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No. 1--99--1672

Plaintiffs Nancy and Donald Cuculich appeal from an order ofthe circuit court granting defendant Thomson Consumer Electronics,Inc.'s motion for judgment pursuant to section 2--1110 of theIllinois Code of Civil Procedure (735 ILCS 5/2--1110 (West 1998))following the close of plaintiffs' evidence at a bench trial ontheir claim against defendant for violation of the IllinoisConsumer Fraud and Deceptive Business Practices Act (Consumer FraudAct) (815 ILCS 505/1 et seq. (West 1996)). On appeal, plaintiffscontend that the trial court erred in preventing plaintiffs' expertfrom testifying regarding ultimate issues in the case, that thetrial court erred in denying the admission of one of plaintiffs'exhibits, and that the trial court applied the wrong standard ofproof to plaintiffs' claim for violation of the Consumer Fraud Actin considering defendant's motion for judgment. For the reasonsset forth below, we reverse and remand.

On February 23, 1993, plaintiffs filed a third amended classaction complaint.⁽¹⁾ Plaintiffs brought the action on behalf ofthemselves and on behalf of all persons "who purchased televisionsmanufactured by [defendant] Thomson, which include the Thomson XSSystem, and labeled and advertised as 'stereo.'" In support oftheir complaint, plaintiffs alleged the following facts: thatdefendant sold television sets under the RCA and GE brand namelabels, and that they purchased a Thomson manufactured televisionadvertised as "stereo" and labeled as a "ColorTrack Stereo Monitor"in August 1991; that "[a] key element of stereo reproduction is thesignal separation between left and right audio channels"; that inorder to achieve stereo reproduction, the manufacturer must includecircuitry that can establish the signal separation; that defendanthad developed an alternate system called the XS System and thatthis system lacked the capacity to produce more than 7 decibels ofseparation between the right and left channels which was below theindustry standard of 15 decibels; and that defendant, through itsowner's manual, represented to consumers that its televisions arecapable of decoding the Multichannel Television Sound (MTS) stereosignal, the signal through which stereo sound is broadcast, inorder to reproduce MTS as it is broadcast.

In their complaint, plaintiffs also cited the followingstatements in defendant's owner's manual:

"Two-Speaker Stereo Sound System--lets youenjoy high-fidelity stereo sound from the MTSstereo TV broadcasts (where available). Built-in wideband noise reduction systemautomatically suppresses unwanted noise fromstereo broadcasts. Audio also reproduces 2-channel sound from stereo VCR playback. [Page 2 of the owner's manual.]

Your TV is fully capable of reproducing stereosound from TV stations transmitting stereosound in your area. All you have to do toenjoy stereo sound is make sure the TV'sStereo/Mono function is set to 'STEREO' so theTV can receive stereo broadcasts. [Page 14 ofthe owner's manual.]"

Plaintiffs further alleged that defendant placed the label "STEREO"on the front of the XS System televisions it sold.

Count I for "Deceit" alleged that defendant "intentionally orrecklessly made false statements" about the capabilities of itstelevisions to induce members of the class to purchase them andthat they relied on defendant's "misstatements." Count II allegedviolations of the Consumer Fraud Act (815 ILCS 505/1 et seq.),stating that defendant made false representations of material factconcerning the capability of its televisions to reproduce MTSstereo sound as broadcast with the intent that plaintiffs and theclass rely on the misrepresentations. Among the other reliefrequested, plaintiffs sought actual and punitive damages. Prior totrial, plaintiffs' claim for common law fraud was withdrawn, andthe jury demand waived.⁽²⁾

During a bench trial on plaintiffs' claim under the ConsumerFraud Act, plaintiffs called Emil Torick, an audio engineer whoserved as a representative of CBS on the Broadcast TelevisionSystems Committee (BTSC), as an expert witness. Torick testifiedthat the BTSC was an industry committee that convened in 1979 withthe goal of making recommendations to the Federal CommerceCommission (FCC) for the purpose of establishing stereo soundreproduction for television similar to radio. The BTSC was a jointeffort by the Electronic Industries Association (EIA) and theNational Association of Broadcasters (NAB). The committee analyzedtwo main issues: (1) the encoding and decoding of stereo broadcastsand (2) a noise reduction system to decrease background "noise" instereo signals.

