*1 аl., al., RONALD Plaintiffs-Appellants, BEARD et v. F. DALE GRESS et (RAY MADSEN, Associates, Ray Madsen & Defendant- d/b/a Defendants. —
Appellee.) Fourth District No. 16237 Opinion filed November
TRAPP, J., concurring part dissenting part. *2 Curl, Danville, Meyer, appellants. L.
David Law of P. Offices John Smith, Timothy Lowenstein, Smith, Danville, O. Hubbard & appellee.
Mr. opinion GREEN delivered the the court: JUSTICE question principal The in this is whether a real broker case estate representing is buyers sellers liable to under the Consumer and (Consumer Act) (Ill. Business Practices Act 1979, 121?2,par. seq.) et misrepresentation, for an innocent rеlied upon by buyers, as mortgage to the interest rate in a encum- the premises bered by buyers. Although sold and was assumed wording confusion, of the act creates a is some we that such broker hold liable. Beard,
On March plaintiffs, filed Ronald Beard and Nellie defendants, suit in the circuit court of F. County against Vermilion Dale Gress, Gress, broker, Madsen, Dorothy Ray and their real estate d/b/a Ray Associates, & seeking monetary damages Madsen from a transaction whereby plaintiffs purchased real from Pursuant estate defendants Gress. VI, to the motion asserting of defendant Madsen that counts IV and him, action, solely against directed did not the circuit state cause court jurisdic- dismissed those counts. have appealed. Plaintiffs have We tion findings Supreme because of the court’s Court Rule pursuant 304(a). 73 Ill. 304(a). 2d R.
Counts IV VI alleged Madsen to be a real estate defendant broker for defendants negligently Gress and to have made misstatements concerning (1) encumbering rate mortgage of interest on premises, (2) length time by plaintiffs, which was assumed during which property had been listed for sale. Plaintiffs claimed monetary have sought relied to their detriment these statements damages. Count IV merely sought at common law for inaccurate relief VI negligently by incorpo- statеments Count made real estate broken by rated all also allegations reference of count IV but statutory certain violations which we later describe detail. At properly IV was dismissed. dispute
There is little that count law, for his material presumably common liable a real estate broker only if he knows or concerning realty a sale of misstatements as to matters Church Episcopal v. Christ inaccuracy. (Lyons should have known of the 623.) IV states Although 389N.E.2d count issue, state that he it does not negligently Madsen made the statements falsity. knew their or should have known of and the Uniform Fraud Act Count VI referred to both the Consumer called the Uniform Deceptive Trade Practices hereinafter in that acts are related seq.). The two et 121½,par. section of the Consumer Fraud Act Rev. any practice described employment pаrt states that “the use or trade or com in the conduct of Section of the Act] [Uniform hereby merce are declared unlawful.” two acts are referring to either of the allegations of count VI following paragraphs count:
contained prac deceptive trade Ray “14. Madsen committed a Defendant Stats., in he did Ill. by Chapter tice as 121½ defined §312 public alleged, make a publish and with intent to sell herеtofore F. Dale mortgage under defendant statement that the assumable 7½%, interest of name was at the rate of Dorothy Gress and Gress prac an unfair and and that said statement constitutes *3 fact made with of a material misrepresentation in that it a tice was statement rely on s'aid buyers would potential the intent that by Chapter defined 121½ §262. repre to be or caused represented Ray
15. Defendant Madsen of defendants the residence fact that sented a material to-wit: 1979,with intent that January, for sale on or about Gress was listed fact, and material of such misrepresentations rely others on said deceptive trade and an unfair representation that constitutes said Stats, §262,Ill. §312,and Chapter 121½ practice in violation among buyers.” to cause confusion that said statement tends sought summarily. The relief VI 15 of count disposе paragraph We misrep whether a Regardless of damages. by the count is mgney might listed for sale has been property time length as to the resentation sale, we do a for sale or a contract ground a for rescission of give rise to money to a claim give can rise misrepresentation such a not see how The count question. answer of the count damages. allegations No were buyers misrepresentation, allege does not because they than any greater value believing they would obtain into deceived a itself set forth not of does paragraph that this We conclude received. doing of the count paragraphs give any aid to other of action nor cause so. hand, purchasers believing
On the if into that the other are misled interest mortgage they rate a to assume is lower thаn it turns out are be, to they clearly damaged thereby. theory are This is the paragraph 14. Accordingly, we must it in combination with the determine whether rest creating forth a cause of statutory count does set violation a money action for damages.
