King v. Find-A-Way Shipping, LLC

2020 IL App (1st) 191307

172 N.E.3d 247

446 Ill.Dec. 939

Jennifer KING, Plaintiff-Appellee,

v.FIND-A-WAY SHIPPING, LLC, Defendant-Appellant.

No. 1-19-1307

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filing Date December 4, 2020

Elizabeth Orton, for Find-A-Way Shipping, LLC, of Dayton, Ohio, appellant pro se.

Jennifer King, of Chicago, appellee pro se.

JUSTICE HALL delivered the judgment of the court, with opinion.

¶ 1 This appeal arises from an order of the circuit court which awarded plaintiff Jennifer King $2344 in damages after an antique desk she purchased online was damaged during transport by defendant, Find-A-Way Shipping, LLC. On appeal, defendant contends that the circuit court erred in its assessment of damages and lacked both personal and subject matter jurisdiction. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff, appearing pro se , filed a small claims complaint against defendant on February 27, 2019, in the circuit court of Cook County, seeking $3204.60 in damages. In her complaint, plaintiff alleged that on December 14, 2018, she purchased a late 18th century antique secretary desk from EBTH.com (Everything But the House). EBTH.com contracted with defendant to deliver the desk to plaintiff. On December 21, 2018, the day of the delivery, defendant sent one driver to deliver the desk, which weighed over 100 pounds. Plaintiff alleged that, during the delivery and transport, the driver severely damaged the antique desk through his own negligence. She also alleged that the desk was not properly wrapped or stored in the delivery vehicle, and it sustained major damage during transport. When the driver took the desk into plaintiff's home, he did so alone and without proper equipment, which resulted in damage to plaintiff's hardwood flooring. When plaintiff inquired why he was delivering such a large antique desk alone, the driver's response was that his boss, Elizabeth Orton, defendant's owner and chief executive officer, directed him to do so because they were busy and short-staffed.

¶ 4 Plaintiff signed the delivery manifest, indicating that the desk arrived "broken and damaged," with intent to repair as directed by EBTH.com. Plaintiff alleged that she attempted to seek resolution with EBTH.com as it contracted with defendant for delivery. EBTH.com requested an estimate for repairs, which plaintiff secured from Armand Lee furniture restoration in the amount of $3204.60. EBTH.com was unwilling to pay for the repairs and directed plaintiff to resolve the issue directly with defendant. Plaintiff initially contacted Orton on January 15, 2019, via e-mail. After four unsuccessful attempts to reach Orton via phone or e-mail, plaintiff filed a complaint with the Better Business Bureau (BBB). Orton subsequently responded via e-mail on January 24, 2019, after receiving the registered complaint filed with the BBB. Through the BBB process, Orton eventually accepted full responsibility on behalf of defendant for the delivery driver and the company's negligence in delivering the desk. Defendant's resolution, however, was an offer to reimburse plaintiff $700, which was the amount of plaintiff's original bid for the desk on EBTH.com. Plaintiff alleged, however, that she paid a total of $861.

¶ 5 Plaintiff alleged that defendant should be liable for the total amount of the repairs as the desk cannot be replaced because it was an antique desk. Plaintiff only sought the amount for repair of the desk and not for repair of her damaged flooring. Plaintiff alleged that she was due the full cost of repair because if not for the actions of defendant, the desk would still have been in its original condition. Plaintiff attached copies of the repair estimate and e-mail correspondence with Orton to her complaint.

¶ 6 Defendant, appearing pro se , filed its appearance and general answer on April 8, 2019. In its answer, defendant contended that plaintiff failed to state a claim upon which relief could be granted and failed to mitigate her alleged damages. Defendant also contended that the circuit court lacked personal and subject matter jurisdiction and that the complaint should be dismissed. On the same day, defendant also filed a motion to dismiss plaintiff's complaint on the same basis asserted in its answer, lack of personal and subject matter jurisdiction. In support of its motion, defendant asserted that it was a limited liability company principally located in Ohio and that EBTH.com was also principally located in Ohio. Defendant further alleged that plaintiff, in purchasing the desk from EBTH.com, agreed to be bound by the terms and conditions for such purchase, specifically that any claims against EBTH.com or its agents must be resolved through arbitration in Hamilton County, Ohio, and further that any court claim must be filed in Ohio. EBTH.com's terms and conditions also provided for a limit of total aggregate liability of all claims to the greater of the total fees paid to EBTH.com in the three months prior to the action giving rise to the liability or $50. Defendant further argued that EBTH.com refunded plaintiff $780.60, the total amount paid for the desk. Defendant attached copies of the refund invoice and EBTH.com's terms and conditions to the motion. Defendant sought the dismissal of plaintiff's complaint with prejudice and reimbursement of its filing fees in the case.

