                                     2014 IL App (1st) 122123


                                                                    SIXTH DIVISION
                                                                    May 16, 2014


No. 1-12-2123


MICHELLE MOBLEY and VALERIE MOBLEY,                           )     Appeal from the
                                                              )     Circuit Court of
                Plaintiffs-Appellants,                        )     Cook County.
                                                              )
v.                                                            )     10 M1 125438
                                                              )
TRAMCO TRANSMISSION, INC.,                                    )
an Illinois Business Corporation, d/b/a                       )
Tramcar Transmission,                                         )     Honorable
                                                              )     Sidney A. Jones III
                Defendant-Appellee.                           )     Judge Presiding.

       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.
No. 1-12-2123

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 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



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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



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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 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.

¶ 11   Plaintiffs rented a replacement vehicle, and later in March 2009, purchased a used 2003

Volkswagen Passant (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.



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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,



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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 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



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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


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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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."

¶ 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



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

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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).




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¶ 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.

¶ 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



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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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