Kim v. Mercedes-Benz, U.S.A., Inc. (353 Ill. App. 3d 444, 2004)

JUSTICE QUINN

delivered the opinion of the court:

Plaintiff, Jung Kim, brought this breach of warranty action against defendant, Mercedes-Benz, USA, Inc. (Mercedes-Benz), to revoke acceptance of a 1999 model-year Mercedes-Benz ML 320 (ML 320) sport-utility vehicle that he purchased from a dealership on October 29, 1998. The circuit court granted defendant’s directed verdict motion, from which judgment plaintiff appeals.

BACKGROUND

Plaintiff purchased the subject ML 320 from Mark Motors, Inc., a Mercedes-Benz dealership, for an amount totaling $45,327. Defendant’s written “Basic Warranty” for the ML 320 provided coverage for either a 4-year period or 50,000 miles of service, in which the dealer would “repair any defective parts in accordance with the terms of such warranties within the stated limits.” Defendant’s limited warranty states:

“Mercedes-Benz of North America, Inc. (MBNA) warrants to the original and each subsequent owner of a new Mercedes-Benz truck that any authorized Mercedes-Benz truck dealer will make any repairs or replacements necessary, to correct defects in material or workmanship. This warranty includes any accessory or equipment thereon manufactured or supplied by Daimler-Benz A.G., Mercedes-Benz U.S. International, Inc. (MBUSI), Mercedes-Benz Services International, Inc. (MBSI), or MBNA.”

Defendant’s warranty documents also provide that “[t]he implied warranties of merchantability and fitness for a particular purpose are limited to 48 months or 50,000 miles from the date of initial operation, whichever event shall first occur.”

On October 11, 2000, plaintiff filed a three-count complaint in which he alleged that, as a result of the ineffective repair attempts made by defendant and Mark Motors, the ML 320 could not be utilized for personal, family and household use as intended by plaintiff at the time of acquisition. Plaintiff alleged that, after he took possession of the vehicle on December 18, 1998, he began to experience various defects that substantially impaired the use, value and/or safety of the ML 320. Specifically, plaintiff averred that Mark Motors and/or an authorized Mercedes-Benz service dealer failed on five attempts to repair a fuel gauge that did not register the correct amount of gas in the vehicle’s fuel tank. According to plaintiff, these defects and others violated the implied warranty of merchantability and the express written warranties issued by defendant for the ML 320, as alleged in counts I and II of the complaint. Plaintiff alleged revocation of the acceptance of the ML 320 in count III.

On December 22, 2000, plaintiff responded to defendant’s opinion witness interrogatories, in which he stated, “[pRaintiff has not yet retained the services of an opinion witness, but reserves the right to do so in the future.” On January 16, 2001, plaintiff answered defendant’s first set of interrogatories, wherein he did not list himself as a fact or opinion witness. A July 10, 2001, letter addressed to defense counsel from plaintiff’s attorney stated that “Plaintiff will testify at arbitration and/or trial about the matters alleged in Plaintiff’s complaint and all documents produced to Defendant by Plaintiff during the course of discovery.”

At the commencement of trial on April 28, 2003, defendant moved in limine to bar plaintiff from calling any fact or opinion witness not properly disclosed pursuant to Supreme Court Rule 213 (177 Ill. 2d R. 213). Defendant argued that it would be prejudiced severely if plaintiff were allowed to present undisclosed fact or opinion witness testimony because defendant did not have an opportunity to respond to the testimony of any witnesses other than those properly disclosed by plaintiff. The circuit court granted defendant’s motion in limine without objection.

Plaintiff testified on direct examination at trial that, prior to purchasing the vehicle, he test-drove it and noticed no problems. Plaintiff bought the ML 320 because, at that time, it was being advertised heavily as an excellent vehicle and Mercedes-Benz had the best reputation as an automobile manufacturer.

