of the retail installment

contract, plaintiff was to make 38 monthly payments, totaling $10,643.34. Plaintiff later learned

that the vehicle had been in a flood, which resulted in “extreme rusting of the frame and underside

of the vehicle.” A mechanic advised plaintiff that “the vehicle was unsafe to drive.” Plaintiff

advised defendant of the unsafe condition but was unsuccessful in resolving the issue.

¶8 Count I alleged that defendant violated section 2 of the Consumer Fraud Act (815 ILCS

505/2 (West 2020)) by engaging in deceptive practices that led plaintiff to purchase the vehicle.

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Count II alleged that defendant violated the implied warranty of merchantability under section 2-

314 of the UCC (810 ILCS 5/2-314 (West 2020)), in that the vehicle was not fit for its ordinary

purpose. Count III sought revocation of acceptance under section 2-608 of the UCC (id. § 2-608).

Count IV sought the imposition of a constructive trust. Each count requested attorney fees.

¶9 On April 19, 2022, the trial court granted defendant 14 days to respond to the amended

complaint. The matter was set for arbitration on June 10, 2022.

¶ 10 On April 20, 2022, plaintiff’s counsel filed a motion to withdraw, citing irreconcilable

differences between counsel and plaintiff.

¶ 11 Defendant answered the amended complaint on May 3, 2022.

¶ 12 On May 5, 2022, the trial court granted plaintiff’s counsel’s motion to withdraw, “[f]or

reasons noted on the record.” The court’s written order noted that plaintiff had terminated counsel

in writing and directed her not to perform any further services. The order further noted that,

although plaintiff also “stat[ed] *** in writing that he has retained new counsel,” new counsel had

not yet filed an appearance and was not present. The order also noted that the case was set for

arbitration on June 10, 2022. The court granted plaintiff “through May 25, 2022, to have a new

appearance filed by the [p]laintiff or through counsel.” The court set the matter for status on May

27, 2022, noting that “the pending complaint [would] likely be dismissed” if a new appearance

was not filed.

¶ 13 On May 23, 2022, plaintiff filed a pro se appearance.

¶ 14 On May 27, 2022, the trial court struck for “good cause” the June 10, 2022, arbitration

date. The matter was continued to July 8, 2022, and, thereafter, to September 30, 2022.

¶ 15 On August 12, 2022, plaintiff, acting pro se, filed a motion for leave to file a second

amended complaint. Plaintiff claimed that he had “consulted with a qualified lawyer and realized

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that his [c]omplaint on file is deficient.” Plaintiff’s motion did not describe the specifics of any

proposed amendments or otherwise explain the alleged deficiencies in the amended complaint.

¶ 16 The proposed second amended complaint, which was attached to the motion, added

plaintiff’s daughter, Takela Walker, as an additional party and contained three counts. Count I

alleged a breach of the implied warranty of merchantability under section 2310(d)(1) of the

MMWA (15 U.S.C. § 2310(d)(1) (2018)). 1 Count II alleged that defendant violated section 2 of

the Consumer Fraud Act (815 ILCS 505/2 (West 2020)). Count III, brought under the UCC,

claimed revocation of acceptance (810 ILCS 5/2-608 (West 2020)) and cancellation of contract

(id. § 2-711(1)).

¶ 17 The attached notice of motion indicated that plaintiff would appear on August 26, 2022, to

present his pro se motion for leave to amend.

¶ 18 On August 25, 2022, plaintiff filed an amended notice of motion, which stated that plaintiff

would instead appear on September 8, 2022, to present his motion.

¶ 19 On August 26, 2022, attorney Dmitry N. Feofanov filed a substitute appearance on

plaintiff’s behalf.

1 Section 2310(d)(1) of the MMWA (15 U.S.C. § 2310(d)(1) (2018)) allows a consumer to bring a

federal claim for violation of an implied warranty, which it defines as a warranty under state laws (id.

