APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff Norman Harwood appeals from an order granting defendant Piser Memorial Chapels' motion to dismiss plaintiff's complaint. The pertinent facts are as follows:
In November 1977 arrangements were made with defendant for the funeral of plaintiff's mother. At the time the arrangements were made, the goods and services ordered for the funeral were itemized on defendant's form. Plaintiff never executed this form. The form separates the "unit service" from "additional items" available. The "unit service" includes professional services, facilities and equipment, funeral coach, limousine and casket. Here the total "unit service" was $980. The form further provided:
"[*] ADDITIONAL ITEMS: The following items are not part of our UNIT Service, and may include some cash advances we are making for your convenience.
Interment Fee $270 Grave Vault Installation — $270.00 Cemetery Permit $25.00 Taxes $ — 25.00 Grave Box 295.00 Certified Copies 5 11.00 Limousines Flower Cars Tribune Lines at $ Per Line) Sun-Times Lines at $ Per Line) $30.50 News Lines at $ Per Line) Foundation Removal and Replacement 50.00 Linen Shroud 50.00 _________ TOTAL $731.50."
Plaintiff's total bill was $1711.50. This bill was not paid. In June 1979, defendant instituted suit to collect the amount owed based upon an oral contract. By agreement, that suit is not being prosecuted while the instant action is pending.
During discovery in the collection suit, plaintiff sought and was provided with information as to defendant's costs for certain items sold to plaintiff for use in the funeral service. The cost information disclosed the amount of profit that defendant received on certain of those items.
Plaintiff then filed the instant action individually and on behalf of all others similarly situated, alleging that defendant had employed deceptive practices by creating the impression that all items listed on the form agreement under the heading "additional items" were cash advances upon which defendant was making no profit, notwithstanding that defendant did make a profit on certain items. Count I of the complaint sought relief under section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262) (the Act). Count II of the complaint sought relief under a common law theory of fraud.
Defendant filed a motion to dismiss the complaint, alleging that both counts of the complaint should be dismissed because the form used by defendant was not deceptive as a matter of law. Further, defendant sought dismissal of count I on the ground that plaintiff had not alleged that he made arrangements with defendant for any funeral services or that he ever received the form. Defendant sought dismissal of count II on the ground that plaintiff failed to allege all of the necessary elements of fraud. The trial court granted defendant's motion to dismiss, finding that the form was not deceptive as a matter of law. The trial court further found with respect to count I that it was insufficient in law and failed to state a claim upon which relief could be granted because it did not allege that plaintiff arranged for the funeral service or that plaintiff relied upon any actions of defendant. The trial court also found with respect to count II that it was insufficient in law and failed to state a claim upon which relief could be granted because it did not allege the necessary elements of fraudulent concealment.
Plaintiff appeals, contending that the trial court erred in granting defendant's motion to dismiss for the reason that the form used by defendant was deceptive as a matter of law. Furthermore, plaintiff contends that the trial court erred in granting defendant's motion to dismiss because count I properly stated a cause of action under the Act and count II properly stated a cause of action under a theory of common law fraud.
As a preliminary matter, we note that defendant's motion did not recite if it were made pursuant to section 45 or section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48). The order dismissing the complaint stated that the motion had been made pursuant to both sections 45 and 48. However, the motion did not allege the existence of affirmative matter avoiding the claim as required of a motion made pursuant to section 48. Instead, the motion attacked the complaint on the ground that as a matter of law it did not state a cause of action and on the ground that certain specified portions of the complaint were insufficient in law. These are grounds for dismissal under section 45, and we will therefore treat defendant's motion as one made under that section.
• 1 On a motion to dismiss, we accept as true all well-pleaded facts. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 380 N.E.2d 790.) In addition, a complaint should not be dismissed unless the pleadings disclose that no ...