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Bruemmer v. Compaq Computer Corp.

March 29, 2002

ROBERT BRUEMMER, INDIV. AND FOR A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF-APPELLANT,
v.
COMPAQ COMPUTER CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Quinn.

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable Stephen A. Schiller, Judge Presiding.

On October 20, 1998, plaintiff, Robert Bruemmer, filed a class action complaint against the defendant, Compaq Computer Corporation, asserting consumer fraud and breach of contract causes of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)) and the Uniform Commercial Code (810 ILCS 5/1-101 et seq. (West 1998)). Plaintiff alleged that defendant failed to refund the purchase price of his computer, as provided in the warranty, after defendant was unable to repair the malfunctioning computer. Plaintiff voluntarily withdrew and amended the complaint to include additional counts for violation of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Magnuson-Moss Warranty Act) (15 U.S.C. §2301 (1994)) and common law breach of contract. After the suit was filed, defendant attempted to tender a refund to plaintiff for the purchase price of the computer; however, plaintiff refused to accept it. The trial court dismissed plaintiff's amended complaint and granted him leave to replead. Following two attempts to replead, the trial court dismissed plaintiff's third amended class action complaint with prejudice as moot, and denied, in part, plaintiff's petition for attorney fees and costs. Plaintiff now appeals.

On appeal, plaintiff argues that the trial court erred: (1) in striking plaintiff's class allegations from the complaints rather than dealing with the class issues on a motion for class certification; (2) in striking/dismissing plaintiff's count for a declaratory judgment; (3) in striking/dismissing plaintiff's count for violation of the Consumer Fraud Act; (4) in dismissing plaintiff's complaint as moot; and (5) in denying in part plaintiff's petition for attorney fees and costs.

For the following reasons, we affirm.

I. BACKGROUND

In October of 1997 plaintiff purchased a new Pentium personal desktop computer from the defendant. The computer was accompanied by a one-year limited warranty which provided:

"During the warranty period, Compaq will, at no additional charge, repair or replace defective parts with new parts or, at the option of Compaq, serviceable used parts that are equivalent or superior to new parts in performance***.If, after repeated efforts, Compaq is unable to restore the Product to good working order, you are entitled to a refund of the purchase price."

Shortly after installation, the computer began to malfunction. The computer screen turned blue and displayed a "fatal exception error." This type of malfunction is commonly known as a "crash." Plaintiff's computer continued to experience the malfunction. Plaintiff telephoned defendant's technical service department approximately a dozen times during the month that followed his computer purchase. Although the technical representatives had plaintiff reconfigure settings and reinstall software, the malfunction persisted.

Toward the end of January 1998, defendant sent a technical representative out to repair plaintiff's computer. The representative replaced the motherboard of the computer but the "crash" malfunction continued. Defendant's repair technicians worked on plaintiff's computer three additional times over the following three months. The technicians replaced the memory, the central processing unit and the motherboard for a second time; however, the problem persisted.

Plaintiff spoke with Tim Rivali, defendant's customer service representative, in early April of 1998 and requested a refund of the purchase price of the computer pursuant to his warranty. Plaintiff's complaint alleged that Rivali refused to provide plaintiff with a refund, stating simply "we are not going to give you a refund." Plaintiff also requested a refund in June of 1998, which was again denied.

On October 20, 1998, plaintiff filed a class action complaint against defendant. Originally, plaintiff sought to represent a class which included all Compaq purchasers who purchased defective computer hardware and for whom, after repeated efforts to restore the defective hardware to good working order, Compaq failed to comply with the warranty to refund the purchase price. Plaintiff asserted causes of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 1998)) (count I) and the Uniform Commercial Code (810 ILCS 5/1-101 et seq. (West 1998)), for breach of express warranty (count II). Plaintiff subsequently voluntarily withdrew the complaint and amended it to include causes of action for violation of the Magnuson-Moss Warranty Act (15 U.S.C. §2301 (1994)) (count III), and common law breach of contract (count IV). Plaintiff changed the purported class he was representing to all purchasers of Compaq computers who received the limited warranty that he received.

On November 18, 1998, less than a month after plaintiff filed suit in this case, defendant attempted to tender a refund of the purchase price of the computer to plaintiff. Plaintiff rejected this offer and chose to pursue this suit.

Defendant moved to strike the class action claims as well as counts I and II of the complaint. The trial court granted defendant's motion and granted plaintiff 28 days to replead and file an amended complaint. Plaintiff's proposed second amended complaint asserted causes of action for violation of the Magnuson-Moss Warranty Act (count I), common law breach of contract (count II), declaratory judgment (count III), and violation of the Consumer Fraud Act (count IV). The trial court denied plaintiff's motion to file the proposed second amended complaint, holding that plaintiff had not stated a cause of action for declaratory judgment and finding the class and consumer fraud claims to be insufficient. The court granted plaintiff leave to file another amended complaint. Defendant, on August 4, 1999, again offered to refund plaintiff's purchase price. Plaintiff rejected the offer.

Plaintiff filed a second amended complaint. This complaint identified the class as all owners of Compaq's computers covered by Compaq's limited warranty that "[i]f, after repeated efforts, Compaq is unable to restore the Product to good working order, you are entitled to a refund of the purchase price." Plaintiff additionally sought a declaration as to the meaning of the phrase "repeated efforts." The defendant moved to strike with prejudice the class claims and counts III and IV of the second amended complaint. The trial court struck plaintiff's declaratory judgment claim (count III), struck plaintiff's Consumer Fraud ...


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