Only (Ill. injunctive is Uniform Act itself. relief available under the 121½, Furthermore, act, itself, Rev. Stat. 313.) ch. has par. been held applicable involving goods to be only to transactions and services. (Steinberg v. Chicago Medical School 69 Ill. 2d 371 N.E.2d 634.) The goods, transaction here a sale of real estate rather than involved Thus, and Madsen furnished plaintiffs. no services for the reference paragraph 121½, 14 to section 2 of that act significant only if alleges employment” by “use of paragraph defendant Madsen a “practice described in 2” that act “in the section any so, conduct of trade or commerce.” If a cause would thus be of action stated under section 2 10a(a) Fraud Act. of that Section act court, par. 270(a)) permits trial discretion, monetary award a damages for violation thereof. Section 1(f) of that act states: advertising,
“(f) The terms and mean the ‘trade’ ‘commerce’ offering sale, sale, any any or distribution of services and real, mixed, property, tangible any intangible, personal article, situated, thing other commodity, or of value wherever shall any directly indirectly include af trade commerce fecting people added.) of this Ill. Rev. Stat. (Emphasis State.” 12½, par. 261(f). Section 2 of (the only applicable the Uniform Act act itself is goods transactions involving services) 12 subsections contains setting forth acts The first 10 constituting prohibited practices. trade subsections а Subsection furnishing goods refer to manner of or services. misleading concerns the fact con making of “false or statements of for, cerning the price reasons existence of reductions” and or amounts thus any has no 12 states relevance to conduct here. Subsection a person “engages commits deceptive practice when he other similarly conduct which of confusion or creates likelihood misunderstanding.” The misstatement of the interest rate attributed *4 * * * Madsen mis would be “a “conduct” which creates likelihood Thus, understanding.” conduct question the arises as to whether such prohibited involving under the Uniform in Act when done a transaction goods Act or services becomes a violation under the Consumer provision when done in regard to a real transaction because estate of section 2 described practices of the Consumer makes Fraud Act which in Act when com- the Uniform Act of the Consumer Fraud violations any “in includes sale of real estate. mitted trade commerce” which or because, disregarding refer question We need not answer paragraph ence in paragraph 14 the Uniform we consider to the Consumer barely sufficient to a direct of section 2 of allege violation Act. stаtes Fraud Act without to the Uniform That section reference pertinent detail: Unfair and unfair or acts competition methods of
“§2. practices, including employment but not limited to use or misrepresenta fraud, any deception, pretense, promise, false false concealment, any tion suppression material or omission * * * fact, any practice described employment or the use or Act’, ap Section 2 of Trade Practices the ‘Uniform any 5, 1965, in the trade or commerce August conduct of proved hereby are any person has fact been declared unlawful whether misled, construing this section damaged thereby. deceived or interpretations of the Federal given consideration shall be 5(a) relating to Section Trade Commission and the federal courts added.) (Ill. (Emphasis the Federal Act.” Trade Commission 121½, par. 262.) By by a express terms made broker misrepresentation of the section for a in a sale an action- party as to a material fact estate constitutes real able violation Consumer Fraud Act.
Question could raised as to whether even the Consumer be designated follows: applies to sales of real estate. The act is as and businessmen and borrowers protect
“An Act сonsumers fraud, decep against competition and unfair unfair methods of or commerce practices acts or trade tive conduct * * *." added.) (Emphasis 320, 371 N.E.2d Steinberg v. Medical 69 Ill. 2d Chicago School school, being not medical applicant private the court held that an ato consumer, borrower, sue under the standing no or businessman had admission. granting act for by policy for a breach of its stated thе school 1(e) of the act Section states: purchases con any person
“The term who ‘consumer’ means ordi not resale merchandise for the purchase tracts that of a use or but his nary course of his trade or business Stat. added.) Rev. (Emphasis of his member household.” 121½,par. 261(e).) turn, 261(b)), 1(b) Section act commodities, wares, intan goods, “any objects, defines “merchandise” Illinois, or services.” State outside the real estate situated gibles, *5 of purchaser a be raised that argument The could (Emphasis added.) have no borrower would realty a businessman or domestic who was not standing to sue. history of the by is the foregoing argument
