2024 IL App (1st) 231305-U No. 1-23-1305 First Division September 30, 2024
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
) Appeal from the BRENDAN MOORE, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 2022 M2 001561 ) NIKO PENDAVINJI and NITRO ) DETERGENT SPECIALISTS, ) Honorable ) James L. Allegretti, Defendants-Appellees. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The dismissal of plaintiff’s second amended complaint with prejudice is affirmed where, pursuant to section 2-615, it failed to state a cause of action upon which relief could be granted as to both claims of fraudulent misrepresentation and fraudulent concealment.
¶2 This appeal arises from a small claims action brought by plaintiff-appellant Brendan Moore
against defendants-appellees Niko Pendavinji and Nitro Detergent Specialists, regarding his
purchase of a used car from defendants. Plaintiff now appeals from the circuit court of Cook No. 1-23-1305
County’s grant of defendants’ motion to dismiss, arguing that the trial court erred in dismissing
the complaint where “as is” is not a defense to fraud and the court made improper credibility
determinations. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 On February 4, 2022, Nitro Detergent Specialists and Pendavinji, as president of Nitro
Detergent Specialists, sold a 2016 Ford Transit cargo van to plaintiff for $28,500. On May 13,
2022, plaintiff filed a small claims complaint asserting claims of fraud against defendants as related
to the sale.
¶5 On December 8, 2022, plaintiff filed a second amended complaint, alleging common law
fraud of misrepresentation and fraudulent concealment against each defendant. The complaint set
forth the following.
¶6 In January of 2022, plaintiff saw the van advertised online. While negotiating the purchase
of the van, plaintiff asked Pendavinji for any pictures of the van showing rust or damage.
Pendavinji responded that there were no signs of rust on the van, and he sent pictures of the van
that did not show any body damage. 1 Plaintiff also asked about the service history of the van, and
Pendavinji responded that the service history did not show anything outside of normal wear and
tear. Plaintiff later traveled to Illinois and test-drove the van. He did not notice any signs of damage
from an accident “because the damage was apparently covered up by the dirt on the outside of the
van and insulation/trash inside the van.” Plaintiff alleged that “[i]n reliance on Defendant’s
representations and concealments, [he] bought the van.” Plaintiff subsequently discovered that the
van had been in a prior accident, requiring several thousand dollars in repairs.
1 The alleged messages and pictures were not attached to the complaint as exhibits.
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¶7 As to both claims, plaintiff alleged that defendants “knowingly engaged” in fraudulent
misrepresentation and concealment by “[f]alsely stating that the van was not in a prior accident by
making non-verbal representation of no accident damage by sending a censored set of photographs,
and falsely stating that the van’s service history showed nothing out of the ordinary[.]” He further
alleged that defendants were “under a duty not to lie and to disclose to [p]laintiff the true facts”
and “had he known the true facts about the nature of the van, he would not have bought the van.”
¶8 Attached to the complaint were the motor vehicle bill of sale and an estimate from Roger’s
Auto Body Inc. Both parties’ signatures appear on the bill of sale, and it contains a provision
stating that the parties “agree that the property described *** shall be sold by the Seller, and
purchased by the Buyer, on an ‘as is’ basis and in an ‘as is’ condition, with no express or implied
guaranties or warranties regarding the above-described property.” It also provided that the bill of
sale constituted the only agreement between the parties and any other agreements shall have no
force and effect. The estimate showed that repair costs would be $9,781.73.
¶9 On January 1, 2023, defendants filed a combined motion to dismiss pursuant to section 2-
619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2022)). Therein,
defendants argued that the trial court should dismiss the complaint under sections 2-1005 and 2-
615 of the Code (735 ILCS 5/2-1005, 2-615 (West 2022)) because plaintiff purchased the car on
an as-is basis and in an as-is condition, and thus, plaintiff accepted all liability for the motor vehicle
as of the date of sale. Defendants further contended that “no false representation occurred in this
case” and “[n]o statement was made that the car was accident-free.” As to plaintiff’s claim of
fraudulent concealment, defendants claimed that they did not have a “duty to speak” or “to make
disclosures,” especially as this was a private sale not involving merchants. Additionally,
defendants contended that plaintiff had a duty to reasonably inspect the van and plaintiff had more
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than sufficient opportunity to inspect or to inquire as to the condition of the van. Finally, defendants
asserted that plaintiff did not file a counter-affidavit to the affidavit included in defendants’ prior
motion to dismiss and therefore, defendants’ affidavit went unchallenged.
