People ex rel. Fahner v. Testa

• Decision Date: 10 February 1983
• Docket Number: No. 81-2993,81-2993
• Citation: 445 N.E.2d 1249,112 Ill.App.3d 834,68 Ill.Dec. 396
• Parties: , 68 Ill.Dec. 396, 39 A.L.R.4th 850 The PEOPLE ex rel. Tyrone C. FAHNER, Attorney General of the State of Illinois, Plaintiff-Appellant, v. Joseph D. TESTA, Individually and d/b/a Sterling Estates Mobile Home Park and d/b/a Testa Mobile Home Sales, Defendant-Appellee. and Joseph D. TESTA, Plaintiff, v. Ernest and Donna GLASGOW and Douglas and Tammie Hanson, Defendants.
• Court: United States Appellate Court of Illinois

Page 1249

445 N.E.2d 1249

112 Ill.App.3d 834, 68 Ill.Dec. 396,

39 A.L.R.4th 850

The PEOPLE ex rel. Tyrone C. FAHNER, Attorney General of the

State of Illinois, Plaintiff-Appellant, v. Joseph D. TESTA, Individually and d/b/a Sterling Estates

Mobile Home Park and d/b/a Testa Mobile Home

Sales, Defendant-Appellee.

and

Joseph D. TESTA, Plaintiff, v. Ernest and Donna GLASGOW and Douglas and Tammie Hanson, Defendants.

No. 81-2993.

Appellate Court of Illinois,

First District, Fourth Division.

Feb. 10, 1983.

Tyrone C. Fahner, Atty. Gen., William S. Shapiro, Asst. Atty. Gen., Deputy Chief, Consumer Protection Division, Chicago, for plaintiff-appellant.

William G. Phillips, Park Ridge, for defendant-appellee.

JOHNSON, Justice:

Plaintiff, Tyrone C. Fahner, the Illinois Attorney General, appeals an order of the trial court dismissing his first amended complaint against defendant, Joseph Testa, charging him with violations of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1979, ch. 121 1/2, par. 261 et seq.) and the Mobile Home Landlord and Tenant Act (Ill.Rev.Stat.1979, ch. 80, par. 201 et seq.). The following issues are raised for review: (1) whether the amended complaint states a cause of action for violations of the consumer fraud and mobile home statutes, and (2) whether the cause of action abated upon Testa's death.

On May 21, 1980, defendant filed a complaint for forcible entry and detainer against Ernest and Donna Glasgow and Douglas and Tammie Hanson. The Glasgows, tenants of defendant's mobile home village, had allowed the Hansons to move into their mobile home. On July 3, 1980, the Illinois Attorney General, plaintiff, filed a complaint for injunctive and other relief against defendant. These two causes were consolidated on October 16, 1980.

On November 25, 1980, plaintiff filed his first amended complaint for injunctive and other relief against defendant, the owner/operator of Sterling Estates Mobile Home Village. Defendant bought and sold new and used mobile homes as Testa Mobile Home Sales. Both businesses are located in Justice, Illinois. The complaint charged that defendant told certain of his mobile home tenants that they could not sell their homes unless the homes were removed from the village after sale. Defendant offered to buy certain of their homes at prices that were as much as one-half below the prices offered by potential purchasers. Defendant attempted to evict certain tenants and purchasers of the homes of former tenants and denied leases to potential purchasers. There was no comparable mobile home village in the vicinity. Plaintiff alleged that defendant's acts were unfair or deceptive, in violation of section 262 of the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1979, ch. 121 1/2, par. 262). Plaintiff asked that the court adjudge defendant's conduct an unfair practice, that defendant be required to notify tenants of their right to sell their homes and not face eviction, and that defendant be required to inform tenants of the standards for prospective tenants and for having a mobile home remain in the village. Plaintiff asked a penalty of $50,000 and that defendant be enjoined from requiring tenants to sell to him or face eviction.

In count II, plaintiff charged that certain tenants were threatened with eviction after they filed complaints with the consumer protection division of the Office of the Attorney General for violations of the Mobile Home Landlord and Tenant Act (Ill.Rev.Stat.1979, ch. 80, par. 201 et seq.). Plaintiff alleged that requiring tenants to prepay an entire year's rent for a year-to-year lease was a violation of section 206 of that Act (Ill.Rev.Stat.1979, ch. 80, par. 206.) Further, defendant interfered with the tenants' right to sell their homes by refusing to offer leases to prospective purchasers. Plaintiff asked that the court adjudge defendant's conduct a violation of the mobile home statute, that he be required to offer leases for a period of not less than 12 months, that he be enjoined from threatening or trying to evict tenants who complain to government agencies of violations of the mobile home statute, and that he not be allowed to interfere with the tenant's right to sell his mobile home by arbitrarily refusing tenancy to prospective purchasers.

