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07/10/97 ROBERTA L. CRIPE v. THOMAS E. LEITER AND

July 10, 1997

ROBERTA L. CRIPE, GUARDIAN OF THE ADULT AND CONSERVATOR OF THE ESTATE OF ROBERTA A. SCHMITZ, PLAINTIFF-APPELLANT,
v.
THOMAS E. LEITER AND THE LEITER GROUP, AN ILLINOIS PROFESSIONAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the tenth Judicial Circuit, Peoria County, Illinois. No. 92 L 533. Honorable John A. Barra, Judge, Presiding.

Rehearing Denied August 27, 1997. Released for Publication August 27, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the Opinion of the court. Lytton, P.j. and Slater, J., concurred.

The opinion of the court was delivered by: Michela

The Honorable Justice MICHELA delivered the Opinion of the court:

Plaintiff, as guardian and conservator of Roberta Schmitz (Schmitz) and her estate, filed an action against defendants in the circuit court of Peoria County seeking damages for consumer fraud, common law fraud, breach of fiduciary duty, legal malpractice and constructive fraud. Plaintiff appeals the court's dismissal with prejudice of her Consumer Fraud Act (the Act) (815 ILCS 505/1 et seq. (West 1994)) counts.

Facts

In 1992, defendants began representing Schmitz for the purpose of transferring her two irrevocable trusts from First National Bank of Peoria to South Side Trust and Savings Bank of Peoria. Defendants also defended Schmitz in a guardianship proceeding filed by plaintiff.

Counts I and VI of plaintiff's complaint alleged that in violation of the Act, defendants made misrepresentations on legal invoices by setting forth charges for time not actually spent in representing Schmitz as her personal attorney and as her trust attorney. Defendants admit that they were to bill Schmitz "at the rate of $125.00 per hour for the performance of all such legal services."

Defendants filed a motion to dismiss and the court ruled that, as a matter of law, the Act does not cover strictly legal services or the billing of such, and it dismissed counts I and VI with prejudice. The court denied defendants' motion to reconsider, and this appeal follows.

Analysis

Plaintiff contends that the court erred in finding that counts I and VI do not fall under the purview of the Act and dismissing those counts with prejudice.

On review of a motion to dismiss, a court must accept as true all well pleaded allegations and view them in the light most favorable to plaintiff. The complaint must contain sufficient direct or inferential allegations of all material elements in order to recover under a legal theory. Dismissal is appropriate when it is clearly apparent that plaintiff can prove no facts in support of his claim upon which relief may be granted. Zinser v. Rose, 245 Ill. App. 3d 881, 883, 185 Ill. Dec. 574, 614 N.E.2d 1259 (3d Dist. 1993).

The Act provides that any person who suffers damage as a result of any other persons unfair or deceptive practices in the sale or distribution of any services may bring an action actual damages or for any other relief which the court deems proper. 815 ILCS 502/2 (West 1994); 815 ILCS 505/10a(a) (West 1994).

This court has held that the Act should be liberally construed to effect its purposes, which is to "eradicate all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers. [Citations.]" Malooley v. Alice, 251 Ill. ...


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