1-00-0246 & 1-00-3034 Cons. 

SIXTH DIVISION
MAY 16, 2003

JUSTICE TULLY delivered the opinion of the court:

These consolidated appeals arise out of plaintiffs', John and Mary Roe's, suit againstdefendant Jewish Children's Bureau of Chicago, seeking damages incurred as the result of theiradoption of their son, Larry, through defendant. Plaintiffs alleged that defendant made falsestatements regarding the mental health of Larry's biological mother and that Larry later developeda mental illness. Plaintiffs filed a complaint against defendant sounding in fraud, negligence, andbreach of contract. Plaintiffs' complaint also included a count sounding in negligence brought onbehalf of their daughter, Jane, whom they adopted through defendant after adopting Larry. Defendant moved to dismiss plaintiffs' complaint, and the trial court dismissed the breach of contractcount. Defendant subsequently moved for summary judgment on the remaining counts, and the trialcourt granted defendant's motion. In no. 1-00-0246, plaintiffs timely appeal contending: (1)the trialcourt erred when it held that they had not adequately pled a cause of action for breach of contract;(2) the trial court erred by limiting discovery and striking plaintiffs' affidavits; (3) the trial courterred in holding that their claims were barred by the statute of limitations; (4)the trial court erred inholding that they could not sustain a cause of action for fraud; and (5) the trial court erred in holdingthat they could not sustain a cause of action for negligence. We affirm in part, reverse in part, andremand the matter for further proceedings.

While appeal no. 1-00-0246, was pending, plaintiffs moved in the trial court to supplementthe record on appeal pursuant to Supreme Court Rule 329 (134 Ill. 2d R. 329). The trial court deniedplaintiffs' motion. In no. 1-00-3034, plaintiffs appeal contending the trial court erred when it deniedtheir motion to supplement the record. We dismiss this appeal.

The facts, as set forth in the allegations of plaintiffs' complaint are relatively straightforward. In March 1971, plaintiffs approached defendant regarding the possibility of adopting a child. Plaintiffs told defendant that they would only accept for adoption a child whose parents were normalmentally, intellectually, and emotionally, and who had no history of psychiatric problems. OnNovember 7, 1973, Larry Roe was born to Jane Doe and John Doe. Defendant told plaintiffs thatJane Doe had no health problems. In fact, this statement was false and Jane Doe had a history ofemotional problems including psychiatric hospitalization. Defendant placed Larry with plaintiffsin February 1974, and they adopted him on January 17, 1975. In May 1975, defendant placed asecond child, Jane Roe, with plaintiffs. Plaintiffs adopted Jane on April 1976. After they adoptedJane, plaintiffs were advised by medical professionals that Larry was suffering from a psychiatricdisorder with features of autism and schizophrenia.

In February 1991, plaintiffs were contacted by John Doe who identified himself as Larry'sbiological father. John Doe informed plaintiffs of the circumstances surrounding Jane Doe's mentalhealth history at the time of the adoption of Larry. Plaintiffs alleged that they did not discover thatthe statements made by defendant regarding Jane Doe's mental health history were false prior tobeing contacted by John Doe.

On February 8, 1993, plaintiffs filed a complaint against defendant. Counts I and II of thecomplaint alleged fraud on behalf of plaintiffs. Count III alleged negligence on behalf of plaintiffs. Count IV alleged negligence on behalf of Jane Roe. Count V alleged breach of contract on behalfof plaintiffs. The relevant allegations of plaintiffs' complaint are set forth as necessary in thediscussion section of this order.

On December 8, 1993, defendant filed a motion to dismiss plaintiffs' complaint. The trialcourt subsequently denied defendant's motion as to counts I through IV of the complaint. However,the trial court granted defendant's motion with regard to count V, the breach of contract claim. Plaintiffs did not seek leave to amend their complaint.