§ 2301(7)). To bring an action under section 2310(d)(1), the consumer must give the warrantor “a

reasonable opportunity to cure” its failure to comply with an “obligation under any written or implied

warranty.” Id. § 2310(e). In addition, the MMWA provides that a prevailing consumer “in any action

brought under paragraph [(d)(1)]” may be awarded attorney fees as part of the judgment. Id. § 2310(d)(2).

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¶ 20 On August 30, 2022, plaintiff (now acting through counsel) filed under Illinois Supreme

Court Rule 90(c) and (d) (eff. Oct. 1, 2021) a notice of intent to offer documents at the arbitration

hearing. Plaintiff included the materials he intended to offer at the arbitration hearing.

¶ 21 On September 30, 2022, the arbitration hearing occurred as scheduled. After the hearing, a

panel of arbitrators found “in favor of defendant w/o costs and against plaintiff w/o costs.” That

same day, plaintiff rejected the award. The matter was continued to October 31, 2022.

¶ 22 On October 12, 2022, plaintiff filed a new motion for leave to file a second amended

complaint. Like the pro se motion filed on August 12, 2022, the new motion did not describe the

specifics of the proposed amendments or otherwise explain how the amended complaint was

deficient. The proposed second amended complaint, which was attached to the motion, alleged

essentially the same three counts as were alleged in the previously proposed second amended

complaint—one apparent difference being that count I, which still alleged a violation of the

implied warranty of merchantability under section 2310(d) of the MMWA, now also incorporated

an allegation that defendant breached the implied warranty of merchantability under section 2-314

of the UCC.

¶ 23 On November 22, 2022, defendant filed its response, arguing that plaintiff should not be

allowed to amend his complaint because (1) plaintiff failed to note any defect in the amended

complaint; (2) the amendment would be prejudicial and a surprise to defendant; (3) the request

was not timely, as it should have been addressed before arbitration; and (4) plaintiff had several

months to seek leave to amend the complaint (and twice failed to appear on the motion to amend

that he had filed).

¶ 24 On November 23, 2022, plaintiff filed his reply. Plaintiff first addressed defendant’s

argument concerning plaintiff’s failure to appear—both on August 26, 2022, and September 8,

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2022,—to argue the pro se motion to amend the complaint. Plaintiff asserted that he, then pro se,

did not appear on the August hearing date because he was in the hospital. Plaintiff asserted further

that he did not appear on the September hearing date because of a “miscommunication with the

Clerk of the Court.” In support, plaintiff attached an affidavit from Walker, who averred in relevant

part:

“2. On August 26, 2022, I came to court instead of my father, because my father

was in the hospital at that time. On that day, [d]efendant attempted to object to my father’s

motion in his absence.

3. After my lawyer came into this case, I informed him that, according to my

conversation with the [c]lerk, the matter may have been stricken from [sic] September 8

call. On an off chance that this matter was not stricken, my lawyer instructed me to come

to court and inform the [c]ourt that my lawyer filed his appearance, to ask that the

September 8 date be stricken, and to also inform the [c]ourt that everything in this case

would be handled by my lawyer from that point.

4. I recall being asked to get my lawyer on the phone, and I went to the hallway to

do so. However, when I came back, I understood that the order was already entered.”

Plaintiff argued that defendant’s response failed to acknowledge that plaintiff’s attempts to amend

the complaint began when he was acting pro se and that pro se plaintiffs should be given

considerable leeway.

¶ 25 Plaintiff argued further that the proposed second amended complaint made only two

substantive changes—adding Walker as a party and repleading the implied warranty claim under

the MMWA—and, thus, defendant would not be prejudiced or surprised by the amendments.

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¶ 26 The hearing on the newly filed motion for leave to file a second amended complaint

occurred on December 19, 2022. Defendant first noted that arbitration had already taken place.

Defendant argued that the proposed amendment was not timely because plaintiff had plenty of

opportunities before arbitration to file the motion. Defendant stated that “[t]hey could have done

all of this between last spring and September 30th.” Defendant pointed out that the previous motion

for leave to file a second amended complaint had been twice stricken from the call, during which

time there was a pending September 30 arbitration date, and that plaintiff chose to proceed to

arbitration rather than pursue the motion. Defendant also argued that the proposed second amended

complaint did not cure any defect in the amended complaint. Defendant further argued that the

proposed second amended complaint prejudiced and surprised defendant:

“We spent a great deal of time in between September 8th, when it was struck from the call,

and September 30th, when it went to arbitration, preparing the case for arbitration. And

we’ve done a lot of work on it since then, so, yes, it does prejudice, it does surprise us. I

mean, you just can’t have this circuitous litigation.”

