*1 (No. 58663. SADAT,
ROXANNE v. AMERICAN MO- Appellant, CORPORATION, TORS Appellee.
Opinion 19, 1984. Rehearing October filed denied November — 1984.
SIMON, J., dissenting. Schmidt, Montgom and Will Chicago, D. of
Randall students, for law appellant. John J. Goggins, and ery D. McKenzie, (Francis Morrissey of Chicago Baker & Jr., counsel), for appellee. O’Flaherty, and Paul B. the court: opinion delivered MORAN JUSTICE Sadat, for complaint injunc- filed Plaintiff, Roxanne defendant, Corporation Motors American against tion al- Plaintiff County. circuit court Cook (AMC), AMC her full breach of automobile’s leged sought AMC to mandatory injunction, compelling her automobile fees and costs replace and pay attorney Magnuson-Moss to the Federal Trade pursuant Warranty Commission known as the Improvement (commonly Magnuson-Moss Act) (15 U.S.C. Warranty (Act) 2301 et seq. (1976)). The circuit court plain- dismissed tiff’s action for failure to state a cause of for complaint upheld court circuit court’s injunction. appellate dismissal of the Ill. al- complaint. (114 376.) We for plaintiff’s lowed leave to Ill. 2d R. petition аppeal. 87 315(a).
This one appeal Must a presents question: complaint relief, to obtain remedies autho- seeking rized Act, include harm allegations at law?
Plaintiff’s indicates that she injunction entered into a retail installment contract with an AMC Concord, dealer of a purchase new 1979 manu- *3 factured the by defendant. A written “1979 Full 12- Month/12,000 Mile New Car Warranty” was issued to plaintiff the at the time of purchase. The re- complaint the veals that while car was under it warranty was number plaguеd a of serious mechanical defects. The oil. engine leaked The column steering vibrated ex- The cessively. transmission would slip re- park verse while car the was The stopped. engine dieseled when the was ignition off. The in- turned brakes would or fade were An termittently difficult ex- engage. haust-like odor was apparent in the automobile. the
Although plaintiff took her automobile to an AMC times, dealer seven mechanics, authorized the defend- ant to make under its were unable to repairs warranty, the defects. At remedy plaintiff this a point, requested automobile, without replacement charge, pursuant section 104(a)(4) the Act U.S.C. 2304(a)(4) (1976)). When this re- defendant refused to honor without complaint injunction, filed for quest, plaintiff her at law and remedy was she alleging if harm relief were irreparable injunctive would suffer The relief not granted. prayer specifically requested Plaintiffs the court to order the “Defendant to replace new, 1979, 2-door, automo- Concоrd automobile with automobile, or its bile, or a cash superior comparable equivalent.” complaint and defendant moved dismiss In transferred to the law division. sup-
order action motion, that Federal argued of its defendant port found that consistently questions regarding courts have are State law. governed by remedies under Thus, a cause of action for un- injunctive to state law, a must and addi- plaintiff plead prove, der Illinois that he will suffer allegations, tion other at law. Fur- harm is without аn adequate ther, the defendant maintained plaintiff’s her at law request- conceded adequacy an alter- car as purchase price refund ing replacement. native to her complaint contends that response, relief under sec-
stated a cause action of the Act secs. (15 U.S.C. 104(a)(4) 110(d) tions 104(a)(4) Section of the act 2310(d)(1) (1976)). 2304(a)(4), part: relevant provides warranting order for a warrantor consumer
“(a) In to meet the Fed- warranty means of a written product by do the must eral minimum standards [he— following:]
* * * thereof) (or component con- (4) product part if a reasonable num- tains or malfunction after a defect *4 the warrantor defects attempts ber such warrantor must product, in such or malfunctions for, a or elect either refund permit consumer of, or charge product part such replacement without ***” (as be). (15 2304(a)(4) sec. may the case U.S.C. (1976).)
Section 110(dXl) the Act in relevant provides part:
“(1) Subject (a)(3) (e) to subsections of this sec- tion, a damaged by sup- consumer who is the failure of a warrantor, plier, or comply any service contractor obligation chapter seq.], under this U.S.C. sec. 2301 et [15 or under a or warranty, implied warranty, written service contract, bring suit may damages legal and other equitable 2310(d)(1) (1976). relief-***.” 15 U.S.C. sec.
