*1 *** are [definitional] instructions said, assuming “even reaching us from conclu would not deter required, such result Carey, 94 conspiracy context.” in the solicitation and sion that we do Third, jury no need to “determine” at 636. had murder). (first 4th to IPI Criminal degree As note object offense degree murder illustrates, element of first only pertinent 7.01 No. on the instructions intent to kill. Based in the instant case was returning to find such intent before judge gave, jury knew it had on point. verdict. guilty Carey reasons, portion from respectfully I dissent foregoing
For the judgment. reversing the trial court’s majority’s order al., CASCADE, Plaintiffs-Appellants, LISA M. et SHANNON v. BOISE
Defendant-Appellee.
Fourth District 4 — 01—0143 No.
Opinion January filed 2003. *3 J.,
TURNER, dissenting.
536 Nancy Glidden, Winkelmann, Chester, J. of & Pennsylva Phebus of West nia, Phebus, Joseph and W. Wright, Gary Forrester, Steven D. and D. all of Winkelmann, Urbana, Phebus & appellants. of for John Quivey, Thies, P.C., E. Thies and Lara L. both of Webber & of Urbana, Koh, L.L.P, Coie, Seattle, and Y. Washington, Steve of Perkins of appellee.
JUSTICE COOK opinion delivered the of the court:
We
our original
20, 2002,
filed
decision in this
February
case
on
16,
modified it
denial of rehearing
April
2002.
v.
Shannon
(2002) (hereinaf
Boise Cascade,
621,
In the plaintiff alleged that Amoco had made false premium gasolines, concerning representa which demand, tions allowing increased consumer an charge Amoco inflated price, thereby caused class purchas actual to a of ers of allege, however, which was a member. Plaintiff did not that defendant’s advertisements him to buy gasoline induced by Oliveira, that he was ads. deceived Ill. 2d at “ ” 155. causation, at Under theory’ Oliveira ‘market purchasers gasolines even Amoco’s ads saw the but never “ ” i.e., them, truth,’ believed those who ‘knew the would have valid 10a(a) claims under Deceptive section the Consumer Fraud and (815 (Act) (West 1996)). through Business Practices Act ILCS 505/1 Oliveira, 164. N.E.2d at supreme court determined that its decision Oliveira was Marketers, by controlled its decision in Zekman v. Direct American Inc., Zekman, 182 Ill. 2d the supreme genuine had there fact al held was no issue material leged violations of the proximately Act AT&T caused damage, testimony because demonstrated that was not Oliveira, deceived AT&T’s actions. deficiency: from complaint
163. The in Oliveira suffered the same *4 manner, “[pjlaintiff was, any by not that he in allege does deceived allege Plaintiff not that he defendant’s advertisements. does received he anything expected purchased other than what he to receive when Oliveira, 2d at N.E.2d at 163. gasoline.” defendant’s Ill. private in a of causation proximate the element properly plead “[T]o Act, a under the advertising brought deceptive cause of action Oliveira, was, manner, in deceived.” must that he some plaintiff allege 201 Ill. 164. 766 N.E.2d at case Oliveira. present There are differences between the complain price; plaintiffs case, simply the do not present it defective, they was complain product purchased do the not a to receive. This is something expected was other than what them, purchasers saw the ads but never believed case where who truth,” have valid purchasers who “knew the would nevertheless decision, below, purchaser claims. in As our discussed with the sid- buys problems the home at a discount because of known damaged no claim. ing has not been and would have rely misrepresentations possible to on without It is sometimes documents made. reading misrepresentations the in such are which an automobile not read all the purchaser The does by tires; made the manufacturer of the he counts on automobile so, just manufacturer to do but he relies on them the same. Purchas architects, builders, homes examine employ engineers ers of to them; say product literature for and it is a mistake to that home purchasers do fact in not on that literature. The is noted saw, heard[,] plaintiff Oliveira that did not “claim that he or read Oliveira, allegedly deceptive advertisements.” at That to important plaintiff N.E.2d 155. fact was show whether deceived, plaintiff anything in fact received than was whether other expected plaintiff, however, he The did what receive. Oliveira improved or engine performance care whether his was plaintiff only way environment was benefitted. Oliveira price. plaintiff expect harmed was The Oliveira did not others gasoline his Ol producers review claims made behalf. lay iveira does not down the rule that must have plaintiff inflexible Oliveira, read plaintiff allege, read the ads. Under must not that he ads, was, manner, (Emphasis “that but he some deceived.” added.) so Oliveira, 201 Ill. 2d at N.E.2d at 164. Plaintiff does here. suggests problems
