Crain v. Lucent Technologies, Inc.

• Decision Date: 14 November 2000
• Docket Number: No. 5-99-0514.,5-99-0514.
• Citation: 250 Ill.Dec. 876,739 N.E.2d 639,317 Ill.App.3d 486
• Parties: Donna CRAIN, on behalf of herself and others similarly situated, Plaintiff-Appellee, v. LUCENT TECHNOLOGIES, INC., and AT & T Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

739 N.E.2d 639

317 Ill.App.3d 486

250 Ill.Dec. 876

Donna CRAIN, on behalf of herself and others similarly situated, Plaintiff-Appellee, v. LUCENT TECHNOLOGIES, INC., and AT & T Corporation, Defendants-Appellants.

No. 5-99-0514.

Appellate Court of Illinois, Fifth District.

November 14, 2000.

Louis F. Bonacorsi, Ketrina G. Bakewell, Melissa L. Mitchell, Bryan Cave LLP, St. Louis, MO, for Appellants.

Stephen M. Tillery, Robert L. King, Carr, Korein, Tillery, Kinin, Montroy, Cates & Glass, East St. Louis, for Appellee.

Justice MAAG delivered the opinion of the court:

Lucent Technologies, Inc., and AT & T Corporation (AT & T) (defendants) appeal from an order of the Madison County circuit court denying their motions to dismiss or stay the pending class action suit. On appeal, defendants claim that the circuit court erred in denying their motion to dismiss and alternative motion to stay the proceedings because (1) the plaintiff's action is preempted by federal law, (2) each claim is barred by the voluntary-payment doctrine, and (3) the claims should be referred to the Federal Communications Commission (FCC) pursuant to the doctrine of primary jurisdiction. Defendants also contend that the circuit court abused its discretion in denying their motion to dismiss brought pursuant to section 2-619(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 1994)) because there was another action pending between the same parties for the same cause.

A brief summary of the historical background and the facts pertinent to the appeal are set forth as follows. The case comes on the tail end of numerous changes in the telecommunications industry. Advances in computer technology, a conclusion by the FCC that some aspects of the telecommunications industry would thrive on deregulation and free market competition, and the divestiture of the Bell Telephone system contributed significantly to the deregulation in the industry during the 1980's. Prior to the deregulation, telephone companies leased customer-premises equipment to customers who used its telephone services. Customer-premises equipment (CPE) includes telephones, modems, and terminal equipment located inside the customers' homes. Lease charges for CPE were "bundled with" charges for telephone service into one flat fee. According to FCC regulations, the flat fee, referenced in the industry as a "tariff", had to be approved by the state utility commission, the FCC, or both. Once approved, that rate was billed to all customers of that service. Telephone companies could not alter the rate without submitting a proposed new rate to and receiving approval from the authorizing commission.

In the past few decades, a number of vendors, other than telephone companies, began to produce and market telephone equipment with different options and features for sale to the public. Recognizing the increase in competition in the CPE market, the FCC concluded that telephone companies should also lease or sell CPE in a deregulated market. The FCC determined that CPE charges would be separated from the other charges for telephone service and removed from the tariff regulations. In order to accomplish a uniform deregulation of CPE, the FCC directed each state to unbundle and detariff CPE. The goal was to remove the leasing and sales of CPE from the control of the federal and state utility commissions and to allow the competitive market to regulate this product.

In furtherance of this goal, the FCC issued an implementation order that imposed some restrictions and established some requirements on the telephone companies for a period of two years. The FCC determined that a transitional period was necessary in order to ensure that AT & T would not take advantage of its dominant position in the CPE market to arrest the development of competition in that market. AT & T had acquired all of the residential CPE from the Bell Telephone system as part of the divestiture. The FCC required AT & T to notify customers of their option to continue leasing CPE equipment and required AT & T to offer CPE for sale or lease at set prices in order to ensure price stability during the transition period. The FCC retained jurisdiction over the CPE deregulation and monitored the telephone companies to ensure compliance with its program during this period. The FCC's implementation plan provided that telephone companies would be free from its requirements and restrictions upon the expiration of the two-year transition period. This transition period began with the divestiture of the Bell Telephone system in 1984 and ended in 1986.

