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Docket No. 95854-Agenda 12-November 2003.

LISA M. SHANNON et al., Appellees, v. BOISE CASCADE
CORPORATION, Appellant.

Opinion filed February 5, 2004.
 

JUSTICE KILBRIDE delivered the opinion of the court:

For the second time, we are asked to review the decision of theappellate court in this case, involving several homeowners' consumerfraud claims against Boise Cascade, a manufacturer of composite woodsiding. The trial court entered summary judgment in favor of BoiseCascade, the appellate court reversed, and we vacated the appellatecourt's judgment, directing the court to reconsider its judgment in light ofOliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002). See Shannon v.Boise Cascade, 328 Ill. App. 3d 621 (2002), vacated, 201 Ill. 2d 615(2002). Following vacatur, the appellate court attempted to distinguishOliveira and reissued its previous opinion in full. 336 Ill. App. 3d 533.

We allowed Boise Cascade's petition for leave to appeal. 177 Ill. 2dR. 315. We further granted leave to the Illinois Trial Lawyers Associationto file an amicus curiae brief in support of plaintiffs and also granted leaveto the National Association of Independent Insurers and the ProductLiability Advisory Council to file amicus curiae briefs in support ofdefendant. 155 Ill. 2d R. 318. We now reverse the judgment of theappellate court.

BACKGROUND

Plaintiffs, Lisa M. Shannon, Timothy J. Shannon, Brian K. Connelly,Susan West, Shapour Arami, Bruce Fischer, and James Torongo, ownhomes covered with a Boise Cascade exterior composite wood sidingproduct. The siding was installed on the homes when they were builtbetween 1983 and 1984. While five of the plaintiffs are subsequentpurchasers, Fischer and Torongo are the original owners of their homes.Boise Cascade began manufacturing its composite siding about 1960 buthas not manufactured, sold, or marketed the siding since 1984.

Plaintiffs filed a putative class action suit, asserting, inter alia, a claimunder the Consumer Fraud and Deceptive Business Practices Act (Act)(815 ILCS 505/1 et seq. (West 1998)), alleging that Boise Cascade'scomposite siding was defective in that it was subject to rotting, buckling,warping, wick moisture, and general failure. Plaintiffs' complaint furtheralleged that Boise Cascade deceptively advertised the composite siding,falsely representing that the siding was "of inherent good quality,""durable," "low maintenance," and "looked and performed comparablyto natural wood siding." The complaint also avers that Boise Cascadefraudulently and deceptively failed to disclose that its siding "performedpoorly in the field," with a "high rate of failure," was sensitive to moisture,and required "highly particularized maintenance."

Admissions in all of the plaintiffs' depositions established that nonehad received any representations regarding the siding from BoiseCascade. An illustrative example is plaintiff Connelly, who testified that hepurchased his 13-year-old home in 1997. At the time of the purchase, hedid not know who manufactured the siding and he was not aware of anyadvertising, literature, or other representations about the siding. Lisa andThomas Shannon, West, and Arami did not know the siding was a BoiseCascade product. Before purchasing their homes, they were aware thatsiding damage was present. Fischer and Torongo, the two plaintiffs whopurchased new homes, reviewed brochures prepared by the buildercontaining representations about the siding. Those representations werefrom the builder and were not consistent with Boise Cascade's productliterature. The complaint did not allege that any named builder, architect,or engineer had received Boise Cascade product literature, or that anyplaintiff, in making a decision to purchase a home, communicated in anyway with any builder, architect, or engineer who had received BoiseCascade product literature. No evidence was proffered at the summaryjudgment hearing relating to the distribution of product literature to anyone.Moreover, prior to the summary judgment hearing plaintiffs did not requestleave to amend their complaint to allege that they relied on builders,architects, or engineers who had been deceived by Boise Cascade'sproduct literature.

The circuit court granted Boise Cascade summary judgment, statingthat "seven of the eight plaintiffs neither saw, heard, or otherwise wereaware of the defendant's advertising," and finding that the claimeddamages were not proximately caused by the alleged deceptiveadvertising. The circuit court refused to enter summary judgment againstan eighth plaintiff, Jack B. Babel, who bought his home new in 1984,knew the siding was manufactured by Boise Cascade, and had read someof Boise Cascade's publications prior to making his purchase. Babel'sclaim is not at issue in this appeal.