Justice Turner’s that there are with dissent “allege allegations plaintiffs’ complaint, does Oliveira, was, manner, some deceived.” (Plaintiffs allege, however, that defendant’s 164. on their resulted in the use of defendant’s them.) homes, Oliveira was caused proximately which pleadings. present decided on motion to directed to dismiss case, however, judgment, it summary is decided on a motion for where
is Boise genuine Cascade’s burden to show that there is no issue as to any material fact that it judgment and is entitled to as a matter of law. Boise not, Cascade has not shown that manner, were in some granted summary judgment deceived. The trial court to Boise Cascade “it undisputed because that did not know that the siding defendant manufactured which on their homes at was they purchased time impossible homes.” Oliveira does not hold it for plaintiffs to under facts present recover of the case.
Our decision follows. (Ill. brought This action is 121V2, under the Act Rev. Stat. ch. (now (West pars. through see 815 ILCS through 505/1 2000))). The complaint seeks a determination that the action be 802(a) (West 2000). maintained as a class action. 735 ILCS The 5/2 — circuit court summary judgment defendant, entered in favor of Boise Cascade. We reverse and remand.
I. BACKGROUND Plaintiffs, Shannon, Timothy Shannon, Lisa M. J. K. Con- Brian nelly, West, Arami, Fischer, Shapour Susan Bruce Torongo, and James Page own homes in Du which County, were built in 1983 or 1984. Torongo Plaintiffs Fischer and the original homes, are owners of their purchasing them in 1984. the other plaintiffs purchased Most of their homes in one in 1991. Cascade an Boise manufactured exterior composite siding product wood that was installed on homes when began built. Cascade manufacturing composite were Boise its sid- ing manufactured, sold, about 1960 but has not or marketed the sid- ing since 1984. I,
Plaintiffs’ second-amended complaint, with amended count al (Ill. leges 121½, violation of section of the Act Rev. Stat. ch. (now (West 2000))). par. 262 see 815 ILCS The complaint alleges 505/2 composite siding rotting, that subject Boise Cascade’s was buckling, moisture, wick The warping, general complaint alleges and failure. deceptively composite siding, falsely that Boise Cascade advertised the “durable,” “of representing siding good quality,” that the was inherent maintenance,” performed comparably “low and “looked and to natural siding.” complaint alleges wood The also that Boise Cascade fraudu lently “performed failed disclose deceptively siding that its field,” failure,” poorly “high in the with a rate of was sensitive to moisture, required “highly maintenance.” particularized summary Cascade,
The circuit entered judgment court Boise noting discovery may necessary that while further be to determine marketing activity false, misleading, Boise or Cascade’s was deceptive, premise otherwise the court could address the factual heard, saw, neither of the eight motion “seven was advertising,” which of defendant’s were aware otherwise new, bought home Fischer his legal Although plaintiff strictly a issue. Cascade. manufactured Boise siding know that his was did not siding had been manufactured Torongo knew Plaintiff Cascade, he was aware there was no evidence Boise but Torongo held representations by Boise Cascade. the builder-seller of rely on the Fischer could not agent an homes, their as there was evidence builder-seller summary judg- did to enter Cascade. The circuit court refuse Boise Babel, his new in bought Jack home against plaintiff ment B. Cascade, and had by Boise knew the was manufactured making his prior publications read some Boise Cascade’s rejected argument Cascade’s purchase. circuit court “puffing.” nonactionable *6 304(a) a Court Rule finding Supreme The circuit court made under Ill. just delay appeal. to or 155 2d that there is reason enforcement 304(a). appeal, arguing improperly R. the circuit court Plaintiffs Act, particular a action the analyzed the elements of cause of under “materiality” “proximate purposes of causation.” For concepts and court, assume, of as circuit that Boise Cascade’s appeal this we did the defective, composite Cascade’s facts the intent deceptive, and that Boise Cascade concealed with rely that others thereon.
