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Krautsack v. Anderson

March 29, 2002

RICHARD G. KRAUTSACK, PLAINTIFF-APPELLANT,
v.
DAVID ANDERSON, D/B/A DAVID ANDERSON SAFARIS, AND LUXURY ADVENTURES, LTD., A CORPORATION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Burke.

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Loretta C. Douglas, Judge Presiding.

Plaintiff Richard Krautsack appeals from three orders of the circuit court granting summary judgment in favor of defendants David Anderson (Anderson), doing business as David Anderson Safaris, and Luxury Adventures, Ltd. (Luxury Adventures), striking his motion for reconsideration, and granting attorney fees and costs to Anderson and Luxury Adventures pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a(c) (West 1998)) on Krautsack's complaint against defendants alleging breach of contract and consumer fraud. On appeal, Krautsack contends that the trial court erred in granting summary judgment on both his consumer fraud claim and his breach of contract claim, that it erred in striking his motion for reconsideration because the motion was timely, and that it erred in granting costs and fees to Anderson and Luxury Adventures because the facts of the case did not support or warrant the imposition of sanctions. For the reasons set forth below, we reverse and remand.

STATEMENT OF FACTS

This lawsuit arose as a result of Krautsack's trip to East Africa in January 1998, which was arranged by Anderson and his corporation Luxury Adventures, doing business as David Anderson Safaris. Because of El Nino, although unknown and unidentified at that time, it rained the entire time Krautsack toured Africa. On September 1, 1998, Krautsack filed a complaint against Anderson, alleging claims based on the Consumer Fraud Act and breach of contract, and seeking a refund of the cost he had paid for defendants' services and his trip. On December 16, 1999, Anderson filed a motion for summary judgment. Subsequently, Krautsack filed an amended complaint, adding Luxury Adventures as a defendant, alleging a cause of action based on the Consumer Fraud Act. On February 23, 2000, Anderson and Luxury Adventures filed a motion for summary judgment. Thereafter, Krautsack filed an "Opposition to Defendants' Motion for Summary Judgment" and Anderson and Luxury Adventures filed a reply.

Various evidence was offered in support of and in opposition to the motion for summary judgment, including the depositions of Anderson and Krautsack. Anderson testified that he was the president of Luxury Adventures, a California corporation, doing business as David Anderson Safaris, of which he was the managing member. The company was in the business of marketing African safaris to affluent clients. With respect to refunds in general, Anderson first testified that he had refunded money to unhappy travelers in the past. However, it was not a regular occurrence and he estimated that it occurred less than 25 times. Anderson then stated that credits were given to such customers, not refunds. Subsequently, Anderson stated that he had given partial refunds. According to Anderson, the company only gave refunds if the services were not supplied.

With respect to complaints about bad weather, Anderson testified that he had approximately five complaints about weather prior to Krautsack's complaint. However, he did nothing about the complaints, taking the position that he could not be responsible for the weather.

According to Anderson, Krautsack first contacted his company in the summer of 1997. Anderson, or someone in his office, spoke to Krautsack in December 1997 with respect to cholera, but he could not remember to whom. Anderson further stated that when travel consultants have any significant conversation with a customer, an entry and notes are made on what the company refers to as the "history report." However, he admitted that consultants do not always enter information on the report. After reviewing the history report from 1997, Anderson testified that he spoke to Krautsack on December 16, 1997, with respect to cholera, although he had no memory of the conversation. Anderson also did not recall Krautsack mentioning any concern about the weather or any fax from Krautsack to him of a newspaper article about the weather in Africa.

Anderson further testified that on January 6, 1998, Krautsack contacted his office regarding his concerns about the weather and road conditions in Africa. At this time, Krautsack raised the question of postponement. According to Anderson, he told Krautsack that before he decided what to do, Anderson would contact the people in Africa and see what the report was. Anderson then contacted various individuals in Africa to ascertain the conditions--Willy of Kobi Safaris with respect to Tanzania; Ann Birch of Cheli & Peacock with respect to Kenya; and Duncan of Destination Africa. Anderson then quoted the responses from these individuals in a letter he faxed to Krautsack on January 7, and advised Krautsack to call if the information did not address his concerns. Anderson never received a call from Krautsack prior to his departure. According to Anderson, the information he received told him that there had been rain and it was muddy, but that with four-wheel drive vehicles, safaris were proceeding as normal. Anderson stated that he left the decision of postponement up to Krautsack. He denied that he "pushed" Krautsack to continue with the trip. Anderson also denied that Krautsack ever asked him to reschedule the safari, but, if he had, it would "definitely" have been possible. However, according to Anderson, if Krautsack had rescheduled, he would have lost any money he had paid for the safari.

