Voelker, Daniel J. v. Porsche Cars North

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1444
DANIEL J. VOELKER,
Plaintiff-Appellant,
v.
PORSCHE CARS NORTH AMERICA, INC., a Delaware
corporation; PORSCHE FINANCIAL SERVICES, INC.,
a Delaware corporation; PORSCHE LEASING, a
Delaware corporation; et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 4798—Harry D. Leinenweber, Judge.
____________
ARGUED SEPTEMBER 10, 2003—DECIDED NOVEMBER 3, 2003
____________
Before MANION, EVANS, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Daniel J. Voelker appeals from the
district court’s dismissal of his claims for breach of written
warranty and breach of the implied warranty of merchant-
ability under the Magnuson-Moss Warranty Act, 15 U.S.C.
§ 2301.8 et seq., and for various violations of state law. We
2 No. 03-1444
reverse as to Voelker’s claim for breach of written warranty
under the Magnuson-Moss Act and affirm as to all other
claims.
I.
Because this case comes to us after the district court
granted a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
we assume that the facts alleged in the complaint are true.
This dispute revolves around the lease of an automobile, a
2001 Porsche 911, which Dr. Ing. h.c. F. Porsche AG
(“Porsche”) manufactured in Germany. Through its sub-
sidiary, Porsche Cars North America, Inc. (for our purposes,
we shall refer to both entities as “Porsche”), Porsche
exported the auto to the United States and sold it to Copans
Motors, Inc., a Porsche dealership located in Pompano
Beach, Florida, which then took title to the vehicle. In June
2001, Voelker leased the car from Copans. As part of the
lease agreement, Porsche and Copans provided Voelker
with a “New Car Limited Warranty” which, with enumer-
ated exceptions, required Porsche to “repair or replace . . .
any factory-installed part that [wa]s defective in material or
workmanship under normal use.” By its own terms, this
warranty was to begin “on the date the car [was] first de-
livered to the first retail purchaser, or the date it [wa]s first
used as a demonstrator, lease, or company car, whichever
c[ame] first.”
Unfortunately for Voelker, less than three months after the
lease began, on September 20, 2001, Walter Dreikosen ran a
stop sign and his sport-utility vehicle collided with the
Porsche on the driver’s side, causing more than $25,000 in
damages and physical injuries to Voelker. Although the car
had a driver’s side airbag system, it did not deploy. After
the accident, the car was taken to Europa Imports
No. 03-1444 3
for repairs. Under the lease, only Porsche parts could be
used to fix the car. The parts Voelker needed were in short
supply, however, and his car sat in the shop for several
months. At some point, stuck with a car he could neither
drive nor repair, Voelker stopped making payments to
Porsche Financial Services, Inc. (“PFS”), the finance compa-
ny to whom Copans had assigned the lease. Voelker then
complained to Porsche. The “Customer Commitment De-
partment” of Porsche responded by promising Voelker that,
until the repair parts were delivered to Europa Motors, it
would make lease payments directly to PFS. In February
2002, however, James Ray, director of credit operations for
PFS, told Voelker that he would not accept payments from
Porsche because to do so would violate “banking laws.”
Although PFS did eventually accept two lease payments
from Porsche, Ray stopped it from accepting any further
payments.
In March 2002, the car was still not fixed and PFS refused
to pay for the repairs. PFS claimed that, because the parts
were destroyed in an accident, and not defective, they were
not covered by the warranty. It then demanded that Voelker
surrender the vehicle to be sold at auction, because of the
overdue lease payments.
Voelker responded by filing suit in the Circuit Court of
Cook County, Illinois, alleging violations of three federal
statutes, the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601et seq., the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
§ 1681 et seq., and the Magnuson-Moss Act, as well as
numerous claims under state law. The defendants then
timely removed the case to the Northern District of Illinois,
asserting in the notice of removal that the district court had
original jurisdiction over the three federal claims and
supplemental jurisdiction over the claims grounded in state
law. Voelker did not move to remand back to state court.
