ANDREA BARBER, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
No. 1-09-0952
First District (6th Division)
February 11, 2010
398 Ill. App. 3d 868
The Commission‘s determinations on questions of fact will not be disturbed on review unless they are against the manifest weight of the evidence; that is to say, unless an opposite conclusion is clearly apparent. Orsini v. Industrial Comm‘n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005 (1987).
As the trier of fact, exercising original jurisdiction, the Commission resolved the issues of the nature and extent of the claimant‘s injuries and the reasonableness and necessity of his prospective medical expenses, as well as the question of whether a causal relationship exists between the claimant‘s condition of ill-being and his fall at work on January 5, 2004. Although in some respects contrary to the findings of the arbitrator, we cannot say based upon the record before us that the Commission‘s decision is contrary to the manifest weight of the evidence.
Based upon the foregoing analysis, we affirm the judgment of the circuit court which confirmed the Commission‘s decision, and we remand the matter to the Commission for further proceedings.
Affirmed and remanded to the Commission.
McCULLOUGH, P.J., and HUDSON, HOLDRIDGE, and DONOVAN, JJ., concur.
ANDREA BARBER, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
First District (6th Division) No. 1-09-0952
Opinion filed February 11, 2010.
Howard C. Goode, of Northbrook, for appellant.
Michael G. McQuillen, Mark S. Susina, Austin W. Bartlett, and Lisa A. Devlin, all of Adler Murphy & McQuillen, LLP, of Chicago, for appellee.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
After plaintiff Andrea Barber filed a class action against defendant American Airlines, Inc., defendant moved quickly to refund the $40 baggage fee that plaintiff had paid in connection with her cancelled flight and that had been the subject of her class action suit. Citing the refund, the trial court found that there was no longer a controversy between the parties and dismissed the suit pursuant to section 2-619 of the Code of Civil Procedure.
BACKGROUND
1. Plaintiff‘s Complaint
Since a section 2-619 motion accepts as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts, we will provide the facts alleged by plaintiff in her complaint. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008).
The complaint alleged that plaintiff “purchased a ticket number 100173579545115 for transportation on flight number 4414 to travel from Chicago O‘Hare to White Plains[, New York,] on August 11, 2008.” Plaintiff “checked in for the flight according to the procedures of the Defendant at O‘Hare Airport and checked two suitcases for transport on her flight to White Plains, New York.” At check-in, defendant required plaintiff “to pay an additional $40.00 to Defendant for transportation of her two suitcases to New York.” Plaintiff alleged that “Defendant commenced charging passengers extra to transport their luggage on passenger flights on May 12, 2008.”
The complaint further alleged that, at some point after check-in, defendant “canceled the subject flight.” In response, plaintiff “requested a cancelation [sic] of her ticket and refund to the price of the subject airlines ticket and the $40.00 paid for transportation of
In addition, the complaint alleged that defendant failed to disclose that it would not refund the baggage fee if the flight was cancelled. In support of this allegation, plaintiff attached Exhibit A to her complaint. The complaint stated that Exhibit A was a “copy of Defendant‘s website Baggage Information.” Exhibit A appears to be a two-page printout of a section from defendant‘s Web site that is entitled “General Baggage Information.”1
The “General Baggage Information” printout did not contain information about a refund in case of a cancelled flight. The printout stated, in relevant part:
“Customers who purchased domestic economy class tickets May 12, 2008 through June 14, 2008, may check one bag for free and check a second bag for $25 each way. Customers who purchased domestic economy class on or after June 14, 2008, will be charged $15 each way for the first checked bag and $25 each way for the second checked bag.”
Since plaintiff‘s travel date was August 11 and she checked two items, the above-quoted policy required her to pay $15 for her first checked item and $25 for her second checked item, for a total of $40 for the two checked items.
The complaint contained two counts: count I was breach of contract; and count II was a class action. In count I, plaintiff alleged that defendant‘s “failure to transport her two suitcases was a breach of contract and Plaintiff was entitled to a refund.”
