                               No. 2--07--0661    Filed: 6-30-08
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

TODD MONTGOMERY,                             ) Appeal from the Circuit Court
                                             ) of Winnebago County.
        Plaintiff-Appellant,                 )
                                             )
v.                                           ) No. 02--L--293
                                             )
NOSTALGIA LANE, INC.,                        )
                                             )
        Defendant-Appellee                   )
                                             )
(Roger Merrill, Individually and as Chairman )
of the Board and Treasurer, and Mike Furth,  ) Honorable
Individually and as General Manager,         ) Janet R. Holmgren,
Defendants).                                 ) Judge, Presiding.
_________________________________________________________________________________

       JUSTICE BYRNE delivered the opinion of the court:

       Plaintiff, Todd Montgomery, contacted defendant, Nostalgia Lane, Inc., to restore his 1970

Plymouth Roadrunner. Defendant inspected the vehicle and provided plaintiff a written estimate that

the project was expected to cost $35,000 but that the final bill would reflect the actual cost of parts

and labor. Plaintiff agreed to the project and paid installments amounting to $33,500, but defendant

deviated from the estimated cost. Plaintiff paid defendant the outstanding balance of $5,899 to

retrieve the vehicle, and this dispute ensued. Plaintiff filed a six-count, third-amended complaint,

and the parties filed opposing motions for summary judgment. The trial court ruled for defendant

on all of the counts, and plaintiff appeals.
No. 2--07--0661


          On appeal, plaintiff argues that the trial court committed reversible error in granting

defendant summary judgment on count I of the third-amended complaint. However, count I is

unfocused in that it alleges several statutory claims. Count I alleges that defendant violated several

provisions of the Automotive Repair Act (815 ILCS 306/1 et seq. (West 2006)) and that those

violations are actionable under section 2Z of the Illinois Consumer Fraud and Deceptive Business

Practices Act (Consumer Fraud Act) (815 ILCS 505/2Z (West 2006)). Count I also alleges a more

general claim of fraud under section 2 of the Consumer Fraud Act in that defendant prepared a "low-

ball" estimate to lure plaintiff into the transaction, intending to extract more money from plaintiff

after the car was disassembled. 815 ILCS 505/2 (West 2006). Plaintiff abandons his remaining

claims.

          We agree with plaintiff that the trial court committed reversible error in entering summary

judgment for defendant on count I. We reverse the judgment and remand the cause for proceedings

consistent with this opinion.

                                                FACTS

          Some facts are undisputed. When plaintiff purchased the car in 1989, it could not be driven.

Plaintiff initially contacted defendant in May 1998 to inquire about fixing it. In the spring of 1999,

Roger Merrill and Mike Furth, defendant's chairman and general manager, respectively, viewed the

car. Plaintiff told Merrill and Furth that he wanted the car to be "mechanically perfect" and

"wouldn't mind if it looked nice, too," but plaintiff also said that his budget was limited to $20,000

to $25,000.

          On May 12, 1999, defendant gave plaintiff a written estimate for the restoration project.

Defendant estimated the cost of parts and labor to be $35,000, with a notation that "all jobs [will be]



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ultimately billed as time, materials, labor + parts[;] estimates may change + or -." Plaintiff was to

make progress payments of $3,500 every two weeks. At his deposition, plaintiff testified that Furth

privately assured him that the project would not cost more than $35,000. However, plaintiff

admitted that he was informed "right up front" that defendant would charge labor costs at $42 per

hour.

        In September 1999, defendant took possession of the car. Plaintiff periodically went to the

shop to observe the progress, and he never objected to the quality of the workmanship. Plaintiff

made progress payments amounting to $33,500, but cost overruns caused the total bill to surpass the

$35,000 estimate.

        On August 3, 2000, defendant sent plaintiff a letter demanding a progress payment of $3,500

to be applied to the outstanding balance of $5,899. Defendant's letter stated that the work would

resume as soon as plaintiff made the progress payment but that plaintiff could take possession of the

car only if he paid the outstanding balance in full. Defendant wrote that "a worst case scenario for

completion of your vehicle would be in the $20,000 to $25,000 range." Defendant reported that 643

hours of labor charges had accrued and that "[t]he average for a total restoration is 900-1,000" hours.

