The opinion of the court was delivered by: Presiding Justice Gallagher
Appeal from the Circuit Court of Cook County Honorable Sheldon Gardner, Judge Presiding
Plaintiff Russell L. Lipinski appeals from an order of the trial court dismissing with prejudice his second amended complaint against defendants Martin J. Kelly Oldsmobile, Inc. (Kelly Oldsmobile), and General Motors Corporation (GM). Plaintiff argues that the trial court erred in dismissing count I for failure to state a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1998)) (Consumer Fraud Act) and count II, breach of implied warranty under the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act (15 U.S.C. §2301 et seq. (1994)) (Magnuson-Moss Act), as being untimely. We reverse and remand.
On April 10, 1997, plaintiff bought a used 1994 Oldsmobile Cutlass Supreme from Kelly Oldsmobile. He also purchased a service contract for the car for $1,408. On January 30, 1997, GM, the car's manufacturer, had issued a technical bulletin regarding several car models, including the 1994 Oldsmobile Cutlass Supreme, stating that "some owners may experience excessive consumption of engine oil." The bulletin described the cause of the problem as "engine oil being introduced into the positive crankcase ventilation system (PCV) and then ingested into the engine and burnt." The bulletin did not describe what the result of the excess consumption of engine oil would be. Stating that it was "intended for use by professional technicians, not a 'do-it-yourselfer,'" the bulletin provided instructions on how to replace the "fresh and foul air sides" of the PCV system in order to remedy the problem. However, the bulletin first detailed 11 other possible causes for excess oil consumption, besides leaks, that had to be checked and found in satisfactory condition before the PCV parts should be replaced. At the time plaintiff purchased his car in April 1997, he was not told of the possible oil consumption problem.
On July 6, 1999, plaintiff filed a class action suit in the circuit court of Cook County against GM and Kelly Oldsmobile. Plaintiff alleged that the engine in his car failed as a result of the excessive oil consumption and that he, therefore, had to replace the engine. In August 1999, the case was removed to the United States District Court for the Northern District of Illinois but it was remanded back to the circuit court in November 1999. In April 2000, the trial court dismissed plaintiff's amended complaint.
On May 15, 2000, plaintiff filed a second amended complaint against GM and Kelly Oldsmobile. Plaintiff alleged that his car was defective because it had an excessive risk of oil migration into the PCV system where it would be ingested into the engine and burned, resulting in excessive oil consumption and severe damage to the engine from insufficient oil. Plaintiff alleged that the engine in his car failed as a result of the defect. Plaintiff alleged that defendants knew that plaintiff's car had "the above described tendency for excessive oil consumption which causes severe damage to the engine in ordinary use"; that they knew this no later than January 30, 1997, when GM issued the technical bulletin to all its dealers; that they failed to disclose to plaintiff the Cutlass's tendency to consume excessive amounts of oil in ordinary use and that the defect causes severe engine damage; and that the omission was made with intent and in such manner that plaintiff and the members of the class relied on the omission. Plaintiff stated that he would not have purchased the car if he had known of this tendency and that he suffered damages for the cost of replacing the engine and for the diminution in the value of the car.
Count I alleged that the conduct of Kelly Oldsmobile and GM was unfair and deceptive and constituted an improper concealment, suppression, or omission of a material fact in violation of section 2 of the Consumer Fraud Act (815 ILCS 505/2 (West 1998)). Count II alleged that, pursuant to the Magnuson-Moss Act, Kelly Oldsmobile had breached the implied warranty of merchantability on the car when it sold plaintiff a car that was defective and unmerchantable because it was not substantially free of defects and was not fit for ordinary use.
Defendants filed motions to dismiss the second amended complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS §5/2-615 (West 1998)), arguing that count I failed to state a cause of action under the Consumer Fraud Act and count II was untimely. On October 2, 2000, the trial court dismissed the second amended complaint with prejudice. Plaintiff timely appeals from the dismissal order. Plaintiff filed this appeal against both defendants. However, on March 9, 2001, we allowed plaintiff's motion to dismiss GM from the appeal. Kelly Oldsmobile remains as the sole appellee.