Torick testified that the BTSC selected a "dbx" noisereduction system and a Zenith encoding system from among severalchoices. The committee presented recommendations to the FCC, butthe FCC did not give the recommendations the force of law. Thecommittee recommended that stereo televisions use circuitry thatachieved at least 20 dB's of electrical separation. Torickcriticized the "Thomson" expander (i.e., the XS System), which wasan alternative system to the dbx expander that had been adopted bythe committee, because it failed to achieve a separation of theleft and right signals by a level of 20 dB's. Torick equated theThomson expander to some earlier efforts to create stereo sound andstated that the XS System could not reproduce a stereo signal as itis broadcast because of the degree the Thomson expander mixed theleft and right signals. He further testified that the effect wouldbe an "out of phase" signal with strange acoustical effects. Torick described the system used by defendant as beingnoncomplimentary to the recommendations made by the BTSC. Headmitted that the BTSC made recommendations and did not createstandards and that the FCC did not require manufacturers to followthe BTSC methods. When plaintiffs' counsel asked Torick whetherdefendant's representation in the documents referring to itstelevision, that its system provided "surprisingly good" sound wasa replacement for "stereo" sound, the trial court uphelddefendant's objection to the question as calling for an opinion onan ultimate issue.

On October 23, 1998, plaintiffs called Harold Sanders, anelectrical engineer and the head of engineering at the Enrico FermiInstitute at the University of Chicago, as an expert witness. Sanders denied that the decoding circuitry provided in defendant'stelevision reproduced the MTS stereo signal because it was onlycapable of a much lower quality. He believed there was a problemwith defendant's decoder because it "crossed" the left and rightsignal, making the XS system incapable of coming close to creatingadequate stereo sound. He testified that adequate stereo wasachieved by circuitry achieving 16 or 17 dB's of electricalseparation. The highest reading for the XS System was 6.77 dB ofseparation. Sanders also stated that the "floating sound"described by plaintiffs was a flaw in the television's sound. Heagreed with the accuracy of a definition for "stereo" contained inthe "Electronic Industry Products Dictionary," relied upon bydefendant, which indicated the stereo sound was accomplished by twochannels of sound creating a three-dimensional effect. Sanders didnot believe that defendant's decoder complied with this definitionbecause it did not use two "separate" channels.

Sanders also testified that no television was capable ofreproducing sound exactly as it is broadcast. He stated that thelistener would need to add external speakers to a 19" television inorder to receive good stereo sound. He believed that it was amisrepresentation to call a television with a noncomplimentarydecoding system, such as defendant's system, a "stereo" television. He also stated that the XS System is incapable of producing stereo. Both Sanders and Torick testified that they had never inspected orlistened to the television purchased by plaintiffs.

Nancy Cuculich testified that she and her husband, Donald,decided to purchase an RCA television with a 19-inch screen inSeptember 1991 after they looked at several different models. Sound was one of the factors they considered as they shopped forthe television. Nancy stated that she and Donald believed they hadpurchased a stereo television. She further stated that she andDonald both questioned whether the television had stereo soundafter they had an opportunity to listen to it because the stereosound would "fade in and out." They heard sounds coming from theleft and right of the television that sounded exactly the same. Nancy could not hear a distinction between the two sides.

On cross-examination, Nancy testified that she and Donald"assumed [the sound] would be like surround sound, but it sometimesdoes not even have that [three-dimensional] effect." Donaldtestified and described hearing a similar audio effect from thetelevision.

Following the presentation of their witnesses, plaintiffsoffered their exhibits into evidence. Defendant objected to theadmission of exhibit M. Exhibit M was produced by defendant indiscovery and contained the following label:

"Program #1 - Basic Television Receivers 

Participant Reference Manual/Workbook

@ - 1989 - Thomson Consumer Electronics Sales 

Training Department"

The portion of exhibit M, which plaintiffs directed the trialcourt's attention, stated:

"While monaural sound was adequate to relaythe accompanying audio, reproducing it througha single speaker tended to restrict the 'soundfield[.]' *** Stereo audio is the result of'splitting' the sound signal into Left andRight channels and reproducing these separateLeft/Right studio channels with two speakersset somewhat apart from each other. Theresult is a broader field of sound ***simulating more closely what you would hear ata 'live' theater concert. While a thoroughtechnical explanation of stereo is much toocomplex for the time we have here, we'll offerthis simple explanation *** using a musicconcert as an example.

