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P.J.'s Concrete Pumping Service, Inc. v. Nextel West Corp.

January 27, 2004

[5] P.J.'S CONCRETE PUMPING SERVICE, INC., INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLEE,
v.
NEXTEL WEST CORPORATION, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Lake County. No. 01-MR-860 Honorable John R. Goshgarian, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Callum

[8]  I. INTRODUCTION

[9]  Plaintiff, P.J.'s Concrete Pumping Service, Inc., filed a class action alleging that, by collecting, on behalf of municipalities, taxes from customers located in unincorporated areas, defendant, Nextel West Corporation, violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2000)) and was guilty of common-law fraud. The trial court certified a class of defendant's customers residing in Illinois and 16 other states. The trial court denied defendant's motion for reconsideration but certified the following question for review pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)): "Did the Illinois Supreme Court decision in Oliveira v. Amoco Oil Co., [201 Ill. 2d 134 (2002)], change the pleading requirements for misrepresentation claims in a class action suit under the Illinois Consumer Fraud Act to require an allegation of actual deception by each individual class member?" We affirm the order certifying the class, answer the certified question in the negative, and remand the cause.

[10]   II. BACKGROUND

[11]   Plaintiff's complaint alleges the following relevant facts. Defendant provides cellular telephone service, and plaintiff was defendant's customer. Plaintiff's place of business was located in unincorporated Lake County, just outside the Barrington village limits. Defendant was authorized to collect taxes on behalf of the municipalities that imposed them. The taxes were based on the revenues defendant generated from the cellular service it provided to customers residing within the municipalities that imposed them. If the zip code the customer provided when signing up for service with defendant placed the customer within a zip code area including a municipality authorizing taxes, then defendant would assess such taxes against the customer. Plaintiff's monthly bills included assessments for "City-Utility Tax" and "City-Gross Receipts Tax."

[12]   Plaintiff's complaint defined the class as "[a]ll persons who paid Defendant local, municipal, gross receipts or substantially similar taxes and do not live or have a place of business within a municipality that authorizes defendant to assess the taxes." Plaintiff alleged that defendant engaged in deceptive acts and practices by collecting these taxes even though it knew at the time that the customers may not live in municipalities that authorized defendant to assess the taxes. Defendant even continued to collect the taxes from those customers who informed defendant that they lived in unincorporated areas or in municipalities that did not authorize such taxes. Defendant intended that plaintiff and the other class members rely on its representations that the taxes were owed and that defendant was authorized to collect them. Defendant's representations and omissions injured plaintiff and the other class members by causing them to pay defendant money they otherwise would not have paid.

[13]   The complaint alleged that defendant violated the Consumer Fraud Act and similar acts of the other states in which defendant did business. Also, the complaint sought recovery for common-law fraud and a declaration that defendant cannot assess local taxes against its customers who do not live in municipalities that authorize defendant to collect the taxes.

[14]   Defendant moved to dismiss the complaint pursuant to section 2--615 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2000)). Defendant argued that the Village of Barrington was the proper defendant and that the voluntary payment doctrine barred plaintiff's claims. The trial court denied the motion. Defendant raised four affirmative defenses: (1) the voluntary payment doctrine barred plaintiff's claims; (2) it was not the proper defendant; (3) it could not be liable because it merely relied on the Barrington address plaintiff provided; and (4) plaintiff failed to comply with the subscriber agreement, which provided that, if a customer disputed a charge, the customer must provide a written explanation within 45 days of the disputed invoice.

[15]   Discovery revealed that plaintiff became defendant's customer in February 1997. In 1999, plaintiff moved to the location that is the subject of this suit. Plaintiff knew that its property did not lie within any municipality. The address plaintiff provided to defendant stated that the property was in Barrington. Shortly after plaintiff purchased the property, it sent a letter to the Village of Lake Barrington asking that municipality to annex plaintiff's property. The Village of Lake Barrington replied that it was not interested in annexing the property.

[16]   In January 2000, defendant began collecting Barrington taxes from plaintiff. Plaintiff paid its monthly bills, including the tax assessments, without protest. Around January 2001, Mary Lareau, one of plaintiff's employees and the wife of plaintiff's president, first noticed the municipal tax assessments and believed that defendant had made a mistake. Ms. Lareau called defendant, and a customer service representative informed her that defendant collected municipal taxes based on zip codes and that plaintiff had to pay the tax. After speaking to the customer service representative, Ms. Lareau believed that the assessments were proper.

[17]   Arguing against class certification, defendant raised several contentions. According to defendant, several individual factual issues predominated over the common issues. The issues that would have to be addressed for each class member were reliance and proximate cause, the voluntary payment doctrine, and where each customer received its bills in relation to a municipal boundary. Also, defendant argued that, because the class action implicated the tax ordinances of over 1,000 local governments and the laws of 17 states, the individual legal issues predominated. Moreover, according to defendant, plaintiff was an inadequate class representative because it was subject to unique defenses about whether its own misstatements induced defendant to include line items for Barrington taxes on plaintiff's bills. Finally, defendant asserted that class certification was inappropriate because it would preclude defendant from filing third-party claims against the out-of-state municipalities that ultimately received the taxes defendant collected from customers.

[18]   On May 18, 2002, the trial court certified the class as defined in the complaint. On September 21, 2002, defendant asked the court to reconsider the certification order or alternatively to certify questions for an interlocutory appeal pursuant to Rule 308(a). Defendant argued that Oliveira, decided on June 20, 2002, impliedly overruled several of the cases upon which plaintiff, and presumably the trial court, relied to certify the class. Oliveira held that a plaintiff alleging a violation of the Consumer Fraud Act must prove that he or she was actually deceived by the defendant's conduct. Oliveira, 201 Ill. 2d at 155. Defendant argued that, because plaintiff was sophisticated enough to discover that the tax assessments were incorrect but not zealous enough to refuse to pay them, it could not prove that defendant's conduct deceived it. Defendant asserted further that the class members likely had different levels of knowledge about the correctness of the assessments and therefore that class certification was inappropriate.

[19]   Defendant asked the trial court to certify the following questions in the event the court denied the motion to reconsider:

[20]   "(a) Whether Oliveira allows a [C]onsumer [F]raud [A]ct class action to proceed here, given the fact that the named plaintiff's testimony clearly demonstrates that the question of 'actual deception' will require a different analysis for each class member; and

[21]   (b) Whether a nation-wide class action (as opposed to an action limited to Illinois customers) is proper given the standards articulated in Oliveira."

[22]   The trial court found that there was substantial ground for difference of opinion about (1) "whether the Class should be certified, in light of Oliveira and its actual deception standard for proximate causation"; (2) "how Oliveira affects class certification generally and pleading requirements specifically"; and (3) "whether a nationwide consumer fraud class action may proceed here given Oliveira." Accordingly, the court certified the following question: "Did [Oliveira] change the pleading requirements for misrepresentation claims ...


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