No. 3--03--0516

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE BARRY delivered the Opinion of the court:

The plaintiff, Johnnie Flournoy, filed a complaint againstthe defendant, Ameritech, alleging fraud and negligence. Ameritech filed a motion to dismiss the complaint pursuant tosections 2--615 and 2--619 of the Code of Civil Procedure (Code). 735 ILCS 5/2--615, 2--619 (West 2002). The trial court grantedAmeritech's motion and dismissed the complaint. Flournoyappeals, contending that the trial court erred in dismissing hiscomplaint. We reverse and remand for further proceedings.

In his complaint, Flournoy alleged that he was incarceratedat Joliet Correctional Center. From 1998 until 2001, Ameritechprovided telephone service to the prison for use by inmates. Under the rate structure, any person who accepted a collecttelephone call from an inmate was subject to an initial callingfee and a surcharge for accepting the call. Flournoy allegedthat his collect telephone calls were often deliberately cut offonly minutes after they were accepted. Therefore, he was forcedto make another collect call to the same person. Flournoyalleged that he sent money to his mother every month to cover thecost of his collect calls.

Based on these allegations, Flournoy asserted that Ameritechfraudulently collected multiple initial calling fees andsurcharges from the people he called due to its practice ofprematurely terminating his collect calls. Flournoy alsoasserted that Ameritech was negligent in operating a telephonesystem that prematurely terminated telephone calls and resultedin multiple initial calling fees and surcharges to its customers. Flournoy alleged personal and monetary damages, and demandedjudgment against Ameritech in an amount in excess of $50,000,along with costs and attorney fees.

Ameritech filed a motion to dismiss the complaint undersections 2--615 and 2--619 of the Code. The trial court grantedthe motion, and dismissed Flournoy's complaint.

On appeal, Flournoy contends that the trial court erred ingranting Ameritech's motion to dismiss. Initially, Ameritechasserts that the circuit court lacked jurisdiction to hearFlournoy's claim.

Under the Public Utilities Act (Act), the Illinois CommerceCommission (Commission) has exclusive jurisdiction overcomplaints concerning excessive rates or overcharges by publicutilities. Village of Evergreen Park v. Commonwealth EdisonCompany, 296 Ill. App. 3d 810, 695 N.E.2d 1339 (1998). The Actprovides that the Commission may order a public utility to makedue reparation to a complainant if the Commission finds that thepublic utility has charged an excessive or unjustlydiscriminatory rate for its service. 220 ILCS 5/9--252 (West2002).

In determining whether an action falls within the exclusivejurisdiction of the Commission, courts have consistently focusedon the nature of the relief sought rather than the basis forseeking relief. Village of Evergreen Park, 296 Ill. App. 3d 810,695 N.E.2d 1339; Chicago ex rel. Thrasher v. Commonwealth EdisonCompany, 159 Ill. App. 3d 1076, 513 N.E.2d 460 (1987). If theplaintiff's action is for reparations, the Commission hasexclusive jurisdiction. However, if the action is for civildamages, then the circuit court may hear the case. Village ofEvergreen Park, 296 Ill. App. 3d 810, 695 N.E.2d 1339; Thrasher,159 Ill. App. 3d 1076, 513 N.E.2d 460.

A claim is for reparations when the essence of the claim isthat a utility has charged too much for a service. Village ofEvergreen Park, 296 Ill. App. 3d 810, 695 N.E.2d 1339; Thrasher,159 Ill. App. 3d 1076, 513 N.E.2d 460. In contrast, a claim isfor ordinary civil damages when the essence of the claim is notthat the utility has excessively charged, but rather that theutility has done something else to wrong the plaintiff. Villageof Evergreen Park, 296 Ill. App. 3d 810, 695 N.E.2d 1339;Thrasher, 159 Ill. App. 3d 1076, 513 N.E.2d 460.

In this case, the essence of Flournoy's claim is thatAmeritech deliberately terminated his collect telephone callsprematurely, forcing him to call the same person again. As aconsequence, his family members were charged multiple surchargesand initial calling fees for accepting his collect calls. Flournoy does not contest the actual rates charged as surchargesand initial calling fees, or claim those rates are excessive. Instead, his claim is that Ameritech collected the chargesmultiple times due to its practice of prematurely terminating hiscollect calls. Flournoy is seeking damages due to the allegedfraud and negligence that resulted in multiple surcharges andinitial calling fees. Based on these circumstances, we find thatFlournoy's claim is for civil damages. Accordingly, his claim iswithin the jurisdiction of the circuit court.