The matter remained pending for approximately five years while the parties conducteddiscovery. On January 22, 1999, defendant filed a motion for summary judgment. Defendantargued, inter alia, that plaintiffs failed to file their complaint within the applicable statue oflimitations, and that plaintiffs could not establish that the alleged fraud or negligence caused theirinjury because at the time Larry was adopted there was no known causal connection between themental condition of Jane Doe and Larry's subsequent mental impairment. Defendant supported itsmotion for summary judgment with the affidavits of several experts regarding the inheritability ofmental illness and the state of knowledge regarding the inheritability of mental illness in 1974.

Plaintiffs filed a response to defendant's motion for summary judgment and filed variousaffidavits in support of their response including affidavits from each plaintiff. Defendantsubsequently moved to strike plaintiffs' affidavits. Plaintiffs filed a response to defendant's motionto strike and attached additional affidavits to their response. The relevant portions of defendant'smotion for summary judgment and plaintiffs' response are set forth in the discussion section of thisorder.

The trial court granted defendant's motion to strike and defendant's motion for summaryjudgment. Plaintiffs subsequently filed a motion to reconsider. The trial court denied plaintiffs'motion to reconsider, and in no. 1-00-0246, plaintiffs timely appealed.

While appeal no. 1-00-0246 was pending, plaintiffs filed a motion to supplement the record. The trial court denied plaintiffs' motion and in no. 1-00-3034, plaintiffs timely appealed. Therelevant circumstances surrounding plaintiffs' motion to supplement the record are set forth in thediscussion section of this order.

Before reaching the merits of this appeal, we must address the question of the contents of therecord. In no. 1-00-3034, plaintiffs contend that the trial court erred when it denied their request tosupplement the record on appeal with the record of the adoption proceedings involving Larry'sbiological sibling, Jerome F., and with the complete transcripts of the depositions of Carol Amadioand Edythe Jastram. After plaintiffs filed their brief raising this issue, they filed a motion in thiscourt to supplement the record on appeal with the juvenile court records of Jerome F. This courtgranted plaintiffs' motion on February, 25, 2002. Accordingly, appeal no. 1-00-3034 is moot to theextent that it addresses the trial court's denial of plaintiffs' motion to supplement the record on appealwith these records. Plaintiffs presented no arguments related to the trial court's failure to supplementthe record with the complete deposition transcripts. The failure to comply with Supreme Court Rule341 and provide this court with a coherent argument supported by citations to the record and relevantauthority waives an issue on appeal. Official Reports Advance Sheet No. 21 (October 17, 2001), R.341(e)(7), eff. October 1, 2001; Hoff v. Mayer, Brown & Platt, 331 Ill. App. 3d 732, 741 (2002). Accordingly, plaintiffs have waived this issue on appeal. Because the only issues presented in appealno. 1-00-3034 are moot or waived, we hereby dismiss that appeal.

Plaintiffs contend that the trial court erred when it dismissed their breach of contract count. We review de novo a motion to dismiss under section 2-615 of the Code of Civil Procedure (735ILCS 5/2-615 (West 1994)). Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 738 (2001). When thesufficiency of a complaint is challenged by a section 2-615 motion, all well-pleaded facts are takenas true and this court must determine whether the allegations of the complaint, when interpreted inlight most favorable to the plaintiff, are sufficient to establish a cause of action upon which reliefmay be granted. Pavlik, 326 Ill. App. 3d at 738.

To plead a cause of action for breach of contract, a plaintiff must allege the existence of acontract, a breach by the defendant, performance of all conditions to be performed by plaintiff, anddamages to plaintiff as a consequence. Disk Jockey Referral Network, Ltd. v. Ameritech Publishingof Illinois, 230 Ill. App. 3d 908, 912 (1992). "Where the action is premised on a contract whichpurportedly has been accepted orally, the plaintiff must specifically set forth the facts supporting thatacceptance." Disk Jockey Referral, 230 Ill. App. 3d at 913. A bare allegation that a contract existedis nothing more than a legal conclusion which may not be admitted as true by a motion to dismiss. Disk Jockey Referral, 230 Ill. App. 3d at 913.