¶ 10 Attached to the motion was an affidavit from Pendavinji, who averred the following.
Defendants bought the van used in 2019, and in January 2022, plaintiff sent a text message to
Pendavinji after seeing the van advertised on Craigslist and expressed interest in purchasing it.
Pendavinji advised plaintiff that the van was available, and upon plaintiff’s request, he sent
plaintiff the VIN number and a copy of the title for the van. Pendavinji sent plaintiff several
pictures of the van and advised plaintiff that he could inspect and test-drive the van. Plaintiff asked
Pendavinji if he could have a mechanic inspect the van, to which Pendavinji assented; however,
plaintiff never had a mechanic inspect the van. Pendavinji provided plaintiff with more pictures,
and plaintiff stated that he wanted to purchase the van and traveled to Illinois to do so. Before
purchasing the van, plaintiff drove it and inspected it. They agreed that the van was being sold “as
is,” and Pendavinji prepared the bill of sale, which both parties signed. A month later, plaintiff
sent Pendavinji a text message regarding “some body repairs to the driver side rear section of the
van” and “some concerns about safety and quality of the repairs.” Finally, Pendavinji averred that
plaintiff never asked about the van being in an accident.
¶ 11 On April 17, 2023, plaintiff filed a response, arguing that, under Illinois law, “as is” is not
a defense to fraud, the duty to speak arises where one party has superior knowledge, and a party’s
negligence for failing to inspect is not a defense to fraud. Further, plaintiff asserted that
Pendavinji’s affidavit did not go “unchallenged” where plaintiff attached his own affidavit in his
previously filed response to the earlier motion for summary judgment. Finally, plaintiff argued
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that “sending censored photographs and stating that the service history did not show anything
outside of normal wear and tear” constituted fraudulent acts.
¶ 12 Attached to the response was plaintiff’s affidavit, averring that he specifically asked
Pendavinji for pictures showing any areas of rust and Pendavinji responded that there were no
signs of rust and did not send any photographs where the damage was visible. He further averred
that, during his test-drive, the damage was “apparently covered up by the dirt on the outside of the
van and insulation/trash inside the van.” Finally, he averred that he requested the service history
for the van and Pendavinji informed him that there was nothing outside of normal wear and tear.
¶ 13 On May 11, 2023, defendants filed a reply. In addition to reasserting their prior arguments,
defendants argued that plaintiff had not “contradicted a single fact in Pendavinji’s affidavit” and
the integration clause in the bill of sale also prohibited plaintiff from arguing fraud.
¶ 14 Attached was a rebuttal affidavit from Pendavinji, averring that plaintiff never asked about
signs of rust and Pendavinji never claimed that there was no rust on the van. Additionally, he
averred that plaintiff never asked about the service history, plaintiff asked about the maintenance
of the van regarding oil changes, and Pendavinji never stated that there was nothing wrong with
the van outside of normal wear and tear. Finally, Pendavinji averred that he washed the van before
plaintiff inspected it, and he denied sending censored pictures to plaintiff.
¶ 15 On June 27, 2023, a hearing was held on defendants’ motion. A bystander’s report was
prepared and approved by the trial court, and it provided the following information:
“Both counsel appearing by Zoom, and both counsel indicating that they stand on
their briefs (inviting the trial court to ask questions, if any). The Court stated that the matter
was uncomplicated.
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The Court then ruled, stating ‘I can’t get past “as is.” ’ The presence of the ‘as is’
disclaimer was a reason articulated by the Court for finding that Plaintiff failed to state his
causes of action.
As a result, the Court dismissed Plaintiff’s Second Amended Complaint with
prejudice. The Court also stated that Plaintiff personally inspected the vehicle, declined an
opportunity to have it inspected by a mechanic, test drove it, and then drove it to his home
state. He claimed the vehicle was dirty and that is why he could not see the damage. The
Court did not believe Plaintiff’s affidavit and this is a small claims case. For the above
reasons, the Court dismissed Plaintiff’s Complaint with prejudice.”
¶ 16 The same day the court entered a written order granting defendants’ motion to dismiss with
prejudice.