Plaintiff testified that Mrs. Kim was the primary driver of the ML 320 and that she utilized the vehicle to commute to work, driving 100 miles per day. Although plaintiff did not remember the exact date problems began to occur, he stated that four to five months after he purchased the ML 320, Mrs. Kim informed him that when she filled up the vehicle’s fuel tank, the fuel gauge would not register the correct amount of fuel. Plaintiff noticed that the fuel gauge did not move after it reached the one-quarter gauge mark, even though the vehicle was filled completely with fuel. Plaintiff took the ML 320 to Mark Motors to fix the problem, but it reoccurred several months later. Plaintiff testified that he experienced the problem five or six times.

Plaintiff also described additional problems regarding different parts of the vehicle that required repair. He stated that, during the winter, the window would not roll up and that there was excess noise from the shifter. The window was out of order three times, the seat belt malfunctioned and the electric charger was not working. Plaintiff stated that either he or his wife brought the vehicle to Mark Motors for routine maintenance, such as oil changes, and that he bought the highest grade-level fuel.

Previously, plaintiff purchased three new cars and two used cars from dealerships. Before buying the cars, plaintiff researched prices to determine a fair price. Plaintiff’s counsel then inquired, “[Biased upon the problems you’ve experienced with the ML-320, what would you have agreed to pay for this vehicle had you known the problems?” Defense counsel objected to this line of questioning, upon which a sidebar was held outside the presence of the jury.

Defense counsel argued that plaintiff “at no time during the course of discovery disclosed that [he] would be providing valuation testimony to this court or to this jury” and that the valuation testimony amounted to an opinion. Defense counsel reminded the circuit court that it granted a motion in limine to exclude evidence of damages not disclosed. Defense counsel also asserted that plaintiff failed to lay a proper foundation that would allow him to testify “that this vehicle at the time he bought it back in 1998 had a value of X dollars.” Defense counsel noted there was no evidence to show that, based upon the fact plaintiff tried to obtain a discount when he purchased the vehicle, he could testify that the vehicle was worth less than what he paid for it.

Plaintiffs attorney responded that Illinois authority supports that an owner of a product is competent to testify about the diminished value of a vehicle pursuant to the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (15 U.S.C. § 2301 et seq. (2000)). Plaintiffs attorney further argued that “the new Rule 213 was much more lenient” and that “[w]e have disclosed that [plaintiff] will be testifying about all of the problems and the defects and, et cetera, with the vehicle.” Plaintiffs attorney also stated that plaintiff was not tendered as an expert, but that he was disclosed as testifying regarding any matters as alleged in his complaint.

The circuit court sustained defendant’s objection, finding that no foundation was laid demonstrating plaintiff was a competent witness to testify as to the diminished value of the vehicle and that plaintiffs testimony had not been disclosed. The court stated that plaintiff could testify as to “what his state of mind was or what his feelings were in terms of what it is that he would pay for the vehicle,” which was separate from testifying as to the value of the vehicle. The court also questioned plaintiffs attorney regarding the relevancy of plaintiff’s testimony with respect to what plaintiff would have paid for the vehicle. Plaintiff’s attorney responded that “we have to show that [plaintiff], because of the defects and because of the problems he had, he would have paid less for the vehicle. If he’s going to testify he would have paid less for the vehicle, that’s right on point.” The court again sustained defendant’s objection.

Plaintiff also testified regarding his claim for aggravation and inconvenience. He explained that, after buying the best-rated car in the world and paying so much money, he kept experiencing numerous problems. He stated that his family could no longer depend on the vehicle and that he could not drive the vehicle to Florida or New York with his family, as he had planned.

On cross-examination, plaintiff testified that each time he tendered the vehicle for repairs, Mark Motors provided him with a loaner vehicle free of charge. Plaintiff clarified that the fuel gauge reflected fuel filled to three quarters of a tank rather than one quarter. After plaintiff filed his complaint, he never brought the vehicle to the dealership for repairs to the fuel gauge. Plaintiff testified that, at the time of trial, the ML 320 had been driven 90,000 miles and that he and his wife continued to drive the vehicle.

