                                                                                 FIFTH DIVISION
                                                                                 December 28, 2007




Nos. 1-06-0262, 1-06-1266 (consolidated)

FELICE BRESSLER ROSE,                                               )    Appeal from the
                                                                    )    Circuit Court of
                Plaintiff-Appellee,                                 )    Cook County
                                                                    )
        v.                                                          )
                                                                    )
MERCEDES-BENZ U.S.A., LLC,                                          )    Honorable
                                                                    )    Susan McDunn,
                Defendant-Appellant.                                )    Judge Presiding.


        JUSTICE GALLAGHER delivered the opinion of the court:

        Plaintiff Felice Bressler Rose brought an action under the Magnuson-Moss Warranty-

Federal Trade Commission Improvement Act (the Magnuson-Moss Act) (15 U.S.C. §2301 et seq.

(2000)) for breach of express and implied warranties against defendant Mercedes-Benz after

several unsuccessful attempts to repair her 2002 Mercedes ML 500. Following a bench trial, the

trial court entered judgment for plaintiff and awarded her $8,000 in damages.

        Defendant now appeals the damage award and the award of attorney fees and costs to

plaintiff. Defendant raises three main contentions pertaining to the damage award: (1) plaintiff

suffered no damages for breach of warranty because her vehicle was repaired at no cost to her and

plaintiff received full market value for the vehicle at trade-in; (2) plaintiff failed to lay an adequate

foundation for her valuation testimony of the ML 500 in its defective state; and (3) no basis exists
Nos. 1-06-0262 and 1-06-1266 (consolidated)

for the $8,000 damage award. Because we agree with defendant on the second point, we reverse

the judgment of the trial court.



                                         BACKGROUND

        In January 2002, plaintiff bought a 2002 Mercedes ML 500 sport utility vehicle from the

Autohaus on Edens, a Mercedes-Benz dealership, for $47,000. The vehicle was covered by a 4-

year/50,000-mile written limited warranty.

        The following testimony is relevant to the issues presented in this appeal. Between

January 2002 and July 2005, plaintiff experienced numerous problems with the ML 500 and

brought the vehicle to defendant’s dealerships for repair approximately 19 times, including 9 visits

to inspect and repair the braking system. Plaintiff offered detailed testimony about the problems

she experienced with the vehicle. Some repairs took more than one day to complete, and, by

plaintiff’s estimation, the dealerships provided her with a replacement vehicle about 80 % of the

time.

        Defendant does not dispute that the various defects were not repaired in a reasonable time

or a reasonable number of attempts. On February 2, 2004, plaintiff filed a two-count complaint

against defendant seeking to revoke her acceptance of the vehicle under the Magnuson-Moss Act

and seeking damages for breach of express written warranty and the implied warranty of

merchantability. In July 2005, plaintiff traded in the ML 500, which she had driven 25,254 miles,

toward the purchase of a 2005 Lexus RX 330 sport utility vehicle at McGrath Lexus. Plaintiff

received a trade-in allowance of $24,400 for the ML 500.


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

        The sole evidence of the vehicle’s diminished value was plaintiff’s lay opinion testimony,

over the defense’s objection, as to how much the ML 500 was worth when she bought it:

        “If I would have known I had to go what I’ve gone through for this Court, I have

        explained it, I would not have paid anything for this car. But I recognize that I

        have had the ability to drive the car for very basic purposes, and I think that that

        adds some value to the car.”

        Plaintiff was asked her opinion of the value of the ML 500 “when she bought it, on the

date that [she] bought it, knowing what you know now.” The following colloquy occurred:

                “A. I would not pay more than half price. I would not pay more than what

        I traded my other Mercedes for.

                Q. Now, you say you would not pay more than half. Does that give you

        an opinion as to what you believe it was worth? What is your opinion as to what it

        was worth?

                A. Probably about $25,000. I’m just pulling you a number out of my head.

        About 50 percent of what I paid.”

