Richard/Allen/Winter, Ltd. v. Waldorf

• Decision Date: 10 June 1987
• Docket Number: No. 2-86-0119,2-86-0119
• Citation: 156 Ill.App.3d 717,509 N.E.2d 1078
• Parties: , 109 Ill.Dec. 239 RICHARD/ALLEN/WINTER, LTD., Plaintiff and Counterdefendant-Appellant, v. James A. WALDORF and Ronald V. Erickson, Defendants and Counterplaintiffs-Appellees.
• Court: United States Appellate Court of Illinois

Page 1078

509 N.E.2d 1078

156 Ill.App.3d 717, 109 Ill.Dec. 239

RICHARD/ALLEN/WINTER, LTD., Plaintiff and Counterdefendant-Appellant, v. James A. WALDORF and Ronald V. Erickson, Defendants and Counterplaintiffs-Appellees.

No. 2-86-0119.

Appellate Court of Illinois Second District.

June 10, 1987.

Supplemental Opinion on Denial of

Rehearing July 15, 1987.

Samuel Young, P.C., Skokie, Samuel H. Young, for plaintiff and counterdefendant-appellant.

Dennis E. Shanahan, Jr., Elmhurst, for defendants and counterplaintiffs-appellees.

Presiding Justice LINDBERG delivered the opinion of the court:

In a jury trial, counterdefendant, Richard/Allen/Winter, Ltd. (RAW), was found to have violated the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFDBPA) (Ill.Rev.Stat.1985, ch. 121 1/2, par. 262 et seq.), and the jury awarded $1,000 in compensatory and $1,000 in punitive damages for counterplaintiff, Ronald V. Erickson (Erickson), and $0 for compensatory and $1,000 in punitive damages for counterplaintiff, James A. Waldorf (Waldorf). RAW appealed the jury's verdict. On appeal, RAW raises several issues. Given our decision we will address the following issues only: (1) whether the matter should be remanded for a bench trial based on counterdefendant's contention that causes of action arising under the ICFDBPA may not be decided by a jury; and (2) whether the two counterplaintiffs' causes of action were properly joined. We affirm in part, reverse in part and remand.

On November 1, 1984, RAW filed a complaint in DuPage County against Waldorf under the small claims provisions of Supreme Court Rule 286 (87 Ill.2d R. 286) seeking to collect $612.50 pursuant to an "Executive Guidance Engagement Agreement" entered into between Waldorf and RAW on May 24, 1978. (Case No. 84-SC-6027.) RAW also filed a small claims complaint against Erickson seeking to collect $450 pursuant to an "Executive Guidance Engagement Agreement" entered into between RAW and Erickson on February 7, 1979. Case No. 85-SC-0220.

RAW is a management consulting firm, located in Lake Forest, whose services include executive marketing, executive out-placement and executive search. RAW is not a licensed employment agency in Illinois. Waldorf and Erickson are two clients who signed with RAW to obtain career guidance services. Waldorf and Erickson are represented by the same attorney who filed answers and counterclaims on behalf of both of them. Over objections by RAW, the trial court on its own motion consolidated the two cases on the basis of commonality of issues and witnesses. Erickson's and Waldorf's second amended answer and counterclaim filed November 8, 1985, are grounded on the claim that RAW violated the ICFDBPA. The prayer for relief requested both compensatory and punitive damages. Subsequently, RAW moved to dismiss with prejudice its complaint against Erickson and Waldorf. Therefore, only the counterclaim was litigated before the jury. Erickson and Waldorf were awarded $1,000 and $0 in compensatory damages respectively, and $1,000 each in punitive damages. This appeal ensued.

RAW contends that the trial court erred in granting counterplaintiffs' jury request on the basis that the ICFDBPA does not specifically provide for a jury trial. We agree. Section 270a of the ICFDBPA provides in pertinent part:

"(a) Any person who suffers damage as a result of a violation of Sections 2 through 20 of this Act [ICFDBPA] committed by any other person may bring an action against such person. The court, in its discretion may award actual damages or any other relief which the court deems proper.

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(c) In any action brought by a person under this Section, the court may award, in addition to the relief provided in this Section, reasonable attorney's fees and costs to the prevailing party." (Emphasis added.) (Ill.Rev.Stat.1985, ch. 121 1/2, par. 270a)

In analyzing this section we use traditional principles of statutory construction. A primary rule of statutory construction is that the intention of the legislature should be ascertained and given effect. (People v. Robinson (1982), 89 Ill.2d 469, 475-76, 60 Ill.Dec. 632, 433 N.E.2d 674; People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 369, 2 Ill.Dec. 737, 357 N.E.2d 1180). In construing the intent of the legislature, the court must look to the language of the statute, and that language should normally be given its ordinary meaning. (Potts v. Industrial Com. (1980), 83 Ill.2d 48, 51, 46 Ill.Dec. 172, 413 N.E.2d 1285; Finley v. Finley (1980), 81 Ill.2d 317, 326, 43 Ill.Dec. 12, 410 N.E.2d 12.) Furthermore, a statute should be read in consonance with constitutional principles. Arnolt v. City of Highland Park (1972), 52 Ill.2d 27, 33, 282 N.E.2d 144; Village of Niles v. City of Chicago (1980), 82 Ill.App.3d 60, 67, 37 Ill.Dec. 142, 401 N.E.2d 1235.