¶ 17 This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 We initially note that defendants, as appellees, have not filed a responsive brief in this
appeal. Generally, a reviewing court will not act as an advocate for an appellee who fails to file
brief. First National Bank of Ottawa v. Dillinger, 386 Ill. App. 3d 393, 395 (2008). Because the
record is simple and the issue on appeal is not complex, we will consider the merits of the appeal
on plaintiff’s brief only. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.
2d 128, 133 (1976).
¶ 20 On appeal, plaintiff argues that the trial court erred in dismissing the second amended
complaint where “as is” and other contractual defenses are not a defense to fraud and, thus, the
court should not have given that contractual language “conclusive effect” as to plaintiff’s claims
of fraudulent misrepresentation and fraudulent concealment. Additionally, plaintiff contends that
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the trial court made improper credibility determinations and, thus, the standard of review for
summary judgment motions was misapplied.
¶ 21 A section 2-619.1 motion allows for a combined motion to dismiss under sections 2-615
and 2-619 (735 ILCS 5/2-615, 2-619), as well as motions for summary judgment under section 2-
1005 (735 ILCS 5/2-1005). 735 ILCS 5/2-619.1 (West 2022); Johnson v. Matrix Financial
Services Corp., 354 Ill. App. 3d 684, 688 (2004). A section 2-615 motion to dismiss considers
only the facts on the face of the pleadings, whereas a section 2-1005 summary judgment motion
goes beyond the pleadings to decide whether the case presents an issue of fact. Reynolds v. Jimmy
John’s Enterprises, Inc., 2013 IL App (4th) 120139, ¶ 52. A dismissal pursuant to section 2-615
is reviewed de novo (Doe-3 v. McLean County Unit District No. 5 Board of Directors, 2012 IL
112479, ¶ 15), as is an order granting summary judgment pursuant to section 2-1005 (Robinson v.
Village of Sauk Village, 2022 IL 127236, ¶ 16). This means that “we perform the same analysis a
trial court would perform.” Watson v. Legacy Healthcare Financial Services, LLC, 2021 IL App
(1st) 210279, ¶ 29. When conducting de novo review, “we may affirm the trial court’s judgment
on any basis in the record, regardless of whether the court relied on that basis or whether its
reasoning was correct.” Grassroots Collaborative v. City of Chicago, 2020 IL App (1st) 192099,
¶ 21. In the case before us, the trial court did not explicitly state upon which section of the Code
its dismissal of plaintiff’s second amended complaint was based. As such, we begin our review
with section 2-615.
¶ 22 As stated, a section 2-615 motion attacks defects in the pleading. 735 ILCS 5/2-615. This
motion asks whether the facts alleged in the complaint, viewed in the light most favorable to the
plaintiff, and taking all well-pleaded facts and all reasonable inferences that may be drawn from
those facts as true, are sufficient to state a cause of action upon which relief may be granted.
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Reynolds, 2013 IL App (4th) 120139, ¶ 25. Stated another way, “[a] cause of action should not be
dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved
that would entitle the plaintiff to recovery.” New Holy Temple Missionary Baptist Church v.
Discount Inn, Inc., 371 Ill. App. 3d 443, 445 (2007). Further, a reviewing court should disregard
conclusions of law or fact unsupported by specific factual allegations. Mercado v. S & C Electric
Company, 2023 IL App (1st) 220020, ¶ 12. Finally, evidentiary material, such as affidavits, may
not to be considered in ruling on a section 2-615 motion to dismiss. Urbaitis v. Commonwealth
Edison, 143 Ill. 2d 458, 476 (1991).
¶ 23 Plaintiff’s second amended complaint alleged claims of fraudulent misrepresentation and
fraudulent concealment against each defendant. Plaintiff argues that his complaint was improperly
dismissed as a result of the “as is” language in the bill of sale. We address this argument first.
¶ 24 Generally, the term “as is” is understood to mean that the buyer is purchasing the goods in
its present condition with whatever faults it may possess. Lake Bluff Heating & Air Conditioning
Supply, Inc. v. Harris Trust & Savings Bank, 117 Ill. App. 3d 284, 292 (1983). Under the Uniform
Commercial Code, the term “as is” disclaims all implied warranties of merchantability. 810 ILCS
5/2-316(3)(a) (West 2022). However, plaintiff does not claim breach of warranty but common law
fraud. In his brief, plaintiff claims that “Illinois authority indicates that an ‘as is’ disclaimer is
irrelevant to any issue in cases of fraud.” See Mother Earth, Ltd. v. Strawberry Camel, Ltd., 72 Ill.
