*1 unconstitutional declaring the statute holding our ing nonparent a custodian date, At some future applied. as asserting Illinois court an guardian or will stand before care, custody, right fundamental constitutional demanding the benefit child and control support as litigant will cite case That presumption. time, to undo was done at that have what may, and we here. far go only so as firmly
I believe that we should to us in the question presented necessary resolve therefore, dis- I, respectfully and no further. present case declare opinion that would portion sent from 607(b)(1) I face. its would section unconstitutional fit any provision applied find this unconstitutional parent.
(No. 90340. TOYOTA, INC., v. TOYOTA Appellee, BELLEVILLE U.S.A., et SALES, INC., al., MOTOR Appellants. Opinion Rehearing May March denied 2002. filed *3 J., joined by J-, dissenting. FREEMAN, McMORROW *4 Crisham, Bruck, Thomas M. Michael C. M. Jen- David Ltd., Kubes, & of Crisham Prendergast, kins M. and Jean appellants. for Chicago, Quinlan, all R and William Holt and Edwin Von Mueller, Dudley W. A. Richard Louis, L.L.P, Mis- of St. Thompson Coburn Harvey, of G. Belleville, appellee. for Q. Keefe, of Thomas souri, and of the opinion delivered FITZGERALD JUSTICE court: defendants, Inc., sued Toyota,
Plaintiff, Belleville Motor U.S.A., Inc., Toyota and Sales, Motor Toyota the au are, respectively, Distributors, Inc. Defendants of new distributor the wholesale importer thorized Plaintiff claimed in the United States. Toyota vehicles dealership agreements certain breached that defendants full number of less than the allocating plaintiff Plaintiff was entitled. to which Toyota vehicles the Motor conduct violated that defendants’ also claimed (West (815 (Act) seq. ILCS et Franchise Act Vehicle 710/1 2000)). trial, court of St. Clair jury the circuit Following judgment against dollar a multi-million County entered . rejected appeal, appellate On defendants. of error and affirmed numerous claims defendants’ 316 Ill. We of the trial court. judgment appeal. leave to petition for granted defendants’ below, affirm we For the reasons discussed 2d R. 315. appellate judgment part and reverse part for fur the circuit court this matter to court and remand proceedings. ther
BACKGROUND ownership interest an acquired Bill Newbold Illinois, took Belleville, Toyota dealership in a The dealer- day-to-day operations. dealership’s over the the name Bill Newbold under ship, doing business Toyota dealerships approximately one of Toyota, was Newbold, along with Bill Chicago region. in the. five-state *5 Kent, son, his operated the under a dealership series of dealer agreements with defendants. The earliest of the agreements dealer at this litigation issue in was executed 1980, in June and for a provided six-year term. Under agreement, plaintiff required was to submit Toyota orders for on products forms supplied by defen- dants. In the event of a shortage Toyota products, of “unit provision allocation” of the required contract vehicles allocated to on plaintiff be “principally basis of sales performance during representa- most recent of adequate tive supply.” 1986, In upon expiration agreement, parties agreement entered into a new dealer with a one- year 1987, parties term. In entered another into one- year 1988, agreement, and in entered a six-year into 1986, agreement. Under the 1987 and agreements, were to provide defendants use their “best to efforts” Toyota products subject to plaintiff, to available supply. of the event a shortage, defendants were required to allocate Toyota products among its in a “fair dealers and equitable manner.”
In June defendants plaintiff notified their Collinsville, intent a open Toyota dealership new Il- response, August linois. In filed a against Act, complaint defendants under the seeking to enjoin establishing from a dealership. them Collinsville complaint Plaintiff amended to include claims twice its for breach of contract additional and violations of the alleged Act. Plaintiff that defendants failed allocate Toyota contractually vehicles the quantities required and fraudulently that defendants concealed their conduct. According plaintiff, defendants’ was not breach discovered the fall 1990. Plaintiff alleged until further Act, that, allocation of violation defendants’ faith, arbitrary, vehicles in bad and un- capricious, was conscionable; arbitrary their defendants concealed conduct and defendants’ system; allocation capricious The trial court dismissed with willful wanton. was relief and denied injunctive claim for plaintiffs prejudice alia, the timeli- challenging, inter defendants’ motions 1997, following years several claims. In ness of to trial. proceeded discovery, parties that, as the result of maintained trial, plaintiff At voluntary restraint restrictions under import certain (VBA) and Japan, the United States agreement between during the 1980s. shortage Toyota there vehicles that, shortage, contended due to this defendants Plaintiff provision” under the “unit obligated, were allocation *6 agreement, in the 1980 dealer to allocate contained on perfor- vehicles to the dealers based “sales Toyota of during representative period mance most recent According to defendants adequate supply.” plaintiff, alternative, plaintiff failed to do so. In the maintained vehicles, that, shortage Toyota of the al- even absent used, they which described to system location defendants system, comply a “turn and did not plaintiff as earn” system. an order agreement requiring with the 1980 Plaintiff further maintained that defendants’ so-called system, purportedly “turn and earn” allocated inventory, moved quickly cars based how dealer its Rather, way. did not function in this the vehicle alloca- arbitrary tion and system subject manipulation, discriminatory way, and was used in a all violation of Act, agreements as well as the four dealer at issue that, litigation. damage expert Plaintiffs estimated 1980s, thousands of during plaintiff was shorted defendants, in lost of mil- by resulting profits vehicles $5 lion million. to $11 no
Defendants maintained at trial that there was vehicles, shortage Toyota and its allocation day system, which defendants referred to as a “balanced Under a supply” system, was clear and fair. “balanced day supply” system, allocations are made based on a past performance, dealer’s sales sales, rate of and remain- ing inventory. “days supply” Each dealer is allocated a vehicles, i.e., that number of vehicles needed so that all theoretically, inventory dealers, exhaust their on the day. same Defendants also that, maintained unlike the they domestic manufacturers, automobile never used a system. custom order Defendants also asserted that plaintiff, by any against conduct, its waived claims plaintiffs defendants; claims were barred its own agreements; pursuant breach of the dealer parties’ performance, course of defendants’ conduct did agreements. not constitute a breach of the dealer testimony trial, After a two-week which included jury from witnesses, entered a verdict in favor of plaintiff, awarding damages plaintiffs million on $2.5 count, breach of contract million on $2.25 count under the Act. The trial court denied defendants’ post-trial jury’s special finding motion. Based on the defendants’ conduct granted plaintiffs wanton, was willful or the trial court damages
motion for treble under the judgment Act and entered on that count the amount (West 2000) million. $6.75 See 815 ILCS 710/13 (“Where the misconduct wanton, is willful or the court may damages”). award treble The trial court also ruled “judgment [breach contract] on Count I shall be upon payment deemed satisfied of an amount on Count *7 [violation Act] equivalent judg II which is plus Finally, ment on Count I interest.” the trial court ruling plaintiffs attorney reserved motion for fees (see (West and costs under the Act 815 ILCS 710/13 2000)) discovery pending appeal, sanctions, and for 304(a) (see finding appealability made a Rule 304(a)). 2d R. appellate rejected defendants’ numerous judgment.
claims of error and affirmed the circuit court granted petition appeal. We defendants’ for leave to Ill. 2d R. 315.
ANALYSIS I. Act’s Limitations Period argue Defendants first claim under four-year pe the Act was barred based on the limitations (West riod 2000). contained the statute. 815 ILCS 710/14 where, here, Defendants contend that plaintiff’s purely statutory, cause of action is and the period, statute contains its own “built-in” limitations compliance period with the limitations is an element of plaintiff’s jurisdictional prerequisite case and a plaintiff’s right Pasquale Speed to sue. See v. Engineering, (1995); Products 337, 166 Ill. 2d 366-67 (1982). Duplancich, Demchuk v. 1, 92 Ill. 2d 6-7 Defen argue comply dants that because failed to with period plaintiff’s the limitations Act, set forth in the extinguished. cause of action under the statute was initially position Plaintiff counters that defendants’ contrary position before this court and, to their at trial precluded making therefore, defendants are from argument. See McMath Katholi, v. 191 Ill. 2d (2000). Plaintiff also asserts that the limitations contained in ordinary section of the Act functions as an jurisdictional
statute of limitations and is not a prerequisite People Wright, to suit. See v. 189 Ill. 2d 8-10
Ordinarily, principles
permit party
of waiver do not
complain
of an error where to do so is inconsistent
party’s position
with the
taken in an earlier court
proceeding.
