Hill v. Ps Illinois Trust

• Decision Date: 26 September 2006
• Docket Number: No. 1-05-4000.,1-05-4000.
• Citation: 305 Ill.Dec. 755,368 Ill. App.3d 310,856 N.E.2d 560
• Parties: Theo HILL, Plaintiff-Appellee, v. PS ILLINOIS TRUST, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

856 N.E.2d 560

368 Ill. App.3d 310

305 Ill.Dec. 755

Theo HILL, Plaintiff-Appellee, v. PS ILLINOIS TRUST, Defendant-Appellant.

No. 1-05-4000.

Appellate Court of Illinois, First District, Second Division.

September 26, 2006.

Christopher Langone, Mark Lavery and Jason G. Shanfield, The Langone Law Firm, Chicago, for Appellant.

Richard T. Greenberg, Donald C. Pasulka and Angelo M. Russo, McGuire Woods LLP, Chicago, for Appellee.

Presiding Justice WOLFSON delivered the opinion of the court:

The storage facility sold off plaintiff's property because his rent payments were overdue. That sale gives rise to the plaintiff's constitutional and statutory claims we address in this appeal.

Plaintiff Theo Hill filed a class action lawsuit against defendant PS Illinois Trust (PS), alleging the Illinois Self-Storage Facility Act (Storage Act) (770 ILCS 95/1 et seq. (West 2004)) violated the due process clause of the Illinois Constitution (Ill. Const.1970, art. I, § 2). Plaintiff also alleged on his own behalf that PS's actions in conducting a lien sale under the Storage Act were "unfair and deceptive" under the Illinois Consumer Fraud and Deceptive Business Practices Act (CFA) (815 ILCS 505/2 (West 2004)).

PS moved to dismiss plaintiff's case pursuant to section 2-615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2004)). The trial court granted PS's motion.

On appeal, plaintiff contends the trial court erred when it determined he failed to allege the requisite state action necessary to support a claim under the Illinois due process clause, and that he failed to state a claim under the CFA. We affirm in part and reverse and remand in part.

FACTS

The pleadings reveal the facts relevant to this appeal. On August 5, 2003, defendant entered into a contract with PS for the rental of a storage locker in order to store his personal property. Plaintiff made his monthly payments for August and September. On October 17, 2003, plaintiff called PS's storage facility to inform it that he would be late with October's rent payment, but would make the payment later in the week. Plaintiff was told his account was past due, but was not told his property would be auctioned off if payment was not made.

Plaintiff was unable to make the October and November rental payments. On December 5, 2003, plaintiff called PS to check the balance on his account and arrange payment. Plaintiff was told his belongings were auctioned off on November 25, 2003. Plaintiff's personal property was worth in excess of $25,000. According to plaintiff, he never received notice that PS would be auctioning off his property in order to enforce a lien created under section 3 of the Storage Act. 770 ILCS 95/3 (West 2004).

On January 26, 2005, plaintiff called PS to demand the return of any balance remaining from the lien sale, as required by section 4(j) of the Storage Act. 770 ILCS 95/4(j) (West 2004). A representative of PS told plaintiff "I have no idea what you are talking about." On February 9, 2005, plaintiff faxed PS a letter demanding the return of any balance remaining. PS never responded to the letter.

Plaintiff filed a two-count complaint against PS in the circuit court of Cook County. In Count I, plaintiff sought, on behalf of himself and a putative class of PS customers, a declaratory judgment that the Storage Act was unconstitutional "on its face and as applied" because it failed to provide adequate notice. In Count II, plaintiff alleged on his own behalf that PS, in violation of the CFA, engaged in unfair and deceptive conduct when it sold his property.

PS moved to dismiss the complaint pursuant to section 2-615 of the Code. PS contended: (1) plaintiff failed to allege the requisite state action necessary to support a claim under the due process clause of the Illinois State Constitution; and (2) plaintiff failed to allege any facts that would constitute an unfair act in violation of the CFA. The trial court dismissed Count I and gave plaintiff time to amend his claim under the CFA. Plaintiff then filed a motion to amend his complaint. The trial court denied plaintiff's motion to amend and dismissed the case with prejudice. Plaintiff appealed the dismissal of the CFA and declaratory judgment claims, but did not appeal from the trial court's refusal to allow him to amend his complaint, nor did he appeal dismissal of his conversion claim.