4 No. 03-1444
Eventually, on a Rule 12(b)(6) motion, the district court
dismissed all of Voelker’s federal claims and all but a few of
Voelker’s state claims. The district court then remanded the
remaining state claims. Voelker appeals the dismissal of his
claims under the Magnuson-Moss Act, Illinois Uniform
Commercial Code (“UCC”) (810 ILCS 5/1-101, et seq.) and
the New Vehicle Buyer Protection Act (815 ILCS 380/1, et
seq.), a theory of fraudulent inducement, the Illinois Con-
sumer Fraud and Deceptive Business Practices Act (815
ILCS 505/2, et seq.), a theory of tortious interference with
contract, and a theory of breach of contract.
II.
This court reviews de novo the district court’s grant of the
defendants’ motion to dismiss under Rule 12(b)(6). Interna-
tional Mktg., Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724,
729 (7th Cir. 1999). Dismissal is proper “only if it is clear
that no relief could be granted under any set of facts that
could be proved consistent with the allegations.” Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984).
A. Claims Under the Magnuson-Moss Act
Voelker claims breach of written warranty and breach of
the implied warranty of merchantability against Porsche
and Copans under the Magnuson-Moss Act. Although the
parties have not briefed the issue, it is not clear at the outset
that these claims were removed properly and, accordingly,
it is unclear that this court has subject matter jurisdiction
over them. Federal courts are obliged to inquire sua
sponte wherever the propriety of the removal of a claim to
federal court is in question. Tylka v. Gerber Products, Co., 211
F.3d 445, 447 (7th Cir. 2000). Our review of this issue is
plenary. Id.No. 03-1444 5
Removal is proper over any action that could have been
filed originally in federal court. Id. at 448. There are two
conceivable ways in which Voelker’s Magnuson-Moss
claims could originally have been brought in federal court:
under federal question jurisdiction or under supplemental
jurisdiction. Under 15 U.S.C. § 2301(d)(1)(B), federal ques-
tion jurisdiction exists over a Magnuson-Moss claim where
the amount in controversy is at least $50,000. Gardynski-
Leschuck v. Ford Motor Co., 142 F.3d 955, 959 (7th Cir. 1998).
In their notice of removal to federal court, § 2301(d)(1) was
the only basis that the defendants put forth to justify federal
jurisdiction over the Magnuson-Moss claims. To calculate
the amount in controversy under § 2301(d)(1)(B), however,
the party asserting federal jurisdiction must allege the cost
of the replacement vehicle, minus both the present value of
the allegedly defective vehicle and the value that the
plaintiff received from the allegedly defective vehicle. Id. at
957. Unfortunately, no party has provided us with the
relevant numbers to plug into the Gardynski-Leschuck
formula, and we are thus in no position to conclude that
jurisdiction under § 2301(d)(1)(B) existed over the
Magnuson-Moss claims. That leaves the question of whether
federal jurisdiction over the Magnuson-Moss claims could
exist under the statute governing supplemental jurisdiction,
28 U.S.C. § 1367.
Supplemental jurisdiction over the Magnuson-Moss
claims could have existed in the district court. That court
had federal question jurisdiction over the TILA and FCRA
claims and, because both of those claims and the Magnuson-
Moss claims arise from the same controversy, it also had the
discretionary authority to exercise supplemental jurisdiction
over the Magnuson-Moss claims. See 28 U.S.C. § 1367(a)
(2000); see also Suber v. Chrysler Corp., 104 F.3d 578, 588 n.12
(3d Cir. 1997) (holding that district courts may exercise
supplemental jurisdiction over Magnuson-Moss claims);
6 No. 03-1444
Wetzel v. American Motors Corp., 693 F. Supp. 246, 249-251
(E.D. Pa. 1988) (same). Once we determine that the district
court had the power to entertain, under its supplemental
jurisdiction, a claim that it actually reached on the merits,
the existence of federal jurisdiction over that claim is
established and our review is limited to whether the district
court’s discretion was abused. Peter Bay Homeowners Ass’n
v. Stillman, 294 F.3d 524, 534 (3d Cir. 2002); see also Jass v.
Prudential Health Care Plan, Inc., 88 F.3d 1482, 1491-92 (7th
Cir. 1996) (holding that federal jurisdiction existed for a
claim over which the district court could have, but did not
explicitly, invoke supplemental jurisdiction). Given that
neither party objects to the district court’s de facto exercise
of its supplemental jurisdiction, and no exceptional circum-
stances exist, any possible issue of whether the district court
abused its discretion by exercising supplemental jurisdiction
over the Magnuson-Moss claims is waived. New Jersey
Turnpike Auth. v. PPG Indus., 197 F.3d 96, 113 (3d Cir. 1999).
