Aliano v. Sears, Roebuck & Co.
48 N.E.3d 1239
Ill. App. Ct.2015Background
- In 2009 Aliano bought an NTIA-subsidized digital-to-analog converter box from Sears, tendered a $40 federal coupon, and was charged sales tax on the full retail price; he paid $24.64, which included a $3.10 sales-tax overcharge.
- Illinois Dept. of Revenue Bulletin (July 2008) directed retailers to tax only the net price after NTIA coupon credit; Sears learned of the bulletin but its stores continued to calculate tax incorrectly in many transactions.
- Aliano sued under the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.), proceeding individually after withdrawing class certification; the trial court found he relied on the cashier’s representation and awarded $3.10 in damages.
- Aliano sought $252,402.08 in attorney fees under section 10a(c); he submitted a computer-generated billing statement (518 entries) derived from handwritten time sheets that were subsequently destroyed.
- The trial court admitted the billing printout as a business record and awarded $157,813.53 in fees for the period after October 27, 2011. Sears appealed the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aliano proved deception/causation under the Consumer Fraud Act | Aliano: he relied on the sales associate’s representation and would not have paid the overcharge if he had known | Sears: Aliano was aware of the tax issue beforehand and bought to pursue litigation; no actual deception | Held: Affirmed — the trial court’s credibility findings supported reliance and actual damage ($3.10) under Avery elements |
| Whether charging excess sales tax is a per se (de jure) Consumer Fraud Act violation | Aliano: Sears knew of bulletin and failed to correct systems, causing multiple overcharges | Sears: liability cannot rest on mere miscalculation as a de jure deceptive practice | Held: Court rejected Sears’ narrow framing; liability rested on Sears’ knowledge, systemic failures, and consumer reliance, not a bare per se rule |
| Admissibility of computer-generated/stored billing statement for fee petition | Aliano: the Time Slips printout is a business record; firm testimony established trustworthiness | Sears: original handwritten time sheets were destroyed; printout is inadmissible without originals | Held: Reversed fee award — admission of the computer-stored printout (without originals) was erroneous under Illinois authorities (court relied on DeLarco distinction) |
| Whether fee award was supportable without original time sheets | Aliano: testimony about billing process sufficed; printout reliable | Sears: inability to inspect originals prevented testing accuracy and cross-examination | Held: Reversed — trial court abused discretion by relying on the printout; remand for new fee hearing with admissible proof |
Key Cases Cited
- Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100 (Ill. 2005) (elements of Consumer Fraud Act and requirement of actual deception for misrepresentation-based claims)
- People v. Holowko, 109 Ill. 2d 187 (Ill. 1985) (distinguishing computer-generated records and foundational proof for admission)
- People v. Houston, 288 Ill. App. 3d 90 (Ill. App. 1997) (standards for admitting computer-stored business records)
- In re Marriage of DeLarco, 313 Ill. App. 3d 107 (Ill. App. 2000) (printouts of computer-stored billing data inadmissible where originals unavailable; fee award reversed)
- Lam v. Northern Ill. Gas Co., 114 Ill. App. 3d 325 (Ill. App. 1983) (destruction of originals permits secondary evidence only if destruction was innocent and not to prevent use as evidence)