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10/23/89 Downers Grove Volkswagen, v. Wigglesworth Imports

October 23, 1989

DOWNERS GROVE VOLKSWAGEN, INC., D/B/A DOWNERS GROVE SAAB, PLAINTIFF-APPELLANT

v.

WIGGLESWORTH IMPORTS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 33, 190 Ill. App. 3d 524, 137 Ill. Dec. 409 1989.IL.1660

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Downers Grove Volkswagen, Inc., sued defendant, Wigglesworth Imports, Inc., over a brochure published by defendant that plaintiff alleges reported false information about plaintiff's services. All three counts of plaintiff's amended complaint were dismissed pursuant to defendant's section 2-615 motion. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) Plaintiff elected to stand on its amended complaint and timely filed this appeal.

Plaintiff raises the following issues: (1) whether the trial court erred in dismissing count I because plaintiff failed to allege a reasonable business expectancy and whether plaintiff sufficiently pleaded damages; (2) whether the trial court erred in dismissing count II because plaintiff failed to allege special damages; and (3) whether the trial court erred in dismissing count III because plaintiff was not a consumer under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.). We affirm in part and reverse and remand in part.

In count I of its complaint, plaintiff alleged tortious interference with its business, alleging that defendant sent to numerous owners of Saab automobiles, including customers of plaintiff, a brochure which falsely reported the prices plaintiff charged for service inspections. Plaintiff alleged that the price it charged for a 15,000-mile inspection was approximately $123 less than that stated in the brochure, and the price listed in the brochure could not have been verified as the brochure stated. Plaintiff alleged defendant should have known that the prices in the brochure were false and that defendant's acts were motivated by malice with the express intention of maliciously hindering plaintiff's business. Plaintiff alleged it suffered damage to its standing, reputation, prestige, good will, and business.

In count II plaintiff sued defendant for libel. Plaintiff alleged defendant intended to convey to customers that plaintiff was gouging its customers with its prices, and at least one customer intended to stop transacting business with plaintiff because of the brochure.

In count III plaintiff sued for damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 261 et seq.). Plaintiff alleged that the brochure disparaged plaintiff's services, thus violating section 2(8) of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 312), which is incorporated in the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121 1/2, par. 262). Plaintiff alleged the same damages as count I.

Defendant moved to dismiss plaintiff's amended complaint under section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). Defendant contended count I was deficient because it failed to allege a reasonable expectancy where it failed to allege an enforceable contract, and it failed to allege facts to prove the elements of tortious interference with prospective business, especially damages. The trial court ruled that count I failed to state a cause of action because it failed to allege a reasonable business expectancy.

Defendant moved to dismiss count II because it failed to allege facts to constitute libel per se or libel per quod. The court dismissed this count because plaintiff failed to allege special damages.

Defendant moved to dismiss count III because plaintiff failed to allege actual damages. The trial court ruled that plaintiff could not sue under the Consumer Fraud and Deceptive Business Practices Act because plaintiff was not a consumer under the Act.

Plaintiff contends the trial court erred in dismissing all three counts of its complaint under section 2-615 (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). A cause of action will not be dismissed under section 2-615 unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. (Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. 158 Ill. App. 3d at 187.

Plaintiff first contends the trial court erred in dismissing count I, which alleged tortious interference with prospective business expectancies. To plead a cause of action for tortious interference with prospective business expectancies, plaintiff must allege (1) a reasonable expectation of entering into a valid business relationship; (2) defendant's knowledge of the expectancy; (3) defendant's intentional and malicious interference to defeat the expectancy; and (4) injury. (Resudek v. Sberna (1985), 132 Ill. App. 3d 783, 790; see also Restatement (Second) of Torts ยง 766B (1979).) The trial court held plaintiff failed to plead that it had a reasonable business expectancy. Plaintiff's complaint alleged that it had good relations with its customers and that approximately 80% of the people who bought Saab automobiles from plaintiff returned for inspection services, and it expected to continue to provide inspection services to its customers. The trial court ruled that plaintiff's ...


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