A cause of action will not be dismissed under section 2-615 unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. ( Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App.3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. 158 Ill. App.3d at 187.
Accord Richmond v. Blair, 142 Ill.App.3d 251, 94 Ill.Dec. 564, 488 N.E.2d 563 (1st Dist. 1985) (real estate broker meets "business of supplying information" test); Duhl v. Nash Realty, Inc., 102 Ill. App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267 (1st Dist. 1982) (real estate brokers in the course of their business supplied information to clients to guide them in business of buying and selling house). But see Century Universal Enter., Inc. v. Triana Dev. Corp., 158 Ill.App.3d 182, 205, 110 Ill.Dec. 229, 243, 510 N.E.2d 1260, 1274 (2d Dist. 1987). ("One may infer that the sellers were also in the business of providing information specifically about the condition of the real estate.") (dictum). Moorman's progeny have followed a meandering path. Compare Lehmann v. Arnold, 137 Ill.App.3d 412, 420, 91 Ill.Dec. 914, 920, 484 N.E.2d 473, 479 (4th Dist. 1985) ( Moorman not controlling in negligent misrepresentation cases because it did not explicitly overrule Rozny) with Century Universal, 158 Ill.App.3d at 205, 110 Ill.Dec. at 243, 510 N.E.2d at 1274 (rejecting contention that Moorman is inapplicable in negligent misrepresentation case).
In Allcare, Inc. v. Bork, 176 Ill. App.3d 993, 126 Ill.Dec. 406, 412-13, 531 N.E.2d 1033, 1039-40 (1st Dist. 1988), the First Appellate District stated that "recent case law construing [the CFDBPA] convinces us that, as a procedural matter, the statute was intended to provide redress only to consumers generally, not to businesses injured by other businesses where they are not consumers of each other's goods or services." In addition, in Century Universal Enter., Inc. v. Triana Dev. Corp., 158 Ill. App.3d 182, 110 Ill.Dec. 229, 239, 510 N.E.2d 1260, 1270 (2d Dist. 1987), the Second Appellate District held that "the disputes . . . between businessmen [who have contracted together but] who are not consumers of each other's goods or services, did not fall within the ambit of the CFDBPA."
Those allegations are presumed to be true for purposes of determining whether Parkview established one or more causes of action. Century Universal Enterprises, Inc. v. Triana Development Corp., 158 Ill. App.3d 182, 187, 510 N.E.2d 1260 (1987) ( Century Universal). The evidence referred to by the parties is irrelevant to this determination. Parkview adequately alleges that: Hartmann presented itself as an expert on the environmental cleanup issue; Parkview informed Hartmann it was relying on its determination of the projected expenses in deciding whether to purchase the Irving Park property; Parkview negotiated the purchase price according to the numbers given to it by Hartmann, and paid more than it should have for the property because Hartmann dramatically underestimated the cost of the cleanup; and Parkview never would have purchased the property had it known the full extent of environmental damage.
Thus, to determine whether the Act applies, we must examine the present facts in light of prior case law. According to the parties, the cases of Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App.3d 524, and Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App.3d 182, define the scope of the Act's protections. In Century Universal, which involved a dispute between a financier and developer over a contract, we held that disputes between businessmen over a contract were not covered by the Act where the businessmen were not consumers of each other's goods or services. ( Century Universal, 158 Ill. App.3d at 199.)
They are statements of puffery, since they do not misrepresent existing facts that can be proven false. In support, CCorp cites Century Universal Enterprises, Inc. v. Triana Development Corp., 510 N.E.2d 1260, 1273 (Ill. App. Ct. 1987), in which the Court affirmed that statements that a contracting party would use its best efforts in the management and operation of the project were "mere puffery" and not actionable in fraud. However, unlike the capability to perform a service, "best efforts," are not measurable or quantifiable. CCorp also cites Spiegel v. Sharp Electronics Corp, 466 N.E.2d 1040, 1044 (Ill. App. Ct. 1984), where the Court affirmed dismissal of a fraud claim based on advertised statements that the copier leased by the plaintiff would make "picture perfect copies" and "reduce error and paper waste.
The court held that the Consumer Fraud Act does not address competitive tactics among business competitors. Defendants 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.
We hold that the Act may in a proper case apply to banking practices. Defendant further contends, however, that the Act does not apply to disputes between businessmen in which neither is a consumer of the other's services, citing Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App.3d 182. The parties in Century Universal were parties to a joint venture. The court held that the joint venturers were not consumers of each other's services, but were to be treated as partners. Century Universal, 158 Ill. App.3d at 199.
Rev. Stat. 1989, ch. 110, par. 2-615) unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. ( Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App.3d 524, 527; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 Ill. App.3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts.
ICFA claims may not be available when the business relationship is more like that of "partners" or "joint venturers" and not "consumers of each other's services." See Cragin Fed. Bank , 206 Ill.Dec. 559, 645 N.E.2d at 566, citing Century Universal Enterprises, Inc. v. Triana Dev. Corp. , 158 Ill.App.3d 182, 110 Ill.Dec. 229, 510 N.E.2d 1260 (1987). In applying the consumer nexus test, Illinois courts have observed that "there is no inherent consumer interest implicated in a construction contract between a general contractor and a subcontractor," Peter J. Hartmann Co. v. Capital Bank and Trust Co. , 296 Ill.App.3d 593, 230 Ill.Dec. 830, 694 N.E.2d 1108, 1117 (1998) (citation omitted), a situation similar to the web of contracts that comprise the card payment system at issue here.