argu
McMath,
334 (1978). Giliberto, 90, Therefore, 74 Ill. 2d 105 the issue may any Inc., be raised at time. v. Allied Berg Security, 186, (2000); Ill. 2d Board, 193 188 n.1 Dubin v. Personnel (1989). 490, Ill. 2d Moreover, 128 496 an has obligation to take notice of go juris matters which diction of the circuit court in the case then before us. 566, (1979); Eastern v. Ill. 2d Canty, 75 570 see In re (1999). Gebis, 188, Estate 186 Ill. 2d Accordingly, 192 we will consider the pro issue of whether the limitations vision of the Act was an element plaintiff’s case and a jurisdictional prerequisite to suit. stated,
Simply “subject jurisdiction” matter refers to power of a court to hear and determine cases of the general proceeding question belongs. class to which the Stores, Inc., 527, v. Western Tire Auto Ill. 2d People 32 (1965); Dam, 212, 530 Dam 21 Van v. Van Ill. 2d 216 (1961); 14 16, (1968); § Ill. L. & Prac. Courts at 183 see Faris, 305, (1966); also Faris v. 35 Ill. 2d 309 Restate (Second) (1982). § ment 11 Judgments With the excep tion of the circuit power court’s to review administrative action, statute, by which is conferred a circuit court’s subject matter jurisdiction entirely by is conferred our 1970, VI, 9; § state constitution. Ill. Const. art. re M., 523, M.M., (1996); Lawrence 172 Ill. 2d 529 In re 156 53, VI, Ill. 2d article Under section 9 of Ill. jurisdiction “justiciable extends to all matters.” VI, Thus, § in order to Const. art. invoke subject jurisdiction matter of the circuit plain court,,a case, by complaint petition, tiffs as framed or must justiciable a rel. Scott v. present People matter. See ex (1974) (if Janson, Ill. 2d complaint states belonging general case to a class over which the author ity extends, subject jurisdiction of the court matter at (the taches); Tire, 2d Western 32 Ill. at 530 test in the subject jurisdiction matter is found presence and the complaint nature of the case as made sought); Ligon Williams, relief v. (1994) (court’s authority jurisdiction its exercise justiciable question through
and resolve a is invoked filing complaint petition). of a or
Our current constitution
not define the term
does
*9
“justiciable matters,” nor did
constitution,
our former
in
appeared.
term
1970,
first
See Ill. Const.
art.
(amended 1964).
§
§
VI, 9;
1870,
VI,
Ill. Const.
art.
9
Generally,
“justiciable
controversy ap
matter” is a
propriate
by
court,
for review the
in that it is definite
opposed hypothetical
concrete,
moot,
or
touch
ing upon
legal
parties having
the
relations of
adverse
legal
Exchange
Chicago
interests. See
National Bank of
County
(1955);
Cook,
v.
419,
6 Ill. 2d
422
Health Cost
of
App.
(1999); City
Sevilla,
Controls v.
582,
307 Ill.
3d
587
Chicago Chicago
App.
v.
Education,
Board
Ill.
277
of
of
(1995).
legislature may
justi
250,
3d
261
The
create new
by enacting legislation
rights
ciable matters
that creates
counterpart
and duties that
no
have
at commonlaw or in
equity.
Through
legislature’s
M.M.,
Some case however, that the defining justiciable may impose matter, “conditions precedent” jurisdiction to the court’s exercise of that E.g., Marriage cannot be waived. Fields, re Ill. 288 App. (1997);People Village 1053, 3d ex rel. Brzica v. Barrington, App. (1994); Lake 420, 268 Ill. 3d 422-23 of Mears, In re Estate it necessarily reject contrary
We this view because is Characterizing requirements article VI. of a statu tory precedent cause of action as nonwaivable conditions jurisdiction merely way to a court’s exercise of is another saying may only ju circuit court exercise that reiterate, the legislature risdiction which allows. We however, jurisdiction of the circuit court constitution, by legislature. Only conferred not the the area of the court’s power administrative review is Ill. adjudicate legislature. controlled Const. VI, 9; M., 529; M.M., § art. 172 Ill. 2d at Lawrence 65; Sexton, In re Ill. 2d Custody Ill. 2d at see also (1981) (holding statutory provi 319-21 affidavit sion, in the although mandatory, “jurisdictional” was not waived). sense that it could not be role, legislature’s limited under our current con stitution, jurisdiction of the circuit court defining significant previously in stark contrast role stands *10 by the under our former constitu legislature exercised Mears, (tracing tion. 110 Ill. 3d at 1134-38 the See legislative from a development jurisdiction purely constitution, concept embodied in the 1818 concept constitution). Under our now in force under the 1970 1870, constitution, in the circuit court adopted former of all causes in law and enjoyed “original jurisdiction 1870, VI, juris § The court’s Ill. art. 12. equity.” Const. i.e., matters statutory proceedings, diction over special in derived equity, had no roots at common law or which Graw, 205, v. 363 Ill. 208 legislature. People from the See (1936) (circuit jurisdic derived constitutionally court’s statutory proceedings); Sel apply special tion did not 67, Bank, 239 Ill. 74 Savings den v. Illinois Trust & (1909) (court may special have a general jurisdiction it). Thus, in cases upon statutory jurisdiction conferred action, we held that statutory causes of involving purely satisfied, statutory requirements were a court unless See, jurisdiction grant requested. the relief e.g., lacked 607, (1945); Ill. Schillo, People Martin v. 609-10 ex Brewer, 472, (1927); rel. v. 328 Ill. 479-84 Sharp Kilduff 332, Sharp, v. 213 Ill. 334-36 1964, however, judicial amendments to the article 1870 constitution became effective. These amend radically changed legislature’s ments role deter mining jurisdiction M.M., court. See circuit (Miller, Ill. C.J., joined 2d at 74 concurring, by Bilan J.) (the dic, scope juris sources and of the circuit court’s changed “dramatically” diction with the 1964 amend judicial article); Mears, ments to the 110 Ill. App. 3d at (a wrought by “revolution” was the 1964 amend ments to juridical article); see also Steinbrecher v. (2001) Steinbrecher, 514, 197 Ill. (discussing 529-30 amendments, change, under the 1964 from courts of jurisdiction limited general jurisdiction to courts of in a single integrated system). judicial article, Under the new enjoyed “original the circuit court of all jurisdiction justi matters, powers ciable and such of review administra may provided tive action as Ill. be law.” Const. (amended 1964). VI, § Thus, legislature’s art. power to define the jurisdiction circuit court’s was expressly limited to the area of administrative review. The current constitution, Illinois adopted retained this VI, § limitation. See Ill. Const. art.
In light changes, of these the precedential value of case law which examines a under jurisdiction court’s pre-1964 judicial system necessarily limited to the constitutional context cases those arose. See M.M., (Miller, C.J., concurring, joined by 2d at 74 J.) Bilandic, (“terminology in earlier employed [pre-1964] *11 in decisions must be viewed context in constitutional decided”); Valdez, those v. which cases were 79 Ill. People (rationale (1980) 74, 84-85 decided under of cases determining not whether applicable 1870 constitution constitution). jurisdiction circuit court had under 1970 Nonetheless, rules of law continue to be cited pre-1964 courts, confu- by qualification, creating Illinois without in the case law. imprecision sion present rely Defendants in the case rule law Under pre-1964 judicial system. its roots in the that has court, a limita rule, by articulated this presently this contained in a statute that creates substan tions law, the common right tive unknown to right, inherent element of the is more time is made an limitations; it is a condition ordinary an statute of than subject juris matter liability goes itself and Pas 7-9; at Wright, court. See 189 Ill. 2d diction of the Brothers Fredman 366-67, quale, citing 166 Ill. 2d at Revenue, v. Ill. 2d 202 Department Furniture Co. Demchuk, Wilson v. (1985); 6-7; Ill. 2d at see also Toman, (1949); Smith v. 307, Tromly, 404 Ill. 310-11 & v. (1938); North Side Sash Door Co. 414, Ill. 418-20 v. Hecht, Hartray Chicago (1920); 515, 519-20 295 Ill. Co., may rule of law Rys. 86-87 This judicial system pre-1964 under the appropriate have been hear and determine jurisdiction the court’s when conferred and statutory causes of action was purely and the failure to conform legislature, limited the court statutory requirements prevented strictly the extent To subject jurisdiction. from matter acquiring it is confined to today, relevance any has proposition only review —the area which area of administrative circuit the extent of the determines legislature still in this principle This is illustrated jurisdiction. court’s in Fredman Brothers. court’s decision administrative Fredman Brothers arose under our for 35-day period At whether review law. issue was Ill. administrative See appeal jurisdictional. filing an recognized a 3—103. We par. ch. Rev. Stat.
339
ordinary
limitations
of
and
distinction
statutes
between
jurisdiction
fix a
both confer
time
statutes which
jurisdiction may
such
be exercised. Fred
within which
Brothers,
209.
where
man
109 Ill. 2d at
We noted that
special statutory jurisdic
in the
court is
exercise of
prescribed by
procedure
tion, “if
mode of
statute is
strictly pursued,
jurisdiction
not
on the
no
is conferred
Brothers,
circuit
Fredman
2d at
court.”
210.
exercising
statutory
special
Because
the circuit
was
jurisdiction
law,
under the administrative review
we
jurisdictional
filing period
concluded that the
judicial
that
review of the administrative decision was
complaint
barred if the
was not filed within the time
specified.
Brothers, 109 Ill.
211.
Fredman
2d at
early
Fredman Brothers also referenced the
rule that
“
right
create
‘statutes which
a substantive
unknown to
the common law and in
time
is made an inherent
right
created,
element of the
so
are not
of limita
statutes
”
quoting
209,
tion.’
