Burkhart v. Wolf Motors of Naperville, Inc.

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Appellate Court Date: 2016.11.08
08:57:15 -06'00'

Burkhart v. Wolf Motors of Naperville, Inc., 2016 IL App (2d) 151053

Appellate Court CARLA BURKHART, Plaintiff-Appellant, v. WOLF MOTORS OF
Caption NAPERVILLE, INC., d/b/a Toyota of Naperville, Defendant-
Appellee.

District & No. Second District
Docket No. 2-15-1053

Filed September 21, 2016

Decision Under Appeal from the Circuit Court of Du Page County, No. 14-AR-707;
Review the Hon. Brian R. McKillip, Judge, presiding.

Judgment Affirmed.

Counsel on Joshua M. Feagans and Kristin N. Stone, both of Griffin/Williams
Appeal LLP, of Geneva, for appellant.

James J. Laraia, of Laraia & Laraia, of Wheaton, for appellee.

Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
court, with opinion.
Justices Hutchinson and Burke concurred in the judgment and
opinion.
 OPINION

¶1 The defendant, Wolf Motors of Naperville, Inc., made a mistake in advertising one of its
cars for sale. The plaintiff, Carla Burkhart, tried to purchase the car at the advertised price.
After the defendant refused to honor its advertisement on the ground that the advertised price
was an error, the plaintiff filed a complaint alleging that the defendant’s actions constituted
breach of contract and consumer fraud. The trial court granted the defendant’s motion for
summary judgment. The plaintiff appeals from that order. We affirm.

¶2 BACKGROUND
¶3 On May 5, 2014, the plaintiff filed a two-count complaint against the defendant, alleging
breach of contract and violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act (Act) (815 ILCS 505/2 (West 2014)). The complaint alleged that on September
23, 2013, the plaintiff saw that the defendant was advertising online at
www.toyotacertified.com a 2011 Toyota 4Runner for $19,991. The plaintiff contacted the
defendant and indicated that she was interested in purchasing the vehicle. After the plaintiff
test-drove the vehicle, she informed the defendant that she wanted to purchase the vehicle. The
defendant’s representative informed her that the price of the vehicle was $36,991. The plaintiff
responded that she wanted the advertised price of $19,991. The defendant’s representative
confirmed that the vehicle had been advertised for $19,991 but explained that the
advertisement was a mistake. The defendant’s manager subsequently offered to sell the
plaintiff the vehicle “at cost”—$35,000. The plaintiff refused to purchase the vehicle at that
price.
¶4 The complaint alleged that the parties had a valid and enforceable contract for the vehicle
at the advertised price of $19,991 and that the defendant breached the agreement when it
refused to sell the vehicle to the plaintiff at that price. Alternatively, the complaint alleged that
the defendant committed consumer fraud and injured the plaintiff when it advertised the
vehicle at a price for which it did not intend to sell. The defendant filed an answer to the
plaintiff’s complaint, denying all material allegations.
¶5 On May 22, 2015, the defendant filed a motion for summary judgment. The defendant
argued that the erroneous advertisement did not constitute an offer that could be accepted so as
to form a contract. The defendant further argued that its actions did not constitute consumer
fraud because (1) it did not commit a deceptive act or practice, (2) it did not intend for the
plaintiff to rely on any deceptive act or practice, and (3) the plaintiff did not incur any actual
damages.
¶6 In support of its motion for summary judgment, the defendant submitted the deposition of
its Internet director, Thomas Gregg. Gregg testified that the $19,991 advertised price for the
subject vehicle was a clerical error and that the correct price for the subject vehicle was
$36,991. He explained that the clerical error occurred with the entry of the subject vehicle into
the Dealer Daily system. He testified that the person who had entered the vehicle into the
Dealer Daily system was not very familiar with the process and was in training. The person had
mistakenly entered the price of a different vehicle. After Gregg discovered on September 23,
2013, that the price was incorrectly displayed, he immediately updated the price in the
dealership DMS system, which then updated the listing on Dealer Daily. He did not realize that
the update in the system took approximately four days to appear on the Internet.

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¶7 The defendant also submitted the deposition of its used-car sales manager, Bryan Lieser.
Lieser testified that, as of September 24, 2013, the appraised value of the vehicle in question
was between $32,000 and $33,000.
¶8 On July 9, 2015, the plaintiff filed a cross-motion for summary judgment. The plaintiff
argued that she was entitled to summary judgment because (1) the defendant admitted that it
refused to sell the vehicle to the plaintiff as advertised and, alternatively, (2) the defendant
admitted advertising a vehicle for sale without an intention of selling the vehicle as advertised.
¶9 On September 24, 2015, the trial court granted the defendant’s motion for summary
judgment and denied the plaintiff’s motion. The trial court found that, due to a clerical error,
the car had been listed at an erroneous price. The trial court then explained that there was no
contract formed between the parties because there was no mutual assent, as the “plaintiff
believed she was purchasing a car for $19,991 [while] the defendant’s salesman believed he
was selling the same car for $36,991.” Further, the trial court found that there was no consumer
fraud because “the defendant did not intend the plaintiff to rely on a deceptive practice in
which the defendant never intended to engage.”
¶ 10 On October 20, 2015, the plaintiff filed a timely notice of appeal.