        In early December 2000, plaintiff paid the outstanding balance of $5,899 and took possession

of the car. Plaintiff stored the car for several months before towing it to another shop, where the

project was completed. The new shop did not provide an estimate for finishing the project, but

plaintiff initially agreed to pay $26,500 for labor. Using a parts list provided by defendant, plaintiff

purchased all of the remaining parts himself for about $12,000. Plaintiff eventually paid the new

shop $31,416 for the labor, which meant that plaintiff spent an additional $43,416 to complete the

project after he reclaimed the car from defendant.



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       On January 7, 2004, plaintiff filed his third-amended complaint, in which he alleged that

defendant knowingly gave him a "grossly inadequate, 'low-ball' estimate" to induce plaintiff to hire

defendant for the restoration project. Plaintiff alleged that Merrill and Furth knew, before starting

the project, that the $35,000 estimate would not cover even the $42-per-hour labor costs, considering

the car's "rough" condition. Merrill and Further gave the "unrealistic" estimate to lure plaintiff into

the transaction, intending to extract more money once the car was disassembled. Plaintiff alleged

that he relied on defendant's expertise in the field as well as Furth's oral assurances that the amount

billed would not exceed the estimate.

       Based on the factual allegations, plaintiff claimed several violations of the Automotive

Repair Act and the Consumer Fraud Act. Section 2Z of the Consumer Fraud Act provides that

"[a]ny person who knowingly violates the Automotive Repair Act *** commits an unlawful practice

within the meaning of this Act." 815 ILCS 505/2Z (West 2006).

       If an automotive project falls within the scope of the Automotive Repair Act, the motor

vehicle repair facility must give the consumer 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. 815 ILCS 306/15(b),

20 (West 2006). Plaintiff alleges that the Automotive Repair Act applies in this case and that

defendant violated sections 15(b) and 20, among others.

       Section 10 of the Automotive Repair Act prescribes the types of repairs and repair facilities

that are governed by the statute's regulatory provisions. Section 10 defines various terms and

provides as follows:

               " 'Automotive repair' includes, but is not limited to:



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                       (1) All repairs to motor vehicles that are commonly performed in a motor

               vehicle repair facility by a motor vehicle technician, including the diagnosis,

               installation, exchange, or repair of mechanical or electrical parts or units for any

               vehicle, the performance of any electrical or mechanical adjustment to any vehicle,

o                                                                                                        r

               the performance of any service work required for routine maintenance or repair of any

               vehicle.   The term does not include commercial fleet repair or maintenance

               transactions involving 2 or more vehicles or ongoing service or maintenance contracts

               involving vehicles used primarily for business purposes.

                       (2) All repair work in motor vehicle repair facilities that perform one or more

               specialties within the automotive repair service industry, including, but not limited

t                                                  o                                                      ,

               refinishing, brake, electrical, exhaust repair or installation, front-end, radiators, tires,

               transmission, tune-up, and windshield. However, transactions involving the retail

               purchase of merchandise when a facility installs the merchandise as part of the

               transaction at the discretion of the customer for a firm price are not included. These

               transactions shall include but not be limited to tires, batteries, oil, and lube jobs.

               'Automotive repair facility' or 'motor vehicle repair facility' means any person, firm,

      association, or corporation that for compensation engages in the business of automotive

      repair or diagnosis, or both, of malfunctions of motor vehicles." 815 ILCS 306/10 (West

      2006).




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       The parties debated in the trial court, as they do on appeal, whether the Plymouth Roadrunner

project was an "automotive repair" and whether defendant qualifies as an "automotive repair facility"

or a "motor vehicle repair facility" under section 10 of the Automotive Repair Act. Plaintiff's

position is that the project was an "automotive repair" and that defendant qualifies as an "automotive

repair facility" or "motor vehicle repair facility," and, therefore, defendant's alleged noncompliance

with the regulatory provisions of the Automotive Repair Act entitles plaintiff to summary judgment.

Defendant, predictably, takes the opposite view.

       Several of plaintiff's claims were dismissed or withdrawn before the trial court entered the

May 30, 2007, order from which this appeal is taken. In the May 30, 2007, order, the court granted

defendant summary judgment on count I. The court agreed with defendant's position that "the

business of completely dismantling and restoring collector cars is not the type of 'automotive repairs'

that are covered by the [Automotive Repair] Act and that the defendant's business facility is not the

type of 'motor vehicle repair facility' or 'automotive repair facility' that is defined under the

[Automotive Repair] Act."

