                               Illinois Official Reports

                                       Appellate Court



                 Mobley v. Tramco Transmission, Inc., 2014 IL App (1st) 122123




Appellate Court           MICHELLE MOBLEY and VALERIE MOBLEY, Plaintiffs-
Caption                   Appellants, v. TRAMCO TRANSMISSION, INC., an Illinois
                          Business Corporation, d/b/a Tramcar Transmission, Defendant-
                          Appellee.


District & No.            First District, Sixth Division
                          Docket No. 1-12-2123


Filed                     May 16, 2014


Held                       In an action alleging that defendant violated the Consumer Fraud and
(Note: This syllabus Deceptive Business Practices Act based on its violation of the
constitutes no part of the Automotive Repair Act in connection with work on the transmission
opinion of the court but of plaintiffs’ automobile, the denial of plaintiffs’ motion for a new
has been prepared by the trial was reversed and the cause was remanded for a new trial, since
Reporter of Decisions the central issue in the case was whether defendant had the right to
for the convenience of claim a possessory lien on the vehicle even though it violated the
the reader.)               Automotive Repair Act by performing unauthorized work without
                           providing a written estimate and an invoice itemizing the work
                           performed, and under the circumstances, the trial court’s refusal to
                           give plaintiffs’ proposed instruction based on section 75 of the
                           Automotive Repair Act was reversible error.



Decision Under            Appeal from the Circuit Court of Cook County, No. 10-M1-125438;
Review                    the Hon. Sidney A. Jones III, Judge, presiding.



Judgment                  Reversed and remanded with directions.
     Counsel on               James A. Smith, of Law Offices of James A. Smith, of Chicago, for
     Appeal                   appellants.

                              Michael H. Shin, of Law Offices of Michael H. Shin, of Chicago, for
                              appellee.


     Panel                    JUSTICE HALL delivered the judgment of the court, with opinion.
                              Presiding Justice Rochford and Justice Reyes concurred in the
                              judgment and opinion.

                                               OPINION

¶1         Plaintiffs Valerie Mobley and her daughter Michelle Mobley appeal from the judgment
       entered on the jury’s verdict dismissing their claims against defendant Tramco Transmission,
       Inc. (Tramco), d/b/a Tramcar Transmission. Plaintiffs also appeal the jury’s verdict finding in
       favor of Tramco and against Michelle Mobley on Tramco’s counterclaim against plaintiffs.
       For the reasons that follow, we reverse and remand for a new trial.
¶2         The following background facts and summary of testimony are taken from the
       bystander’s report and the record filed on appeal. This case involves a dispute over matters
       relating to the alleged unauthorized work performed on the automobile transmission in a
       1992 Subaru SVX coupe. The vehicle was purchased by Valerie Mobley and titled in
       Michelle Mobley’s name. Michelle was the principal driver.
¶3         In February 2009, the Subaru developed transmission problems. Plaintiffs searched on
       the Internet for a repair shop and found a website called “Best Transmissions,” which
       represented that it had nationwide repair facilities. Best Transmissions was described as a
       broker that refers auto repair jobs to various transmission shops such as Tramco. Valerie
       called the phone number listed on the website and spoke with a salesman who informed her
       that a neighborhood shop would do the repair work on her vehicle, that no work would be
       done without a prior estimate and customer authorization, and there would be no charge in
       the event she decided not to have the work done.
¶4         On February 5, 2009, plaintiffs received an email from Best Transmissions which
       contained an agreement for authorization of work. Michelle signed the agreement and Best
       Transmissions made arrangements to tow the Subaru for repairs. The agreement indicated
       that the price for a transmission repair job not involving “hard parts” would be $1,397, which
       included a brokerage fee, a soft parts rebuild, O-rings, gaskets, and reseal and springs.
¶5         On February 6, 2009, a tow truck came to take the Subaru. Valerie claimed the tow men
       would not tell her where they were taking the vehicle. On February 9, 2009, Valerie had a
       telephone conversation with a person at Best Transmissions named “Ron,” who provided her
       with the phone number of the repair shop where the Subaru was towed. Valerie did a reverse
       check on the phone number and discovered it was associated with Tramco, located at 5950
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       N. Milwaukee Avenue, in Chicago, Illinois. Tramco was located almost 30 miles from where
       plaintiffs lived in Lisle, Illinois. Valerie claimed it was important to her that the repair shop
       be “local.” From her perspective, Tramco was not local.
¶6         On February 10, 2009, Valerie had a telephone conversation with a man who identified
       himself as Gary Amelong, foreman of the Tramco repair shop. Valerie asked him why her
       vehicle had been towed to his repair shop when she lived in Du Page County. Mr. Amelong
       responded that all questions regarding the vehicle had to be directed to Best Transmissions
       and that his function was limited to repairing the transmission and collecting payment from
       the customer. He stated he could not speak with Valerie because she was not a customer of
       Tramco, she was a customer of Best Transmissions. Valerie then instructed Mr. Amelong not
       to perform any work on her vehicle and informed him that she wanted to arrange for the
       vehicle to be picked up.
¶7         Valerie claimed that several times between February 10, 2009 and February 14, 2009, she
       unsuccessfully attempted to contact personnel at both Tramco and Best Transmissions to
       arrange for the return of her vehicle. On February 14, 2009, she received an email from
       “Transmission Citi, d/b/a Best Transmissions.” The email contained a proposed “Total Price
       Agreement,” stating that the total price of the repair would be $3,947 or $4,822, “depending
       on customer quickness to order parts.” The proposal required the plaintiffs to make an
       immediate deposit of $2,825 or $3,700, “depending on customer.” The proposal stated the
       plaintiffs would be required to pay a storage charge of $39 per day unless they approved the
       proposal within 24 hours. If the plaintiffs did not accept the proposal, there would be a
       charge of between $600 and $900 for removing, taking apart the transmission, and calling
       and getting prices on the parts.
¶8         Valerie also received an email from an individual named Steven Hoffman at
       “transmissioncitisupport.com.” The email stated that if the plaintiffs did not agree to have the
       repair estimated in the proposal performed, they would be required to pay “shop charges” of
       $690, plus additional charges for towing, added labor, and materials. Valerie stated that when
       she agreed to let Best Transmissions tow the Subaru for repairs, she was not told anything
       about “shop charges.”
¶9         Valerie stated that when she received the proposed “Total Price Agreement” and the
       email from Steven Hoffman, she drafted a letter dated February 14, 2009, which she faxed
       and mailed by certified mail to Cary Hadjuk, the president and owner of Tramco. In the
       letter, Valerie recited the events leading up to her receipt of the proposal and email. She also
       stated that she and her daughter would not pay any money to Tramco, Best Transmissions, or
       Transmission Citi, and demanded that arrangements be made for the return of the Subaru by
       February 16, 2009.
¶ 10       In a telephone conversation held on February 17, 2009, Mr. Hadjuk told Valerie that
       Tramco would not release the Subaru until plaintiffs paid for work done and that Tramco
       intended to take a lien against the vehicle. The next day, Valerie sent Mr. Hadjuk a letter by
       fax and regular mail summarizing their prior telephone conversation and accusing Tramco of
       illegally holding her vehicle.