¶ 11 ANALYSIS
¶ 12 On appeal, the plaintiff does not dispute the trial court’s finding that the subject vehicle
was advertised at the wrong price. Nonetheless, she insists that she did have a contract with the
defendant or, alternatively, that the defendants’ deceptive advertising constituted consumer
fraud. She therefore argues that the trial court erred in granting the defendant’s motion for
summary judgment and denying her motion for summary judgment.
¶ 13 The purpose of a motion for summary judgment is to determine whether a genuine issue of
triable fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)), and
such a motion should be granted only when “the pleadings, depositions, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law” (735 ILCS 5/2-1005(c)
(West 2014)). An order granting summary judgment should be reversed if the evidence shows
that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law.
Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997). We review de novo the trial court’s grant
of a motion for summary judgment. Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 395
(2008).
¶ 14 In order to establish a claim for breach of contract, a plaintiff must allege and prove the
following elements: “(1) the existence of a valid and enforceable contract; (2) performance by
the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff.”
Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d
15, 27 (2001). A valid and enforceable contract requires a manifestation of agreement or
mutual assent by the parties to its terms, and the failure of the parties to agree upon or even
discuss an essential term of a contract may indicate that the mutual assent required to make or
modify a contract is lacking. The Delcon Group, Inc. v. Northern Trust Corp., 187 Ill. App. 3d
635, 643 (1989). An advertisement is not an offer to a contract but rather constitutes an
invitation to deal on the terms described in the advertisement. Steinburg v. Chicago Medical
School, 69 Ill. 2d 320, 330 (1977); see also O’Keefe v. Lee Calon Imports, Inc., 128 Ill. App. 2d
410, 413 (1970).

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¶ 15 In O’Keefe, the defendant advertised a 1964 Volvo station wagon for sale in the Chicago
Sun-Times. The defendant instructed the newspaper to advertise the price of the car as $1795,
but the newspaper erroneously advertised it as $1095. The plaintiff went to the defendant’s
place of business and sought to purchase the car for $1095. After the defendant’s salesman
refused to sell him the car at that price, the plaintiff filed a breach-of-contract claim against the
defendant. The trial court subsequently granted the defendant summary judgment on the
plaintiff’s complaint. O’Keefe, 128 Ill. App. 2d at 411.
¶ 16 On appeal, the plaintiff argued that the advertisement constituted an offer, which he
accepted and which therefore served as the basis of a binding contract. The reviewing court
rejected this argument, explaining:
“We find that in the absence of special circumstances, a newspaper advertisement
which contains an erroneous purchase price through no fault of the defendant
advertiser and which contains no other terms, is not an offer which can be accepted so
as to form a contract. We hold that such an advertisement amounts only to an invitation
to make an offer. It seems apparent to us in the instant case, that there was no meeting
of the minds nor the required mutual assent by the two parties to a precise proposition.
There was no reference to several material matters relating to the purchase of an
automobile, such as equipment to be furnished or warranties to be offered by
defendant. Indeed the terms were so incomplete and so indefinite that they could not be
regarded as a valid offer.” Id. at 413.
¶ 17 Here, as in O’Keefe, the erroneous advertisement could not in itself serve as the basis of a
binding contract between the parties. The advertisement did not reflect a price for which the
defendant ever intended to sell the vehicle. As such, the advertisement did not constitute an
offer, and the plaintiff’s “acceptance” of that advertisement did not establish a contract.
¶ 18 The plaintiff argues that O’Keefe is distinguishable because this case implicates the
“special circumstances” that O’Keefe referred to. Specifically, the plaintiff points out that,
unlike in O’Keefe, here (1) the plaintiff promised to pay the amount that was requested in the
advertisement, (2) the advertisement referred to all of the equipment to be provided and the
warranties offered, and (3) the defendant tried to use the advertisement to its advantage. We
find the plaintiff’s attempt to distinguish O’Keefe unpersuasive. Although the advertisement in
the instant case included more information than the advertisement in O’Keefe, the
advertisements were sufficiently similar because they both contained the wrong information
about an essential term: the price. Here, although the defendant’s manager did offer the car for
a lower price after he learned that the plaintiff wanted it for the advertised price, the plaintiff
never indicated a desire to purchase the car for anything other than $19,991. Accordingly, as
there was never a meeting of the minds as to the price the plaintiff was willing to pay for the car
and the price the defendant was willing to accept, there was no contract between the parties.
See Delcon Group., Inc., 187 Ill. App. 3d at 643.
¶ 19 Alternatively, relying on Williams v. Bruno Appliance & Furniture Mart, Inc., 62 Ill. App.
3d 219, 221 (1978), the plaintiff argues that O’Keefe is no longer good law because it conflicts
with the mandate of the Act that advertisements must be viewed as bona fide offers for sale. As
this issue ties directly into the plaintiff’s second contention, we will address it in that context.
¶ 20 The plaintiff’s second contention on appeal is that the defendant committed consumer
fraud when it advertised the vehicle without intending to sell it at the advertised price. The
plaintiff insists that the defendant’s advertisement constituted a per se violation of the Act