        The defense objected that plaintiff’s testimony was speculative and lacking in foundation.

Plaintiff then stated:

        “That’s not how I meant it. I meant it what 50 percent was [sic] of what I paid. I

        don’t remember the exact number that I paid for that.”

        The trial court heard the parties’ arguments as to the defense objection, and the court

allowed plaintiff’s counsel to ask “clarifying questions” about plaintiff’s testimony:


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

               “Q. Mrs. Rose, when you said $25,000 what is it that you meant by that?”

               A. 50 percent of what I paid.

               Q. Okay. You paid $47,000; is that correct?

               A. Correct.

               Q. Doing the math, then, is your opinion that the vehicle was worth

       $23,500?

               A. If that’s 50 percent, yes.”

       When asked the basis for that opinion, plaintiff described her trade-in of a Mercedes for

$29,000 when she bought the ML 500. Plaintiff stated that she drove the first Mercedes for 3½

years and it had more miles on it than the ML 500 did at trade-in. Plaintiff testified that her

opinions were based on “the research I’ve done, the salespeople I talked to, and everything I did

to become an educated consumer.” Over continued defense objections, the court stated that it

accepted plaintiff’s testimony as a lay opinion, ruling that the defense arguments would “go

towards [the] weight” to be given that testimony.

       The defense presented, among other evidence, the testimony of Frank Tabachka, formerly

a salesperson and manager at McGrath Lexus. Tabachka’s duties included appraising the value of

automobiles, and he appraised plaintiff’s ML 500 at trade-in. The wholesale value of the ML 500

was $25,000, and the dealership gave a $24,400 trade-in allowance toward the Lexus. Tabachka

testified that $24,400 was the fair market value of the ML 500. Over plaintiff’s objection,

Tabachka testified that the $25,000 appraisal for the ML 500 was not based on the vehicle’s

service history or mechanical condition.


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

       At the close of evidence, the trial court concluded that defendant breached its express and

implied warranties to plaintiff. The court awarded plaintiff “diminished value damages” of

$8,000. The court accepted plaintiff’s lay opinion testimony, finding that it met the foundational

factors set out in Kim v. Mercedes-Benz U.S.A., Inc., 353 Ill. App. 3d 444, 818 N.E.2d 713

(2004). The court noted plaintiff’s testimony that she researched the vehicle and applied that

research to her valuation of the car on the date it was purchased, compared to the value of the car

had it been as warranted. The court stated that it did not award damages to plaintiff for loss of

use, aggravation or inconvenience, but rather, in arriving at the damage award, the court

considered the mileage accumulated on the car and the benefit of the repairs that were performed.

       On December 21, 2005, the trial court entered judgment for plaintiff for breach of express

and implied warranties, and the court awarded plaintiff $8,000 in damages. On March 29, 2006,

the court granted plaintiff’s claim for attorney fees and costs in the amount of $31,565.65.



                                            ANALYSIS

       On appeal, defendant contends that plaintiff sustained no damages because she did not pay

for any repairs and she received the full market value for the vehicle when she traded it in.

Defendant also argues that plaintiff failed to establish an adequate foundation for her opinion

testimony as to the value of the ML 500 when she purchased it in its allegedly defective state. We

consider each of those arguments in turn.




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Nos. 1-06-0262 and 1-06-1266 (consolidated)

                               I. Existence of Recoverable Damages

       Defendant asserts that plaintiff is only entitled to recover damages that she sustained, and

because the ML 500 was repaired at no cost to plaintiff and she received what was testified to as

the “full fair market value” when she traded in the vehicle, she suffered no damages. We address

this issue at the outset because if plaintiff has not incurred damages, she cannot state a claim for

breach of warranty. See Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d

969, 973, 773 N.E.2d 1199, 1203 (2002).

