{ "id": 291602, "name": "EMPIRE HOME SERVICES, INC., Plaintiff-Appellant, v. CARPET AMERICA, INC., et al., Defendants-Appellees", "name_abbreviation": "Empire Home Services, Inc. v. Carpet America, Inc.", "decision_date": "1995-07-13", "docket_number": "No. 1\u201493\u20144562", "first_page": "666", "last_page": "671", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 666" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "563 N.E.2d 1031", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "206 Ill. App. 3d 40", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2561101 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/206/0040-01" ] }, { "cite": "394 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3275688 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/1036-01" ] }, { "cite": "757 F. Supp. 1527", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4099262 ], "opinion_index": 0, "case_paths": [ "/f-supp/757/1527-01" ] }, { "cite": "608 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 360", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5135823 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0360-01" ] }, { "cite": "607 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "153 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738760 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/153/0534-01" ] }, { "cite": "546 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2518602 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0524-01" ] }, { "cite": "573 N.E.2d 1370", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1370" } ], "opinion_index": 0 }, { "cite": "214 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5299022 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/1073-01" ] }, { "cite": "510 N.E.2d 1260", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 182", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3578245 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0182-01" ] } ], "analysis": { "cardinality": 505, "char_count": 9019, "ocr_confidence": 0.736, "pagerank": { "raw": 1.1984408052423536e-07, "percentile": 0.5930604448367454 }, "sha256": "f8aed67b8b5fee0faab81b5534d115d5f4ab5b27bbaace7d03007f93b5c63b60", "simhash": "1:b32ee0f63bf925f3", "word_count": 1472 }, "last_updated": "2023-07-14T20:31:30.839378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EMPIRE HOME SERVICES, INC., Plaintiff-Appellant, v. CARPET AMERICA, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nEmpire Home Services, Inc., a seller and installer of carpet, and a ubiquitous presence on television in the Chicago metropolitan area, sued defendants for alleged violations of both the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)) and the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 1992)). Defendant Super City Home Remodelers, Inc., filed a motion to dismiss under section 2 \u2014 615 of the Illinois Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1992)). Empire appeals from the order which dismissed the complaint with prejudice. We reverse.\nEmpire\u2019s complaint alleged violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) in count I and the Uniform Deceptive Trade Practices Act (Deceptive Trade Act) in count II. Empire claimed in count I that its advertising, which emphasizes a telephone number \u2014 588-2300\u2014generates more than 1,000 responses a day. Empire claimed that Super City, sometime in 1991, began to use the telephone number 588-3200, and that some potential Empire customers mistakenly phoned Super City. Empire further claimed that these callers were told that they had reached Empire or a company \"just like Empire.\u201d Super City then referred the caller to Carpet America, not a party to this appeal. Carpet America then contacted the caller and claimed to be Empire, using a sales presentation and purchase orders similar to Empire\u2019s. Empire alleged that potential Empire customers were deceived, that Empire lost business, was denied the benefit of advertising, and suffered damage to goodwill. Empire sought economic and punitive damages, injunctive relief, attorney fees, and other relief the court might find just.\nEmpire repled the substantive allegations of count I in count II, under the Deceptive Trade Act, and further alleged that Super City violated that act by passing off other goods and services as the goods and services of Empire.\nAfter a hearing, the trial court dismissed Empire\u2019s complaint with prejudice. The court held that the Consumer Fraud Act does not address competitive tactics among business competitors.\nDefendants cite Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App. 3d 182, 510 N.E.2d 1260, in support of the trial court and their argument that the Consumer Fraud Act does not cover disputes between competitors. Century rejected a cause of action brought by one competitor against another under the Act because there was a contract between the parties. The court held that recovery for breach of contract is not allowed under the Consumer Fraud Act, reasoning that the legislature did not intend to replace Illinois\u2019 common law of contracts and fraud by creating a cause of action under the Consumer Fraud Act. Century, 158 Ill. App. 3d 182, 510 N.E.2d 1260.\nSeveral later decisions, however, allow competitors who are not consumers of each other\u2019s goods and who do not have a contract with one another to sue under the Consumer Fraud Act. (Sullivan\u2019s Wholesale Drug Co. v. Faryl\u2019s Pharmacy, Inc. (1991), 214 Ill. App. 3d 1073, 573 N.E.2d 1370; Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 546 N.E.2d 33.) The court in Sullivan\u2019s held that \"[t]he protections of the statute are not limited to consumers. That this is so is made clear by the full title of the act itself, which indicates that it is 'An Act to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ***.