{ "id": 5539941, "name": "MARY M. BRADLEY, Plaintiff-Appellee, v. HOWARD HEMBROUGH VOLKSWAGEN, INC., Defendant-Appellant", "name_abbreviation": "Bradley v. Howard Hembrough Volkswagen, Inc.", "decision_date": "1980-10-03", "docket_number": "No. 16200", "first_page": "121", "last_page": "128", "citations": [ { "type": "official", "cite": "89 Ill. App. 3d 121" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "356 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2640912 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0578-01" ] }, { "cite": "226 N.E.2d 624", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "37 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2863576 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0352-01" ] }, { "cite": "49 C.F.R. \u00a7580.6", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1979, "opinion_index": 0 }, { "cite": "49 C.F.R. \u00a7\u00a7580.1-580.6", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1979, "opinion_index": 0 }, { "cite": "15 U.S.C. \u00a71981", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "333 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "30 Ill. App. 3d 425", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2623816 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/30/0425-01" ] }, { "cite": "356 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 1 }, { "cite": "64 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429143 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/ill-2d/64/0303-01" ] }, { "cite": "415 F. Supp. 258", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7859610 ], "opinion_index": 1, "case_paths": [ "/f-supp/415/0258-01" ] }, { "cite": "412 F. Supp. 1053", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3869305 ], "opinion_index": 1, "case_paths": [ "/f-supp/412/1053-01" ] }, { "cite": "426 F. Supp. 1176", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3905611 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/f-supp/426/1176-01" ] }, { "cite": "15 U.S.C. \u00a7\u00a71981-1991", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "opinion_index": 1 }, { "cite": "89 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "405 Ill. 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627659 ], "opinion_index": 1, "case_paths": [ "/ill/405/0066-01" ] }, { "cite": "250 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 1 }, { "cite": "111 Ill. App. 2d 391", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1592983 ], "year": 1950, "opinion_index": 1, "case_paths": [ "/ill-app-2d/111/0391-01" ] }, { "cite": "240 Ill. 250", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3425094 ], "opinion_index": 1, "case_paths": [ "/ill/240/0250-01" ] }, { "cite": "7 N.E.2d 451", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "454" } ], "opinion_index": 1 }, { "cite": "365 Ill. 594", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2582191 ], "weight": 2, "pin_cites": [ { "page": "599" } ], "opinion_index": 1, "case_paths": [ "/ill/365/0594-01" ] }, { "cite": "236 Ill. App. 75", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3111254 ], "opinion_index": 1, "case_paths": [ "/ill-app/236/0075-01" ] }, { "cite": "49 C.F.R. \u00a7580.6", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 1979, "opinion_index": 1 }, { "cite": "15 U.S.C. \u00a71981", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 1 } ], "analysis": { "cardinality": 700, "char_count": 15883, "ocr_confidence": 0.895, "pagerank": { "raw": 2.362230672094139e-07, "percentile": 0.7944277832414168 }, "sha256": "a50bd09ca678dab92ff4f0c506043a323ed9cdeac94e7db2bd26fc7de9662bf6", "simhash": "1:29bebb161ff265e8", "word_count": 2680 }, "last_updated": "2023-07-14T20:16:28.821099+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY M. BRADLEY, Plaintiff-Appellee, v. HOWARD HEMBROUGH VOLKSWAGEN, INC., Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE MILLS\ndelivered the opinion of the court:\nThis case was here before.\nWe reversed and remanded.\nIt is here again.\nThis time we reverse \u2014 no remand.\nMary Bradley instituted this action to recover actual and punitive damages occasioned by defendant\u2019s alleged violation of the Motor Vehicle Information and Cost Savings Act of 1972. (15 U.S.C. \u00a71981 et seq. (1976).) This act and its related regulations (49 C.F.R. \u00a7\u00a7580.1-580.6 (1979)) require the transferor of a motor vehicle to provide an odometer mileage statement to a transferee.\nOn May 17, 1976, Gerrit L. DenHartog traded his 1973 Honda Civic to Howard Hembrough Volkswagen, Inc., towards the purchase of a Volkswagen van. In discussions with Don Brewer \u2014 one of defendant\u2019s salesmen \u2014 DenHartog explained that the car had a great deal more wear than the 5,000 miles indicated on the odometer, since the original odometer was replaced at 19,000 miles.\nBrewer prepared a mileage statement which indicated a mileage of 6,008 miles as shown on the odometer. The form did not have a place to indicate the existence of a second odometer and Brewer suggested that the form was requesting the odometer mileage rather than the actual mileage. DenHartog stated that he signed the form reluctantly, but he also did not feel he was signing a false statement or that Brewer was trying to perpetrate a fraud. Rather, he believed that the form was incomplete and subject to interpretation.