       The Magnuson-Moss Act supports an action against a manufacturer for the failure to

comply with the terms of a written or implied warranty. 15 U.S.C. §2301(d)(1) (2000). Absent a

conflict between the Magnuson-Moss Act and a state’s law governing the sale of consumer

products, state law applies. Zwicky v. Freightliner Custom Chassis Corp., 373 Ill. App. 3d 135,

143, 867 N.E.2d 527, 534 (2007). Thus, we consider the applicable Illinois enactment of the

Uniform Commercial Code (the Code) (820 ILCS 5/1-101 et seq. (West 2004)).

       Under section 2-714(2) of the Code, damages for breach of warranty are measured by “the

difference at the time and place of acceptance between the value of the goods accepted and the

value they would have had if they had been as warranted.” 810 ILCS 5/2-714(2) (West 2004).

Here, plaintiff argues that the value that she received “upon disposition,” i.e., at trade-in, does not

preclude her recovery under section 2-714. Plaintiff claims that, without the car’s mechanical

defects, she would have received more than $24,400 at trade-in.

       Defendant contends that plaintiff did not establish that the difference between the $47,000

purchase price and the $24,400 that she received 3½ years later when she traded in the ML 500


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

could be attributed to a defect in the vehicle or to anything besides normal depreciation.

Defendant urges this court to follow Valenti, in which the plaintiff traded in a Mitsubishi Galant

for a credit of $11,000 after driving the Galant for 2½ years and more than 17,000 miles. Valenti,

332 Ill. App. 3d at 973, 773 N.E.2d at 1203. According to the manager of preowned vehicles

where the plaintiff traded in the Galant, $11,000 was the Galant’s “fair market value” at the time

of the trade-in. Valenti, 332 Ill. App. 3d at 972, 773 N.E.2d at 1202. The appellate court

affirmed summary judgment in favor of the carmaker, concluding that the plaintiff did not

establish damages because the plaintiff sold the car at its fair market value. Valenti, 332 Ill. App.

3d at 973, 773 N.E.2d at 1203.

       In distinguishing Valenti, plaintiff cites, as supplemental authority, Shoop v.

DaimlerChrysler Corp., 371 Ill. App. 3d 1058, 1060-61, 864 N.E.2d 785, 787 (2007), which was

decided during the pendency of this appeal. In Shoop, the plaintiff purchased a 2002 Dodge

Dakota truck for $28,000, traded it in about three years later, and received a $16,500 credit

toward a new vehicle. Shoop, 371 Ill. App. 3d at 1059-60, 864 N.E.2d at 787-88. In response to

the defendant automaker’s motion for summary judgment asserting that the plaintiff did not suffer

damages due to the value received at trade-in, the plaintiff presented affidavits of two witnesses

that the truck’s value was diminished by manufacturing defects when the plaintiff bought it.

Shoop, 371 Ill. App. 3d at 1060, 864 N.E.2d at 787. The trial court granted the carmaker’s

motion for summary judgment. Shoop, 371 Ill. App. 3d at 1060, 864 N.E.2d at 787.

       On appeal, this court reversed the grant of summary judgment, concluding that a genuine

issue of material fact existed as to the plaintiff’s damages, given the evidence of diminished value.


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

Shoop, 371 Ill. App. 3d at 1063, 864 N.E.2d at 790. The automaker in Shoop asserted that the

plaintiff did not suffer a “present injury” because he received more than the fair market value for

his car upon trade-in. Shoop, 371 Ill. App. 3d at 1059, 864 N.E.2d at 786. However, the court

concluded that the attestations of the plaintiff’s witnesses created an issue of fact as to whether

the vehicle’s value was diminished at the time it was sold to the plaintiff. Shoop, 371 Ill. App. 3d

at 1063, 864 N.E.2d at 790. The court noted that the affidavits averring the reduced value of the

truck distinguished the facts before it from those in Valenti, in which the plaintiff relied only on

the allegations of her complaint and the record to establish diminished value. Shoop, 371 Ill. App.

3d at 1062, 864 N.E.2d at 789, citing Valenti, 332 Ill. App. 3d at 973, 773 N.E.2d at 1203.