       The court held that "[t]here is a commonsense, qualitative distinction between a facility that

specializes in the restoration of unique, vintage automobiles and an automobile repair shop that does

everyday repairs on various makes and models of vehicles on a volume basis." The court also

emphasized evidence that the availability and prices of parts for vintage cars fluctuate, thereby

affecting the cost of a restoration project. The court opined that the Automotive Repair Act applies

only to "malfunctioning" vehicles and not to "non-functional" vehicles, like plaintiff's car.

       The court dismissed count I in its entirety, but the written ruling did not address plaintiff's

claim that defendant committed consumer fraud under section 2 of the Consumer Fraud Act.



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However, the court found that defendant was entitled to summary judgment on count II, which

alleged common-law fraud. As to count II, the court did "not believe that there is a genuine issue

of material fact as to whether there was any deception involved in the preparation of the original

estimate or the estimate of what the remaining restoration charges would be." The court noted that

the estimate that was on file showed that defendant would bill the actual cost of time and materials

rather than a set charge. Plaintiff's timely appeal followed.

                                             ANALYSIS

        On appeal, plaintiff argues that the trial court committed reversible error in granting

defendant summary judgment on count I of the third-amended complaint, which actually contains

two claims. First, plaintiff argues that the trial court erred in granting defendant summary judgment

on the claim filed under the Automotive Repair Act and section 2Z of the Consumer Fraud Act. In

his brief, plaintiff argued that he is entitled to summary judgment or, alternatively, to a trial on that

claim. However, during oral argument, plaintiff requested only that he be granted a trial on the claim

filed under the Automotive Repair Act.

        Second, plaintiff argues that a genuine issue of material fact precludes the entry of summary

judgment on his claim of consumer fraud under section 2 of the Consumer Fraud Act. Thus, plaintiff

argues that he is entitled to a trial on that claim as well. Plaintiff abandons his remaining claims by

failing to argue them here. See 210 Ill. 2d R. 341(h)(7) ("Points not argued [in the appellant's

opening brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition

for rehearing").

                                        A. Standard of Review




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       The purpose of a summary judgment proceeding is not to try an issue of fact but, rather, to

determine whether one exists. Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 311 (2007);

Ferguson v. McKenzie, 202 Ill. 2d 304, 307-08 (2001). Summary judgment is proper when "[t]he

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 2006); Outboard Marine Corp. v. Liberty Mutual

Insurance Co., 154 Ill. 2d 90, 102 (1992). Because summary judgment is a drastic measure, it should

be allowed only " 'when the right of the moving party is clear and free from doubt.' " Mydlach, 226

Ill. 2d at 311, quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).

       A trial court's entry of summary judgment is subject to de novo review. General Agents

Insurance Co. of America, Inc. v. Midwest Sporting Goods Co., 215 Ill. 2d 146, 153 (2005). When

reviewing the disposition of a summary judgment motion, this court construes all evidence strictly

against the movant and liberally in favor of the nonmoving party. Forsythe v. Clark USA, Inc., 224

Ill. 2d 274, 280 (2007). "If the undisputed material facts could lead reasonable observers to

divergent inferences, or where there is a dispute as to a material fact, summary judgment should be

denied and the issue decided by the trier of fact." Forsythe, 224 Ill. 2d at 280.

                                     B. Automotive Repair Act

       Plaintiff challenges the trial court's conclusion that the business of completely dismantling

and restoring collector automobiles, like the 1970 Plymouth Roadrunner, is not the type of

"automotive repair" that is covered by section 10 of the Automotive Repair Act. Plaintiff's brief

asserts that (1) the Automotive Repair Act applies to his restoration project; (2) there is no genuine

issue of material fact that defendant failed to comply with the Automotive Repair Act; and (3) if a



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factual question regarding compliance exists, summary judgment for defendant is inappropriate. The

trial court granted defendant summary judgment based on its belief that the Automotive Repair Act

does not apply, and, therefore, the court did not reach the second or third issue.

        To address plaintiff's argument, we must construe the Automotive Repair Act. Our review

is de novo. Illinois Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223, 229

(2008). The primary objective in interpreting a statute is to give effect to the intent of the legislature.

Harshman v. DePhillips, 218 Ill. 2d 482, 493 (2006). The most reliable indicator of the legislature's

intent is the language of the statute, which is given its plain, ordinary, and popularly understood

meaning. In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). "We read the statute as a

whole, considering all relevant parts." Harshman, 218 Ill. 2d at 493.

