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                                     Appellate Court                            Date: 2016.11.08
                                                                                08:57:15 -06'00'




             Burkhart v. Wolf Motors of Naperville, Inc., 2016 IL App (2d) 151053



Appellate Court          CARLA BURKHART, Plaintiff-Appellant, v. WOLF MOTORS OF
Caption                  NAPERVILLE, INC., d/b/a Toyota of Naperville, Defendant-
                         Appellee.



District & No.           Second District
                         Docket No. 2-15-1053



Filed                    September 21, 2016



Decision Under           Appeal from the Circuit Court of Du Page County, No. 14-AR-707;
Review                   the Hon. Brian R. McKillip, Judge, presiding.



Judgment                 Affirmed.



Counsel on               Joshua M. Feagans and Kristin N. Stone, both of Griffin/Williams
Appeal                   LLP, of Geneva, for appellant.

                         James J. Laraia, of Laraia & Laraia, of Wheaton, for appellee.



Panel                    PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                         court, with opinion.
                         Justices Hutchinson and Burke concurred in the judgment and
                         opinion.
                                               OPINION

¶1       The defendant, Wolf Motors of Naperville, Inc., made a mistake in advertising one of its
     cars for sale. The plaintiff, Carla Burkhart, tried to purchase the car at the advertised price.
     After the defendant refused to honor its advertisement on the ground that the advertised price
     was an error, the plaintiff filed a complaint alleging that the defendant’s actions constituted
     breach of contract and consumer fraud. The trial court granted the defendant’s motion for
     summary judgment. The plaintiff appeals from that order. We affirm.

¶2                                          BACKGROUND
¶3        On May 5, 2014, the plaintiff filed a two-count complaint against the defendant, alleging
     breach of contract and violation of the Illinois Consumer Fraud and Deceptive Business
     Practices Act (Act) (815 ILCS 505/2 (West 2014)). The complaint alleged that on September
     23, 2013, the plaintiff saw that the defendant was advertising online at
     www.toyotacertified.com a 2011 Toyota 4Runner for $19,991. The plaintiff contacted the
     defendant and indicated that she was interested in purchasing the vehicle. After the plaintiff
     test-drove the vehicle, she informed the defendant that she wanted to purchase the vehicle. The
     defendant’s representative informed her that the price of the vehicle was $36,991. The plaintiff
     responded that she wanted the advertised price of $19,991. The defendant’s representative
     confirmed that the vehicle had been advertised for $19,991 but explained that the
     advertisement was a mistake. The defendant’s manager subsequently offered to sell the
     plaintiff the vehicle “at cost”—$35,000. The plaintiff refused to purchase the vehicle at that
     price.
¶4        The complaint alleged that the parties had a valid and enforceable contract for the vehicle
     at the advertised price of $19,991 and that the defendant breached the agreement when it
     refused to sell the vehicle to the plaintiff at that price. Alternatively, the complaint alleged that
     the defendant committed consumer fraud and injured the plaintiff when it advertised the
     vehicle at a price for which it did not intend to sell. The defendant filed an answer to the
     plaintiff’s complaint, denying all material allegations.
¶5        On May 22, 2015, the defendant filed a motion for summary judgment. The defendant
     argued that the erroneous advertisement did not constitute an offer that could be accepted so as
     to form a contract. The defendant further argued that its actions did not constitute consumer
     fraud because (1) it did not commit a deceptive act or practice, (2) it did not intend for the
     plaintiff to rely on any deceptive act or practice, and (3) the plaintiff did not incur any actual
     damages.
¶6        In support of its motion for summary judgment, the defendant submitted the deposition of
     its Internet director, Thomas Gregg. Gregg testified that the $19,991 advertised price for the
     subject vehicle was a clerical error and that the correct price for the subject vehicle was
     $36,991. He explained that the clerical error occurred with the entry of the subject vehicle into
     the Dealer Daily system. He testified that the person who had entered the vehicle into the
     Dealer Daily system was not very familiar with the process and was in training. The person had
     mistakenly entered the price of a different vehicle. After Gregg discovered on September 23,
     2013, that the price was incorrectly displayed, he immediately updated the price in the
     dealership DMS system, which then updated the listing on Dealer Daily. He did not realize that
     the update in the system took approximately four days to appear on the Internet.

