Russell v. Hertz Corp.
| Decision Date | 10 December 1985 |
| Docket Number | No. 85-240,85-240 |
| Citation | 139 Ill.App.3d 11,487 N.E.2d 630,93 Ill.Dec. 805 |
| Parties | , 93 Ill.Dec. 805 H. Trimble RUSSELL, et al., Plaintiffs, v. The HERTZ CORPORATION, et al., Defendants. Ron FREUND and Kathleen Z. Fennell, Individually and as Representatives of Classes of Persons Similarly Situated, Plaintiffs-Appellants, v. AVIS RENT A CAR SYSTEM, INC., the Hertz Corporation, the City of Chicago, A Municipal Corporation, J. Thomas Johnson, as Director of the Department of Revenue of the State of Illinois, and Jerome Cosentino, as Treasurer of the State of Illinois, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Orlikoff, Flamm & Patner, Chicago (Arnold M. Flamm, Marshall Patner, of counsel), Neistein, Richman, Hauslinger & Young, Ltd., Chicago (Robert D. Allison, of counsel), for plaintiffs-appellants.
James D. Montgomery, Corp. Counsel, Chicago (Jennifer A. Keller, of counsel), Neil F. Hartigan, Atty. Gen., Chicago, Jill Wine-Banks, Sol. Gen. (Rosalyn B. Kaplan, of counsel), Friedman & Koven, Chicago (Michael D. Sher, Sherre Binik Levene, of counsel), Reuben & Proctor, Chicago (Thomas F. Ging, James Harbert, of counsel), for defendants-appellees.
Plaintiffs appeal from the trial court's dismissal of their complaint for failure to state a cause of action.
Claiming that he was taxed excessively on the rental of a car, plaintiff Ron Freund sued Avis Rent a Car System (Avis); the City of Chicago; Illinois Director of Revenue, J. Thomas Johnson; and State Treasurer, Jerome Cosentino. Another plaintiff, Kathleen Fennell, joined Freund in his complaint, but she sued the Hertz Corporation (Hertz), as well as the City of Chicago and state officials. Freund and Fennell brought their action individually and as representatives of classes of persons similarly situated. The Freund-Fennell action was consolidated in the trial court with two similar cases, Russell v. Hertz and Barnes v. Avis. The Russell and Barnes cases were dismissed, however, and this appeal concerns only the Freund-Fennell complaint.
It is Ron Freund's claim that Avis taxed him incorrectly when he rented a car in October, 1982. Freund used his credit card to rent the vehicle. Before he got his car, he signed an agreement in which he promised to pay charges of $18 per day for rental and $5.50 per day for an insurance-type protection called "collision damage waiver." Freund then signed a credit card slip with the amount of total charges left blank, and by the terms of his agreement, he authorized Avis to include charges for taxes and refueling service in his final bill. When Freund returned his car to Avis, the agent computed all of the charges and inserted them in the appropriate blanks in the rental agreement. These charges were as follows:
Automobile Rental (2 days) $36.00
Collision Damage Waiver
(2 days) 11.00
Subtotal $47.00
Tax at 11% 5.17
Refueling Service 4.75
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Net Amount $56.92
Several days after renting his car, Freund filed an action against Avis, complaining for the first time about a tax overcharge. According to Freund, he overpaid city and state taxes because Avis taxed him on the rental value of his car and on the cost of collision damage waiver when taxes were owing only on the rental value of the auto.
Plaintiff Fennell made allegations against Hertz that were similar to Freund's charges against Avis. Fennell rented a car using a credit card and signed a rental agreement. She agreed to pay a rental fee of $49 per day and elected to take Hertz's collision damage waiver at a cost of $6 per day. Like her co-plaintiff, Fennell signed a credit card slip with the total charges left blank, and she authorized Hertz to include charges for tax and refueling. When Fennell returned her car, the agent filled in the rental agreement with the following charges, which Fennell paid without protest:
Automobile Rental (1 day) $49.00
Rental Tax 6% 2.94
Refueling Service 8.23
Collision Damage Waiver
(1 day) 6.00
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Subtotal $66.17
City of Chicago Transaction
Tax Effective Rate 5.7% 3.77
Personal Accident
Insurance 2.25
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Net Amount Due $72.19
Fennell later filed this action, claiming that Hertz incorrectly computed city and state taxes in two ways. First, Hertz charged a rental tax of 6%, when the correct amount of state taxes was only 5%. Second, Hertz improperly included collision damage waiver charges in the Chicago Transaction Tax.