The refuted Act, the act section October however. Prior to of its application limited the expressly and made no prohibitions merchandise to and advertisements of sales as now trade оr commerce” category “any reference to the broader 1,1973, (f) subsection stated in that there was no section. Prior to October as now and “commerce” defining to section of the act the “trade” words fact, 1,1973, In “trade” nor provided. October neither the word prior to By the same the anywhere word “commerce” was used act. amendment, to include the act purpose stated the broadened was act. While protected by “businessmen” as be the group an additional to change in making changes, Assembly the the made no foregoing General 1(e) act, one section term “consumer” to who which limits the “merchandise,” purchases nor did it purchase contracts for change within 1(b), section does include domestic real estate which not the definition of “merchandise.” International, People Inc. ex v. Cardet (1974), rel. Scott 740, 321 prior
3d the act to appellate N.E.2d held under court 1, 1973, a protection October was not stated where of businessmen act, franchise. purpose gave coverage of the it no to the sale of a amendment, describing apparent pur it its effect of the stated that pose scope was to protection extend to businessmen to extend beyond matters connected with the of merchandise sale or advertisement to the conduct of any agree, trade or We conclude that commerce. the broadened scope of section covers real estate transactions now permits purchasers that section even of real estate sue for violations of though they still within definition of “consumers” set do not come forth in obviously the act. Any interpretation give other would purchase unintended estate but protecting result who real businessmen giving protection no such so. to other citizens who do
Our holding applicable that section 2 of Act is the Consumer Fraud to sales of real in Grimes v. Adles holding estate consistent with our perger 582, 384 67 Ill. App. partly N.E.2d where we relied on section 2 of in affirming the act rescinding a decree a contract sale of rеal estate and the thereon. The restaurant business conducted basis of the rescission was grossly concerning inaccurate information previous gross put sales of the business given purchaser to the a booklet by out a multiple listing service. neither state We also held the mental person making misrepresentation diligence party nor the injured to check as to the accuracy misrepresentation to be material to the existence of a cause of misrepresentation action for that under section 2. We precedent follow that here. However,
Count VI is clarity. not a model because the main reason for its dismissal was legislation that the court it upon believed the was inapplicable, based be do we not affirm the basis of lack of clarity that could be cured by amendment. cоunt defendant Madsen had negligent misrepresentations been in his and also they were Although violative of the statutes. we have determined that his mental state was as to a immaterial violation the Consumer we not do consider It negligence. count to sound violations, claimed statutory negligence allegation and the surplusage. was Although misrepresentations two alleged, they were both out of the arose sаme transaction and did not make the v. Winn duplicitous. count *6 Underwood 297, (1945), 325 Ill. App. 60 116. N.E.2d
For the reasons stated we affirm the dismissal of count IV and reverse the dismissal of count VI. The case is remanded to circuit court of County Vermilion for proceedings. further in part, part,
Affirmed reversed in and remanded. concurs,
MILLS, J.,P. TRAPP, part: Mr. concurring part dissenting JUSTICE The an majority opinion agrees pleadings that limit this action “innocent misrepresentation” in the careless statement made contеxt without I Fraud knowledge. agree cannot that either the Consumer Deceptive (Consumer Fraud) Uniform De- Business Practices Act or the ceptive Practices) (Deceptive properly applicable Trade Practices Act misrepresen- to such a plain language, single transaction. “innocent customary tation” is a “practice” “repeated not in the or action” sense of a wаy doing “the New Col- something.” usual Webster’s Seventh legiate Dictionary. 121*2, 2 (Ill.