       Pointing to Shoop, plaintiff asserts that she established damages even though she traded in

the vehicle. We find this case to be procedurally distinguishable from both Shoop and Valenti,

which were appeals from summary judgment motions. In Shoop, two witnesses attested to the

vehicle’s value at the time of purchase, and the appellate court determined that evidence was

sufficient to establish a genuine issue of material fact as to the plaintiff’s damages. Shoop, 371 Ill.

App. 3d at 1062, 864 N.E.2d at 789. The testimony in Shoop did not establish that the plaintiff

suffered damages; rather, a question of fact existed that precluded summary judgment.

       Shoop demonstrates that, given the proper proof, a plaintiff can recover damages even if

he or she has traded in a vehicle for fair market value. Shoop, 371 Ill. App. 3d at 1063, 864

N.E.2d at 790. Indeed, this court has endorsed the theory of such a damage award, interpreting

the Uniform Commercial Code and the common law of sales. See Bartow v. Ford Motor Co.,

342 Ill. App. 3d 480, 490-91, 794 N.E.2d 1027, 1035-36 (2003), quoting 67A Am. Jur. 2d Sales


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

§1242 (2000). We restate a portion of that treatise quoted in Bartow:

       “[T]he application of the ordinary rule of damages for breach of warranty, namely

       the difference between the value of the goods as warranted and the value of the

       goods as they actually were upon acceptance was not changed or modified by the

       fact that the purchaser had resold the article at a profit, either by reason of an

       advance in the market or by reason of an existing contract; the seller could not

       assert this as a defense, or in mitigation of damages.” (Emphasis added.) 67A

       Am. Jur. 2d Sales §1242 (2000).

       Bartow addressed a plaintiff’s standing under the Magnuson-Moss Act after she sold the

allegedly defective vehicle, and the court concluded that the resale of the vehicle did not preclude

the recovery of damages. Bartow, 342 Ill. App. 3d at 490, 794 N.E.2d at 1035. Shoop discussed

that holding in Bartow in the context of the proof required to overcome the defendant’s motion

for summary judgment. Shoop, 371 Ill. App. 3d at 1063, 864 N.E.2d at 789.

       Thus, having determined that a plaintiff can recover damages even when the vehicle has

been traded in for fair market value, this court proceeds to consider whether plaintiff produced

sufficient evidence to support her damages award.



                                II. Plaintiff’s Valuation Testimony

       The trial court awarded plaintiff damages based on the diminished value of the vehicle at

the time she bought it. On appeal, defendant renews its contention that plaintiff did not establish

personal knowledge of the ML 500 in its allegedly defective state to support her lay opinion


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

testimony that the vehicle was worth $23,500 when she bought it. Defendant asserts that the trial

court erred in allowing plaintiff to base her opinion testimony on automobile publications and her

experience of prior auto purchases.

        Since this case concluded in late 2005, the Illinois Supreme Court has reiterated that a lay

witness can offer an opinion as to the value of personal property if the witness has sufficient

personal knowledge of the property and its value. Razor v. Hyundai Motor America, 222 Ill. 2d

75, 109, 854 N.E.2d 607, 627 (2006); see also Wausau Insurance Co. v. All Chicagoland

Moving & Storage Co., 333 Ill. App. 3d 1116, 1128, 777 N.E.2d 1062, 1073 (2002).

        In Razor, the supreme court found speculative a jury’s $5,000 damage award, calling it a

“suspiciously round number.” Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627. The court concluded

that the plaintiff’s attempt to establish damages was stopped short by what it deemed the trial

judge’s “preemptive[]” ruling that the plaintiff could not testify as to the value of the vehicle in its

defective state. Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627-28. The supreme court held that the

plaintiff should have been allowed to testify as to what she would have paid for the car in question

had she known of the defects, but cautioned that “there must be an adequate showing of the basis

for such testimony before it will be allowed.” Razor, 222 Ill. 2d at 109, 854 N.E.2d at 627-28.

