Voelker v. Porsche Cars North America, Inc.

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, LTD.,
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 DECEMBER 12, 2003
Œ
ON RESUBMISSION
____________
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
Œ
The opinion in this case was originally published on Novem-
ber 3, 2003. Thereafter, on November 14, 2003, the defendants-
appellees filed a petition for rehearing. The panel grants the
petition, and this revised opinion is substituted for the opinion
published November 3, 2003.
2 No. 03-1444
written warranty and breach of the implied warranty of
merchantability under the Magnuson-Moss Warranty Act,
(“Magnuson-Moss Act” or “the Act”) 15 U.S.C. § 2301.8et seq., and for various violations of state law. We 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 automo-
bile, 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 pur-
poses, 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 pro-
vided Voelker with a “New Car Limited Warranty” which,
with enumerated 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 delivered to the first retail purchaser, or the
date it [wa]s first used as a demonstrator, lease, or com-
pany 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
No. 03-1444 3
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 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 com-
pany to whom Copans had assigned the lease.
Voelker then complained to Porsche. The “Customer
Commitment Department” of Porsche responded by
promising Voelker that, until the repair parts were deliv-
ered 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 eventu-
ally 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 re-
fused 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 fed-
eral statutes, the Truth in Lending Act (TILA), 15 U.S.C.
§ 1601 et 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 dis-
4 No. 03-1444
trict 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. 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 ap-
peals the dismissal of his claims under the Magnuson-
Moss Act, Illinois Uniform Commercial Code (“UCC”) (810
ILCS 5/1-101, et seq.), the New Vehicle Buyer Protection Act
(815 ILCS 380/1, et seq.), a theory of fraudulent induce-
ment, the Illinois Consumer Fraud and Deceptive Busi-
ness 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).
International 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 allega-
tions.” 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 out-
set that these claims were removed properly and, accord-
ingly, it is unclear that this court has subject matter juris-
No. 03-1444 5
diction 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 Prod-
ucts, Co., 211 F.3d 445, 447 (7th Cir. 2000). Our review of
this issue is plenary. Id.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 supple-
mental jurisdiction. Under 15 U.S.C. § 2301(d)(1)(B), fed-
eral question 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 juris-
diction 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
6 No. 03-1444
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 sup-
plemental 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); Wetzel v. American Motors
Corp., 693 F. Supp. 246, 249-51 (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 fed-
eral 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) (hold-
ing that federal jurisdiction existed for a claim over which
the district court could have, but did not explicitly, in-
voke supplemental jurisdiction). Given that neither party
objects to the district court’s de facto exercise of its sup-
plemental jurisdiction, and no exceptional circumstances
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, war-
rantor, or service contractor to comply with any obliga-
tion under this [Act] or under a written warranty, im-
plied warranty, or service contract.” 15 U.S.C. § 2310(d).
No. 03-1444 7
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.
The Magnuson-Moss Act defines three categories of
1
“consumer[s]” : a category one consumer is “a buyer (oth-
er than for the purposes of resale) of any consumer prod-
uct”; 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 obliga-
tions 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 ar-
gues is functionally equivalent to a sale. No binding au-
thority governs the question of whether a lease can consti-
tute a sale under the Magnuson-Moss Act. Persuasive
authorities, for their part, are divided. See Szubski v.
Mercedes-Benz, U.S.A., LLC, ___ N.E.2d ___, 2003 WL
22052779, at **6-7 (Oh. Ct. Cm. Pleas Apr. 8, 2003) (collect-
ing cases on both sides of the issue).
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
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 Uni-
form 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 Dictionary 1037 (1987) (defining “sale,” in
relevant part, as “the 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 al-
ready 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 dis-
agree 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
No. 03-1444 9
to the complaint, 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).
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. Accord-
ingly, 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) ap-
plicable to the product”? 15 U.S.C. § 2301(3) (emphasis
added). The “written warranty . . . applicable to the prod-
uct” that Voelker identifies is the New Car Limited War-
ranty, 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
10 No. 03-1444
not take effect until one of four antecedents occurred: “the
date the car [was] first delivered to the first retail pur-
chaser, 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 al-
lege that the car was “transferred [to him] during the
duration” of the New Car Limited Warranty, and, accept-
ing all of the allegations in his complaint as true, he does
2
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 defen-
dants assert, assigned to Voelker “all its rights under the
Porsche Limited Warranty.” Under the state law of Illi-
nois, 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)). Therefore, Voelker
qualifies as a category three consumer. See id.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
product was transferred.
