*1
Third,
post-trial
in defendant’s
preserved
the matter was not
280,
Reversed and remanded. CRAVEN, JJ.,
TRAPP concur. BRADLEY, HEMBROUGH Plaintiff-Appellee, v. HOWARD MARY M.
VOLKSWAGEN, INC., Defendant-Appellant. No. 16200
Fourth District 3,1980. Opinion filed October *2 Larry Flynn, Flynn Flynn, Jacksonville, appellant. of & of for J. Gillespie, E. Gillespie, Cadigan Gillespie, Springfield, Robert of & of appellee. Mr. PRESIDING MILLS opinion delivered the JUSTICE
court:
This case was here before.
We reversed and remanded. again. is here
This time we reverse—no remand.
Mary Bradley punitive this instituted action recover actual and damages alleged the Vehi- occasioned defendant’s violation of Motor cle (15 Information and Cost U.S.C. Act seq. et §1981 (1976).) This act and its regulations related §§580.1-580.6 (1979))require provide transferor a motor vehicle odometer mileage statement to a transferee. 17, 1976, May
On L. DenHartog Gerrit his 1973Honda Civic traded Inc., Hembrough purchase Howard of a Volkswagen, towards the Volkswagen van. In discussions of defendant’s with Brewer—one DenHartog great a deal wear explained that car had more salesmen— 5,000 than odometer, miles on the since odome- indicated 19,000 ter replaced was at miles. mileage a prepared mileage a indicated statement which
6,008 place miles shown on the odometer. The form did not a suggested indicate the existence of a second odometer and Brewer mileage the form was than actual requesting rather odometer reluctantly, he also mileage. DenHartog signed stated that he form trying was or that Brewer signing did not false statement feel he was incomplete and Rather, form perpetrate a fraud. he believed that subject interpretation. the odometer questioned that he never whether
Brewer stated with any conversation mileage He not recall mileage. was the actual did the actual If had known regarding mileage. he DenHartog mileage, form. he would have on the indicated told and was May
On the Honda Civic plaintiff was shown 6,000 mileage given purchased it had it. She the vehicle and miles on home, returning 6,019 Upon miles. certifying statement car had been plaintiff examined the owner’s manual and discovered 3,622,7,653, on it. She searched serviced when had indicating in excess car and four or five oil stickers miles. back money
Plaintiff then and demanded her returned to defendant from sold He refused. Plaintiff’sfather- salesman who vehicle. president defendant-corporation, in-law Hembrough, called Howard Hembrough delegated who plaintiff’smoney. refused to refund stated to his He authority prepare salesmen the statements. told plaintiff she could used car she found suitable. see there was another 23, 1978, An January favor of court found appeal the evi was taken to this court wherein the defendant contended *3 9, 1978, this dence did not indicate an On November intent defraud. (73 court Ill. 2d pursuant Supreme entered an Court Rule order regulation 23),reversing R. so the remanding. doing, In we found that (1979)) ambiguous and that an intent defraud §580.6 conclusively could not be the manner in which Brewer inferred from completed trial the form. We an inherent conflict between the noted court’s show intent to de required plaintiff to an —which finding its intent to defraud. We concluded fraud—and there was no by holding: indispensable is
“Proof of an intent to defraud Act. Cost under the Information and Motor Vehicle case, the such intent in this Although is of some evidence of evidence. against weight verdict is the manifest the [Citations.] is the is court reversed of trial a new remanded for trial.” 11,1980, stipulation into a where February parties entered evidence they any additional
by expressly right present waived transcript agreed reading by that the court reach a decision could later, of the trial court—a proceedings prior days trial. Two of Further, different in judge by entry docket favor of — the court specifically found an intent to defraud. again Defendant appeals. reverse,
again We
but do not remand.
Hembrough Volkswagen
prior
asserts that this court’s
decision was
binding upon the trial court so that the trial court—when faced with the
identical
required
evidence—was
to hold
with our order. We
consistent
agree.
reversed,
aWhen
court’s judgment
clearly
is
the trial court is
bound
appellate
court’sdetermination of all questions decided and
only
can
in
act
in
proceedings
such
a manner
the appellate
as conforms to
court’sjudgment.
v.