Brothers,
Fredman
109 Ill. 2d at
according
Smith,
statutes,
Ill. at
368
420. Such
opinion,
bringing
requirements
forth the
“set
for
right
remedy
“jurisdic
existence,”
to seek a
into
and are
mandatory.”
tional, not
Brothers,
Fredman
Ill. 2d
109
at
Plainly,
early
Fredman
Brothers’ reference to
regarding statutory
rule
causes
action was not neces
sary
extent,
to decide the case. To
however,
Fred-
suggests
vitality
man Brothers
that such rule still has
today, it
review,
is limited to the
area
administrative
the context in which Fredman Brothers was decided and
only context,
constitution,
under our current
apply.
observe,
such
however,
rule could
We
that Illinois
courts, in numerous
cases outside
administrative
incorrectly
area,
review
have
cited Fredman Brothers as
authority
proposition
for
that a limitations
statutory
jurisdictional.
contained in a
cause
action is
(Post-Conviction
e.g., Wright,
See,
ing
Pasquale,
Death
342
Having rejected argument defendants’ that the limi period jurisdictional prerequisite in tations the Act is a argument suit, we next examine defendants’ related plaintiff’s that the limitations is an element of (see plead prove claim, which must and Hamil Chrysler Corp., (1996)), 284, ton v. 287 ordinary period, rather than an limitations (see provides a technical defense to the claim Sundance County Page, Homes, 257, Inc. v. Du 195 Ill. 2d 267-68 87). (2001);Hartray, 290 Ill. at Our determination of this statutory judicial “[T]he is a matter issue construction. construing legislative in role statutes is to ascertain give accomplishing intent this, it effect. To aid objective legislature court will seek to determine the sought accomplish remedy.” it the evils desired to People (1990); Scharlau, 141 180, v. Ill. 2d see also WestAmerican Insurance Co. v. Sal E. Lobianco & Son (1977) (statutes Co., limitations, Ill. 2d light statutes, like other must be construed in their objectives, quoting Geneva Construction Co. v. Martin (1954)). Storage Co., & 4 Ill. 2d Transfer language Because legislative of a statute is the best evidence of (In (2000)), D.L., intent re 191 Ill. 2d our inquiry begins language with the of the Act. regulates manufacturers,
The Act motor vehicle doing distributors, wholesalers and dealers business (West 2000). pertinent this State. 815 ILCS 710/1.1 part, the Act defines and declares unlawful certain competition deceptive “unfair methods of and unfair and (West 2000). practices.” Among acts or 815 ILCS 710/4 practices any by those declared unlawful is action manufacturer, wholesaler, dealer, re- distributor or with spect “arbitrary, franchise, or to a which is bad faith damage any unconscionable and which causes 710/4(b) (West2000). parties public.” or to the 815 ILCS manufacturer, The Act it for a also makes unlawful
343 wholesaler, establish or adopt, change, or distributor “to for the allocation and distri- plan system a or implement to motor vehicle dealers bution of new motor vehicles modify an arbitrary capricious existing or or arbitrary capri- to be or plan so as to cause same 710/4(d)(l) (West 2000). Significantly, cious.” 815 ILCS of the Act that a franchisee or motor provides section 13 money proper- dealer suffers or any vehicle “who loss manufacturer, ty” employment by as a result of the compe- wholesaler or distributor “of an unfair method of tition or an unfair or act or deceptive practice declared by Act, “may damages unlawful” an action for bring relief, equitable including injunctive relief.” 815 (West 2000). ILCS 710/13
Section 14 of the Act sets forth limitations applicable damages to actions for and equitable relief: Except provided 14. Limitations. in Section 12,1
Ҥ
arising
any provision
actions
out of
of this Act shall be
years
commenced
within
next after the cause of action
4
accrues;
however,
provided,
person
that if a
hable hereun-
der
knowledge
conceals
cause of action from the
person
it,
entitled
bring
period prior
discovery
of his cause of
person
action
entitled shall be
determining
excluded in
the time limited for the com-
mencement of the
If
action.
a cause of action accrues dur-
ing
pendency
civil,
any
criminal or administrative
proceeding against person brought by
States,
the United
any
agencies
laws,
or
of its
under the antitrust
the Federal
§
Trade Commission
seq.
Act
U.S.C.
et
or
(2000)],
41
[15
any
act,
other federal
franchising,
or the laws or to
such
may
actions
year
be commenced within one
after the final
disposition
civil,
of such
criminal or administrative
(West 2000).
proceeding.” 815 ILCS 710/14
Section
does not
state an intent
expressly
by the
legislature that the
an
provision
limitations
be treated as
provides,
alia,
disputes may
1Section inter
that certain
be
(West 2000).
submitted to
provi
arbitration. 815 ILCS
710/12
appeal.
sions of section 12 are not at issue in this
addition,
element of a
cause of
action.
sec
provides
arising
any provision
tion
that actions
out of
years
of the Act
“shall be commencedwithin
next after
added.)
(Emphasis
the cause
action accrues.”
815 ILCS
*16
(West 2000).
language
typical
Such accrual
is
of
710/14
ordinary
Brothers,
statutes of
See Fredman
limitations.
provides
Moreover,
of the entitled to it.” 815 ILCS (West 2000). equitable estoppel The doctrine of 710/14 typically ordinary also associated with statutes of limita generally Leydig, Jordan, tions. See Jackson Inc. v. Voit (1994); Mayer, Hagney Lope & Ill. 2d 251-52 v. (1992) (discussing man, 147 Ill. 2d 462-66 conceal ment of cause of action sufficient to toll statute of limita tions); (recognizing Goodlett, 225 Ill. 3d at 590 concepts equitable estoppel, tolling usually of and waiver limitations). apply language Thus, statutes section ordinary militates favor of its treatment as an period.
limitations comports purpose Such treatment with the general promote terms, Act. Act is intended “to public prevent welfare,” frauds, and interest “to impositions upon protect citizens, and other abuses its preserve properties and the investments and provide adequate State, citizens of this and to and suf- generally,” through regula- ficient service to consumers distributors, manufacturers, tion of motor vehicle (West 2000). wholesalers dealers. 815 ILCS 710/1.1 particularly, More protect section 13 of the Act is intended to from unfair
motor vehicle dealers and franchisees practices employed by deceptive acts and manufac- by creating private wholesalers, turers, right or distributors 2000). (West Construc- of action. 815 ILCS 710/13 ordinary limitations, an tion section statute waived, may a technical defense which be provides purpose. better facilitates See Knauz Continental America, Autos, Inc., Inc. v. Land Rover North 842 F. (N.D. 1993) (the 1034, 1037 Ill. Act must be liber Supp. intent to ally Assembly’s construed to honor the General dealers). protect Accordingly, reject automobile we argument defendants’ with section 14 compliance was an element of plaintiffs claim. Continuing
II. Rule Violation alternative, argue, Defendants that even if the in the provision jurisdictional limitations Act is not a suit, prerequisite claim under the Act was Underlying argument time-barred. defendants’ is their contention that “continuing so-called violation rule” was erroneously applied running to toll the of the four- year limitations period. rule,”
Under the “continuing violation embraced court, appellate our continuing where tort involves a or *17 repeated injury, the limitations period begin does not to run until the date of injury the last or the date the tor tious acts cease. See Roark Macoupin v. Creek Drainage District, App. 835, (2000); 316 Ill. 3d 847 Bank of Ravenswood v. City 161, Ill. Chicago, App. 307 3d 167-68 of (1999); Services, Hyon Waste Management City Inc. v. 214 Chicago, App. 757, (1991); Ill. 3d City Rock Co., Falls v. Title & Chicago Trust 3d App. (1973). The trial court plaintiff found that had al leged a continuing and, therefore, course of conduct that the applicable period limitations would run from the date wrongful defendants’ conduct Relying ceased. on this court’s decision in Cunningham Huffman, v. 154 Ill. 2d (1993), appellate affirmed. 316 Ill. at 243-44. Whether the limitations set forth in the Act subject tolling to under a “continuing violation” rule question is a of law which we review de novo. See Cole, Woods v. 181 Ill. 2d we held that a Cunningham, medical malpractice
claim is not
barred
the statute of repose where
plaintiff demonstrates
there was a continuous and
unbroken course
negligent
treatment,
and that
treatment was so related as to constitute one continuing
wrong. Cunningham,
“[I]f the word occurrence were
single
to mean a
event,
isolated
patients
they
who discovered that
were
gravely injured
negligent
unnecessary
due to
or
exposure
X-ray
radiation or administration of medication over a
span
years might
little,
any,
be able to recover
if
in the
way
damages.
single dosage
This would be so
because
harmless,
might
of radiation or medicine
be
whereas treat
***
might
ment
disabling
over time
be either
or even fatal.
If the
repose
day
statute of
were read to start on
one of the
span covering many years,
treatment
in a
could
only
recovery
seek
for
years.
the final four
It is conceivable
damage
that the
caused in
years might
the last four
be ei
negligible
ther
or a small fraction of the harm caused over
thus,
negligence;
recovery
the continuum of
of dam
ages
negligible compared
injury.
would be
to the actual
Surely,
contemplate
unjust
the law could not
such an
Cunningham,
result.”