On appeal, plaintiffs argue that their complaint set forth facts establishing offer andacceptance of an oral contract. However, plaintiffs merely cite to the allegedly relevant paragraphsof their complaint and provide no additional argument. For example, plaintiffs do not identify intheir brief who made an offer or the manner in which it was accepted. We have examined theportions of plaintiffs' complaint cited and their brief and find no support for plaintiffs' assertionsregarding the existence of a contract. For example, paragraph 35 of plaintiff's complaint states:

"Under the agreement of March, 1971, Defendants were to conduct an in-depth socialinvestigation concerning any child to be presented to Plaintiffs for placement for adoption,as well as the child's biological parents, and to fully report their findings to Plaintiffs."

Plaintiffs cite this paragraph as an example of facts alleging offer. However, there is nothing in thisallegation of the complaint from which we could determine whether the contract was based on anoffer from defendant such as "we will perform a social investigation" or an offer from plaintiffs suchas "we will pay you to perform a social investigation." Plaintiffs' arguments on appeal provide noassistance in determining which possible interpretation they would ask us to accept. We find similardeficiencies in the paragraphs of the complaint that plaintiffs cite as allegations of acceptance andconsideration. Therefore, we determine that plaintiffs' complaint failed to adequately allege theexistence of a contract. Accordingly, we conclude that the trial court did not err when it dismissedthe contract claim contained in plaintiffs' complaint.

Plaintiffs contend that the trial court erred in limiting discovery and striking plaintiffs'affidavits. Plaintiffs argue that the trial court abused its discretion because it deprived them of anin camera inspection of the redacted documents concerning Larry's mother. Plaintiffs' argumentpresents no coherent legal basis for evaluating the trial court's ruling on this issue. In fact, in theiropening brief, plaintiffs provide no citation to the record from which we could determine what order,if any, the trial court entered with regard to an in camera inspection of these records. Moreover,plaintiffs have provided no citation to relevant authority to support this argument. Accordingly, wefind that plaintiffs have waived this issue on appeal. See Hoff, 331 Ill. App. 3d at 741.

Similarly, we find that plaintiffs have waived most of the remaining arguments raised as partof this contention in their opening brief. Plaintiffs argue that the trial court erred when it refused toopen the court records of Larry's adoption. However, plaintiffs support this argument with nothingmore than a citation to the general standards governing a motion for summary judgment, and provideno citation to any authority which addresses either the confidentiality of adoption records or thecircumstances under which such confidentiality may be breached. Plaintiffs' arguments regardingtheir request to add expert witnesses are similarly lacking in citation to relevant authority. Accordingly, we find that plaintiffs have waived these issues on appeal. See Hoff, 331 Ill. App. 3dat 741.

We believe plaintiffs' final argument in this contention warrants further attention. Plaintiffsargue that the trial court erred when it struck their affidavits. It is perhaps misleading to refer to thisas an argument, because plaintiffs' discussion of this issue in their opening brief consists of nothingmore than the identification of the issue as one of their point headings in their argument section. Defendant nonetheless responds in its brief and argues that the trial court properly struck theaffidavits as violating Supreme Court Rule 191 (145 Ill. 2d R. 191). Plaintiffs, belatedly, addressthis issue in their reply brief. Although plaintiffs have waived this issue by failing to address it intheir opening brief, waiver is a limitation on the parties not on the courts (see A.J. Maggio Co. v.Willis, 316 Ill. App. 3d 1043, 1048 (2000)) and summary judgment is a drastic remedy (Wood v.National Liability & Fire Insurance Co., 324 Ill. App. 3d 583, 585 (2001)). We believe that thequestion of whether the trial court properly struck plaintiffs' affidavits is central to the question ofwhether summary judgment was proper. Accordingly, we believe that the interests of justice weighin favor of considering the merits of this issue and against a strict application of the waiver rule.

The content of affidavits offered in opposition to a motion for summary judgment is governedby Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)). Rule 191 provides in pertinent part:

"Affidavits in support of and in opposition to a motion for summary judgment *** shall bemade on the personal knowledge of the affiants; shall set forth with particularity the factsupon which the claim, counterclaim, or defense is based; shall have attached thereto swornor certified copies of all papers upon which the affiant relies; shall not consist of conclusionsbut of facts admissible into evidence; and shall affirmatively show that the affiant, if swornas a witness, can testify competently thereto." 145 Ill. 2d R. 191(a).

