Aliano v. Sears, Roebuck & Co.

• Decision Date: 30 December 2015
• Docket Number: No. 1–14–3367.,1–14–3367.
• Citation: 48 N.E.3d 1239
• Parties: Mario ALIANO, Plaintiff–Appellee, v. SEARS, ROEBUCK AND CO., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

48 N.E.3d 1239

Mario ALIANO, Plaintiff–Appellee

v.SEARS, ROEBUCK AND CO., Defendant–Appellant.

No. 1–14–3367.

Appellate Court of Illinois, First District, Sixth Division.

Dec. 30, 2015.

Francis A. Citera, Jane B. McCullough, and Paul A. Del Aguila, all of Greenberg Traurig LLP, Chicago, for appellant.

Thomas A. Zimmerman, Jr., Eleonora P. Khazanova, and Matthew C. De Re, all of Zimmerman Law Offices, P.C., Chicago, for appellee.

OPINION

Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 Sears, Roebuck and Co. (Sears) appeals from a $3.10 judgment entered by the circuit court in favor of the plaintiff, Mario Aliano, on his claim brought pursuant to the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2008)) and the circuit court's subsequent award of $157,813.53 in attorney fees pursuant to section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 2008)). For the reasons which follow, we affirm the $3.10 judgment entered in favor of the plaintiff, reverse the award of $157,813.53 in attorney fees, and remand the matter for further proceedings.

¶ 2 On April 23, 2009, the plaintiff filed a five-count class-action complaint, alleging, inter alia, that Sears wrongfully collected sales tax on the entire sale price of digital-to-analog television converter boxes (converter boxes), despite the fact that a portion of the retail price of the devices was subsidized by federally-funded coupons (NTIA Coupons) which are exempt from Illinois sales tax. Although the complaint was amended several times, the matter proceeded on plaintiff's class-action claims until October 27, 2011, when he withdrew his motion for class certification, and the matter was transferred to the municipal department of the circuit court for further proceedings on the plaintiff's individual Consumer Fraud Act claim.

¶ 3 On January 10, 2013, the matter was tried, and on July 16, 2013, the circuit court issued a 17–page written order containing its findings of fact and conclusions of law and entering a judgment in favor of the plaintiff in the amount of $3.10. On July 31, 2013, the plaintiff filed a fee petition seeking $252,402.08 in attorney fees and costs. The circuit court conducted a hearing on the plaintiff's fee petition on September 4, 2014, and on October 6, 2014, entered an order awarding the plaintiff attorney fees in the amount of $157,813.53. This appeal followed.

¶ 4 In urging reversal of the underlying $3.10 judgment, Sears argues that the circuit court erred both in entering a judgment in favor of the plaintiff in the absence of a finding that he was deceived by any alleged misrepresentation by one of its sales associates, and in holding that its “collection of excess sales tax from Plaintiff is a de jure deceptive practice violation of the [Consumer Fraud Act].” We reject both arguments.

¶ 5 Section 10a(a) of the Consumer Fraud Act authorizes a private right of action for “[a]ny person who suffers actual damage as a result of a violation of [the] Act.” 815 ILCS 505/10a(a) (West 2008). The elements of a claim under the Consumer Fraud Act are: (1) a deceptive act or practice by the defendant; (2) the defendants intent that the plaintiff rely on the deception; (3) the occurrence of the deception in the course of conduct involving trade or commerce; and (4) actual damages to the plaintiff proximately caused by the deception. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.2d 100, 180, 296 Ill.Dec. 448, 835 N.E.2d 801 (2005). When, as in this case, a claim brought pursuant to the Consumer Fraud Act is based upon a misrepresentation, the plaintiff must prove that he was actually deceived in order to establish the element of proximate cause. Avery, 216 Ill.2d at 199, 296 Ill.Dec. 448, 835 N.E.2d 801. However, in order to recover based upon a misrepresentation, a plaintiff need not establish scienter as even innocent misrepresentations may be actionable under the Consumer Fraud Act. Duran v. Leslie Oldsmobile, Inc., 229 Ill.App.3d 1032, 1039, 171 Ill.Dec. 835, 594 N.E.2d 1355 (1992).

¶ 6 Certain of the facts giving rise to the plaintiff's Consumer Fraud Act claim are not in dispute. In January of 2008, the National Telecommunications and Information Administration of the United States Department of Commerce began administering a federally-funded program enabling each household in the country to receive two NTIA Coupons that could be used for the purchase of eligible converter boxes which enable analog televisions to receive digital signals. Upon purchasing a qualifying converter box, an individual could present a NTIA Coupon to the retailer and receive a credit against the purchase price of up to $40. The retailer would then be reimbursed by the federal government for the lesser of $40 or the purchase price of the converter box.