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¶ 11       Plaintiffs rented a replacement vehicle, and later in March 2009, purchased a used 2003
       Volkswagen Passat (total price $7,650.13) because they were not sure when, or if, they
       would get the Subaru back. Valerie stated there was no subsequent communication between
       plaintiffs and Tramco until April 2009, when she received a telephone call from Mr.
       Amelong informing her that Tramco no longer had a relationship with Best Transmissions.
       He was prepared to repair the Subaru’s transmission for $2,800. Valerie declined the offer
       and asked for return of the Subaru. Mr. Amelong responded, “When can I have my money?”
¶ 12       On May 7, 2009, Valerie received a telephone call from Mr. Amelong requesting that she
       pick up the Subaru and pay Tramco towing charges of $250. Valerie responded that her
       original offer to pay the towing charges had been declined and she was unwilling to pay the
       charges now. The next day, Valerie received a telephone call from Mr. Amelong informing
       her that Tramco needed the space and was prepared to release the Subaru if she agreed to pay
       the towing charges back to her house. Valerie agreed.
¶ 13       On May 9, 2009, Valerie went to Tramco and arranged for a tow truck to retrieve her
       Subaru. Valerie claimed an employee of Tramco told her that the Subaru’s transmission was
       in the vehicle’s trunk. When the Subaru arrived at her house, she discovered the transmission
       was missing. On June 23, 2009, Valerie sent a letter to Tramco demanding the transmission
       be returned. The transmission was never returned.
¶ 14       Valerie stated that neither she nor her daughter Michelle ever gave Tramco authorization
       to perform work on the Subaru. Valerie claimed Tramco never provided her with an estimate
       of the cost for repairs to the Subaru.
¶ 15       Mr. Hadjuk stated that when Tramco receives a referral from Best Transmissions, he
       views Best Transmissions as the customer. Mr. Hadjuk stated that on February 6, 2009,
       Tramco and Best Transmissions entered into a “Shop Agreement” to repair the Subaru’s
       transmission. He stated that although he did not receive authorization from plaintiffs to work
       on the transmission, he received the authorization from Best Transmissions, whom he viewed
       as his customer.
¶ 16       Mr. Hadjuk stated that Tramco prepared an estimate of costs for repairs to the Subaru,
       which became the basis for the proposed “Total Price Agreement.” Best Transmissions sets
       the final price. He claimed Tramco did not return the Subaru to plaintiffs prior to June 23,
       2009, because Tramco had not been paid for its labor in disassembling and diagnosing the
       Subaru’s transmission.
¶ 17       Mr. Hadjuk stated he prepared an invoice addressed to Valerie Mobley for $3,160, the
       amount of the counterclaim. He maintained he put the invoice in a drawer, but never
       presented it to plaintiffs. Mr. Hadjuk stated that when the plaintiffs removed their Subaru
       from Tramco’s premises, he believed that was the end of the matter, until the plaintiffs filed
       their lawsuit. He stated that without a working transmission, the Subaru was worthless; it was
       worth about $6,000 with a functioning transmission.
¶ 18       Plaintiffs filed an amended complaint against Tramco alleging it performed unauthorized
       work on the Subaru’s transmission, sought to have them pay for the unauthorized work, and
       then refused to return the vehicle unless they paid for the unauthorized work. Plaintiffs