In the the appellate court determined Cunningham analysis applied also court, statutory According appellate claim. cumula- *18 negligence that, time, injury tive medical over results might insignificant, that otherwise be is not unlike that, defendants’ willful and wanton violation of the Act years, plaintiff a in a loss to that at period over results 243- point App. some becomes intolerable. 316 Ill. 3d at The court concluded that because defen appellate nature, of a the limita continuing dants’ conduct was tolled, timely. claim period tions was was agree. 316 Ill. 3d at 244. cannot We continuing did not a Cunningham opinion adopt or, in all general applicability violation rule of tort cases here, involving statutory cases cause of action. Rather, the result was on inter- Cunningham based pretation language contained in the medical mal- practice repose. case, statute of In the present plaintiff any language has not identified in the Act which would Moreover, a similar result. require “unjust we discern no case, in the present sought results” like those we to avoid in Cunningham, apply- which would militate favor of ing continuing violation rule. addition, defendants maintain that the continuing rule, court,
violation as applied by appellate is incon sistent with our discovery Generally, rule. under discovery rule, accrues, a cause of action and the limita period run, tions begins when the relief party seeking or reasonably knows should know of an injury it wrongfully Kuhl, caused. Clay v. 189 Ill. 2d (2000); Knox College v. Celotex Corp., The Act provides four-year limita period begins tions to run “after the cause of ac action (West 2000). crues.” 815 ILCS 710/14 In its second amended complaint, plaintiff alleged that defendants wrongful concealed their conduct and it was not until the fall plaintiff of 1990 that “discover[ed] its entitlement” bring a cause of action under Assuming, Act.2 arguendo, veracity statement, of this rule, under the discovery four-year limitations appellate determined, agree, 2The and we pursue theory did not his fraudulent concealment at trial. 316 Ill. *19 commenced, latest, would have at in the fall of 1990. appellate The court, however, that, determined under the continuing rule, violation the limitations never wrongful commenced because defendants’ conduct stopped.” App. ap “never Thus, 3d at 244. plication continuing of a violation rule in this case tolled period indefinitely beyond the limitations the time that discovery permitted. rule would have We find it un necessary, however, to resolve the tension between the discovery continuing rule, hand, one and the viola adopted by appellate court, tion rule our on the other wrongful hand, because we conclude that the conduct at continuing in issue this case did not constitute one viola tion of the Act. complaint, plaintiff alleged
In its amended second plaintiff that defendants’ allocation of motor to vehicles arbitrary, unconscionable, bad faith or inall viola- tion of section of the Act. Section of the Act makes its adopt implement unlawful for defendants to or a vehicle (815 system arbitrary capricious allocation which is or (West 710/4(d)(l) 2000)), engage any ILCS or to action respect plaintiff arbitrary, with which is in bad faith (815 710/4(b) (West 2000)). or Al- unconscionable ILCS though argue only defendants that the conduct at issue litigation adoption is this was the one-time their vehi- system early plaintiff’s cle 1970s, allocation com- plaint put adoption system at issue both the system. the individual vehicle allocations under that evidence adduced at trial established that defendants per made allocations two four times month. Each individual allocation was the result of discrete deci- regarding adjustable sions defendants the numerous parameters computerized that drove the allocation system. Although recognize we that the allocations were Thus, plaintiffs “discovery” wrong- 3d at 244. of defendants’ ful at conduct was not issue. conduct that defendants’ cannot conclude we
repeated, unbroken, decade- one, continuing, somehow constituted consti- Rather, each allocation of the Act. long violation Act, each of section separate tuted a violation Based on cause of action. separate supporting violation appel- agree with defendants foregoing, we application the trial court’s affirming erred in late court rule. continuing of the so-called violation however, related contention reject, defendants’ We entirety. in its claim was barred statutory that plaintiffs supported separate Because each allocation would have *20 for the action, may damages recover plaintiff cause of of See filing complaint. to the its four-year period prior (1992) 1, (continuing Kissner, 149 Ill. 2d 10-11 v. Meyers causes again over and over to gave nuisance rise private the action, merely specified period and limitations damages may be monetary in time for which window of the Hendrix v. prior filing complaint); recovered (5th 1990) 911 F.2d Cir. City City, Yazoo (where the limitations statutory initial violation outside limita later, begins each the period repeated violation at least recovery may tions anew and be had for period pe the limitations those violations that occurred within riod). in which complaint, Plaintiffs second amended Act, filed under the alleged first a claim plaintiff determined, however, that 20, 1992. The trial court July to plaintiffs claim under the Act related back plaintiffs Defendants have filed 1989. complaint August initial ruling in the trial court’s relation-back challenged not measuring dam- Thus, the relevant for period this court. (cid:127) ending August four-year period under the Act is the ages appropriate it is to determining Before whether court for a new trial remand this matter to the circuit we consider defendants’ damages, limited to the issue of error. other claims of Limitations Period
III. Contract Claim
claim for breach
argue
plaintiffs
Defendants
that
the dealer agreements was barred
four-year
under the
statute
of limitations
contained in article 2 of the
(UCC) (810
Uniform Commercial Code
ILCS 5/2 —725
(West 2000)).
trial
court determined that
the UCC
did not apply,
implicitly ruling
10-year
limita
tions
written
for
governed plaintiff’s
contracts
(West 2000).
contract claim. See 735 ILCS
This
5/13—206
ruling, together
the trial
with
determination
court’s
the continuing
governed plaintiffs
violation rule
statu
tory claim,
resulted
being
two claims
essentially
Thus,
appellate
co-extensive.
found it
court
unneces
sary to
argument
address defendants’
the contract
claim was time-barred. The
appellate
explained
that because the
found for
on
jury
claims,
both
and because the trial court ruled that
the award on the
claim could
breach-of-contract
be satisfied
a payment
statutory claim,
award on the
it was unnecessary
to rule on the statute-of-limitations
defense on the
claim.
breach-of-contract
3d at 242.
II, however,
As discussed in section
we have rejected
application of
rule
continuing
plaintiffs
violation
Act,
claim under
have limited
recovery
four-year
on that claim the
period prior
filing
August 8,
complaint
10-year
1989. If
statute
claim,
governs plaintiffs
limitations
contract
then the
*21
statutory claim and
contract claim are no longer co
extensive, i.e.,
be
damages
contract
would
recoverable for
several years in addition to
by plaintiffs
those covered
claim,
statutory
payment
and
of the award on the statu
tory
fully
claim
not
an
satisfy
would
award
Therefore,
contract
appellate court,
claim.
unlike the
we
argument
find it
to address
necessary
defendants’
and
claim
plaintiff’s
resolve whether
contract
was time-
legal
Woods,
barred.
this
novo. See
We review
issue de
Plaintiff a breach of contract in its first 30, 1991. The trial January filed complaint amended claim related back ruled, however, that the contract 8, August filed 1989. initial complaint to plaintiff’s court. ruling challenged have not Defendants period applies, limitations Thus, four-year if the UCC 8, 1985, would be August arising prior contract claims time-barred. four successive claim involved
Plaintiff’s contract 1987, 1980, 1986, executed agreements, dealer 1986, arising under the It is that claims apparent aby not be barred 1987, agreements and 1988 would three i.e., claims under those four-year period, limitations 8,1985, prior August could not have arisen agreements not executed and did not agreements because the were Only until after that date. claims aris- become effective agreement the 1980 dealer could be barred ing under Thus, confine our four-year period. limitations we agreement. review to the 1980 agreement provi
The 1980 contained a choice law governs.3 Generally, law stating sion California be honored. v. provisions choice of law will Hofeld 522, Co., 59 Ill. 2d 528-29 Nationwide Insurance Life (1975); Security v. Burns International see also Hartford (1988). Services, As to Inc., 172 Ill. 3d App. matters, however, the law of the forum procedural Co., 40 Ill. 2d v. Coronet Insurance controls. Marchlik Ill. (1968); App. v. Kaufman, 329-30 see also Cox proce are Statutes of limitations 3d remedy for dural, fixing the time in which merely rights. sought, be and do not alter substantive wrong may 209; Cox, 212 Brothers, 109 Ill. 2d at see also Fredman Accordingly, governs at 1062. Illinois law Ill. 1986, 1987, agreements provide that all 3The governed by where the agreement he the laws of the state shall dealer located —Illinois.
352 timeliness plaintiff’s of claim under 1980 dealer agreement.
The 10-year statute of generally limitations governs written claims on contains an express contracts for exception governed actions by section 2—725 of the 2000). (West UCC. 735 ILCS Section of 2—725 5/13—206 the UCC provides that for any “[a]n action breach of contract for sale must be commenced within 4 years af- ter the action cause of has accrued.” 810 ILCS 5/2— 725(1) (West 2000). “A cause of action accrues when the occurs, breach regardless aggrieved of the of party’s lack 725(2) (West knowledge breach.” 810 ILCS 5/2 — 2000). Only contracts which fall scope within article 2 of the are subject four-year UCC limita- period. tions 2 Article is limited to “transactions (West 2000). goods.” 810 ILCS Defendants 5/2 —102 argue that the dealer agreement principally 1980 for goods the sale of and that agreement therefore comes however, within the article contends, ambit of 2. Plaintiff that the agreement dealer is a personal services contract and is not governed by article 2.