A court's construction of supreme court rules is comparable to the construction of statutes and is aquestion of law that it is reviewed de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002). Likewise, a court's determination of whether an affidavit offered in connection with a motion forsummary judgment complies with Rule 191 is a question of law subject to de novo review. SeeJackson v. Graham, 323 Ill. App. 3d 766, 774 (2001).

In the case before us, plaintiffs filed several affidavits in opposition to defendant's motionfor summary judgment. The original affidavits simply stated that all of the allegations of thecomplaint and the facts section of plaintiffs' brief in opposition to the motion for summary judgmentwere true except as represented on information and belief. We believe that these affidavits werewholly insufficient to meet the standards of Rule 191(a). For example, the affidavits do not state thefacts with particularity and they make no showing that plaintiffs would be competent to testify. Suchaffidavits are generally considered inadequate to defeat a motion for summary judgment. SeeHedrick v. Goodwin Brothers, Inc., 26 Ill. App. 3d 327, 329 (1975). We determine that the trialcourt properly struck the original affidavits filed by plaintiffs.

However, plaintiffs filed additional affidavits in response to defendant's motion to strike theoriginal affidavits. Portions of these additional affidavits suffer from the same deficiencies as theoriginal affidavits. For example, the additional affidavits refer, without particularity, to plaintiffs'ability to testify to the facts contained in the original affidavits, which themselves referred to thefacts contained in the complaint without particularity. However, the additional affidavits do containsome allegations of fact that appear to meet the standards of Rule 191(a). For example, bothplaintiffs aver that they told Edythe Jastram, a representative of defendant that they would not accepta child for adoption whose parents had a history of mental health problems. Accordingly, we findthat at least some portions of the additional affidavits meet the minimum requirements of Rule191(a). Generally, when only portions of an affidavit are improper under Rule 191(a), a trial courtshould only strike the improper portions of the affidavit. Cincinnati Cos. v. West AmericanInsurance Co., 287 Ill. App. 3d 505, 514 (1997). Therefore, we determine that the trial court erredwhen it struck plaintiffs' affidavits in their entirety. However, we will consider only those portionsthat meet the requirements of Rule 191(a) to determine whether the trial court properly grantedsummary judgment in defendant's favor.

Plaintiffs' remaining contentions relate to the proper standard for granting summaryjudgment. Appellate courts apply a de novo standard when reviewing summary judgment rulings.Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Where thereare no genuine issues of material fact, summary judgment is a proper method of disposing of a cause.Smith v. Allstate Insurance Co., 312 Ill. App.3d 246, 251 (1999). Summary judgment is appropriateonly when the pleadings, depositions, admissions, and affidavits on file, if any, show that there isno genuine issue of material fact and that the moving party is entitled to a judgment as a matter oflaw. Smith, 312 Ill. App.3d at 251. In response to a motion for summary judgment, a plaintiff is notrequired to establish his or her case as he or she would at trial, but he or she must present somefactual basis that would arguably entitle him or her to a judgment. Wortel v. Somerset Industries,Inc., 331 Ill. App. 3d 895, 899 (2002).

Plaintiffs contend that the trial court erred when it held that their claim was barred by thestatute of limitations. The parties apparently agree that plaintiffs' complaint was subject to the five-year statute of limitations contained in section 13-205 of the Code of Civil Procedure (735 ICLS5/13-205 (West 1992)).⁽¹⁾ Plaintiffs argue that the statute of limitations did not begin to run until1991, when they were contacted by Larry's biological father. Plaintiffs argue that they did notdiscover that they had been injured as the result of fraud until they learned that the statements madeto them regarding the health of Larry's biological mother were false. Defendant responds thatplaintiffs should have known of their injury in 1976 when they discovered Larry's impairment. Webelieve that this issue is resolved by this court's recent opinion in Lubin v. Jewish Children's Bureauof Chicago, 328 Ill. App. 3d 169 (2002).