Having concluded that we have jurisdiction to reach the
issue, we turn to whether the district court properly dis-
missed Voelker’s claims for breach of both written and
implied warranties under the Magnuson-Moss Act. The
statute allows a “consumer” to bring a suit where he claims
to be “damaged by the failure of a supplier, warrantor, or
service contractor to comply with any obligation under this
[Act] or under a written warranty, implied warranty, or
service contract.” 15 U.S.C. § 2301(d). To proceed with his
claim, therefore, Voelker must be a consumer within the
ambit of the statute. The district court dismissed Voelker’s
claims under the Magnuson-Moss Act on the ground that
lessees are not consumers under the statute. Thus the first
question on appeal is whether Voelker is a consumer for
purposes of his claim for breach of written warranty.
No. 03-1444 7
The Magnuson-Moss Act defines three categories of
1
“consumer” : a category one consumer is “a buyer (other
than for the purposes of resale) of any consumer product”;
a category two consumer is “any person to whom such
product is transferred during the duration of an implied or
written warranty (or service contract) applicable to the
product”; and, a category three consumer is “any other
person who is entitled by the terms of such warranty (or
service contract) or under applicable State law to enforce
against the warrantor (or service contractor) the obligations
of the warranty (or service contract).” 15 U.S.C. § 2301(3).
Voelker claims to be a consumer under all three categories.
The first category of consumer would require Voelker to
be a “buyer,” which presupposes a sale. The “sale” that
Voelker identifies in his brief is the lease, which he argues
is functionally equivalent to a sale. No binding authority
governs the question of whether a lease can constitute a sale
under the Magnuson-Moss Act. Persuasive authorities, for
their part, are divided. See Szubski v. Mercedes-Benz, U.S.A.,
LLC, 796 N.E.2d 81, 86-87 (Oh. Ct. Cm. Pleas 2003) (collect-
ing cases on both sides of the issue).
As the Court of Appeals of New York has pointed out, the
Act does not define “sale.” DiCintio v. DaimlerChrysler Corp.,
768 N.E.2d 1121, 1124 (N.Y. 2002). Under the Uniform
Commercial Code, however, it is well established that a sale
occurs only where there is a passing of title to a buyer. Id.(citing UCC §§ 2-106[1] and 2-103[1][a]). In common speech,
similarly, a sale is typically understood to require the
transfer of title. See Webster’s Ninth New Collegiate Dictio-
nary 1037 (1987) (defining “sale,” in relevant part, as “the
1
For ease of reference, we refer to the three types of consumers
as category one, two or three consumers, although the statute
itself does not use this terminology.
8 No. 03-1444
transfer of ownership of and title to property from one
person to another for a price”). Against this backdrop, we
conclude that no reasonable person reading the Magnuson-
Moss Act would conclude that there is a sale to Voelker
under the Act where title does not pass to him. See, e.g.,
DiCintio, 768 N.E.2d at 1124; Sellers v. Frank Griffin AMC
Jeep, Inc., 526 So.2d 147, 155-56 (Fl. Ct. App. 1988). Here, it
is undisputed that title never passed to Voelker under the
lease agreement, and so the lease cannot constitute a sale for
purposes of making Voelker a category one consumer.
When Voelker signed his lease, however, title had already
passed from the car’s manufacturer, Porsche, to the lessor,
Copans. Relying on Cohen v. AM General Corp., 264 F. Supp.
2d 616, 619-20 (N.D. Ill. 2003), Voelker argues that the sale
needed to qualify him as a category one consumer occurred
when the manufacturer sold the vehicle to Copans, who in
turn became Voelker’s lessor. We disagree because, for a
sale to qualify a plaintiff as a category one consumer, it
must be made to a buyer “other than for purposes of resale.” 15
U.S.C. § 2301(3) (emphasis added). In other words, it is a
final sale to a user, not a sale to an intended reseller. But
whenever a lessor takes title to a car, at least one of its
purposes is, presumably, the actual resale of the vehicle.