The court remanded for a new trial on damages at which the plaintiff’s counsel must not be

“precluded from attempting to lay a foundation” for her knowledge of the value of the car in its

defective state; the court noted, however, that the ultimate sufficiency of the foundation presented

would be left to the discretion of the trial court. Razor, 222 Ill. 2d at 110, 854 N.E.2d at 628.

        Additionally, this court recently concluded in Kim that the plaintiff’s testimony in that case


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

was not sufficient to lay a foundation for the diminished value of the vehicle in question, although

the court first concluded that the plaintiff’s proposed testimony was not disclosed under Supreme

Court Rule 213(f). See Kim, 353 Ill. App. 3d at 454-55, 818 N.E.2d at 722, citing 210 Ill. 2d R.

213(f). The court held that even had the testimony been properly disclosed, the plaintiff provided

no evidence or testimony of personal knowledge of the subject vehicle “in its allegedly defective

state” and therefore did not lay an adequate foundation for the diminished value of the vehicle.

Kim, 353 Ill. App. 3d at 457, 818 N.E.2d at 724.

       Here, in contrast to the result in Kim, the trial court found adequate disclosure and

allowed plaintiff’s lay opinion testimony as to what she would have paid for the car had she

known of the mechanical problems. In response to defendant’s interrogatories, plaintiff disclosed,

inter alia, that she would “offer lay person testimony regarding [her] subjective belief as to the

diminished value of the subject vehicle at the time the vehicle was purchased and/or leased” and,

further, that plaintiff would testify that the value of the ML 500 “was diminished by as much as

50% (or less) of the purchase/lease price.” In plaintiff’s discovery deposition, she stated that

before she bought the ML 500, she knew the “general price range” of the car from advertising.

She also researched the vehicle at the Mercedes-Benz website and read magazines and the

Chicago Tribune.

       At trial, during plaintiff’s testimony, the court overruled numerous defense objections

pending its ultimate ruling on the admissibility of plaintiff’s lay opinion of the value of the ML

500. In overruling one objection, the court stated:

       “You don’t have to be an expert to give an opinion as to value. So I have to hear


                                                  11
Nos. 1-06-0262 and 1-06-1266 (consolidated)

        what her experience has been and what her knowledge has been in order to decide

        whether she is qualified to given an opinion as to value.”

        Plaintiff was asked her opinion of the value of the ML 500 on the date she purchased it, in

its allegedly defective condition, based on her research and knowing what she knew at the time of

trial regarding the mechanical problems. Plaintiff testified that, considering the problems she

experienced with the ML 500, the vehicle was worth $23,500, or half of its $47,000 purchase

price, at the time she bought it.

        Consistent with her discovery deposition, plaintiff testified at trial that she researched her

purchase in various publications and using the Internet. The publications and Internet sites listed

vehicles for sale along with their description, mileage and asking price. One site calculated a

vehicle’s price from information provided by the user, including whether a transaction was

between private parties or with a dealership.

        The trade publications indicated the impact of an automobile’s condition on its value,

categorizing vehicles as normal, fair or poor. Plaintiff noted a 10 % difference in value between

vehicles in the different categories. She testified that she “didn’t have the same expectation” of a

used vehicle as she did of a new vehicle and would pay more for a new car.

        To establish an appropriate foundation as to the value of personal property, a lay witness

should be able to testify, at a minimum, as to his or her: (1) familiarity with the property in

question; (2) actual knowledge of the value of the subject property; and (3) the basis of the

knowledge of that value, “i.e., how, when and where the witness obtained the knowledge.” Kim,

353 Ill. App. 3d at 456-57, 818 N.E.2d at 723. The trial court’s exclusion or admission of


                                                  12
Nos. 1-06-0262 and 1-06-1266 (consolidated)

evidence will not be reversed absent an abuse of discretion, meaning that no reasonable person

would adopt the court’s view. Razor, 222 Ill. 2d at 110, 854 N.E.2d at 628; Kim, 353 Ill. App.

