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Saturday, February 29, 2020

Move to develop class action over $25 vehicle registration fee fails as appeals panel affirms lower court decision

State Court

By John Breslin | Oct 1, 2019

Boiemug
Boie

MT. VERNON - An attempt to develop a class action over how a vehicle registration fee was included in purchase documents has failed after an appeals court affirmed a lower court's decision to throw out the action.

The case centered on how St. Clair Nissan dealership in O'Fallon listed a $25 electronic registration and title (ERT) fee on the documents.

Plaintff Phyllis Robinson-Combs, represented by Wood River attorney Thomas Maag, claimed violations of unjustment enrichment and consumer fraud statutes on behalf of herself an others in the same position against St. Clair Nissan following her purchase of a 2010 Dodge in October 2016. Her initial complaint also alleged mechanical problems.

The dispute was over whether the actions of the dealership - its failure to list the fee so that stood out from the rest of the purchase documents - rose to the level of consumer fraud or unjust enrichment

The Fifth District Appellate Court, with Justice Mark Boie delivering the judgment and Justices David Overstreet and John Barberis concurring, found that they did not and affirmed the dismissal of the action by St. Clair County Circuit Judge Stephen P. McGlynn.

In his judgment, Boie detailed the background in the action, including that the plaintiff bought the vehicle on the understanding that it was “operational, in good condition, and covered by a 'full’ warranty.”

According to the plaintiff, the vehicle, over the next 30 days, began to develop mechanical problems. She returned the vehicle and asked for a refund, but this was refused.

It was then the plaintiff took a closer look at the purchase documents, and noticed the listing for the $25 "Optional ERT Fee." She had signed the document.

On Dec. 9, 2016, Robinson-Combs filed a four count action claiming damages personally for beach of warranty and, in connection with the ERT fee, on behalf of herself and others, a class action, which at no point was certified. She claimed the dealership "crammed" the fee notice into the document, which did not allow her to decline to pay.

Regarding Rbinson-Combs' individual claims, Boie wrote, "Plaintiff has failed to provide this court with any articulated legal argument supported by citation to pertinent authority concerning that portion of the circuit court’s order finding" that the statute governing the ERT fee "does not provide a private right of action."

"As such, we find that plaintiff has forfeited this issue on appeal," he added.

Under the statute, it does state that "Optional ERT Fee" shall be "distinguished from other language with the use of bold, colored, italic or underscored type or by using a larger font."

"Because the defendant did not disclose the ERT fee in compliance with...(the code)... plaintiff argues that customers were not aware that the fee could be refused," according to the appeals court judgment.

Boie added, "Plaintiff does not allege that defendant failed to disclose the ERT fee or that defendant failed to provide the services for which the ERT fee was charged," Further, the court stated, it is not alleged she was charged an excess amount.

There also was "nothing to indicate" that Robinson-Combs was not allowed to review the document prior to signing.

The appeals court could not "determine that a fee, charged for services that were performed, and that was disclosed as optional on a written document signed by the plaintiff prior to the performance of the service, is a benefit unjustly retained by defendant."

On the consumer fraud complaint, accusing the defendant of acting deceptively, the court, affirming McGlynn, found that the Robinson-Combs was informed in writing of the fee, it was listed as optional, and the document was signed by the plaintiff.

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