Where, here, a contract both for provides the sale goods services, and for the rendition of Illinois courts apply purpose” determining test “predominant whether 2 the contract falls within article of the UCC. Miller, (1995); 735, See Zielinski v. 277 3d App. Ill. 741 Bowling Tivoli Inc. v. Brunswick & Billiards Enterprises, (1995); 638, 3d Corp., App. 269 Ill. 646 Yorke v. B.F. Good Co., 220, (1985); rich Executive America, Bannon, Centers Inc. v. 62 Ill. App. 3d (1978); Stat., § Ill. Ann. ch. see also Il 2— (Smith-Hurd Comment, linois Code at Supp.) (“Illinois reviewing courts what may have taken be called view”). test, if the purpose’ ‘dominant Under goods, contract for the with ser predominantly is sale being thereto, vices the contract will be incidental Conversely, governed if the contract article 2. being goods predominantly services, the sale for with fall article will not within thereto, the contract incidental *23 App. 741; Tivoli Enter 3d at Zielinski, 277 Ill. 2. See prises, at 646-47. Ill. 269 jurisdictions distributor held that have Numerous including agreements, dealer automobile and dealer agreements, goods predominantly and the of for sale are Sally Beauty governed by Co. v. the UCC. See thus are (7th Cir. 1001, 1005-06 Co., F.2d Products 801 Nexxus 1986) cases); Country Toyota Corp. (collecting v. Old (E.D.N.Y. Supp. Toyota Distributors, Inc., F. Motor 1997) gov agreement (holding Toyota dealer was that UCC); by Bromar, Paulson, Inc., 775 F. Inc. v. erned 1991) (col (D. through Supp. Haw. 1329, 1333 nn.1 Supp. cases); Chrysler Corp., lecting Kirby 554 F. v. (D. 1982) holding (collecting and that Md. cases 749-50 Chrysler governed by agreement was direct dealer with UCC).
Significantly, Country Toyota, in a federal district Old Toyota agree- analyzed provisions dealer of a during which, identical, if not executed the 1980s ment strikingly at here. The federal similar to the one issue agreement predomi- that the dealer court concluded nantly goods governed of and was thus for sale Supp. Country Toyota, at 170. The 966 F. article 2. Old prominence of the word “sales” noted the federal court “Toyota agreement’s Dealer and Ser- title, Sales Agreement,” the “heart” of and stated vice Toyota agreement of Products concerned the “Sales (section Selling Toyota VI), “Promoting and and Dealers” (section X). Supp. Country Toyota, 966 F. Old Products” agreement, according the federal at 169. Most a continuum court, the intent to secure reflected Toyota dealer, then on to the from sales—first Toyota’s dispute public concerned the fact that the —and purchased by allocation vehicles to be the dealer “un- Country [d] derscore intent.” Old Toyota, F. at 169. The Supp. federal court determined that the “unit allocation provision” the agreement contained the (see core attributes of a requirements contract 810 ILCS (West 2000)), under Toyota agreed 5/2 —306 vehicles to supply quantities the dealer in the and types ordered, subject Country to available Old supply. Toyota, Supp. 966 F. at Finally, the federal court determined agreement the service and other provisions were collateral to primary purpose facilitating sales Toyota between and the dealer. The court stated: Agreement’s “Other than promotions, sales sales maintenance, provisions premises substantive concern ac- methods, counting working capital, maintenance net service, display Toyota premises marks. The main- and accounting provisions housekeeping tenance are mat- bearing with analysis. Agree- ters little on the Court’s actually only ment does not address the substantive matter *24 not related to sales —the maintenance working of net all; parties capital the are directed to address that is- —at separate Agreement. in a Working Capital sue The trade- merely provision grants Country mark [the dealer] Old the mark, right Toyota only to then use the and in connection ‘selling’ ‘offering Toyota products. [Cita- with or for sale’ substantial, Though provisions tion.] the are their service overarching purpose ‘protect is to the [citation] interests’ goodwill’ ‘secur[e] maintain[ ] [citation] the public. buying Again, language this is at bottom the of Toyota, Supp. Old at Country sales.” 966 F. agree the the analysis
We with federal court and the similarly agreement conclude that 1980 dealer at is- litigation governed sue in this is article 2 by UCC. four-year forth Accordingly, period limitations set section 2—725 to contract claim. applies In an avoid the effect of a limi- attempt four-year plaintiff argues wrongful that defendants’ period, tations consid- agreement allocations under the should be until the ered one breach did not actionable become advocates effect, plaintiff in 1986. expired contract rule, not unlike breach” of a “continuous application The it also relied. on which rule “continuing violation” Associates, Inc. is & plaintiff Berg authority by cited only 3d Co., App. 221 Ill. Steel & Wire v. Nelsen however, only proposition for stands Berg, considered typically are contracts that construction limitations for and that the statute “single endeavor” run until the begin not the contract does claims under on the date rather than complete, endeavor Berg, the contract. are due on installments monetary not involve a The case does at 532. instant App. Ill. contract. construction any breach conclude foregoing, on the we
Based four-year occurring outside agreement of the 1980 time-barred, trial and the UCC limitations outside the erred evidence of claims permitting court four-year period. Summary Judgment Denial of
IV contention that the trial next consider defendants’ We summary judg for denying erred in their motion liability provision release of ment based on a mutual agreements. 1988 dealer contained in the 1987 and the release issue court determined appellate and that the trial court’s denial dispute involved a factual judgment order judgment merged with summary 3d at 234. not appealable. and was rule, summary judg a motion for general As a when trial, the denial proceeds and the ment is denied case appeal is not reviewable summary judgment merged judg into the any the result of error is because Forms, Inc., v. Data ment entered at trial. Labate See *25 (1997); Strasbaugh, v. 738, People Ill. 3d 740 App. 288 Goldwasser, 1012, (1990); v. 194 Ill. 3d 1016 Gaskin App. (1988). 996, 1013 The rationale for App. 166 Ill. 3d unjust to denial order would be rule is that review of the prevailing party, judgment who obtained a after a presentation complete Strasbaugh, more of the evidence. App. quoting Marriage 1016-17, 194 Ill. 3d at In re of (1988). App. Adams, Ill. 3d Defendants summary judgment contend, however, that their motion presented legal by issue for court, determination jury, rather a factual than issue for determination circumstances, that under these of the review denial summary judgment appropriate. is Battles See v. App. La Bank, Salle National 240 Ill. 3d summary judgment In their motion, defendants argued plaintiff that had released defendants from all pursuant claims to XXIII section 1987 and agreements. provides 1988 dealer XXIII Section that the parties any claims, release each other “from all may against causes action or otherwise that it have money damages arising any the other for event from oc- curring prior Agree- th[e] the date execution of Significantly, ment.” XXIII section also that “the states party not release does extend to claims which either does reasonably suspect not know or in its exist favor at Agreement.” th[e] the time of execution of plaintiff reasonably or Whether knew should have suspected agreements that, at the time the dealer were against executed, had a it claim was an defendants issue Accordingly,any of fact. error the denial of defendants’ summary judgment merged motion was into the trial appeal. Labate, result and not reviewable See App. Strasbaugh, App. 740; 1016; Ill. at 3d at Gaskin, 166 Ill. 3d at 1013. Damages
V argue prove, next that Defendants failed degree certainty, with a it reasonable sustained any profits financial losses or lost due to defendants’ entry judg- are conduct and defendants entitled to Alternatively, argue ment in their favor. defendants *26 damages. Defendants a new trial on are entitled to they each of which argument, for their several submit bases considering defen- rejected. Before appellate testi- contentions, briefly review the we dants’ several damage experts. mony plaintiffs Lyman Dr. expert, damage Plaintiff’s principal damage four different Ostlund, regarding testified model, sought to demon- In the first Ostlund models. system, which that defendants’ vehicle allocation strate a “turn and earn” plaintiff to as defendants described earn” as a “turn and did not in fact function system, com- Ostlund, although defendants’ According to system. to referenced the need frequently to dealers munications in a concept their “turnover rate” —a imbedded increase no be- system relationship and earn” was “turn —there a having a succeeded in tween extent which dealer average rate and the extent to which high turnover If the strong dealer had a sales trend over time. positive system as a “turn and earn” functioning allocation was rela- system, strong there would have been a statistical a and sales tionship between dealer’s turnover rate Chicago a 25-dealer from the growth. sample Based on relationship Ostlund no between the two region, saw the number of vehicles variables. Ostlund calculated allocated, if defendants’ alloca- would have been plaintiff and system system, had functioned a “turn earn” tion that number actual alloca- compared and units,” difference, termed “lost tion. Ostlund into lost profits. was then converted tied damage plaintiff’s The second model was shortage Toyota there a vehicles contention that during the due to restrictions under import 1980s (VRA). voluntary agreement agreed restraint Ostlund shortage of vehicles shortage existed. Where allocated, existed, to be under the 1980 vehicles were of sales agreement, “principally performance the basis during the most recent representative adequate supply,” agreements, and under later in a “fair equi- table manner.” Ostlund determined the “most recent representative period adequate supply” was the period June 1980—when the 1980 agreement dealer became effective moved facility into a new —. through March 1981—when the VBA became effective. Ostlund that during determined this period plaintiff’s sales of represented 423 units Chicago region 1.14% of sales. Assuming plaintiff would have achieved the same *27 of Chicago region subsequent 1.14% in years sales if had defendants allocated an appropriate of number plaintiff, vehicles to Ostlund determined the number vehicles plaintiff should have com- been allocated and figure pared to the actual allocation. lost units were then converted into profits. lost