In the recording studio, the soundis picked up by a series ofmicrophones, each positioned to pickup only a certain segment or'location' of the audio[,] *** inshort, the sounds which are createdby the Left side of the orchestraand those which are created on theRight side. *** All of the audio iselectronically 'mixed' into acomposite stereo signal *** andelectrical 'control' pulses areencoded into the signal to helpmaintain placement in the audio."

The trial court heard argument from the parties regarding theadmissibility of exhibit M. Plaintiffs argued that exhibit Mshould be admitted into evidence because defendant's copyright andthe GE and RCA logos on the document made it self-authenticating. Plaintiffs further argued that exhibit M was an admission of thelanguage in it by defendant. Defendant argued in response that thefact that it had possession of the document and had produced it indiscovery was not an indication that it authored the document oradopted the language in it. Defendant claimed that plaintiffs hadfailed to lay any foundation for the admission of exhibit M intoevidence.

The trial court denied plaintiffs' request to admit exhibit M,finding that plaintiffs had failed to satisfy their burden of proofthat defendant had adopted RCA's and GE's theories as stated in thelanguage of the document. The trial court also noted that theinformation regarding "Thomson" on the document was from a stickerthat was placed on it and found that exhibit M was not admissibleas an admission or a business record.

After plaintiffs presented their evidence, defendant filed amotion pursuant to section 2--1110 of the Illinois Code of CivilProcedure. 735 ILCS 5/2--1110 (West 1998). During the hearing onthe motion, the parties' arguments primarily concerned thedefinition of "stereo" and whether the XS System in defendant'stelevisions complied with the relevant definition. Plaintiffsargued that they presented sufficient evidence to prove that"stereo" sound is accomplished by the television's ability throughtwo channels to decode the MTS stereo signal that is broadcast bytelevision stations in a manner that allows the viewer/listener tohear the signal as it is broadcast, i.e., sounds originating fromactivity on the left side of the visual field being heard on theleft by the listener and sounds originating from the right side ofthe visual field being heard on the right by the listener. Defendant contended that its televisions created a three-dimensional sound that complied with the applicable definition ofstereo. Following a hearing on the motion, the trial court stated,in part:

"So we get down to a question in my mind,is the BTS definition which would require that both--that what comes out of the left speakerbe what comes from the left side of thebroadcast stage, so to speak, and what comesout of the right speaker comes from the rightside of the broadcast stage, is that thedefinition of stereo that is the trade usage? Or is the trade usage the definition that hasbeen proposed by the defense, which is thethree-dimensional sound effect? I don't know. And I believe since the plaintiff has theburden of proving this issue by clear andconvincing evidence, if I am not convincedthat the BTS is the trade usage standard, thenI must give judgment to the defendant underthese circumstances, and that is my order."

During the hearing, plaintiffs did not contest defendant's argumentor the trial court's statement that the burden of proof under theConsumer Fraud Act was "clear and convincing" evidence. OnDecember 9, 1998, the trial court granted defendant's section 2--1110 motion.

In the language of its order, the trial court again indicatedthat it found that plaintiffs had the burden to prove their case byclear and convincing evidence and that, after a review of theirevidence, plaintiffs had failed to meet this burden in proving theclaims made in their third amended complaint.

Plaintiffs moved for reconsideration of the trial court'sorder, and the trial court denied the motion. This appealfollowed.

We first address plaintiffs' argument that the trial courtapplied the wrong legal standard in considering defendant's motionfor judgment. Plaintiffs contend that the trial court erred inapplying the "clear and convincing" standard of proof to theirclaim under the Consumer Fraud Act. They argue that the ConsumerFraud Act only requires that they prove their claims by apreponderance of the evidence and that they were prejudiced by theapplication of the greater legal standard by the trial court. Defendant argues that the trial court properly applied the "clearand convincing" standard of proof to plaintiffs' Consumer Fraud Act claim and that plaintiffs failed to offer evidence sufficient tosurvive either standard.