No. 03-1444 11
The defendants nonetheless argue that, even if Voelker
satisfied the definition of consumer, because the only sale
of the car was for purposes of resale, he does not have a
written warranty as defined in the statute and therefore
may not proceed with his claim for breach of written
warranty. The Magnuson-Moss Act defines “written war-
ranty” as follows:
(6) The term “written warranty” means—
(A) any written affirmation of fact or written prom-
ise made in connection with the sale of a consumer
product by a supplier to a buyer which relates to
the nature of the material or workmanship and
affirms or promises that such material or workman-
ship is defect free or will meet a specified level of
performance over a specified period of time, or
(B) any undertaking in writing in connection with
the sale by a supplier of a consumer product to
refund, repair, replace, or take other remedial ac-
tion with respect to such product in the event that
such product fails to meet the specifications set
forth in the undertaking,
which written affirmation, promise, or undertaking
becomes part of the basis of the bargain between a
supplier and a buyer for purposes other than resale of
such product.
15 U.S.C. § 2301(6) (emphasis added). Having concluded
above that the sale of the auto from Porsche to Copans was
for the purpose of resale, we agree with the defendants
that the New Car Limited Warranty does not satisfy the
statute’s definition of a written warranty because it was
not made to a “buyer for purposes other than resale.”
For Voelker to state a valid claim, however, the New Car
Limited Warranty need not meet the definition of written
12 No. 03-1444
warranty contained in § 2301(6). Because Voelker is a
category three consumer entitled under state law to enforce
the New Car Limited Warranty, he is a consumer allowed
under the Magnuson-Moss Act to enforce the New Car
Limited Warranty. See 15 U.S.C. § 2301(3) (including as
consumers those entitled to enforce a warranty “under
applicable State law”); Dekelaita, 2003 WL 22240509, at *7
(holding that “the third prong does not exclusively require
that the warranty meet the Act’s definition if in fact it is
enforceable under state law”).
In short, because Voelker, under the assignment from
Copans, is a person entitled to enforce the New Car Limited
Warranty under the applicable state law, we hold that
Voelker may proceed as a category three consumer regard-
ing 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: wheth-
er a valid claim for breach of the implied warranty of
merchantability under the Magnuson-Moss Act must al-
lege 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
No. 03-1444 13
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 require-
ment, whether privity is a prerequisite to a claim for breach
of implied warranty under the Magnuson-Moss Act there-
fore hinges entirely on the applicable state law. Walsh v.
Ford Motor Co., 807 F.2d 1000, 1014 (D.C. Cir. 1986); Abra-
ham 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 warranty. Rothe v. Maloney Cadillac, Inc., 518
N.E.2d 1028, 1029-30 (Ill. 1988). Therefore, because it is
undisputed that Voelker lacks privity of contract with
Porsche, this claim against Porsche was properly dis-
missed. 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
warranties 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 representa-
tion or warranty whatsoever . . . .” Because this disclaimer
was in writing and conspicuous, and because it expressly
mentioned merchantability, 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 con-
14 No. 03-1444
spicuous to shield, under 810 ILCS 5/1-201(10), the seller
from liability).
However, Voelker has alleged that Copans, as we dis-
cuss 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 effec-
tive to shield it from suit for breach of implied warranty
of merchantability under the Magnuson-Moss Act. The
Act states that “[n]o supplier may disclaim . . . any im-
plied warranty to a consumer with respect to such con-
sumer product if (1) such supplier makes any written
warranty to the consumer with respect to such consum-
3
er 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 im-
plied warranty of merchantability fails because he has not
alleged privity with Porsche and because Copans’ dis-
claimer precludes liability under Illinois law. We there-
fore 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
3
The New Car Limited Warranty was made by Porsche, not
Copans.
No. 03-1444 15
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 al-
lege . . . is not a ‘warranty’ as defined by the Code”), and
therefore is not an express warranty under the lemon law
either, 815 ILCS 380/2(b).
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 cer-
tain 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 points to no part of the record showing that a
warranty against defective design was part of his contract
with any defendant. Therefore, we conclude that he has
16 No. 03-1444
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 ex-
press warranty under the Illinois UCC and Illinois’ lemon
law.
C. Other State Law Claims
In his opening brief, Voelker recites facts that, he be-
lieves, 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 Busi-
ness 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 as-
serts 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 stat-
No. 03-1444 17
ute. Voelker has therefore failed to develop this argu-
ment 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 interfer-
ence 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 con-
tract 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 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.,
18 No. 03-1444
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 obligation, no con-
tract 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.
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 dis-
trict court’s dismissal of his claim for breach of writ-
ten 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—12-12-03