The third damage model as a “penetra- was described tion rate” model plaintiffs and was related to contention it should have been treated to the comparably Toyota Louis, dealers in Expert St. Missouri. witness James Little testified that Toyota dealers in the St. Louis Area,” “Metropolitan Statistical includes Illinois, Belleville, part “geographically are of a integrated market” and that there no or economic business logic placing in on in dealers the Illinois side a different than region administrative the dealers on Missouri addition, In side. Ostlund testified that dealers on Toyota area, the other side the river in the “St. Metro” Louis by Toyota, defined a higher as received level supply vehicles, resulting higher rate penetration within the import According Ostlund, vehicle market. if more i.e., vehicles had been allocated to if defendant plaintiff, dealers, had been treated comparably St. Louis then it is reasonable assume that penetra- the same tion rate would have occurred in the Belleville market occurred on average on Missouri side. his third rate penetration calculated model, Ostlund damage years ques- for each of Metro” Louis in the “St. allocation expected plaintiffs tion, and calculated rate penetration achieving the same vehicles based be- difference The lost units —the market. Belleville allocation— and actual allocation expected tween profits. into lost then converted were on the was based damage model and final The fourth contended system, which of an order concept agree- dealer the 1980 under system required was the shortage there was no found jury ment, in the event model, damage the fourth Through vehicles. Toyota plaintiff would the number of vehicles calculated Ostlund had been in system if an order ordered and sold have into lost again converted The lost units were place. profits. by calculated model, profits lost were
Under each is- year for each at of lost units the number multiplying contribu- unit. The margin per contribution sue in plaintiffs data contained margin was derived from tion the difference be- statements, and represented financial adjusted price, and the dealer price the customer tween including sales expenses, and fixed variable for inventory advertising, commissions, delivery expenses, freight, supplies, maintenance, training, personnel *28 utilities, benefits, rent, salaries, taxes, employee payroll then figure items. That was over two dozen other and profits additional reflect the extent to which adjusted to The four borrowing. plaintiffs reduced would have from ranging calculations damage models resulted model, $6,818,506 for to $5,014,201 for the turnover a model contained addition, damage each model. In order assumption based on damage calculation separate profits additional reinvested would have plaintiff that calculation Ostlund’s reinvestment into business. higher: damages significantly range produced $11,119,872. $6,327,434 to testimony expert
In to addition of Ostlund and computer Little, consultant Robert Benson testified regarding system. defendants’ allocation Benson testified computer program that under which allocations were parameter-based system. made was a He identified 25 parameters Although could affect an allocation. system Benson testified that could be in a used discriminatory way, whether, he could not determine against plaintiff. fact, it was to used discriminate Benson inability, testified, however, further that his to determine discriminatory whether occurred was the result of use the lack of an “audit An trail trail.” audit would have al- an lowed allocation result to be traced back. other parameters adjusted words, of the 25 which could be manipulated any impossible allocation, with it was to parameters particular determine how were for a set opined that, allocation. Benson from resource alloca- perspective, ability it tion was unusual have this much manipulate system an allocation and also that unusual no audit trail existed. jury awarded million on its breach $2.5 plaintiffs claim,
of contract million on MVFA $2.25 count. plaintiff’s experts first maintain that they
Defendants “admitted” not could establish defendants’ any plaintiff, plain- damage conduct caused and that experts quantify tiffs plaintiff could not the number of vehicles any
allegedly lost act as a result of or omission argue plaintiffs Thus, defendants. defendants damages disagree. pure speculation. evidence of We support The record does not defendants’ characteriza- testimony plaintiffs Although experts. com- tion of the puter the al- consultant Benson could not conclude that program discriminatory location had used in a been plain testimony fashion, the thrust was to of Ostlund’s contrary. quantified Further, dam- Ostlund *29 translating damage ages models, four each of his under uncertainty profits. That there is some units into lost lost projections accuracy not fatal to of Ostlund’s as to plaintiffs claims. always very profits, nature, be un will their
Lost incapable of calculation with to some extent certain Corp. precision. Hotel v. Reuben Midland mathematical (1987). Donnelley Corp., For 2d 315-16 H. profits require be not that lost reason, the law does this proven certainty. need Rather, the evidence with absolute computation only for the afford reasonable basis certainty, degree damages which, a reasonable of with wrongful Midland conduct. traced to defendant’s can be not be Defendants should Hotel, Ill. 2d at 315-16. entirely escape liability permitted the amount because damage they do is uncertain. To so have caused consequences from the to immunize defendants would be wrongful Stoner, Ill. Co. v. their conduct. See Vendo plaintiffs submission Defendants also contend that (two eight damage different awards different awards models) specula different demonstrates the under four According damage plaintiff’s claim. tive nature of ways eight £‘[t]here different defendants, cannot be injury calculating damages with for the same ‘actual’ certainty.” reasonable damage agree calculated dam- that each model
We injury profits ages general due to for the same —lost pre- improper Plaintiff, however, allocations. vehicle theory regarding the allocations. more than one sented theory damage and, a different Each model involved finding by factual above, a different discussed involved potential eight jury. different Thus, the mere fact that jury not, under the does awards were submitted plaintiff’s case, of this demonstrate circumstances damages ap- agree speculative. Rather, with the we were pellate court that because different theories were appropriate involved, it was to submit different estimates *30 damages jury. Illinois, See Arch Inc. v. S.K. GeorgePainting App. Contractors, Inc., 288 Ill. 3d (1997) (“The determination of which measure of damages apply usually question jury”); for the I-Del, Hills App. Palos Condominium Inc., Ass’n v. (1993) (“only jury 470-71 could deter damages apply mine which measure of because the only applied alternative measure could be after a factual ***”); finding John Morrell & Co. v.Local Union 304Aof & Workers, United Food Commercial 913 F.2d (8th (trial 1990) permitting Cir. court did not err in expert eight damage producing range to discuss models profits of lost from million to million $20 because the $35 expert explained assumptions upon the different premised). each model was
Defendants also contend that was no there historical assumptions regarding basis for certain of Ostlund’s plaintiff level of sales would have achieved under the dif damage models, ferent and that Ostlund’s use of similar assumptions rejected by has been another court. See Thoroughbred Ford, Co., Inc. v. Ford Motor 908 S.W.2d (Mo. 1995). Thoroughbred Ford, the Mis Appeals plaintiff dealership souri Court of held that the prove certainty any failed to with reasonable dam age Company’s alleged occurred due Ford Motor misrepresentations dealership. that it would relocate doing, appeals rejected In so Ostlund’s testimony regarding profits lost at new location dealership because a Ford had existed at that never loca way tion and there was no rational to estimate antici pated profits hypothetical dealership. future Thor oughbred present Ford, case, 908 S.W.2dat 735-36. Thoroughbred hypotheti Ford, unlike involve a does not dealership. Further, cal the record reveals that the as- damage underlying sumptions models were Ostlund’s challenged thoroughly cross-examination, and tested expert by defendants’ own witnesses. argue plaintiff failed to also estab
Defendants damages certainty lish with reasonable intersecting factors that failed to consider the numerous performance dealership of an affect the general automobile plaintiff’s performance par and that affected Hotel, Midland Ill. 2d at 317. Ostlund ticular. See captured testified, however, that his turnover model performance plaintiff, it reflected what the because dealership in terms of vehicle al should have received dealership’s locations, with the actual commensurate performance, ability product. i.e., to turn the its Ostlund plaintiff’s performance further testified that actual margin reflected in the contribution which considered *31 unit, make, what this dealer would if it sold one more operates. based on how it That defendants are not in agreement persuade with Ostlund’s conclusions does not plaintiffs damage unduly specula us that evidence was tive.
