A former Naperville, Ill., dealership that won a consumer protection suit at trial cannot recoup its attorney fees and expenses from the disgruntled customer who failed to prove misrepresentation, the Illinois Appellate Court has ruled.
The three-judge panel found no evidence the customer, Brian Casey, acted in bad faith when he sued now-defunct Jerry Yusim Nissan Inc. and two of its salespeople.
A lawyer for the dealership, Thomas Hanekamp of Chicago, said the decision reflects uncertainty about Illinois law. Appellate court panels have reached contradictory interpretations about whether bad faith on the part of a consumer is required to award attorney fees.
In 1992, Casey examined a 1983 BMW with 83,000 miles on the Jerry Yusim lot. During a test drive, he noticed smoke or steam rising from under the hood. He claimed that the sales staff promised the problem would be fixed.
After he bought the car for $5,100, an independent mechanic inspected the car for leaks but found none. After Casey drove to California, however, he took the car to a BMW repair shop and was told the cylinder head was cracked and would cost $5,000 to $6,000 to fix.
He sued in Page County Circuit Court, alleging violation of Illinois' Consumer Fraud and Deceptive Business Practices Act. The suit contended the dealership had misrepresented the condition of the car, that the cylinder head was cracked when he bought it and that the dealership had used Stop Leak to fix it temporarily.
The suit asked for compensatory damages to cover repair costs, plus attorney fees and punitive damages.
There was conflicting testimony at a nonjury trial, including evidence by a California BMW mechanic and by Casey's expert witness. Judge Hollis Webster found in favor of the defense and ordered Casey to pay $30,000 of the $41,000 in attorney fees the dealership requested.
On appeal, Casey did not challenge the verdict but contested the attorney fee award.
The appellate court agreed that attorney fees were not justified because Casey had not acted in bad faith.
The consumer protection law makes it more difficult for successful defendants to collect attorney fees than for successful plaintiffs, Judge Tom Lytton said. That means defendants - but not plaintiffs - must demonstrate bad faith to force the loser to pay their legal expenses.
'The purpose and intent of the act is to eliminate all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers,' the court said. 'If plaintiffs in these cases are routinely subject to liability for the defendants' fees and costs, such actions would be deterred, defeating the purpose of the act.'
Casey's lawyer, Michael Rath-sack of Chicago, said most plaintiffs 'couldn't afford to sue' if they faced the likelihood of paying a dealer's attorney fees.
Hanekamp, the dealership's lawyer, said no decision has been made on a further appeal.