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CE Design, Ltd. v. Speedway Crane, LLC

Court of Appeals of Illinois, First District, Fourth Division

June 18, 2015

CE DESIGN, LTD., an Illinois Corporation, Individually and as the Representative of a Class of Similarly- Situated Persons, Plaintiff-Appellant and Cross-Appellee,
v.
SPEEDWAY CRANE, LLC, Defendant-Appellee and Cross-Appellant

As Corrected.

Appeal from the Circuit Court of Cook County. No. 2008-SH-22317. The Honorable Diane Larsen, Judge Presiding.

For APPELLANT: Philip A. Bock, James M. Smith, Bock & Hatch, LLC; Brian J. wanca, Anderson & Wanca.

For APPELLEE: Thomas E. Sarikas, Merlo Kanofsky Gregg & Machalinski Ltd.

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and opinion.

OPINION

COBBS, JUSTICE.

OPINION

[¶1] Plaintiff, CE Design, Ltd., was an engineering consulting firm that provided engineering, architectural, and surveying services prior to ceasing operations in 2010. Plaintiff purchased an advertising program for the 2005 and 2006 editions of the Blue Book of Building and Construction (Blue Book) and was a Blue Book customer in 2005. Defendant, Speedway Crane, is an Illinois limited liability company in the crane rental business. It rents cranes to companies for lifting structural steel, residential steel, air conditioners, and industrial plant work. Defendant advertised its services in the Blue Book and was a Blue Book customer in 2005. On June 27, 2005, plaintiff received a one-page fax from defendant advertising its crane rental services. Plaintiff claimed that it did not give prior express permission to receive advertisements by fax. On June 20, 2008, plaintiff brought a class action to obtain relief and recover damages against defendant allegedly caused by the sending of the faxed advertisement. Count I of plaintiff's complaint alleged violation of the Telephone Consumer Protection Act of 1991 (TCPA). 47 U.S.C. § 227 (Supp. III 2004).[1] The TCPA prohibits the sending of an unsolicited facsimile advertisement and provides that monetary damages may be recovered for each violation in the amount of a party's actual pecuniary loss or $500, whichever is greater. Id. Counts II and III alleged that the fax constituted conversion and that it violated section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West 2008)).

[¶2] Defendant moved for summary judgement on count I, asserting that plaintiff had expressly consented to the receipt of faxed advertisements and also that the issue was moot. The trial court rejected defendant's claim of mootness but entered summary judgment in favor of defendant, finding that plaintiff had given prior express permission to receive faxed advertisements when it invited contact from businesses in the commercial construction industry by voluntarily advertising its fax number in the Blue Book. The court also granted defendant's subsequent motion for summary judgment as to counts II and III.

[¶3] On appeal, plaintiff claims that the court erred by holding that (1) it gave defendant " prior express invitation or permission" to send advertisements by fax when it listed its contact information in the Blue Book and (2) it had an established business relationship (EBR) with defendant. Plaintiff requests reinstatement but otherwise makes no argument in its brief regarding its conversion and Illinois Consumer Fraud and Deceptive Business Practices Act claims. In its cross-appeal, defendant asserts that the court erred when it denied its motion for summary judgment for mootness, which was premised on plaintiff's rejection of defendant's tender offer. For the reasons that follow, we affirm the trial court's grant of summary judgment and dismiss the cross-appeal.

[¶4] BACKGROUND

[¶5] The conduct at issue in this appeal involves the dissemination of business contact information in the Blue Book, published by Contractor's Register. The pleadings and deposition testimony establish the following relevant facts.

[¶6] The Blue Book is a regional commercial construction directory of " qualified" businesses in commercial construction. The purpose of the Blue Book is to bring buyers and sellers together within the commercial construction industry. In addition, it provides an opportunity for those buyers and sellers to communicate via phone, fax, and e-mail, and also provides a service to the users of the Blue Book with regard to finding quality, qualified contractors, subcontractors, suppliers, and manufacturers.

[¶7] The Blue Book has 560 construction-related classifications. In order for a business to be listed in the Blue Book, it must be " qualified" as a vendor in commercial construction. To determine whether a business is " qualified," the Blue Book conducts a verification process in which its employees contact the business to ensure that it does, in fact, do business in commercial construction in a specific regional area. The Blue Book does not list any businesses that do work for homeowners only, but does include companies that work on large residential construction projects.

[¶8] Once a company is " qualified," it has the option of being listed in the Blue Book. If the company chooses to be listed, it can either be " free listed" or it can purchase an advertising program and become a Blue Book " customer." A " free listed" company has its contact information listed among the businesses in that category of service and receives free marketing and exposure to potential buyers. If, however, the company chooses to purchase an advertising program from the Blue Book, its name and contact information will be highlighted so that it stands out. For example, the company can be listed on the first page of the category before the free listings, have color advertisements, have its name and contact information bolded, and/or publish a brief description of the company.

[¶9] A company that elects to be listed in the Blue Book supplies its contact information to be published in the book's print and online versions. The Blue Book does not require that a company provide its fax number; rather, the company chooses the information that it wants to be published. According to the deposition testimony of Douglas Wulkan, the controller of the 2005 Blue Book, " faxing is an integral part of the commercial construction industry." In fact, the Blue Book provides a bid service called the " BB Bid System" which allows Blue Book users to bid on construction projects by submitting bids, often by fax, to one another.

[¶10] Plaintiff was a Blue Book customer, having purchased an advertising program for its engineering consulting services in the Blue Book from 1998 until 2007. As a customer, plaintiff submitted its contact information, including its telephone and fax numbers, for publication in the directory so that businesses in the industry could contact it. The advertising program featured plaintiff's contact information so that it would stand out to Blue Book users. According to plaintiff's owner, John Pezl, " the whole point of us being in the Blue Book was to have architects or developers if they needed engineering or professional services to contact us" and so that plaintiff could " contact other engineering firms."

[¶11] On June 10, 2004, plaintiff entered into a two-year contract to renew its advertising program for the 2005 and 2006 editions of the Blue Book and agreed to pay $3,990. Under the contract, plaintiff had color advertisements in the " Engineers-Consulting" and " Surveyors" categories, a bold listing for the " Architects" and " Cellular Tower Erectors" categories, and a " super bold" listing in the " A to Z Alphabetical Section." Plaintiff again submitted its contact information, including its fax number, to be published. The June 2004 contract, which was in effect at the time defendant faxed its ad to plaintiff on June 27, 2005, did not include any specific terms or conditions regarding faxed communications from other members of the Blue Book. On June 27, 2005, defendant faxed plaintiff a one-page advertisement listing its crane rental services and the rates that it charged. Defendant's owner, Michael Fitzgerald, obtained plaintiff's fax number from the Blue Book. In an effort to " drum up business and build relationships," Fitzgerald went through the Blue Book and identified businesses that he thought could either use defendant's services or that could refer its services to their customers.

[¶12] Prior to sending the fax, defendant had never done any direct business with plaintiff, i.e., it had never bought any services from plaintiff or sold any services to plaintiff. However, defendant, like plaintiff, bought an advertising program from the Blue Book and published its contact information, including its fax number, in order to increase its contacts in the commercial construction industry.

[¶13] On June 20, 2008, plaintiff filed a three-count class action complaint against defendant alleging that it did not give express permission for defendant to send the June 2005 faxed advertisement. Plaintiff claimed that the fax violated the TCPA, constituted conversion and violated the Illinois Consumer ...


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