\u2019 \u201d (Emphasis added.) Sullivan\u2019s, 214 Ill. App. 3d at 1082, 573 N.E.2d at 1370, quoting Ill. Rev. Stat. 1983, ch. 1211/2, par. 261 et seq.\nWhen a dispute under the Consumer Fraud Act involves businesses which are not consumers of each other\u2019s products, the issue is whether the alleged conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns. Downers Grove, 190 Ill. App. 3d 524, 546 N.E.2d 33.\nEmpire alleged that when potential Empire customers reach Super City, Super City tells them they have reached Empire. The customers are then referred to Carpet America, which continues the deception. We believe Empire has alleged facts which, if true, state a cause of action under the Consumer Fraud Act.\nSuper City next argues that Empire cannot sue under the Consumer Fraud Act because Empire did not rely on a misrepresentation by Super City and that no public injury was alleged. We find both of these arguments wanting. Super City\u2019s reliance argument was addressed by the supreme court in Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 607 N.E.2d 194. The court held that the Consumer Fraud Act does not require actual reliance. (Siegel, 153 Ill. 2d 534, 607 N.E.2d 194.) The requirement of a public injury was addressed in a 1990 amendment to the Act which added the sentence: \"Proof of a public injury, a pattern, or an effect on consumers generally shall not be required.\u201d (815 ILCS 505/10a(a) (West 1992).) The court in Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc. (1992), 240 Ill. App. 3d 360, 608 N.E.2d 178, also addressed the issue and held that proof of public injury is not required to state a cause of action under the Consumer Fraud Act. (Royal, 240 Ill. App. 3d 360, 608 N.E.2d 178.) Super City cites Ashkenazy v. I. Rokeach & Sons, Inc. (N.D. Ill. 1991), 757 F. Supp. 1527, for the contention that the Consumer Fraud Act requires allegations of a public injury. The court in Ashkenazy reviewed the 1989 version of the Act which did not include the amendment.\nWe turn to the alleged violations of the Deceptive Trade Act in count II.\nThe Deceptive Trade Act reads:\n\"A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:\n(1) passes off goods or services as those of another;\n(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;\n(3) causes likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another.\n* * *\nIn order to prevail in an action under this Act, a plaintiff need not prove competition between the parties or actual confusion or misunderstanding.\u201d 815 ILCS 510/2 (West 1992).\nEmpire alleged that Super City engaged in passing off its goods and services as those of Empire. Empire further alleged that when potential Empire customers reach Super City, they are told they have reached Empire. Super City then conceals the fact that the customer is not dealing with Empire. We conclude that count II of Empire\u2019s complaint states a cause of action upon which relief could be granted under all three provisions of the Deceptive Trade Act and find that the trial court erred in granting defendant\u2019s motion to dismiss count II.\nSuper City next argues that Empire, in count II, improperly pled the following in its prayer for relief: (1) an accounting of defendant\u2019s business; (2) damages in the amount of the profits usurped by defendant\u2019s wrongful activities; (3) an injunction that prohibits defendant\u2019s use of its telephone number; and (4) such further relief as the court deems just. The contention would ordinarily go beyond our scope of review of a section 2 \u2014 615 motion to dismiss because we are asked to decide whether, on the facts alleged in the complaint, any possibility of recovery exists. If so, the dismissal must be vacated. (Riley v. Singer (1979), 75 Ill. App. 3d 1036, 394 N.E.2d 746.) We address the issue here because both acts limit the relief available.\nThe Deceptive Trade Act provides:\n\"A person likely to be damaged by a deceptive trade practice of another may be granted injunctive relief upon terms that the court considers reasonable. ***\nCosts or attorneys\u2019 fees or both may be assessed against a defendant only if the court finds that he has wilfully engaged in a deceptive trade practice.\u201d (815 ILCS 510/3 (West 1992).)\nPlaintiff cannot seek damages or an accounting of defendant\u2019s business under the Deceptive Trade Act. Greenberg v. United Airlines (1990), 206 Ill. App. 3d 40, 563 N.E.2d 1031.\nWe conclude that Empire\u2019s complaint states a cause of action under both the Consumer Fraud Act and the Deceptive Trade Act. The plaintiff\u2019s relief, however, is limited to damages and attorney fees under the Consumer Fraud Act and injunctive relief and attorney fees under the Deceptive Trade Act.\nReversed and remanded.\nHOFFMAN, P.J., and THEIS, J., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Charles J. Pesek, of Geneva, for appellant.", "Russell M. Kofoed, of Fox & Grove, Chartered, of Chicago, for appellee Super City Home Remodelers, Inc." ], "corrections": "", "head_matter": "EMPIRE HOME SERVICES, INC., Plaintiff-Appellant, v. CARPET AMERICA, INC., et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1\u201493\u20144562\nOpinion filed July 13, 1995.\nCharles J. Pesek, of Geneva, for appellant.\nRussell M. Kofoed, of Fox & Grove, Chartered, of Chicago, for appellee Super City Home Remodelers, Inc." }, "file_name": "0666-01", "first_page_order": 684, "last_page_order": 689 }