Anderson also testified that after being contacted by Krautsack following his trip, which according to Anderson first occurred on March 12, 1998, he asked one of the African suppliers for a refund of Krautsack's payment for the safari, but was told no refund would be made because Krautsack had received the services for which he had paid. According to the information Anderson received, Krautsack went to all the game parks and did not miss any game drives.

Anderson further testified that over the last 100 years, the rainy season in East Africa has been in April and May, there have been short rains in November, and January is generally dry. According to Anderson, the African weather was "extremely predictable" in the past. He also stated that the weather Krautsack experienced was "extremely wet. Totally out of character." The rain started in November 1997 and continued through June and July 1998. At the time of Krautsack's trip, no one was yet aware that it was due to the effects of El Nino.

With respect to the e-mail sent by Anderson and relied upon by Krautsack, detailed below, Anderson testified that this e-mail was sent sometime after March 12, but before March 30, and was an attempt to obtain some refund compensation for Krautsack. Anderson admitted that in the e-mail he stated, because he was fighting for his client, that Krautsack had a valid claim. Although acknowledging that he used the term "pushed," in reference to Krautsack continuing with his safari plans, in the e-mail, according to Anderson, the term "pushed" was "open to interpretation." In addition, Anderson admitted that this term could be interpreted differently from the statements made in his letter to Krautsack on January 7, 1998, to the effect that he was leaving the decision of postponement of Krautsack's trip up to him. *fn1 Anderson further testified that the document signed by Krautsack, purporting to be the contract between the parties, did not address the issue of postponement.

Krautsack testified that he first contacted Anderson's company in March 1997, after being referred to it by a neighbor. He initially dealt with Gail, Anderson's ex-wife. She advised Krautsack to travel in the dry season, which she stated was during December and January. Krautsack further testified that he spoke to Anderson's company often, "fine tuning" his travel plans.

According to Krautsack, the issue of the weather in Africa first arose on December 7, 1997. His wife had found a newspaper article regarding various conditions in Africa, which Krautsack faxed to Anderson's office. Krautsack further testified that he left a voice mail message on Anderson's telephone, asking for an explanation. Leonora, another individual in Anderson's office, called Krautsack back and stated that Anderson would give him a response. Krautsack believed that Anderson called in the middle of December 1997, speaking to his wife, and discussing cholera. Anderson failed to address Krautsack's concern with respect to the rain. Krautsack believed that he again contacted Anderson in the latter part of December with respect to the rain in Africa. Krautsack stated that he again faxed the same newspaper article to Anderson.

Krautsack further testified that Anderson returned his call on January 6, 1998. Anderson advised him that he would fax information to Krautsack, but, according to Krautsack, Anderson led him to believe that the rain in Africa was "not a big deal." Krautsack stated that he did not respond to Anderson's January 7 fax because, from his conversation with Anderson the day before, he believed that "everything was fine."

With respect to the prevailing weather conditions in Africa during his actual trip, Krautsack testified that it was wet, rainy, and muddy in Masai Mara and that under such conditions the "cats go." He stated that sites were "definitely" inaccessible depending on where he was supposed to go. According to him, certain roads were unusable. Krautsack admitted that he went on game drives every day and saw animals. With respect to his Rusinga fishing trip, Krautsack stated that he was able to fish. However, he stated that the plane that took him to the fishing destination should never have been allowed to take off due to the wet conditions of the airfield. Krautsack also testified that he should never have gone to Ol Donyo Wuas because the conditions there were terrible. Instead of driving to game drives, he had to walk because the roads were inaccessible. At Giraffe Manor, he was confined to the building and could not walk the grounds. Lastly, with respect to Tanzania, Krautsack testified that this region suffered from severe flooding and many roads were washed out. He was supposed to drive to the Ngorongor Crater, which was to be a short drive, but he had to fly because of road conditions. According to Krautsack, his driver did in fact drive, which took 14 hours. Upon arriving at the crater, a good half of it was inaccessible and Krautsack had to go all the way around the crater to access it rather than accessing it from his accommodations because the roads were washed out. Krautsack stated that he never complained to any of the individuals at the particular camps about the conditions because he had contracted with Anderson, not those individuals. Upon returning from his trip, Krautsack wrote to Anderson on January 27 expressing the problems with his vacation.

