SECOND DIVISION 

									July 16, 2002

No. 1-00-2212

JOANNE VALENTI, 

		Plaintiff-Appellant,

	v.

MITSUBISHI MOTOR SALES OF AMERICA, INC., 

		Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County

No. 97 L 10638

Honorable

Glynn J. Elliott, Jr.,

Judge Presiding.

	JUSTICE CAHILL delivered the opinion of the court:

	Plaintiff appeals a grant of summary judgment for defendant on her breach of express and

implied warranties raised under the Magnuson-Moss Warranty Federal Trade Commission

Improvement Act (MMWA) (15 U.S.C. §2301 et seq. (1994)).  We affirm.

	Plaintiff bought a 1997 Mitsubishi Galant from a Mitsubishi dealer on April 30, 1997.  The

Galant was covered by a limited 3-year or 36,000-mile warranty, under which Mitsubishi

promised to repair or replace defective parts.  The warranty did not give plaintiff the right to seek

a refund or replacement of the Galant in the event of a defect.

	Plaintiff took possession of the Galant on April 30, 1997.  Plaintiff experienced problems

with a water leak in the sunroof and transmission gear changes soon thereafter.  Plaintiff brought

the car to the dealership for service on May 5, 1997, complaining of a leaking sunroof.  This

problem was repaired.  The car had 35 miles on it at the time of servicing.  Plaintiff brought the car to the dealership for service again on May 7, 1997.  The car now had 76 miles on it.  Plaintiff

complained of a "hard shift" in the transmission.  Plaintiff testified in her deposition that the car

would "bang" into first gear when she accelerated from a stopped position.  The transmission was

adjusted and the car returned to plaintiff.  Plaintiff returned to the dealership for service on June 6,

1997, complaining that the transmission problem had not been repaired.  The car was serviced and

returned to plaintiff.  The car was brought in for service again on June 25, 1997.  Plaintiff

complained that the transmission problem still had not been repaired and that the car continued to

"bang" into first gear from a stopped position.  The car had 1,266 miles on it by June 25.  

	A service manager from the dealership and a senior district service manager for defendant,

Mitsubishi Motor Sales of America, Inc., told plaintiff that the "hard shift" of which she

complained was a typical operating characteristic of the Galant's transmission.  Both managers

said that the transmission operated within normal specifications and would no longer be serviced

for the transmission problem.  Plaintiff did not return the car for service after June 25, 1997. 

Plaintiff testified in her deposition that she continued to drive the Galant to and from work and to

run daily errands.  Plaintiff said that, with the exception of the transmission problem, the car

worked as expected.

	Plaintiff revoked acceptance of the Galant in writing on August 2, 1997, and asked for a

refund.  Defendant denied plaintiff's revocation of acceptance.  Plaintiff then filed a two-count

complaint alleging breach of express warranty and the implied warranty of merchantability under

the MMWA on September 5, 1997.  

	Defendant filed a motion for summary judgment on October 26, 1998.  Defendant sought

summary judgment on both counts, arguing that there was no defect and that the Galant was fit for ordinary use.  Defendant attached the affidavits of Steve Iannarone, the dealership service manager,  and Peter Tankersley, defendant's district senior service manager, in support of its

motion.  Iannarone and Tankersley both testified that the complained-of transmission problem was

an inherent operating characteristic of the Galant's transmission and that the car operated within

normal specifications.  Defendant also relied on plaintiff's deposition testimony where plaintiff

admitted that she used the car for normal daily use after the last attempted repair on June 25,

1997.  Plaintiff responded that whether defendant breached express or implied warranties was a

question of fact here, where repeated attempts to repair the car failed.  The trial court denied

defendant's motion for summary judgment on January 27, 1999.  

	Plaintiff sold the Galant on December 22, 1999, and bought a replacement car.  Plaintiff

received $11,000 for the Galant, which had 17,290 miles on December 22.  Defendant then filed a

second motion for summary judgment on February 4, 2000.  This motion argued that, since

plaintiff no longer possessed the Galant, she could no longer pursue a claim for breach of the

MMWA relating to alleged defects in the Galant.  Defendant also argued that the sale of the

Galant established it was merchantable as a matter of law.  The trial court granted defendant's

second summary judgment motion based on plaintiff's admission that she had traded in the Galant. 

The trial court found that the trade-in "undermined" a MMWA claim.  This appeal followed. 

	We review a grant of summary judgment de novo.  Segers v. Industrial Comm'n, 191 Ill. 2d 421, 428, 732 N.E.2d 488 (2000).  We may affirm on any ground supported by the record,

even if not relied on by the trial court.  Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97, 658 N.E.2d 450 (1995).        

	We first address an issue created by defendant's response brief.  Defendant, in an attempt to cite and rely on a similar case favorably disposing of the issues raised here in an earlier

unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23), devotes two-thirds of its

brief to argue that the rule is unconstitutional.  We need not reach the constitutional argument, as

it is raised for the first time on appeal.  Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 306, 730 N.E.2d 1119 (2000).

