Hubbert v. Dell Corp.

Case Date: 08/12/2005
Court: 5th District Appellate
Docket No: 5-03-0643 Rel

                       NOTICE
Decision filed 08/12/05.  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. 5-03-0643

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


DEWAYNE HUBBERT, ELDEN L. CRAFT,
CHRIS GROUT, and RHONDA BYINGTON,
Individually and on Behalf of Others Similarly
Situated,

     Plaintiffs-Appellees,

v.

DELL CORPORATION,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Madison County.




No. 02-L-786

Honorable
Phillip J. Kardis,
Judge, presiding.


JUSTICE HOPKINS delivered the opinion of the court:

The defendant, Dell Corp., appeals the trial court's order denying its motion to compel arbitration and the court's related orders denying its motion to strike certain exhibits and an affidavit submitted by the plaintiffs, Dewayne Hubbert, Elden Craft, Chris Grout, and Rhonda Byington, in opposition to the defendant's motion to compel arbitration. Because a ruling on a motion to compel arbitration is in the nature of injunctive relief, the trial court's orders are reviewable under Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)). LAS, Inc. v. Mini-Tankers, USA, Inc., 342 Ill. App. 3d 997, 1000 (2003). On appeal, the defendant argues that the trial court erred in finding that its arbitration clause was not a part of the contract between the defendant and the plaintiffs and that the court erred in finding that if the arbitration clause was a part of the contract between the parties, then the arbitration clause was unenforceable because it was procedurally and substantively unconscionable.

BACKGROUND

In 2000 and 2001, the plaintiffs purchased computers online through the defendant's Web site. Before purchasing their computers, each of the plaintiffs configured the model and type of computer he or she wished to purchase from the defendant's Web pages. To make their purchases, each of the plaintiffs completed online forms on five of the defendant's Web pages. On each of the five Web pages, the defendant's "Terms and Conditions of Sale" were accessible by clicking on a blue hyperlink. The terms and conditions were also printed on the back of the plaintiffs' invoices, which were sent, along with separate documents containing the "Terms and Conditions of Sale," in the shipping boxes with the plaintiffs' computers, and the terms and conditions could be obtained by calling the defendant's toll-free number and requesting a copy. On the last three forms the plaintiffs completed online, the following statement appeared: "All sales are subject to Dell's Term[s] and Conditions of Sale." The defendant included in the boxes in which the computers were shipped its "total satisfaction" return policy, which provided that purchasers would receive a full refund or credit if the computers were returned within 30 days. None of the plaintiffs returned his or her computers within 30 days.

On June 3, 2002, the plaintiffs filed their complaint, both as individuals and on behalf of others similarly situated, i.e., a putative class action lawsuit, against the defendant. In their complaint, the plaintiffs-three Illinois residents and one Missouri resident-alleged that they had purchased computers online from the defendant, whose principal place of business was in Texas; that the computers contained Pentium 4 microprocessors, which the defendant had asserted were the fastest, most powerful Intel Pentium processors available; that the Pentium 4 microprocessor was slower and less powerful and provided less performance than either a Pentium III or an AMD Athlon, but at a greater cost; and that the defendant's marketing of its Pentium 4 computers was false, misleading, and deceptive. The plaintiffs' complaint includes three counts alleging that the defendant violated the Texas Deceptive Trade Practices-Consumer Protection Act (Tex. Bus. & Com. Code Ann.