\nBrewer stated that he never questioned whether the odometer mileage was the actual mileage. He did not recall any conversation with DenHartog regarding the actual mileage. If he had known the actual mileage, he would have indicated it on the form.\nOn May 27, 1976, plaintiff was shown the Honda Civic and was told it had 6,000 miles on it. She purchased the vehicle and was given a mileage statement certifying the mileage to be 6,019 miles. Upon returning home, plaintiff examined the owner\u2019s manual and discovered the car had been serviced when it had 3,622,7,653, and 11,655 miles on it. She searched the car and found four or five oil stickers indicating mileage in excess of 6,000 miles.\nPlaintiff then returned to defendant and demanded her money back from the salesman who sold her the vehicle. He refused. Plaintiff\u2019s father-in-law called Howard Hembrough, president of defendant-corporation, who refused to refund plaintiff\u2019s money. Hembrough stated he delegated to his salesmen the authority to prepare odometer statements. He told the plaintiff she could see if there was another used car she found suitable.\nOn January 23, 1978, the trial court found in favor of plaintiff. An appeal was taken to this court wherein the defendant contended the evidence did not indicate an intent to defraud. On November 9, 1978, this court entered an order pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23), reversing and remanding. In so doing, we found that the regulation (49 C.F.R. \u00a7580.6 (1979)) was ambiguous and that an intent to defraud could not be conclusively inferred from the manner in which Brewer completed the form. We noted an inherent conflict between the trial court\u2019s judgment \u2014 which required plaintiff to show an intent to defraud \u2014 and its finding that there was no intent to defraud. We concluded by holding:\n\u201cProof of an intent to defraud is indispensable for a recovery under the Motor Vehicle Information and Cost Savings Act. Although there is some evidence of such an intent in this case, the verdict is against the manifest weight of the evidence. [Citations.] Thus, the judgment of the trial court is reversed and the cause is remanded for a new trial.\u201d\nOn February 11,1980, the parties entered into a stipulation whereby they expressly waived the right to present any additional evidence and agreed that the court could reach a decision by reading the transcript of the proceedings of the prior trial. Two days later, the trial court \u2014 a different judge \u2014 by docket entry found in favor of the plaintiff. Further, the court specifically found an intent to defraud.\nDefendant again appeals.\nWe again reverse, but do not remand.\nHembrough Volkswagen asserts that this court\u2019s prior decision was binding upon the trial court so that the trial court \u2014 when faced with the identical evidence \u2014 was required to hold consistent with our order. We agree. When a trial court\u2019s judgment is reversed, the trial court is clearly bound by the appellate court\u2019s determination of all questions decided and can only act in such proceedings in a manner as conforms to the appellate court\u2019s judgment. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352,226 N.E.2d 624.) Similarly, under the \u201claw of the case\u201d doctrine, this court is bound by the particular views of law announced in our prior opinion in a case, unless the facts presented require a different interpretation. City of Lockport v. County Board of School Trustees (1976), 42 Ill. App. 3d 578, 356 N.E.2d 420.\nThe decision of the trial court which was previously against the manifest weight of the evidence is still against the manifest weight of the evidence.\nIn her brief, plaintiff has also argued that this court should not consider its prior order since that order declared \u201cno precedential value.\u201d This language is derived from Supreme Court Rule 23 which governs disposition of cases without a published opinion. But, the clear intent of the rule is merely to avoid the publication of a morass of dispositions which add nothing to the available body of substantive law or of legal precedence. The fact that a disposition is rendered pursuant to Rule 23 does not, however, lessen its effect upon the relationship of the parties. It is as conclusive on the issues raised as would be a published opinion and most assuredly becomes the \u201claw of the case.\u201d\nErgo, having twice determined that the trial court\u2019s decision in favor of the plaintiff is against the manifest weight of the evidence, we reverse this cause without remand. While this case would, upon a finding that the verdict is against the manifest weight of the evidence, ordinarily be remanded for a new trial, both parties have stated that the reason they entered into the stipulation was because they had nothing to add to the original evidence produced at trial. In this situation, it is a futile gesture to remand. We therefore exercise our authority under Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) and reverse.