The Lubin case involved the same defendant in a factual scenario strikingly similar to the onepresented by the case at bar. In Lubin, the plaintiffs adopted a child through defendant in 1960. When the child was 13 years old she was diagnosed with schizophrenia. In 1997, the plaintiffsrequested medical records from defendant, and were informed that the birth mother suffered fromemotional problems and had been in treatment. The plaintiffs alleged that they had informeddefendant that they would not accept a child for adoption whose parents had known mental,intellectual, or emotional problems and filed a complaint against defendant sounding in fraud. Defendant moved to dismiss the complaint based on the statute of limitations. The trial court heldthat the complaint was barred by the statute of limitations, and the reviewing court reversed. Lubin,328 Ill. App. 3d at 174-75.

Generally, a cause of action accrues under the statute when the plaintiff " 'knew or reasonablyshould have known that it was injured and that the injury was wrongfully caused.' " Lubin, 328 Ill.App. 3d at 171-72, quoting Superior Bank FSB v. Golding, 152 Ill. 2d 480, 488 (1992). The Lubincourt observed that although the plaintiffs attempted to reduce the risks that their child woulddevelop a mental illness by requesting a child from a family with no known mental illnesses, evenchildren from such families sometimes develop severe mental problems. Lubin, 328 Ill. App. 3d at174. The court held that, accordingly, when the child developed schizophrenia, that developmentdid not conclusively prove that defendant had acted negligently or deceived the plaintiffs at the timeof the adoption. Lubin, 328 Ill. App. 3d at 174. The Lubin court concluded that whether the child'sdevelopment of schizophrenia was sufficient to impose on the plaintiffs a duty to inquire whetherdefendant had acted negligently or fraudulently and when the cause of action accrued were issuesfor the trier of fact to determine. Lubin, 328 Ill. App. 3d at 174.

We believe that a similar analysis applies to the case before us. In their affidavits, plaintiffsaverred that they did not learn that the representations made by defendant regarding the health ofLarry's biological mother were false until 1991, when they were contacted by Larry's biologicalfather. Plaintiffs filed suit within five years of this date. However, plaintiffs learned that Larry wassuffering from a mental illness many years earlier. Like the Lubin court, we do not believe that wecan conclude as a matter of law that plaintiffs were placed on notice that they had been injured or,more precisely, that their injury was wrongfully caused, when they discovered that Larry wassuffering from a mental illness. The gist of plaintiffs' fraud and negligence claims against defendantis that defendant made a false statement regarding Larry's mother's health. When Larry began toexhibit signs of mental illness it was possible that his illness was one of those cases that arisewithout any family history of mental illness. It was also possible that Larry's mother had a historyof mental illness but that the information she had given to defendant was false or misleading. Ineither case, plaintiffs would have no cause of action against defendant for fraud because defendantwould not have made a false statement. Accordingly, we cannot conclude, as a matter of law, thatthe manifestation of Larry's mental illness placed plaintiffs on notice that they had been wrongfullyinjured. Therefore, the well-pleaded allegations of the complaint establish that the injury and theknowledge that it was wrongfully caused indicate that the statute of limitations was met.

Plaintiffs finally contend that the trial court erred when it held that they had not establisheda cause of action for fraud and that the trial court erred when it held that they had not established acause of action for negligent misrepresentation. We believe that these two contentions are so closelyrelated that they can be addressed together. Causes of action for misrepresentation generally fall intotwo categories, fraudulent misrepresentation and negligent misrepresentation. The elements of acause of action for fraudulent misrepresentation are: (1) a false statement of material fact; (2) knownor believed to be false by the party making it; (3) intent to induce the other party to act; (4) actionby the other party in reliance on the truth of the statement; and (5) damage to the other party resultingfrom such reliance. Soules v. General Motors Corp., 79 Ill. 2d 282, 286 (1980). The elements ofa cause of action for negligent misrepresentation are similar and are: (1) a false statement of materialfact, (2) carelessness or negligence in ascertaining the truth of the statement by the party making it,(3) an intention to induce the other party to act, (4) action by the other party in reliance on the truthof the statement, and (5) damage to the other party resulting from such reliance, (6) when the partymaking the statement is under a duty to communicate accurate information. Fox Associates Inc. v.Robert Half International, Inc., 334 Ill. App. 3d 90, 94 (2002). The two torts differ only in themental state required; in fraudulent misrepresentation the defendant must know that the statementis false, while in negligent misrepresentation the defendant need only be negligent in ascertainingthe truth of the statement. City of Chicago v. Michigan Beach Housing Co-op, 297 Ill. App. 3d 317,323 (1998).