        Defendant argues that its business is not regulated by the Automotive Repair Act, because

it is not an "automotive repair facility" or "motor vehicle repair facility" as defined by section 10.

Section 10 uses the terms "automotive repair facility" and "motor vehicle repair facility"

interchangeably. The section provides, in relevant part, as follows:

                 " 'Automotive repair facility' or 'motor vehicle repair facility' means any person, firm,

        association, or corporation that for compensation engages in the business of automotive

        repair or diagnosis, or both, of malfunctions of motor vehicles." 815 ILCS 306/10 (West

        2006).

        Defendant does not dispute that it is a "firm, association, or corporation" that services cars

for compensation. However, defendant argues that it engages in "the complete dismantling and

ultimate restoration of vintage motor vehicles," and, therefore, it is not in the business of




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"automotive repair or diagnosis, or both, of malfunctions of motor vehicles." 815 ILCS 306/10

(West 2006). We disagree.

                                       1. "Automotive Repair"

       We conclude that the term "automotive repair" encompasses the restoration of a vintage car

to or near its original state. Section 10 of the Automotive Repair Act defines "automotive repair"

as follows:

       " 'Automotive repair' includes, but is not limited to:

                       (1) All repairs to motor vehicles that are commonly performed in a motor

               vehicle repair facility by a motor vehicle technician, including the diagnosis,

               installation, exchange, or repair of mechanical or electrical parts or units for any

               vehicle, the performance of any electrical or mechanical adjustment to any vehicle,

o                                                                                                         r

               the performance of any service work required for routine maintenance or repair of any

               vehicle.   The term does not include commercial fleet repair or maintenance

               transactions involving 2 or more vehicles or ongoing service or maintenance contracts

               involving vehicles used primarily for business purposes.

                       (2) All repair work in motor vehicle repair facilities that perform one or more

               specialties within the automotive repair service industry, including, but not limited

t                                                  o                                                      ,

               refinishing, brake, electrical, exhaust repair or installation, front-end, radiators, tires,

               transmission, tune-up, and windshield. However, transactions involving the retail

               purchase of merchandise when a facility installs the merchandise as part of the



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No. 2--07--0661


                  transaction at the discretion of the customer for a firm price are not included. These

                  transactions shall include but not be limited to tires, batteries, oil, and lube jobs." 815

                  ILCS 306/10 (West 2006).

        The General Assembly's use of the broad phrases "all repairs" and "all repair work" in

defining "automotive repairs" leads us to conclude that vintage car restoration projects are included

in the definition in section 10. Our conclusion is supported by several guides of statutory

interpretation.

        When determining the plain and ordinary meaning of words, a court may look to the

dictionary (Madison Mutual Insurance Co. v. Kessler, 376 Ill. App. 3d 1121, 1128 (2007)), and so

we compare the meanings of "repair" and "restore." Webster's dictionary defines "repair" as "to

restore by replacing a part or putting together what is torn or broken" and "to restore to a sound or

healthy state." (Emphasis added.) Webster's Third New International Dictionary 1923 (1986).

Webster's dictionary similarly defines "restore" as "to bring back to or put back into a former or

original state" and "to repair and alter (a building) with the aim of putting back into the original

form." (Emphasis added.) Webster's Third New International Dictionary 1936 (1986). Thus, the

plain, ordinary, and popularly understood meanings of "repair" and "restore" show that the terms are

essentially synonymous.

        Defendant points out that the examples of "automotive repairs" in section 10 include "the

diagnosis, installation, exchange, or repair of mechanical or electrical parts or units for any vehicle,

the performance of any electrical or mechanical adjustment to any vehicle, or the performance of any

service work required for routine maintenance or repair of any vehicle." 815 ILCS 306/10 (West




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2006). Defendant argues that these services differ from its practice of "the complete dismantling and

restoration of an entire vehicle." We view the distinction as strained, at best.

       For instance, the Automotive Repair Act specifically contemplates the complete dismantling

of a vehicle, regardless of its age or state of disrepair. Section 15, which prescribes mandatory

disclosures to the consumer, provides that, "[i]f it is necessary to disassemble, or partially

disassemble, a vehicle or vehicle component in order to provide the consumer with a written estimate

for required repair or maintenance, the estimate shall show the cost of any disassembly or

reassembly, or both, if the consumer elects not to proceed with the repair or maintenance of the

vehicle." 815 ILCS 306/15(b)(4) (West 2006). Thus, section 15 requires an estimate to disclose

disassembly costs when the diagnosis requires that the entire car be taken apart, which is precisely

what defendant does in performing its service. Furthermore, defendant's written estimate stated that

defendant would address the "engine, trans[mission], drive train, interior, body," and would "detail

and color all items correctly, replace + restore all trim." One can hardly imagine how these tasks do

not amount to "automotive repair."

       Our interpretation is further supported by the exclusion of various types of repairs from the

definition of "automotive repair." First, section 10(1) provides that "[t]he term does not include

commercial fleet repair or maintenance transactions involving 2 or more vehicles or ongoing service

or maintenance contracts involving vehicles used primarily for business purposes." 815 ILCS

306/10(1) (West 2006). Second, section 10(2) excludes "transactions involving the retail purchase

of merchandise when a facility installs the merchandise as part of the transaction at the discretion

of the customer for a firm price," such as transactions involving tires, batteries, oil, and lube jobs.

815 ILCS 306/10(2) (West 2006). Third, section 83 provides that the Automotive Repair Act "does



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not apply to automotive collision and body repair facilities as defined in the Automotive Collision

Repair Act [(815 ILCS 308/1 et seq. (West 2006))]." 815 ILCS 306/83 (West 2006).

       These provisions show that the General Assembly considered different types of repair

projects and intended that the Automotive Repair Act would not apply to fleets, business vehicles,

the installation of certain small merchandise, and statutorily defined collision repairs. The General

Assembly had the opportunity to exclude vintage car restoration projects and declined to do so.

       Defendant next argues that, because it provides a type of "one-stop-shopping" for an entire

vehicle restoration, it is not a "specialist" in the automotive repair service industry as that term is

used in section 10. However, section 10 specifically states that "automotive repair" includes "all

repair work in motor vehicle repair facilities that perform one or more specialities." (Emphasis

added.) 815 ILCS 306/10 (West 2006). The "one or more specialties" provision of section 10 shows

that the General Assembly intended that the Automotive Repair Act should apply to facilities even

if their breadth of services is quantitatively different. Defendant's position that its business should

be excluded as qualitatively unique is undermined by the absence of any provision suggesting that

meticulously performed services are not "automotive repairs." Defendant does not escape the

application of the Automotive Repair Act simply because it performs more than one specialty within

the field and performs these services meticulously.

       In fact, a review of section 5 shows why an automotive repair facility like defendant, which

provides a broad spectrum of services, should be governed by the Automotive Repair Act. Section

5 provides as follows:

               "The automotive repair industry supports good communication between motor

       vehicle repair facilities and their customers. The General Assembly recognizes that



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        improved communications and accurate representations between automotive repair facilities

        and their customers will increase consumer confidence, reduce the likelihood of disputes

        arising, and promote fair and nondeceptive practices, thereby enhancing the safety and

        reliability of motor vehicles serviced by motor vehicle repair facilities in the State of

        Illinois." 815 ILCS 306/5 (West 2006).

        A complete vehicle restoration project is generally much more complex and expensive than

a garden-variety car repair. Often, a consumer seeking a restoration insists on meticulous attention

to detail and is willing to pay handsomely for it. The increased complexity and expense inherent in

these projects creates an even greater need for good communication and accurate representations

between automotive repair facilities and their customers. In other words, the bigger the project, the

greater the interest in reducing the likelihood of disputes and in promoting fair and nondeceptive

practices.

        The General Assembly recognized that smaller transactions do not compel regulation. As

mentioned, section 10 excludes "transactions involving the retail purchase of merchandise when a

facility installs the merchandise as part of the transaction at the discretion of the customer for a firm

price," such as those involving tires, batteries, oil, and lube jobs. 815 ILCS 306/10 (West 2006).

Adopting defendant's position would lead to an absurd result: a consumer seeking a new muffler

would be protected by the statute, while a consumer like plaintiff seeking the complete restoration

of a rare vehicle would be left unprotected.

        Defendant also takes the unseemly tack of trivializing plaintiff's interest in his car. Noting

that plaintiff had "the goal of driving [the Plymouth Roadrunner] as a second car, for fun," defendant

argues that "the ordinary consumer relies upon his or her car to assist in meeting basic needs" and



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that "[i]t is not necessary for an ordinary consumer to have a suped-up vintage hot rod to meet the

needs of his or her family." Defendant implies that a consumer like plaintiff who uses his vehicle

for recreation is somehow less worthy of consumer protection than a person who uses his vehicle

for basic transportation. The General Assembly never intended value judgments when it enacted the

Automotive Repair Act, and we will not create an artificial distinction here. See In re Marriage of

Beyer, 324 Ill. App. 3d 305, 309-10 (2001) (a court may not supply omissions, remedy defects,

substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the

law so as to depart from the plain meaning of the statutory language).

        Defendant advocates the trial court's opinion that the availability and prices of parts for

vintage cars can fluctuate, thereby affecting the cost of a restoration project and making it difficult

to estimate the cost. According to defendant, the difficulty in estimating these uncertain costs makes

it unfair to apply the Automotive Repair Act to the restoration of vintage cars. However, the General

Assembly contemplated this contingency in section 25, which provides that, "[i]f it is determined

that the estimated price is insufficient because of unforeseen circumstances, the consumer's consent

must be obtained before the work estimated is done or parts estimated are supplied." 815 ILCS

306/25 (West 2006). The unavailability of parts or special tools is precisely the type of "unforeseen

circumstance" that would require an automotive repair facility to consult with the consumer before

increasing the bill.

                                2. "Malfunctions of Motor Vehicles"

        Next, we disagree with defendant's position that the services it performed did not address

"malfunctions" of plaintiff's motor vehicle. Emphasizing that the car could not be driven when the

project began, defendant echoes the trial court's distinction between "malfunctioning" vehicles and



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"non-functioning" vehicles. Defendant suggests that only malfunctioning vehicles are governed by

the Automotive Repair Act because section 10 declares that an "[a]utomotive repair facility" and a

"motor vehicle repair facility" engage in the business of "automotive repair or diagnosis, or both, of

malfunctions of motor vehicles." (Emphasis added.) 815 ILCS 306/10 (West 2006).

        A review of the plain, ordinary, popularly understood meanings of "malfunction" and

"nonfunctional" shows that the terms are indistinguishable for purposes of section 10. Webster's

dictionary defines the term "malfunction" as "to function badly or imperfectly" or "fail to operate in

the normal or usual manner." Webster's Third New International Dictionary 1367 (1986). Webster's

dictionary similarly defines "nonfunctional" as "not performing or able to perform its regular

function." Webster's Third New International Dictionary 1537 (1986).

        Plaintiff persuasively argues that any distinction between "malfunctioning" and

"nonfunctional" vehicles would lead to an absurd and arbitrary result. If nonfunctional vehicles were

excluded from the types governed by the Automotive Repair Act, any car--regardless of year, make,

or model--would not be covered if it had to be towed to the repair shop. Conversely, any car that

could be driven would be covered. Certainly the General Assembly did not intend such an arbitrary

distinction.

        Defendant argues that its business activities are to "take old collector cars and completely

rebuild and reconstruct them to their original--or better than original ('suped-up')--form." Defendant

hints at an interesting issue: whether an automotive project that improves a car--rather than simply

repairs or restores it to its original condition--is an "automotive repair" under section 10. One could

conceive of a project that replaces functioning equipment with aftermarket merchandise to transform

a car into something that the vehicle's manufacturer did not intend. Depending on the project, one



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could argue that such a transformation does not qualify as an "automotive repair" under section 10.

However, other than a vague reference to making plaintiff's car "better than new," there is no

evidence that the Plymouth Roadrunner project involved "suping up" the car to anything beyond its

original state. Thus, we need not comment on the issue of improvements here.

                          3. Factual Issue Precluding Summary Judgment

       The trial court's decision that the Automotive Repair Act does not apply to plaintiff's vintage

car restoration project obviated the need for the court to address plaintiff's argument that defendant

failed to comply with the disclosure provision of section 15, the notice provision of section 20, the

authorization provision of section 30, and the lien provision of section 75 of the Automotive Repair

Act. Section 80(10) of the Automotive Repair Act provides that noncompliance with these sections

is unlawful, and section 2Z of the Consumer Fraud Act provides that "[a]ny person who knowingly

violates the Automotive Repair Act *** commits an unlawful practice within the meaning of this

Act." 815 ILCS 505/2Z (West 2006).

       In his brief, plaintiff does not take a firm position on whether he should receive summary

judgment or a trial on the merits. Plaintiff argues that "the trial court committed reversible error in

granting defendant's motion for summary judgment and denying plaintiff's motion for partial

summary judgment." This statement is construed most accurately as a request for a remand for the

entry of summary judgment for plaintiff. Such an interpretation is consistent with the conclusion

section of plaintiff's reply brief, which argues that the trial court erred "in denying [plaintiff's]

Motion for Summary Judgment." However, during oral argument, plaintiff argued that a trial on the

merits is the proper remedy for the erroneous summary judgment entered for defendant, and

therefore, we need not consider whether plaintiff is entitled to summary judgment.



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                                        C. Consumer Fraud Act

        Plaintiff also argues that the existence of a factual issue precludes the entry of summary

judgment on the second part of count I, in which he alleged a violation of section 2 of the Consumer

Fraud Act. Section 2 provides as follows:

                "[U]nfair or deceptive acts or practices, including but not limited to the use or

        employment of any deception, fraud, false pretense, false promise, misrepresentation or the

        concealment, suppression or omission of any material fact, with intent that others rely upon

        the concealment, suppression or omission of such material fact *** are hereby declared

        unlawful whether any person has in fact been misled, deceived or damaged thereby." 815

        ILCS 505/2 (West 2006).

        To establish a violation of the Consumer Fraud Act, a plaintiff must prove "(1) a deceptive

act or practice, (2) intent on the defendant['s] part that plaintiff rely on the deception, and (3) that the

deception occurred in the course of conduct involving trade or commerce." Siegel v. Levy

Organization Development Co., 153 Ill. 2d 534, 542 (1992). Plaintiff alleges that defendant's "low-

ball" estimate of the project's cost was a deceptive act occurring in the course of business, which was

intended to lure plaintiff into the transaction. Plaintiff alleges that defendant used a "bait-and-

switch" tactic whereby defendant would disassemble the car, complete some repairs, and then extract

more money from plaintiff when it would be very inconvenient and expensive to discontinue the

project.

        In granting defendant summary judgment on count I, the trial court did not comment on the

claim filed under section 2 of the Consumer Fraud Act. However, the trial court granted defendant

summary judgment on plaintiff's common-law fraud claim, opining that it did "not believe that there



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is a genuine issue of material fact as to whether there was any deception involved in the preparation

of the original estimate or the estimate of what the remaining restoration charges would be."

       Plaintiff stated in his affidavit that he would have objected to the estimate if he had known

the project would require 900 to 1,000 hours of labor billed at $42 per hour, which would cost at

least $37,800, without accounting for the parts. Plaintiff also asserted that Furth made multiple oral

assurances that the project would stay below the estimated cost.

       The court's conclusion that there was no deception is faulty because it is essentially a

credibility determination that disregards the evidence favorable to plaintiff. See SBC Holdings, Inc.

v. Travelers Casualty & Surety Co., 374 Ill. App. 3d 1, 8 (2007) (" 'Summary judgment is appropriate

where the pleadings, depositions, admissions, and affidavits on file, when taken together in the light

most favorable to the nonmovant, show that there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law' [Citation]"). While defendant might ultimately prevail on

the claim under section 2 of the Consumer Fraud Act, plaintiff's claim should not be decided in

summary judgment proceedings.

                                          CONCLUSION

       First, we hold that the Automotive Repair Act governs plaintiff's project to restore his vintage

collector car. The plain, ordinary, popularly understood meaning of the statutory language indicates

the General Assembly's intent to protect consumers obtaining "automobile repairs," regardless of the

complexity or expense of the project. Second, we hold that a genuine issue of material fact regarding

the parties' dealings also precludes summary judgment on the claim under section 2 of the Consumer

Fraud Act.




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       At oral argument, plaintiff took the position that the proper remedy is a trial on the merits of

count I. Defendant argues that, if the Automotive Repair Act applies, any violation was de minimis,

and therefore not actionable. On remand, the trial court will have the opportunity to sort out these

issues and parse the multiple claims contained in count I.

       For the preceding reasons, the judgment of the circuit court of Winnebago County is

reversed, and the cause is remanded for proceedings consistent with this opinion.

       Reversed and remanded.

       McLAREN and BOWMAN, JJ., concur.




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