	Defendant first cited the unpublished order in a reply brief filed in the trial court on a

motion for summary judgment.  Defendant voluntarily withdrew the brief and acknowledged that

it was improper to cite an unpublished order.  Defendant's revised brief made no reference to the

unpublished order or the unconstitutionality of Rule 23.  The trial court then ruled in defendant's

favor and plaintiff appealed.

	Defendant then filed a brief on appeal, two-thirds of which urges us to declare Rule 23

unconstitutional and then follow the reasoning in the earlier cited unpublished order.  The proper

remedy for improper use of a nonprecedential case in an appellate brief is to strike the references

to the case instead of striking the entire brief.  Wallis v. Country Mutual Insurance Co., 309 Ill. App. 3d 566, 572, 723 N.E.2d 376 (2000).  References to the unpublished case in defendant's

brief here are stricken. 

	The substantive issues raised in this appeal ask us to determine whether a consumer who

sells an allegedly defective car, after efforts to return the car fail, may pursue claims for breach of

written and implied warranties under the MMWA.  This is an issue of first impression in Illinois. 

Our research also failed to uncover a federal case addressing this question.  We disagree with

defendant that this issue was considered in Pfeiffer v. Ford Motor Co., 517 N.W.2d 76 (Minn. App. 1994).  The court in Pfeiffer based its ruling on statutory requirements in Minnesota's "Lemon Law," not the MMWA.  Pfeiffer, 517 N.W.2d at 80.  We conclude that we need not reach the questions raised here after reviewing the record.  

	The record shows that plaintiff sold her allegedly defective car for its fair market value. 

This fact was attested to by Walter Hubler, a pre-owned vehicle sales manager for the Lexus

dealership where plaintiff received $11,000 trade-in credit toward a new Lexus.  Hubler said

$11,000 was the car's fair market value at the time of the trade in.  Hubler said the dealership then

sold plaintiff's car wholesale for $11,000 and did not make a profit on the sale.  Plaintiff did not

contradict these facts.  Facts unrebutted in an affidavit are taken as true. Purtill v. Hess, 111 Ill. 2d 229, 240-41, 489 N.E.2d 867 (1986).  

	Plaintiff contended at oral argument that she did not have to show damages at this stage of

litigation, but was only required to allege that she suffered damages with enough specificity to

survive a motion for summary judgment.  This is true.  See Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256, 665 N.E.2d 1246 (1996) (party opposing summary judgment need not prove case at summary judgment stage, but must allege facts that

would entitle party to relief sought).  Plaintiff's allegations here lack the requisite specificity to

entitle plaintiff to relief.  The complaint states:

		"14.  The vehicle continues to exhibit the above mentioned defects which

substantially impair its use, value and/or safety.

		15.  Plaintiff has been and will continue to be financially damaged due to

Manufacturer's intentional, reckless, wanton and negligent failure to comply with

the provisions of its warranty.

		16.  Plaintiff seeks relief for losses due to the defects in the above- mentioned vehicle in addition to attorneys' fees and all court costs."

	Paragraphs 14 and 15 of the complaint, read within the context of the complaint as a

whole, are conclusory.  All that can be gleaned from this complaint and the evidentiary materials

in this record  is that plaintiff purchased a new car for an agreed -upon price, drove it 17,290 miles

and traded it in more than 2 1/2 years later for fair market value.   

	While it is not necessary that damages for breach of warranty be calculated with

mathematical precision (Burrus v. Itek Corp., 46 Ill. App. 3d 350, 357, 360 N.E.2d 1168 (1977)), basic contract theory requires that damages be proved with reasonable certainty and precludes

damages based on conjecture or speculation.  Bockamman Printing & Services, Inc. v. Baldwin- Gregg, Inc., 213 Ill. App. 3d 516, 527, 572 N.E.2d 1094 (1991).    

	The measure of damages for a breach of warranty claim is the difference between the

value of the property as warranted and the actual value on the date of breach.  Wheelock v. Berkeley, 138 Ill. 153, 157, 27 N.E. 942 (1891); Felde v. Chrysler Credit Corp., 219 Ill. App. 3d 530, 539, 580 N.E.2d 191 (1991).  Plaintiff is required to properly allege a present injury and

damages in her complaint.  Verb v. Motorola, Inc., 284 Ill. App. 3d 460, 471, 672 N.E.2d 1287 (1996).  Plaintiff bears the burden of establishing the correct measure of damages.  First National Bank of Elgin v. Dusold, 180 Ill. App. 3d 714, 718, 536 N.E.2d 100 (1989).   

	Plaintiff here cannot meet this burden where the undisputed facts show that plaintiff sold

the car at its fair market value, despite the alleged defect of which she now complains.  

	Damages are an element of a breach of warranty claim.  Without damages, there can be no

recovery and no need for us to determine whether plaintiff's decision to trade in her allegedly

defective Mitsubishi bars her claims.  See Jewell Belting Co. v. Hamilton Rubber Manufacturing Co., 257 Ill. 238, 242, 100 N.E. 920 (1913) (plaintiff not allowed to recover for breach of warranty where no measure of damages provided).

	The judgment of the trial court is affirmed.

	Affirmed.

	OGORDON and COUSINS, JJ., concur.