This text is machine-read, and may contain errors. Check the original document to verify accuracy.
~
STATE 0.1' ILLINOIS
3-07-0411
Johnnie Flournoy v. Ameritech
APPELLATE COURT
THIRD DISTRICT
OTTAWA
At a term of the Appellate Court, begun and held at
Ottawa, on the 1st Day of January in the year of our Lord
Two thousand eight, within and for the Third District of
Illinois:
Present HONORABLE MARY W. McDADE, Presiding Justice
X
HONORABLE MARY K. O'BRIEN, Justice
HONORABLE WILLIAM E. HOLDRIDGE, Justice
X
HONORABLE ROBERT L. CARTER, Justice
HONORABLE DANIEL L. SCHMIDT, Justice
X
HONORABLE VICKI R. WRIGHT, Justice
HONORABLE TOM M. LYTTON, Justice
GIST FLESHMAN, Clerk
BE IT REMEMBERED, that afterwards on
July 1, 2008 the Order of the court was filed
in the Clerk's Office of said Court, in the words and figures
following viz:
......... (' 00·
.
'" w -;-;
t;,
.
."r-
~
... "..... • ...", .."
~;,;,;;,;;v
(1- 'If
The text of this opinion inay
b8 changed
or ~eotl!d prior to fRe time for ffling of a
No. 3--07--0411 Petition for Rehearing or the disposition
of the same.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
JOHNNIE FLOURNOY,
) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
) . Will County, Illinois,
Plaintiff-Appellant,
)
)
)
)
)
)
)
v.
AMERITECH,
Defendant-Appellee.
Nos. 02--MR--585
Honorable
Robert C. Lorz
Judge, presiding.
ORDER
This is the second time that this matter has been before
this court.
The essence of Flournoy's claim is that Ameritech
deliberately terminated his collect calls prematurely, forcing
him to call the same party again.
As a consequence, his family
members were charged multiple surcharges and initial calling fees
for accepting his collect calls.
The trial court dismissed the
complaint with prejudice, however, this court reversed that
decision of the trial court.
App. 3d 583 (2004).
Flournoy v. Ameritech, 351 Ill.
In that previous decision, this court
determined that Flournoy had stated a claim for relief under the
Illinois Consumer Fraud Act (815 ILCS 505/1 et
~
(West 2000».
On remand, Ameritech moved to dismiss based upon Flournoy's lack
of standing to pursue his consumer fraud claim.
granted the motion.
The trial court
Flournoy appealed to this court.
•
a-V'
8' •
__ ..
nw:"a-.
We find
that Flournoy did have standing to bring a claim under the
Consumer Fraud Act.
We therefore reverse and remand for further
proceedings.
As the facts in this matter have been thoroughly discussed
in the previous decision of this court, we will not restate them
at length herein, but will discuss the relevant facts as
necessary to explain our decision.
The question before this court is whether Flournoy had
standing to bring a claim under the Consumer Fraud Act.
requires an injury to a legally protected interest.
Standing
Board of
Trustees of Community College District No. 502 v. Department of
Professional Regulation, 363 Ill. App. 3d 190, 197 (2006).
review issues of standing de llQYQ.
We
Semande v. Estes, 374 Ill.
App. 3d 468, 471 (2007).
In order to bring a claim under the Consumer Fraud Act, the
plaintiff must allege: (1) a deceptive act or practice by the
defendant; (2) that the defendant intended for the plaintiff to
rely upon the deception; (3) that the deception occurred in the
conduct of a trade or business; (4) that the plaintiff suffered
actual damages; and (5) that the damages were proximately caused
by the deceptive conduct.
Flournoy, 351 Ill. App. 3d at 586.
In our previous decision, we found that Flournoy had stated
a cause of action under the Consumer Fraud Act against Ameritech.
Specifically, we noted that in the complaint Flournoy alleged
that he sent money to his mother to cover all the cost of the
charges billed by Ameritech, and that this allegation was
2
.... ;.,. :;.. .....
....
~
Ii
sufficient to establish that Flournoy had suffered actual damages
proximately caused by Ameritech's alleged deceptive practice,
Our previous finding that Flournoy sUfficiently pled that he
suffered actual damages proximately caused by Ameritech's alleged
deceptive practices stands as the law of the case in this matter.