Defendant also argued that there were previous opportunities to amend the pleadings, given that

plaintiff “had a long time to come before this [c]ourt.”

¶ 27 Following defendant’s argument, the trial court inquired of plaintiff regarding his

previously filed pro se motion for leave to file a second amended complaint and his failures to

appear on the motion. Plaintiff’s counsel explained that his “understanding” was that plaintiff’s

daughter appeared on August 26, 2022, to advise that plaintiff was in the hospital, and then the

matter was “taken off call.” Counsel stated that “they made a second attempt” (presumably by

setting the matter for hearing on September 8), at which time “[counsel] was already of record.”

Counsel stated that the second attempt “was also struck from the call” and that was “why [counsel]

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did not appear.” In response, the court pointed out that, at all times, plaintiff had counsel: the pro se

motion for leave to file expressly stated that, after plaintiff’s original counsel withdrew, plaintiff

engaged new counsel. The court remarked:

“[S]omebody has to take action, and I’m struggling because at no point was there

an attempt to move the arbitration hearing. There were two attempts to amend a complaint.

At no point was there [sic] to move the arbitration hearing.

So, candidly, even though what you suggest seems simple and straightforward,

there is prejudice here. [Defendant] had to prepare, had to participate in an arbitration

hearing, went through all of this.”

¶ 28 Ultimately, the trial court concluded:

“I think what we have is we have a situation in which there were attempts to amend, those

fell by the wayside, and then there was a hearing. There was no attempt to address the

hearing, although there were attempts to modify the complaint. It’s almost as if there was

caution to the wind, and I’m saying this, perhaps, inartfully and impolitely. Caution to the

wind. Let the [p]laintiff—or excuse me, the [d]efendant, go through the hearing and then

at some point later in time, without agreement, without acquiescence or otherwise leave by

the [c]ourt, come back later to add a substantive count, as well as another party. I think that

does fly in the face of Rule 88, and the desire—the earlier desire of the Supreme Court to

move these cases to prompt resolution one way or the other *** somehow.”

The matter was set for a pretrial conference and subsequent trial.

¶ 29 On January 25, 2024, following a bench trial, the trial court entered judgment for plaintiff

on count II of the amended complaint (violation of the implied warranty of merchantability under

the UCC) and awarded plaintiff $10,143.34. The court found for defendant on count I (violation

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of section 2 of the Consumer Fraud Act) and count III (revocation of acceptance under the UCC).

Plaintiff had nonsuited count IV (constructive trust) before trial. The court continued the matter

for a hearing on attorney fees.

¶ 30 On February 22, 2024, plaintiff filed a petition for attorney fees and costs, requesting

“attorney fees under the [MMWA].” Plaintiff sought “$23,132.50 (plus attorney fees previously

paid by [p]laintiff to his prior counsel).”

¶ 31 On April 19, 2024, defendant filed a motion to strike the petition. Defendant argued that

plaintiff was not entitled to attorney fees because he recovered under section 2-314 of the UCC

(810 ILCS 5/2-314 (West 2022)), which, unlike the MMWA, does not provide for an attorney-fee

award.

¶ 32 A hearing took place on April 19, 2024. At the outset of the hearing, the trial court asked

what authority it had to award plaintiff attorney fees under the MMWA when plaintiff did not

bring a claim under that act. Plaintiff argued that he was entitled to attorney fees under the MMWA

because MMWA “bootstraps” onto the implied warranty claim under the UCC. The court

disagreed. The court stated: “[W]e follow the American rule in Illinois, meaning attorney[ ] fees

come from statute or from contract. There’s no statute that you prevailed on to get attorney[ ] fees,

there’s no contract that you prevailed on that gives you attorney[ ] fees.” The court concluded that,

because plaintiff had been denied leave to amend the complaint, there was no claim under the

MMWA, and thus plaintiff was not entitled to attorney fees.

