{ "id": 4269454, "name": "TOM R. BOECKENHAUER et al., Plaintiffs-Appellees, v. JOE RIZZA LINCOLN MERCURY et al., Defendants (Ford Motor Company, Defendant-Appellant)", "name_abbreviation": "Boeckenhauer v. Joe Rizza Lincoln Mercury", "decision_date": "2007-04-11", "docket_number": "No. 2\u201406\u20140604", "first_page": "926", "last_page": "930", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 926" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "99 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3164374 ], "year": 1984, "pin_cites": [ { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0389-01" ] }, { "cite": "329 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472375 ], "year": 2002, "pin_cites": [ { "page": "684", "parenthetical": "Krautsack I" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0666-01" ] }, { "cite": "204 Ill. App. 3d 596", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2573414 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0596-01" ] }, { "cite": "296 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222668 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0102-01" ] }, { "cite": "223 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3604887 ], "weight": 12, "year": 2006, "pin_cites": [ { "parenthetical": "Krautsack II" }, { "page": "554" }, { "page": "554" }, { "page": "554" }, { "page": "556-60" }, { "page": "562" }, { "page": "562" }, { "page": "563-66" }, { "page": "559-60" }, { "page": "559-60" }, { "page": "557" }, { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/223/0541-01" ] }, { "cite": "361 Ill. App. 3d 470", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4258772 ], "weight": 3, "year": 2005, "pin_cites": [ { "parenthetical": "Boeckenhauer I" }, { "page": "475" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0470-01" ] } ], "analysis": { "cardinality": 498, "char_count": 11773, "ocr_confidence": 0.772, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1430869135613698 }, "sha256": "3eac7e26a955367f6b4db744a83291d7399acdb5fab6b94991d3c82c987c6e75", "simhash": "1:71e902c42fc9f5e7", "word_count": 1973 }, "last_updated": "2023-07-14T16:46:01.247775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TOM R. BOECKENHAUER et al., Plaintiffs-Appellees, v. JOE RIZZA LINCOLN MERCURY et al., Defendants (Ford Motor Company, Defendant-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE GEOMETER\ndelivered the opinion of the court:\nThe defendant Ford Motor Company appeals the trial court\u2019s order denying it attorney fees in an action filed by the plaintiffs, Tom and Jean Boeckenhauer, under section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a(c) (West 2002)). We affirm.\nI. BACKGROUND\nThis is the second time this case has been before this court. Boeckenhauer v. Joe Rizza Lincoln Mercury, 361 Ill. App. 3d 470 (2005) (Boeckenhauer I), abrogated by Krautsack v. Anderson, 223 Ill. 2d 541 (2006) (Krautsack II). The facts are not in dispute and are taken in part from Boeckenhauer I.\nIn September 1998, the Boeckenhauers entered into a retail installment contract for the purchase of a used vehicle from Joe Rizza Lincoln Mercury. The vehicle was manufactured by Ford and the contract was assigned to Old Kent Bank. About two months after the purchase, the right front wheel fell off of the vehicle while Jean was driving it. The Boeckenhauers later learned that before they purchased it, the vehicle had been in an accident and repaired with salvaged parts.\nThe Boeckenhauers filed a multiple-count complaint naming Rizza, Ford, and Old Kent as defendants. They later amended the complaint to add claims that Ford and Rizza violated the Consumer Fraud Act. 815 ILCS 505/1 et seq. (West 1998). The claims were premised on the allegation that Rizza was acting as the agent or apparent agent of Ford.\nThe action went to trial, with the Consumer Fraud Act claims tried by the court. Ford did not provide a record of the trial testimony for this appeal. However, the briefs, the record, and the trial court\u2019s orders indicate that the Boeckenhauers presented evidence about their belief that Rizza held itself out as an agent of Ford.\nDuring the course of the lawsuit, Ford moved to dismiss the action. It also moved for summary judgment and moved for a judgment at the close of the Boeckenhauers\u2019 evidence. Ford provided evidence from a franchise agreement between Ford and Rizza that disavowed any agency relationship between them. It also provided evidence that a clause in the installment contract signed by the Boeckenhauers stated that Rizza was not an agent of Ford. The trial court denied the motions.