As plaintiff correctly states, although defendants filed their motions to dismiss pursuant to section 2-615, the motion to dismiss count II as untimely should have been filed pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS §5/2-619 (West 1998)). A section 2-615 motion to dismiss admits all well-pleaded facts and attacks the legal sufficiency of the complaint, alleging only defects on the face of the complaint. Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d 1174, 1178 (2000). A section 2-619 motion to dismiss, however, admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matters, such as the untimeliness of the complaint, which appear on the face of the complaint or are established by external submissions which act to defeat the plaintiff's claim, thus enabling the court to dismiss the complaint after considering issues of law or easily proved issues of fact. Neppl v. Murphy, 316 Ill. App. 3d at 584, 585, 736 N.E.2d at 1178-79. Nonetheless, whether the motion to dismiss was filed pursuant to section 2-615 or 2-619, our standard of review is de novo. Neppl v. Murphy, 316 Ill. App. 3d at 583, 736 N.E.2d at 1178.
With regard to count I, the standard of review for a section 2-615 motion to dismiss is whether the complaint sufficiently states a cause of action for fraudulent concealment under the Consumer Fraud Act and the merits of the case are not considered. See Elson v. State Farm Fire & Casualty Co., 295 Ill. App. 3d 1, 5, 691 N.E.2d 807, 810-11 (1998). We must view the complaint in the light most favorable to plaintiff, taking as true for purposes of the motion to dismiss all well-pleaded facts of the complaint and the reasonable inferences that can be drawn therefrom. Ziemba v. Mierzwa, 142 Ill. 2d 42, 46-47, 566 N.E.2d 1365, 1366 (1991). However, we will disregard mere conclusions of law or fact unsupported by specific factual allegations. Doe v. Calumet City, 161 Ill. 2d 374, 385, 641 N.E.2d 498, 503 (1994).
The omission or concealment of a material fact in the conduct of trade or commerce constitutes consumer fraud pursuant to section 2 of the Consumer Fraud Act. Perona v. Volkswagen of America, Inc., 292 Ill. App. 3d 59, 67, 684 N.E.2d 859, 866 (1997), citing Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 504, 675 N.E.2d 584, 595 (1996). Section 2 of the Consumer Fraud Act provides:
"Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the 'Uniform Deceptive Trade Practices Act', approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby." (Emphasis added.) 815 ILCS 505/2 (West 1998).
"A material fact exists where a buyer would have acted differently knowing the information, or if it concerned the type of information on which a buyer would be expected to rely in making a decision [regarding] whether to purchase the product." Perona, 292 Ill. App. 3d at 67-68, 684 N.E.2d at 866.
A violation of the Consumer Fraud Act "must be pled with the same particularity and specificity" required in common law fraud claims. Connick, 174 Ill. 2d at 501, 675 N.E.2d at 593. However, it is not necessary to plead a common law duty to disclose (Connick, 174 Ill. 2d at 505, 675 N.E.2d at 595) nor to show actual reliance in order to state a valid claim based on an omission or concealment under the Consumer Fraud Act. Perez v. Citicorp Mortgage, Inc., 301 Ill. App. 3d 413, 420-21, 703 N.E.2d 518, 523 (1998). Under the Consumer Fraud Act, "the intention of the seller (his good or bad faith) is not important and a plaintiff can recover under the Act for innocent misrepresentations." Duhl v. Nash Realty, Inc., 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267, 1277 (1981).
"To state a claim under the Consumer Fraud Act, a complaint must set forth specific facts that show (1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the deception occurred in the course of conduct involving a trade or commerce; and (4) the consumer fraud proximately caused the plaintiff's injury." Perona, 292 Ill. App. 3d at 65, 684 N.E.2d at 864, citing Connick, 174 Ill. 2d at 501, 675 N.E.2d at 593; see also Kelly v. Sears Roebuck & Co., 308 Ill. App. 3d 633, 641, 720 N.E.2d 683, 690 (1999). Here, taking the well-pled allegations in plaintiff's complaint as true for purposes of the section 2-615 motion to dismiss, we conclude that those allegations sufficiently state a cause of action for fraudulent concealment under the Consumer Fraud Act.
Plaintiff's second amended complaint alleges in pertinent part as follows:
"5. On or about April 10, 1997, plaintiff purchased a used 1994 Oldsmobile Cutlass Supreme ('Cutlass') from Kelly Olds. A copy of the ...