In count II, the class action count, plaintiff sought to bring this suit on behalf of “all other persons who (i) paid Defendant to have their luggage transported in conjunction with passenger travel; (ii) Defendant canceled their flight; (iii) passenger requested a refund for
Plaintiff filed her complaint on August 15, 2008, four days after her flight was cancelled, and plaintiff served defendant with the complaint on August 21.
2. Discovery
In an interrogatory dated September 29, 2008, plaintiff asked defendant to “[i]dentify persons receiving refunds for the ticket price on American Airlines or American Eagle flights canceled since June 15, 2008 who also paid baggage fees and did not receive a refund of the baggage fees and the amounts they each paid to transport their baggage.”
On October 30, 2008, defendant filed a response to plaintiff‘s interrogatory, objecting to it on two grounds. Defendant claimed, first, that the interrogatory was “overly broad, unduly burdensome and will not lead to the discovery of relevant evidence“; and second, that it was “premature while American‘s Motion to Dismiss remains pending.”
In a written order dated November 7, 2008, the trial court stated that “Defendant‘s objections to interrogatory is entered and continued.” On January 28, 2009, plaintiff moved to compel discovery. In a written order dated February 26, 2009, the trial court denied plaintiff‘s motion to compel and observed that defendant‘s motion to dismiss was pending.
3. Defendant‘s Section 2-619 Motion to Dismiss
Defendant did not file its motion to dismiss until October 30, 2008. Although defendant was served on August 21, 2008, with a summons requiring it to file an answer or otherwise appear within 30 days, defendant did not file an appearance until October 6, 2008, and did not file its dismissal motion until October 30.
In its motion, defendant moved to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure on the ground that there was some “affirmative matter *** defeating” plaintiff‘s complaint.
When considering a section 2-619 motion, a trial court may consider affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 262 (2004). Thus, we will provide the information contained in the affidavits that defendant attached to its section 2-619 motion.
Defendant attached three affidavits from its employees: (1) Robert Trimm, a “Manager, Passenger Refund Services,” whose department credited plaintiff‘s credit card with a refund on September 25, 2008; (2) John Terrell, a “Senior Analyst for Support Services,” who identified defendant‘s “Conditions of Carriage” that were current on plaintiff‘s date of travel; and (3) Debra Shaffer, an “Executive Office Manager,” who reviewed plaintiff‘s complaint on September 4, 2008, and then immediately offered to refund plaintiff‘s baggage fees and possibly court costs.
Specifically, Robert Trimm, a passenger refund manager, stated that on “September 25, 2008, my department processed a refund back to the original form of payment in the amount of $40.00 for ticket number 0012604558285”2 and that “[t]his ticket was originally issued to Andrea Barber on August 11, 2008 for excess baggage charges.” The refund thus occurred approximately a month after defendant was served with plaintiff‘s complaint. Trimm stated that he had attached, as an exhibit to his affidavit, a copy of the business record created by defendant to memorialize the refund.
John Terrell, a “Senior Analyst for Support Services,” stated that he had attached, as an exhibit to his affidavit, a document entitled “American Airlines Conditions of Carriage.” He stated that he had “printed” this document on July 2, 2008, and that it was “a true and correct copy of American‘s Conditions of Carriage as it was available to airport agents on August 11, 2008.” He further stated that this document “would have been made available to customers asking to review or for a copy of American‘s Conditions of Carriage” on August 11, 2008.
The “Conditions of Carriage” is 12 pages long, single spaced, and in small font. It contains sections concerning both baggage and refunds. It does not state anything specifically about a refund of bag-
Debra Shaffer, an “Executive Office Manager,” stated that on September 4, 2008, she received a copy of plaintiff‘s complaint, she determined that plaintiff was entitled to a refund, and she informed plaintiff‘s counsel by telephone that defendant was “prepared to issue a refund.” Shaffer stated that, in that same telephone conversation on September 4, she also informed counsel that defendant “would consider paying the court costs that the Plaintiff had incurred to date.” According to Shaffer, “[c]ounsel refused and advised [Shaffer] that the case would proceed as a class action.”
