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No. 2--02--0011

JUSTICE GROMETER delivered the opinion of the Court:

Plaintiff, Aida Sanchez, appeals from the judgment of thecircuit court of Kane County denying her claims against defendantsErnesto Ponce and Don McCue Chevrolet-Geo, Inc. Aida alleged thatMcCue and Ponce violated the Consumer Fraud and Deceptive BusinessPractices Act (Act) (815 ILCS 505/1 et seq. (West 1998)) in twoways. First, she asserted that defendants forged her signature asa cosigner on a contract for the sale of a truck purchased by hernephew, Eduardo Sanchez. Second, she alleged that defendantsfailed to disclose that a portion of a charge for an extendedwarranty was retained by the dealership instead of being paid tothe third party that provided the warranty, as implied by thecontract. Aida brought her claims as counterclaims in an actionoriginally initiated by Bank One Milwaukee, which is not a party tothis appeal, after Eduardo ceased making payments on the truck. The trial court ultimately found that Aida had failed to prove theallegations set forth in her complaint.

Aida then filed this appeal, raising a number of errors thatinclude the dismissal of one of her claims, the barring ofEduardo's testimony because of a discovery violation, theimposition of attorney fees under both the Act and Supreme CourtRule 137 (155 Ill. 2d R. 137), and the denial of her motion tovoluntarily dismiss her claims against Ernesto. The resolution ofthese issues has no significant precedential value; thus, they willbe relegated to an unpublished portion of this opinion. McCue hasalso filed a cross-appeal, attacking Aida's standing to bring anaction under the Act. This issue, which deals with a questionpreviously unaddressed by the courts of this state, meritspublication, and, as it concerns standing, we will address itfirst.

McCUE'S CROSS-APPEAL

McCue moved to dismiss Aida's counterclaim, arguing that shelacked standing to bring a cause of action under the Act (815 ILCS505/1 et seq. (West 1998)) because, taking the allegations of hercomplaint as true, she is not a consumer. A plaintiff's standingto maintain an action may be properly raised in a motion to dismissbrought pursuant to section 2--619 of the Civil Practice Law (735ILCS 5/2--619 (West 1998)). City of Chicago ex rel. Scachitti v.Prudential Securities, Inc., 332 Ill. App. 3d 353, 369 (2002). Allwell-pleaded facts must be taken as true and viewed in the lightmost favorable to the nonmovant. Altair Corp. v. Grand PremierTrust & Investment, Inc., 318 Ill. App. 3d 57, 61 (2000). Lack ofstanding is an affirmative defense. Skolnick v. Altheimer & Gray,191 Ill. 2d 214, 237 (2000). The burden is on a defendant to showthat a plaintiff lacks standing. Noyola v. Board of Education ofthe City of Chicago, 227 Ill. App. 3d 429, 433 (1992). We conductde novo review of a trial court's decision to dismiss a complaint. Myers v. The Telegraph, 332 Ill. App. 3d 917, 921 (2002).

McCue observes that Aida has alleged that her signature on thecontract was actually a forgery. Taking this allegation as true,McCue reasons, Aida did not sign the contract and was therefore nota purchaser of the truck. The Act defines a consumer as "anyperson who purchases or contracts for the purchase of merchandisenot for resale in the ordinary course of his trade or business butfor his use or that of a member of his household." 815 ILCS505/1(e) (West 1998). Thus, McCue concludes, accepting as trueAida's allegation that she was not a signatory to the contract, shedoes not fit within the definition of "consumer," and she lacksstanding to bring an action under the Act. See, e.g., Norton v.City of Chicago, 267 Ill. App. 3d 507, 509-10 (1994). Admittedly,McCue's position is logical; however, it is also whollyunpersuasive.

The Act is remedial in nature. Robinson v. Toyota MotorCredit Corp., 201 Ill. 2d 403, 417 (2002). Furthermore, thelegislature has mandated that it is to be liberally construed toeffectuate its purposes. 815 ILCS 505/11a (West 1998). Severalcourts have noted that "[t]here is a clear mandate from theIllinois legislature that the courts of this State utilize the Actto the utmost degree in eradicating all forms of deceptive andunfair business practices and grant appropriate remedies to injuredparties." Duhl v. Nash Realty Inc., 102 Ill. App. 3d 483, 495(1981); Perlman v. Time, Inc., 64 Ill. App. 3d 190, 198 (1978); seealso Kirkruff v. Wisegarver, 297 Ill. App. 3d 826, 838 (1998) ("Inaddition, courts should liberally construe and broadly apply theAct to eradicate all forms of deceptive and unfair businesspractices"). The Act makes unlawful both unfair and deceptivebusiness practices. Robinson, 201 Ill. 2d at 417.

McCue relies on a line of cases denying standing to plaintiffswhere it was determined that they were not consumers. See, e.g.,Norton, 267 Ill. App. 3d at 509-10; McCarter v. State Farm MutualAutomobile Insurance Co., 130 Ill. App. 3d 97, 101 (1985);Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 328 (1977). For example, in Steinberg, our supreme court held that applicantsto medical school were not consumers as defined by the Act andcould therefore not maintain a cause of action. Steinberg, 69 Ill.2d at 328. We note, however, that another line of cases existsthat allows a plaintiff to maintain a cause of action under the Actdespite the fact that the plaintiff is not a consumer as defined bythe Act (see 815 ILCS 505/1(e) (West 1998)). E.g., Sullivan'sWholesale Drug Co. v. Faryl's Pharmacy, Inc., 214 Ill. App. 3d1073, 1082-83 (1991); Downers Grove Volkswagen, Inc. v.Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 534 (1989).

