Cohen v. Compact Power Systems, LLC

• Decision Date: 04 April 2008
• Docket Number: No. 1-07-0814.,1-07-0814.
• Citation: 887 N.E.2d 668
• Parties: Irwin COHEN, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. COMPACT POWER SYSTEMS, LLC, a California Limited Liability Corporation, Enterprise Systems, Inc., d/b/a ESI Enterprises, Inc., an Illinois Corporation, Nextel West Corporation, and Mr. Cell Wireless, an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

887 N.E.2d 668

Irwin COHEN, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. COMPACT POWER SYSTEMS, LLC, a California Limited Liability Corporation, Enterprise Systems, Inc., d/b/a ESI Enterprises, Inc., an Illinois Corporation, Nextel West Corporation, and Mr. Cell Wireless, an Illinois Corporation, Defendants-Appellees.

No. 1-07-0814.

Appellate Court of Illinois, First District, Fifth Division.

April 4, 2008.

Law Offices of Mark D. Belongia, LLC, Chicago, IL, Mark D. Belongia and Nathaniel R. Sinn, for Appellant.

Much Shelist Denenberg Ament & Rubenstein, P.C., Chicago, IL, Anthony C. Valiulis and Melinda J. Morales, for Appellee, Compact Power Systems, LLC.

Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., Chicago, IL, Frederic R. Klein, Roger A. Lewis and Priya M. Bhatia, for Appellee, Nextel West Corporation.

Presiding Justice FITZGERALD SMITH delivered the opinion of the court:

Plaintiff-appellant Irwin Cohen (Cohen), on behalf of himself and all others similarly situated, filed a class action complaint against defendants-appellees Compact Power Systems, LLC (Compact), Enterprise Systems, Inc. (Enterprise), Nextel West Corp. (Nextel West) and Mr. Cell Wireless (Mr. Cell) regarding his purchase of certain batteries. Compact and Nextel West filed motions to dismiss. The trial court granted Compact's motion, finding that Cohen's cause of action was moot and dismissing the cause as to all defendants. Cohen appeals, contending that the trial court erred when it granted Compact's motion. He asks that we reverse and vacate the court's order and remand the cause for further proceedings, including trial. For the following reasons, we affirm.

BACKGROUND

On February 22, 2006, Cohen went to Mr. Cell, an authorized retailer of Nextel products, to purchase a cellular telephone. While at this store, Cohen saw a display for Cellboost brand batteries for portable devices, a non-Nextel product. Each of the battery packages advertised a coupon offer of "Buy 1 Get 1 Free! — limited time mail in offer," with the coupon sealed inside. Cohen purchase three of these Cellboost battery packages. Later, upon opening them, Cohen discovered that the coupons inside had an expiration date of January 31, 2006, approximately one month before he bought them. On June 14, 2006, alleging that he would not have bought the batteries if they had not been offered with the coupon, Cohen filed a class action complaint against Compact (the battery manufacturer), Enterprise (the battery distributor), Mr. Cell and Nextel Retail Stores, LLC, alleging unfair conduct, deceptive business practices, unjust enrichment and conversion.

On July 5, 2006, Compact sent a letter to Cohen explaining that since at least that date, it had been informing its customers via its Web site and an 800 telephone number, both of which were listed on the Cellboost battery coupons, that it would be honoring all of the expired coupons through January 2007. Compact attached a printout of its Web site to the letter to reflect this policy. On July 26, 2006, Compact filed its appearance in the cause. On July 31, 2006, Compact made a settlement offer to Cohen of all his alleged damages, informing him again of its policy to honor the expired coupons. As the terms of its offer, Compact sent Cohen a check for $27.70 (the cost of three Cellboost batteries plus 5% interest) and, as an alternative, an offer to provide him with three Cellboost batteries in lieu of payment; the offer made clear that Compact would continue honoring the expired coupons. Cohen rejected the offer and returned the check to Compact.

In August 2006, Nextel Retail Stores, LLC, filed a motion to dismiss, asserting that Cohen had named the wrong Nextel entity in his suit and that he failed to allege facts sufficient to establish an agency relationship between Nextel Retail Stores, LLC, and Mr. Cell. On September 5, 2006, Cohen obtained leave to file an amended complaint by October 3, 2006. Before he filed his amended complaint, Compact renewed its settlement offer and Cohen again rejected it.

On October 3, 2006, Cohen filed an amended class action complaint to name the proper Nextel entity: Nextel West; all other portions of the complaint remained the same. On October 31, 2006, Compact filed a motion to dismiss the cause pursuant to both sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2006)), asserting, respectively, that Cohen failed to adequately plead each count in the amended complaint and that his cause was moot because Compact had made tender offers prior to his filing for class certification. Nextel West also filed a section 2-619 motion to dismiss, asserting that since Mr. Cell is an independent contractor, Nextel West could not be liable for Mr. Cell's sale of the nonNextel batteries.