(Schulenburg Signatrol, Inc.
37 Ill. 2d
doctrine,
Similarly, under the
of
“law the case”
this court is
bound by
particular
prior opinion
views of law
announced
our
a
case, unless
presented require
the facts
a
interpretation. City
different
of
Lockport County
Board
3d
School Trustees
In plaintiff has argued also that this court should not con prior sider its order since that order precedential declared “no value.” This language is from Supreme governs derived Court Rule 23 which disposition But, published opinion. cases without a the clear intent of the rule is merely to publication dispositions avoid the of a morass of which add nothing legal to the body available of substantive law or of precedence. pursuant The fact a disposition rendered to Rule 23 not, however, does relationship its upon parties. lessen effect is as published opinion conclusive on the issues raised would be assuredly most becomes the “law of the case.” Ergo, having twice determined that the trial court’s decision favor plaintiff evidence, is against the weight manifest of the we reverse would, this cause without remand. While this upon case that the against evidence, verdict is ordinarily weight manifest trial, remanded for a parties they new both have stated reason entered stipulation into the they nothing was because add situation, produced gesture evidence at trial. In this it is a futile Supreme remand. authority We therefore exercise under Court Rule our 366(a)(5) (73 Ill. R. 366(a)(5)) and reverse.
Reversed.
WEBBER,J., concurs. CRAVEN,
Mr. dissenting: JUSTICE damages brought punitive This action was to recover actual and Informa- the Motor Vehicle by the defendant by occasioned a violation The (1976).) seq. (15 U.S.C. et tion and Cost Act §1981 statute was of that congressional intention in enactment clear who violate sanctions, those damages, upon impose punitive in than it fact less indicating that has Selling the statute. a car has is a violation. Intent is an element. sold, mileage was case, that the is that car was
In this doubt no by and the defendant when in fact indicated to be some in substantially salesman, Brewer, through its knew more needs for me ascertain what excess of that. is difficult proved in recover. order to remand- an order the court issued
This case was here once before and is a matter of ing order now legal effect of that new trial. The repro- is Rule order in this court. The November 1978 controversy in entirety appendix duced its this dissent. that there was perfectly originally
It is determined clear that court judgment a conflict of the trial court and findings between intent that to the absence entered. There was a with reference in the could not entered. be reconciled with the not be had appeal, trial. If could the court remanded for a new law, shoveling as a smoke. matter of remandment was court; parties, of the by stipulation case went back to circuit the trial presented. no was submitted to new evidence was The record stipulation every- judge; court he upon reviewed record based thing proved evidence of intent proved, could be to defraud punitive and reentered the same actual and judgment for damages. judg- findings There is now no conflict between ment, of the affirmance impairment there is no this record to an remandment, judgment. it should have If there was be reversal without my judgment, been majority, done the first time and was not. The Rule 23 just plain wrong legal prior of the they when discuss the effect effort to opinion “square order. The further back to one” the majority sets protect purchase in the cars. the consumer of used
Assuming order is majority’s interpretation that the of the Rule 23 correct, with judge, their conclusion that the second trial when faced evidence, (Bour wrong. same obligated for the defendant hold nique 23 order Only Drake the Rule action to state a determined evidence was insufficient for required would second trial been enter Casualty Co. (Bournique.) defendant. In Continental Ziolkowski v. upon Ill. court said that supreme * 0 must, course, be governed remand a new trial court court, legal reviewing principles opinion contained the *5 126
its conclusions as to matters of fact do not control on a later
where the
facts are to
Crane,
determined
trial.
that
Prentice v.
APPENDIX—Rule No. 16200 23 (58 23). Rule 111. R. question, No precedential substantial no value.
