Kitch v. Lucky Motors, Inc
2021 IL App (2d) 210345-U
Ill. App. Ct.2021Background
- Kitch bought a used car from Lucky Motors and discovered extensive underside rust; Lucky Motors refused a refund.
- Kitch sued on multiple theories: Magnuson‑Moss warranty (§2310(d)), breach of implied warranty of merchantability (815 ILCS 505/2L), UCC revocation/contract cancellation (810 ILCS 5/2‑608, 2‑711(1)), Consumer Fraud Act violations (including alleged improper "AS IS" Buyer’s Guide language and breach of a 30‑day return guarantee), and common‑law fraud.
- Kitch moved for partial summary judgment under §2L of the Consumer Fraud Act seeking, among other things, voiding the transaction and return of purchase money.
- The trial court granted partial summary judgment on one legal theory in Count IV (the §2L/Buyer’s Guide issue) on March 17, 2021, but did not enter relief such as rescission, damages, or fees; Rule 304(a) language was later added to a June 2 order and the court stated there was "no just reason" to delay appeal.
- Lucky Motors appealed under Ill. S. Ct. R. 304(a). The appellate court dismissed the appeal for lack of jurisdiction because the order was not final under Rule 304(a) and related claims based on the same operative facts remained pending.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the partial summary‑judgment order is "final" under Ill. S. Ct. R. 304(a) | The order did not resolve all relief in Count IV or extinguish other claims; thus it was not final. | The trial court expressly made Rule 304(a) findings, so the order is appealable as final as to one or more claims. | Not final: the court did not dispose of the parties’ rights (no rescission, damages, or fees awarded) and other claims remained pending. Appealability under Rule 304(a) not satisfied. |
| Whether a Rule 304(a) finding was appropriate ("no just reason to delay") | Kitch argued the matter was not fully resolved and proposed alternative steps to obtain a final order; the trial court did not address relevant factors on the record. | Lucky Motors relied on the court’s express Rule 304(a) finding to justify immediate appeal. | Court declined to reach merits of the "no just reason" determination; noted the trial court failed to consider or record pertinent factors. Appeal dismissed for lack of jurisdiction. |
Key Cases Cited
- Blumenthal v. Brewer, 2016 IL 118781 (defining final judgment for Rule 304(a) purposes)
- Carle Foundation v. Cunningham Township, 2017 IL 120427 (distinguishing separate claims from separate issues within the same claim under Rule 304(a))
- In re Marriage of Leopando, 96 Ill. 2d 114 (same‑operative‑facts rule limits immediate appeals under Rule 304(a))
- Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372 (trial court must consider and place on the record factors relevant to a Rule 304(a) "no just reason" finding)