Section 2--1110 of the Illinois Code of Civil Procedure (Code) provides:

"Motion in non-jury case to find fordefendant at close of plaintiff's evidence. In all cases tried without a jury, defendantmay, at the close of plaintiff's case, movefor a finding or judgment in his or her favor. In ruling on the motion the court shall weighthe evidence, considering the credibility ofthe witnesses and the weight and quality ofthe evidence. If the ruling on the motion isadverse to the defendant, the defendant mayproceed to adduce evidence in support of hisor her defense, in which event the motion iswaived." 735 ILCS 5/2--1110 (West 1998).

On review, the decision of the trial court should not be reversedunless it is contrary to the manifest weight of the evidence. Kokinis v. Kotrich, 81 Ill.2d 151, 154, 407 N.E.2d 43 (1980).

The Consumer Fraud Act claim should be liberally construed toeffect its purposes. Hoke v. Beck, 224 Ill. App. 3d 674, 679-80,587 N.E.2d 4 (1992). The Consumer Fraud Act was intended to afforda broader range of protection than the common law. Martin v.Heinold Commodities, Inc., 163 Ill. 2d 33, 68, 643 N.E.2d 734(1994). Under the Consumer Fraud Act, the plaintiff must show: (1)a deceptive act or practice; (2) an intent by the defendant that herely on the deception; and (3) the deception occurred in the courseof conduct involving trade or commerce. Connick v. Suzuki MotorCo., 174 Ill.2d 482, 501, 675 N.E.2d 584 (1996). The "intent"required by the statute is only the intent that the plaintiff inthe primary action rely on the information that the defendant gavehim, as opposed to any intent on the defendant's part to deceive. Carl Sandburg Village Condominium Ass'n No. 1 v. First CondominiumDevelopment Co., 197 Ill. App. 3d 948, 953, 557 N.E.2d 246 (1990).

When considering a section 2--1110 motion, the trial courtmust first determine whether the plaintiff has made out a primafacie case. Heller v. Jonathan Investments, Inc., 113 Ill. 2d 60,71, 495 N.E.2d 589 (1986). A prima facie case is made when theplaintiff has presented at least some evidence on all of thenecessary elements to establish the underlying cause of action. Heller, 113 Ill. 2d at 71. If the plaintiff has not made out aprima facie case, the defendant is entitled to judgment as a matterof law, but where a prima facie case has been made, the trial courtmust still weigh the quality of the evidence as a finder of fact. Heller, 113 Ill. 2d at 71. Generally, to defeat a motion undersection 2--1110, a plaintiff's evidence must be at least sufficientto prove the plaintiff's case by a preponderance of the evidence. Heller, 113 Ill. 2d at 71. If the underlying cause of actionrequires the plaintiff to establish his case by clear andconvincing evidence, then the plaintiff's evidence must meet thisgreater burden of proof to avoid the entry of judgment for thedefendant under section 2--1110. Heller, 113 Ill. 2d at 71. Ifthe trial court finds after weighing the quality of the plaintiff'sevidence that the evidence is insufficient to satisfy the requiredburden of proof, the section 2--1110 motion should be granted. Heller, 113 Ill. 2d at 72.

Plaintiffs rely on Malooley v. Alice, 251 Ill. App. 3d 51, 621N.E.2d 265 (1993), a Third District case, in which the Malooleycourt directly addressed this issue. In Malooley, the plaintiffsfiled a lawsuit against the defendants to forfeit a land contract. The defendants filed a counterclaim for violation of the ConsumerFraud Act, seeking damages allegedly suffered as the result of theplaintiffs' misrepresentations of the condition of the property atissue. Malooley, 251 Ill. App. 3d at 52. Following a three-daybench trial on the defendants' counterclaim, the trial court foundthat the plaintiffs had violated the Consumer Fraud Act, and theplaintiffs then filed an appeal. In considering whether theConsumer Fraud Act required proof of its elements by clear andconvincing evidence or by a preponderance of the evidence, theMalooley court specifically noted that the Consumer Fraud Act"should be liberally construed to effect its purposes," that it isthe purpose of the Consumer Fraud Act to eradicate all forms ofdeceptive and unfair business practices, and that there is an"easier" burden to establish a claim under the Consumer Fraud Actas opposed to common law fraud. The Malooley court, therefore,held that "it is entirely consistent with the legislative intentbehind the [Consumer Fraud Act] to establish the standard of proofas a preponderance of the evidence." Malooley, 251 Ill. App. 3d at56.