DECISION

A section 2-615 motion to dismiss challenges only the legal sufficiency of the complaint. 735 ILCS 5/2-615 (West 2004); Jarvis v. South Oak Dodge, Inc., 201 Ill.2d 81, 85, 265 Ill.Dec. 877, 773 N.E.2d 641 (2002). The central inquiry is whether the allegations of the complaint, when considered in the light most favorable to the plaintiff, are sufficient to state a cause of action relief may be granted on. Jarvis, 201 Ill.2d at 86, 265 Ill.Dec. 877, 773 N.E.2d 641; Connick v. Suzuki Motor Co., 174 Ill.2d 482, 490, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). We review de novo the dismissal of a complaint under section 2-615 of the Code. Jarvis, 201 Ill.2d at 86, 265 Ill.Dec. 877, 773 N.E.2d 641.

I. Due Process

Plaintiff contends the trial court erred when it determined he failed to allege the requisite state action necessary to support a claim under the Illinois due process clause.

Initially, we note plaintiff has not indicated he complied with Supreme Court Rule 19 (134 Ill.2d R. 19), which requires a litigant challenging the constitutionality of a statute, ordinance, or administrative regulation to serve notice of the challenge upon the Attorney General or other affected agency or officer. While we recognize the failure of a litigant to strictly comply with the rule may result in forfeiture, our Supreme Court has concluded that "a party's failure to comply with Rule 19 does not deprive the court of jurisdiction to consider the constitutional issue." Village of Lake Villa v. Stokovich, 211 Ill.2d 106, 119, 284 Ill.Dec. 360, 810 N.E.2d 13 (2004); Serafin v. Seith, 284 Ill.App.3d 577, 219 Ill.Dec. 794, 672 N.E.2d 302 (1996) ("[m]oreover, even if the issue were not waived, we believe that [plaintiff's] constitutional arguments are without merit.") We will decide the issue, although its ripeness for consideration is dubious.

To assert a violation of the Illinois due process clause, a plaintiff must allege a state action deprived him of a protected right, privilege, or immunity. In re Adoption of L.T.M., 214 Ill.2d 60, 73, 291 Ill.Dec. 645, 824 N.E.2d 221 (2005); USA I Lehndorff Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc., 64 Ill.2d 11, 15-16, 348 N.E.2d 831 (1976). The Illinois due process clause stands "as a prohibition against governmental action, not action by private individuals." Methodist Medical Center of Illinois v. Taylor, 140 Ill.App.3d 713, 717, 95 Ill.Dec. 130, 489 N.E.2d 351 (1986).

Plaintiff contends state action was properly alleged in this case because the State of Illinois "authorized" PS, under section 4 of the Act, to violate his constitutional rights by selling his property without due process. See 770 ILCS 95/4 (West 2004). Plaintiff contends there are three distinct tests for determining whether there is state action. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 621-22, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660, 674 (1991). Plaintiff contends the third test, the "state authorization model," applies in this case because the Storage Act specifically authorized PS to conduct the lien sale.

In response, PS contends plaintiff's failure to attribute state action to PS's decision to sell his goods is fatal to his due process claim. Defendant contends section 4 of the Act permitted, but did not compel, PS to sell plaintiff's belongings. See 770 ILCS 95/3 (West 2004). PS contends merely permitting a private actor to make such a choice cannot support a finding of state action.

When appropriate, the Illinois Supreme Court has interpreted our state due process clause to provide greater protections than its federal counterpart. Lewis E. v. Spagnolo, 186 Ill.2d 198, 227, 238 Ill.Dec. 1, 710 N.E.2d 798 (1999) "Nonetheless, federal precedent interpreting the federal due process clause is useful as a guide in interpreting the Illinois provision." Spagnolo, 186 Ill.2d at 227, 238 Ill.Dec. 1, 710 N.E.2d 798.

To support his contention, plaintiff relies on three United States Supreme Court decisions: Edmonson, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); and Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

In Edmonson, the Court noted that "in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority." (Citations Omitted.) Edmonson, 500 U.S. at 621-22, 111 S.Ct. at 2083, 114 L.Ed.2d at 674. However, the Court also noted that "[a]lthough private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, our cases have found state action when private parties make extensive use of state procedures with `overt, significant assistance of state officials.'" (Citations omitted.) Edmonson, 500 U.S. at 622, 111 S.Ct. at 2083, 114 L.Ed.2d at 674.

In Shelley, the Court concluded restrictive racial covenant agreements, standing alone, could not be regarded as a violation of any rights guaranteed by the Fourteenth Amendment. "So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State." Shelley, 334 U.S. at 13, 68 S.Ct. at 842, 92 L.Ed. at 1180. When the restrictive terms and purposes of the agreements...