In addition to the three affidavits, defendant also attached a letter, dated September 9, 2009, from defendant‘s counsel to plaintiff‘s counsel. The letter claimed that defendant‘s policy concerning baggage fee refunds was displayed on its Web site, in a section of the Web site entitled “FAQs.” By stating that the policy was in a section entitled “FAQs,” the letter appears to concede plaintiff‘s claim that the policy was neither in the “General Baggage Information” section of the Web site, which was provided as Exhibit A to plaintiff‘s complaint, nor in the “Conditions of Carriage” section, which defendant provided as an exhibit to Terrell‘s affidavit. The letter did not explain how a passenger who was interested in a baggage fee refund would be directed to the “FAQs” section.
Counsel‘s letter provided the “FAQs” Web address and claimed that defendant‘s refund policy was available at this address on the date of plaintiff‘s cancelled flight. The letter quoted the policy as stating, “‘in situations where a customer has paid for checked bags but doesn‘t fly due to a flight cancellation or schedule change, they may request a refund through American Airlines’ refund process.‘” In the letter, defendant‘s counsel stated that she attached a sheet which
In her response to defendant‘s motion, plaintiff submitted an affidavit in which she reiterated some of the information already stated in her complaint and in which she added that she had “not agreed to accept a refund of the $40.00 paid for the baggage transportation since this suit was filed on August 15, 2008.”
In its reply, defendant claimed that “the contract that governed the plaintiff‘s air transportation was her ticket and American Airlines’ Conditions of Carriage.” Defendant claimed that plaintiff‘s complaint was fatally flawed for its failure to attach a copy of defendant‘s “Conditions of Carriage.” Defendant also claimed that to succeed on her breach of contract claim, plaintiff had to prove that defendant violated its “Conditions of Carriage.”
To its reply, defendant attached a second affidavit from employee John Terrell, a senior analyst for airport services. His affidavit quoted the portion of the “FAQs” section that had previously been provided only in a letter from counsel. Terrell‘s affidavit also provided a “FAQs” Web address for this information, but the address provided in Terrell‘s affidavit was different from the address that counsel had provided in her September 29 letter.4 Terrell stated that this “Baggage Fee Refund Policy” was “publicly available on [defendant‘s] website on August 11, 2008.” However, he stated that he had attached only “excerpts” from this policy to his affidavit.
Attached to Terrell‘s affidavit was a typed sheet entitled “Baggage Allowance,” which stated in full:
“Q: If I pay a Checked Bag Fee but my flight is cancelled so I don‘t fly, will I get a refund for the Bag Fee?
A: Yes. In situations where a customer paid for checked bags but doesn‘t fly due to a flight cancellation or schedule change, they may request a refund through American Airlines refund process.
Note: the refund will not be initiated automatically. You may request a refund at the ticket counter before leaving the airport or mail the original baggage charge receipt to:
American Airlines
[address omitted]When mailing a refund request please include:
*The passenger‘s name
*Address
*The form of payment used (including the credit card number, if applicable)
*The ticket number(s)
*The date of travel
*The departure city and destination cityRemember to keep a copy of the baggage charge receipt for your records. Please allow six to eight weeks for processing.”
The exhibit appeared to be a typed sheet, as opposed to Terrell‘s previously submitted “Conditions of Carriage,” which was clearly a printout from defendant‘s Web site. The affidavit did not indicate how long the “Baggage Allowance” section was or where the quoted excerpt appeared in that section. The affidavit also did not explain how someone seeking a refund for a baggage fee would know to go to a section that was not labeled either “Refund” or “Baggage Fee,” but rather “Baggage Allowance.”
4. The Order Appealed From
In a written order dated March 10, 2009, the trial court stated that “Defendant‘s motion to dismiss is granted for the reasons set forth on the record.”
During the court proceeding on March 10, defendant orally asked the trial court to dismiss for two reasons. First, defendant claimed that plaintiff‘s complaint was deficient for not including her ticket, which defendant claimed was the contract between plaintiff and defendant. Second, defendant claimed that plaintiff‘s complaint was moot, since she had already received her refund, pursuant to a preexisting policy.
