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Rubino v. Circuit City Stores

February 09, 2001

MICHAEL RUBINO, PLAINTIFF-APPELLANT,
v.
CIRCUIT CITY STORES, INC. AND FIRST NORTH AMERICAN NATIONAL BANK (FNANB), DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 97 CH 6569 Honorable Albert Green, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

Not Released For Publication

MICHAEL RUBINO, PLAINTIFF-APPELLANT,
v.
CIRCUIT CITY STORES, INC. AND FIRST NORTH AMERICAN NATIONAL BANK (FNANB), DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County. No. 97 CH 6569 Honorable Albert Green, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

Plaintiff, Michael Rubino, filed a 23-count putative class action complaint alleging defendants Circuit City Stores, Inc. (Circuit City), and First North American National Bank (FNANB) violated the disclosure requirements of the Federal Truth in Lending Act (15 U.S.C. §1601 et seq. (1994)) (TILA), and certain of its associated federal regulations (12 C.F.R. ch. II, pt. 226 (1999)) (Regulation Z); the Illinois Retail Installment Sales Act (815 ILCS 405/1 et seq. (West 1998)); and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1998)). The circuit court dismissed counts II through XXIII of plaintiff's complaint pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 1998)) and denied plaintiff's motion to reconsider. The circuit court conducted a bench trial on count I of plaintiff's complaint, entered judgment in favor of defendants, and denied defendants' subsequent request for attorney fees.

 Plaintiff appeals the circuit court's dismissal of counts II through XXIII of his complaint and its judgment in favor of defendants on count I. Defendants cross-appeal the circuit court's denial of their motion for attorney fees.

First, the issue of this court's jurisdiction over plaintiff's appeal. Supreme Court Rule 303 provides, in relevant part:

"Rule 303. Appeals from Final Judgments of the Circuit Court in Civil Cases

(a) Time; Filing; Transmission of Copy.

(1) Except as provided in paragraph (b) below, the notice of appeal must be filed *** within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case, within 30 days after the entry of the order disposing of the last pending post-judgment motion.

(2) When a timely post-judgment motion has been filed by any party, whether in a jury or a non-jury case, a notice of appeal filed before the entry of the order disposing of the last pending post-judgment motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-judgment motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the post-judgment motion, as provided in subparagraph (a)(1) of this rule. ***

(b) Form and Contents of Notice of Appeal.

(2) It shall specify the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court.

(4) The notice of appeal may be amended without leave of court within the original 30-day period to file the notice as set forth in paragraph (a) above. Thereafter it may be amended only on motion, in the reviewing court, pursuant to paragraph (d) of this rule. Amendments relate back to the time of the filing of the notice of appeal." 155 Ill. 2d R. 303.

Here, the circuit court entered judgment in favor of defendants on August 31, 1999. Plaintiff filed his initial notice of appeal on September 17, 1999, which provided, "[T]he plaintiff appeals the Circuit Court's 7 April 1999 order granting defendant's motion to dismiss, the 18 May 1999 order denying the plaintiff's motion to reconsider, [and] the 31 August 1999 judgment for the defendant." Thereafter, defendants filed a posttrial motion for attorney fees. The circuit court denied this motion on December 29, 1999. Plaintiff filed a second notice of appeal on January 3, 2000, which provided, "The plaintiff previously filed a notice of appeal regarding all orders dismissing the complaint and entering judgment for the defendant. The plaintiff incorporates by reference all such orders in the instant notice of appeal which is filed solely to protect plaintiff's right to appeal such orders."

Defendants argue that this court lacks jurisdiction over plaintiff's appeal because his September 17, 1999, notice of appeal antedated the circuit court's final order entered on December 29, 1999, and because plaintiff's January 3, 2000, notice of appeal does not properly include the material required by Supreme Court Rule 303(b). We disagree. Plaintiff's second notice of appeal was timely filed. Moreover, it is to be liberally construed; unless the appellee is prejudiced, the appellant's failure to comply strictly with the form of the notice is not fatal if the deficiency is one of form and not substance. Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 433-34, 394 N.E.2d 380, 383 (1979). Because plaintiff's second notice of appeal, when considered as a whole, fairly and adequately sets out the orders and judgment complained of such that defendants were advised of the nature of the proceedings, the absence of strict technical compliance with form of notice is not fatal. 155 Ill. 2d R. 303(b)(2). This is particularly true because the form of notice may yet be corrected by amendment. 155 Ill. 2d R. 303(b)(4).

At trial, plaintiff testified that he went to his local Circuit City store to make a purchase. When he reached the checkout counter, the sales associate asked plaintiff if he wanted to use a Circuit City credit card. To apply for this credit card, the sales associate asked plaintiff a number of questions regarding his income, employer and residence. The sales associate typed this information into the computer, obtained credit approval, and rang the sale. Plaintiff further testified that after completing his purchase, he requested a copy of the credit card agreement (not the credit card application) and was told that Circuit City does not give out copies of the credit card agreement. Plaintiff added that, given this information, he anticipated the credit card agreement would arrive in the mail with the first bill, but it did not. Plaintiff testified he then telephoned the 1-800 telephone number listed on the credit card or bill to request a copy of the credit card agreement and was told by an unnamed corporate representative of Circuit City that Circuit City does not give the credit card agreements to its customers.