DiCintio, 768 N.E.2d at 1127. In this particular case,
Voelker’s lease, a copy of which is attached to the com-
plaint, establishes that Copans took title of the vehicle with
intent ultimately to resell it: Paragraph 17 gives Voelker first
option to buy the car at the end of the lease term or even
before the end of the lease term, and Paragraph 21B requires
Voelker, in the event of a default, to reimburse the lessor for
reasonable expenses incurred as a result of selling the car,
presumably after repossessing it. See Diamond v. Porsche Cars
N.A., Inc., 02 C 414, 2002 WL 31155064, at *5 (N.D. Ill. Sept.
26, 2002) (construing a very similar lease), vacated on other
grounds, 70 Fed. App. 893 (7th Cir. 2003).
No. 03-1444 9
In short, for Voelker to qualify as a category one consumer
under the Magnuson-Moss Act, there must have been a sale
of the automobile “other than for the purposes of resale,”
and that sale must have included the transfer of title. Here,
the only sale alleged in relation to the car was between the
manufacturer, Porsche, and the lessor, Copans, and that sale
occurred for the purposes of resale. Accordingly, accepting
all facts alleged in the complaint as true, the transfer of the
possession of the car to Voelker was not a sale and thus he
is not entitled to proceed under the Magnuson-Moss Act as
a category one consumer.
The next question is whether Voelker has stated a claim as
a category two consumer. In other words, has Voelker
alleged facts that would show that he is “any person to
whom such product is transferred during the duration of an
implied or written warranty (or service contract) applicable
to the product”? 15 U.S.C. § 2301(3) (emphasis added). The
“written warranty . . . applicable to the product” that
Voelker identifies is the New Car Limited Warranty, which
Voelker has attached to his complaint. That warranty,
however, did not begin until after possession of the car was
transferred to Voelker, and not “during [the warranty’s]
duration.” By its own terms, the warranty did not take effect
until one of four antecedents occurred: “the date the car
[was] first delivered to to the first retail purchaser, or the
date it [wa]s first used as a demonstrator, lease, or company
car, whichever c[ame] first.” The only triggering event that
Voelker identifies is the date that the car was first used—by
himself—as a lease car. Because the warranty did not begin
until the date the car was “first used as a . . . lease car,” the
warranty did not begin until after he took possession. Thus,
Voelker has failed to allege that the car was “transferred [to
him] during the duration” of the New Car Limited War-
ranty, and, accepting all of the allegations in his complaint
10 No. 03-1444
2
as true, he does not qualify as a category two consumer.
Finally, we consider whether Voelker has stated a claim as
a category three consumer. That is, we ask whether he is
“any other person who is entitled by the terms of such
warranty (or service contract) or under applicable State law to
enforce against the warrantor (or service contractor) the
obligations of the warranty (or service contract).” 15 U.S.C.
§ 2301(3) (emphasis added). Copans, as the defendants
assert, assigned to Voelker “all its rights under the Porsche
Limited Warranty.” Under the state law of Illinois, as an
assignee of that warranty, a lessee like Voelker was entitled
to enforce the rights arising from the warranty. Dekelaita v.
Nissan Motor Corp., ___ N.E.2d ___, 2003 WL 22240509, at *5
(Ill. Ct. App. 2003) (citing Collins Co. v. Carboline Co., 532
N.E.2d 834 (Ill. 1988)). Of course, to be enforced via the
Magnuson-Moss Act, a written warranty like the New Car
Limited Warranty must have been issued “in connection
with” a sale. 15 U.S.C. § 2301(6). Voelker satisfies that
requirement because he alleges a sale between the manufac-
3
turer, Porsche, and the lessor, Copans. The New Car
Limited Warranty was issued in connection with that sale
insofar as it was created to induce potential buyers or
2
We therefore need not decide the question of whether mere
transfer of possession, as opposed to transfer of title, satisfies the
requirement that a category two plaintiff establish that the prod-
uct was transferred.
3
He makes this allegation rather obliquely: he pleads that
Porsche owned the auto in the first instance and that Copans then
became the car’s “lessor.” Given the lenient pleading standards
of Rule 8, and because we presume that Copans could not have
leased what it did not own (the car is not alleged to have been
sub-leased), we construe Voelker’s complaint to allege that
Porsche sold the car to Copans.