In September 1996, Donna Crain (plaintiff) filed a class action suit against defendants, alleging that defendants breached contracts with its customers, violated the Illinois Consumer Fraud and Deceptive Practices Act (815 ILCS 505/2 (West 1994)) and the Uniform Deceptive Business Practices Act (815 ILCS 510/2 (West 1994)), and owed restitution for money paid on voidable contracts. The gravamen of plaintiff's complaint is that defendants engaged in deceptive, misleading, and contract-breaching practices with respect to the leasing and servicing of CPE.

Defendants filed a motion for judgment on the pleadings in which they argued that the action should be dismissed because it was preempted by federal law and was barred by the voluntary-payment doctrine. Alternatively, defendants argued that the allegations should be referred to the FCC pursuant to the primary-jurisdiction doctrine and the pending case dismissed or stayed. In a separate motion to dismiss brought pursuant to section 2-619(a)(3) of the Code of Civil Procedure, defendants argued that the circuit court should dismiss this case because there were other actions pending that involved the same parties and claims in a federal district court.

On March 10, 1999, the circuit court granted the motion for judgment on the pleadings, finding that the claims were preempted by federal law. Based upon its decision, the court found the remaining issues raised in the motions to be moot and denied them on that basis. Plaintiff filed a motion for reconsideration. Prior to the hearing, the FCC filed an amicus memorandum in which it stated that the court erred in inferring that the FCC intended to preempt state consumer-protection and contract laws.

Following a hearing on the motion for reconsideration, the circuit court vacated its prior order and denied defendants' motion for judgment on the pleadings. In its July 2, 1999, order, the court found that plaintiff's claims could be pursued without posing an obstacle to the FCC's goal of a competitive CPE market and held that the claims were not barred by preemption. Addressing those issues previously denied as moot, the court held that plaintiff's action was not barred by the voluntary-payment doctrine and that the action should not be stayed under the doctrine of primary jurisdiction. The court also denied defendants' section 2-619(a)(3) motion to dismiss.

Before addressing the issues raised by defendants, we will take up plaintiff's motion challenging our jurisdiction to consider those issues in this interlocutory appeal. Plaintiff alleges that this court lacks jurisdiction over the issues raised in point II and point III of defendants' brief because defendants failed to preserve those issues for review and because those issues are not proper subjects for review under Supreme Court Rule 307 (166 Ill.2d R. 307). In point II, defendants contend that the circuit court erred in vacating its original order granting the motion for judgment on the pleadings on the ground of preemption. In point III, defendants argue that the court erred in vacating its original order granting the motion for judgment on the pleadings on the ground that plaintiff's claims were barred by the voluntary-payment doctrine.

The scope of a Rule 307(a) (166 Ill.2d R. 307(a)) appeal is limited. The only question properly before the court is whether there was a sufficient showing made to the trial court to sustain its order granting or denying the relief sought. Postma v. Jack Brown Buick, Inc., 157 Ill.2d 391, 399, 193 Ill.Dec. 166, 626 N.E.2d 199, 203 (1993). Rule 307 may not be used as a vehicle to determine the merits of either party's case. Postma, 157 Ill.2d at 399, 193 Ill.Dec. 166, 626 N.E.2d at 203.

In our view, plaintiff's motion as to point III is well taken for two reasons. First, the voluntary-payment doctrine issue is not a proper subject for review under the limited scope of Rule 307(a). The order denying the motion to dismiss on the voluntary-payment issue is not a final order. In this case, a resolution of the voluntary-payment-doctrine issue cannot be obtained at the pleading stage. Defendants have alleged the applicability of the doctrine, but plaintiff has alleged that the payments were not made voluntarily. The resolution of this issue will require the presentation of evidence so that the court or fact finder can determine whether a payment was voluntarily made without protest and without fraud or mistake. Second, the circuit court's decision denying defendants' motion to dismiss on the ground of the voluntary-payment doctrine was not a step in the procedural progression leading to the order granting plaintiff's motion to reconsider and denying defendants' motion for judgment on the pleadings. See Burtell v. First Charter Service Corp., 76 Ill.2d 427, 435, 31 Ill.Dec. 178, 394 N.E.2d 380, 383 (1979); Jiffy Lube International, Inc. v. Agarwal, 277 Ill.App.3d 722, 726-27, 214 Ill.Dec. 609, 661 N.E.2d 463, 467 (1996). For those reasons, we are without jurisdiction to review point III of defendants' brief, and we order it stricken.

The preemption issue was the focal point of the July 1999 order from which defendants appeal. In Kellerman v. MCI Telecommunications Corp., the Illinois Supreme Court concluded that the defendant's federal-preemption argument raised the issue of the authority of the trial...