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¶7         The defendant also submitted the deposition of its used-car sales manager, Bryan Lieser.
       Lieser testified that, as of September 24, 2013, the appraised value of the vehicle in question
       was between $32,000 and $33,000.
¶8         On July 9, 2015, the plaintiff filed a cross-motion for summary judgment. The plaintiff
       argued that she was entitled to summary judgment because (1) the defendant admitted that it
       refused to sell the vehicle to the plaintiff as advertised and, alternatively, (2) the defendant
       admitted advertising a vehicle for sale without an intention of selling the vehicle as advertised.
¶9         On September 24, 2015, the trial court granted the defendant’s motion for summary
       judgment and denied the plaintiff’s motion. The trial court found that, due to a clerical error,
       the car had been listed at an erroneous price. The trial court then explained that there was no
       contract formed between the parties because there was no mutual assent, as the “plaintiff
       believed she was purchasing a car for $19,991 [while] the defendant’s salesman believed he
       was selling the same car for $36,991.” Further, the trial court found that there was no consumer
       fraud because “the defendant did not intend the plaintiff to rely on a deceptive practice in
       which the defendant never intended to engage.”
¶ 10       On October 20, 2015, the plaintiff filed a timely notice of appeal.

¶ 11                                            ANALYSIS
¶ 12       On appeal, the plaintiff does not dispute the trial court’s finding that the subject vehicle
       was advertised at the wrong price. Nonetheless, she insists that she did have a contract with the
       defendant or, alternatively, that the defendants’ deceptive advertising constituted consumer
       fraud. She therefore argues that the trial court erred in granting the defendant’s motion for
       summary judgment and denying her motion for summary judgment.
¶ 13       The purpose of a motion for summary judgment is to determine whether a genuine issue of
       triable fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)), and
       such a motion should be granted only when “the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law” (735 ILCS 5/2-1005(c)
       (West 2014)). An order granting summary judgment should be reversed if the evidence shows
       that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law.
       Clausen v. Carroll, 291 Ill. App. 3d 530, 536 (1997). We review de novo the trial court’s grant
       of a motion for summary judgment. Coole v. Central Area Recycling, 384 Ill. App. 3d 390, 395
       (2008).
¶ 14       In order to establish a claim for breach of contract, a plaintiff must allege and prove the
       following elements: “(1) the existence of a valid and enforceable contract; (2) performance by
       the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff.”
       Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d
       15, 27 (2001). A valid and enforceable contract requires a manifestation of agreement or
       mutual assent by the parties to its terms, and the failure of the parties to agree upon or even
       discuss an essential term of a contract may indicate that the mutual assent required to make or
       modify a contract is lacking. The Delcon Group, Inc. v. Northern Trust Corp., 187 Ill. App. 3d
       635, 643 (1989). An advertisement is not an offer to a contract but rather constitutes an
       invitation to deal on the terms described in the advertisement. Steinburg v. Chicago Medical
       School, 69 Ill. 2d 320, 330 (1977); see also O’Keefe v. Lee Calon Imports, Inc., 128 Ill. App. 2d
       410, 413 (1970).

