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12/23/87 Charles Robert Guess, v. Edmund J. Brophy Et Al.

December 23, 1987





517 N.E.2d 693, 164 Ill. App. 3d 75, 115 Ill. Dec. 282 1987.IL.1912

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.


PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.


On September 10, 1986, plaintiff Charles Robert Guess filed a three-count complaint in the circuit court of Coles County against defendants Landex Research, Inc. (Landex), and Edmund J. Brophy. On January 14, 1987, defendants' motion to dismiss the complaint was allowed. Plaintiff then sought leave to file an amended complaint consisting of five counts. On February 9, 1987, the circuit court permitted plaintiff to file amended counts IV and V but denied leave to file amended counts I, II, and III. On May 19, 1987, the circuit court allowed defendants' motion to dismiss amended counts IV and V and dismissed the entire complaint in bar of action. Plaintiff has appealed.

We are thus faced with the question of the sufficiency of original counts I, II, and III, and amended counts IV and V. All counts set forth the creation of the following transaction between plaintiff and defendants: (1) on July 21, 1986, a cousin of plaintiff's died intestate while residing in Florida and left plaintiff as an heir under Florida law; (2) plaintiff was unaware of the death; (3) operating through an agent, Landex contacted plaintiff and persuaded him to sign two documents; (4) one of the documents stated that Landex had revealed to plaintiff evidence of the existence of an estate from which assets were due plaintiff and, in consideration of that revelation, plaintiff assigned to Landex one-third of his interest in that estate; (5) that document contained the signature of Brophy, on behalf of Landex, and of plaintiff, but left blank the name of the decedent; (6) the other document was an assignment by plaintiff to Landex of a one-third interest in the estate of the decedent referred to in the document signed by plaintiff and Brophy; and (7) the document containing the assignment did not list the name of the decedent.

Counts I, II, and III alleged that one or both defendants had violated the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.) in entering into the foregoing contract with plaintiff. Amended count IV alleged that the contract was unconscionable, and amended count V asserted that the contract was procured by fraud. We will describe other allegations of the various counts as we pass upon their sufficiency. As the first three counts were brought under the Act, we must first decide whether the transaction alleged comes within the purview of the Act. The circuit court determined that the Act was not applicable, and that was its major reason for the dismissal of those counts.

The purpose of the Act, as stated in its preamble, is "to protect consumers [and others] against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Section 1(e) of the Act defines a "consumer" as "any person who purchases or contracts for the purchase of merchandise not for resale in the ordinary course of his trade or business but for his use or that of a member of his household." (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261(e).) "Merchandise" is defined as "any objects, wares, goods, commodities, intangibles, real estate situated outside the State of Illinois, or services." (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261(b).) The words "trade or commerce" are described as "the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State." Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261(f).

In Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634, the supreme court held that an applicant for a medical school was not a "consumer" because he was not purchasing educational services from the institution. Then, in Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012, that court held that the sale of educational services falls within the meaning of the Act. The court concluded that the language of section 1(f) of the Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 261(f)) indicated that the Act was to have broad application.

The theory that the legislature intended the Act to cover many types of service contracts has been followed by the Fifth District in Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464 (treating and inspecting for termite infestation), and American Buyers Club v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370 (sale of memberships in a club whose members were enabled to place orders for merchandise at a savings over retail prices). On the other hand, the Act has been held to be inapplicable by the Third District in McCarter v. State Farm Mutual Automobile Insurance Co. (1985), 130 Ill. App. 3d 97, 473 N.E.2d 1015 (purported act of insurer's agent in settling claim of one of its insureds against another of its insureds). This district and the Third District, respectively, have held that the Act does not cover transactions involving service contracts where the wrongdoing is alleged to be an isolated breach of contract. Grass v. Homann (1984), 130 Ill. App. 3d 874, 474 N.E.2d 711; Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212, 438 N.E.2d 1247.

None of the previously described cases are closely analogous to the instant case. Defendants maintain that Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 447 N.E.2d 1007, is closely in point. There, the court held that the furnishing of legal services by lawyers is not within the Act. That plaintiff relied upon analogy to the determination in Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, 44 L. Ed. 2d 572, 95 S. Ct. 2004, where the legal profession was determined to be subject to Federal antitrust legislation. The Frahm court noted that even in Goldfarb, the United States Supreme Court pointed out that the practice of law is not "'interchangeable with other business activity.'" (Frahm, 113 Ill. App. 3d at 584, 447 N.E.2d at 1010, quoting Goldfarb, 421 U.S. at 788-89, 44 L. Ed. 2d at 585, 95 S. Ct. at 2013.) The Frahm court concluded that Goldfarb had reference to the commercially competitive aspects of the legal profession but not with the relationship to a particular client. The Frahm court deemed the breach of a lawyer's duty to a particular client to constitute a "private wrong" not subject to redress under the Act. 113 Ill. App. 3d at 586, 447 N.E.2d at 1011.

We are not certain about the analysis of coverage upon the basis of whether the transaction of which complaint is made constitutes a "private wrong." Clearly, the fact that a violation of the Act injures only one customer or client or arises out of a transaction in which only one client or customer is involved is not sufficient to remove the client or customer from the protection of the Act. However, we are confident that the legislature did not intend to include the furnishing of legal services to clients within the Act. As the Goldfarb court indicated, the furnishing of legal services has qualities which negate equating it to the furnishing of commercial services. Moreover, the legal profession is subject to a policing more stringent than that to which purveyors of most commercial services are subject. We agree with Frahm that the Act does not concern the furnishing of services by the legal profession.

We do not agree with defendants' contention that they should be subject to the same immunity as the legal profession. The complaint does not indicate defendants give advice to their customers or clients or act in their behalf as agents. They are alleged to give information to customers and procure people to aid them. No indication is given that the defendants are required to be licensed or are subject to any regulation by any governmental body. These distinctions are material and prevent them ...

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