II. ANALYSIS Although summary judgment expeditious the use of aids disposition lawsuit, judgment a measure “[sjummary of drastic only and if is clear granted right judgment be the movant’s should Liberty and free from Marine v. Mutual Insur Corp. doubt.” Outboard (1992). Co., 90, 102, 1204, Ill. 1209 A ance 154 2d 607 N.E.2d motion therefore, summary granted, when the judgment properly admissions, pleadings, depositions, and affidavits file reveal genuine any moving there is no issue as to material fact and that the 1005(c) of party judgment is entitled to as a matter law. 735 ILCS 5/2 — (West 2000). motion, considering summary In the court judgment duty strictly against has the movant and construe evidence Co. nonmoving party. in favor Travelers Insurance v. liberally of 481, Inc., 292, 491 Eljer Manufacturing, 278, 757 N.E.2d 197 (2001). summary judgment, our appeals granting from orders Travelers, 292, N.E.2d at 491. review is de novo. Ill. 757 197 Act Practices Deceptive A. The Consumer Fraud and Business “[ujnfair competition” Section 2 the Act methods of of declares and “unfair or practices” acts or to be “unlawful whether any person misled, deceived[,] has in fact been damaged thereby.” or (now 1983, (West Ill. Rev. 121½, Stat. ch. par. see 815 ILCS 505/2 2000)). Among practices, those methods two are specifically (1) described: use employment any deception, “the or of fraud, false (2) pretense, promise, misrepresentation,” false [or] “the conceal ment, suppression^] fact, of any omission material with intent that concealment, others suppression^] or omission of such (now 1983, 121½, material fact.” Ill. Rev. par. Stat. ch. see 815 (West 2000)). ILCS 505/2 “Any person suffers actual result as a of a violation *** may this Act committed other person bring an action 270a(a) (now
against person.” 1983, I2IV2, such Ill. par. Rev. Stat. ch. 505/10a(a) (West 2000)). see 815 ILCS Although the Act not use does cause,” “proximate words a tort concept, language of section 10a(a) give has been held to to a requirement rise show that the consumer fraud proximately plaintiffs injury. caused Connick v. Suzuki Motor 174 Ill. 2d 675 N.E.2d Privity B.
The circuit court the Act require privity, construed some sort direct contact between the made narrowly. Boise Cascade. The circuit Act court construed the too The Act created a new cause of action that affords consumers broad protection deception by prohibiting any promise. or false Miller v. William vrolet/Geo, Inc., Che Ill.
(2001). The many Act eliminated elements of common-law fraud Miller, in this new cause action. Ill.
at 11.
For
reliance
example,
decep
on the defendant’s
Miller,
tion is
an
element of a consumer fraud claim.
deceive or plaintiff; misrepresentations the innocent material omis Miller, induce the plaintiffs sions intended to reliance are actionable. App. 326 Ill. at 12. a two-step process There is under the the is step Act. In first it determined whether the conduct unlawful, any given the defendant consideration to without such thereon, plaintiff plaintiff matters as the relied the whether whether through could or inquiry, have discovered the truth reasonable justified. step whether In the it the reliance was second is determined whether of a plaintiff suffered actual as a result violation upon the Act. The focus of the Act is the conduct of the deceptive defendant, Rev. Stat. upon plaintiff. not conduct Ill. (now (West 2000)) (“unlawful I2IV2, ch. par. 262 see 815 ILCS 505/2
541 misled, deceived[,] damaged in fact been any person has thereby”). privity require fraud did not between
Even common-law
be
that
the defendant
plaintiff
defendant, only
the statement
and
his
and influence
plaintiff
that it reach the
made with
intention
it, to his
rely
him
he does
upon
and that it
reach
and that
action
does
Ill.