Section 13 of article I of the Illinois Constitution of 1970 provides:

"The right to trial by jury as heretofore enjoyed shall remain inviolate." (Ill. Const.1970, art. I, § 13.)

This section has been judicially interpreted to stand for the principle that the constitutional right to trial by jury does not extend to actions unknown at common law. (In re Estate of Millsap (1979), 75 Ill.2d 247, 255, 26 Ill.Dec. 659, 388 N.E.2d 374; Barreto v. City of Waukegan (1985), 133 Ill.App.3d 119, 129, 88 Ill.Dec. 266, 478 N.E.2d 581.) This constitutional provision does not require that a jury trial be had in every case or preclude all restrictions on the exercise of that right. (People ex rel. Cizek v. Azzarello (1980), 81 Ill.App.3d 1102, 1105-06, 37 Ill.Dec. 84, 401 N.E.2d 1177.) Therefore, our inquiry focuses on the issue of whether an action brought under the ICFDBPA constitutes a "special or statutory [proceeding] unknown to the common law." City of Monmouth v. Pollution Control Board (1974), 57 Ill.2d 482, 485, 313 N.E.2d 161; In re Estate of Haines (1977), 51 Ill.App.3d 163, 169, 9 Ill.Dec. 291, 366 N.E.2d 548.

Section 2 of the ICFDBPA provides in pertinent part:

"[U]nfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the 'Uniform Deceptive Trade Practices Act,' approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived, damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act." (Ill.Rev.Stat.1985, ch. 121 1/2, par. 262.)

This statute has received considerable judicial interpretation. (See Duhl v. Nash Realty (1981), 102 Ill.App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267; Perlman v. Time, Inc., (1978), 64 Ill.App.3d 190, 20 Ill.Dec. 831, 380 N.E.2d 1040; Brooks v. Midas-International Corp. (1977), 47 Ill.App.3d 266, 5 Ill.Dec. 492, 361 N.E.2d 815.) These cases and others generally stand for the proposition that the ICFDBPA has created a new cause of action different from the traditional common law tort of fraud.

In Illinois to prevail in a cause of action for fraud, a plaintiff must prove: (1) that the defendant made a statement; (2) of a material nature as opposed to opinion; (3) that was untrue; (4) that was known by the person making it to be untrue, believed by him to be untrue, or made in culpable ignorance of its truth or falsity; (5) that was relied upon by the victim to his detriment; (6) made for the purpose of inducing reliance; and (7) such that the victim's reliance led to his injury. (Parsons v. Winter (1986), 142 Ill.App.3d 354, 359, 96 Ill.Dec. 776, 491 N.E.2d 1236; Broberg v. Mann (1965), 66 Ill.App.2d 134, 139, 213 N.E.2d 89.) The majority of these elements has been virtually eliminated by the ICFDBPA. In Perlman v. Time, Inc. (1978), 64 Ill.App.3d 190, 20 Ill.Dec. 831, 380 N.E.2d 1040, an action for recovery under both common law fraud and the ICFBDPA, the court held: "The Act affords * * * broader consumer protection than does the common law action of fraud since the Act also prohibits any 'deception' or 'false promise.' Therefore, even if [plaintiff] is unable to establish all the elements of fraud, he might still recover under the Act * * *." (64 Ill.App.3d 190, 198, 20 Ill.Dec. 831, 380 N.E.2d 1040.) A closer analysis of a few specific decisions is necessary in order to ascertain which common law elements of fraud are no longer required to be alleged or proved under the ICFDBPA.

The court in American Buyers Club v. Honecker (1977), 46 Ill.App.3d 252, 5 Ill.Dec. 666, 361 N.E.2d 1370, held:

"[T]he intention of the seller--his good or bad faith--is not important. Rather, we focus our attention upon the effect that that conduct might have on the consumer who was unjustifiably misled into purchasing that which he did not intend to purchase." (46 Ill.App.3d 252, 259, 5 Ill.Dec. 666, 361 N.E.2d 1370.)

In Brooks v. Midas-International Corp. (1977), 47 Ill.App.3d 266, 5 Ill.Dec. 492, 361 N.E.2d 815, the court stated:

"[T]he language employed in the Consumer Fraud Act clearly indicates that it is the intent of the defendant in his conduct, not the reliance or belief of the plaintiff, which is the pivotal point upon which an action arises. [Citation.] Section 2 of the Act specifically provides that the question of whether a person has been misled, deceived or damaged is not an element of an action brought under the Act. (47 Ill.App.3d 266, 272-73, 5 Ill.Dec. 492, 361 N.E.2d 815.)

Finally, the court in Duhl v. Nash Realty, Inc. (1981), 102 Ill.App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267, after a thorough review of several judicial decisions...