Following a Supreme Court Rule 304(a) finding by the circuit courtthat there was no just reason to delay enforcement or appeal (155 Ill. 2dR. 304(a)), plaintiffs appealed, arguing that the circuit court improperlyanalyzed the elements of a cause of action under the Act, in particular theconcepts of "materiality" and "proximate causation." The appellate courtreversed, holding that the circuit court construed the Act too narrowly byrequiring privity, "some sort of direct contact between the plaintiffs and therepresentations made by Boise Cascade." Boise Cascade, 328 Ill. App.3d at 625. According to the appellate court, the Act created a new causeof action, affording consumers broad protection by prohibiting anydeception or false promise. Boise Cascade, 328 Ill. App. 3d at 625-26.The appellate court further held that the circuit court erred in its conclusionthat there was no proximate causation. Boise Cascade, 328 Ill. App. 3dat 628. According to the appellate court, "[w]here reasonable minds coulddiffer whether the defendant's conduct was a substantial factor in bringingabout the injury, the matter is for the jury to decide." Boise Cascade, 328Ill. App. 3d at 628.

Justice Turner dissented. He believed that the majority failed toaddress the actual proximate cause theory advanced by plaintiffs in thiscase. Boise Cascade, 328 Ill. App. 3d at 631 (Turner, J., dissenting). Theplaintiffs' theory, as alleged in the complaint, posited that "in [the absenceof the] promotion and marketing activities [of Boise Cascade] a marketwould not have been developed for composite wood siding and thus thesiding would not have been sold in the State of Illinois and therefore itwould not have been installed on the residences of plaintiffs and the othermembers of the class."

Boise Cascade sought leave to appeal to this court (177 Ill. 2d R.315) and, while the petition was pending, we filed our opinion in Oliveirav. Amoco Oil Co., 201 Ill. 2d 134 (2002). Oliveira involved a putativeclass action against a gasoline company under the Act, where plaintiffalleged that Amoco engaged in a deceptive advertising campaign for itspremium gasolines, resulting in consumer fraud. In Oliveira, this courtrejected the plaintiff's "market theory" of proximate causation that wasalmost identical to the theory pleaded by plaintiffs here. Oliveira, 201 Ill.2d at 149-55. We then vacated the appellate court judgment and directedthat court to reconsider its judgment in the light of Oliveira. Shannon v.Boise Cascade, 201 Ill. 2d 615 (2002) (supervisory order).

Plaintiffs then sought leave from the appellate court to amend theircomplaint (155 Ill. 2d Rs. 362, 366) to allege that certain unspecified"architects, code promulgating bodies, materials suppliers, builders andhomeowners" relied on Boise Cascade's representations. The proposedamendment did not allege, however, that any of the builders, materialsuppliers, architects, or other third parties actually involved in the plaintiffs'homes were aware of the alleged misrepresentations. It reiterated the"market theory" of proximate cause as set out in their original complaint.Leave to amend was denied.

The appellate court distinguished Oliveira, stating that the Oliveiraplaintiff was solely concerned with price and did not complain that theproduct involved was defective. 336 Ill. App. 3d at 537. Further,according to the appellate court, "[i]t is sometimes possible to rely onmisrepresentations without reading the documents in which suchmisrepresentations are made. *** Purchasers of homes employ builders,architects, and engineers to examine the product literature for them; andit is a mistake to say that home purchasers do not rely on that productliterature." 336 Ill. App. 3d at 537.

Justice Turner again dissented, arguing that Oliveira controlled. 336Ill. App. 3d at 546-47 (Turner, J., dissenting). In particular, he found "themajority's insouciance to our *** decision in Oliveira vexing." 336 Ill.App. 3d at 546 (Turner, J., dissenting). We granted Boise Cascade'spetition for leave to appeal (177 Ill. 2d R. 315) and now reverse thejudgment of the appellate court.

ANALYSIS

Summary judgment is proper where the pleadings, depositions, andadmissions on file, when viewed in the light most favorable to thenonmoving party, reveal that there is no genuine issue as to any materialfact and that the moving party is entitled to judgment as a matter of law.Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). We reviewthe grant of summary judgment de novo. Morris v. Margulis, 197 Ill. 2d28, 35 (2001).

The complaint in Oliveira asserted that the defendant's allegedlydeceptive advertising scheme increased demand for the defendant'spremium gasolines, thereby creating an inflated and otherwiseunsustainable price for those gasolines, causing damage to all purchaserswho bought the gasolines while the advertisements were running, becausethey paid a higher price than they would have in the absence of the ads.Oliveira, 201 Ill. 2d at 140-41. We affirmed the dismissal of plaintiff'sclaim under the Act because the complaint failed to allege that therepresentative plaintiff was in any manner deceived by defendant'sadvertisements. Oliveira, 201 Ill. 2d at 154-55. We reasoned that thisresult was compelled by our holding in Zekman v. Direct AmericanMarketers, Inc., 182 Ill. 2d 359 (1998).