¶ 7 Plaintiff filed her response to defendant's motion to dismiss on April 22, 2019. In her response, plaintiff requested that the motion be denied, arguing that defendant had enough minimal contact in Chicago to subject it to the jurisdiction of the circuit court. Plaintiff further alleged that the EBTH.com terms and conditions submitted by defendant do not apply to it as it is not an agent of EBTH.com. Plaintiff acknowledged that while the terms and conditions did not provide a legal definition of who EBTH.com considers an agent, defendant was referenced multiple times as both a third party and as local delivery. Plaintiff argued that defendant did not have authority to act on behalf of EBTH.com as an agent and instead it was contracted by EBTH.com for the sole purpose of delivering purchased products safely to the buyer, which it did not do in this case. Plaintiff further alleged that she purchased the desk with the understanding that it was located in EBTH.com's Chicago processing facility, and the purchase included local delivery by a third party. Defendant was contracted as "local delivery," and EBTH.com defined local delivery as "within 50 miles of an EBTH.com processing facility." Plaintiff further noted that defendant already admitted liability on February 3, 2019, during the BBB complaint process, and further that she took every step to find resolution to repair the damaged desk, including following the steps as indicated on the EBTH.com website. Plaintiff noted that she had since received a second repair quote from Devontry Woodworking in the amount of $3205, and additionally noted that the repairs would not be simple and, because of the age of the desk, repair would require " skilled laborer to mimic the techniques of craftsmanship common in the 1700s," which are not used today.

¶ 8 Plaintiff also argued that she never denied that she was reimbursed for her purchase by EBTH.com; she was simply seeking repair costs directly from defendant as it mishandled and damaged the desk. Defendant admitted that the desk was in good condition when it was picked up. Plaintiff contended that once defendant picked up the desk, it was liable for any and all damages, which were proximately caused by defendant's negligence. Plaintiff further asserted that while defendant is located in Ohio, it operates in Chicago, does business in Chicago, has employees in Chicago, and does business with citizens of Chicago, thus subjecting it to the jurisdiction of the circuit court. Plaintiff concluded that the terms and conditions of EBTH.com did not apply to defendant because it was not an agent of EBTH.com, but a third party. Plaintiff attached several exhibits to her response in support of her contentions. Plaintiff requested that the court deny defendant's motion to dismiss.

¶ 9 The record does not contain an order indicating the disposition of defendant's motion to dismiss; however, on April 22, 2019, the case was set for trial on May 29, 2019. At the conclusion of the bench trial, an order was entered granting judgment in favor of plaintiff for $2344 plus costs. No report of proceedings or bystander's report was included in the record filed on appeal.

¶ 10 Defendant filed its timely notice of appeal on June 26, 2019. In its notice of appeal, defendant contended that the court failed to decide its motion to dismiss for lack of jurisdiction and applied the incorrect standard for property damage, "i.e. cost to repair instead of diminution in value."

¶ 11 ANALYSIS

¶ 12 On appeal, defendant contends that (1) the circuit court applied an incorrect standard for assessing damages for injury to personal property as opposed to the cost to repair the property up to the value of the personal property, and (2) the judgment should be reversed and remanded because the court did not rule on defendant's motion to dismiss based on lack of jurisdiction prior to trial. Because resolution of whether the circuit court had jurisdiction affects whether or not the trial and resulting judgment were proper, we will review defendant's second issue first.

¶ 13 A. Lack of Jurisdiction

¶ 14 Defendant contends that the circuit court erred in failing to decide its motion to dismiss based on lack of jurisdiction and the case must be reversed and remanded. Defendant argues that it is principally based in Ohio, and that under EBTH.com's terms and conditions, plaintiff agreed that disputes concerning her purchase would be arbitrated or litigated in Ohio.

¶ 15 We first note that defendant fails to cite any authority in support of its argument in violation of Illinois Supreme ...