3d at 452, 818 N.E.2d at 720.

        The rationale of admitting lay opinion testimony is that certain topics can be discussed

without special knowledge, provided that the facts upon which those opinions are based are set

out and made understandable to the jury and/or the court. See Kolstad v. Rankin, 179 Ill. App.

3d 1022, 1030, 534 N.E.2d 1373, 1378 (1989) (allowing lay opinion testimony as to noise levels

in nuisance suit against neighboring firing range). The court in Kim noted, and our research leads

us to agree, that Illinois courts have not established more specific factors necessary to establish a

proper foundation for the valuation opinion of a lay witness. See Kim, 353 Ill. App. 3d at 456,

818 N.E.2d at 723.

        Here, in concluding that plaintiff presented an adequate foundation for her testimony of

the value of the ML 500 in its defective state, the court noted that plaintiff “was familiar with the

[vehicle], she owned it, she used it, she drove it, she brought it in for the repairs and she had

actual knowledge of the value of the subject property and she had knowledge of this vehicle.”

The court also noted plaintiff’s testimony of trading in her first Mercedes and her research in

automobile publications before buying the ML 500 established her knowledge of the vehicle’s

value in its allegedly defective state.

        Here, plaintiff did what any prudent consumer does before making a large purchase; she

researched a product and the market’s established price for that product in 2002 to determine the




                                                  13
Nos. 1-06-0262 and 1-06-1266 (consolidated)

amount she reasonably should pay for a new Mercedes ML 500.1 Plaintiff’s opinion testimony

was rooted in knowledge gleaned as a buyer of a new vehicle, and she possessed sufficient

personal knowledge of the value of the ML 500 as new. However, it is necessary to distinguish

that testimony from her lay opinion testimony of the value of the vehicle in its defective state.

       We cannot help but note, as a practical matter, that plaintiff received a larger monetary

credit when she traded the ML 500 in ($24,400) than she opined the car was worth when she

bought it. Plaintiff’s testimony that, in hindsight, she would have paid $23,500 for the vehicle as

new, given the mechanical defects, is comparable to the testimony that was excluded in Razor. In

Razor, the supreme court held that the plaintiff could testify as to what she would have paid for

the vehicle knowing of its defects, but the court cautioned that an adequate basis must be

established for the personal knowledge of the value of the car in its defective condition. Razor,

222 Ill. 2d at 109, 854 N.E.2d at 627-28.

       Here, plaintiff confronts the same obstacle that arose in Razor and in Kim: the necessity of

establishing a foundation for her knowledge of the vehicle in its defective state. Although plaintiff

presented her knowledge of the value of the vehicle as new and set out the factors on which she

based her opinion, she did not provide the basis of her testimony that the ML 500 was worth

$23,500 in its defective state at the time of purchase.

       Plaintiff drove the ML 500 and drove it for 3½ years and more than 25,000 miles before


       1
         In Behrens v. W.S. Bills & Sons, Inc., 5 Ill. App. 3d 567, 577, 283 N.E.2d 1, 7 (1972),
the court admitted the plaintiffs’ use of a catalog to support an opinion as to the value of damaged
fixtures, noting that such opinion testimony could be based on “a knowledge of prevailing prices
of such items based on shopping with friends, window shopping, noticing newspaper
advertisements and hearing radio advertisements.”

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Nos. 1-06-0262 and 1-06-1266 (consolidated)

trading it in and receiving the fair market trade-in value of $24,400 toward the purchase of

another vehicle. Due to numerous repairs, plaintiff contended that the value of the ML 500 was

diminished at the time she bought it. However, in stating her opinion of the diminished value,

plaintiff, by her own admission, “pulled a number out of her head,” to paraphrase her testimony.

In making that estimation, plaintiff arrived at a conspicuously round figure for the value of the

vehicle in its defective state: 50 % of its $47,000 purchase price, or $23,500.

