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Shannon v. Cascade

February 20, 2002

LISA M. SHANNON, TIMOTHY J. SHANNON, BRIAN K. CONNELLY, SUSAN WEST, SHAPOUR ARAMI, BRUCE FISCHER, AND JAMES TORONGO, PLAINTIFFS-APPELLANTS
v.
BOISE CASCADE, A CORPORATION, DEFENDANT-APPELLEE



Appeal from Circuit Court of Champaign County No. 98L268 Honorable John R. DeLaMar, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

Released for publication April 16, 2002.

LISA M. SHANNON, TIMOTHY J. SHANNON, BRIAN K. CONNELLY, SUSAN WEST, SHAPOUR ARAMI, BRUCE FISCHER, AND JAMES TORONGO, PLAINTIFFS-APPELLANTS
v.
BOISE CASCADE, A CORPORATION, DEFENDANT-APPELLEE

Appeal from Circuit Court of Champaign County No. 98L268 Honorable John R. DeLaMar, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

PUBLISHED

 This action is brought under the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 183, ch. 121 1/2, pars. 261 through 272 (now see 815 ILCS 505/1 through 12 (West 2000))). The complaint seeks a determination that the action be maintained as a class action. 735 ILCS 5/2-802(a) (West 2000). The circuit court entered summary judgment in favor of defendant, Boise Cascade. We reverse and remand.

I. BACKGROUND

Plaintiffs, Lisa M. Shannon, Timothy J. Shannon, Brian K. Connelly, Susan West, Shapour Arami, Bruce Fischer, and James Torongo, own homes in Du Page County, which were built in 1983 or 1984. Plaintiffs Fischer and Torongo are the original owners of their homes, purchasing them in 1984. Most of the other plaintiffs purchased their homes in 1997, one in 1991. Boise Cascade manufactured an exterior composite wood siding product that was installed on the homes when they were built. Boise Cascade began manufacturing its composite siding about 1960 but has not manufactured, sold, or marketed the siding since 1984. Plaintiffs' second-amended complaint alleges a violation of section 2 of the Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 262 (now see 815 ILCS 505/2 (West 2000))). The complaint alleges that Boise Cascade's composite siding was subject to rotting, buckling, warping, wick moisture, and general failure. The complaint alleges that Boise Cascade deceptively advertised the composite siding, falsely representing that the siding was "of inherent good quality," "durable," "low maintenance," and "looked and performed comparably to natural wood siding." The complaint also alleges that Boise Cascade fraudulently and deceptively failed to disclose that its siding "performed poorly in the field," with a "high rate of failure," was sensitive to moisture, and required "highly particularized maintenance."

The circuit court entered summary judgment for Boise Cascade, noting that while further discovery may be necessary to determine whether Boise Cascade's marketing activity was false, misleading, or otherwise deceptive, the court could address the factual premise of the motion that "seven of the eight plaintiffs neither saw, heard, or otherwise were aware of the defendant's advertising," which was strictly a legal issue. Although plaintiff Fischer bought his home new, he did not know that his siding was manufactured by Boise Cascade. Plaintiff Torongo knew that the siding had been manufactured by Boise Cascade, but there was no evidence he was aware of any representations by Boise Cascade. The court held that Torongo and Fischer could not rely on the representations of the builder-seller of their homes, as there was no evidence the builder-seller was an agent of Boise Cascade. The circuit court did refuse to enter summary judgment against plaintiff Jack B. Babel, who bought his home new in 1984, knew the siding was manufactured by Boise Cascade, and had read some of Boise Cascade's publications prior to making his purchase. The circuit court rejected Boise Cascade's argument that its representations were only non-actionable "puffing."

The circuit court made a finding under Supreme Court Rule 304(a) that there is no just reason to delay enforcement or appeal. 155 Ill. 2d R. 304(a). Plaintiffs appeal, arguing that the circuit court improperly analyzed the elements of a cause of action under the Act, in particular the concepts of "materiality" and "proximate causation." For purposes of this appeal we assume, as did the circuit court, that Boise Cascade's composite siding was defective, that Boise Cascade's representations were deceptive, and that Boise Cascade concealed facts with the intent that others rely thereon.

II. ANALYSIS

Although the use of summary judgment aids in the expeditious disposition of a lawsuit, "[s]ummary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992). A motion for summary judgment is properly granted, therefore, only when the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2000). In considering a summary judgment motion, the court has a duty to construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292, 757 N.E.2d 481, 491 (2001). In appeals from orders granting summary judgment, our review is de novo. Travelers, 197 Ill. 2d at 292, 757 N.E.2d at 491.

A. The Consumer Fraud and Deceptive Business Practices Act

Section 2 of the Act declares "[u]nfair methods of competition" and "unfair or deceptive acts or practices" to be "unlawful whether any person has in fact been misled, deceived[,] or damaged thereby." Ill. Rev. Stat. 1983, ch. 121 1/2, par. 262 (now see 815 ILCS 505/2 (West 2000)). Among those methods and practices, two are specifically described: (1) "the use or employment of any deception, fraud, false pretense, false promise [or] misrepresentation," and (2) "the concealment, suppression[,] or omission of any material fact, with intent that others rely upon the ...


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