No. 03-1444 11
lessees to trust that the car would be repaired in the event
that it had certain defects. Without the warranty Copans
obviously would not have agreed to purchase the car from
Porsche, because Copans in turn would not be able to
demand such a high price for a sale or lease without it. See
Cohen, 264 F. Supp. 2d at 619 (discussing why a warranty
was connected to a sale between manufacturer and lessor).
Voelker may thus proceed under category three of the Act
with his claim for breach of written warranty.
Relying on DeCintio, 768 N.E.2d at 1126-27, the defendants
argue that only a sale to the ultimate consumer qualifies as
a sale. However, nothing in the plain language of § 2301(6)
demands that the “sale must be between the consumer and
the supplier.” Dekelaita, 2003 WL 22240509, at *6. Instead,
the statute merely requires that there be a sale of the car and
that the written warranty was made “in connection with the
sale.” As discussed above, both of those prerequisites are
satisfied here.
Again relying on DiCintio, defendants also insist that,
because the sale from Porsche to Copans was made for
purposes of resale, it cannot qualify Voelker as a category
three consumer. We have noted above that the Porsche-to-
Copans sale was for the purpose of an eventual resale. But
the plain language of the statute shows that the “other than
for purposes of resale” language in § 2301(3) applies only to
category one, and not category three, consumers. See 15
U.S.C. § 2301(3). Thus, although we agree with the defen-
dants that Voelker may not proceed as a category one
plaintiff because Porsche sold Copans the auto for purposes
of resale, that fact is irrelevant to our inquiry as to whether
Voelker is entitled to proceed as plaintiff under category
three, where under state law he is entitled to enforce the
warranty assigned to him under the lease.
In short, because Voelker, under the assignment from
12 No. 03-1444
Copans, is a person entitled to enforce the New Car Limited
Warranty under the applicable state law, and because that
warranty was issued in connection with the sale of the car
from Porsche to Copans, we hold that Voelker may proceed
as a category three consumer regarding his claim for breach
of written warranty under the Magnuson-Moss Act.
Voelker’s claim under the Act for breach of the implied
warranty of merchantability fares less well. To the extent
that Voelker seeks to recover for personal injuries, he has
failed to state a claim: personal injury claims based on a
breach of warranty are not cognizable under the Magnuson-
Moss Act. Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1066
(5th Cir. 1984). Voelker’s bid for monetary damages,
however, presents a more complicated set of issues.
The defendants argue that, to the extent Voelker seeks to
recover for monetary loss, his claim against Porsche fails for
lack of privity under the law of Illinois. This presents an
issue of first impression for this court: whether a valid claim
for breach of the implied warranty of merchantability under
the Magnuson-Moss Act must allege privity in accordance
with the applicable state law. For the reasons set forth
below, we conclude that it must.
The Magnuson-Moss Act allows a suit for breach of “an
implied warranty arising under State law (as modified by
sections 2308 and 2304(a) of this title).” 15 U.S.C. § 2301(7).
Because §§ 2308 and 2304(a) do not modify, or discuss in
any way, a state’s ability to establish a privity requirement,
whether privity is a prerequisite to a claim for breach of
implied warranty under the Magnuson-Moss Act therefore
hinges entirely on the applicable state law. Walsh v. Ford
Motor Co., 807 F.2d 1000, 1014 (D.C. Cir. 1986); Abraham v.
Volkswagen of Am., Inc., 795 F.2d 238, 249 (2d Cir. 1986).
Under the law of Illinois, privity of contract is a prerequisite
to recover economic damages for breach of implied war-
ranty. Rothe v. Maloney Cadillac, Inc., 518 N.E.2d 1028, 1029-
No. 03-1444 13
30 (Ill. 1988). Therefore, because it is undisputed that
Voelker lacks privity of contract with Porsche, this claim
against Porsche was properly dismissed. Kowalke v. Bernard
Chevrolet, Inc., No. 99 C 7980, 2000 WL 656660, at *5 (N.D.
Ill. Mar. 23, 2000); Larry J. Soldinger Assocs., Ltd. v. Aston
Martin Lagonda of N.A., Inc., No. 97 C 7792, 1999 WL 756174,
at **6-10 (N.D. Ill. Sept. 13, 1999).