Following plaintiffs testimony, plaintiff moved for mistrial, based on the circuit court’s refusal to allow him to testify “as to the value of the vehicle or the diminished value of the vehicle” pursuant to Illinois authority establishing that an expert is not required to prove diminished value and that the owner of a product is competent to testify on that subject. The court denied plaintiffs motion, finding that there was no foundation laid. Plaintiffs attorney then acknowledged that, based upon the court’s ruling, plaintiff was precluded from proving the damages element in this case. The court responded that plaintiffs counsel could recall plaintiff and lay a foundation as to his qualifications to testify as to the value of the vehicle, to which plaintiffs counsel replied, “we have no other foundation to lay other than [plaintiffs] familiarity with the value of vehicles based on his experience in purchasing vehicles.”

Plaintiff was recalled to testify regarding certain exhibits demonstrating Mark Motors’ repair work on the ML 320. A March 16, 1999, invoice showed that, at 4,860 miles, a nick on the left rear door was repaired and the vehicle was inspected for brake vibration or noise. Plaintiff clarified that the nick on the door was not an actual problem that he experienced with the vehicle. On June 15, 1999, Mark Motors replaced a fuse for an auxiliary light. A July 15, 1999, invoice showed that, at 12,579 miles, the fuel gauge did not function and a rattling noise emitted from the shifter when idling the vehicle. On August 11, 1999, Mark Motors replaced the transmission shifter. An August 18, 1999, invoice reflected that the right rear taillight was not as bright as the left rear taillight. The invoice also noted that the fuel gauge did not function correctly, which Mark Motors corrected by replacing the fuel level sensor. Plaintiff brought the ML 320 to Mark Motors on February 8, 2000, because the seat belts were not staking properly and the battery light was illuminated. On March 21, 2000, at 28,498 miles, a switch failure occurred in the driver’s side window, the left rear door pillar post cover was peeling and the right seat belt needed to be replaced. Mark Motors again replaced the fuel level sensor on March 31, 2000, and repaired peeling and bubbling in the adhesive trim on both rear doors. Finally, on April 19, 2000, to repair bubbles in the vinyl inset of the left rear door B pillar cover, Mark Motors replaced a decal and removed the bubbles. In each of the above-described repairs, plaintiff was not charged any costs because the alleged defects were covered by the warranty and, on four occasions, Mrs. Kim was provided with alternate transportation free of charge. Plaintiff testified that, although he did not remember the last repair date, the fuel gauge problem was fixed and did not recur.

The following colloquy then ensued between plaintiff and his attorney:

“Q. Now, you testified yesterday, sir, that you had not — you would not have purchased the vehicle had you known of the problems; correct?

A. Correct.

Q. That being said, sir, based upon the problems that you have discussed today and the problems that your wife discussed today, along with your testimony yesterday in regard to the vehicles you purchased in the past, what would you have agreed to pay for this vehicle had you known of the problems on the date of purchase?”

Defense counsel objected to this line of questioning and a sidebar followed. The circuit court questioned plaintiff’s attorney regarding the relevancy of the witness’s state of mind and the subjective nature of plaintiffs testimony as to what he would have paid for the vehicle. Plaintiffs attorney responded, “[w]e believe that [it] is relevant for the diminished value or at least the value of the vehicle as a result of the problems he experienced.” Plaintiffs counsel admitted, however, that plaintiff did not understand what diminished value meant. The court then noted no foundation was laid as to this testimony and stated, “as to the relevancy, I don’t see the relevancy of that particular question.” The court sustained defendant’s objection.

Following plaintiff’s testimony, defendant moved for a directed verdict, arguing that plaintiff failed to establish the existence of a defect in the vehicle and damages as a result of any breach of warranty. According to defendant, plaintiff presented no evidence of the value of the vehicle as warranted or the value of the vehicle on the date of the breach. In addition, defendant asserted that there was no evidence of incidental or consequential damages.