It is her a statu- plaintiff’s position that case involves rather tory injunction than a common law As injunction. such, she maintains that has she fulfilled requirements necessary state violation prima facie of 15 U.S.C. section 2304(a)(4) her to entitling to 15 pursuant U.S.C. section 2310(d)(1) by alleg- ing following: the existence of a “full de- warranty”; fects occurring during and continu- warranty period to the ing present; reasonable number attempts by defects; warrantor her repair demand for a re- placement refund; and defendant’s refusal to provide either remedy.
Defendant argues that statutes authorize in- which junctive relief must do so illustrate, To it re- explicitly. fers to the section of which sets specifically forth the conditions under which the General Attorney may obtain injunctive relief to prevent violations Act. addition, U.S.C. 2310(c)(1) (1976).) defendant contends that case which authority recognizes the right to a statutory injunction involves author- public ities rather than private parties.
Following the motion to dismiss hearing, plaintiff’s was complaint granted. A review of the report pro- ceedings reveals that the court found the in- sufficient for failure to and an allege irreparable injury at law. The court distinguished *5 case cases which in the instant
situation involved requirements held the law pleading have that common at did law and an irreparable injury was autho- injunction not have an to be followed because the cases, reasoned, the rized statute. In those court by and the leg- authorized “injunction” term was expressly from the term islative intent did not have to be inferred relief,” dismissing in the as instant case. “equitable the the cause be the court that complaint, suggested the division. The requested transferred to law plaintiff the or- that the not transferred and appealed action be of the der circuit court. 376) Ill. (114
The court decision appellate for relief in pri- held that the Act’s provision establishing the did not eliminate need vate actions an in- harm and allegations the traditional the Rather, viewed remedy at law. court adequate the contractual or refund as replacement in of a defective product a consumer right possession such, for equita- a full As an action warranty. covered by sub- relief would be to enforce contractuаl right ble The common law the traditional ject prerequisites. not un- of the did interpretation court found that its since consumer dermine the Act’s remedial purpose damages U.S.C. sec. could maintain action also be entitled and if successful would 2310(d)(1) (1976)), 2310(d)(2) fees. 15 U.S.C. to costs and attorney (1976). rule general regarding
Plaintiff states correctly v. Trautvetter Mullarky remedies set forth statutory ac- 409, 411-12, pleading “[w]hen neces- it is not a statute cording by to a form prescribed act, authorized in order to sary, obtain plain- act Accordingly, more than the requires.” state in Mul- estate, to real tiff’s title register application larky, to the conform sufficiently was found to of title. The had plaintiff for the provision registration had not alleged stated what the statute but required re- of an adverse claim. Since this substantive invalidity statute, however, was not quirement required by court found that it was not necessary include it in his in the instant pleading. plaintiff, case, relies on the rule of general Mullarky, support re- traditional position equitable pleading an in- quirements are waived when a consumer seeks junction enforce remedies allowed Magnuson- *6 Moss Act. This reliance is misplaced.
It is clear that under section of the Act a 104(a)(4) warrantor who has extended a full to a con- warranty sumer must the consumer to a refund permit elect or a replacement of the warranted if the product warrantor is unable to the product defects within reason- able of (15 number U.S.C. sec. attempts. 2304(a)(4) Thus, (1976).) the rule set forth in following Mullarky, a сonsumer in of a defective possession covered product a full states a cause of action against war- rantor if she alleges set preconditions recovery forth in section of the 104(a)(4) Act U.S.C. sec. 2304(a)(4) case, in the (1976)). Plaintiff, instant attempts to extend the rule of one farther. She Mullarky step that, maintains 110(d)(1) because section of the Act af- fords an consumer the suit for injured right bring both legal relief, these same equitable allegations are sufficient to state a cаuse of action re- injunctive lief. and, We disagree follow, for the reasons to hold that a complaint for relief under injunctive 110(d)(1) section of the Act is insufficient absent the traditional showing of harm and an at irreparable law. inadequate remedy - rule remedies has general regarding statutory been in applied both State and Federal courts where plaintiffs were relief created seeking such, statutes. As were not plaintiffs required 112 an in- the traditional elements to obtain
plеad
prove
However,
cases,
re-
each
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junction.