Plaintiffs attached numerous documents to their brief in opposition to defendant's motion forsummary judgment. One document was a copy of defendant's file regarding Larry's adoption whichincluded the following statement about Larry's biological mother:

"This woman has a history of physical complaints seemingly often hysterical in origin. Thereis a history of epileptic seizures, said by doctors to be self-induced. History of psychiatrichospitalizations. Dx: hysterical character disorder. History of amphetamine addiction."

The document also indicated that Larry's biological mother was farsighted and had taken numerousmedications. Similar statements were contained at several other locations within defendant's records. However, in a letter to plaintiffs, defendant made the following statement regarding Larry'sbiological mother: "She wears glasses for farsightedness, has no known allergies, is in good physicalhealth." We believe that a comparison of these two statements is sufficient to create a question ofmaterial fact as to whether the statement made to plaintiffs was false. We further believe that aquestion of fact exists as to whether when defendant made the statement it did so knowingly ornegligently.

The parties' arguments on appeal center largely on the fifth element of each cause of actionand revolve around the requirement that a plaintiff's injuries must be caused by themisrepresentation. Defendant argues that at the time Larry was adopted it was not believed thatmental illness was inheritable. Defendant further argues that, accordingly, it was not foreseeable thatplaintiffs could be injured by a false statement regarding the biological mother's mental health, andthat the false statement could not be the proximate cause of plaintiffs' injuries. Plaintiffs argue thatthey need only demonstrate that they would not have adopted Larry absent the allegedly falsestatement.

Defendant cites several fraud cases in support of its argument. See State Security InsuranceCo. v. Frank B. Hall & Co., 258 Ill. App. 3d 588 (1994); Spiegel v. Sharp Electronics Corp., 125 Ill.App. 3d 897 (1984); Shah v. Chicago Title & Trust Co., 119 Ill App. 3d 658 (1983). In StateSecurity, the reviewing court held: "We have consistently and emphatically held that plaintiffs'injuries in fraud actions must directly and proximately result from defendants' misrepresentationsand cannot be assessed upon mere speculation or hypothetical assumptions." State Security, 258 Ill.App. 3d at 592.

An adoption creates a parent-child relationship where none existed before and alters foreverthe lives of both the child and the adoptive parents. We recognize the precedential value of priorcases discussing fraudulent misrepresentation in commercial settings. However, an adoption agencyinterjects itself into a process that alters permanently the structure of families and affectsfundamental human relationships. We are loathe to adopt a view of causation that imposes on theparticipants in such an important process nothing more than the morals of the marketplace. SeeMichael J. v. County of Los Angeles, Department of Adoptions, 201 Cal. App. 3d 859, 875, 247 Cal.Rptr. 504, 513 (1988) ("As trustees of the child's destiny the [adoption] agency was obligated to actwith morals greater than those found in a purveyor's common marketplace.") Accordingly, webelieve that our analysis of the causation issue is better served by considering the case law that hasdeveloped around the adoption process itself.