The law of the case doctrine provides that "where an issue has
been litigated and decided, a court's unreversed decision on that
question of law or fact settles that question for all subsequent
stages of the suit ...
Alwin v. Village of Wheeling, 371 Ill. App.
3d 898, 911 (2007).
Ameitech maintains that our previous decision finding that
Flournoy stated a cause of action under the Consumer Fraud Act is
not law of the case as the issue of standing was not specifically
litigated and decided.
while Ameritech is correct in its
observation, it misses the import of the this court's previous
finding.
Our previous decision settled a question of fact - did
Flournoy sufficiently allege that he suffered actual damages as a
result of Ameritech's alleged deceptive practices.
Specifically,
we found that the allegation was supported by Flournoy's claim
that he actually paid the charges alleged fraudulent charges.
Simply put, while it is not law of the case that Flournoy
has standing to bring a cause of action for consumer fraud
against Ameritech, it is law of the case that Flournoy has
sufficiently alleged that he has suffered actual damages as a
result of Ameritech's alleged fraud.
If the fact that Flournoy
sent the money to his mother to pay the allegedly fraudulent
3
••••
... '-
;-
-- ...
t
••
1/. 'If
.~.
charges was sufficient to plead a cause of action for consumer
fraud, this fact must also be sufficient to establish that
Flournoy has standing to bring that cause of action.
Given the
fact that Flournoy actually paid the allegedly fraudulent
billings, we find that the trial court erred in finding that he
lacked standing to bring his complaint.
We disagree with Ameritech's characterization of Flournoy's
payment of the amounts billed as gratuitous payments or gifts.
The complaint maintains that Flournoy sent money to his parents
for the specific purpose of paying the allegedly fraudulent
charges incurred by his parents for his specific benefit.
Taken
as true, this allegation established that the money sent by
Flournoy was not a gift nor was it gratuitous.
Flournoy derived
a specific benefit from the collect calls placed by him through
Ameritech and the record shows that this specific benefit was
made more costly to him by the alleged fraudulent actions of
Ameritech.
We are satisfied that if he prevails in this matter,
Flournoy will derive a personal benefit from the relief he seeks.
Reversed and remanded.
HOLDRIDGE, J., with MCDADE, P. J., concurring, and SCHMIDT,
J.,
dissenting.
4
...........
-.,;..
~
f)-'If
NOTiCE
The text (".1 this oprnlon may ~~ chsnged
or oorr~d pnor to the timGl for fifing of a
No. 3--07--0411 Petition ~or Rehearing or the disposition
of the same.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
Plaintiff-Appellant,
)
)
)
v.
)
JOHNNIE FLOURNOY,
Appeal from the Circuit Court
of the 12th Judicial Circuit,
Will County, Illinois,
)
AMERITECH,
Defendant-Appellee.
Nos. 02--MR--585
)
)
)
)
)
Honorable Robert C. Lorz,
Judge, Presiding.
JUSTICE SCHMIDT, dissenting:
I would affirm the trial court and, therefore, respectfully
dissent.
• ••••• a a
"
.. ;.,. ;a
STATE OF ILLINOIS
APPELLATE COURT
THIRD DISTRICT
OTTAWA
STATE OF ILLINOIS,
APPELLATE COURT,
THIRD DISTRICT
ss.
As Clerk of the Appellate Court, in and for said Third
District of the State of Illinois, and the keeper of the Records
and Seal thereof, I do hereby certify that the foregoing is a
true, full and complete FINAL ORDER of the said Appellate Court
in the above entitled cause, now of record in my said office.
In Testimony Whereof, I hereunto set my
hand and affix the seal of said Appellate
Court, at Ottawa, this 18th day of August
in the year of our Lord two thousand and
e~~;:f~
Clerk of the Appellate Court
IJ -Sf
IOw.PJrM
. eM.hUh .Mmw
0.Q.&.....:;;; .. '$.."/,, , (,
. s;r
.MQ •.
:
. I...
....
.
.i!. hi !.
"wnw.(..