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       brought a claim against Tramco for violation of the Illinois Consumer Fraud and Deceptive
       Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2010)),
       premised on alleged violations of the Automotive Repair Act (815 ILCS 306/1 et seq. (West
       2008)). Plaintiffs also brought a claim against Tramco for common law conversion. Tramco
       filed a counterclaim against plaintiffs for towing costs, labor costs associated with
       disassembling and diagnosing the transmission problems, and for storage fees.
¶ 19       Following a jury trial, the jury returned a verdict in favor of Tramco on all counts. In
       regard to Tramco’s counterclaim against plaintiffs, the jury found in favor of Valerie
       Mobley, but against Michelle Mobley in the amount of $835. The trial court denied
       plaintiffs’ motion for judgment notwithstanding the verdict or for a new trial.
¶ 20       Plaintiffs now appeal the jury’s verdicts in favor of Tramco. Plaintiffs raise a number of
       issues on appeal. However, we believe the dispositive issue is whether the trial court erred in
       refusing to give a jury instruction proposed by plaintiffs that was based on section 75 of the
       Automotive Repair Act, entitled, “Lien barred” (815 ILCS 306/75 (West 2008)).1 We hold
       the trial court committed reversible error by failing to give the proposed jury instruction.

¶ 21                                             ANALYSIS
¶ 22       The threshold for giving a jury instruction in a civil case is not high. Heastie v. Roberts,
       226 Ill. 2d 515, 543 (2007). Litigants generally have the right to have the jury clearly and
       fairly instructed on each theory supported by the evidence. Leonardi v. Loyola University of
       Chicago, 168 Ill. 2d 83, 100 (1995). “All that is required to justify the giving of an
       instruction is that there be some evidence in the record to justify the theory of the
       instruction.” Heastie, 226 Ill. 2d at 543. The evidence may be slight or insubstantial. Heastie,
       226 Ill. 2d at 543; Leonardi, 168 Ill. 2d at 100.
¶ 23       The decision whether to give or deny a tendered jury instruction is within the discretion
       of the trial court. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 549 (2008). The refusal to
       give a tendered instruction will result in a new trial only where the refusal results in serious
       prejudice to a party’s right to a fair trial. Heastie, 226 Ill. 2d at 543.
¶ 24       Plaintiffs’ proposed jury instruction read in relevant part:
                    “A motor vehicle repair facility that fails to comply with Sections 15, 20, 25, 30,
               35, 40, 45, 50, 55, or 60 [of the Automotive Repair Act] is barred from asserting a
               possessory or chattel lien for the amount of the unauthorized parts or labor upon the
               motor vehicle or component.
                    Whether the defendant failed to comply with Sections 15, 30 or 50, as claimed by
               the Plaintiffs, is for you to determine, based on your consideration of the evidence.”


           1
            Section 75 of the Automotive Repair Act states: “A motor vehicle repair facility that fails to
       comply with Section 15, 20, 25, 30, 35, 40, 45, 50, 55, or 60 is barred from asserting a possessory or
       chattel lien for the amount of the unauthorized parts or labor upon the motor vehicle or component.”
       815 ILCS 306/75 (West 2008).
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¶ 25       Plaintiffs contend a key issue in the case is whether Tramco was entitled to assert a
       possessory lien against their vehicle, even though Tramco allegedly violated section 30 of the
       Automotive Repair Act by performing unauthorized work on the vehicle’s transmission,
       violated section 15 of the Act by failing to provide plaintiffs with a written estimate of the
       costs of repair, and violated section 50 of the Act by failing to provide plaintiffs with an
       invoice itemizing work performed on the transmission.2
¶ 26       Plaintiffs claim they requested the instruction to support their theory that if Tramco was
       found to be in violation of these specified sections of the Automotive Repair Act, then it
       would have been barred by section 75 of the Act from asserting the lien against their vehicle.
       Plaintiffs assert that without the instruction, “the jury could well have believed that Tramco
       had violated the Automotive Repair Act in one or more respects, and yet still have been
       entitled to maintain a possessory lien.” Plaintiffs contend the trial court’s refusal to give the
       proposed jury instruction was an abuse of discretion and deprived them of their right to have
       the jury instructed on their theory of the case as supported by the evidence. We agree.


