No. 3--07--0571
_________________________________________________________________ Filed October 23, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
FIRST NATIONAL BANK OF OTTAWA, ) Appeal from the Circuit Court a National Banking Corporation, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellant, ) ) v. ) ) No. 03--AR--1718 ROSEMARY DILLINGER, CLIFFORD ) MOUNTS, and RUB CHEVROLET BUICK ) OLDSMOBILE, INC., an Illinois ) Corporation, ) Honorable ) James E. Garrison, Defendants-Appellees. ) Judge, Presiding. _________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court: _________________________________________________________________
The plaintiff, First National Bank of Ottawa, sued the
defendants, Rosemary Dillinger, Clifford Mounts, and Rub
Chevrolet Buick Oldsmobile, Inc. (Rub Chevrolet), in connection
with the sale of a vehicle. The circuit court entered judgment
against Dillinger and Mounts for breach of contract, and against
Rub Chevrolet on two counts of fraudulent misrepresentation. The
court also found Rub Chevrolet not liable to the plaintiff on two
counts of breach of contract. On appeal, the plaintiff argues
that the circuit court erred when it found that Rub Chevrolet was not liable to the plaintiff on two counts of breach of contract.
We reverse in part and remand with directions.
FACTS
The undisputed evidence presented at trial established the
following facts. In 2002, Mounts and Dillinger contracted to
purchase a pickup truck from Rub Chevrolet. Mounts told a Rub
Chevrolet employee that he made $9 per hour at his job. The
employee was also informed that Dillinger's income consisted of
approximately $1,200 per month from Social Security disability
benefits. Nevertheless, the employee had Mounts and Dillinger
sign a blank credit application and falsified the application by
misrepresenting the annual incomes of Mounts and Dillinger as
$21,600 and $30,000, respectively. The falsified credit
application was faxed to the plaintiff. Believing that the
credit application was truthful, the plaintiff agreed to purchase
the financing contract. In 2003, Mounts and Dillinger defaulted
on their monthly payments, and the truck was repossessed.
In 2004, the plaintiff filed a five-count complaint against
the defendants. Count I alleged that Mounts and Dillinger
breached their contract with the plaintiff. Counts II and III
alleged that Rub Chevrolet fraudulently misrepresented the
incomes of Mounts and Dillinger.
Counts IV and V, which are the subject of this appeal,
alleged that Rub Chevrolet breached its contract with the
2 plaintiff. The contract between the plaintiff and Rub Chevrolet
contained a warranty that the sale of the vehicle "was completed
in accordance with all applicable federal and state laws and
regulations." Counts IV and V alleged that the sale of the
vehicle violated section 17--24 of the Criminal Code of 1961
(Code) (720 ILCS 5/17--24 (West 2002)), which provides, inter
alia, that one commits wire fraud when one "devises or intends to
devise a scheme or artifice to defraud or to obtain money or
property by means of false pretenses, representations, or
promises," and transmits a document in furtherance of the scheme.
The plaintiff alleged that Rub Chevrolet participated in a scheme
to defraud the plaintiff of money based on its misrepresentations
of the incomes of Mounts and Dillinger.
After a bench trial, the circuit court found that Mounts and
Dillinger breached their contract with the plaintiff. In finding
Rub Chevrolet liable on two counts of fraudulent
misrepresentation, the court found that the Rub Chevrolet
employee had Mounts and Dillinger sign a blank credit
application, then falsified the incomes of Mounts and Dillinger
to induce the plaintiff to purchase the financing contract.
However, the court found that Rub Chevrolet did not partake in a
"scheme or artifice to defraud" the plaintiff as defined in
section 17--24 of the Code (720 ILCS 5/17--24 (West 2002)) and,
therefore, did not breach its contract with the plaintiff. The
3 plaintiff appealed from the judgment entered in favor of Rub
Chevrolet on counts IV and V.
ANALYSIS
On appeal, the plaintiff argues that the circuit court erred
when it found that defendant Rub Chevrolet was not liable to the
plaintiff on two counts of breach of contract. Specifically, the
plaintiff contends that the circuit court erred when it found
that defendant Rub Chevrolet did not partake in a scheme to
defraud the plaintiff as defined in section 17--24 of the Code
(720 ILCS 5/17--24 (West 2002)).
Because this case involves the interpretation of a statute
and the application of the statute to undisputed facts, we review
the circuit court's judgment under the de novo standard.
Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 890 N.E.2d 934
(2008).