enforcing
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Illustrative
Goers,
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Goers
All cases cited above of the the situation we are confronted in the instant case. Rather than an of express statutory grant authority issue section injunctions, 110(d)(1) of the Act U.S.C. is a 2310(d)(1) (1976)) civil generalized provision actions afforded to consumers the failure of damaged by a warrantor to meet Magnuson-Moss warranty obliga- tions. The Act is silent regarding type relief available as well as conditions under which such relief is In appropriate. contrast, section sharp 110(c)(1) of the Act (15 U.S.C. sec. 2310(c)(1) (1976)) spe- cifically establishes the injunction the Attor- proceedings General ney and Federal Trade Commission insti- may tute to restrain deceptive practices noncompliance with requirements Act. addition to expressly authorizing relief, section 110(c)(1) outlines, in detail, the procedure be followed and the conditions under which injunctive relief will be appropriate. Had Congress intended to establish statu- tory injunctive rights consumers, to issue on solely of a showing violation, it would hаve done so in the express manner of the respective statutes de- or, scribed above more as specifically, provided section 110(c)(1) the Act.
Further, as the cases discussed above illustrate, stat- utes expressly authorizing injunctive relief do so on be- half of either a public official in his as capacity enforcer of a regulatory or, scheme alternatively, provide private actions which may be necessary restrain pub- lic officials from in a acting manner inconsistent with that which is prescribed statute. Thus, the violation of such a statute implies an injury the general public. Such injury necessitates the statutory authorization for equitable relief and supplants the traditional equitable pleading requirements. As the court in City Highland Park v. Cook County (1975), 37 Ill. 15, 20, stated in response the defendant’s assertion that the *8 for relief was insufficient for
plaintiff’s injunctive claim failure to allege irreparable injury: is a theory private party
“While this a sound where is public it not a or plaintiff, city body is when another action, brings alleging violation of its ordinances and statutes, resulting damage State to its residents.” case, in the relies on two actions instant plaintiff, Civil Act of Rights to title brought pursuant VII sec. 2000e et seq. (1976)) as illustrative (42 U.S.C. of a be whereby private plaintiffs may scheme defendants with granted injunctive private against (Middleton-Keirn v. Stone out irreparable harm pleading v. Smallwood National 609; Cir. 655 F.2d (5th 1981), Can Co. F.2d It is true that ti 419). Cir. (9th 1978), be tle the issuance of injunction VII provides shows that dis tween when private parties occurred. (42 have criminatory employment practices it should be 5(g) (1976).) U.S.C. sec. Initially, 2000e — authorization that, case, express noted unlike instant relief is ti within the Act. Under provided VII, request is authorized tle General Attorney or restraining or or permanent temporary injunction believed to der or any person group persons against of resistance to the pattern practice be engaged Act. U.S.C. Rights the Civil rights secured States In Hayes United such, 2000e — 6 As (1976).) Corp. ternational a title 1969), 415 F.2d Cir. (5th it not neс action, concluded that was VII class the court an in seeking when irreparable injury establish essary the court Specifically, statute. junction pursuant stated: *** injury should position irreparable “We take the has been fact that statute presumed very
be employee is dis- Negro a qualified violated. Whenever which position to fill a denied a chance criminatorily obtain, suffers he qualified seniority and has the he force of coun injury and so does the labor *9 1038, 1045. try as a whole.” 415 F.2d of Hayes rationale has been extended individ- Smallwood, Middleton-Keirn
ual actions such as and where the exhausted all administrative plaintiffs have the Therefore, Rights remedies. while title VII of Civil Act of present pro- 1964 does an of example an authorizing pri- vision an action between injunction vate the parties, seems underlying theory recognize to “the as a whole” with even irreparable injury country an of isolated violation Act. Rights Civil that,