¶ 33 Plaintiff filed a “Motion to Vacate and/or Reconsider” the denial of his petition for fees.

Plaintiff, citing foreign authorities, argued that he was entitled to attorney fees under the MMWA

after winning his breach of implied warranty claim, even though the claim was brought under the

UCC, not the MMWA. Thereafter, defendant filed a response and plaintiff a reply.

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¶ 34 Following a hearing, the trial court denied the motion. The court stated:

“[T]he count [plaintiff] won under doesn’t entitle him to fees because in Illinois we

follow the American rule, which is you either get fees by contract or you get fees by statute.

And there was no provision for fees in the sales contract for the car, and the statute that

[plaintiff] prevailed under didn’t entitle him to fees.”

¶ 35 This timely appeal followed.

¶ 36 II. ANALYSIS

¶ 37 Plaintiff raises two contentions on appeal. First, plaintiff contends that the trial court erred

in denying his motion for leave to file a second amended complaint. Second, plaintiff argues that

the court erred in denying his petition for attorney fees. Defendant has not filed a brief. However,

because the record is straightforward and the claimed errors are such that we can decide them

without the aid of an appellee’s brief, we will consider the merits of the appeal. See First Capitol

Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

¶ 38 We first consider the propriety of the trial court’s denial of plaintiff’s motion for leave to

file a second amended complaint. The following legal principles apply.

¶ 39 Section 2-616(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(a) (West 2022))

permits parties to amend their pleadings “on just and reasonable terms” at any time before a final

judgment is rendered. “Illinois law adopts a liberal policy regarding amendments of pleadings, but

the right is not unlimited, and there is no absolute right to amend a complaint.” United Conveyor

Corp. v. Allstate Insurance Co., 2017 IL App (1st) 162314, ¶ 35.

¶ 40 In Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992), our

supreme court articulated four factors a court must consider when ruling on a motion to amend:

“(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties

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would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed

amendment is timely; and (4) whether previous opportunities to amend the pleading could be

identified.” The party seeking leave to amend bears the burden of demonstrating that all four

factors favor the relief requested. I.C.S. Illinois, Inc. v. Waste Management of Illinois, Inc., 403

Ill. App. 3d 211, 220 (2010). “Reviewing courts also consider whether the amendment concerns

matters known to the pleader at the time the original pleading was filed and whether good reason

for not filing is offered by the pleader.” Bland v. Q-West, Inc., 2023 IL App (2d) 210683, ¶ 12.

¶ 41 A trial court’s decision denying a motion to amend will not be reversed on appeal absent

an abuse of discretion. Insurance Benefit Group, Inc. v. Guarantee Trust Life Insurance Co., 2017

IL App (1st) 162808, ¶ 50. An abuse of discretion occurs only when no reasonable person would

take the view that the trial court adopted. Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 76.

¶ 42 Here, in support of his claim that the trial court erred, plaintiff cites to only two authorities.

The first is section 1-106 of the Code (735 ILCS 5/1-106 (West 2022)), which states that the Code

“shall be liberally construed, to the end that controversies may be speedily and finally determined

according to the substantive rights of the parties.” The second is Seifert v. Sneckenberg Thompson

& Brody, LLP, 2022 IL App (1st) 200966. Plaintiff cites Seifert solely for the proposition that

“a dismissal for want of prosecution should be set aside where ‘satisfactory explanation of

the apparent delay has been given, there has been no intentional or wilful [sic] disregard of

any directions of the court[,] and it does not appear that further postponement of the

controversy on its merits would result in prejudice or hardship to any of the parties.’ ” Id.

¶ 40 (quoting In re Marriage of Dague, 136 Ill. App. 3d 297, 299 (1985)).