The leading case on "wrongful adoption" in Illinois, is Roe v. Catholic Charities of theDiocese of Springfield Illinois, 225 Ill. App. 3d 519 (1992). Although many cases refer to "wrongfuladoption," we recognize, as the Catholic Charities court did, that wrongful adoption is not a separatespecies of tort, but is instead nothing more than a phrase that encompasses the application of varioustraditional tort principles to cases arising in an adoption setting. See Catholic Charities, 225 Ill. App.3d at 524. The Catholic Charities case involved three adopted children and three sets of adoptiveparents. In each case, the adoptive parents alleged that they requested a "normal, healthy" child andthat they were told that their particular child was a normal child who only needed lots of love. However, in each case, the defendant adoption agency knew the child had exhibited abnormal orviolent behavior and two of the children had received psychiatric treatment. The children continuedto display abnormal behavior after they were adopted and the adoptive parents incurred extraordinaryexpenses in providing treatment for the children. The adoptive parents subsequently filed claimsagainst the adoption agency alleging fraud and negligent misrepresentation.

The Catholic Charities court examined precedents from several other jurisdictions andconcluded that fraud and negligent misrepresentation were valid causes of action against an adoptionagency arising out of false statements made in connection with an adoption. Catholic Charities, 225Ill. App. 3d at 529, 538. In reference to the plaintiffs' fraud claims the reviewing court observed:

"We join with these learned courts and require no guarantee of the future health andhappiness of the adopted children. To do so would place an unbearable burden uponadoption agencies. We merely require adoption agencies to follow the law. Although at thetime of the adoptions there was no statute requiring disclosure, the agency was prohibitedfrom committing fraud." Catholic Charities, 225 Ill. App. 3d at 529, citing Michael J., 201Cal. App. 3d at 875, 247 Cal. Rptr. at 513; Burr v. Board of County Commissioners of StarkCounty, 23 Ohio St. 3d 69, 77, 491 N.E. 2d 1101, 1109 (1986).

In response to the argument that imposing fraud liability on adoption agencies would make theplacement of handicapped children more difficult, the Catholic Charities court held that a policy oftruth and straightforward dealing, rather than fraud, would actually help with the placement ofhandicapped children in appropriate homes. Catholic Charities, 225 Ill. App. 3d at 529. Thereviewing court observed:

"It requires a person of special strength and strong values to adopt a handicapped child. Thisperson will go into the adoption with eyes open, presumably emotionally and financially ableto support a handicapped child. These parents will be prepared to accept the children as theyare. In addition, if the adoptive parents know of any potential problems with a child, theycan see to it that the child receives appropriate treatment as soon as possible. Early detectionand treatment may lead to a greater chance of cure or effective treatment. The childrendeserve the opportunity for early treatment." Catholic Charities, 225 Ill. App. 3d at 529.

We believe that this passage reveals a central concern in adoption cases, i.e., that fraud by adoptionagencies should be discouraged because it deprives the adoptive parents of the right to make aninformed decision regarding the potential risks involved in the adoption of a child.

We believe that our analysis of the causation element should be guided by the same concernregarding an adoptive parent's right to make an informed decision. Accordingly, we conclude thatin order to establish the causation element in a fraudulent misrepresentation or negligentmisrepresentation cause of action an adoptive parent must establish that he asked a question that arational parent would consider relevant to gauging the future risks of serious mental of physicalillness, and that but for the adoption agency's false statement regarding that risk they would not haveadopted the child.

Plaintiffs affidavits each averred:

"That prior to the placement of [Larry] for adoption with me and my [spouse], I told[Edythe Jastram], inter alia, that my [spouse] and I would not accept for placement foradoption any child whose biological parents, either of them, had a history of mental healthproblems or intellectual disorders, or serious medical problems, and [Edythe Jastram] agreedto these conditions. *** I further state that I would not have adopted [Larry] *** had Iknown of [Larry's] biological mother's mental health and medical background."

We believe that these assertions of fact are sufficient to establish the causation element of afraudulent or negligent misrepresentation claim as we discussed above. Plaintiffs asked a questionregarding the health of Larry's biological parents. A jury could conclude that this question was ofthe type a reasonable parent would rely upon when weighing the risks that a child would laterdevelop a serious health problem. As we observed above, plaintiffs presented facts from which ajury could conclude that defendant made a false statement in response to that question. Finally,plaintiffs asserted that they would not have adopted Larry if they had received a truthful responseto their inquiry.

