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Dreyfus v. Ameritech Mobile Communications Inc.

August 24, 1998

LARRY M. DREYFUS AND RITA PUN, INDIV. AND AS REPRESENTATIVES OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLANTS,
v.
AMERITECH MOBILE COMMUNICATIONS, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Buckley delivered the opinion of the court:

Appeal from the Circuit Court of Cook County.

Honorable MICHAEL B. GETTY, judge Presiding.

Larry Dreyfus (plaintiff Dreyfus) and Rita Pun (plaintiff Pun) each contracted with defendant Ameritech Mobile Communications, Inc., for two years of cellular telephone service. About one year into the contracts, defendant notified plaintiffs that it was passing along a $0.02-per-minute interconnect charge to its customers. On January 10, 1996, after the charge was imposed, plaintiff Dreyfus filed a putative class action complaint against defendant alleging that the imposition of the interconnect charged constituted a breach of contract, statutory consumer fraud and common law fraud. On June 4, 1996, plaintiff Dreyfus filed an amended complaint that named plaintiff Pun as an additional plaintiff.

In response to defendant's section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 1994)), the trial court dismissed plaintiff Dreyfus' breach of contract claim, finding that his service contract did not contain a price guarantee. The trial court also dismissed the statutory and common law fraud claims, finding that the amended complaint failed to allege an actionable false statement or deceptive practice. However, the trial court denied defendant's motion to dismiss plaintiff Pun's breach of contract claim, finding that her contract did contain a price guarantee. Thereafter, defendant filed a section 2-619 motion to dismiss plaintiff Pun's claim based upon the voluntary payment doctrine (735 ILCS 5/2-619 (West 1994)). The trial court granted the motion. Plaintiffs filed a timely notice of appeal and raise the following issues: (1) whether the trial court properly dismissed plaintiff Pun's contract claim, finding it was barred by the voluntary payment doctrine; (2) whether the trial court properly dismissed plaintiffs' fraud claims; and (3) whether the trial court properly dismissed plaintiff Dreyfus' contract claim finding that his contract did not contain a price guarantee.

The relevant facts are as follows. On January 30, 1995, plaintiff Dreyfus entered into two agreements with defendant, a service agreement (Dreyfus Service Agreement) and a promotional service agreement (Dreyfus Promotional Agreement). The contracts provided that plaintiff Dreyfus would receive cellular telephone service from defendant under a special promotional program that was offered to employees of the Chicago Mercantile Exchange (CME Value Plan). Plaintiff Dreyfus chose the CME Value Plan, which was offered as part of the promotion, rather than one of the standard plans listed on the service agreement.

Under the CME Value Plan, plaintiff Dreyfus was to pay a $10 monthly fee and additional charges of $0.24 per minute for peak time calls and $0.11 per minute for off-peak calls. The Dreyfus Service Agreement provided the following regarding rate changes during the term of the contract:

"RATE CHANGES: If you select a Safe and Smart, Convenience, Family Pack, Business Value Pack, Discount Weekender Value Pack, Extra Value Pack, Super Value Pack, or a Discount Time Pack Service Plan, the Service Rates and Charges in effect at the beginning of your initial Minimum Term will remain in effect until the end of that Minimum Term. You are hereby informed, and you acknowledge, that if you select any other Service Plan, Service rates may go up or down during the Minimum Term."

The Dreyfus Promotional Agreement contained a preprinted list of various standard service plans available and their respective price structures. Under this list was a box marked "Promotion" in which the following statement was preprinted:

"I choose to participate in the ________ Promotion. I understand that all of the conditions described in the Promotional Information apply to me, and I acknowledge that I received the Promotional Information before signing this Agreement."

The words "CME Value Plan" were hand-written in the blank space before the word Promotion. At the bottom of the contract, above plaintiff Dreyfus' signature, the following provision was pre-printed:

"EXTRA BONUS: If you purchase a Service Plan listed above, the Service Rates and Charges in effect at the beginning of your initial Minimum Term will remain in effect until the end of that Minimum Term."

On December 30, 1994, plaintiff Pun entered into a service agreement (Pun Service Agreement) and a promotional value agreement (Pun Promotional Agreement). Plaintiff Pun chose a standard service plan which guaranteed that service rates and charges would not change during the two-year contract term.

Defendant's promotional brochure provided the following:

"Ameritech cellular service saves you up to 35% over the competition...and that's not all!

With Ameritech pricing brochures, what you see is what you get.

--Did you know there are additional costs in the competitor's brochure? It states that you will be charged an additional $.02 per minute! Note that this cost is not included in their time package prices or their airtime list prices."

In December 1995, plaintiffs each received a letter from defendant in which defendant announced that "effective January 1, 1996, a two-cent [per minute] interconnect charge will appear on your bill as a line item called Interconnect Charge under the Other Charges and Credits section." Plaintiffs were first assessed interconnect charges in their monthly bills for January 1996. Thereafter, each monthly bill listed the ...


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