Barber v. Am. Airlines Inc

• Decision Date: 11 February 2010
• Docket Number: No. 1-09-0952.,1-09-0952.
• Citation: 339 Ill.Dec. 119,925 N.E.2d 1240,398 Ill.App.3d 868
• Parties: Andrea BARBER, Plaintiff-Appellant,v.AMERICAN AIRLINES, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

398 Ill.App.3d 868

925 N.E.2d 1240

339 Ill.Dec. 119

Andrea BARBER, Plaintiff-Appellant,v.AMERICAN AIRLINES, INC., Defendant-Appellee.

No. 1-09-0952.

Appellate Court of Illinois,

First District, Sixth Division.

Feb. 11, 2010.

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Howard C. Goode, Northbrook, for appellant.

Michael G. McQuillen, Mark S. Susina, Austin W. Bartlett, Lisa A. Devlin, Adler Murphy & McQuillen, LLP, Chicago, for appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

After plaintiff Andrea Barber filed a class action against defendant American Airlines, Inc., defendant moved quickly to refund the $40 baggage fee that plaintiff had paid in connection with her cancelled flight and that had been the subject of her class action suit. Citing the refund, the trial court found that there was no longer a controversy between the parties, and dismissed the suit pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2006). For the reasons discussed below, we reverse.

BACKGROUND

(1) Plaintiff's Complaint

Since a section 2-619 motion accepts as true all well-pleaded facts in the complaint and all reasonable inferences that can be drawn from those facts, we will provide the facts alleged by plaintiff in her complaint. Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 488, 327 Ill.Dec. 45, 901 N.E.2d 373 (2008).

The complaint alleged that plaintiff “purchased a ticket number 100173579545115 for transportation on flight number 4414 to travel from Chicago O'Hare to White Plains [New York] on August 11, 2008.” Plaintiff “checked in for the flight according to the procedures of the Defendant at O'Hare Airport and checked two suitcases for transport on her flight to White Plains, New York.” At check-in, defendant required plaintiff “to pay an additional $40.00 to Defendant for transportation of her two suitcases to New York.” Plaintiff alleged that “Defendant commenced charging passengers extra to transport their luggage on passenger flights on May 12, 2008.”

The complaint further alleged that, at some point after check-in, defendant “canceled the subject flight.” In response, plaintiff “requested a cancelation [sic] of her ticket and refund to the price of the subject airlines ticket and the $40.00 paid for transportation of her two suitcases from the Defendant's counter agent.” While defendant “authorized a refund of the price of the airline ticket,” it “refused to refund the $40.00 paid to transport her two suitcases.” Plaintiff alleged that she “was told by Defendant's counter agent at O'Hare Airport that it is the policy and practice of Defendant not to refund fees paid by ticket holders for transportation of luggage in connection with a passenger flight when that flight is canceled by Defendant and the passenger does not accept another flight.”

In addition, the complaint alleged that defendant failed to disclose that it would not refund the baggage fee if the flight was cancelled. In support of this allegation, plaintiff attached “Exhibit A” to her complaint. The complaint stated that “Exhibit A” was a “copy of Defendant's website Baggage Information.” Exhibit A appears to be a 2-page printout of a section from defendant's website that is entitled “General Baggage Information.” ¹

The “General Baggage Information” printout did not contain information about a refund in case of a cancelled flight. The printout stated, in relevant part, that:

“Customers who purchased domestic economy class tickets May 12, 2008 through June 14, 2008, may check one bag for free and check a second bag for $25 each way. Customers who purchased domestic economy class on or after June 14, 2008, will be charged $15 each way for the first checked bag and $25 each way for the second checked bag.”

Since plaintiff's travel date was August 11 and she checked two items, the above-quoted policy required her to pay $15 for her first checked item, and $25 for her second checked item, for a total of $40 for the two checked items.

The complaint contained 2 counts: count I was breach of contract; and count II was a class action. In count I, plaintiff alleged that defendant's “failure to transport her two suitcases was a breach of contract and Plaintiff was entitled to a refund.”

In count II, the class action count, plaintiff sought to bring this suit on behalf of “all other persons who (i) paid Defendant to have their luggage transported in conjunction with passenger travel; (ii) Defendant canceled their flight; (iii) passenger requested a refund for the canceled flight and luggage fee; and (iv) they were denied a refund of the fee paid for luggage transport.”

