Krautsack v. Anderson

• Decision Date: 29 March 2002
• Docket Number: No. 1-01-1249.,1-01-1249.
• Citation: 768 N.E.2d 133,329 Ill. App.3d 666,263 Ill.Dec. 373
• Parties: Richard G. KRAUTSACK, Plaintiff-Appellant, v. David ANDERSON, d/b/a David Anderson Safaris, and Luxury Adventures, Ltd., a corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

768 N.E.2d 133

329 Ill. App.3d 666

263 Ill.Dec. 373

Richard G. KRAUTSACK, Plaintiff-Appellant, v. David ANDERSON, d/b/a David Anderson Safaris, and Luxury Adventures, Ltd., a corporation, Defendants-Appellees.

No. 1-01-1249.

Appellate Court of Illinois, First District, Second Division.

March 29, 2002.

Gordon, Glickman, Flesch & Woody (James A. Flesch, of counsel), Chicago, for Appellant.

John J. Pembroke & Associates, P.C. (John N. Bielski II, of counsel), Park Ridge, for Appellees.

Presiding Justice BURKE delivered the opinion of the court:

Plaintiff Richard Krautsack appeals from three orders of the circuit court granting summary judgment in favor of defendants David Anderson (Anderson), doing business as David Anderson Safaris, and Luxury Adventures, Ltd. (Luxury Adventures), striking his motion for reconsideration, and granting attorney fees and costs to Anderson and Luxury Adventures pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137) and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a(c) (West 1998)) on Krautsack's complaint against defendants alleging breach of contract and consumer fraud. On appeal, Krautsack contends that the trial court erred in granting summary judgment on both his consumer fraud claim and his breach of contract claim, that it erred in striking his motion for reconsideration because the motion was timely, and that it erred in granting costs and fees to Anderson and Luxury Adventures because the facts of the case did not support or warrant the imposition of sanctions. For the reasons set forth below, we reverse and remand.

STATEMENT OF FACTS

This lawsuit arose as a result of Krautsack's trip to East Africa in January 1998, which was arranged by Anderson and his corporation Luxury Adventures, doing business as David Anderson Safaris. Because of El Nino, although unknown and unidentified at that time, it rained the entire time Krautsack toured Africa. On September 1, 1998, Krautsack filed a complaint against Anderson, alleging claims based on the Consumer Fraud Act and breach of contract, and seeking a refund of the cost he had paid for defendants' services and his trip. On December 16, 1999, Anderson filed a motion for summary judgment. Subsequently, Krautsack filed an amended complaint, adding Luxury Adventures as a defendant, alleging a cause of action based on the Consumer Fraud Act. On February 23, 2000, Anderson and Luxury Adventures filed a motion for summary judgment. Thereafter, Krautsack filed an "Opposition to Defendants' Motion for Summary Judgment" and Anderson and Luxury Adventures filed a reply.

Various evidence was offered in support of and in opposition to the motion for summary judgment, including the depositions of Anderson and Krautsack. Anderson testified that he was the president of Luxury Adventures, a California corporation, doing business as David Anderson Safaris, of which he was the managing member. The company was in the business of marketing African safaris to affluent clients. With respect to refunds in general, Anderson first testified that he had refunded money to unhappy travelers in the past. However, it was not a regular occurrence and he estimated that it occurred less than 25 times. Anderson then stated that credits were given to such customers, not refunds. Subsequently, Anderson stated that he had given partial refunds. According to Anderson, the company only gave refunds if the services were not supplied.

With respect to complaints about bad weather, Anderson testified that he had approximately five complaints about weather prior to Krautsack's complaint. However, he did nothing about the complaints, taking the position that he could not be responsible for the weather.

According to Anderson, Krautsack first contacted his company in the summer of 1997. Anderson, or someone in his office, spoke to Krautsack in December 1997 with respect to cholera, but he could not remember to whom. Anderson further stated that when travel consultants have any significant conversation with a customer, an entry and notes are made on what the company refers to as the "history report." However, he admitted that consultants do not always enter information on the report. After reviewing the history report from 1997, Anderson testified that he spoke to Krautsack on December 16, 1997, with respect to cholera, although he had no memory of the conversation. Anderson also did not recall Krautsack mentioning any concern about the weather or any fax from Krautsack to him of a newspaper article about the weather in Africa.