In Zekman, plaintiff's complaint alleged that the defendant telephonecompany violated the Act by reviewing, revising, and approving DirectAmerican's deceptive solicitations and recorded messages regarding aprize scheme and, further, that it violated the Act by billing for plaintiff'scalls to the 900 number referenced in the solicitations in a deceptivemanner. We affirmed summary judgment in favor of the defendanttelephone company. Acknowledging our holding in Connick v. SuzukiMotor Co., 174 Ill. 2d 482, 501 (1996), requiring pleading and proof ofproximate cause, we held that no genuine issue of material fact existed asto whether alleged deceptive advertising proximately caused his damagebecause plaintiff's deposition testimony demonstrated that he was notdeceived by defendant's actions. We reasoned that since plaintiff admittedthat he did not read or pay the bills himself, he could not have been misledby their allegedly deceptive nature. Zekman, 182 Ill. 2d at 375-76.

The teaching of Oliveira and Zekman is that deceptive advertisingcannot be the proximate cause of damages under the Act unless it actuallydeceives the plaintiff. Plaintiffs' complaint in this case does not allege thatany deceptive advertising by Boise Cascade was received by any plaintiff,or that it was received by any builder, architect, engineer, or other likeperson somehow connected with a plaintiff. Instead, plaintiffs claim thatBoise Cascade's alleged deceptions created a market for their productthat would not otherwise exist, thus resulting in its use on their homes andthe plaintiffs' ultimate damages. The only distinction between this claim andthe market theory claim in Oliveira is the nature of the damages. Theplaintiffs here seek recovery for the cost of replacement or repair of thesiding, while the Oliveira plaintiff sought recovery for the inflated pricepaid for premium gasoline. The appellate court deemed this significant(336 Ill. App. 3d at 537), but we perceive it to be a distinction without adifference. The advertising in Oliveira and in this case did not in any waydeceive the plaintiffs, and thus could not have proximately caused theclaimed damages, whatever their nature.

It is certainly possible that evidence might demonstrate that the sidingwould not have been installed on plaintiffs' homes but for Boise Cascade'spromotional literature. It does not follow, however, that the literaturedistributed to unnamed persons 20 or more years ago, who may or maynot have been deceived, induced plaintiffs to accept the siding. Withoutsuch a nexus, the alleged deception is simply too remote from the claimeddamages to satisfy the element of proximate cause.

Although proof of actual deception of a plaintiff is required, this is notto say that the deception must always be direct between the defendant andthe plaintiff to satisfy the requirement of proximate cause under the Act.For instance, if the product literature had in fact deceived a particularbuilder, architect, or contractor, resulting in the installation of defectivesiding on a home, the damage could arguably have occurred "as a resultof" the indirect deception, as required by section 10a(a) of the Act (815ILCS 505/10a(a) (West 2000)). In those circumstances, the purchaser,who may have no independent knowledge of the qualities or expectedperformance standards of siding, is deceived because of the deception ofthe builder, architect or contractor, who reasonably should have hadcorrect knowledge. Plaintiffs did not plead any facts to support that theoryat any time.

A similar situation was addressed by the appellate court in St. JosephHospital v. Corbetta Construction Co., 21 Ill. App. 3d 925 (1974). Inthat case, the defendant hospital asserted a common law fraud claimagainst the manufacturer-supplier of wall paneling based on thatdefendant's failure to disclose to the architect and the builder that testinghad revealed the paneling to have a flame spread of 17 times the maximumallowed under the Chicago building code. The appellate court upheld ajury verdict in favor of the hospital. St. Joseph, 21 Ill. App. 3d at 957.The court noted that traditional privity was not a requirement in fraudactions and held that "[i]t is enough that the statements by the defendantbe made with the intention that it reach the plaintiff and influence his actionand that it does reach him and that he does rely upon it, to his damage."St. Joseph, 21 Ill. App. 3d at 954.

The court cited with approval legal commentary from Harper andJames, Law of Torts, and American Jurisprudence Second, asserting theprinciple that the false representations must have been intended toinfluence the complaining party is equally applicable whether they aremade to him directly or indirectly. St. Joseph, 21 Ill. App. 3d at 954-55(citing F. Harper & F. James, Torts