¶ 7 On July 1, 2008, the Illinois Department of Revenue issued an information bulletin, informing all Illinois retailers that NTIA Coupons were exempt from Illinois sales tax and that retailers were only to charge sales tax on the net sale price of a converter box after the value of a NTIA Coupon was applied to reduce the retail price of the device. The record establishes that Sears learned of the information bulletin in July of 2008.

¶ 8 On April 9, 2009, the plaintiff applied for, and thereafter received, two NTIA Coupons. On April 19, 2009, he purchased a qualifying converter box from Sears at its Oak Brook store and presented a NTIA Coupon at the time of the purchase. The retail price of the converter box which the plaintiff purchased was $59.99. The Sears sales associate who handled the transaction calculated the sales tax based upon the full retail price, resulting in a sales tax charge of $4.65. After adding $4.65 in sales tax to the $59.99 retail price of the converter box, the sales associate then subtracted the $40 value of the plaintiff's NTIA Coupon from the $64.64 gross price and charged the plaintiff $24.64. The plaintiff paid Sears the $24.64 calculated by its sales associate. Had the sales tax on the transaction been calculated as directed in the Illinois Department of Revenue's information bulletin, the $40 value of the plaintiff's NTIA Coupon should have been subtracted from the $59.99 retail price of the converter box and sales tax charged only upon the $19.99 remainder. If calculated properly, the plaintiff should only have been charged $1.55 in sales tax, not $4.65. The miscalculation resulted in the plaintiff being overcharged $3.10 in sales tax.

¶ 9 The plaintiff testified that he paid $24.64 for the converter box in reliance upon Sears's sales associate's representation that he owed that sum. He stated that, at the time that he purchased the converter box, he did not know that sales tax should not have been charged on the $40 value of the NTIA Coupon which he tendered. According to the plaintiff, had he known that Sears charged him too much for sales tax on the transaction, he would not have paid it.

¶ 10 In support of its argument that the plaintiff was not deceived when its sales associate represented that he owed $24.64 on the transaction, which included the $3.10 sales tax overcharge, Sears asserts that the plaintiff “went shopping for a law suit.” Sears calls our attention to the fact that, on March 16, 2009, one month prior to the plaintiff's purchase of the converter box which is at issue in this action, Adrian Nava filed a class action lawsuit in the Circuit Court of Cook County against Sears for improperly charging sales tax on the entire retail price of converter boxes purchased with the use of NTIA Coupons. Nava v. Sears, Roebuck & Co., No. 09 CH 11800 (Cir.Ct.Cook Co.). Coincidentally, the allegations in the plaintiff's original complaint are virtually identical to those in Nava's complaint. Sears refers to the plaintiff as a “professional class action plaintiff” who has filed 23 class action complaints in the past eight years, using the same attorneys that represent him in this action. The implication being that the plaintiff was not deceived by any misrepresentation made by Sears's sales associate, but rather he knew before purchasing the converter box that he would be overcharged for sales tax on the transaction and made the purchase so that he could file the instant action.

¶ 11 The facts relied upon by Sears could certainly support the inference that the plaintiff was not deceived by the representations of Sears's sales associate as to the net amount that he owed and that he was well aware at the time that he purchased the converter box that sales tax should not have been assessed on the $40 value of the NTIA Coupon which he tendered. However, the circuit court did not draw those inferences. Rather, in its order of July 16, 2013, the circuit court specifically found that: (1) the plaintiff paid Sears $24.64 on the purchase of the converter box in reliance upon its sales associate's representation that he owed that sum; (2) at the time of the transaction, the plaintiff did not know that sales tax should not have been charged on the $40 value of the NTIA Coupon which he tendered; and (3) had the plaintiff known that he was being overcharged for sales tax, he would not have paid the sum. The circuit court's findings in this regard rest upon the credibility of the plaintiff's testimony.

¶ 12 The circuit judge had the opportunity to see and hear the plaintiff while testifying and was in a far better position to judge his credibility. When, as in this case, the circuit court's findings of fact depend upon the credibility of a witness, we defer to the circuit court's findings unless they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill.2d 120, 124, 89 Ill.Dec. 869, 481 N.E.2d 712 (1985). A factual finding is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent or when the finding appears to be unreasonable,...