We also find that Flournoy has adequately stated a cause ofaction of consumer fraud in his complaint. A section 2--615motion to dismiss attacks the legal sufficiency of a complaint,and presents the issue of whether the complaint states a cause ofaction upon which relief can be granted. 735 ILCS 5/2--615 (West2002); Weiss v. Waterhouse Securities, Inc., 335 Ill. App. 3d875, 781 N.E.2d 1105 (2002). In ruling upon a section 2--615motion to dismiss, the court must determine whether theallegations of the complaint, when viewed in the light mostfavorable to the plaintiff, are sufficient to state a claim uponwhich relief can be granted. Givot v. Orr, 321 Ill. App. 3d 78,746 N.E.2d 810 (2001). The standard of review for granting asection 2--615 motion to dismiss is de novo. Krilich v. AmericanNational Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 778N.E.2d 1153 (2002).

The Consumer Fraud and Deceptive Business Practices Act(Consumer Fraud Act) prohibits unfair or deceptive acts orpractices in the conduct of any trade or commerce. 815 ILCS505/2 (West 2000). To state a private cause of action under theConsumer Fraud Act, the plaintiff must allege: (1) a deceptiveact or practice by the defendant; (2) that the defendant intendedfor the plaintiff to rely on the deception; (3) that thedeception occurred in the conduct of a trade or commerce; (4)that the plaintiff suffered actual damages; and (5) that thedamages were proximately caused by the deceptive conduct. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 776 N.E.2d 151(2002).

In this case, Flournoy alleged that Ameritech fraudulentlycollected multiple initial calling fees and surcharges due to itspractice of deliberately terminating his collect telephone calls. Flournoy's allegations indicate that Ameritech engaged in adeceptive practice of intentionally terminating calls for thepurpose collecting multiple fees and surcharges. The allegationsthat Ameritech billed for the multiple fees and surchargesindicate that it intended for customers to rely on the deception,and pay the multiple fees and surcharges. The deceptive practicealleged by Flournoy occurred in the conduct of commerce. Finally, Flournoy alleged that he sent money to his mother tocover the cost of the charges billed by Ameritech. Theseallegations were sufficient to show that Flournoy suffered actualdamages that were proximately caused by the deceptive practice. Viewing the allegations in the light most favorable to theplaintiff, we conclude that the complaint sufficiently states acause of action under the Consumer Fraud Act.

Ameritech contends that Flournoy's claims are barred by thevoluntary payment doctrine because the initial calling fees andsurcharges were voluntarily incurred and paid.

The voluntary payment doctrine provides that, absent fraud,misrepresentation or mistake of fact, money that is voluntarilypaid under a claim of right to the payment and with fullknowledge of the facts by the payer cannot be recovered unlessthe payment was made as a result of compulsion. IllinoisGraphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994);Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669, 802N.E.2d 1270 (2003). In Jenkins, the First District AppellateCourt found that the voluntary payment doctrine barred anyrecovery by the plaintiffs. Jenkins, 345 Ill. App. 3d 669, 802N.E.2d 1270. The court concluded that the plaintiffs did notallege fraud sufficient to defeat the voluntary payment doctrinebecause their claim under the Consumer Fraud Act was based on anunfair practice rather than deception or fraud. Jenkins, 345Ill. App. 3d 669, 802 N.E.2d 1270.

In this case, we have concluded that Flournoy alleged adeceptive practice under the Consumer Fraud Act. His cause ofaction is in the nature of fraud. Accordingly, we find that thevoluntary payment doctrine does not bar Flournoy's claim.

Ameritech also asserts that the trial court lacked theauthority to award Flournoy relief because he challenged theactual rates of the fees and surcharges. Additionally, Ameritechcontends that Flournoy's claims are barred by the "filed ratedoctrine" because he challenges the rates of the fees andsurcharges that were established by tariff.

These contentions essentially repeat Ameritech's argumentchallenging the trial court's jurisdiction. As previouslydiscussed, Flournoy does not contest the actual rates charged asfees and surcharges. Rather, he seeks relief based onAmeritech's alleged deceptive practice of intentionallyterminating his collect telephone calls, thereby causing him toincur multiple initial calling fees and surcharges for a singlecollect call. We conclude that the trial court has jurisdictionand the authority to award relief based on these allegations.

Finally, Flournoy contends that the judgment should bereversed because the proceedings in the trial court were unfairin several respects. Because we have found that the trial courterred in granting Ameritech's motion to dismiss the complaint, wewill not consider these procedural arguments.

For the foregoing reasons, the judgment of the Will Countycircuit court is reversed, and the cause is remanded for furtherproceedings.

Reversed and remanded.

SLATER, J. and MCDADE, J. concurring.