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Nava v. Sears, Roebuck and Co.

Court of Appeals of Illinois, First District, First Division

July 29, 2013

ADRIAN NAVA, individually and on behalf of all others similarly situated, Plaintiff-Appellant and cross-appellee,
SEARS, ROEBUCK AND COMPANY, Defendant-Appellee and cross-appellant.


Appeal from the Circuit Court of Cook County. No. 09 CH 11800 The Honorable Mary Anne Mason, Judge Presiding.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justice Rochford concurred in the judgment and opinion. Justice Delort specially concurred, with opinion.



¶ 1 The plaintiff, Adrian Nava, appeals from an order of the circuit court granting summary judgment to the defendant, Sears, Roebuck and Company, on the plaintiff's action under the Consumer Protection and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 2010)). The plaintiff's claim was based on the defendant's having assessed state sales tax on the entire amount of digital television converter box purchases, despite the fact that part of the retail cost of those devices was subsidized by federal vouchers distributed to consumers. On appeal, the plaintiff argues that summary judgment was improper, because he produced evidence creating at least a genuine question of material fact as to each of the elements of his claim. In addition to contesting the plaintiff's argument on appeal, the defendant filed a cross-appeal to argue in the alternative that summary judgment was appropriate because the sales tax was statutorily proper and that the plaintiff's claim was mooted when it tendered him damages. For the reasons that follow, we dismiss the defendant's cross-appeal, reverse the circuit court's judgment, and remand for further proceedings.

¶ 2 In March 2009, the plaintiff filed a class-action complaint alleging that the defendant had collected sales tax on the full amount of his converter box purchase, including the amount that was subsidized by a federal consumer voucher program. Under the federal program, consumers were provided vouchers that retailers could submit to the federal government for reimbursement of the lesser of $40 or the price of a converter box. The plaintiff alleged that the defendant assessed sales tax on the full gross purchase price of the boxes despite a ruling from the Illinois Department of Revenue (the Department) stating that the federally subsidized amount was not subject to state sales tax. That complaint was replaced by a first amended complaint, which sought damages for violations of the Act, recovery under other legal theories, and attorney fees and costs. In June 2010, the circuit court allowed the plaintiff's claim under the Act to proceed but dismissed the remainder of the first amended complaint. Two days later, the plaintiff filed his second amended complaint, which contained the same basic factual allegations as his previous complaints. In its answer, the defendant agreed that the Department had issued guidance stating that sales tax should not be collected on the voucher amounts, but it denied that the guidance was applicable "to the extent that [it] conflict[ed] with the applicable state and federal laws." The defendant's answer also raised affirmative defenses of "failure to state a claim" and voluntary payment, but it did not cite any particular Illinois tax laws authorizing its collection of sales tax on the subsidized amount of converter box purchases. During the course of the litigation, the plaintiff withdrew his motion for class certification and elected to proceed in his individual capacity.

¶ 3 Following discovery, the parties filed cross motions for summary judgment. In its motion and responses, the defendant noted that, without admitting liability, it had tendered $1, 000 to the plaintiff to settle his claim, and the defendant argued that the offer rendered the plaintiff's claim moot. The defendant also argued that its collection of sales tax was proper and that the plaintiff had failed to produce evidence to support all of the elements of his claim under the Act. In support of its motion and response, the defendant produced the plaintiff's deposition. At his deposition, the plaintiff said that, when he came home from his shopping trip and examined his receipt, he noticed the sales tax he had been charged for his subsidized converter box purchase at a Sears store. He said that he believed he had been overcharged, especially after comparing his receipt to a receipt for another converter box purchase he made that same day at a different, nearby store. Nine days later, the plaintiff filed his initial class action complaint.

¶ 4 To support his motion for summary judgment and responses, the plaintiff presented the deposition transcript of Eric Fellner, the defendant's manager of sales and use tax compliance. Fellner testified that the defendant sent a memorandum to its Sears stores to provide directions on how to process converter box purchases so that sales tax was assessed on only the net, subsidized price, not the full gross price. He said that the defendant had no way to automate the process of modifying the sales tax to reflect the federal coupons at Sears stores, so the memorandum instructed Sears employees to alter the taxable base manually at the point of sale. He said that any taxes the defendant collected on sales of the boxes was remitted to the State. According to Fellner, the filing of the current lawsuit put him on notice that "the stores may not be using the manual process correctly or in all circumstances." As a result, the defendant changed its policy and collected no sales tax on converter box sales, yet still remitted tax to the State on those purchases. Fellner also explained that K-Mart stores, which are owned by the same company, charged no sales taxes on converter box purchases, because the manual override process on K-Mart registers would have been too cumbersome.