       In discussing opinion testimony by lay witnesses, it has been observed:

       “If the basis of the opinion includes so many varying or uncertain factors that the

       lay witness is required to guess or surmise in order to reach an opinion, the opinion

       is objectionable as speculation or conjecture.” M. Graham, Cleary & Graham’s

       Handbook of Illinois Evidence, §701.1, at 597 (7th ed. 1999).

       Plaintiff’s specific assertions on appeal illustrate the uncertainty of her valuation. First,

she points to her trial testimony that she traded in her first Mercedes for $29,000 when she bought

the ML 500. That testimony was apparently intended to illustrate that because plaintiff drove the

first Mercedes for 3½ years and it had more miles on it than the ML 500 did at trade-in, she

should have received more for the ML 500 at trade-in than the $29,000 she received for the first

Mercedes. However, that testimony did not establish the value of the ML 500 at trade-in or that

the ML 500 was worth $23,500 at the time of purchase, as opposed to the $47,000 that plaintiff

paid. In addition, plaintiff’s testimony was countered by Tabachka’s statement that plaintiff

received the fair market value of the ML 500 at trade-in, which was $24,400.

       Additionally, plaintiff’s description of her research in automobile value guides and the


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Nos. 1-06-0262 and 1-06-1266 (consolidated)

10 % difference in value between a vehicle in good condition, fair condition or poor condition

also does not support her $23,500 valuation. Although plaintiff repeatedly points to her

testimony on that point, and although Tabachka testified that those guides are used in the car

industry to determine value, plaintiff did not attempt to perform the necessary calculations. In any

event, a 20 % or even a 30 % difference between a vehicle in good condition and one in poor

condition would not result in the reduction in value of a $47,000 vehicle to $23,500 at the time of

purchase, a reduction of 50 %.

       Plaintiff further contends that the cost of repairs to the ML 500, which plaintiff asserts was

more than $8,000, is additional evidence of the existence of damages. However, although plaintiff

refers to receipts for those repairs, she directs this court to a supplemental record containing recall

notices concerning the vehicle. Even if such receipts were provided, plaintiff concedes that the

cost of repair is not the measure of damages to be used here (see Kim, 353 Ill. App. 3d at 460-61,

818 N.E.2d at 726-27), and she acknowledges that she did not incur those costs, since the vehicle

was repaired pursuant to the warranty.

       Plaintiff also asserts that a strict approach to lay opinion testimony contradicts the

rationale allowing such evidence. Plaintiff contends that if she is not allowed to base her lay

opinion on outside sources such as newspapers, automotive publications and websites, she is

effectively required to render an expert opinion based on scientific or technical knowledge, thus

eroding the purpose of a lay opinion. We do not hold that such sources cannot ever provide the

foundation of a witness’s lay opinion; rather, we have concluded that plaintiff failed to establish

that the outside sources in this case educated her as to the value of the ML 500 in its diminished


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state such that her lay opinion testimony was supported. The trial court’s acceptance of plaintiff’s

testimony as establishing the diminished value of the vehicle constituted an abuse of discretion.



                                            CONCLUSION

          Because plaintiff failed to establish an adequate basis for her lay opinion testimony of the

value of the ML 500 in its defective state, the trial court’s acceptance of that testimony

constituted an abuse of discretion. Thus, the court’s rulings on the breach of warranty claims are

reversed because plaintiff has failed to establish damages.

          Accordingly, the December 21, 2005, order granting judgment to plaintiff on her warranty

claims and awarding $8,000 in damages is reversed, as is the March 29, 2006, order awarding

plaintiff attorney fees and costs in the amount of $31,565.65. Given that disposition, we reject

plaintiff’s request to file, pursuant to section 2310(d)(2) of the Magnuson-Moss Act (15 U.S.C.

§2310(d)(2) (2000)), a supplemental fee petition for attorney fees and costs incurred in this

appeal.

          Reversed.

          FITZGERALD SMITH, P.J., and O’MARA FROSSARD, J., concur.




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