Plaintiff filed her complaint on August 15, 2008, four days after her flight was cancelled; and plaintiff served defendant with the complaint on August 21.

(2) Discovery

In an interrogatory dated September 29, 2008, plaintiff asked defendant to “[i]dentify persons receiving refunds for the ticket price on American Airlines or American Eagle flights canceled since June 15, 2008 who also paid baggage fees and did not receive a refund of the baggage fees and the amounts they each paid to transport their baggage.”

On October 30, 2008, defendant filed a response to plaintiff's interrogatory, objecting to it on two grounds. Defendant claimed, first, that the interrogatory was “overly broad, unduly burdensome and will not lead to the discovery of relevant evidence”; and second, that it was “premature while American's Motion to Dismiss remains pending.”

In a written order dated November 7, 2008, the trial court stated that “Defendant's objections to interrogatory is entered and continued.” On January 28, 2009, plaintiff moved to compel discovery. In a written order dated February 26, 2009, the trial court denied plaintiff's motion to compel, and observed that defendant's motion to dismiss was pending.

(3) Defendant's Section 2-619 Motion to Dismiss

Defendant did not file its motion to dismiss until October 30, 2008. Although defendant was served on August 21, 2008, with a summons requiring it to file an answer or otherwise appear within 30 days, defendant did not file an appearance until October 6, 2008, and did not file its dismissal motion until October 30. 166 Ill. 2d 101(d) (defendant must “file his answer or otherwise file his appearance within 30 days after service, exclusive of the day of service”). Although defendant's appearance was filed well after the 30-day period, the appellate record contains no orders granting defendant an extension of its time to answer or otherwise appear.

In its motion, defendant moved to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure on the ground that there was some “affirmative matter * * * defeating” plaintiff's complaint. 735 ILCS 5/2-619(a)(9) (West 2006). In essence, defendant's motion claimed, first, that plaintiff had received a full refund, pursuant to defendant's policy for refunding baggage fees on cancelled flights, and thus her claim was now moot. Second, defendant claimed that the court had to dismiss plaintiff's complaint, due to plaintiff's alleged failure to attach the contract to her complaint. A plaintiff, who alleges breach of contract, is statutorily required to attach the contract at issue, to her complaint. 735 ILCS 5/2-606 (West 2006) (“[i]f a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit”).

When considering a section 2-619 motion, a trial court may consider affidavits. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 262, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004). Thus, we will provide the information contained in the affidavits that defendant attached to its section 2-619 motion.

Defendant attached three affidavits from its employees: (1) Robert Trimm, a “Manager, Passenger Refund Services,” whose department credited plaintiff's credit card with a refund on September 25, 2008; (2) John Terrell, a “Senior Analyst for Support Services,” who identified defendant's “Conditions of Carriage” that were current on plaintiff's date of travel; and (3) Debra Shaffer, an “Executive Office Manager,” who reviewed plaintiff's complaint on September 4, 2008, and then immediately offered to refund plaintiff's baggage fees and possibly court costs.

Specifically, Robert Trimm, a passenger refund manager, stated that on “September 25, 2008, my department processed a refund back to the original form of payment in the amount of $40.00 for ticket number 0012604558285” ² and that “[t]his ticket was originally issued to Andrea Barber on August 11, 2008 for excess baggage charges.” The refund thus occurred approximately a month after defendant was served with plaintiff's complaint. Trimm stated that he had attached, as an exhibit to his affidavit, a copy of the business record created by defendant to memorialize the refund.

John Terrell, a “Senior Analyst for Support Services,” stated that he had attached, as an exhibit to his affidavit, a document entitled “American Airlines Conditions of Carriage.” He stated that he had “printed” this document on July 2, 2008, and that it was “a true and correct copy of American's Conditions of Carriage as it was available to airport agents on August 11, 2008.” He further stated that this document “would have been made available to customers asking to review or for a copy of American's Conditions of Carriage” on August 11, 2008.

The “Conditions of Carriage” is 12 pages long, single spaced, and in small font. It contains sections concerning both baggage and refunds. It does not state anything specifically about a refund of baggage fees after a cancelled flight.³ However, the document does state that “[a]s used in this contract, ticket means your passenger ticket and baggage check.” (Bold print in original). The document further states that “[i]n the event the refund is required because of America's failure to operate on...