Construction
damage.
Joseph Hospital
St.
v. Corbetta
any
impose
Nor does
Act
concealed,
a
fact is
it is sufficient
privity requirement. Where material
rely upon
an
the concealment.”
that
there be
“intent
that others
added.)
(now
121V2,
see
par.
Rev. Stat.
ch.
(Emphasis
(West 2000)). It
that
required
any particular
ILCS
is not
505/2
rely,
rely,
or be
to
concealment. Some of the
person
intended
on the
rely
do list as an element
intent
cases
“defendant’s
added.)
at
See,
Connick,
deception.” (Emphasis
e.g.,
statement,
make
N.E.2d at 593. The
cases which
however,
directly
deception
all seem to be cases which the
was made
to
plaintiff. Certainly
plaintiffs’
to
Boise Cascade did not need
know
it
A
accurate
identities when made its
statements. more
present
statement of the element
in the
case would
to be:
appear
deception.”
“defendant’s intent that someone
on the
judgment
The circuit
summary
against plaintiffs
court entered
new,
Torongo,
bought
concluding
Fischer and
their homes
representations by
not
any
aware of
Boise Cascade.
probably
representations,
builder-seller of the homes was
aware of the
according
help plaintiffs
not
because
but
the circuit
that did
agent
there
no evidence the
an
of Boise Cascade.
builder-seller was
analysis
That
Whether or not the builder-seller was
mistaken.
agent,
Cascade’s
Boise Cascade’s
reached
builder-seller,
Torongo
relied
through
Fischer
In the St.
representations,
damage.
Joseph Hospital
those
to their
in a letter
the contrac
case,
Electric made
General
carry
plastic
paneling
tor that its Textolite
laminate wall
did
at
Hospital,
kind. St.
21 Ill.
spread rating
Joseph
flame
been tested Underwriters
paneling
C. Proximate Cause plaintiffs relying The circuit court determined that were on theory of marketing proximate prevail plaintiffs cause and that to must allegedly advertising, establish that “without the business, siding defendant would not have been in the because there siding.” Munjal would no market for its v. Baird & have been Cf. (1985) Warner, Inc., (misrepresentation was an to induce attempt purchaser buy defect). house for a that did not of the value reflect existence a case plaintiffs prove concluded could without such plunging murky depths speculation.” “the trier of fact into the plaintiffs prove court stated that while need not reliance to recover Act, under “they prove specific must someone saw directly advertising with the result that the were question i.e., to their The court impacted, made a decision detriment.” concerning materiality applicable were concluded that its observations cause, that most proximate the issue of on their Cascade had manufactured unaware that Boise purchase: made their homes when concern- non[ “Thus, representation it seems disclosure deci- purchasing their have affected siding could
ing Boise Cascade therefore, nothing the inescapable, The conclusion seems sion. disclosing advertised!,] from said, wrote, or refrained defendant claim damages six cause the proximately could they have suffered.” that causation matter of law conclusion as a