Therefore, we while conclude the plain language of the Act extends the full Magnuson-Moss Warranty range of remedies to equitable private litigants appro- situations, we do find priate not that the Act’s general of grant equitable evinces intent congressional dispense with traditional pleading require- (See also Rondeau v. ments. Paper Corp. Mosinee (1975), 49, 63, 12, 422 23, U.S. L. Ed. 45 2d 95 S. Ct. 2069, 2078 (wherein court found that a liti- private gant injunctive seeking relief under section of the 13(d) Securities Exchange 1934, Act of as added the Wil- liams Act (15 U.S.C. sec. had 78m(d) (1970)), “the bur- den оf establishing traditional of re- prerequisites lief”).) Illinois it been recognized has injunction is an which extraordinary be remedy may granted when the plaintiff establishes that his at law and he will suffer irreparable harm without the injunctive City v. Fes- (See relief. Chicago of tival Corp. Theatre 295; 91 Bio-Medical Ill. (1982), 2d Laboratories, Inc. v. Trainor La 540; 68 Ill. 2d (1977), Salle National Bank v. County Cook (1974), 57 Ill. 2d 318.) cases (Appellate which this directly support propo- Wilson College v. Illinois Benedictine sition include v. Collinsville 932, 937, 112 3d Wilfong (1983), App. Ill. 10 Community Sсhool District Ill. 3d (1982), App. v. & Department Registration Distaola 930, 933, and Education Further, 980.) 72 Ill. 3d (1979), App. courts are not favored injunctions mandatory are the ur issued when court determines only (Wilson necessitates such action. gency situation v. College (1983), Illinois Benedictine App. 3d Sons, Inc. Grillo v. Wanzer & Sidney 932, 937; (1975), such, Ill. 3d App. 1012.) well-pleaded As “[a] relief must contain on complaint praying its es face a clear to relief and state facts which right in a certain and right tablish to such relief positive Bank Trust (Parkway City & Co. manner.” precise Darien 400, 406.) Ill. These factual must allegations inadequacy establish specifically will legal injury *10 Associates, v. Maas Cohen suffer without injunction. Inc. Sulli 196; 191, 3d (1983), Redfern van 372, 377; 7 Ill. L. & Prac. (1982), Ill. App. Injunc Chancery sec. 176 Ill. L. & Prac. (1954); 21A tions sec. 212 (1977). replace-
The Act the remedies repair, established in re- 2301(10) (1976)) ment or refund U.S.C. consumers with sponse to the need to growing “provid[ej remedies where there access to and effective reasonable (H.R is product.” a of a on a consumer breach (1974), reprinted 1107, Cong., No. 93rd 2d Sess. Reр. 7702, Thus, 7711.) & Ad. News Cong. 1974 U.S. Code cre- to enforce a remedy specifically consumer seeking pos- the Act court different ated approaches traditional ture than a relief under litigant seeking (See sales doctrine of Code. the Uniform Commercial Magnuson-Moss Private Actions under generally Act, Warranty Neverthe- (1971).) L. Rev. Calif. forth action, instant has not set less, in the plaintiff, that she is entitled in her which indicate facts complaint 612(b)] sections “Although relief. [2— 1981, ch. Stat. Rev. act practice of our 603(c)] [Ill. [2— con contain provisions 2—612(b), (c)] 110, pars. 2—60 3 rem do not construction, provisions such cerning liberal action.” cause of to state a a complaint the failure of edy 92 Ill. 2d Pelham v. Griesheimer [Citation.] 17. of action a cause has stated
Therefore, while plaintiff full AMC war- of her automobile’s at law for breach requirements the pleading has not satisfied she ranty, litigant for a private find are necessary which we the Act. Ac- under action for injunction state a causе of court, affirming the appellate judgment cordingly, of the plaintiff’s the circuit court’s dismissal is affirmed. mandatory injunction, Judgment affirmed. SIMON, dissenting: JUSTICE the Magnuson-Moss
Plaintiff is the consumer typical $6,700 for an Act was She over designed protect. paid came the manufacturer’s American Motors’ car that 12-month/12,000-mile warranty, full new-car written returned the car to the she a “lemon.” she got Although the 17 months during dealer’s service seven times shop its were so numerous and its defects following purchase, satisfactorily repaired. serious that the car could not be this. Its position American Motors does not dispute her asserting rights that the went about simply Act in wrong way. under Magnuson-Moss to elect to re- right The Act gives purchaser *11 It also the gives ceive either a refund or a replacement. the to sue the manufacturer right damages purchaser relief when a recalcitrant and other legal refuses the elec- recognize purchaser’s manufacturer to tion.
The is consumers. Its designed protect pur- statute to I that we is to make consumers whole. believe pose of should out that carry purpose. remedy replace- ment the Act should Magnuson-Moss be provided are “run- obtainable so that not easily purchasers dealers or around” automobile manufacturers sub- jected legal lengthy proceedings. the Act automobile
Although expressly grants pur- chasers of the remedy requirements replacement, that on a suit under majority imposes Magnuson- Moss Act automobile effectively prevent purchasers that Under pursuing remedy. majority’s holding, of defective car must purchaser allege prove he harm if the is not will suffer automobile difficult, if not impossible, Such a is replaced. showing however, when the automobile is one thousands vehicles with about it and nothing unique mass-produced purchase when a is available replacement readily dealers’ showrooms.