\nOn the Consumer Fraud Act claims, the trial court ruled in the Boeckenhauers\u2019 favor against Rizza. But the court ruled in favor of Ford on the claim against it. The Boeckenhauers filed a petition for fees and costs against Rizza as prevailing parties under section 10a(c) of the Consumer Fraud Act. Ford also filed a petition for fees against the Boeckenhauers under the same section. The trial court granted the Boeckenhauers\u2019 petition, but denied Ford\u2019s petition.\nThe trial court appeared to reason that while Ford was a prevailing party under the Consumer Fraud Act, the court was first required to determine whether the Boeckenhauers acted in bad faith under the standard used for the imposition of sanctions under Supreme Court Rule 137 (155 Ill. 2d R. 137). The trial court noted that the considerations could differ when the defendant, instead of the plaintiff, sought fees, and further noted that the appellate court was divided on whether bad faith on the plaintiffs part was required before fees could be awarded. The trial court found that Ford failed to show that it was entitled to fees, stating that the court had denied all of Ford\u2019s substantive motions.\nOn appeal, we reversed. Recognizing the division in the appellate court, we held that bad faith, while an important consideration, was not a prerequisite to an award of fees to a defendant under the Consumer Fraud Act and that a trial court should consider the totality of the circumstances. Boeckenhauer I, 361 Ill. App. 3d at 475. Because it was unclear whether the trial court denied fees based solely on a determination that the Boeckenhauers did not act in bad faith under Rule 137, we remanded the case for further proceedings.\nOn remand, the trial court again denied Ford\u2019s petition for fees. The court noted various factors to be considered, including the level of bad faith. The court found that there was not a level of bad faith or culpability on the part of the Boeckenhauers that would justify an award of fees. The court further found that fees were not warranted under a variety of other considerations. Thus, looking at the totality of the circumstances, the trial court denied Ford\u2019s petition.\nFord appeals. During the pendency of the appeal, the Illinois Supreme Court decided Krautsack II, which abrogated our determination in Boeckenhauer I that a finding of bad faith is not a prerequisite to an award of fees to a defendant under the Consumer Fraud Act. We granted the Boeckenhauers\u2019 motion to cite Krautsack II as additional authority.\nII. ANALYSIS\nFord contends that under the totality of the circumstances, it is entitled to fees and costs as a prevailing party because the franchise agreement and installment contract clearly stated that Rizza was not an agent of Ford. Thus, it argues that the Boeckenhauers\u2019 claim was so flimsy that under a variety of considerations, it is entitled to an award of fees. The Boeckenhauers argue that they did not have a copy of the franchise agreement and that the language in the installment contract was buried in the fine print. They also argue that Ford failed to present a sufficient record to show that it is entitled to fees. They further contend that under Krautsack II, the trial court was required to find that they acted in bad faith, and it specifically found that they did not.\nA. General Principles and Standard of Review\nSection 10a(c) of the Consumer Fraud Act states that a court \u201cmay award *** reasonable attorney\u2019s fees and costs to the prevailing party.\u201d 815 ILCS 505/10a(c) (West 2002). \u201cThe term \u2018prevailing party\u2019 encompasses a prevailing defendant, as well as a prevailing plaintiff.\u201d Krautsack II, 223 Ill. 2d at 554.\nSection 10a(c) states that the court \u201cmay\u201d award fees and costs, and the word \u201cmay\u201d ordinarily connotes discretion. Krautsack II, 223 Ill. 2d at 554. Thus, awards under section 10a(c) are left to the discretion of the trial court. Krautsack II, 223 Ill. 2d at 554.\nUntil recently, there was a split of authority whether a finding of bad faith on the part of the plaintiff was required when a defendant sought fees under section 10a(c). We held that bad faith was not a prerequisite and instead was merely a factor to be considered. Boeckenhauer I, 361 Ill. App. 3d at 476, abrogated, Krautsack II, 223 Ill. 2d at 556-60. The Third and Fourth Districts, however, determined that bad faith was a prerequisite. See Casey v. Jerry Yusim Nissan, Inc., 296 Ill. App. 3d 102 (1998), abrogated on other grounds, Krautsack II, 223 Ill. 2d at 562; Haskell v. Blumthal, 204 Ill. App. 3d 596 (1990), abrogated on other grounds, Krautsack II, 223 Ill. 2d at 562. Relying on the Third District opinion in Casey, the First District also found that bad faith was required. Krautsack v. Anderson, 329 Ill. App. 3d 666, 684 (2002) (Krautsack I), rev\u2019d on other grounds, 223 Ill. 2d at 563-66. The Illinois Supreme Court has since clarified that bad faith is a prerequisite. Krautsack II, 223 Ill. 2d at 559-60.