Anderson further testified that on January 6, 1998, Krautsack contacted his office regarding his concerns about the weather and road conditions in Africa. At this time, Krautsack raised the question of postponement. According to Anderson, he told Krautsack that before he decided what to do, Anderson would contact the people in Africa and see what the report was. Anderson then contacted various individuals in Africa to ascertain the conditions—Willy of Kobi Safaris with respect to Tanzania; Ann Birch of Cheli & Peacock with respect to Kenya; and Duncan of Destination Africa. Anderson then quoted the responses from these individuals in a letter he faxed to Krautsack on January 7, and advised Krautsack to call if the information did not address his concerns. Anderson never received a call from Krautsack prior to his departure. According to Anderson, the information he received told him that there had been rain and it was muddy, but that with four-wheel drive vehicles, safaris were proceeding as normal. Anderson stated that he left the decision of postponement up to Krautsack. He denied that he "pushed" Krautsack to continue with the trip. Anderson also denied that Krautsack ever asked him to reschedule the safari, but, if he had, it would "definitely" have been possible. However, according to Anderson, if Krautsack had rescheduled, he would have lost any money he had paid for the safari.

Anderson also testified that after being contacted by Krautsack following his trip, which according to Anderson first occurred on March 12, 1998, he asked one of the African suppliers for a refund of Krautsack's payment for the safari, but was told no refund would be made because Krautsack had received the services for which he had paid. According to the information Anderson received, Krautsack went to all the game parks and did not miss any game drives.

Anderson further testified that over the last 100 years, the rainy season in East Africa has been in April and May, there have been short rains in November, and January is generally dry. According to Anderson, the African weather was "extremely predictable" in the past. He also stated that the weather Krautsack experienced was "extremely wet. Totally out of character." The rain started in November 1997 and continued through June and July 1998. At the time of Krautsack's trip, no one was yet aware that it was due to the effects of El Nino. With respect to the e-mail sent by Anderson and relied upon by Krautsack, detailed below, Anderson testified that this e-mail was sent sometime after March 12, but before March 30, and was an attempt to obtain some refund compensation for Krautsack. Anderson admitted that in the e-mail he stated, because he was fighting for his client, that Krautsack had a valid claim. Although acknowledging that he used the term "pushed," in reference to Krautsack continuing with his safari plans, in the e-mail, according to Anderson, the term "pushed" was "open to interpretation." In addition, Anderson admitted that this term could be interpreted differently from the statements made in his letter to Krautsack on January 7, 1998, to the effect that he was leaving the decision of postponement of Krautsack's trip up to him.¹ Anderson further testified that the document signed by Krautsack, purporting to be the contract between the parties, did not address the issue of postponement.

Krautsack testified that he first contacted Anderson's company in March 1997, after being referred to it by a neighbor. He initially dealt with Gail, Anderson's exwife. She advised Krautsack to travel in the dry season, which she stated was during December and January. Krautsack further testified that he spoke to Anderson's company often, "fine tuning" his travel plans.

According to Krautsack, the issue of the weather in Africa first arose on December 7, 1997. His wife had found a newspaper article regarding various conditions in Africa, which Krautsack faxed to Anderson's office. Krautsack further testified that he left a voice mail message on Anderson's telephone, asking for an explanation. Leonora, another individual in Anderson's office, called Krautsack back and stated that Anderson would give him a response. Krautsack believed that Anderson called in the middle of December 1997, speaking to his wife, and discussing cholera. Anderson failed to address Krautsack's concern with respect to the rain. Krautsack believed that he again contacted Anderson in the latter part of December with respect to the rain in Africa. Krautsack stated that he again faxed the same newspaper article to Anderson.

Krautsack further testified that Anderson returned his call on January 6, 1998. Anderson advised him that he would fax information to Krautsack, but, according to Krautsack, Anderson led him to believe that the rain in Africa was "not a big deal." Krautsack stated that he did not respond to Anderson's January 7 fax because, from his conversation with Anderson the day before, he believed that "everything was fine."

With respect to the prevailing weather conditions in Africa during his actual trip, Krautsack testified that it was wet, rainy, and muddy in Masai Mara and that under such conditions the "cats go." He stated that sites were "definitely" inaccessible depending on where he was supposed to go. According to him, certain roads were unusable. Krautsack admitted that he...