¶ 43 Absent from plaintiff’s brief is any acknowledgement of the controlling statutory

provision—section 2-616 of the Code—or Loyola’s four-factor test. Illinois Supreme Court Rule

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341(h)(7) (eff. Oct. 1, 2020) requires that the appellant’s brief “contain the contentions of the

appellant and the reasons therefor, with citations of the authorities *** relied on.” (Emphasis

added.). As a reviewing court, we are entitled to have the issues clearly defined, relevant authority

cited, and proper legal arguments presented. Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶ 5.

The failure to cite relevant authority can result in forfeiture of the argument. See Gakuba v. Kurtz,

2015 IL App (2d) 140252, ¶ 19; see also Lewis v. Heartland Food Corp., 2014 IL App (1st)

123303, ¶¶ 5-6 (arguments that fail to comply with Rule 341(h)(7) are forfeited). Here, plaintiff’s

citation to section 1-106 of the Code does little to advance his claim. Plaintiff’s citation to Seifert

is puzzling, as it concerns a dismissal for want of prosecution, and, as such, is not relevant. Thus,

given plaintiff’s failure to cite to relevant authority and present cogent argument based on that

authority, we find that plaintiff has forfeited his claim that the trial court abused its discretion in

denying his motion for leave to file a second amended complaint. 2 As noted, the plaintiff must

demonstrate that all four factors favor granting the motion for leave to amend. I.C.S. Illinois, Inc.,

403 Ill. App. 3d at 220. Here, plaintiff has failed to do so.

¶ 44 Forfeiture aside, we find no abuse of discretion. First, the trial court’s comments make

clear that it gave great weight to factors three and four of Loyola’s four-factor test, which concern

the timeliness of the motion for leave to amend and whether plaintiff had previous opportunities

2 We note, too, that although plaintiff cites three cases to support his assertion that “[t]he standard

of review for amending pleadings is abuse of discretion,” none of the cited cases involve amendments of

pleadings. See Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997) (reviewing a ruling on a motion to

disqualify counsel); Najas Cortés v. Orion Securities, Inc., 362 Ill. App. 3d 1043, 1046-47 (2005)

(reviewing a decision to not recognize a foreign judgment); Bodine Electric of Champaign v. City of

Champaign, 305 Ill. App. 3d 431, 435-36 (1999) (reviewing the denial of declaratory relief).

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to amend. Indeed, both factors weigh heavily in favor of affirming the denial of leave to amend.

Plaintiff filed his initial complaint on June 16, 2021. There can be no dispute that the proposed

MMWA claim was based on facts accessible to plaintiff when he filed his initial complaint, which

alleged a state law implied warranty claim. Plaintiff offers no excuse for his failure to include the

MMWA claim in his initial (or amended) complaint. Plaintiff waited over a year from the initial

filing before making his first request for leave to add the MMWA claim. Plaintiff had plenty of

opportunities to request leave to amend the complaint much earlier—he could have sought leave

to amend at any time after filing his initial complaint and before arbitration took place.

¶ 45 To be sure, plaintiff filed a pro se motion for leave to amend his complaint on August 12,

2022, before the arbitration hearing had occurred. However, after filing the pro se motion, plaintiff

failed on two occasions to pursue it. Although plaintiff asserts that “no reasonable person could

fault [p]laintiff for ending up in a hospital on [August 26, 2022,] the first time the motion was

presented to the trial court,” plaintiff completely ignores what transpired thereafter. The common-

law record shows that on August 25, 2022, the day before the scheduled hearing on his pro se

motion for leave to amend, plaintiff filed a pro se amended notice of motion indicating that the

motion for leave to amend would instead be heard on September 8, 2022. Plaintiff’s counsel argued

below that—despite filing his appearance on August 26, 2022, and being aware of the pending

motion—he did not appear on the September date because of a “miscommunication with the

[c]lerk of the [c]ourt” as to whether the pending motion had been stricken. According to Walker’s

affidavit, “[counsel] instructed [her] to come to court and inform the [c]ourt that [counsel] filed

his appearance, to ask that the September 8 date be stricken, and to also inform the [c]ourt that

everything in this case would be handled by [counsel] from that point.” However, as counsel

should have been aware, once he filed an appearance on plaintiff’s behalf, responsibility for

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managing the case fell to him, not plaintiff’s daughter, who could not lawfully appear in court on

plaintiff’s behalf. After filing his appearance on August 26, 2022, counsel could have called the

clerk of the court to obtain a status update as to the pro se motion. Counsel could have also filed a

new motion for leave to amend if necessary. He did neither. Moreover, as the trial court

emphasized, there were no attempts between September 8 and the arbitration hearing to continue

that hearing so that plaintiff could be heard on his motion for leave to amend. Instead, plaintiff

threw “[c]aution to the wind” and proceeded with the arbitration hearing.