The circuit court’s *9 causation, erroneous. remote, proximate there was no was too conduct the defendant’s minds could differ whether Where reasonable is for injury, the matter bringing factor in about was a substantial 432, Authority, 152 Ill. 2d v. Transit jury Chicago to decide. Lee proved must be 455, 493, 502-03 Proximate cause 605 N.E.2d every by element found a certainty, but that is true of by a reasonable cause, jury indicating proximate If some evidence jury. there is v. Kemlite overturned. See LaFever verdict cannot be (1998) 380, 405-06, (reversing ruling there was 706 N.E.2d 454-55 earnings future lost instruc reasonably support certain evidence McPartlin, 192 tion; required); all that is McDonnell v. some evidence (2000) (some evidence of sole 736 N.E.2d instruction). The fact that Boise proximate support cause sufficient to by or plaintiffs by Cascade from some the builder-seller separated necessarily destroy intervening purchasers proximate does not cause. which, probable in natural or Proximate cause means cause “ of. It need not be ‘the sequence, produced injury complained ” cause, nor the last or nearest cause.’ Holton v. Memorial (1997), 95, 110-11, quoting Hospital, 176 Ill. (3d 1995). Civil, Instructions, No. 15.01 ed. Jury Illinois Pattern require The term cause” describes two distinct “proximate Lee, 605 N.E.2d legal ments: cause in fact and cause. 152 Ill. 2d at fact, cause in or “but for” Generally enough at 502. it is not to show mother, although plaintiff may against causation. A not recover his he problems not have all the but for his birth would suffered cause,” “legal policy a decision encountered in life. There must also be extended legal responsibility a defendant’s can be that limits how far Lee, 152 Ill. 2d at did, fact, cause harm. for conduct that decision). Legal duty policy at 502 also (question foreseeability; a defendant should essentially question cause is Lee, Ill. 2d at extraordinary result. highly found for a be liable Act, it appears under the arising at 503. In cases Act, damages are by decisions have been made policy these practice a method or if are in fact caused proximately they caused is, damages if would Act, which is unlawful under Act. for the have occurred but violation When a manufacturer is able incorporate its defective building by into a deception and the concealment of material facts, it is foreseeable purchaser or some subsequent purchaser will suffer damages when the defect is discovered. The proposition that use of materials, defective as a result of misrepresen tation, will cause damages when the defects are discovered is not a highly extraordinary Using one. terms, circuit pos court’s was it sible or foreseeable that Boise Cascade’s representations, of which unaware, “could have affected purchasing their deci Deceptive sion”? advertising can affect a buyer home who is unaware it,of if upon by it is relied deals, those with whom he such as architects or builders. See Joseph St. Hospital,
N.E.2d at If buyer 69-74. such a has cause of action when he discov the misrepresentation, ers why should a subsequent buyer, who is one to misrepresentation, discover the not have a cause of action?
Boise Cascade knew there would subsequent buyers. be Cascade disseminated allegedly deceptive advertising for the purpose that it be upon. would relied It makes no difference whether the deceptive advertising by architects, builders, was read or new buyers, home saw and liked homes built others who had read the advertising. Proximate cause need not be the only cause, nor the last or nearest cause. The trial proximate court’s view of *10 overly cause is restrictive. See Colonial Inn Lodge, Gay, Motor Inc. v. (1997) 32, 44, 288 Ill. App. 407, 3d 680 N.E.2d 415 (possibility that colliding building with a disrupt gas will line or create a fire hazard inherently is not so farfetched as to merit the label “freakish” or “fantastic”).