           2
             Section 30 of the Automotive Repair Act states: “Consumer’s authorization of repairs or other
       action. After receiving the estimate, the owner or the owner’s agent may (i) authorize the repairs at the
       estimate of cost and time in writing, (ii) request the return of the motor vehicle in a disassembled state,
       or (iii) request that the vehicle be assembled in reasonably the same condition as when released to the
       motor vehicle repair facility, in which case the motor vehicle repair facility shall make the motor
       vehicle available for possession within 3 working days after the time of request, unless parts are not
       available, making additional time necessary. The motor vehicle repair facility may receive payment for
       only those items on the schedule of charges to which the facility is entitled.” 815 ILCS 306/30 (West
       2008).
            Section 15 of the Automotive Repair Act states in relevant part: “(a) Disclosures required. No work
       for compensation that exceeds $100 shall be commenced without specific authorization from the
       consumer after the disclosures set forth in this Section. (b) Estimated costs. Every motor vehicle repair
       facility shall either (i) give to each customer a written estimated price for labor and parts for a specific
       repair and shall not charge for work done or parts supplied in an amount that exceeds the estimate by
       more than 10% without oral or written consent of the consumer or (ii) give to each consumer a written
       price limit for each specific repair and shall not exceed that limit without oral or written consent of the
       consumer. Either option shall include an estimate of the time necessary to complete the repair, if in
       excess of one working day. The estimate shall include the total costs to repair the vehicle. Estimates
       shall include all charges to be paid by the consumer to complete the repair, including any charges for
       estimates and diagnostics.” 815 ILCS 306/15 (West 2008).
            Section 50 of the Automotive Repair Act states in relevant part: “(b) Itemization of cost of repair
       performed. *** [T]he invoice shall describe all repair work done by a motor vehicle repair facility,
       including all warranty work, and shall separately identify (i) each major part supplied in a manner so
       that the consumer can understand what was purchased and (ii) the total price charged for all parts and
       labor.” 815 ILCS 306/50 (West 2008).



                                                        -6-
¶ 27       Tramco does not deny that a critical issue in the case is whether it was entitled to assert a
       possessory lien against plaintiffs’ vehicle. Tramco also does not dispute that if it engaged in
       violations of the Automotive Repair Act, it would have been barred by section 75 of the Act
       from asserting a possessory lien against the vehicle. Instead, Tramco argues it was entitled to
       assert the possessory lien because the jury found it had not violated the Automotive Repair
       Act.
¶ 28       Tramco’s argument assumes the jury knew and understood that if it found Tramco had
       violated the Automotive Repair Act, then Tramco would have been unable to assert the
       possessory lien. However, this assumption is not necessarily true because, as plaintiffs point
       out, the jury could have found that even if Tramco violated certain sections of the
       Automotive Repair Act, it was still entitled to assert and maintain a possessory lien against
       plaintiffs’ vehicle.
¶ 29       Unless it was instructed by the trial court, the jury could not make a finding that pursuant
       to section 75 of the Automotive Repair Act, Tramco’s violations of specific sections of the
       Act barred it from asserting a possessory lien. Without such an instruction, which was
       supported by the evidence, it is unlikely the jury would have understood the significance of
       Tramco’s alleged violations of the Automotive Repair Act in regard to its entitlement to
       assert a possessory lien against plaintiffs’ vehicle. We find the trial court committed
       reversible error in refusing to give plaintiffs’ proposed jury instruction based on section 75 of
       the Automotive Repair Act.
¶ 30       In regard to Tramco’s counterclaim, the jury found in favor of Valerie Mobley, but
       against Michelle Mobley in the amount of $835. However, judgment on the counterclaim
       was apparently based on the result reached by the jury on the possessory lien issue.
       Therefore, we believe a new trial is also justified as to the counterclaim.
¶ 31       For the foregoing reasons, we reverse the order of the circuit court denying plaintiffs’
       motion for a new trial and remand the cause to the circuit court for a new trial in accordance
       with this opinion.

¶ 32      Reversed and remanded with directions.




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