Defendant argues that plaintiffs presented insufficient evidence from which a jury could findan intent to deceive. Defendant argues that because it did not know Larry's mother's condition wasinheritable, and because plaintiffs cannot prove that Larry inherited his condition, there can be nointent to deceive. We disagree. The evidence plaintiffs presented supports the inference thatdefendant knew they would not accept a child for adoption from a parent with a history of mentalillness. The evidence also supports the inference that defendant made a false statement regardingthe mental health of Larry's mother. We believe that this evidence is sufficient to create a questionof material fact regarding whether defendant intended to deceive plaintiffs regarding the biologicalmother's mental health. This evidence does not conclusively establish that defendant did so becauseit intended to burden plaintiffs with a mentally ill child. However, defendant has provided us withno citation to authority that requires that the defendant in a fraud action intend to cause the injurycomplained of, and our own research has uncovered none. We do not believe that it is necessary forplaintiffs to establish that defendant intended the consequences of its fraud in order to establish anintent to deceive. Defendant knew that plaintiffs would not accept a child from a mentally ill parentand made a false statement regarding the parent's mental health. The intent to deceive can beinferred from the fact that a person knowingly makes a false statement when made for the purposeof inducing the one to whom the statement is made to act. Szajna v. General Motors Corp., 115 Ill.2d 294, 322-23 (1987). We believe that whether defendant made the false statement for the purposeof inducing plaintiffs to act is a question of fact for the jury to decide.

In conclusion, we hold that a fraudulent or negligent misrepresentation claim against anadoption agency is viable when the agency makes a false statement that affects the adoptive parents'right to make an informed decision. We find that in the case before us, plaintiffs presented sufficientevidence to create a question of material fact about whether defendant made such a false statementand whether they were injured by the false statement. Therefore, we conclude that the trial courterred when it granted defendant's motion for summary judgment. Accordingly, we reverse thejudgment of the trial court and remand this matter for further proceedings consistent with this order.

As a final note, we observe that plaintiffs also included a count in their complaint broughton behalf of their daughter, Jane, whom they adopted through defendant after they adopted Larry. This count alleged that defendant breached its duty not to place her for adoption with a family whohad adopted a "non-normal" child. We believe that this count raises issues distinct from thoseimplicated in the remaining counts. However, plaintiffs' brief fails to distinguish between the countsbrought on their own behalf and the count brought on Jane's behalf and presents no argumentregarding the validity of Jane's negligence claim. Accordingly, we find that plaintiffs have waivedthe issue on appeal (see Hoff, 331 Ill. App. 3d at 741), and we affirm the trial court's order grantingsummary judgment in favor of defendant on count IV of plaintiffs' complaint.

In appeal no. 1-00-0246, we conclude that the trial court did not err when it dismissedplaintiffs' breach of contract claim. However, we conclude that plaintiffs presented sufficientevidence to create a question of material fact regarding their fraudulent and negligentmisrepresentation claims. Therefore, we conclude that the trial court erred when it granted defendantsummary judgment on those counts. We further conclude, that plaintiffs have waived the issue ofwhether the trial court erred when it granted defendant summary judgment on the count brought onJane's behalf, and we affirm the trial court's order granting summary judgment on that count. Forthe foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part andreversed in part. This matter is remanded for further proceedings consistent with this order.

In appeal no. 1-00-3034, we conclude that the issue raised by plaintiffs' brief is moot and thatthe remaining issues have been waived on appeal by plaintiffs' failure to present arguments. Thisappeal is dismissed.

No. 1-00-0246--Affirmed in part, reversed in part. Cause remanded.

No. 1-00-3034--Appeal dismissed.

O'BRIEN, P.J., and GALLAGHER, J., concur.

1. Defendant cites this code section in its arguments regarding the statute of limitations. Plaintiffs have managed to craft their statute of limitations arguments without any citation to theapplicable statute of limitations. However, we assume that their failure to identify a differentsection of the code in response to defendant's arguments constitutes an agreement that the five-year statute of limitations is applicable.