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¶ 15       In O’Keefe, the defendant advertised a 1964 Volvo station wagon for sale in the Chicago
       Sun-Times. The defendant instructed the newspaper to advertise the price of the car as $1795,
       but the newspaper erroneously advertised it as $1095. The plaintiff went to the defendant’s
       place of business and sought to purchase the car for $1095. After the defendant’s salesman
       refused to sell him the car at that price, the plaintiff filed a breach-of-contract claim against the
       defendant. The trial court subsequently granted the defendant summary judgment on the
       plaintiff’s complaint. O’Keefe, 128 Ill. App. 2d at 411.
¶ 16       On appeal, the plaintiff argued that the advertisement constituted an offer, which he
       accepted and which therefore served as the basis of a binding contract. The reviewing court
       rejected this argument, explaining:
                    “We find that in the absence of special circumstances, a newspaper advertisement
               which contains an erroneous purchase price through no fault of the defendant
               advertiser and which contains no other terms, is not an offer which can be accepted so
               as to form a contract. We hold that such an advertisement amounts only to an invitation
               to make an offer. It seems apparent to us in the instant case, that there was no meeting
               of the minds nor the required mutual assent by the two parties to a precise proposition.
               There was no reference to several material matters relating to the purchase of an
               automobile, such as equipment to be furnished or warranties to be offered by
               defendant. Indeed the terms were so incomplete and so indefinite that they could not be
               regarded as a valid offer.” Id. at 413.
¶ 17       Here, as in O’Keefe, the erroneous advertisement could not in itself serve as the basis of a
       binding contract between the parties. The advertisement did not reflect a price for which the
       defendant ever intended to sell the vehicle. As such, the advertisement did not constitute an
       offer, and the plaintiff’s “acceptance” of that advertisement did not establish a contract.
¶ 18       The plaintiff argues that O’Keefe is distinguishable because this case implicates the
       “special circumstances” that O’Keefe referred to. Specifically, the plaintiff points out that,
       unlike in O’Keefe, here (1) the plaintiff promised to pay the amount that was requested in the
       advertisement, (2) the advertisement referred to all of the equipment to be provided and the
       warranties offered, and (3) the defendant tried to use the advertisement to its advantage. We
       find the plaintiff’s attempt to distinguish O’Keefe unpersuasive. Although the advertisement in
       the instant case included more information than the advertisement in O’Keefe, the
       advertisements were sufficiently similar because they both contained the wrong information
       about an essential term: the price. Here, although the defendant’s manager did offer the car for
       a lower price after he learned that the plaintiff wanted it for the advertised price, the plaintiff
       never indicated a desire to purchase the car for anything other than $19,991. Accordingly, as
       there was never a meeting of the minds as to the price the plaintiff was willing to pay for the car
       and the price the defendant was willing to accept, there was no contract between the parties.
       See Delcon Group., Inc., 187 Ill. App. 3d at 643.
¶ 19       Alternatively, relying on Williams v. Bruno Appliance & Furniture Mart, Inc., 62 Ill. App.
       3d 219, 221 (1978), the plaintiff argues that O’Keefe is no longer good law because it conflicts
       with the mandate of the Act that advertisements must be viewed as bona fide offers for sale. As
       this issue ties directly into the plaintiff’s second contention, we will address it in that context.
¶ 20       The plaintiff’s second contention on appeal is that the defendant committed consumer
       fraud when it advertised the vehicle without intending to sell it at the advertised price. The
       plaintiff insists that the defendant’s advertisement constituted a per se violation of the Act