Finally, argue defendants that Ostlund’s “reinvest theory” thinly improper attempt veiled, ment awas to prejudgment secure interest and inflate its claimed dam ages. Department Transportation Century See v. New Engineering Development Corp., & 97 Ill. 2d (1983) (“this consistently right court has held that the par interest must be found the contract between statute”); Sterling Freight Lines, or in the Inc. v. ties Sales, Inc., Prairie Material
(1996) by (plaintiffs attempt adjust profits lost award “inflationary improper attempt to an factor” was secure interest). dispute prejudgment that it Plaintiff does not prejudgment plaintiff Rather, is not entitled to interest. merely provided maintains that Ostlund an alternative damage assump- on the award under each model based plaintiff that,
tion had received all the vehicles to which plaintiff any entitled, it was would have reinvested ad- profits dealership. ditional in Ostlund made this as- sumption, despite knowledge historically, however, that, profits had not reinvested all of its in the dealer- ship. Further, Ostlund testified that his reinvestment theory money” took into account “the time value of projected that he used the bank rate of interest as the agree rate of return. Based on record, we with damage defendants that Ostlund’s alternative awards theory prejudgment based on his reinvestment inter- guise est in another and should not have been submitted jury. agree appellate We also court, however, with the any error did not rise to the level of reversible error. only “New trials can be ordered when the evidence improperly appears admitted to have affected the *** outcome. While we would like all trials be con purpose by free, ducted error no useful would be served granting a trial new when the record reveals that the er change jury.” rors did not the result reached J.L. Group Simmons Co. ex rel. Insurance v. Fire Hartford Co., stone & Tire Rubber 108 Ill. 2d asked, Ostlund was on cross-examination, to recalculate damage taking awards, but without into account profits reinvestment of and other items defendants questioned. produced damage range The recalculation jury million to million. The $2.1 awards of $3.7 $2.25 range. million and million are each $2.5 within they approach Moreover, do not million mini $6.3 *32 theory. mum award under Ostlund’s reinvestment Ac cordingly, improper we cannot conclude that the admis sion of this evidence affected the outcome of the trial. Even if it could be said Ostlund’s reinvestment the ory improperly jury’s damage award, influenced as below, discussed this matter will remanded be circuit court for a new on are hearing damages. We confident that this error —whether harmless or not —will not recur on remand.
VI. New on Hearing Damages Having determined that by no issue raised defendants requires reversal of the judgment in its entirety, we return now to the issue of whether it is appropriate to remand alone, this matter for a damages new trial on as suggest. defendants A may order a solely new trial on the damages issue of damage “where the issue is so separable and distinct from the of liability issue that a trial of it alone may be had without injustice.” Paul Har ris Morse, Furniture Co. v. (1956); 10 Ill. 2d see also Robbins v. Co., Construction 72 Ill. 2d Professional 215, 224 Notwithstanding some of complexi case, ties of believe, this we based on our review of the record, that the issue of damages is severable from the liability. issue of We therefore remand this matter to the circuit court for a solely new trial on the issue of dam ages. Consistent with our above, discussion any damage award is limited to four-year period prior to filing complaint August 8,
CONCLUSION For the foregoing reasons, we affirm in part and re- verse in part the judgments of the circuit and appellate courts and remand this matter to the circuit court for further proceedings.
Judgments part reversed affirmed in part; cause remanded with directions. FREEMAN, JUSTICE dissenting: The issue raised simply question case is to how the limitation period contained in the Motor Vehi- (Franchise Act) (815 (West cle Franchise Act ILCS 710/14 1992)) is to be construed. areWe asked to determine whether that period may limitation be tolled continu-
ing acts of capricious continuing allocation or illegal agreements. modifications dealer The trial in judge mistakenly this case believed that the period could be tolled in that Unfortunately, manner. that erroneous rul- affected, ing detrimentally, the manner in the par- In light fact, ties tried the case. of that I do not believe changed that defendants have their position appeal, nor I plaintiff do believe that abandoned its fraudulent position. my view, concealment errors made circuit court a remand a trial in necessitate for new its entirety, just damages, today and not for as the court concludes. I respectfully therefore dissent.
Factual Background in dispute at issue this case from a grew single- complaint injunctive count for relief filed by plaintiff against August defendants on 1989. Plaintiff is a Toyota dealership, Toyota and defendants are distribu- Act, sought, pursuant tors. Plaintiff to the Franchise to enjoin allowing competing dealership defendants from open to in nearby Collinsville. January
Plaintiff to complaint amended its damages of contract claim for in addi- include breach injunctive sought. tion to the relief Plaintiff previously 12, 1975, alleged that, February on or about it entered into a and Toyota Agree- written “Dealer Sales Services According ment” with a to defendants. predecessor plaintiff, agreement plaintiffs right the 1975 established to related to sell and service motor vehicles addition included an al- parts agreement and accessories. The also provision location for distribution vehicles the fall of or the dealership. during At some time winter of defendants came into existence and as- liability predecessor. Plaintiff claimed sumed 1, 1986, 22, 1979, through June January from at least and agreement between defendants dealership provision “unit allocation” plaintiff contained same agreement. alleged set forth in the 1975 Plaintiff with, their and their agreement defendants breached promises to, they representations plaintiff products allocate provide Toyota failed and/or under the al- quantities required either in the orally represented location as defendants provision or promised to plaintiff. original injunctive After the count for relief was vol- *34 untarily prejudice, dismissed with defendants moved to claim, remaining arguing dismiss the breach of contract it that was time-barred. Defendants asserted that the ac- governed by
tion was the Uniform Commercial Code (UCC) (810 (West 1992)) ILCS because a dealer- 5/2—725 ship contract the such as one at issue is a contract for such, goods. the sale of the four-year As statute of limita- tions contained in the UCC acted to the claim. bar
The circuit had not ruled on defendants’ mo- tion to plaintiff yet dismiss before filed another amended complaint. complaint This contained three counts. The first count was for breach of and contract essentially mirrored the count contained in the first amended com- alleged Plaintiff plaint. January 29, that from through 1, 1986, June to provide defendants failed or al- locate Toyota products plaintiff to quantities such required under the allocation of the provision parties’ agreement. Moreover, plaintiff that alleged defendants fraudulently concealed their from plaintiff actions and did not plaintiff discover those actions until approxi- mately the fall of 1990.
In II, plaintiff alleged count that defendants inter- fered with plaintiffs prospective economic In advantage. III, count plaintiff alleged that defendants violated sec- tion plaintiff, Franchise Act. to According from January 22, 1979, 1, 1986, through June al- defendants’ location of plaintiff arbitrary, motor vehicles to capri- was cious, in faith, bad all in unconscionable, violation of addition, In that plaintiff alleged
the Franchise Act. capricious their al- arbitrary defendants concealed knowledge location from so system plaintiff’s bring to was unable to discover its entitlement plaintiff the fall of 1990. the cause of action until day that it filed its second amended com- On same response filed a to defendants’ outstand- plaint, plaintiff In that re- ing complaint. motion to dismiss the amended not apply maintained that the UCC did sponse, plaintiff The circuit court to its claim of breach of contract. ruled as a matter of law breach eventually UCC; rather, not governed contract claim was The circuit applicable. of limitations was 10-year statute the amended related back complaint court also found that complaint August the first filed motion to thereafter filed second Defendants dismiss, their contention that they in which reiterated applied limitation contained the UCC four-year Thus, claim. defendants contended the breach of contract date of filing if the claim did relate back to that even 1989), (August original complaint prior occurred asserting breaches that foreclosed from addition, argued defendants 8, 1985. August *35 irrelevant concealment was of fraudulent question UCC, knowledge does not serve under the lack of because period. toll the limitation III, Franchise Act viola- alleged which As to count Act of the tions, argued that section defendants begins four-year period limitation contains to count According accrues. the cause of action run after alleged by plaintiff III the last allocation complaint, plaintiff Because June 1986. occurred on or before June years four after the claim more than first asserted in its en- 20, 1992), claim was barred (July the al- failed to plaintiff claimed that Defendants also tirety. For these concealment. showing fraudulent any facts lege reasons, that was not entitled argued plaintiff defendants to relief under the Franchise Act.