D. Arguments Other argument The is made that plaintiffs’ “marketing theory” in would result infinite liability the manufacturer for any injury associated the product. with It is not correct that every purchaser of these homes from time this forward will have a of action against cause Boise Only Cascade. a purchaser paid price home, who full for the defect, unaware of the and then was unable to resell the home for its full price would have a cause of action. A purchaser buys home at a discount because of problems siding known with the has damaged. not been marketing cases,
In some plaintiffs may transaction be far removed deception from the or concealment. in example, For stock transac- tions, individuals, private representations may only be made to a few causing them to purchase driving up price. the stock and Other representations may purchase individuals with access to the also
545 (not the individuals necessarily from price the inflated the stock at made) for the to recover attempt representations were whom 886, 3d Co., 311 Ill. Oliveira v. Amoco Oil representations. See 134, N.E.2d (2000), rev’d, 201 Ill. 2d 726 N.E.2d (2002). transaction: al tighter a much case involves present been transferred in a which has legations physical of a defect privity was required, contract was privity Even where plaintiffs. v. Collins Co. assignment of the contract. accompany held to a valid Carboline distributed, and a widely apparently were
Cascade’s would have suffered jury reasonably plaintiffs could conclude made. damages if the had not been reject further the circuit court’s contention We Code is inconsistent the Uniform Commercial cause of action with (810 (3) (West 316(2), 2000)), the disclaimer ILCS which allows 5/2 — merchantability. nothing wrong There is implied warranty of an siding. D A arises marketing problem with a manufacturer Grade siding. A where the manufacturer markets that as Grade by misrepresentations existence of does not unaccompanied defects Builders, Inc., amount to fraud. Naiditch v. Home Shaf (1987); Heider Leewards Creative v. (1993) Inc., 258, 270-71,
Crafts, Naiditch-, (misrepresentations lacking merely evidence established defective). house was
III. CONCLUSION defendants, upon The focus of the Act is the conduct of the plaintiffs. guilty defendants are conduct Whether under the Act must be determined without practices unlawful misled, deceived, considering any person has fact been damaged thereby. guilty practices, If defendants are of unlawful as a question becomes whether have suffered actual result, jury. say for the We cannot that a reason normally question damages or jury able could never conclude that sustained consequence of Boise damages probable those natural Cascade’s unlawful conduct. tria) entering summary judgment order We reverse court’s remand for further proceedings. *11 remanded.
Reversed and
KNECHT, J., concurs. TURNER, dissenting:
JUSTICE
I
in
majority opinion
dissented
upon
as modified
denial of
rehearing (Shannon,
Ill. App.
3d at
I find the majority’s insouciance to our supreme court’s decision notes, in Oliveira vexing. majority Oliveira, As the in supreme court stated explicitly plaintiff pleading that a a private cause of ac tion under the Act allege must that he or she was deceived. 336 Ill. App. Nevertheless, 3d at 537. the majority ignore, continues to as it reversal, did in its original plaintiffs here allege they do not deceived. Plaintiffs instead theory” causation, a “market they under which assert deceptive advertising defendant’s created a market for siding defendant’s that would not have otherwise existed and thus resulted in siding being plaintiffs’ defendant’s installed on homes. Oliveira, 201 Ill. 2d at supreme our plaintiffs noted two infirmities with the theory” “market
produced results at odds with the
earlier
in
court’s
decision Zekman.
“[ujnder
The first one is
out
pointed
majority,
where it states
‘
’
theory”
causation,
Oliveira
“market
purchas
even
gasoline
them, i.e.,
ers of Amoco’s
who saw the ads but never believed
‘
’
truth,”
those who “knew the
have
under
would
valid claims
section
10a(a)
Oliveira,
quoting
[Act].” 3d at
Here,
infirmity
Additionally,
majority
infirmity
believes this
does not exist
buys
“a
the home at a discount
purchaser
because
because
problems
siding
damaged
known
with the
has not been
and would
However,
my previ
have no claim.” 336 Ill.
3d at 537.
as noted
dissent,
ous
several of the
this case knew
had dam
Shannon, 328
aged siding
they purchased
when
their homes.
J.,
Moreover,
(Turner,
dissenting).
majority’s analysis
because
do not assert that
is irrelevant
defendant,
anyone, including
deceptive representations
made
about
they purchased
their
to them before
their homes.
homes’
infirmity,
the second
majority attempts
to dismiss
*12
the ads
who never saw
gasolines
“purchasers
premium
of defendant’s
Oliveira, 201
and,
have valid claims.”
thus,
‘not deceived’ also
does
majority
asserts “Oliveira
Ill. 2d at