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       because the defendant refused to sell her the vehicle at the price that was listed in the
       advertisement. The plaintiff maintains that it is irrelevant whether the advertised price was
       correct.
¶ 21        “To establish a claim under the [Act], a plaintiff must prove: (1) a deceptive act or practice
       by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the
       occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual
       damage to the plaintiff that is (5) a result of the deception.” Martinez v. River Park Place, LLC,
       2012 IL App (1st) 111478, ¶ 34. Recovery may be had for unfair as well as deceptive conduct.
       Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 417 (2002). In measuring unfairness,
       courts consider: “(1) whether the practice offends public policy; (2) whether it is immoral,
       unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to
       consumers.” Id. at 417-18. Further, “in a cause of action for fraudulent misrepresentation
       brought under the [Act], a plaintiff must prove that he or she was actually deceived by the
       misrepresentation in order to establish the elements of proximate causation.” Avery v. State
       Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 199 (2005).
¶ 22        Although the record in this case reveals evidence as to some of the elements of a cause of
       action for consumer fraud, it is clear that plaintiff cannot prove all of them. Specifically, there
       is no evidence that the plaintiff suffered any damages. The plaintiff argues that her damages
       were at least $12,009: the difference between the price at which the car was advertised
       ($19,991) and the appraised value of the car (at least $32,000). However, only a person who
       suffers actual damages as a result of a violation of the Act may bring a private action. 815 ILCS
       505/10a(a) (West 2014); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 626-27 (2008). The Act
       provides remedies for purely economic injuries. White v. DaimlerChrysler Corp., 368 Ill. App.
       3d 278, 287 (2006). Actual damages must be calculable and “measured by the plaintiff’s loss.”
       (Internal quotation marks omitted.) Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d
       399, 402 (2009). The failure to allege specific, actual damages precludes a claim brought under
       the Act. White, 368 Ill. App. 3d at 287. The purpose of awarding damages to a consumer-fraud
       victim is not to punish the defendant or bestow a windfall upon the plaintiff but rather to make
       the plaintiff whole. Mulligan, 382 Ill. App. 3d at 629.
¶ 23        Here, the plaintiff is in the same position she was in before she saw the advertisement. The
       alleged damages she seeks would not compensate her for any actual loss but instead would
       constitute an improper windfall. See id. Accordingly, as the plaintiff suffered no damages, the
       trial court properly granted the defendant’s motion for summary judgment. See Martinez, 2012
       IL App (1st) 111478, ¶ 34. We note that this is not the basis on which the trial court granted the
       defendant’s motion for summary judgment; however, it is well settled that we may affirm on
       any basis appearing in the record. Benson v. Stafford, 407 Ill. App. 3d 902, 912 (2010).
¶ 24        In so ruling, we reject the plaintiff’s argument that the defendant’s advertising the vehicle
       at a price that it did not intend to honor was a “per se violation of the Illinois Consumer Fraud
       Act” that entitles her to relief. Although even negligent or innocent misrepresentations are
       actionable under the Act, that still does not alleviate a plaintiff’s obligation to prove her
       damages. See Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992) (explaining
       that because innocent misrepresentations are actionable under the Act, damages will not be
       presumed).
¶ 25        Further, we find the plaintiff’s reliance on Garcia v. Overland Bond & Investment Co., 282
       Ill. App. 3d 486, 493-94 (1996), Affrunti v. Village Ford Sales, Inc., 232 Ill. App. 3d 704, 707

                                                    -5-
       (1992), and Bruno Appliance, 62 Ill. App. 3d at 222, to be misplaced. All of those cases
       involve deceptive “bait and switch” situations. A “bait and switch” occurs when a seller makes
       an alluring but insincere offer to sell a product or service, which the advertiser in truth does not
       intend or want to sell. Its purpose is to switch customers from buying the advertised
       merchandise to buying something else, usually at a higher price or on a basis more
       advantageous to the advertiser. Martinez, 2012 IL App (1st) 111478, ¶ 35. Here, the defendant
       did not engage in any “bait and switch,” as it did not try to induce the plaintiff to buy a vehicle
       other than the one that was advertised.
¶ 26       The plaintiff nonetheless insists that the defendant “employed tactics shadily similar to a
       ‘bait and switch’ in attempt to draw [the plaintiff] in.” In support of this accusation, the
       plaintiff points to the defendant’s offer to sell her the car “at cost” for a price that was actually
       higher than the defendant’s cost. We reject this argument. The fact remains that there is no
       evidence that the plaintiff actually suffered any damages due to the defendant’s deceptive
       advertisement.
¶ 27       Finally, we also find the plaintiff’s reliance on Montgomery Ward & Co. v. Federal Trade
       Comm’n, 379 F.2d 666, 668-71 (7th Cir. 1967), to be misplaced. That case addressed whether
       Montgomery Ward had engaged in deceptive advertising when its advertised guarantees for
       some of its products conflicted with its written guarantees. However, as that case did not
       discuss damages that any customers might have suffered—something that our courts have
       consistently found is necessary in order for a plaintiff to maintain a consumer-fraud
       claim—Montgomery Ward does not require us to reach a different decision.

¶ 28                                        CONCLUSION
¶ 29       For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 30       Affirmed.




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