Orally and in open court, the trial court stated that it granted defendant‘s motion on its second ground. The trial court stated, in relevant part:
“[T]he question is, Does the plaintiff get a refund, And in this case, yes. And she got it. And she got it in very short order. As soon as there was notice that, in fact—well, the complaint was filed. *** I think here what has been shown in the documents attached to the motion to dismiss is that there is a policy of refund and that the plaintiff got the refund. I don‘t think that there is much more to this controversy. And therefore, I am granting this motion to dismiss.”
ANALYSIS
The primary issue on this appeal is whether defendant‘s act of unilaterally posting a credit to plaintiff‘s credit card made plaintiff‘s claims moot.
The following facts appear to be undisputed, and they are also supported by the complaint and the affidavits submitted in the case at bar. Plaintiff purchased an airline ticket from defendant for travel on August 11, 2008, and paid defendant an additional $40 in baggage fees. Defendant cancelled her flight. After defendant received plaintiff‘s class action complaint, it determined that plaintiff was entitled to a refund of the $40 in baggage fees and offered her a refund and a possible reimbursement of court costs, which she refused. Approximately a month after plaintiff‘s complaint was served on defendant, defendant unilaterally acted to credit plaintiff‘s credit card with the amount of the baggage fees. On the date of plaintiff‘s cancelled flight, defendant‘s claimed “Baggage Fee Refund Policy” was not available in either the “General Baggage Information” or the “Conditions of Carriage” sections of its Web site. The “Conditions of Carriage,” which defendant claims was the contract between the parties, does not state anything specifically about a baggage fee refund after a cancelled flight. However, the “Conditions of Carriage” does define the word “ticket,” as used in that contract, to include both the passenger ticket and the baggage check, and the contract does provide for a full and automatic refund for such a “ticket” in case of a cancelled flight.
1. Standard of Review
On appeal, plaintiff asks us to reverse the trial court‘s order, issued pursuant to section 2-619 of the Code of Civil Procedure.
2. Timeliness of Section 2-619 Motion
“For a motion to be properly brought under section 2-619, the motion (1) must be filed ‘within the time for pleading,’ and (2) must concern one of nine listed grounds.” River Plaza Homeowner‘s Ass‘n v. Healey, 389 Ill. App. 3d 268, 275 (2009), quoting
We cannot determine whether the first requirement of a timely filing was satisfied, since we cannot determine from the appellate record whether defendant received an extension to file an answer or a dismissal motion.
However, we do not find defendant‘s motion defective on this ground for two reasons. First, plaintiff did not claim either at the trial level or on this appeal that defendant failed to file its section 2-619 motion “within the time for pleading.”
3. Substance of Section 2-619 Motion
The second requirement for a section 2-619 motion is that it must concern one of the nine grounds listed in section 2—619. River Plaza, 389 Ill. App. 3d at 275, quoting
“(1) That the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.
(2) That the plaintiff does not have legal capacity to sue or that the defendant does not have legal capacity to be sued.
(3) That there is another action pending between the same parties for the same cause.
(4) That the cause of action is barred by a prior judgment.
(5) That the action was not commenced within the time limited by law.
(6) That the claim set forth in the plaintiff‘s pleading has been released, satisfied of record, or discharged in bankruptcy.
(7) That the claim asserted is unenforceable under the provisions of the Statute of Frauds.
(8) That the claim asserted against defendant is unenforceable because of his or her minority or other disability.
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”735 ILCS 5/2-619(a) (West 2006) .
Defendant‘s motion to dismiss does not concern: jurisdiction, legal capacity to sue, another pending action, res judicata, statute of limitations, statute of frauds or a minor plaintiff. Defendant moved pursuant to subsection (9), an “affirmative matter defeating the claim.”