\nReversed.\nWEBBER, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE MILLS" }, { "text": "Mr. JUSTICE CRAVEN,\ndissenting:\nThis action was brought to recover actual and punitive damages occasioned by a violation by the defendant of the Motor Vehicle Information and Cost Savings Act of 1972. (15 U.S.C. \u00a71981 et seq. (1976).) The clear congressional intention in the enactment of that statute was to impose sanctions, actual and punitive damages, upon those who violate the statute. Selling a car indicating that it has less mileage than it in fact has is a violation. Intent is an element.\nIn this case, there is no doubt that a car was sold, that the mileage was indicated to be some 6,000 miles when in fact the defendant by and through its salesman, Don Brewer, knew the mileage to be substantially in excess of that. It is difficult for me to ascertain what more needs to be proved in order to recover.\nThis case was here once before and the court issued an order remanding for a new trial. The legal effect of that order is now a matter of controversy in this court. The November 1978 Rule 23 order is reproduced in its entirety as an appendix to this dissent.\nIt is perfectly clear that the court originally determined that there was a conflict between the findings of the trial court and the judgment entered. There was a finding with reference to the absence of intent that could not be reconciled with the judgment entered. Thus, in the original appeal, the court remanded for a new trial. If recovery could not be had as a matter of law, remandment was shoveling smoke.\nThe case went back to the circuit court; by stipulation of the parties, no new evidence was presented. The record was submitted to the trial court judge; he reviewed the record based upon the stipulation that everything that could be proved was proved, and he found evidence of intent to defraud and reentered the same judgment for actual and punitive damages. There is now no conflict between the findings and the judgment, and there is no impairment in this record to an affirmance of the judgment. If there was to be reversal without remandment, it should have been done the first time and it was not. The majority, in my judgment, is just plain wrong when they discuss the legal effect of the prior Rule 23 order. The majority opinion further sets back to \u201csquare one\u201d the effort to protect the consumer in the purchase of used cars.\nAssuming that the majority\u2019s interpretation of the Rule 23 order is correct, their conclusion that the second trial judge, when faced with the same evidence, was obligated to hold for the defendant is wrong. (Bournique v. Drake (1925), 236 Ill. App. 75.) Only if the Rule 23 order had determined that the evidence was insufficient to state a cause of action would the second trial judge have been required to enter judgment for the defendant. (Bournique.) In Ziolkowski v. Continental Casualty Co. (1937), 365 Ill. 594, 7 N.E.2d 451, the supreme court said that upon remand for a new trial * 0 the trial court must, of course, be governed by the legal principles contained in the opinion of the reviewing court, but its conclusions as to matters of fact do not control on a later trial where the facts are to be determined in that trial. Prentice v. Crane, 240 Ill. 250.\u201d (365 Ill. 594, 599, 7 N.E.2d 451, 454.) (Accord, Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 250 N.E.2d 537; see also People ex rel. Reiter v. Lupe (1950), 405 Ill. 66, 89 N.E.2d 66.) The doctrine of law of the case applies to law, not to facts; that doctrine simply does not apply here.\nAPPENDIX \u2014 Rule 23 Order, No. 16200\nRule 23 (58 111. 2d R. 23). No substantial question, no precedential value.\nGerrit L. DenHartog testified that he traded his 1973 Honda Civic to Howard Hembrough Volkswagen, Inc., on May 17, 1976. When he showed the car to one of the defendant\u2019s salesmen, Don Brewer, DenHartog told him that the reason the car had a great deal more wear than the 5.000 miles on the odometer would suggest was because the first odometer had 19,000 plus miles on it so that the total miles would be 25,000 to 26.000 miles.\nBrewer prepared the following odometer mileage statement form which certified the car\u2019s mileage to be 6,008 miles:\n\u201cI, /s/ Gerrit L. DenHartog, state that the odometer mileage indicated on the vehicle described above is 6008 miles and is as indicated below: (Check one)\n0 Actual mileage \u25a1 Total cumulative miles\n\u25a1 True mileage unknown (if over 100,000).\u201d\nSince there was no place to indicate the existence of a second odometer, Brewer suggested it was the odometer mileage rather than the actual mileage of the automobile that was being asked for. Although DenHartog signed the statement reluctantly, he did not feel that he was signing a false statement or that Brewer was trying to perpetrate a fraud, but rather believed, the form was incomplete and subject to interpretation.