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 because the defendant refused to sell her the vehicle at the price that was listed in the
advertisement. The plaintiff maintains that it is irrelevant whether the advertised price was
correct.
¶ 21 “To establish a claim under the [Act], a plaintiff must prove: (1) a deceptive act or practice
by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the
occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual
damage to the plaintiff that is (5) a result of the deception.” Martinez v. River Park Place, LLC,
2012 IL App (1st) 111478, ¶ 34. Recovery may be had for unfair as well as deceptive conduct.
Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417 (2002). In measuring unfairness,
courts consider: “(1) whether the practice offends public policy; (2) whether it is immoral,
unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to
consumers.” Id. at 417-18. Further, “in a cause of action for fraudulent misrepresentation
brought under the [Act], a plaintiff must prove that he or she was actually deceived by the
misrepresentation in order to establish the elements of proximate causation.” Avery v. State
Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 199 (2005).
¶ 22 Although the record in this case reveals evidence as to some of the elements of a cause of
action for consumer fraud, it is clear that plaintiff cannot prove all of them. Specifically, there
is no evidence that the plaintiff suffered any damages. The plaintiff argues that her damages
were at least $12,009: the difference between the price at which the car was advertised
($19,991) and the appraised value of the car (at least $32,000). However, only a person who
suffers actual damages as a result of a violation of the Act may bring a private action. 815 ILCS
505/10a(a) (West 2014); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 626-27 (2008). The Act
provides remedies for purely economic injuries. White v. DaimlerChrysler Corp., 368 Ill. App.
3d 278, 287 (2006). Actual damages must be calculable and “measured by the plaintiff’s loss.”
(Internal quotation marks omitted.) Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d
399, 402 (2009). The failure to allege specific, actual damages precludes a claim brought under
the Act. White, 368 Ill. App. 3d at 287. The purpose of awarding damages to a consumer-fraud
victim is not to punish the defendant or bestow a windfall upon the plaintiff but rather to make
the plaintiff whole. Mulligan, 382 Ill. App. 3d at 629.
¶ 23 Here, the plaintiff is in the same position she was in before she saw the advertisement. The
alleged damages she seeks would not compensate her for any actual loss but instead would
constitute an improper windfall. See id. Accordingly, as the plaintiff suffered no damages, the
trial court properly granted the defendant’s motion for summary judgment. See Martinez, 2012
IL App (1st) 111478, ¶ 34. We note that this is not the basis on which the trial court granted the
defendant’s motion for summary judgment; however, it is well settled that we may affirm on
any basis appearing in the record. Benson v. Stafford, 407 Ill. App. 3d 902, 912 (2010).
¶ 24 In so ruling, we reject the plaintiff’s argument that the defendant’s advertising the vehicle
at a price that it did not intend to honor was a “per se violation of the Illinois Consumer Fraud
Act” that entitles her to relief. Although even negligent or innocent misrepresentations are
actionable under the Act, that still does not alleviate a plaintiff’s obligation to prove her
damages. See Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992) (explaining
that because innocent misrepresentations are actionable under the Act, damages will not be
presumed).
¶ 25 Further, we find the plaintiff’s reliance on Garcia v. Overland Bond & Investment Co., 282
Ill. App. 3d 486, 493-94 (1996), Affrunti v. Village Ford Sales, Inc., 232 Ill. App. 3d 704, 707

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 (1992), and Bruno Appliance, 62 Ill. App. 3d at 222, to be misplaced. All of those cases
involve deceptive “bait and switch” situations. A “bait and switch” occurs when a seller makes
an alluring but insincere offer to sell a product or service, which the advertiser in truth does not
intend or want to sell. Its purpose is to switch customers from buying the advertised
merchandise to buying something else, usually at a higher price or on a basis more
advantageous to the advertiser. Martinez, 2012 IL App (1st) 111478, ¶ 35. Here, the defendant
did not engage in any “bait and switch,” as it did not try to induce the plaintiff to buy a vehicle
other than the one that was advertised.
¶ 26 The plaintiff nonetheless insists that the defendant “employed tactics shadily similar to a
‘bait and switch’ in attempt to draw [the plaintiff] in.” In support of this accusation, the
plaintiff points to the defendant’s offer to sell her the car “at cost” for a price that was actually
higher than the defendant’s cost. We reject this argument. The fact remains that there is no
evidence that the plaintiff actually suffered any damages due to the defendant’s deceptive
advertisement.
¶ 27 Finally, we also find the plaintiff’s reliance on Montgomery Ward & Co. v. Federal Trade
Comm’n, 379 F.2d 666, 668-71 (7th Cir. 1967), to be misplaced. That case addressed whether
Montgomery Ward had engaged in deceptive advertising when its advertised guarantees for
some of its products conflicted with its written guarantees. However, as that case did not
discuss damages that any customers might have suffered—something that our courts have
consistently found is necessary in order for a plaintiff to maintain a consumer-fraud
claim—Montgomery Ward does not require us to reach a different decision.

¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 30 Affirmed.

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