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Zankle v. Queen Anne Landscaping, No. 2-98-1654

2nd District, 1 February 2000

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Greg Zankle, sued defendants, Queen Anne Landscaping and its owner, John Heider, alleging breach of contract,breach of implied warranty, negligence, and violations of the Consumer Fraud and Deceptive Business Practices Act(Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)). At the close of plaintiff's case, the trial court grantedjudgment for defendants (see 735 ILCS 5/2--1110 (West 1998)) on the counts for breach of implied warranty and consumerfraud but awarded plaintiff damages on the remaining counts. Plaintiff appeals the trial court's ruling on the consumer fraudcount. We affirm.

We note that, although plaintiff states that this appeal is brought pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)), the judgment from which plaintiff appeals disposed of the entire case. Therefore, our jurisdiction attaches underSupreme court Rule 301 (155 Ill. 2d R. 301). See generally O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 210-11 (1996).

Defendants have not filed a brief. However, the record is short and we may decide the merits without the aid of anappellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

We summarize plaintiff's complaint. Counts I and II were for breach of contract against Queen Anne Landscaping andHeider, respectively. They alleged the following. On or about October 7, 1992, the parties signed a contract in which, for$4,800, defendants promised to grade, seed, and fertilize all of plaintiff's lawn and to spread 10 loads of topsoil on the lawn.Defendants agreed to fertilize the lawn in the spring and fall and to use a rock picker to remove rocks. A copy of thecontract is attached as an exhibit to the complaint.

Counts I and II alleged further that defendants' seeding, grading, and fertilization were unsatisfactory and that defendantsdid not use a rock picker. As a result of defendants' breaches of the contract, the lawn soon washed out and developed ruts,and plaintiff had to hire a second landscaper to do repairs, including reseeding and refertilizing the lawn and removingrocks. The cost of this repair work was $5,984, which plaintiff demanded from defendants and defendants refused to pay.Plaintiff sought this amount in damages.

Count III alleged that defendants' lawn care materials and services breached an implied warranty of merchantability (810ILCS 5/2--314 (West 1992)). This count requested the same damages as the first two counts. Count IV alleged thatdefendants negligently operated their landscaping equipment causing damage to plaintiff's trees.

Count V, the subject of this suit, alleged the following. In agreeing to the contract, plaintiff relied on defendants'representations that the defendants would use a rock picker on plaintiff's yard; that they would install 10 loads of topsoil;and that they would grade, seed, and fertilize the entire lawn in a workmanlike manner. After the work was completed,plaintiff discovered that defendants did not fulfill these representations. Defendants' "representations and failures todisclose" were unfair and deceptive conduct prohibited by the Consumer Fraud Act. Plaintiff sought $25,000 incompensatory damages plus punitive damages and attorney fees.

Plaintiff's witnesses at trial were himself, Heider, and Rick Laudick of Laudick Landscaping, the firm that repairedplaintiff's lawn. According to the certified bystander's report, plaintiff testified as follows. In September 1992, he contactedHeider about installing a new lawn on plaintiff's property. When Heider examined the property, he and plaintiff agreed thatthe whole property would be seeded, and plaintiff understood that defendants would remove rocks from the lawn.

According to plaintiff, defendants' work was unsatisfactory in several respects. Defendants promised to complete the workby October 7, 1992, but they took until November 7, 1992. Defendants damaged several trees with an estimatedreplacement cost of $1,000. Defendants failed to install topsoil on the back 20 feet of the property, and, although defendantsdid some sort of raking to remove rocks by hand, they did not use a rock picker. Plaintiff was not certain whetherdefendants fertilized the lawn in the fall, and they did not do so in the spring. Now, when plaintiff mows his lawn,"sometimes" rocks "heave up."