This court has repeatedly found that the question of whether a refund defeats the claim of a named plaintiff in a class action is a matter properly considered under section 2-619. Hayman v. Autohaus on Edens, Inc., 315 Ill. App. 3d 1075, 1077 (2000) (First District affirmed trial court‘s dismissal under section 2-619, where a corporate defendant refunded the fee at issue to the plaintiff consumer before the plaintiff had begun the class action litigation); Yu v. International Business Machines Corp., 314 Ill. App. 3d 892, 897-98 (2000) (First District affirmed trial court‘s dismissal under section 2-619, where plaintiff accepted the requested relief from defendant before filing for class certification); see also Cohen v. Compact Power Systems, LLC, 382 Ill. App. 3d 104, 107 (2008) (First District affirmed trial court‘s dismissal under section 2-619). But see Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 140 (2001) (section 2-619 was the wrong section for a dismissal based on a class‘s lack of numerosity, after defendant provided refunds and obtained releases from 44 of the 46 putative class members). Even though the trial court dismissed on the “affirmative matter” of the refund, we could affirm the dismissal on the ground of the failure to attach the ticket or “Conditions of Car-
4. The Refund
The “general rule” is that “if the defendant tenders to the named plaintiff [in a class action suit] the relief requested before the class is certified, the underlying cause of action must be dismissed as moot as there is no longer an actual controversy pending.” Akinyemi v. JP Morgan Chase Bank, N.A., 391 Ill. App. 3d 334, 339 (2009) (citing in support six appellate court opinions).5 However, if a plaintiff alleges that “defendant attempted to unfairly ‘pick him off’ in order to avoid suit, the key is when plaintiff filed his motion for class certification in relation to when defendant made tender.” Akinyemi, 391 Ill. App. 3d at 340; Gelb v. Air Con Refrigeration & Heating, Inc., 326 Ill. App. 3d 809, 814 (2001) (Gelb I) (“question” is “whether the tender unfairly ‘picked off’ the prospective class action representative without offering him a full opportunity to develop his class action claim“). In that case, a “determination of whether defendants’ tender has supplied plaintiff with all he requested is not the deciding factor.” Gelb I, 326 Ill. App. 3d at 814. “Rather, *** the crux of the matter is to be resolved through an examination of when, in the life span of the suit at the trial level, such tender was made.” Gelb I, 326 Ill. App. 3d at 814. “To hold otherwise would allow a party to avoid ever defending a class action suit by simply tendering payment to the named plaintiffs, in each class action filed against it, prior to the trial court‘s ruling on their motion for class certification.” Hillenbrand, 308 Ill. App. 3d at 392 (quoted with approval in Kostecki, 361 Ill. App. 3d at 377, Gelb II, 356 Ill. App. 3d at 700, Bruemmer, 329 Ill. App. 3d at 762, Gelb I, 326 Ill. App. 3d at 819, and Yu, 314 Ill. App. 3d at 899).
When considering a “pick off” allegation, a court must consider, first, whether the defendant even knew of the class action. Akinyemi, 391 Ill. App. 3d at 340-41; Cohen, 382 Ill. App. 3d at 110 (plaintiff‘s claim is not moot if “the timing of the defendant‘s tender” indicates that it “was an attempt to unfairly ‘pick off’ the class action
Second, when a plaintiff makes a “pick off” allegation, and a defendant‘s refund occurs before plaintiff‘s motion for class certification, a court must consider “whether, under the circumstances, the plaintiff exercised the required reasonable diligence in pursuing his class action claim.” Akinyemi, 391 Ill. App. 3d at 341; Cohen, 382 Ill. App. 3d at 110 (“when the named plaintiff never files this motion [for class certification], the question becomes whether, under the circumstances, the plaintiff exercised the required reasonable diligence in pursuing his class action claim“); Arriola, 323 Ill. App. 3d at 152 (“the plaintiff must have a reasonable opportunity to file a motion for certification“). “While a plaintiff‘s due diligence must be determined on a case-by-case basis, we feel that the interests of the absent class as well as the integrity of the judicial process, namely, allowing a plaintiff a reasonable opportunity to file a motion for certification, outweigh any concerns of whether plaintiff has been tendered the full amount of his claim or whether he has even filed a motion for certification.” Gelb I, 326 Ill. App. 3d at 822 (we remanded in order to allow plaintiffs to move for certification, where the trial court had dismissed on mootness grounds, before plaintiffs had a reasonable opportunity to seek class certification) (quoted in Gelb II, 356 Ill. App. 3d at 700, and Bruemmer, 329 Ill. App. 3d at 763-64).