\nB. Krautsack II\nIn Krautsack I, the defendant sought fees and costs under the Consumer Fraud Act, and the First District remanded for further proceedings. The court stated in dicta that a finding of bad faith was required before fees could be awarded to the defendant. On remand, the trial court found that there was no bad faith on the plaintiff\u2019s part, and the First District affirmed with a specific holding that bad faith was a prerequisite to a fee award to a defendant. The defendant appealed, and the Illinois Supreme Court affirmed, abrogating Boeckenhauer I. Krautsack II, 223 Ill. 2d at 559-60.\nRecognizing the division in the appellate court, the Illinois Supreme Court specifically addressed the issue of whether a finding of bad faith is a prerequisite to an award of attorney fees and costs to a prevailing defendant under section 10a(c) of the Consumer Fraud Act. The court noted principles of statutory construction concerning the need to ascertain and give effect to the intent of the legislature. The court recognized that nothing in the plain language of section 10a(c) conditions a fee award to a defendant on a finding that the plaintiff acted in bad faith or otherwise restricts the trial court\u2019s discretion. But the court stated that the issue must be considered in light of the entire statute and its purpose.\nBecause the Consumer Fraud Act\u2019s purpose is to protect consumers against fraud, and because individual consumer fraud claims are frequently small, the fee provision ensures that defrauded consumers will be able to exercise their rights under the statute. The court found that the allowance of fees to prevailing defendants was motivated by a different concern: \u201c \u2018to deter bad-faith conduct by a plaintiff and to reimburse a defendant when that occurs.\u2019 \u201d Krautsack II, 223 Ill. 2d at 557, quoting Haskell, 204 Ill. App. 3d at 602. Thus, the court determined that limiting a defendant\u2019s ability to recover fees to instances where the plaintiff acted in bad faith was consistent with the purpose of the Consumer Fraud Act. The court held that \u201cwhere a prevailing defendant petitions the trial court for a reasonable attorney fee under section 10a(c), only if the trial court makes a threshold finding that the plaintiff acted in bad faith should the trial court consider other circumstances relevant to its exercise of discretion.\u201d Krautsack II, 223 Ill. 2d at 559. The court also clarified that when determining whether a plaintiff acted in bad faith, a trial court is not limited to determining whether the plaintiff violated Supreme Court Rule 137.\nHere, the trial court made a specific, reasonable finding that there was insufficient evidence of bad faith on the part of the Boeckenhauers, which under Krautsack II ends the inquiry. Ford argues that the language in the installment contract made it clear that Rizza was not acting as its agent and made the Boeckenhauers\u2019 case against it so tenuous that their actions in pursuing their claim amounted to bad faith. But the court specifically denied Ford\u2019s motions to dismiss and for summary judgment because, in its view, there were factual determinations to be made about the Boeckenhauers\u2019 claims. At trial, the Boeckenhauers asserted that Rizza had apparent authority to act on behalf of Ford, yet Ford has not provided a record of trial testimony to show that the Boeckenhauers \u2019 beliefs were in such error as to amount to bad faith. Thus, we presume that the trial court\u2019s determination that there was insufficient evidence of bad faith was not an abuse of discretion. See Foutch v. O\u2019Bryant, 99 Ill. 2d 389, 391-92 (1984).\nWe further conclude that there is no need to remand for a determination about bad faith outside of considerations relevant to Rule 137. Although the court in its first order mentioned application of Rule 137, its second order clarified its finding that there was insufficient evidence of culpability on the part of the Boeckenhauers. As noted, that finding is supported by the record before us.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nMCLAREN and GILLERAN JOHNSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GEOMETER" } ], "attorneys": [ "Timothy Ray and Anthanasios Papadopoulos, both of Neal, Gerber & Eisenberg LLI) of Chicago, for appellant.", "Norman H. Lehrer, of Norman H. Lehrer, EC., of Wheaton, for appellees." ], "corrections": "", "head_matter": "TOM R. BOECKENHAUER et al., Plaintiffs-Appellees, v. JOE RIZZA LINCOLN MERCURY et al., Defendants (Ford Motor Company, Defendant-Appellant).\nSecond District\nNo. 2\u201406\u20140604\nOpinion filed April 11, 2007.\nTimothy Ray and Anthanasios Papadopoulos, both of Neal, Gerber & Eisenberg LLI) of Chicago, for appellant.\nNorman H. Lehrer, of Norman H. Lehrer, EC., of Wheaton, for appellees." }, "file_name": "0926-01", "first_page_order": 942, "last_page_order": 946 }