Shortly after the work was done, several days of rain caused considerable erosion of the lawn. In mid-November 1992,plaintiff called Heider about the problem; Heider spread a little dirt on the front and some straw over an eroded area in theback. In spring 1993, plaintiff noticed that weeds were growing on his property and that the topsoil defendants spread hadbeen washed away. There were rocks where the soil had washed away. Further efforts to get defendants to repair the lawngot no response, so plaintiff hired Laudick Landscaping, whose efforts included reseeding the lawn and removing three tonsof rocks. Since Laudick Landscaping finished its work, there had been no more problems.

Rick Laudick testified in pertinent part as follows. When he inspected the property, he saw weeds and wide ditches; thelawn had pretty much been washed away. Laudick reseeded the property, distributed dirt through the torn-up area, andprovided erosion control. Laudick removed rocks from the property. At trial he explained that a rock picker sifts through sixto eight inches of soil to bring up rocks. Laudick Landscaping did not use a rock picker because the cost to plaintiff wouldhave been twice as much.

John Heider, called as an adverse witness, testified as follows. The contract called for defendants to grade and seed theentire lawn, spread topsoil, fill in two holes, fertilize in the fall, and use a rock picker to remove rocks. Defendants did notown a rock picker and had not rented one in five years. He spread dirt on the property but skipped part of the back because,as he told plaintiff, he believed there was enough soil in that area. In fall 1992, plaintiff complained of soil erosion, whichHeider treated with dirt or straw, and of tree damage, for which Heider agreed to pay. In 1993, Heider and plaintiff were tomeet to discuss the erosion problem, but plaintiff did not show.

Plaintiff asserts that, on the evidence we have summarized, the trial court erred in entering a "directed verdict" fordefendants on his consumer fraud claim. Relying on Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967),plaintiff states that the "directed verdict" may stand only if all the evidence, when viewed in the light most favorable toplaintiff, so overwhelmingly favors defendants that no contrary verdict based on that evidence could ever stand.

We must observe that plaintiff misstates the governing law. Plaintiff's argument fails to recognize that Pedrick applies to ajury trial, where a motion for a directed verdict asks the trial court to take the case from the fact finder. In a bench trial,where the trial court is the fact finder, a motion for a "directed verdict" is governed not by Pedrick but by section 2--1110 ofthe Code of Civil Procedure (735 ILCS 5/2--1110 (West 1998)). Kokinis v. Kotrich, 81 Ill. 2d 151, 154 (1980); Bafia v. CityInternational Trucks, Inc., 258 Ill. App. 3d 4, 11-12 (1994); see City of Evanston v. Ridgeview House, Inc., 64 Ill. 2d 40, 57(1976). Section 2--1110 provides that, in ruling on a motion to find for the defendant at the close of the plaintiff's evidence,the trial court "shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of theevidence." 735 ILCS 5/2--1110 (West 1998). Thus, the trial court does not view the evidence most favorably to theplaintiff, but rather (1) determines whether the plaintiff has made out a prima facie case, then (2) weighs the evidence,including that which favors the defendant. Kokinis, 81 Ill. 2d at 154. If this weighing process negates some of the evidencenecessary to the plaintiff's prima facie case, the court should grant the defendant's motion and enter judgment for thedefendant. Kokinis, 81 Ill. 2d at 154-55. We shall uphold the grant of a section 2--1110 motion unless the judgment isagainst the manifest weight of the evidence. Kokinis, 81 Ill. 2d at 154.

We now discuss whether the trial court erred in concluding that plaintiff did not make out a prima facie case of consumerfraud. The elements of a cause of action under the Consumer Fraud Act are (1) a deceptive act or practice; (2) the intent thatthe plaintiff rely on the deception; and (3) that the deception occurred in the course of trade or commerce. Connick v. SuzukiMotor Co., 174 Ill. 2d 482, 501 (1996). Moreover, although the plaintiff need not prove that he relied on the deceptive act,he must prove that the deception proximately caused his injury. Connick, 174 Ill. 2d at 502; Stehl v. Brown's SportingGoods, Inc., 236 Ill. App. 3d 976, 981 (1992).