Thus, of a majority consumers are deprived by the Act them. This result gives contrary remedy A standard construction. statute principles effect to its should be read as a whole in order give Broadview, v. (Morris Inc. 228, purpose. also construed so as to effect give It should be 231-32.) no will be part superfluous. so that every provision, (Morris Sutherland, Broadview; 2A A. Con Statutory ed. (4th 1973).) keeping struction sec. 46.06 Magnuson-Moss adages, these commonly accepted not effec construed in a that will way Act should be the Act. out of read the tively replacement of seek gives purchaser option The Act also this is no different than the But ing money damages. to an automobile with a full purchaser available 2— of the Act prior passage (UCC 714(2), 714(2)), Ill. Rev. Stat. ch. par. except 2 — the trial discre judge Magnuson-Moss gives purchasers tion fees to automobile to award attorney
119 the intent of it was the Act. Clearly under who prevail Act to give Magnuson-Moss in adopting Congress already they to what recourse in addition consumers had. in- not in many damages may an action for
Moreover, as an a remedy and effective practicable stances be as who finds for a person replacement injunction requiring in a suit for A defendant a “lemon.” himself stuck with it for a to prolong is to be able likely such damages re- requiring than a suit for an injunction greater period able to consumer must be addition, In placement. alternative of the added expense the burden bear car, as well as obtaining replacement transportatiоn cannot be certain “lemon,” and he storing for such ex- him compensate award will damage fully of es- suit, is also the problem there damage penses. must car, which be value of the defective tablishing im- This could of a new vehicle. deducted from cost hiring appraiser on the burden purchaser pose to auto- are available readily who experts cope The most expeditious manufacturers. mobile intended the remedy Congress which is replacement, takеs consumers, opinion the majority but which give away. allege prove able to might be purchaser harm without
he will suffer the use of an automobile that he the theory requires on or for livelihood health or maintain his his to safeguard he cannot afford reason, and that valid some other & Hoyne Savings (See vehicle. replacement purchase 84; Ill. 2d Claren- (1974), v. Hare Loan Association 101; 2d Euclid (1973), v. Korzen don Associates However, this 105.) Ill. Tully (1976), v. Corp. resolution a simple otherwise be what would complicates the con- extraneous a factual question by introducing seize might upon The defendant dition of automobile. has assets suffic- of whether purchaser the question disposition the “lemon” prolong ient to replace relief. his claim for v. Trautvetter Mullarky
I not apply would Cir. 411-12, Middleton-Keirn Stone (5th Ill. Can Co. v. National (9th Smallwood F.2d 1981), 655 *13 In- Hayes States and United 419, F.2d 1978), Cir. 1038, as nar- 415 F.2d 1969), Cir. Corp. ternational (5th I the quotation does. read as the majority rowly to authorize majority opinion set forth Mullarky case relief in this because of equitable the granting re- all that the Act in her complaint has stated Middleton-Keirn, Smallwood I on rely Then quires. harm is pre- that Hayes for the proposition Magnu- That of the Act. from the violation sumed relief rather of equitable in terms son-Moss Act speaks as a quibble I view of an injunction than the issuance with words. to give Act was of the Magnuson-Moss
The purpose to that addition to automobile purchasers protection Code; I think we the Uniform Commercial provided by Congress clearly the break should consumers give this case is sim- to follow in rule proper intended. The a statutorily it seeks when adequate complaint ple—a required by the facts alleges granted statute. rule the general assertion the majority’s
Finally, in- to cases remedies only applies regarding statutory in the acting or parties agencies volving governmental either Middleton- is not supported interest public the plaintiff of those cases Keirn or Smallwood. In bоth v. Mosinee Rondeau private parties. and defendant were S. L. Ed. 2d 49, 422 U.S. Paper Corp. assertion, for this relies majority on which Ct. action a cause of it involved this case because is unlike statute, in contrast not created for a remedy in an equitable replacement created statutorily Act. action provided by Magnuson-Moss stating I I as one dissent because view Act. valid cause of action under the Magnuson-Moss (No. 58972.
In re WALGENBACH, AUDREY APPLICATION OF Bank, Collector, (Palatine National
County Appellant al., et Trustee, Appellees).
Opinion 19, 1984. Rehearing October filed — 30, 1984. denied November