On cross-examination, plaintiff acknowledged that the sales associate asked him to sign the completed credit application and that he signed the application in two separate places. Plaintiff's credit application was introduced into evidence by stipulation. On the application, immediately above the second of plaintiff's two signatures, is the following language, "I have read and kept a copy of the credit card agreement and agree to its terms including a security interest in goods charged to my account."

Plaintiff further testified that the sales associate "handed [him] this application [and] he said sign at these two places to show that the information [I] gave is true and correct. I went with that." (Emphasis added.) He added that "[He] didn't get the chance to read all this at the store when [he] was signing it."

Circuit City's operations manager testified in rebuttal that although Circuit City does not give a copy of the credit card application to its customers, as that document is the property of FNANB, it is not the policy of Circuit City to refuse to give credit card agreements to its customers.

On appeal, plaintiff contends the circuit court erred in granting judgment for FNANB on count I of his complaint. Count I of plaintiff's complaint alleged FNANB violated TILA, by failing to give plaintiff a copy of the credit agreement before the first transaction is made under it (citing sections 226.5(b) and 226.6(a) of Regulation Z). We review the circuit court's decision using the manifest weight of the evidence standard. Cosmopolitan National Bank v. County of Cook, 103 Ill. 2d 302, 469 N.E.2d 183 (1984).

Although defendant testified at trial that he did not receive a copy of the credit agreement before the first transaction, his testimony was contradicted by the signed application in which he acknowledged having read and received the credit agreement. "A person may not enter into a transaction with his eyes closed to available information and then charge that he has been deceived by another." Central States Joint Board v. Continental Assurance Co., 117 Ill. App. 3d 600, 606, 453 N.E.2d 932, 936 (1983). It is the province of the trier of fact to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses' testimony. Maple v. Gustafson, 151 Ill. 2d 445, 452, 603 N.E.2d 508, 511-12 (1992). The circuit court's judgment was not against the manifest weight of the evidence.

Regarding counts II through XXIII of his complaint, plaintiff contends the circuit court erred in: (1) dismissing counts II through IX of his complaint, which alleged that FNANB violated various provisions of TILA and sought class certification on those claims; (2) dismissing counts X through XVII, which alleged that FNANB violated various Illinois business transactions acts (815 ILCS 505/1 et seq. (West 1998) (Consumer Fraud and Deceptive Business Practices Act); 815 ILCS 405/1 et seq. (West 1998) (Retail Installment Sales Act); 815 ILCS 205/1 et seq. (West 1998) (Interest Act); 815 ILCS 140/1 et seq. (West 1998) (Credit Card Issuance Act); 815 ILCS 510/1 et seq. (West 1998) (Uniform Deceptive Trade Practices Act)), and sought class certification on those claims; and (3) dismissing counts XIX through XXIII, which alleged that Circuit City violated various Illinois business transactions acts (815 ILCS 205/1 et seq. (West 1998) (Interest Act); 815 ILCS 505/1 et seq. (West 1998) (Consumer Fraud and Deceptive Business Practices Act); and 815 ILCS 510/1 et seq. (West 1998) (Uniform Deceptive Trade Practices Act)), and sought class certification on those claims. We review the circuit court's decision de novo. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994).

The Code of Civil Procedure (735 ILCS 5/1-101 et seq. (West 1998)) mandates that "[a]ll pleadings shall contain a plain and concise statement of the pleader's cause of action" (735 ILCS 5/2-603(a) (West 1998)) and that "[e]ach separate cause of action upon which a separate recovery might be had shall be stated in a separate count *** and each [count] shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation" (735 ILCS 5/2-603(b) (West 1998)). A complaint may be dismissed for failure to meet statutory pleading requirements. International Society for Krishna Consciousness, Inc. v. City of Evanston, 89 Ill. App. 3d 701, 411 N.E.2d 1030 (1980) (action dismissed for failure to meet statutory pleading requirements), cert. denied 454 U.S. 878, 70 L. Ed. 2d 188, 102 S. Ct. 358. Moreover, a complaint may be dismissed if it is drafted in such a manner as to render any attempt to answer futile. City of West Chicago v. Clark, 58 Ill. App. 3d 847, 374 N.E.2d 1277 (1978).

Here, the circuit court concluded that plaintiff's 14-page, 23-count second amended complaint, consisting of over 200 paragraphs failed to comply with section 2-603 of the Code of Civil Procedure. We agree.

A typical example from plaintiff's complaint:

"COUNT XX CLASS ACTION AGAINST CIRCUIT CITY

1. The plaintiff incorporates by reference paragraphs 3-6 of Count IX, Count XIX and ¶2 and 3 of Count XVI.

2. The class action is appropriate under the Illinois Consumer Fraud and Deceptive Practices Act."

Notably, count XIX, which plaintiff incorporates by reference, in turn incorporates by reference paragraphs 1 through 4 of count I. Similarly, paragraph 2 of count XVI, "supplement[s] paragraph 2 of Count IX, to be a class member, each consumer must have been damaged." ...


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