Initially, we note that the defendants have not filed an
appellee's brief with this court. Generally, we will not act as
an advocate for an appellee who fails to file a brief. See First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
128, 345 N.E.2d 493 (1976). However, when a record is simple and
the claimed error can easily be decided without the aid of an
appellee's brief, as is the case here, we should decide the
appeal's merits. First Capitol Mortgage Corp., 63 Ill. 2d 128,
345 N.E.2d 493.
4 Section 17--24(a)(1) of the Code (720 ILCS 5/17--24(a)(1)
(West 2002)) provides that one commits wire fraud when one:
"(A) devises or intends to devise a scheme or artifice
to defraud or to obtain money or property by means of false
pretenses, representations, or promises; and
(B)(i) transmits or causes to be transmitted from
within this State ***
* * *
any writings, signals, pictures, sounds, or electronic or
electric impulses by means of wire, radio, or television
communications for the purpose of executing the scheme or
artifice."
We note that the statutes do not specifically define "scheme."
"In the absence of a statutory definition, words are to be
given their ordinary and commonly understood meaning." Provena
Health v. Illinois Health Facilities Planning Board, 382 Ill.
App. 3d 34, 44-45, 886 N.E.2d 1054, 1064 (2008). Black's Law
Dictionary defines "scheme" as "[a]n artful plot or plan, usu. to
deceive others." Black's Law Dictionary 1346 (7th ed. 1999).
The Random House Dictionary of the English Language defines
"scheme" as "an underhand plot; intrigue." The Random House
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No. 3--07--0571
_________________________________________________________________ Filed October 23, 2008 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
FIRST NATIONAL BANK OF OTTAWA, ) Appeal from the Circuit Court a National Banking Corporation, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellant, ) ) v. ) ) No. 03--AR--1718 ROSEMARY DILLINGER, CLIFFORD ) MOUNTS, and RUB CHEVROLET BUICK ) OLDSMOBILE, INC., an Illinois ) Corporation, ) Honorable ) James E. Garrison, Defendants-Appellees. ) Judge, Presiding. _________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court: _________________________________________________________________
The plaintiff, First National Bank of Ottawa, sued the
defendants, Rosemary Dillinger, Clifford Mounts, and Rub
Chevrolet Buick Oldsmobile, Inc. (Rub Chevrolet), in connection
with the sale of a vehicle. The circuit court entered judgment
against Dillinger and Mounts for breach of contract, and against
Rub Chevrolet on two counts of fraudulent misrepresentation. The
court also found Rub Chevrolet not liable to the plaintiff on two
counts of breach of contract. On appeal, the plaintiff argues
that the circuit court erred when it found that Rub Chevrolet was not liable to the plaintiff on two counts of breach of contract.
We reverse in part and remand with directions.
FACTS
The undisputed evidence presented at trial established the
following facts. In 2002, Mounts and Dillinger contracted to
purchase a pickup truck from Rub Chevrolet. Mounts told a Rub
Chevrolet employee that he made $9 per hour at his job. The
employee was also informed that Dillinger's income consisted of
approximately $1,200 per month from Social Security disability
benefits. Nevertheless, the employee had Mounts and Dillinger
sign a blank credit application and falsified the application by
misrepresenting the annual incomes of Mounts and Dillinger as
$21,600 and $30,000, respectively. The falsified credit
application was faxed to the plaintiff. Believing that the
credit application was truthful, the plaintiff agreed to purchase
the financing contract. In 2003, Mounts and Dillinger defaulted
on their monthly payments, and the truck was repossessed.
In 2004, the plaintiff filed a five-count complaint against
the defendants. Count I alleged that Mounts and Dillinger
breached their contract with the plaintiff. Counts II and III
alleged that Rub Chevrolet fraudulently misrepresented the
incomes of Mounts and Dillinger.
Counts IV and V, which are the subject of this appeal,
alleged that Rub Chevrolet breached its contract with the
2 plaintiff. The contract between the plaintiff and Rub Chevrolet
contained a warranty that the sale of the vehicle "was completed
in accordance with all applicable federal and state laws and
regulations." Counts IV and V alleged that the sale of the
vehicle violated section 17--24 of the Criminal Code of 1961
(Code) (720 ILCS 5/17--24 (West 2002)), which provides, inter
alia, that one commits wire fraud when one "devises or intends to
devise a scheme or artifice to defraud or to obtain money or
property by means of false pretenses, representations, or
promises," and transmits a document in furtherance of the scheme.
