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Ervin v. Nokia, Inc.

Case Date: 06/22/2004
Court: 5th District Appellate
Docket No: 5-04-0057 Rel

              NOTICE
 Decision filed 06/22/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-04-0057

IN THE
 
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

TERRELL ERVIN,

     Plaintiff-Appellee,

v.

NOKIA, INC.,

     Defendant-Appellant,

and

AT&T CORPORATION, AT&T CELLULAR
SERVICES, INC., and AMERICAN
TELEPHONE & TELEGRAPH COMPANY,

     Defendants.

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)		 Appeal from the
Circuit Court of
St. Clair County.

No. 01-L-150

 

 

 

 

Honorable
Lloyd A. Cueto,
Judge, presiding.

JUSTICE DONOVAN delivered the opinion of the court:

Plaintiff, Terrell Ervin, commenced this putative class action against defendant,Nokia, Inc. (Nokia), in order to recover damages for Nokia's alleged manufacture and saleof a defective product, the Nokia Model 8860 cellular telephone (Model 8860). Ervin'soriginal complaint included a claim against AT&T Corp., AT&T Cellular Services, Inc., andAmerican Telephone & Telegraph Company (collectively AT&T). AT&T's motion to stayproceedings and compel arbitration was granted. As a result, it is no longer a party to thisaction or appeal. Nokia also moved to stay the proceedings and compel arbitration. Ervinopposed Nokia's motion, arguing that Nokia was not covered by the arbitration provisionand, therefore, lacked standing to attempt to enforce it. The circuit court of St. Clair Countyfound that Nokia was not a party to the arbitration provision between Ervin and AT&T andcould not enforce the arbitration clause. This interlocutory appeal followed; we havejurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)). SeeCaudle v. Sears, Roebuck & Co., 245 Ill. App. 3d 959, 962, 614 N.E.2d 1312, 1315 (1993). We affirm.

 

BACKGROUND

On or about July 5, 2000, Ervin purchased a cellular telephone from an AT&TWireless Services, Inc., store. The telephone Ervin purchased was the Model 8860,manufactured by Nokia. At that time, AT&T also provided Ervin with a document entitled"Wireless Service Guide" (WSG). The WSG contained directions for the operation of thephone on the wireless network of AT&T, as well as other terms and conditions for the useof the service. On page 24 of the 25-page WSG, there was an arbitration clause providing,"Any dispute or claim arising out of or relating to this Agreement or to any product or serviceprovided in connection with this Agreement (whether based in contract, tort, statute, fraud,misrepresentation[,] or any other legal theory) will be resolved by binding arbitration ***."

Ervin filed his putative class action in the circuit court of St. Clair County, Illinois,against Nokia and AT&T, alleging that the Model 8860 was defective and that Nokia andAT&T unlawfully misrepresented the phone or otherwise withheld information from thepublic regarding the phone's defects. Ervin's amended complaint alleged fraud, breach of anexpress warranty, breach of an implied warranty, breach of the covenant of good faith andfair dealing, unjust enrichment, and unfair trade practices.

On December 18, 2003, the trial judge issued an order in which he found that Nokiawas not protected by any arbitration provision and could not enforce the WSG arbitrationclause for the following reasons: (1) the WSG excludes the phone manufacturer, (2) theWSG is enforceable only by AT&T and its customers purchasing wireless services, (3)Nokia's owner's manual (also provided with the Model 8860) did not provide for arbitration,(4) Nokia and AT&T are not inextricably intertwined, and (5) equitable estoppel does notapply to bind Ervin to something that does not exist (an arbitration agreement with Nokia). On January 20, 2004, Nokia filed its notice of interlocutory appeal pursuant to Rule307(a)(1).

 

ANALYSIS

Congress enacted the Federal Arbitration Act (FAA) (9 U.S.C.