Longo Realty v. Menard, Inc.
59 N.E.3d 1
Ill. App. Ct.2016Background
- In Jan. 2012 Longo Realty paid Menard for 380 tiles and received a Menard "picking list" (bold printed terms) stating product is not held and must be picked up immediately; the assistant flooring manager handwrote "Your tile is pulled and off our sales floor!" on that list.
- Longo did not retrieve the tiles until summer 2013; Menard informed Longo the tiles were discontinued and issued an in-store credit for the original purchase price.
- In Jan. 2014 Longo saw a similar-looking tile at Menard with a different stock number, manufacturer, and higher price; Menard refused to provide it at the original price but offered to sell it for the price difference.
- Longo sued in Feb. 2014 alleging (1) bailment and (2) violation of the Illinois Consumer Fraud and Deceptive Business Practices Act; on the eve of trial Longo moved to add conversion (denied) and post-trial moved to add replevin and for Rule 137 sanctions (denied).
- At bench trial the court found no bailment or Consumer Fraud Act violation, denied the amendment and sanctions; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a bailment | Menard's handwritten note showing tile was "pulled" created an implied bailment and exclusive custody for Longo | Written picking-list terms disclaimed holding property; no express/implied agreement to hold indefinitely | No bailment: printed terms controlled; no evidence Menard agreed to hold tiles until Longo reclaimed them |
| Consumer Fraud Act — deceptive or unfair practice | Menard lulled Longo into believing tiles were reserved and later deceptively sold them; Menard knew identical tile would be stocked later | No deception: note only said tile pulled for pickup; Menard told Longo he could get a refund; later tile differed by stock number, maker, price | No CFFA violation: conduct not deceptive or unfair; written terms warned customer products are not held and price may change |
| Motion to amend to add conversion and replevin | Conversion and replevin should be allowed to pursue recovery | Amendment at eve of trial prejudicial; underlying facts do not satisfy elements | Denied: amendment untimely and futile because elements (wrongful control/detaining of plaintiff's property) could not be proven |
| Rule 137 sanctions for allegedly false statements | Menard witnesses admitted tiles were the same; sanctions warranted for false statements that caused litigation | Testimony was not clearly false; record incomplete to show bad-faith falsity | Denied: trial court discretion not shown abused; appellate record lacked trial transcript, so presumption of correctness applies |
Key Cases Cited
- American Ambassador Casualty Co. v. City of Chicago, 205 Ill. App. 3d 879 (Ill. App. Ct.) (defines bailment elements)
- Berglund v. Roosevelt University, 18 Ill. App. 3d 842 (Ill. App. Ct.) (factors for implied-in-fact bailment)
- Magee v. Walbro, Inc., 171 Ill. App. 3d 774 (Ill. App. Ct.) (presumption of negligence from prima facie bailment)
- Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403 (Ill.) (elements of a Consumer Fraud Act claim)
- Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460 (Ill.) (interpretation of contractual boilerplate and sanctions principles)
- Foutch v. O'Bryant, 99 Ill. 2d 389 (Ill.) (appellate-review burden and presumption when record is incomplete)
- Gunn v. Sobucki, 216 Ill. 2d 602 (Ill.) (replevin requires plaintiff's superior right to immediate possession)
- Carey v. American Family Brokerage, Inc., 391 Ill. App. 3d 273 (Ill. App. Ct.) (manifest-weight-of-the-evidence standard after a bench trial)