Plaintiff argues that, from the evidence, the fact finder could infer that defendants engaged in misrepresentations (see 815ILCS 505/2 (West 1992)) in that they falsely told him that they would finish the project by October 7; that they would use arock picker; that they would fertilize the lawn twice; and that they would install the lawn "in a workmanlike manner."According to plaintiff, he supplied evidence that defendants intended that he rely on these misrepresentations and that themisrepresentations caused plaintiff's economic injury.

We cannot accept plaintiff's broad reading of the statute. What plaintiff calls "consumer fraud" or "deception" is simplydefendants' failure to fulfill their contractual obligations. Were our courts to accept plaintiff's assertion that promises that gounfulfilled are actionable under the Consumer Fraud Act, consumer plaintiffs could convert any suit for breach of contractinto a consumer fraud action. However, it is settled that the Consumer Fraud Act was not intended to apply to everycontract dispute or to supplement every breach of contract claim with a redundant remedy. See Law Offices of William J.Stogsdill v. Cragin Federal Bank for Savings, 268 Ill. App. 3d 433, 437-38 (1995); Golembiewski v. Hallberg InsuranceAgency, Inc., 262 Ill. App. 3d 1082, 1093 (1994). We believe that a "deceptive act or practice" involves more than the merefact that a defendant promised something and then failed to do it. That type of "misrepresentation" occurs every time adefendant breaches a contract.

A sister jurisdiction has reached the same conclusion in construing a similar consumer fraud statute. In Crawford v. AceSign, Inc., 917 S.W.2d 12 (Tex. 1996), the court held that the plaintiff could not recover for consumer fraud because at mostthe evidence showed only (a) that the defendants assured the plaintiff that they would publish the plaintiff's ad in the yellowpages and (b) that the defendants failed to publish the ad. The court held that the defendants' assurances that the ad wouldbe published were not false, misleading, or deceptive under the consumer fraud law, as to hold otherwise would convertevery breach of contract action into a statutory consumer fraud claim. Crawford, 917 S.W.2d at 14. Also, "[t]he statementsthemselves did not cause any harm. The failure to run the advertisement (the breach of the contract) actually caused the lostprofits ***." (Emphasis in original.) Crawford, 917 S.W.2d at 14. We think Crawford's reasoning is sound and appliesequally to our consumer fraud statute.

Here, because a naked breach-of-contract claim does not support a Consumer Fraud Act claim, plaintiff could not make hisprima facie case simply by adducing evidence that defendants did not do what they promised. However, in the main,plaintiff's evidence proves little else. Thus, defendants' mere failure to complete the project on time, fertilize the lawn twice,or do a workmanlike job does not mean they committed consumer fraud.

The one alleged misrepresentation that may amount to more than a mere unfulfilled promise is defendants' assurance thatthey would use a rock picker. Here, plaintiff's evidence did show that, when defendants made this promise, they did notown a rock picker and had not used one for five years. However, we cannot say that the trial court was required to inferfrom this somewhat ambiguous evidence that defendants' promise was deceptive or unfair when they made it. Moreover,even if the court found that the promise was an actionable misrepresentation, it could conclude that plaintiff had not made aprima facie case because he had failed to show that the misrepresentation proximately caused his injury. Plaintiff testifiedthat, after Laudick repaired the lawn, there were "no problems." Laudick testified that he did not use a rock picker. Fromthis evidence, the trial court could conclude that defendants could have removed rocks satisfactorily even without a rockpicker and that their failure to use that particular contraption was not crucial. Also, the trial court could have found thatinsufficient evidence demonstrated that the use of a rock picker would have removed the occasional rocks that plaintiff stillnotices or that these remaining rocks cause plaintiff more than minimal injury. Thus, the court could find that defendants'assurances that they would use a rock picker, even if otherwise actionable, did not proximately cause plaintiff's injuries.

The evidence supports the judgment for defendants at the close of plaintiff's case on count V of the complaint. Therefore,we affirm the trial court's ruling.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

BOWMAN, P.J., and COLWELL, J., concur.