Voelker does allege privity of contract with Copans. As
the defendants point out, however, Copans’ lease with
Voelker contained the following disclaimer in bold type and
on the face of the lease: “[l]essor Copans makes no warran-
ties or representations, either express or implied as to the
Vehicle or any part of accessory thereof. Lessor makes no
warranty of merchantability or fitness of the Vehicle for any
particular purpose, or any other representation or warranty
whatsoever . . . .” Because this disclaimer was in writing and
conspicuous, and because it expressly mentioned merchant-
ability, it shields Copans from suit for breach of the implied
warranty of merchantability under Illinois law. 810
ILCS5/2A-214; cf. Basselen v. General Motors Corp., 792
N.E.2d 498, 508 (Ill. Ct. App. 2003) (discussing why an “as
is” warranty was sufficiently clear and conspicuous to
shield, under 810 ILCS 5/1-201(10), the seller from liability).
However, Voelker has alleged that Copans, as we discuss
infra, issued him an express warranty, in writing, as to the
condition of the airbags. If Voelker had pleaded correctly a
claim for breach of express warranty against Copans,
Copans’ disclaimer would not have been effective to shield
it from suit for breach of implied warranty of merchantabil-
ity under the Magnuson-Moss Act. The Act states that “[n]o
supplier may disclaim . . . any implied warranty to a
consumer with respect to such consumer product if (1) such
supplier makes any written warranty to the consumer with
14 No. 03-1444
4
respect to such consumer product . . . .” 15 U.S.C. § 2308(a).
As we discuss in the next section, however, Voelker has not
stated a claim for breach of express warranty under Illinois
law.
Voelker may not recover for personal injury caused by a
breach of warranty under the Magnuson-Moss Act. As to
economic losses, Voelker’s claim for breach of the implied
warranty of merchantability fails because he has not alleged
privity with Porsche and because Copans’ disclaimer
precludes liability under Illinois law. We therefore affirm
the dismissal of Voelker’s claim for breach of the implied
warranty of merchantability under the Magnuson-Moss Act.
B. Claims for Breach of Express Warranty Under the
Illinois UCC and Lemon Law
Voelker asserts a claim for breach of express warranty
against Porsche and Copans under the Illinois UCC and the
New Vehicle Buyer Protection Act, or “lemon law,” of
Illinois, 815 ILCS 380/1, et seq. Voelker’s theory is that these
defendants violated both statutes (1) by affirming that the
side airbag system would work even though, when Voelker
had his accident, the system failed to deploy, and (2) by
failing to repair the car after the accident. As to the latter
theory, the promise to repair is not an express warranty
under the Illinois UCC, Cosman v. Ford Motor Co., 674 N.E.2d
61, 67 (Ill. Ct. App. 1996) (reasoning that “the breach of the
promise to repair which plaintiffs allege . . . is not a ‘war-
ranty’ as defined by the Code”), and therefore is not an
express warranty under the lemon law either, 815 ILCS
380/2(b).
4
The New Car Limited Warranty was made by Porsche, not
Copans.
No. 03-1444 15
Regarding the airbag’s failure to deploy, Voelker alleges
a design defect. As Voelker argued in his opening brief:
The subject vehicle’s side airbags are defective and non-
conforming in that they do not address “actual” or
“real-world” crash conditions as they do not deploy
when the subject vehicle is impacted in the driver’s
door—even at a rate of speed in excess of 25 miles per
hour—by a sports-utility vehicle (“SUV”), sports-activ-
ity vehicle (“SAV”), large passenger vehicle and certain
other passenger cars. This defect or condition is unique
to the subject vehicle and other 1998, 1999, 2000, 2001
and 2002 model year 911 Porsche models. (S.A.16 at
¶ 43). The subject vehicle has too few crash sensors or
trigger points to work properly and as represented to
work by Defendants and those crash sensors or trigger
points are too low to the ground to deploy the side
airbags. The crash sensors are also believed to be of
poor quality. (S.A.16 at ¶ 44).