¶ 5 In June 2012, the circuit court denied the plaintiff's motion for summary judgment and granted the defendant's. The circuit court noted that the defendant had a policy of not taxing the subsidized portion of converter box purchases and of refunding any taxes mistakenly assessed, and thus that the cause of the plaintiff's damages was his failure to seek a refund, not the defendant's policy. The plaintiff now timely appeals, and the defendant cross-appeals.

¶ 6 Before analyzing the merits of this appeal and cross-appeal, we must discuss three procedural matters. First, we note that the defendant's cross-appeal asks us to affirm the circuit court's summary judgment ruling on alternative grounds. However, as our supreme court has explained, "[a] party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment." Material Service Corp. v. Department of Revenue, 98 Ill.2d 382, 386, 457 N.E.2d 9 (1983). Thus, where the circuit court grants summary judgment in favor of a party, that party cannot file a cross-appeal to seek relief from the summary judgment order. Dowe v. Birmingham Steel Corp., 2011 IL App (1st) 091997, ¶ 25. For that reason, we must dismiss the defendant's cross-appeal. We note, however, that we consider the arguments it raises in its cross-appeal in our disposition of the plaintiff's appeal.

¶ 7 The second procedural matter we must address concerns the plaintiff's violation of our supreme court rules governing the preparation of briefs. As the defendant points out in its written argument, the plaintiff submitted no appendix with his opening brief. Supreme Court Rule 342 (eff. January 1, 2005) requires an appellant to include in its brief an appendix with, among other things, a copy of the judgment appealed from, any findings of fact or memorandum opinions issued by the circuit court, any relevant pleadings, and a complete table of contents of the record on appeal. Ill. Sup. Ct. R. 342 (eff. January 1, 2005). The plaintiff's brief fails in each of these respects. We remind counsel that our Supreme Court Rules are not advisory suggestions, but, rather, rules to be followed. Eg., In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. Even so, we decline the defendant's request that we dismiss the plaintiff's appeal as a sanction for this violation.

¶ 8 The third procedural matter we must address is the defendant's claim that this matter is moot because it tendered a payment to the plaintiff. We address this claim as a threshold procedural matter because it is well established that "courts in Illinois do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided." In re Alfred H.H., 233 Ill.2d 345, 351, 910 N.E.2d 74 (2009). According to the defendant, its tender of $1, 000 to the plaintiff afforded him all the direct damages he suffered and covered any reasonable attorney fees incurred in the matter. The plaintiff, however, states that his attorney fees far exceeded this $1, 000 threshold. Without a circuit court finding that the plaintiff's claimed fees are unreasonable, and with no circuit court determination that fees should or should not be awarded, we cannot say as a matter of law that the plaintiff would not be entitled to more than $1, 000 in attorney fees if his suit were to succeed. Thus, we cannot say that the defendant's tender to the plaintiff mooted this appeal. In so stating, we mean to express no opinion regarding the plaintiff's assertion that his reasonable attorney's fees exceeded $1, 000.

¶ 9 On the merits, the plaintiff argues that the circuit court erred in granting summary judgment against him. We agree.

¶ 10 Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2–1005(c) (West 2010). "The function of a reviewing court on appeal from a grant of summary judgment is limited to determining whether the trial court correctly concluded that no genuine issue of material fact was raised and, if none was raised, whether judgment as a matter of law was correctly entered." American Family Mutual Insurance Co. v. Page, 366 Ill.App.3d 1112, 1115, 852 N.E.2d 874 (2006). "The propriety of a trial court's decision to grant summary judgment presents a question of law, which we review de novo." Bigelow Group, Inc. v. Rickert, 377 Ill.App.3d 165, 168, 877 N.E.2d 1171 (2007). We may affirm the circuit court's grant of ...

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