¶ 46 Within the context of its comments emphasizing the timing of the motion for leave to

amend, the trial court also touched on Loyola’s first factor, which concerns whether the proposed

amendment cured a defect in the complaint. The court noted that plaintiff was attempting “to add

a substantive count.” Indeed, plaintiff, by his amendment, did not propose to cure a defect in the

complaint, but rather to add a new federal cause of action, which, as already noted, was based on

facts known to plaintiff when he initially filed his complaint. Therefore, this factor has not been

met.

¶ 47 The only argument plaintiff makes (again without citation to relevant authority) in support

of his claim that the trial court erred relates to factor two, concerning whether defendant would

sustain prejudice or surprise by the proposed amendment. Plaintiff argues that his proposed second

amended complaint sought only “to clarify that the fees are being sought under a specific statute,

[and thus] results in zero prejudice.” The trial court disagreed. The court found that defendant

suffered prejudice in that defendant “had to prepare, had to participate in an arbitration hearing,

went through all of this.” Although it is arguable that, when looking at the issue of prejudice in

isolation, one could conclude that defendant would have suffered minimal prejudice by the

amendment (because adding a claim for breach of the implied warranty of merchantability under

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the MMWA would likely not have significantly impacted defendant’s defense), it is evident that

here the trial court weighed all the factors carefully and determined that the circumstances

warranted denial of leave to amend. We cannot say that no reasonable person would take this view,

and thus we find no abuse of discretion.

¶ 48 Accordingly, we hold that (1) plaintiff forfeited his claim that the trial court abused its

discretion in denying plaintiff’s motion for leave to file a second amended complaint and

(2) forfeiture aside, the trial court did not abuse its discretion.

¶ 49 We turn now to plaintiff’s second contention. Plaintiff argues that, even though his

amended complaint did not include a claim under the MMWA (15 U.S.C. § 2310(d)(1) (2018) for

breach of the implied warranty of merchantability, he is entitled to attorney fees under the MMWA

(id. § 2310(d)(2)). We disagree.

¶ 50 “Illinois has long followed the ‘American rule’ regarding the award of attorney fees. Under

that rule, each party to litigation must normally bear its own litigation expenses, regardless of who

won.” State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487, ¶ 17.

“Prevailing parties are prohibited from recovering their attorney fees from the losing party absent

express authorization by statute or by contract between the parties.” Id.

¶ 51 Here, plaintiff succeeded on his claim for breach of the implied warranty of merchantability

under section 2-314 of the UCC (810 ILCS 5/2-314 (West 2020)). However, section 2-314 of the

UCC does not provide for an award of attorney fees. See Rubin v. Marshall Field & Co., 232 Ill.

App. 3d 522, 534 (1992) (“[An] implied warranty claim under the [UCC] *** does not provide for

the award of attorney fees.”). Accordingly, plaintiff has no statutory right to attorney fees.

¶ 52 Nevertheless, plaintiff argues that he is entitled to fees under the MMWA because “there

is no such thing as a ‘separate’ [MMWA] claim,” as it “covers implied warranties ‘arising under

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state law.’ ” See 15 U.S.C. § 2301(7) (2018). We disagree. Although plaintiff is correct that the

MMWA covers implied warranties arising under state law, it is a federal claim distinct from a

claim under the UCC. See Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 780-81 (7th Cir.

2011) (noting that the plaintiffs’ state law claims for breach of express and implied warranties

were “related” to their federal claims under the MMWA but that nothing in the MMWA prevented

the plaintiffs from “bringing their state law claims along with their federal claims”). As he did not

bring this distinct claim, he cannot now invoke the MMWA’s provisions.