Voelker does not allege that a warranty against defective
design was part of his contract with any defendant. There-
fore, we conclude that he has failed to state a claim for
breach of express warranty. See Hasek v. DaimlerChrysler
Corp., 745 N.E.2d 627, 635 (Ill. Ct. App. 2001) (reasoning
that, although the plaintiff had shown the existence of a
design defect, judgment for the defendant was appropriate
because the express warranty did not, by its contractual
terms, cover design defects). We thus hold that Voelker has
failed to state a claim for breach of express warranty insofar
as he relies on the allegedly defective design of the airbag
system. We affirm the dismissal of Voelker’s claims for
breach of express warranty under the Illinois UCC and
Illinois’ lemon law.
16 No. 03-1444
C. Other State Law Claims
In his opening brief, Voelker recites facts that, he believes,
show that the defendants fraudulently induced him to lease
the car. But he fails to cite any legal authority showing that,
contrary to the district court’s ruling, he has stated a claim
upon which relief could be granted. By failing to provide
supporting authority for his position, Voelker has not
complied with Fed. R. App. P. 28(a)(9), and therefore has
forfeited appellate review of this claim. Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
Voelker makes the same mistake regarding his claim
under the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1, et seq. against Porsche,
Copans, and G.M. Lumsden, an employee of Porsche, for
allegedly giving Voelker (who is himself a lawyer) legal
advice not to file this suit. In his brief, Voelker boldly asserts
that his “complaint states a claim against Lumsden,
[Copans] and Porsche for violation of the Consumer Fraud
Act.” But he does not explain why, on the facts pleaded, he
could satisfy the elements of a claim under that statute.
Voelker has therefore failed to develop this argument on
appeal, and has waived appellate review of the dismissal of
his claim under the Illinois Consumer Fraud and Deceptive
Business Practices Act. Fed. R. App. P. 28(a)(9)(A) (stating
that an appellant’s argument must provide both his
“contentions and the reasons for them”).
We turn next to Voelker’s claim for tortious interference
with contract against PFS and one of its agents, James Ray.
The elements of tortious interference with contract are: “(1)
the existence of a valid and enforceable contract between the
plaintiff and another; (2) the defendant’s awareness of this
contractual relation; (3) the defendant’s intentional and
unjustified inducement of a breach of the contract; (4) a
subsequent breach by the other, caused by defendant’s
No. 03-1444 17
wrongful conduct; and (5) damages.” HIP Health Care
Services, Inc. v. Mt. Vernon Hospital, Inc., 545 N.E.2d 672, 676
(Ill. 1989). The district court dismissed this claim on the
ground that Voelker had failed to allege facts that, if true,
would allow a jury to find the first element of this tort.
Voelker argues that the “contract” with which he alleges
PFS and Ray interfered was between Voelker and Porsche,
and required Porsche to assume Voelker’s lease payments
until it provided Voelker with the repair parts necessary to
make the car operational. Voelker, however, does not point
to any allegations in the complaint that would satisfy the
elements of a contract. “A contract, to be valid, must contain
offer, acceptance, and consideration.” Halloran v. Dickerson,
679 N.E.2d 774, 782 (Ill. Ct. App. 1997). In his brief, Voelker
identifies the offer as Porsche’s proposal to pay Voelker’s
lease payments and he identifies his acceptance of that offer.
The problem is that he does not point to alleged facts that,
if true, would allow a jury to find that Voelker incurred a
reciprocal obligation; i.e., Voelker has neglected the element
of consideration. In re Peterson’s Estate, 3 N.E.2d 725, 726 (Ill.
Ct. App. 1936) (reasoning that “[w]ithout reciprocal obliga-
tion, no contract can be constituted”). We therefore affirm
the district court on the ground that Voelker has failed to
allege the existence of a valid and enforceable contract
between himself and another.
We turn finally to the last issue on appeal: whether the
district court properly dismissed Voelker’s claim for breach
of contract against Copans and PFS. In the section of his
brief addressing this issue, Voelker fails to set forth any
legal authority. He has therefore waived appellate review of
this claim’s dismissal. Fed. R. App. P. 28(a)(9)(A).
III.
18 No. 03-1444
Because Voelker has alleged facts showing him to be a
category three consumer entitled to enforce a written war-
ranty under the Magnuson-Moss Act, we reverse the district
court’s dismissal of his claim for breach of written warranty
under that statute. We affirm in all other respects.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-03-03