In that plaintiff repeated contention the response, its governed by 10-year of claim was the breach contract violation, statute of limitations. As to the Franchise Act contended the claim not time-barred plaintiff that was due that of a to the fact defendants’ conduct consisted that, continuing violation. Plaintiff contended under that doctrine, upon the to run the began limitations result, cessation of conduct. As a the claim was not In alternative, time-barred. plaintiff argued that four-year defendants’ fraudulent conduct tolled the limitation period prevented because defendants’ actions from plaintiff discovering violations until 1990. motion, ruling the circuit court found first that all the claims original related back to the date the complaint filed, August Moreover, was found plaintiff alleged had a continuing course of conduct and matter of law “any Statute Limitations period runs from the date the cessation of said continu- result, ous conduct.” As a the claims were not time- barred. analysis applied claims, This including to all those brought under the Act. Franchise
Analysis The foregoing procedural history of dispute (i) reveals that long defendants have maintained (ii) Franchise claim plaintiff’s Act is time-barred and governed by breach contract claim statute of limitations in the contained UCC. These repeatedly contentions were rejected judge. the trial alleged record also reveals that plaintiff fraudulent concealment complaint its and establishes plaintiff statutory knew of its at duty pleading, least one point stages litigation. Indeed, at early the trial judge’s ruling continuing that the violation doc- applied trine at violations issue caused *36 had fraudu- effort to show how defendants abandon its lently until of the Franchise Act concealed the violations
Notwithstanding today implies above, court the the changed position appeal on have their that defendants argument. 199 Ill. 2d at their See and thus have waived position before this I not believe that defendants’ 333. do contrary position at trial. Defendants is to their brought they here, below, that maintain did statutory damages under recover action too late to this any alleged for Act and too late to recover the Franchise dealership agreements In under the UCC. the breach of agrees extent, in defendants to an fact, the court with calculating holding judge erred that the trial simply respects. Thus, there is in both limitations principles here is there of waiver nor no reason to discuss “implicates argument anything about defendants’ jurisdiction subject the circuit court.” 199 matter Ill. 2d at 333. appeal granted in order to in this case leave to
We continuing doctrine could violation decide whether brought applied Franchise Act. under the to actions be language question section concerns whether The policy with Franchise Act is consistent 14 of the continuing violation underscore the considerations which fairly question narrow is I believe that doctrine. require court to not one, of which does the resolution jurisdiction. subject expound matter on the issue (see my the court’s discussion belief that addition 333-41) unnecessary, jurisdiction I also is 2d at Ill. regarding jurisdic wrong. questions it believe opinion M.M., in In re in this court’s tion were answered very Today’s opinion, least, at the Ill. 2d 53 long-standing years question of this court’s calls into precedent. flatly precedent and, most, overrules at any despite discernible is not the fact there done This is or amongst conflict confusion lower courts as to *37 nor any matter is there other reason which would war rant court to stare decisis in the manner that ignore this it Benjamin does. See v. Electric Heimgaertner Manufac (1955) Co., (recognizing that turing doctrine only by showing of stare decisis be overturned of may cause). good the I
Leaving
jurisdiction,
aside
discussion about
disagree
that
strongly
holding
with the court’s
the provi
sions in section 14
the Franchise Act do not constitute
an element of the cause
to
pled
proved
of action
be
and
by the
act
as an
plaintiff,
“ordinary
but
rather
statute of
my
limitations.” 199 Ill. 2d at
colleagues
344.1 remind
the
that
majority
just recently
this court
reaffirmed the
notion that the
to
Assembly
impose
General
is free
limi
tations and conditions on the
availability
relief under
the statutory
that it
causes
actions
creates.
re Mar
(2001).
riage
Kates,
Ill.
2d 156
Given
the
that
Franchise
provides
Act
dealerships
automobile
with a
cause
statutory
against
of action
al
arbitrary
unfair
locations made by distributors —a claim unavailable
under our common law—it is not
the
unreasonable that
legislature chose to impose time
on the
requirements
availability legislatively
See,
created relief.
e.g.,
Varelis v. Northwestern Memorial
Ill. 2d
Hospital, 167
(1995) (and
therein).
449, 454
today
cases cited
to
appears
position
changes
take the
the
that
that were
wrought
the 1964 amendments
to the 1870 Illinois
away
Constitution
did
with
legislature’s
right
to
impose
to
preconditions
statutory
causes of actions
disagree.
it creates. I
changes
any
Those
did not in
way
legislature’s
affect the
to
power
impose such limits
or preconditions.
M.M.,
(Miller, C.J.,
See
Notwithstanding
long-standing recogni
this court’s
legislature’s ability
impose
tion of the
or
limits
preconditions upon
right
statutory
to relief under a
language
plain
action, I
cause of
do not
believe
compels
Act,
holds,
of the Franchise
as the court
four-year
conclusion that the
ordinary
limitation
is an
wording
statute of limitation. The
of the statute
legislatively
language
in other
created
is similar
found
(West 2000);
e.g.,
See,
remedies.
ILCS 5/6—21
(West 2000).
ILCS
This court has construed
180/2
plaintiff’s
provisions in
elements of the
these statutes as
(1960);
Lowrey Malkowski,
case.
v.
1979 as of its order part alia, generally. service consumers ILCS 710/1.1 (West 1992). 4(d) Act, of the Under section Franchise motor vehicle cannot “adopt, change, distributor estab- plan lish or or for the allocation and implement system distribution of new motor vehicles to motor vehicle deal- *** arbitrary capricious modify ers which is or or an existing plan arbitrary so as to cause the same to be or 1992). 710/4(d)(l) (West capricious.” 815 ILCS Section 14 provides that arising any provision
“actions out of Act shall be years commenced within next after the cause of action accrues; however, provided, person if a hable hereun- knowledge der conceals the cause of action from the it, person bring discovery entitled to prior person his cause of action entitled shall be in determining excluded the time limited for the com- (West 1992). mencement of the action.” 815 ILCS 710/14 Thus, aggrieved party years an has four after the cause Act, bring of action accrues to suit under the Franchise v unless the violation was concealed. view, In my statutory language makes clear that *39 knowledge of the violation is essential to the time limita- tion in excep- contained the Franchise Act. That the sole tion to four-year period limitation is for concealment legislature’s underscores desire that an action be brought as soon as the entitled it person bring has of the An the- knowledge exception violation. based on a ory of continuing concept violations takes the of knowl-
edge equation, aptly out of the as case this demonstrates. language unambigu “Where the of a statute is clear and give ous, written, a court must it effect as without ‘read ing exceptions, into it or limitations conditions that the ” legislature express.’ did not Garza v. Navistar Interna Transportation (1996), Corp., tional 172 Ill. 2d quoting George Solich v. & Anna Portes Cancer Preven Chicago,Inc., tion Center Ill. legislature continuing Moreover,had the intended for exception four-year violations to serve as an limita period, explicitly part tion language it would have made it a Assembly
of section 14. Our has General provided exception periods for such an limitation statutory e.g., See, contained several causes of action. (West 2000) (“[a] continuing 225 ILCS violation 425/9.5 will be deemed to have occurred the date when the gave alleged circumstances first existed which rise to the (West 2000) violation”); continuing 225 ILCS 457/120 (“[a] continuing violation will be deemed to have oc curred on the date when the circumstances last existed violation”). gave alleged continuing rise to language in absence of such section 14 reflects the Gen Assembly’s specific rejection eral of the doctrine as a tolling basis for the limitation Act Franchise agree my colleagues reasons, For I cases. these with majority applying that the trial court erred in continuing violation doctrine to this 199 Ill. 2d at case. agree However, I do hot with their ultimate conclu regarding disposition explain case, I sion below. opinion, improper
As I read the court’s
each
alloca
by
specific
tion
defendants served as a
violation of the
(stating
Franchise Act. See
I
judge’s
believe that
the trial
erroneous application
continuing
doctrine
violation
served to complicate
litigation.
noted,
As
plaintiff,
its second amended
that,
complaint, alleged
because of defendants’
fraudu
concealment,
lent
it did not learn that
it was entitled to
*41
bring any statutory cause of action until the fall of 1990.
After defendants
challenged
action,
timeliness of the
the circuit court ruled that plaintiff’s cause of action
timely
under the Franchise Act was
filed as a matter of
law. In
ruling,
applied
so
the circuit court
the continuing
violation doctrine to this
being
case with
result
that
plaintiff’s knowledge of the violations was irrelevant.
Thus, plaintiff had no
pursue
theory
reason to
its
Therefore,
fraudulent concealment at trial.
the errone
ruling, my view,
ous
in
prevented plaintiff
proving
from
that
fraudulent
four-year
defendants’
actions tolled the
limitation
for
I
alleged
preceding
violations
agree
therefore cannot
with the court’s conclusion that
“did not
plaintiff
pursue”
theory
of fraudulent
concealment and abandoned it at trial.
Due to the adverse effects of the trial
they
defendants were also harmed because
were unable
when,
ever,
if
jury
question
to have the
determine the
allegedly improper
My
knew of the
allocations.
testimony
review of the trial
reveals that there was some
discrepancy
plaintiff, through
representa-
as to when
its
tives,
al-
improprieties
respect
knew of the
with
to the
locations,
only
a
of fact that can
presents
question
I
reasons,
am of the
by
jury.
be resolved
For these
had
judge’s
pretrial rulings
view that the trial
erroneous
and that
as whole
litigation
effect on the
an adverse
the mat
to remand
here would be
approach
the correct
within the framework
the case can be retried
ter so that
This ensures
both
periods.
limitations
proper
of the
their theories of the case
present
are allowed to
parties
litigation
I
that in
Parenthetically, would note
jury.
have been of
this,
interlocutory
might
appeal
such as
an
judge
litigants
the trial
and the
some assistance to both
I
today.
ordered
note that
preventing
the remand
by defendants for Rule
attempt
record contains an
allowed,
which,
it
certification,
had
been
procedure
the obfuscation which surrounded
might have lessened
of limitations at issue.
the construction of
statute
say,
ruling
Suffice it to
the circuit court’s incorrect
to this
caused
continuing
applied
violation rule
case
these al
proving
precisely
much confusion as to
when
leged violations occurred. It resulted
an absence
proof concerning plaintiff’s knowledge
alleged
alleged
violations and defendants’
fraudulent conceal
only
ment of thenfi This view is
reinforced
court’s
holding
finding
the circuit court also erred
*42
four-year
inapplicable
UCC statute of limitations
to this
knowledge
action.
JUSTICE McMORROW