Plaintiff responded that circumstantial evidence established that the ML 320 was defective. Plaintiff also argued that the circuit court erred by precluding him from testifying as to the diminished value of the vehicle, which prevented him from proving the damages element. Further, plaintiff averred that a proper foundation for his damages testimony was laid because “he is somewhat familiar with the value of vehicles.”

The circuit court granted defendant’s directed verdict motion, finding that plaintiff had failed to establish damages in his breach of warranty and revocation of acceptance claims. Plaintiff appeals the court’s decision to grant defendant’s directed motion verdict as to his breach of warranty claims; however, he does not challenge the court’s findings with respect to his revocation of acceptance claim.

ANALYSIS

Prior to considering the merits of the instant case, this court must first address defendant’s argument that plaintiff waived his right to appellate review. Defendant asserts that plaintiffs counsel failed to make an offer of proof regarding the diminished value of the vehicle. Plaintiff responds that he was not required to make a specific offer of proof because the nature and substance of the evidence was obvious.

“A party claiming he has not been given the opportunity to prove his case must provide a reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966 (2002). An adequate offer of proof apprises the circuit court of what the offered evidence is or what the expected testimony will be, by whom it will be presented and its purpose. Romanowski, 329 Ill. App. 3d at 773. Pertinent to this case, the purpose of an offer of proof is to disclose to the circuit court and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether the exclusion of the evidence was proper. Turgeon v. Commonwealth Edison Co., 258 Ill. App. 3d 234, 241, 630 N.E.2d 1318 (1994); see also People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126 (1992).

Our supreme court has set forth the basic principles regarding the adequacy of offers of proof, stating:

“An offer of proof that merely summarizes the witness’ testimony in a conclusory manner is inadequate. [Citation.] Neither will the unsupported speculation of counsel as to what the witness would say suffice. [Citation.] Rather, in making the offer of proof, counsel must explicitly state what the excluded testimony would reveal and may not merely allude to what might be divulged by the testimony. [Citation.] The offer serves no purpose if it does not demonstrate, both to the [circuit] court and to reviewing courts, the admissibility of the testimony which was foreclosed by the sustained objection.” Andrews, 146 Ill. 2d at 421.

The failure to make an offer of proof results in a waiver of review of whether the evidence was excluded improperly. Romanowski, 329 Ill. App. 3d at 773.

Here, the record shows that plaintiffs counsel twice attempted to question plaintiff regarding the amount he would have paid for the vehicle at the time he originally purchased it, considering the number of repairs that were made afterward. The record also shows that plaintiffs counsel consistently pursued this line of questioning for the purpose of establishing the diminished value of the ML 320. Significantly, however, other than claiming that he was going to proffer evidence of the diminished value of the vehicle, plaintiffs counsel never actually proffered any evidence of the diminished value of the vehicle. Plaintiffs counsel never explicitly stated what the excluded testimony would reveal. In fact, the record clearly establishes that plaintiff had absolutely no understanding of the concept of diminished value. Therefore, despite plaintiffs claims to the contrary, it is neither clear nor obvious from the record what plaintiff would have answered, what the basis for his answer would have been or what purpose his answer would have served. See Moore v. Swoboda, 213 Ill. App. 3d 217, 237-38, 571 N.E.2d 1056 (1991). Further, plaintiffs reliance upon Wright v. Stokes, 167 Ill. App. 3d 887, 891, 522 N.E.2d (1988), in support of his argument that a formal offer of proof is unnecessary due to the obvious nature and substance of the proposed testimony is misplaced in light of the supreme court’s more recent guidelines for offers of proof, as delineated in Andrews, and where, as here, both the circuit court and opposing counsel disputed plaintiff’s counsel’s remarks. Accordingly, plaintiff has waived his challenge to the exclusion of his proposed testimony.

Notwithstanding waiver, defendant argues that the circuit court properly excluded plaintiff’s testimony as to what he would have agreed to p