Following a hearing, the trial court granted Compact's section 2-619 motion on February 27, 2007, finding Cohen's cause to be moot because Compact had made a tender offer to Cohen and all putative class members through its July 5, 2006, letter giving them the full relief requested in the amended complaint before Cohen had filed for class certification. The trial court further concluded that "there was no attempt to thwart the class action" since Compact not only tendered the offer at that time in the full amount of relief requested in the amended complaint, but also informed Cohen that the coupons would continue to be honored for all putative class members until at least January 2007.¹ Because the trial court dismissed all of the named defendants pursuant to its finding, the court did not address Nextel West's motion to dismiss.

Cohen has never filed a motion for class certification in this cause.

ANALYSIS

On appeal, Cohen contends that the trial court improperly granted Compact's section 2-619 motion to dismiss his amended class action complaint as moot. Cohen asserts that the court erred when it based its decision on the fact that Compact made a tender to him before he filed a motion for class certification and that he was not afforded a reasonable opportunity in which to file such a motion. We disagree.

A motion to dismiss pursuant to section 2-619 admits the legal sufficiency of the complaint and affirms all well-pled facts and their reasonable inferences, but raises defects or other matters either internal or external from the complaint that would defeat the cause of action. See Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 85, 209 Ill.Dec. 684, 651 N.E.2d 1132 (1995); Jenkins v. Concorde Acceptance Corp., 345 Ill.App.3d 669, 674, 280 Ill.Dec. 749, 802 N.E.2d 1270 (2003). While a trial court should not grant such a motion unless it is clear that there is no way a plaintiff may recover (see Ostendorf v. International Harvester Co., 89 Ill.2d 273, 280, 60 Ill.Dec. 456, 433 N.E.2d 253 (1982)), dismissing a cause pursuant to section 2-619 efficiently allows for the disposal of issues of law or easily proved facts early in the litigation process. See Coles-Moultrie Electric Cooperative v. City of Sullivan, 304 Ill.App.3d 153, 158, 237 Ill.Dec. 263, 709 N.E.2d 249 (1999). We review an appeal from the grant of a section 2-619 motion on a de novo basis in order to determine whether the trial court correctly found no genuine issue of material fact existed and judgment as a matter of law was proper. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993); accord Spirit of Excellence, Ltd. v. Intercargo Insurance Co., 334 Ill.App.3d 136, 145, 267 Ill.Dec. 857, 777 N.E.2d 660 (2002); accord Zedella v. Gibson, 165 Ill.2d 181, 185-86, 209 Ill.Dec. 27, 650 N.E.2d 1000 (1995).

A cause of action "is moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief." Wheatley v. Board of Education of Township High School District 205, 99 Ill.2d 481, 484-85, 77 Ill.Dec. 115, 459 N.E.2d 1364 (1984); accord Gelb v. Air Con Refrigeration & Heating, Inc., 356 Ill.App.3d 686, 699, 292 Ill.Dec. 250, 826 N.E.2d 391 (2005) (Gelb II); Yu v. International Business Machines Corp., 314 Ill.App.3d 892, 898, 247 Ill.Dec. 841, 732 N.E.2d 1173 (2000).

In order for a class action to proceed, the named representative of the putative class who has filed the complaint — i.e., the plaintiff-must possess a valid claim against the defendant.² See Wheatley, 99 Ill.2d at 486, 77 Ill.Dec. 115, 459 N.E.2d 1364 (this is a statutory prerequisite before a suit can be sanctioned and maintained as a class action). The defendant is not prohibited from offering a settlement or tender to the named plaintiff or putative class members prior to class certification. See Arriola v. Time Insurance Co., 323 Ill.App.3d 138, 145, 256 Ill. Dec. 168, 751 N.E.2d 221 (2001). In fact, the defendant may do so even if this renders the class action no longer maintainable (see Arriola, 323 Ill.App.3d at 145, 256 Ill.Dec. 168, 751 N.E.2d 221 (that is, even if this causes an insufficient number of remaining class members)), and regardless of whether the defendant had the intent to prevent class formation with such tender (see Bruemmer v. Compaq Computer Corp., 329 Ill.App.3d 755, 763, 263 Ill.Dec. 516, 768 N.E.2d 276 (2002), citing Arriola, 323 Ill.App.3d at 150, 256 Ill.Dec. 168, 751 N.E.2d 221). The plaintiff, meanwhile, is not allowed to perpetuate controversies by merely refusing the defendant's tender. See Hillenbrand v. Meyer Medical Group, S.C., 308 Ill.App.3d 381, 389, 241 Ill.Dec. 832, 720 N.E.2d 287 (1999); accord Gelb II, 356 Ill.App.3d at 700, 292 Ill.Dec. 250, 826 N.E.2d 391; Bruemmer, 329 Ill.App.3d at 761, 263 Ill.Dec. 516, 768 N.E.2d 276.

Therefore, the general rule has developed that if the defendant tenders to the named plaintiff the relief requested before the class is certified, the underlying cause of action must be dismissed as moot as...