Cripe v. Leiter
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-1043
Case Date: 07/10/1997
No. 3--96--1043
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
ROBERTA L. CRIPE, Guardian of the ) Appeal from the Circuit
Adult and Conservator of the ) Court of the tenth
Estate of ROBERTA A. SCHMITZ, ) Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellant, )
v. ) No. 92 L 533
)
THOMAS E. LEITER and THE LEITER )
GROUP, an Illinois Professional )
Corporation, ) Honorable
) John A. Barra
Defendants-Appellees. ) Judge, Presiding
_________________________________________________________________
JUSTICE MICHELA delivered the Opinion of the court:
________________________________________________________________
Plaintiff, as guardian and conservator of Roberta Schmitz
(Schmitz) and her estate, filed an action against defendants in
the circuit court of Peoria County seeking damages for consumer
fraud, common law fraud, breach of fiduciary duty, legal
malpractice and constructive fraud. Plaintiff appeals the
court's dismissal with prejudice of her Consumer Fraud Act (the
Act) (815 ILCS 505/1 et seq. (West 1994)) counts.
Facts
In 1992, defendants began representing Schmitz for the
purpose of transferring her two irrevocable trusts from First
National Bank of Peoria to South Side Trust and Savings Bank of
Peoria. Defendants also defended Schmitz in a guardianship
proceeding filed by plaintiff.
Counts I and VI of plaintiff's complaint alleged that in
violation of the Act, defendants made misrepresentations on legal
invoices by setting forth charges for time not actually spent in
representing Schmitz as her personal attorney and as her trust
attorney. Defendants admit that they were to bill Schmitz "at
the rate of $125.00 per hour for the performance of all such
legal services."
Defendants filed a motion to dismiss and the court ruled
that, as a matter of law, the Act does not cover strictly legal
services or the billing of such, and it dismissed counts I and VI
with prejudice. The court denied defendants' motion to
reconsider, and this appeal follows.
Analysis
Plaintiff contends that the court erred in finding that
counts I and VI do not fall under the purview of the Act and
dismissing those counts with prejudice.
On review of a motion to dismiss, a court must accept as
true all well pleaded allegations and view them in the light most
favorable to plaintiff. The complaint must contain sufficient
direct or inferential allegations of all material elements in
order to recover under a legal theory. Dismissal is appropriate
when it is clearly apparent that plaintiff can prove no facts in
support of his claim upon which relief may be granted. Zinser v.
Rose, 245 Ill. App. 3d 881, 883 (3d Dist. 1993).
The Act provides that any person who suffers damage as a
result of any other persons' unfair or deceptive practices in the
sale or distribution of any services may bring an action for
actual damages or for any other relief which the court deems
proper. 815 ILCS 502/2 (West 1994); 815 ILCS 505/10a(a) (West
1994).
This court has held that the Act should be liberally
construed to effect its purposes, which is to "eradicate all
forms of deceptive and unfair business practices and to grant
appropriate remedies to defrauded consumers. [Citations.]"
Malooley v. Alice, 251 Ill. App. 3d 51, 56 (3d Dist. 1993).
In dismissing plaintiff's counts I and VI, the court relied
upon Frahm v. Urkovich, 113 Ill. App. 3d 580 (1983), which quoted
Goldfarb v. Virginia State Bar, 421 U.S. 773, 44 L. Ed. 2d 572,
95 S.C. 2004 (1975)(business aspects of the legal profession, i.
e. setting minimum fee schedules, were subject to the Sherman
Act.)
In Frahm, the attorney misrepresented and failed to disclose
certain facts which resulted in the plaintiffs losing their
entire investment in a real estate transaction. The court in
Frahm, 113 Ill. App. 3d at 585-86 affirmed the dismissal of a
count under the Act, finding that the use of the phrase "trade
and commerce" in the Act did not include the actual practice of
law, i. e. business aspects of the legal profession occurring
during the actual practice of law are not subject to the Act.
Frahm predates the 1990 amendment to the Act which eliminated the
requirement that a claimant allege a public injury in order to
state a claim under the Act.
Plaintiff asserts that the deceptive billing practice
allegations against defendants fall within the commercial aspects
of the legal profession, and do not involve the actual practice
of law. Plaintiff maintains that the only skills required in
billing are the ability to tell time and accurately report the
amount of time spent in performing legal services.
In support of this assertion, plaintiff cites Gadson v.
Newman, 807 F. Supp. 1412, 1417 (C.D. Ill. 1992), wherein the
court interpreted the Frahm and Goldfarb decisions, stating:
"Given that the Frahm court quoted Goldfarb, this court
assumes that the determination of a minimum fee schedule for
attorneys is not the 'practice of law,' but instead is a
'business aspect' of law, subject to regulation. We further
interpret Frahm to mean that 'practice of law' exception
includes activities directly related to the lawyer's
professional training or where the lawyer is already subject
to regulation from his or her professional organizations."
Gadson, 807 F. Supp. at 1417. See also Pucci v. Litwin, 828
F. Supp. 1285, 1300 (N.D. Ill. 1993)(not all client claims
against attorney's relate to provisions of legal services.)
Applying this interpretation of Frahm and Goldfarb, the
Gadson court held that the medical profession should not be given
a blanket exemption under the Act in regard to the business
aspect of its profession. Plaintiff asserts that the reasoning
in Gadson should be applied to this case, which would result in
the legal profession being denied a blanket exemption under the
Act. We agree.
A court may not depart from the plain meaning and language
of a statute by reading into it exceptions, limitations, or
conditions not expressly stated. Solich v. Portes Cancer
Prevention Center, 158 Ill. 2d 76, 83 (1994). Although the Act
specifically excludes agents of the media and real estate brokers
from its provisions (815 ILCS 505/10(b)(West 1994)), it does not
provide an exemption for the legal profession. Frahm correctly
concludes that the Act does not regulate the "practice of law"
wherein a lawyer is subject to regulation by the Supreme Court of
Illinois; however the "business aspects" of the law practice are
not exempt from the Act. We thus conclude that the "business
aspects" of the practice of law are not exempt from the Act.
Therefore, we reverse that part of the court's order
dismissing with prejudice counts I and VI of the plaintiff's
complaint and remand for further proceedings.
Reversed and remanded.
LYTTON, P.J. and SLATER, J., concurred.
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies