Appellate Law

Car Dealership Waives Fraud Argument Because Of Insufficient Record

By Steven R. Merican

Traci Hanson-Suminski bought a Honda from Rohrman Midwest Motors. The car salesman told Traci that the car had not been in an accident. Traci found out otherwise when she tried to sell the car.

Unable to reach a satisfactory agreement with the Rohrman, Traci sued for common law fraud and under the Illinois Consumer Fraud and Deceptive Business Practices Act. A jury gave Traci a favorable verdict for the common law fraud action. The court, without the jury, gave Traci a favorable verdict under the Consumer Fraud Act. Rohrman appealed.

One of Rohrman?s issues was that the common law fraud action was against the manifest weight of the evidence. Traci argued that Rohrman waived the argument for appeal because the dealership did not file a motion in the trial court attacking the common law verdict. Rohrman argued that it ?clearly attacked the sufficiency of the common law fraud judgment and asked for a judgment not withstanding the verdict on the common law fraud claim? in other pleadings in the trial and appellate courts, including a response to Traci?s motion to strike the appeal.

But Rohrman?s assertions were not supported by the appellate record, which, as the party appealing, it was responsible to file. So the First District Illinois Appellate Court sided with Traci and ruled that Rohrman had waived the argument of insufficient evidence on the common law fraud claim.

After a thorough review of the record, however, we have found no indication that plaintiff [Traci] filed a motion to strike this appeal or a response from defendant [Rohrman] to that motion to strike. Furthermore, defendant failed to include such documents in the appendix to its brief and did not cite to these documents within its reply brief. Because ?an appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error.? We find that defendant, as appellant, has failed to meet his burden.

Read the whole case, Hanson-Suminski v. Rohrman Midwest Motors, Inc., No. 1-07-0755 (11/7/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 07, 2009 (boomark / email).