If the plaintiff was not diligent, then “the plaintiff‘s class action complaint should be dismissed as moot.” Akinyemi, 391 Ill. App. 3d at 341; Cohen, 382 Ill. App. 3d at 110 (if “the named plaintiff simply was not diligent in pursuing the class action claim,” it “should be dismissed as moot“). For example, in Akinyemi, we found that plaintiff was not diligent, where “he waited more than a month [after filing his motion for certification] to even serve notice of this motion on defendant, and then did nothing else to pursue certification within the
In contrast to the Akinyemi plaintiff, plaintiff in the case at bar served discovery to obtain the identities of putative class members only a month after having served defendant with her class action complaint. Gelb I, 326 Ill. App. 3d at 821 (plaintiff was diligent where, two weeks after the complaint, he “attempted to initiate” discovery concerning the putative class members, but it was stayed, and the case was dismissed a mere “111 days” after filing). On January 28, 2009, plaintiff moved to compel that discovery, presumably in anticipation of filing a certification motion and rebutting a claim of lack of numerosity.
For these reasons, plaintiff‘s “pick off” claim survives the tests articulated by this court in Akinyemi and related cases. Thus, defendant‘s unilateral act of crediting plaintiff‘s credit card did not make plaintiff‘s claim moot.
5. Other Exceptions to the Mootness Doctrine
Other exceptions to the mootness doctrine include (1) the “capable of repetition yet evading review” exception; and (2) the public interest exception. In re A Minor, 127 Ill. 2d 247, 257-58 (1989). Neither one applies to the facts at bar.
To receive the benefit of the “capable of repetition yet evading review” exception, the complainant must “demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” In re Barbara H., 183 Ill. 2d 482, 491 (1998), citing In re A Minor, 127 Ill. 2d at 258.
The criteria for the public interest exception are also well established. “‘In order to fall into the public interest exception (1) the question must be of a public nature; (2) an authoritative determination of the question must be desirable for the purpose of guiding public officers; and (3) the question must be likely to recur.‘” Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008), quoting Brown v. Duncan, 361 Ill. App. 3d 125, 134 (2005).
Neither the repetition exception nor the public interest exception applies to the facts at bar. First, the “capable of repetition yet evading review” exception does not apply because there is not “a reasonable expectation that the same complaining party would be subjected to the same action again.” In re Barbara H., 183 Ill. 2d at 491, citing In re A Minor, 127 Ill. 2d at 258. The plaintiff in the case at bar now has her own personal contact at American Airlines, who presumably would reimburse plaintiff immediately (if not sooner) if the same exact situa-
Second, the public interest exception does not apply because “an authoritative determination of the question” is not “desirable for the purpose of guiding public officers.” The officials of American Airlines are not public officers. Filliung, 387 Ill. App. 3d at 56, quoting Brown, 361 Ill. App. 3d at 134.
6. “Picking Off” Exception
For these reasons, the “picking off” exception is the mootness exception that most aptly applies to the facts at bar. This exception has been applied before to permit a class action to proceed, as we are doing here. Gelb I, 326 Ill. App. 3d at 822; Hillenbrand, 308 Ill. App. 3d at 392.