\nDon Brewer did not recall any conversation with DenHartog regarding the car\u2019s actual mileage. He testified that he never questioned whether the odometer mileage was the actual mileage and stated that if he had known the actual mileage, he would have indicated this on the form.\nMary M. Bradley was shown the Honda Civic on May 27, 1976, and was told it had 6,000 miles on it. She purchased the car and was given an odometer mileage statement which certified the mileage to be 6,019 miles.\nWhen she returned home she looked through the owner\u2019s manual and discovered the car had been serviced when it had 3,622, 7,653, and 11,655 miles on it. She then searched the car and found four or five oil stickers which indicated mileage in excess of 6,000 miles. Bradley returned to defendant\u2019s business and demanded her money back from the salesman who had sold her the car, but he refused to do so. Plaintiff\u2019s future father-in-law called defendant\u2019s president, Howard Hembrough, and explained the situation, but he also refused to give plaintiff\u2019s money back. He said that Bradley could see if there was another used car that was suitable to her.\nBradley filed suit and sought punitive damages and attorney\u2019s fees pursuant to the Motor Vehicle Information and Cost Savings Act of 1972, 15 U.S.C. \u00a7\u00a71981-1991 (1976). The trial judge found for the plaintiff. On appeal, defendant contends the evidence does not show that it intended to defraud the plaintiff in selling her the Honda Civic.\nTo recover damages under the Motor Vehicle Information and Cost Savings Act, there must be evidence of an intent to defraud on the part of the defendant. (Huryta v. Diers Motor Co. of Grand Island, Nebraska (D. Neb. 1977), 426 F. Supp. 1176.) This fraudulent intent cannot be presumed, but it can be inferred. Pepp v. Superior Pontiac GMC, Inc. (E.D. La. 1976), 412 F. Supp. 1053.\nPlaintiff claims that an intent to defraud could be concluded from Don Brewer\u2019s action in writing 6,008 miles as the odometer mileage of the car. Plaintiff concedes that the form furnished by defendant to DenHartog was ambiguous, but argues this should not excuse it from liability since the form did not comply with Federal regulations. However, the only nonconformity was that instead of stating: \u201cI further state that the actual mileage differs from the odometer reading for reasons other than odometer calibration error and that the actual mileage is unknown,\u201d (49 C.F.R. \u00a7580.6) the form merely read: \u201cTRUE MILEAGE UNKNOWN.\u201d Since the regulation states the two conditions in the conjunctive, stating both conditions on defendant\u2019s form rather than one would not have resolved the ambiguity present in this case. For although (according to DenHartog) Brewer knew the actual mileage differed from the odometer reading, he also knew what the actual mileage was. Thus, the regulation itself was ambiguous and an intent to defraud cannot be conclusively inferred from the manner in which Brewer completed the form. Rider Oldsmobile, Inc. v. Wright (M.D. Pa. 1976), 415 F. Supp. 258.\nThe court\u2019s judgment indicates there was an intent to defraud on the part of the defendant, but in its findings the trial court states there was not an intent to defraud. Thus, there is an inherent conflict between the court\u2019s finding and its judgment. The trial judge specifically found that Hembrough had \u201cimputed knowledge\u201d of the \u201cimpropriety,\u201d but at the same time found that \u201cI don\u2019t think there was an intent to defraud.\u201d Furthermore, Judge Duban allowed as how \u201cI don\u2019t know whether intent to defraud can be imputed to Mr. Hembrough.\u201d These confusing statements by the trier of fact cannot be reconciled.\nProof of an intent to defraud is indispensable for a recovery under the Motor Vehicle Information and Cost Savings Act. Although there is some evidence of such an intent in this case, the verdict is against the manifest weight of the evidence. (Mizowek v. DeFranco (1976), 64 Ill. 2d 303, 356 N.E.2d 32; Houston v. Zimmerman (1975), 30 Ill. App. 3d 425, 333 N.E.2d 472.) Thus, the judgment of the trial court is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nENTERED: NOVEMBER 9,1978\nBY ORDER OF THE COURT CONSISTING OF THE PANEL OF\nHonorable Richard Mills\nHonorable John T. Reardon\nHonorable Frederick S. Green", "type": "dissent", "author": "Mr. JUSTICE CRAVEN," } ], "attorneys": [ "Larry J. Flynn, of Flynn & Flynn, of Jacksonville, for appellant.", "Robert E. Gillespie, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee." ], "corrections": "", "head_matter": "MARY M. BRADLEY, Plaintiff-Appellee, v. HOWARD HEMBROUGH VOLKSWAGEN, INC., Defendant-Appellant.\nFourth District\nNo. 16200\nOpinion filed October 3,1980.\nLarry J. Flynn, of Flynn & Flynn, of Jacksonville, for appellant.\nRobert E. Gillespie, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee." }, "file_name": "0121-01", "first_page_order": 143, "last_page_order": 150 }