In count III, plaintiff complained that defendant had failed to comply with a subpoena and notice to produce. Plaintiff asked that the court order compliance and enjoin defendant from conducting his business.

On July 23, 1981, Testa's attorney filed a motion suggesting death and other relief. On June 29, 1981, Testa had died as a result of injuries suffered when a bomb exploded in his car. At a hearing on defendant's motion to dismiss plaintiff's amended complaint, held on November 23, 1981, the trial court made the following findings:

(1) The complaint does not state a cause of action under either the consumer fraud or mobile home statute.

(2) The tenants are not consumers.

(3) Under the Mobile Home Landlord and Tenant Act there is no right to on-site sale of a mobile home.

(4) Sterling Estates leases are not void or voidable.

(5) The death of Testa abated the cause of action.

The trial court dismissed the complaint with prejudice although it acknowledged that the tenants might have a cause of action at law for damages. Plaintiff appeals.

The first issue raised by this appeal is whether the amended complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Ill.Rev.Stat.1979, ch. 121 1/2, par. 261 et seq.). Section 7 of the Act provides as follows:

"Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by Section 2 of this Act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the State against such person to restrain by temporary or permanent injunction the use of such method, act or practice." Ill.Rev.Stat.1979, ch. 121 1/2, par. 267.

Section 2 of the Act provides that "[u]nfair methods of competition and unfair or deceptive acts or practices * * * in the conduct of any trade or commerce are hereby declared unlawful * * *." (Ill.Rev.Stat.1979, ch. 121 1/2, par. 262.) Section 11a of the Act provides that it shall be liberally construed to effect its purposes. Ill.Rev.Stat.1979, ch. 121 1/2, par. 271a.

In his complaint, plaintiff alleged that defendant's conduct constituted unfair or deceptive acts or practices in violation of section 2 of the Act. Defendant contends that the conduct complained of was not unfair or deceptive. We disagree. The terms, "unfair practice" and "unfair methods of competition" are inherently not susceptible to precise definition. They must be defined on a case by case basis because of the futility of trying to anticipate all the unfair methods and practices a fertile mind might devise. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill.2d 279, 290, 58 Ill.Dec. 761, 767, 430 N.E.2d 1012, 1018.) Plaintiff alleged as unfair or deceptive the following acts and practices of defendant: requiring tenants to sell their homes directly to him at a lower price and denying a lease to a third party purchaser and threatening eviction. Defendant did not inform tenants of his resale policy, namely, that the mobile homes must be removed after sale, until tenants tried to sell their homes. Upon a motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 20 Ill.Dec. 581, 585, 380 N.E.2d 790, 794.) We hold that under the circumstances of this case plaintiff sufficiently alleged an unfair or deceptive act or practice under section 2 of the Consumer Fraud and Deceptive Practices Act.

Defendant also contends that the consumer fraud statute is not applicable because tenants are not consumers. Consumer is defined in the Act as "any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of trade or business but for his use or that of a member of his household." (Ill.Rev.Stat.1979, ch. 121 1/2, par. 261(e).) Merchandise includes services. (Ill.Rev.Stat.1979, ch. 121 1/2, par. 261(b).) In his complaint, plaintiff alleged that defendant leased spaces to tenants for their mobile homes. According to the lease agreement, defendant would provide services in exchange for rent.

In People ex rel. Fahner v. Hedrich (1982), 108 Ill.App.3d 83, 88, 63 Ill.Dec. 782, 786, 438 N.E.2d 924, 928, the court addressed the issue of whether the Consumer Fraud and Deceptive Business Practices Act is applicable to transactions between a mobile home park landlord and tenant. The court stated the following:

"From the evidence at trial it is clear that under the leasing agreement, the tenants contracted for various services to be supplied by the defendant, i.e., maintaining the utilities and road within the complex, providing snow and garbage removal, and allowing for the use of the lot. Therefore, the tenant contracted for the purchase of 'merchandise' as defined in section 1(b) and, under section 1(e), is a 'consumer.' " (People ex rel. Fahner, at 88, 63 Ill.Dec. 782, 438 N.E.2d 924.)

We conclude that tenants are consumers under the Act and that the trial court erred in holding that the amended complaint did not state a cause of action under the Consumer Fraud and Deceptive Business Practices Act.

Because of this conclusion, we also agree with plaintiff's contention that the complaint states a cause of action under the consumer fraud statute for subpoena enforcement. Under sections 3, 4 and 6 of the Act (Ill.Rev.Stat.1979, ch. 121 1/2, pars. 263, 264, 266), the Attorney General may examine documents in the course of investigations of unfair practices, issue subpoenas, and request injunctive and other relief to compel...