A number of cases have allowed a business to maintain a causeof action under the Act even though the business was not a consumerof the defendant's goods. In Downers Grove Volkswagen, Inc., 190Ill. App. 3d at 534, for instance, this court confronted thequestion of whether a business had standing to sue a competitorunder the Act where the competitor published false informationabout the business's prices for services. We held that, "where thedispute involves two businesses that are not consumers, the propertest is as stated in Pain Prevention Lab, [Inc. v. ElectronicWaveform Labs, Inc., 657 F. Supp. 1486, 1493 (N.D. Ill. 1987),]whether the alleged conduct involves trade practices addressed tothe market generally or otherwise implicates consumer protectionconcerns." Downers Grove Volkswagen, Inc., 190 Ill. App. 3d at534. We concluded that the competitor's conduct implicatedconsumer protection concerns and that the business could thereforemaintain a suit under the Act. See also Zinser v. Rose, 245 Ill.App. 3d 881, 886-87 (1993); Sullivan's Wholesale Drug Co., Inc.,214 Ill. App. 3d at 1082-83; Gadson v. Newman, 807 F. Supp. 1412,1421 (C.D. Ill. 1992).

Thus, the question before us becomes whether the test forstanding articulated in Downers Grove Volkswagen is limited tobusinesses or whether a nonbusiness plaintiff who meets thiscriterion may also maintain an action under the Act. In answeringthis question, we find considerable guidance in the plain languageof the Act, which is, of course, the best indicator of thelegislature's intent in enacting a statute (Lauer v. AmericanFamily Life Insurance Co., 199 Ill. 2d 384, 388 (2002)).

We first observe that section 10a of the Act grants a cause ofaction to "[a]ny person who suffers actual damage." (Emphasisadded.) 815 ILCS 505/10a (West 1998). We further note thatsection 1 of the Act provides the following definition of "person":

"The term 'person' includes any natural person or hislegal representative, partnership, corporation (domestic andforeign), company, trust, business entity or association, andany agent, employee, salesman, partner, officer, director,member, stockholder, associate, trustee or cestui que trustthereof." (Emphasis added.) 815 ILCS 505/1 (West 1998).

Thus, the Act draws no distinction between natural persons andbusinesses, granting both the status of "person." By virtue ofthis status, both are further granted the right to bring an actionunder the Act in section 10a. 815 ILCS 505/10a (West 1998); cf.Skyline International Development v. Citibank, F.S.B., 302 Ill.App. 3d 79, 85 (1998) ("However, as long as the plaintiff, whethera business entity or a person, is a consumer, it need only show apersonal injury caused by the fraudulent or deceptive acts").

Given that the Act is to be liberally construed to eradicateall forms of unfair or deceptive practices, and given that the Actitself draws no distinction between natural persons and businesses,we hold that the test set forth for standing in Downers GroveVolkswagen (see Downers Grove Volkswagen, Inc., 190 Ill. App. 3d at534) applies to any entity seeking to bring an action under theAct. A contrary holding, that businesses have standing tovindicate such concerns while natural persons do not, would beanomalous indeed, and we see no basis in the Act itself orelsewhere for drawing such a distinction. See Sullivan's WholesaleDrug Co., Inc., 214 Ill. App. 3d at 1082 ("The Act expresslydefines the term 'person' to include any corporation, company orbusiness entity"). Thus, if a natural person, like a business,alleges "conduct [that] involves trade practices addressed to themarket generally or otherwise implicates consumer protectionconcerns" (Downers Grove Volkswagen, Inc., 190 Ill. App. 3d at534), that person has standing to sue under the Act. We must nowdetermine whether Aida has met this standard.

Aida alleged that McCue forged her signature on the contractit prepared in connection with Eduardo's purchase of the truck. This conduct is clearly not "addressed to the market generally";hence, we must consider whether it "otherwise implicates consumerprotection concerns." See Downers Grove Volkswagen, Inc., 190 Ill.App. 3d at 534. It has been noted that "[n]either the ConsumerFraud Act nor its legislative history provides definitionalparameters for the phrase 'implicates consumer protectionconcerns.' " Brody v. Finch University of Health Sciences/TheChicago Medical School, 298 Ill. App. 3d 146, 159 (1998). Moreover, "our legislature intended that any gaps in the ConsumerFraud Act be supplied by judicial construction." Brody, 298 Ill.App. 3d at 159. Whatever the outer parameters of the meaning of"implicates consumer protection concerns," we have little troubleconcluding that the allegations set forth in the instant case fallsquarely within its scope. Quite simply, Aida alleged that amerchant bound her to a commercial transaction through a fraudulentact. We conclude that she has standing to bring an action underthe Act.

[The following material is nonpublishable under Supreme Court Rule23.]

[The preceding material is nonpublishable under Supreme CourtRule 23.]

CONCLUSION

Accordingly, we hold that the circuit court properly denied themotion to dismiss Aida for lack of standing. In the unpublishedportion of this opinion, we concluded that the trial court erredin awarding attorney fees to defendants under the Act (see 815ILCS 505/10a(c) (West 1998)) and reversed that portion of thetrial court's decision. We also vacated the trial court's awardof fees under Supreme Court Rule 137 (155 Ill. 2d R. 137) andremanded on this issue so that the trial court can makeappropriate findings and enter an order in conformity therewith. We affirmed as to all other matters raised by Aida.

Affirmed in part, reversed in part, and vacated in part; cause remanded with directions.

BYRNE and KAPALA, JJ., concur.