¶ 53 Indeed, the language of the MMWA supports a conclusion that plaintiff is not entitled to

fees thereunder. Section 2310(d)(1)(A)-(B) (15 U.S.C. § 2310(d)(1)(A)-(B) (2018)) provides:

“(1) Subject to [provisions not applicable here], a consumer who is damaged by the

failure of a supplier, warrantor, or service contractor to comply with any obligation under

this chapter, or under a written warranty, implied warranty, or service contract, may bring

suit for damages and other legal and equitable relief—

(A) in any court of competent jurisdiction in any State or the District of

Columbia; or

(B) in an appropriate district court of the United States, subject to paragraph

(3) of this subsection.”

Attorney fees are authorized under section 2310(d)(2) of the MMWA (id. § 2310(d)(2)), which

provides:

“(2) If a consumer finally prevails in any action brought under paragraph (1) of

this subsection, he may be allowed by the court to recover as part of the judgment a sum

equal to the aggregate amount of cost and expenses (including attorneys’ fees based on

actual time expended) determined by the court to have been reasonably incurred by the

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plaintiff for or in connection with the commencement and prosecution of such action,

unless the court in its discretion shall determine that such an award of attorneys’ fees would

be inappropriate.” (Emphasis added.)

Thus, the language is clear that, to be entitled to attorney fees under the MMWA, the party must

first prevail in an action brought under the MMWA. See McIlvaine v. City of St. Charles, 2015 IL

App (2d) 141183, ¶ 17 (“[S]tatuory language must be given its plain and ordinary meaning.”).

Here, because plaintiff has not prevailed in an action brought under the MMWA, he is not entitled

to attorney fees under the MMWA.

¶ 54 This conclusion finds support in Baldwin v. Jarrett Bay Yacht Sales, LLC, 683 F. Supp. 2d

385 (E.D.N.C. 2009). There, the district court rejected the plaintiff’s argument that “a party who

pleads only a state-law breach of warranty claim and prevails may recover costs and expenses

(including attorneys’ fees) under [section 2310(d)(2) of the MMWA].” Id. at 393. The district court

stated:

“Section 2310(d)(2) permits ‘a consumer [who] finally prevails in any action brought under

paragraph (1) of this subsection’ to recover ‘cost[s] and expenses (including attorneys’ fees

***).’ [Citation.] The statute’s plain language makes clear that in order to recover under

section 2310(d)(2), the action must be brought under section 2310(d)(1). Thus, if a

consumer pleads only a state-law breach of warranty claim, the consumer has not brought

an action under section 2310(d)(1) and cannot prevail for purposes of section 2310(d)(2).”

Id.

¶ 55 Plaintiff directs us to other foreign authority and invites us to hold that, notwithstanding

plaintiff’s failure to succeed on an MMWA claim, he is entitled to fees under its provisions. For

instance, in Hawkins v. Ford Motor Co., 566 S.E.2d 624, 632 (W. Va. 2002), the West Virginia

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Supreme Court of Appeals held that a plaintiff who prevails on a claim for breach of the implied

warranty of merchantability under West Virginia’s Uniform Commercial Code (W. Va. Code § 46-

2-101 et seq.) may recover attorney fees under the MMWA “as long as the plaintiff sets forth

sufficient factual allegations to state a claim showing that he or she is entitled to any relief which

the court may grant.” Plaintiff asserts that other courts have reached the same result. See Seybold

v. Francis P. Dean, Inc., 628 F. Supp. 912, 914-15 (W.D. Pa. 1986) (allowing attorney fees under

the MMWA, although no claim under the statute was pleaded in the complaint, where the plaintiff

brought a state law breach of warranty claim and the issue of attorney fees under the MMWA was

raised by the parties more than two years before trial and was later briefed before trial); Forest

River, Inc. v. Posten, 847 So. 2d 957, 961-62 (Ala. Civ. App. 2002) (allowing recovery of attorney

fees under the MMWA after the MMWA claims had been dismissed on summary judgment, where

the plaintiff later prevailed at trial on a state law breach of express warranty claim); Bonnette v.