The Consumer Fraud Act does not specifically state thestandard of proof required to succeed on claims under the Act. Inthe present case, both parties agree that a claim for common lawfraud must be proved by clear and convincing evidence. Plaintiffs,however, agreed to withdraw their common law claim prior to trial,and the only issue here is the standard required to prove aviolation of the Consumer Fraud Act. As the Malooley courtrecognized, the Consumer Fraud Act is intended to provide broaderprotection to consumers than common law fraud claims, and theConsumer Fraud Act is to be liberally construed. Based on theliberal intent of the legislature in enacting the Consumer FraudAct and the fact that the Consumer Fraud Act does not specificallyrequire a greater standard of proof to succeed on a claim under theConsumer Fraud Act, we agree with the reasoning of the Malooleycourt, and similarly find that plaintiffs here were only requiredto satisfy the requirements for a claim under the Consumer FraudAct by a preponderance of the evidence to defeat defendant'smotion.

The trial court clearly required plaintiffs to present clearand convincing evidence of a violation of the Consumer Fraud Act todefeat defendant's motion. The application of this greaterevidentiary standard, as opposed to the less demandingpreponderance standard, prejudiced plaintiffs and constitutedreversible error. Although the trial court ruled that plaintiffs'evidence did not establish a violation of the Consumer Fraud Act byclear and convincing evidence, there is no indication in the recordthat the trial court also considered whether the evidence at leastestablished a violation by a preponderance of the evidence.

Section 2--1110 of the Code requires that the trial court, asthe trier of fact, weigh the quality of the evidence inconsideration of the motion. Although the testimony of plaintiffs'witnesses is included in the record, the trier of fact is in thebetter position to weigh the quality of evidence under the correctevidentiary standard by judging the credibility of witnesses andgiving weight to their testimony. See In re Application of theCounty Treasurer, 131 Ill. 2d 541, 549, 546 N.E.2d 506 (1989). Because plaintiffs were prejudiced by the trial court's applicationof the wrong evidentiary standard, we remand this cause to thetrial court for a new trial under the proper standard. See In reEnis, 121 Ill. 2d 124, 134, 520 N.E.2d 362 (1988).

We briefly note that defendant relies on Lidecker v. KendallCollege, 194 Ill. App. 3d 309, 550 N.E.2d 1121 (1990), a FirstDistrict case, in support of its standard of evidence argument. InLidecker, the plaintiffs brought claims for both common law andstatutory fraud. In the analysis of its decision to affirm thetrial court's entry of judgment in favor of the defendant on itssection 2--1110 motion against the plaintiff, the Lidecker courtstated:

"Counts I, IV, VII, and X allege commonlaw fraud. Counts VI, IX, and XII allegestatutory fraud. Plaintiffs are required toprove the fraud counts by clear and convincingevidence." Lidecker, 194 Ill. App. 3d at 314.

By reference to "the fraud counts," it is unclear whether theLidecker court applied the clear and convincing evidence standardto both common law and statutory fraud, but the court does notdiscuss a "preponderance" standard of proof in reference to eithertype of fraud claim. We disagree with the opinion in Lidecker tothe extent that it can be read to establish a clear and convincingevidentiary standard for claims under the Consumer Fraud Act asopposed to a preponderance of the evidence standard. We find thatthe application of a "preponderance" standard is consistent withthe purpose of the Consumer Fraud Act as discussed in Malooley.

Plaintiffs also contend that the trial court "overlooked"certain evidence they presented in their case in chief, erred inrefusing too allow their experts to testify as to certain "ultimateissues," and erred in excluding their "exhibit M," a documentproduced by defendant and containing a 1989 copyright by Thomson'sConsumer Electronics Sales Department on the cover and the RCA andGE logos, which plaintiffs claim qualified for admission by self-authentication. Based on our holding that the trial courtcommitted reversible error by applying the clear and convincingevidentiary standard, requiring reversal and remand for a newtrial, we need not address these remaining issues.

For the reasons stated, we reverse the judgement of thecircuit court and remand this cause for a new trial .

Reversed and remanded.

CAHILL and WOLFSON, JJ., concur.

1. ¹The first two complaints are not at issue in this appeal.

2. ²These are not at issue in this appeal.