The trial court entered an order on March 27, 1984, dismissing the Freund-Fennell complaint. The court found that the plaintiffs had not paid their taxes under protest or duress despite the fact that their rental agreements furnished sufficient information upon which to formulate a protest. Consequently, the plaintiffs had failed to state a cause of action, in the court's judgment.
The plaintiffs then amended their complaint to include an allegation that payment of the disputed tax was involuntary. According to the amended complaint, plaintiffs did not know at the time of their car rentals that they were being taxed excessively, and had they known, they would have protested vigorously.
Despite this amendment, the trial court found that plaintiffs had still failed to state a cause of action. As a result, the court dismissed the complaint as to all defendants, and plaintiffs now appeal from this order.
The plaintiffs' first objection on appeal is that their complaint should not have been dismissed for failure to state a cause of action because the "voluntary payment doctrine" is an affirmative defense and not part of their prima facie case. The defendants moved to dismiss the plaintiffs' complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-615.) This section provides that an action may be dismissed or a pleading stricken if it is substantially insufficient in law. Plaintiffs contend that even if they paid the disputed tax in this case voluntarily, such voluntary payment is an affirmative defense, which can not be raised pursuant to section 2-615 of the Code of Civil Procedure. Instead, the issue must be raised pursuant to section 2-619, according to plaintiffs. See, Ill.Rev.Stat.1983, ch. 110, par. 2-619.
Hertz and Avis contend that the plaintiffs have waived their objection to the form of defendants' motion because they did not raise this issue in the proceedings below. The defendants' argument in this regard is persuasive. All defects in pleadings are waived by failure to raise them in the trial court, where they can be handled more expeditiously than they can on review. (Scott v. Skokie Valley Community Hospital (1977), 54 Ill.App.3d 766, 768-69, 12 Ill.Dec. 484, 370 N.E.2d 107; See also, Hays v. Louisiana Dock Co. (1983), 117 Ill.App.3d 512, 515, 72 Ill.Dec. 687, 452 N.E.2d 1383.) A motion, such as the one brought here pursuant to section 2-615, is a pleading. (Chimerofsky v. School District No. 63 (1970), 121 Ill.App.2d 371, 374 257 N.E.2d 480.) Since the plaintiffs failed to object to the form of defendants' motion when it was brought in the trial court, they have waived this objection for the purpose of review.
Furthermore, plaintiffs are unpersuasive when they contend that the voluntary payment doctrine can only be raised in a section 2-619 motion. This is so because involuntary payment is an element that the taxpayer must prove in order to claim a tax refund. It is true that in Hagerty v. General Motors Corp. (1974), 59 Ill.2d 52, 59, 319 N.E.2d 5, the voluntary payment doctrine was framed by defendants as an affirmative defense. It is also true that in Getto v. City of Chicago, the court observed somewhat ambiguously that "it must be shown that the taxpayer plaintiff had knowledge of the facts upon which to frame a protest and also that the payments were not made under duress or compulsion." Getto v. City of Chicago (1981), 86 Ill.2d 39, 49, 55 Ill.Dec. 519, 426 N.E.2d 844, cert. denied, Illinois Bell Telephone Co. v. Getto (1982), 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468.
The weight of authority establishes, however, that involuntary payment is an element of the taxpayer's cause of action. If his complaint fails to allege a sufficient factual basis to support this element, the plaintiff's action will be dismissed. (United Private Detective & Security Association, Inc. v. City of Chicago (1977), 56 Ill.App.3d 242, 244, 14 Ill.Dec. 34, 371 N.E.2d 1087; Scoa Industries, Inc. v. Howlett (1975), 33 Ill.App.3d 90, 96-97, 337 N.E.2d 305; Bank & Trust Co. of Arlington Heights v. Cullerton (1975), 25 Ill.App.3d 721, 726-27, 324 N.E.2d 29; Fisher v. City of Ottawa (1972), 8 Ill.App.3d 553, 554-55, 289 N.E.2d 717.) Moreover, even if the court's reference in Getto suggests that voluntary payment is an affirmative defense, the Getto court also cited with approval, the following language from Illinois Glass Co. v. Chicago Telephone Co.: "It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary...." (Getto v. City of Chicago (1981), 86 Ill.2d 39, 49, 55 Ill.Dec. 519, 426 N.E.2d 844, citing Illinois Glass Co. v. Chicago Telephone Co. (1908), 234 Ill. 535, 541, 85 N.E. 200). This passage from Illinois Glass implies that plaintiff must demonstrate involuntary payment as part of his prima facie case. In the absence of such demonstration, defendants can properly bring a motion to dismiss under section 2-615, as they did in this case.
The plaintiffs' second contention on appeal is that the taxing statutes implicated by this case dispense...
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