Section Fraud Act par. 262) is stated as: limited including but not practices, acts or
“[U]nfair fraud, pretense, false employment any deception, to the use or concealment, suppression promise, misrepresentation false or the fact, rely upon others with intent that omission of material fact, concealment, of such material оr omission suppression Section employment any practice the use or described * * *." Act’, Deceptive the ‘Uniform Trade Practices i.e., fraud, false Upon deception, expressions employed, the face of the contem- concealment, expressly statute language of the pretense and v. Association much in Scott stated as plates state. This court has a mental 318,407 Home, 3d Aрp. 85 Ill. at International Childbirth act, the court in this Reviewing employed the words N.E.2d 76. stated: words by the latter characterized noteworthy
“It is that conduct actor, while no part of involves a mens re usually upon the con- necessary for actor is knowledge by the wrongful intent or be ‘unfair.’ deemed to produce a result which can be duct to Colautti, crim- subjecting physicians legislation the court ruled under upon viable fetusеs abortions liability performing inal court noted vagueness. The be void for certain circumstances to prohibitory in a that the lack of a definite mens re requirement clarity.” problems its compounds statute come obviously does not complaint in this conduct in the Consumer specifically within the conduct described 121½, pars. 262A through sections 262A 262N. Act undertakes through 262N.) Section of the Consumer De incorporate any practice described employment the use or not complaint does ceptive fairly Practices Act. It is to be said allege any “practice” part the defendant. on the Trade Practices
By Uniform language, section of the through 11 121M, subparagraphs is no contention are and there supplying goods directed to and services subparagraphs specifi- they applicable arе At two of the here. least separate purpose. Without cally call for an a stated “intent” to achieve say it is fair to analyses language subparagraphs, of the several knowledge. at least the a mental state subparagraphs several call for majority liability, charge pleaded To the conduct here with *7 12 of subparagraph in opinion employ language found undertakes to the Act: 2 Practices Deceptive section of the Uniform Trade of con similarly a likelihood “[A]ny which creates other conduct added.) (Ill. Rev. (Emphasis misunderstanding.” fusion or of 1979, 121½,par. 312.) ejusdem generis, the
By statutory the rule of construction described 12 to that of subparagraph “similarly” word limits the “other conduct” that act. subparagraphs in quality like kind or as that stated the several 432, 328 N.E.2d Ill. 2d Farley v. Marion Power Shovel Co. (1975), In 60 318, construсtion employ its liberal supreme court was asked to movable shovel bring a mammoth words “or other structure” so as to court, however, rule of applied the within the Structural Work Act. The construction, saying: a statute or ejusdem generis is that where
‘The doctrine of persons or classes of specifically enumerates several document 630
things following, and immediately and with such enumer- classed ation, persоns things, the clause embraces “other” word like,” “other” generally will be as “other read such so that the persons things comprised therein read as may ejusdem be generis “with,” from, and not quality superior of a or different ” 436, 432, specifically those 60 Ill. enumerated.’ 2d 328 N.E.2d conduct, face, pleaded not conduct the kind or quality 2 appears either section
section 2 of Deceptive the Uniform Trade Practices Act.
One finds opinions statements a number of the effect that subpаragraph 12 section 2 Deceptive of the Uniform Trade Practices 1979, 121½, par; given, is to be a broad appli cation good and that important.” or bad faith of the “not seller is examination, Upon such prove essentially statements to be dicta for the reason that upon alleged, review the pleading the evidence demon strated, conduct specifically respective either or bоth described acts. 179,
In Fitzgerald Ill. Chicago (1978), v. Title Trust 2d & Co. 790, intentional, reports N.E.2d opinion complaint alleged that the deliberate In concealment of the fact of practice. Perrin 664, v. (1980), App. Pioneer Title 83 Ill. 3d National Insurance Co. 508, N.E.2d the complaint alleged misrepre intentional concealment and sentation.
A v. language division of this court to such Grimes referred 582, case, Adlesperger (1978), 67 Ill. 537. App. 3d N.E.2d however, misrep in a plаintiff engaged the trial found that had court explain plausibly. explain, resentation which undertook to but failed to he Mart, Appliance (1978), App. Williamsv. 62Ill. Bruno & Furniture Inc. 219, fraud, complaint alleged 3d 379 N.E.2d as an as well adver Apart tisement with intent not to sell as In Edgewater advertised. Beach Corp. Management (1973), App. ments v. 12Ill. 3d Edgewater Beach Co. with N.E.2d the trial court found the defendant acted knowledge. full interpretation
One the use of the finds that the theme of broad conduct” 12 of the Uniform language subparagraph “other 312(12)) is most Trade Practices Act Vernon, Illinois, extensively Mt. Buyers discussed American Club of There, 1370. v. 361 N.E.2d Inc. Honecker however, entering pleaded the defendant fraúd inducement contract, had been misrepresentations trial court found A has failed to made. substantial search of the decisions of our courts acts has respective an been discover an instance where action under the *8 conclude I would pleaded. here allegations the nature founded v. Christ in Lyons correctly stated this duty defendant 623. 389 N.E.2d Episcopal Ill. Church (1979), 71 dismissal of in its affirmance majority opinion I concur and the reached the conclusion paragraph count VI. I dissent from 15 of VI, I 14 of count paragraph trial reversal of the court’s dismissal affirm trial would court. ILLINOIS,
THE PEOPLE OF Plaintiff-Appellee, THE STATE OF v. WASHINGTON, Defendant-Appellant. WALTER JR.,
Second District No. 79-465 Opinion filed November Robinson, Mary Office, Appellate Elgin, Ralph of State Defender’s