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12/08/95 RONALD AND HELEN SMITH v. PRIME CABLE

December 8, 1995

RONALD AND HELEN SMITH, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
PRIME CABLE OF CHICAGO, A TEXAS CORPORATION, PAY-PER-VIEW NETWORK, INC., A/K/A VIEWER'S CHOICE/PAY-PER-VIEW, A NEW YORK CORPORATION, CABLE VISION PUBLICATIONS, INC., A NEW JERSEY CORPORATION, PRO-TOURS, INC., AN OKLAHOMA CORPORATION AND EASTMAN-KODAK, A NEW YORK CORPORATION, ON BEHALF OF THEMSELVES AND ALL OTHER PERSONS AND ENTITIES SIMILARLY SITUATED, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN HOURIHANE, JUDGE PRESIDING.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

This class action lawsuit alleged breach of contract, fraud, and violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261 et seq. now 815 ILCS 505/1 et seq. (West 1992)) and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 311 et seq. now at 815 ILCS 510/1 et seq.) and sought compensatory and punitive damages, declaratory judgment, equitable accounting, and injunctive relief. The gravamen of Plaintiffs' complaint was that the Defendants had distributed, sold, promoted, advertised, sponsored and broadcast a country music concert, entitled "The Judds: Their Final Concert Live," on December 4, 1991 and that the concert lasted two rather than three hours as advertised by the Defendants. The Plaintiffs were billed $24.95 for the concert and paid that charge on December 21, 1991, seventeen days after they viewed the concert and three days after they filed the instant complaint.

Defendant Prime Cable of Chicago (Prime Cable) is a cable television company alleged to promote, advertise, sell and broadcast cable television programs and products to consumers. Pay-Per-View Network, Inc. (Network) is alleged to distribute cable television programs and products for sale to consumers and cable television companies. Defendant Pro-Tours, Inc. is alleged to promote and manage concerts and tours for Naomi and Wynonna Judd, also known as "the Judds."

On August 13, 1992 the trial court dismissed plaintiffs' first verified amended complaint for failure to state a cause of action. With respect to the breach of contract count of that complaint, the trial court noted that the Plaintiffs had paid for the concert after viewing it and with knowledge that the concert was only two hours. The court held that this payment acted as a ratification of the two-hour rather than three-hour performance; that the payment was a waiver of any alleged breach; and that the payment affected an accord and satisfaction. As to defendant Pro Tours, the breach of contract count also was dismissed for failure to establish a contractual relationship. Plaintiffs' common law and statutory fraud claims were dismissed for failure to plead fraudulent words as to specific defendants; for failure to plead facts rather than conclusions; and for failure to plead that the concert length was material to the purchase decision. In concluding remarks, the court held that the payment vitiated any cause of action against any of the defendants.

In response to these findings, the Plaintiffs' filed a second amended complaint and alleged that their payment was made "after a complaint was filed as a protest" and as a result of coercion and compulsion by Prime Cable and/or Network "by threatening to or actually terminating or blocking-out the cable service *** threatening to or actually suing *** for failure to pay and damaging the credit of the Plaintiffs." In support of these allegations, the Plaintiffs attached their affidavit in which they stated that they had previously experienced a black-out in cable service, without any prior notice, for failure to timely pay a prior monthly bill.

On November 5, 1992 the Defendants filed a joint memorandum in support of their motion to dismiss Plaintiffs' second amended complaint; and on November 10, 1992, the Plaintiffs voluntarily dismissed their declaratory judgment count. *fn1 The trial court dismissed the Plaintiffs' second amended complaint with prejudice on January 11, 1993. The court ruled that the Plaintiffs failed to properly plead duress; failed to establish a protest sufficient at law that predated their payment to Prime Cable; and presented "no legal change in the status of the complaint." The court also incorporated its reasons for dismissal of Plaintiffs' first amended complaint as further reasons for the dismissal of the second amended complaint.

The issues presented for review are whether the second amended complaint stated causes of action for breach of contract (against Prime Cable and Network), breach of contract implied in law (against Pro-Tours, Inc.), common law or statutory fraud, and for an accounting. In reaching these issues we must also address the impact of the payment of the concert charge, made after their original complaint had been filed, and whether that voluntary payment acted as a waiver of their enforceable rights or operated to bar recovery in the instant action. *fn2 As the question of class action status was not reached by the trial court, it is not at issue here.

When ruling on a motion to dismiss, all well-pleaded facts in the complaint and those contained in exhibits made a part of the complaint are admitted and taken as true. (E.g., Michael Reese Hospital & Medical Center v. Chicago HMO, Ltd. (1990), 196 Ill. App. 3d 832, 554 N.E.2d 472, 143 Ill. Dec. 537.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle a plaintiff to recover. (E.g., Zadrozny v. City Colleges of Chicago (1991), 220 Ill. App. 3d 290, 581 N.E.2d 44, 163 Ill. Dec. 93; Jursich v. Arlington Heights Federal Savings & Loan Association (1982), 110 Ill. App. 3d 847, 441 N.E.2d 864, 65 Ill. Dec. 549.) A motion to dismiss is used to attack defects in a pleading; it does not test the plaintiff's ability to recover where the complaint adequately states a cause of action. Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267, 57 Ill. Dec. 904.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

While the Plaintiffs' payment does not indisputably evidence their intent to waive their rights of enforcement, nor does it establish an accord and satisfaction, *fn4 a further question arises as to whether that payment falls within the voluntary payment doctrine so that Plaintiffs' cannot recover their payment. In accordance with the voluntary payment doctrine, money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered by the payor solely because the claim was illegal. ( Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 508 N.E.2d 1053, 108 Ill. Dec. 476; West Suburban Hospital Medical Center v. Hynes (1988), 173 Ill. App. 3d 847, 527 N.E.2d 1086, 123 Ill. Dec. 448.) Absent fraud, coercion or mistake of fact, monies paid under a claim of right to payment but under a mistake of law are not ...


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