Gerrit L. DenHartog that he testified traded his 1973 Honda Civic to Howard Hembrough Inc., 17, Volkswagen, on May 1976. When he salesmen, showed the Brewer, car to one of the defendant’s DenHar- tog told him that the reason the great car had a deal more than the wear miles on the suggest odometer would was because the first odome- 5.000 19,000 ter plus had 25,000 it miles on that the total so miles would be miles. 26.000 prepared following mileage odometer statement form 6,008
which mileage certified the car’s to be miles: “I, DenHartog, Gerrit L. mileage /s/ state odometer indi- cated on the vehicle described above is 6008 is as miles and indi- cated (Check one) below: n Total cumulative miles mileage Actual n mileage (if True unknown 100,000).” over
Since there was place no to indicate the existence a second odome- ter, Brewer suggested it mileage was odometer rather than the actual mileage of the being Although automobile that was asked for. DenHartog signed the reluctantly, statement signing did not feel that he was a false statement or fraud, trying Brewer was perpetrate but rather believed, incomplete subject interpretation. form was and
Don Brewer did not any DenHartog regard- recall conversation with ing the mileage. car’s actual questioned He testified that he never whether mileage odometer mileage was the if actual and stated that he had known the mileage, he would have indicated this on the form. 1976,
Mary Bradley M. May was shown the Civic Honda on and 6,000 told it. purchased given on She car 6,019 statement which certified the miles.
When she through returned home she looked the owner’s manual 3,622, 7,653, discovered the car had been serviced when had oil stickers or five found four the car and it. then searched miles on She Bradley returned miles. mileage in excess of indicated which salesman money back from demanded defendant’s business and father- future car, so. Plaintiff’s to do but he refused who had sold her the explained Hembrough, and Howard president, in-law called defendant’s He said money back. situation, give plaintiff’s also refused but he suitable that was used car another Bradley could see there was her. attorney’s fees damages and sought punitive
Bradley filed suit Act of and Cost Information pursuant to the Motor Vehicle found for (1976). The trial 15 U.S.C. §§1981-1991 it intended show that does not appeal, contends the evidence defendant *6 Civic. selling her the Honda plaintiff to defraud the Cost Information damages under the Motor Vehicle To recover part of Act, to defraud on Savings must be evidence of an intent there Island, (D. Nebraska Co. Grand (Huryta the defendant. v. Diers Motor pre- be intent cannot 1977), 1176.) Neb. 426 F. This fraudulent Supp. GMC, (E.D. sumed, Inc. Pontiac Pepp Superior but it can be inferred. v. La. F. 1976), Supp. 1053. from concluded could be
Plaintiff claims that an intent to defraud as the odometer writing Brewer’saction to DenHar- by defendant car. form furnished Plaintiff concedes that the liability excuse it from tog ambiguous, argues this should not However, the regulations. comply since the form did not with Federal only stating: “I further state nonconformity was that instead of than reading reasons other differs from the odometer unknown,” (49 mileage is odometer calibration error and that the actual UNKNOWN.” “TRUE MILEAGE §580.6) merely the form read: stating conjunctive, in the regulation Since the states the two conditions not than one would both conditions form rather on defendant’s although (according in this For ambiguity present resolved the case. from the mileage differed DenHartog) Brewer knew the actual Thus, regulation mileage was. reading, he also knew what the actual conclusively an defraud cannot ambiguous itself was intent to form. Rider completed the inferred from the manner which Oldsmobile, F. (M.D. 1976), Supp. Wright v. Pa. Inc. on intent to defraud there was an
The court’s indicates was not defendant, trial court states part findings but in its between Thus, conflict inherent an intent to defraud. there is an specifically The trial judgment. court’s and its but at knowledge” “impropriety,” Hembrough “imputed to defraud.” an intent think there was same time found that “I don’t Furthermore, Judge Duban allowed “I as how don’t know whether intent to defraud imputed can be Mr. Hembrough.” confusing These state- ments the trier of fact cannot be reconciled.
Proof of an intent to defraud is indispensable under the Motor Vehicle Information and Cost Act. Although there is some evidence case, such intent in this against verdict manifest weight of (Mizowek the evidence. DeFranco 32; 356 N.E.2d Houston v. Zimmerman 30 Ill. App. 3d of the trial court is reversed and the remanded for a new trial.
Reversed and remanded.
ENTERED: NOVEMBER BY ORDER OF THE COURT CONSISTING OF THE PANEL OF Honorable Mills Richard Honorable T. Reardon John Honorable S. Frederick Green *7 ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF ROSS, Defendant-Appellant. L. JERRY Fourth District No. 15557 14,1980. Opinion filed October