Anderson and Luxury Adventures supported their motion with a letter faxed by Anderson to Krautsack on January 7, in which he related the effects of the rains in East Africa. The letter stated that he had contacted three individuals in Africa. Their general responses were that it was wet and rainy. With respect to Masai Mara, the individual indicated that this was the wettest area on Krautsack's itinerary, but that, with four-wheel drive vehicles, current groups of safaris were getting around fine. With respect to Tanzania, the individual indicated that safaris were ongoing and were getting around fine, despite the rain. With respect to the Ngorongor Crater, although indicating it was a bit difficult getting around, the individual stated that Anderson's "client ought not to worry." Anderson quoted the responses of each individual in his letter to Krautsack.

Krautsack offered a copy of the newspaper article that his wife had discovered in early December. The article stated that there had been "torrential rains" in East Africa causing heavy flooding and that the danger of disease existed. It recommended that individuals consider deferring travel to Kenya and Tanzania until the weather cleared. The article also noted that political reforms were underway in Kenya. Krautsack testified that he faxed a copy of this article to Anderson. Krautsack placed an arrow and "?" next to the statements with respect to the rain and reform, and circled and placed "?" next to the statements with respect to diseases. Krautsack also offered an e-mail written by Anderson, sometime in March according to Anderson's testimony, to one of the African suppliers. In this e-mail, Anderson made the following statements: "I need to satisfy him [Krautsack] that while he did not get what he had paid for, David Anderson Safaris will make it up to him." Additionally, Anderson stated, "I think I was protecting a lot of asses when I 'pushed' Mr. Krautsack to continue with his safari plans." Anderson also stated that he was not in a position to refund Krautsack's money but believed that Krautsack had a "valid" claim and that Anderson would like to give Krautsack a full credit. Krautsack also offered another e-mail written by Anderson, undated, to Willy, Peter, and Duncan (African suppliers) in which Anderson stated, "[G]iven that I recommended that [Krautsack] not cancel or reschedule [his] safari," Anderson was seeking compensation for Krautsack.

Following a hearing, *fn2 the trial court granted summary judgment in favor of Anderson and Luxury Adventures on all counts of Krautsack's complaint on June 21, 2000. Thereafter, Anderson and Luxury Adventures filed a motion for attorney fees pursuant to the Consumer Fraud Act. On August 2, Krautsack filed a motion to reconsider the court's order granting summary judgment. In response, Anderson and Luxury Adventures filed a motion to strike the motion to reconsider on the basis that the motion was not timely filed. On November 3, the trial court sustained Anderson and Luxury Adventures' motion to strike. On December 4, Anderson and Luxury Adventures filed a supplemental petition for fees pursuant to the Consumer Fraud Act, as well as a motion for Rule 137 sanctions. After a hearing, the trial court granted Anderson and Luxury Adventures' request for fees, pursuant to both provisions, but reduced the amount Anderson and Luxury Adventures sought and awarded Anderson and Luxury Adventures fees of $10,499 and costs of $104. This appeal followed.

ANALYSIS

A motion for summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file establish that no genuine issue as to any material fact exists and, therefore, the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998); Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 530, 675 N.E.2d 897 (1996). In ruling on a motion for summary judgment, the trial court should not resolve disputed factual matters, nor make credibility determinations. Prairie v. University of Chicago Hospital, 298 Ill. App. 3d 316, 327, 698 N.E.2d 611 (1998). The trial court's function "is simply to determine whether a factual controversy exists, and if not, whether the movant is entitled to judgment as a matter of law." Winston & Strawn v. Nosal, 279 Ill. App. 3d 231, 236, 664 N.E.2d 239 (1996). All evidence is to be liberally construed in favor of the non-movant. In re T.J., 319 Ill. App. 3d 661, 671, 745 N.E.2d 608 (2001). The trial court may not weigh the evidence. Watkins v. Schmitt, 172 Ill. 2d 193, 211, 665 N.E.2d 1379 (1996). We review the trial court's decision de novo. McNamee v. State of Illinois, 173 Ill. 2d 433, 438, 672 N.E.2d 1159 (1996). Our duty, like the trial court's, "is not to judge the strength of the evidence or to weigh the credentials, credibility and testimony of one deponent against another." McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 948, 627 N.E.2d 202 (1993).

In the instant case, we believe that Anderson's March 1998 e-mail alone creates numerous genuine issues of material fact, discussed more fully below, that were sufficient to preclude summary judgment on both Krautsack's consumer fraud and breach of contract claims. We also find that the trial court, in granting summary judgment, would have had to make credibility determinations where the evidence was ...


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