MG Financial Enterprises, LLC, 540 P.3d 1213, 1218-19 (Ariz. Ct. App. 2023) (the plaintiff was

entitled to attorney fees because his successful “lemon law” claim under state law qualified as an

implied-warranty claim as defined by the MMWA).

¶ 56 We acknowledge the foregoing authority. We note, however, that decisions from other

states do not bind us. See Mount Vernon Fire Insurance Co. v. Heaven’s Little Hands Day Care,

343 Ill. App. 3d 309, 320 (2003) (“[C]ases from foreign jurisdictions are not binding upon this

court.”). Thus, we decline to follow Hawkins, Forest River, and Bonnette to the extent they are not

otherwise distinguishable. 3 Although Seybold is a federal decision leaning in plaintiff’s favor, we

are not bound by it either. Our supreme court has stated:

3 Plaintiff also cites Walsh v. Chrysler Corp., No. CIV. A. 96-CV-5802, 1997 WL 732459 (E.D. Pa.

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“While we are bound only by the United States Supreme Court, if the lower federal courts

are uniform on their interpretation of a federal statute, this court, in the interest of

preserving unity, will give considerable weight to those courts’ interpretations of federal

law and find them to be highly persuasive. [Citation.] However, if the federal courts are

split, we may elect to follow those decisions we believe to be better reasoned.” (Emphases

in original.) State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, ¶ 35.

Here, as noted above, there is federal authority—specifically, Baldwin—which we believe to be

better reasoned. Accordingly, we elect to follow Baldwin.

¶ 57 Based on the foregoing, we hold that the trial court did not err in denying plaintiff’s petition

for attorney fees under the MMWA because plaintiff did not prevail on a claim brought under the

MMWA.

¶ 58 III. CONCLUSION

¶ 59 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

Nov. 26, 1997), but it is readily distinguishable. In Walsh, the plaintiff brought claims under both the

MMWA and the UCC. Id. at *1. A panel of arbitrators found in the plaintiff’s favor but failed to specify

which statute authorized recovery. Id. The court held that, because there was no evidence that the plaintiff

abandoned her MMWA claim, the award did not preclude an award of attorney fees under the MMWA. Id.

at *2.

Finally, plaintiff cites Maconi v. Price Motorcars, 1993 WL 542571, at *3 (Del. Super. Ct. Dec. 1,

1993), an unpublished Delaware trial court order awarding attorney fees under the MMWA where the

plaintiffs raised the issue of liability under the MMWA prior to trial but never formally pled a claim under

that statute and the jury found that defendants violated the implied warrant of merchantability.

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¶ 60 Affirmed. 4

4 On October 28, 2024, plaintiff filed in this court a motion under Illinois Supreme Court Rule 362

(eff. July 1, 2017) seeking to amend his amended complaint to add the words “ ‘under Section 2310(d)(2)

of the [MMWA]’ ” to his prayer for relief in count II, which was an implied warranty claim under section

2-314 of the UCC. Under Rule 362(b), the party “must show the amendment to be necessary, that no

prejudice will result to the adverse party if the amendment sought is permitted, and that the issues sought

to be raised by the amendment are supported by the facts in the record on appeal.” Ill. S. Ct. R. 362(b) (eff.

July 1, 2017). Here, given our holding that plaintiff cannot recover attorney fees under the MMWA when

he prevailed on an implied warranty claim brought only under the UCC, the addition of a citation to the

MMWA in plaintiff’s claim for relief in count II would not entitle him to fees. Thus, the amendment would

be futile. Accordingly, we deny the motion.

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Walker v. Shults Auto Sales, Inc., 2025 IL App (2d) 240459

Decision Under Review: Appeal from the Circuit Court of McHenry County, No. 21-AR- 235; the Hon. Mark R. Facchini, Judge, presiding.

Attorneys Dmitry N. Feofanov, of ChicagoLemonLaw.com, P.C., of for Lyndon, for appellant. Appellant:

Attorneys No brief filed for appellee. for Appellee:

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