Gelb I is almost identical to the case at bar. It would be almost impossible for us to rule differently without abandoning Gelb I. In Gelb I, as in the case at bar, defendants tendered a settlement offer to the named plaintiffs before plaintiffs had filed a motion for certification. Gelb I, 326 Ill. App. 3d at 811. In Gelb I, the tender occurred only a month and a half after suit was filed, and defendants then moved quickly to dismiss, claiming that their tender had mooted the case. Gelb I, 326 Ill. App. 3d at 811. Similarly, in the case at bar, the refund occurred only a month after suit was filed, and defendant moved to dismiss only a month after the refund. In Gelb I, we reversed the trial court‘s dismissal order, finding that it was premature to dismiss on mootness grounds without first allowing plaintiffs “a reasonable opportunity to file a motion for [class] certification.” Gelb I, 326 Ill. App. 3d at 822. In Gelb I, we found that the plaintiff was diligent where, two weeks after the complaint, he “attempted to initiate discovery” concerning the putative class members but it was stayed. Gelb I, 326 Ill. App. 3d at 821. Similarly, in the case at bar, plaintiff served discovery to obtain the identities of putative class members only a month after having served defendant with her class action complaint; but, as in Gelb I, it was stayed. In Gelb I, we remanded in order to allow plaintiffs to move for certification, which is the same exact action that we are taking in the case at bar. Gelb I, 326 Ill. App. 3d at 822.
7. Attaching Contract to Complaint
Second, defendant claimed that the trial court had to dismiss plaintiff‘s complaint, due to plaintiff‘s alleged failure to attach the contract to her complaint. As noted above, the trial court did not dismiss the complaint on this ground. Nonetheless, we will consider this ground, since we may affirm the trial court‘s section 2-619 dismissal on any ground supported by the appellate record. Raintree, 209 Ill. 2d at 262 (when reviewing a section 2-619 dismissal, we can affirm “on any basis present in the record“).
A plaintiff who alleges breach of contract is statutorily required to attach the contract at issue to her complaint. Section 2-606 of the Code of Civil Procedure provides that “[i]f a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit.”
Defendant claimed that the trial court was statutorily required to dismiss due to plaintiff‘s failure to attach a contract. In support of its claim, defendant cited Plocar v. Dunkin’ Donuts of America, Inc., 103 Ill. App. 3d 740, 749 (1981), and Cahill v. Eastern Benefit Systems, Inc., 236 Ill. App. 3d 517, 520 (1992).8 Both cases bear little resemblance to the case at bar.
The facts in Cahill are similar to the facts in Plocar, except that the Cahill plaintiff was given five chances to attach the contract. In Cahill, plaintiff filed a total of five complaints before the trial court dismissed the case. Cahill, 236 Ill. App. 3d at 518 (trial court dismissed plaintiff‘s fourth amended complaint, which would have been their fifth filed complaint). See also Alpha School Bus Co. v. Wagner, 391 Ill. App. 3d 722, 748 (2009) (trial court did not err in dismissing plaintiffs’ third amended complaint, which would have been their fourth filed complaint, “without granting them leave to amend” again); Bruemmer, 329 Ill. App. 3d at 757-58 (trial court did not err, when “[f]ollowing two [more] attempts to replead, the trial court dismissed plaintiff‘s third amended class action complaint with prejudice“).
In the case at bar, since the trial court exercised its discretion not to dismiss on this ground, and since a trial court on remand would have the discretion to grant plaintiff leave to amend, we believe that it is premature for us, as a court of review, to affirm the dismissal on this basis. Plocar, 103 Ill. App. 3d at 749 (the decision of whether to grant plaintiff leave to amend is left to the trial court‘s sound discretion);
Defendant also claims that plaintiff failed to establish that defendant breached any contract term. A failure to state a cause of action is a claim properly brought pursuant to section 2-615 of the Code of Civil Procedure.
Although our Code of Civil Procedure permits a defendant to bring “a combined motion,” it requires a combined motion to “be in parts.”
We will not analyze defendant‘s motion under section 2-615, where plaintiff has not once amended her complaint, where the trial court may have freely granted her leave to amend in order to correct any deficiency, where defendant did not move pursuant to section 2-615, and where the trial court did not analyze defendant‘s motion on that basis. Mulay v. Mulay, 225 Ill. 2d 601, 611 (2007) (after holding that dismissal was improperly granted under section 2-619, our supreme court remanded so that the trial court could consider dismissal under section 2-615).