The plaintiff alleged that Rub Chevrolet participated in a scheme
to defraud the plaintiff of money based on its misrepresentations
of the incomes of Mounts and Dillinger.
After a bench trial, the circuit court found that Mounts and
Dillinger breached their contract with the plaintiff. In finding
Rub Chevrolet liable on two counts of fraudulent
misrepresentation, the court found that the Rub Chevrolet
employee had Mounts and Dillinger sign a blank credit
application, then falsified the incomes of Mounts and Dillinger
to induce the plaintiff to purchase the financing contract.
However, the court found that Rub Chevrolet did not partake in a
"scheme or artifice to defraud" the plaintiff as defined in
section 17--24 of the Code (720 ILCS 5/17--24 (West 2002)) and,
therefore, did not breach its contract with the plaintiff. The
3 plaintiff appealed from the judgment entered in favor of Rub
Chevrolet on counts IV and V.
ANALYSIS
On appeal, the plaintiff argues that the circuit court erred
when it found that defendant Rub Chevrolet was not liable to the
plaintiff on two counts of breach of contract. Specifically, the
plaintiff contends that the circuit court erred when it found
that defendant Rub Chevrolet did not partake in a scheme to
defraud the plaintiff as defined in section 17--24 of the Code
(720 ILCS 5/17--24 (West 2002)).
Because this case involves the interpretation of a statute
and the application of the statute to undisputed facts, we review
the circuit court's judgment under the de novo standard.
Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 890 N.E.2d 934
(2008).
Initially, we note that the defendants have not filed an
appellee's brief with this court. Generally, we will not act as
an advocate for an appellee who fails to file a brief. See First
Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
128, 345 N.E.2d 493 (1976). However, when a record is simple and
the claimed error can easily be decided without the aid of an
appellee's brief, as is the case here, we should decide the
appeal's merits. First Capitol Mortgage Corp., 63 Ill. 2d 128,
345 N.E.2d 493.
4 Section 17--24(a)(1) of the Code (720 ILCS 5/17--24(a)(1)
(West 2002)) provides that one commits wire fraud when one:
"(A) devises or intends to devise a scheme or artifice
to defraud or to obtain money or property by means of false
pretenses, representations, or promises; and
(B)(i) transmits or causes to be transmitted from
within this State ***
* * *
any writings, signals, pictures, sounds, or electronic or
electric impulses by means of wire, radio, or television
communications for the purpose of executing the scheme or
artifice."
We note that the statutes do not specifically define "scheme."
"In the absence of a statutory definition, words are to be
given their ordinary and commonly understood meaning." Provena
Health v. Illinois Health Facilities Planning Board, 382 Ill.
App. 3d 34, 44-45, 886 N.E.2d 1054, 1064 (2008). Black's Law
Dictionary defines "scheme" as "[a]n artful plot or plan, usu. to
deceive others." Black's Law Dictionary 1346 (7th ed. 1999).
The Random House Dictionary of the English Language defines
"scheme" as "an underhand plot; intrigue." The Random House
Dictionary of the English Language 1713 (2d ed. 1987).
In this case, the undisputed evidence presented at trial
established that a Rub Chevrolet employee falsified a credit
5 application by having Mounts and Dillinger sign a blank credit
application and then misrepresenting the incomes of both Mounts
and Dillinger on the application. The falsified application was
faxed to the plaintiff with the intent to deceive the plaintiff
and to induce the plaintiff to purchase the financing contract.
No argument has been made that the employee was acting outside
the scope of his employment or that defendant Rub is otherwise
not liable for his conduct. We believe Rub Chevrolet's plan
constituted a "scheme" to defraud the plaintiff through false
representations under section 17--24(a)(1) of the Code (720 ILCS
5/17--24(a)(1) (West 2002)). Under these circumstances, we hold
that the circuit court erred as a matter of law when it found
that Rub Chevrolet's actions did not constitute a "scheme" under
section 17--24 of the Code (720 ILCS 5/17--24 (West 2002)).
Because Rub Chevrolet violated section 17--24, it breached the
contractual warranty given to the plaintiff that the sale of the
vehicle "was completed in accordance with all applicable federal
and state laws and regulations." Accordingly, the court erred
when it found that Rub Chevrolet did not breach its contract with
the plaintiff.
The judgment of the circuit court of Will County is reversed
in part, and the cause is remanded with directions to enter
judgment in favor of the plaintiff on counts IV and V. In all
other respects, we affirm the circuit court's judgment.
6 Affirmed in part and reversed in part; cause remanded with
directions.
LYTTON and WRIGHT, JJ., concur.