“[A] motion to dismiss pursuant to section 2-615 should not be granted unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery.” Alpha, 391 Ill. App. 3d at 735. “As a general rule, a trial court should exercise its discretion liberally in favor of allowing amendments if doing so will further the ends of justice, and it should resolve any doubts in favor of allowing
CONCLUSION
For the foregoing reasons, we reverse the trial court‘s order dismissing the complaint pursuant to section 2-619 and remand for further proceedings consistent with this opinion. Based on the facts and circumstances of this case, we find that defendant‘s act of unilaterally posting a credit to plaintiff‘s credit card did not make plaintiff‘s claims moot.
Reversed and remanded.
J. GORDON, J., concurs.
PRESIDING JUSTICE CAHILL, dissenting:
I respectfully disagree with the majority‘s conclusion that plaintiff can proceed on her class action claim despite defendant‘s full tender of damages and in the absence of a pending motion for class certification.
The facts of this case are controlled by Wheatley v. Board of Education of Township High School District 205, 99 Ill. 2d 481, 459 N.E.2d 1364 (1984). The plaintiffs there were two teachers who had been dismissed by the defendant board of education. Wheatley, 99 Ill. 2d at 483. The plaintiffs filed a class action complaint on behalf of 57 other teachers who had also been dismissed. Wheatley, 99 Ill. 2d at 483. Nearly one month after the complaint was filed, the board offered, and the two named plaintiffs accepted, reinstatement. Wheatley, 99 Ill. 2d at 483-84. The board moved to dismiss the complaint on mootness grounds four months later. Wheatley, 99 Ill. 2d at 484. The trial court granted the motion. Wheatley, 99 Ill. 2d at 484.
Our supreme court affirmed. Wheatley, 99 Ill. 2d at 487. The court held the claims of the named plaintiffs became moot when the board granted the relief demanded by the complaint—namely, reinstate-
An exception to Wheatley has slowly evolved in our appellate court. The exception, which the majority terms the “pick off” exception, has its origin in Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 751 N.E.2d 221 (2001). The court there relied on Wheatley in holding a class action cannot be sustained if the defendant tenders full damages to the named plaintiff before the plaintiff moves for class certification. Arriola, 323 Ill. App. 3d at 151. The court went on to say in dicta that had the named plaintiff moved for class certification early in the litigation, the result could have been different. Arriola, 323 Ill. App. 3d at 151-52. The court quoted this language from Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978): “‘If the class action device is to work, the courts must have a reasonable opportunity to consider and decide a motion for certification.‘” Arriola, 323 Ill. App. 3d at 152; see also
The exception to Wheatley developed through this line of cases has no basis in law. Susman did not hold, as the Arriola court suggested, that a named plaintiff in a class action suit is entitled to a reasonable opportunity to move for class certification. The court was concerned with the trial court‘s opportunity to rule on class certification once a motion to dismiss has been filed. Susman, 587 F.2d at 870. The court‘s holding was limited “to the fairly narrow situation where a motion for
The majority cites public policy concerns in allowing a defendant to prevent class action litigation by “picking off” the named plaintiff before there is an opportunity to protect the interests of absent class members by moving for certification. But there is no prohibition against settlements with class members as long as the rights of nonsettling class members are not affected. Jankousky v. Jewel Cos., 182 Ill. App. 3d 763, 767, 538 N.E.2d 689 (1989) (noting that public policy favors and encourages settlements). There is no suggestion here that defendant‘s refund to plaintiff affected the rights of others who did not receive similar refunds. Presumably, the remaining class members can either pursue class litigation or bring their claims individually. Indeed, this class action could have survived had one of the nonsettling class members substituted himself as the named representative. See Wheatley, 99 Ill. 2d at 487.
Plaintiff had 207 days, from the time the complaint was filed until the time the trial court ruled on defendant‘s motion to dismiss, to file a motion for class certification. She failed to do so. I would affirm the trial court‘s dismissal under Wheatley.
ROBERT E. GORDON
JUSTICE