App. 3d 37, 52 (1979) (“[T]he terms of any written contract executed in conjunction with fraud
are irrelevant to a cause of action grounded not in contract but in tort[.]”); Eisenberg v. Goldstein,
29 Ill. 2d 617, 621 (1964) (“One who by misrepresentation has induced another to act to his
prejudice cannot relieve himself of liability by a mere disclaimer thereof in advance[.]”). These
cases, although not recent, certainly lend credence to plaintiff’s argument.
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¶ 25 Plaintiff also relies on the more recent case of Napcor Corp. v. JP Morgan Chase Bank,
NA, 406 Ill. App. 3d 146, 153 (2010), which largely relied on the reasoning of Bauer v. Giannis,
359 Ill. App. 3d 897 (2005), in finding that, in an industrial property sales contract, an “as is”
clause “cannot defeat a claim of fraud.” In Bauer, the plaintiff alleged that the defendants’ house
had flooded prior to the sale of the house to the plaintiff. 359 Ill. App. 3d at 899. The contract
contained a clause stating that the plaintiff was accepting the property in its “as is” and “where is”
condition. Id. at 901. On interlocutory appeal, the Second District of this court held that the “as is”
clause was not a defense to claims alleging fraud and that the clause was not admissible as to the
issue of reliance. Id. at 899. The court reasoned that “a purchaser is entitled to rely on the
truthfulness, accuracy, and completeness of the statements” in a disclosure report, and the
defendants should not be able to obtain a waiver of their obligation to disclose material defects by
including “as is” language in the contract. Id. at 906. In citing to a number of cases from other
jurisdictions, the court stated that its conclusion was consistent with the majority view “that ‘as is’
language in a real estate contract does not shield a seller from liability for fraud.” Id. at 908-09.
¶ 26 In the court below, defendants argued that Bauer is distinguishable because it involved a
sale of real property and there was a statutory duty to complete a truthful disclosure report, neither
of which is at issue here. We recognize that Bauer appeared to confine its holding to residential
real estate contracts, (id. at 908-09), and the court in Napcor, where industrial real estate was at
issue, stated that there was no basis to limit Bauer’s holding to “residential real estate transactions”
(emphasis added) (Napcor, 406 Ill. App. 3d at 153). As such, neither of these expressly expanded
the rule to apply to any type of contract.
¶ 27 Nonetheless, we disagree that this rule should be restricted to real property actions, and we
find support for our conclusion in CNC Service Center, Inc. v. CNC Service Center, Inc., 731 F.
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Supp. 293, 302 (N.D. Ill. 1990). There, the buyer asserted a claim of common law fraud against
the seller, alleging that the seller made misrepresentations that induced the buyer to enter in the
business purchase agreement. Id. at 295. The magistrate judge found that, as a matter of law, the
“as is” clause in the agreement prevented the buyer from reasonably relying on the
misrepresentations. Id. The federal district court, applying Illinois law, reversed, finding that the
“as is” clause in the agreement was ineffective where a “[the buyer] [was] not alerted to the alleged
fraud simply by reading the terms of the document” because “[the seller] had concealed material
facts that rendered all independent investigation meaningless.” Id. at 302. Thus, where the fraud
cannot be discovered simply by reading the contract, the “as is” language cannot be a defense to
fraudulent misrepresentations designed to induce the party to execute the contract.
¶ 28 Our conclusion is further supported by decisional law from countless other jurisdictions
that have held, generally, that the contractual language of “as is” does not preclude a claim of
fraud. See Wagner v. Rao, 885 P. 2d 174, 176 (Ariz. Ct. App. 1994) (“[T]he words ‘as is’ in a
contract do not deprive a buyer of the right to prove fraud or misrepresentation inducing execution
of the contract.”); D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 489 (2003) (“[W]here there
is fraudulent inducement of a contract, the fraudulent misrepresentation vitiates every part of the
contract, including any ‘as is’ clause.”); Slusher v. Jack Roach Cadillac, Inc., 719 S.W.2d 880,
882 (Mo. Ct. App. 1986) (finding that the “as is” clause in the contract was not a defense to a claim
of fraud” alleged in the sale of a used van); Leavitt v. Stanley, 132 N.H. 727, 729 (N.H. 1990)
(stating that the term “as is” does not relieve the seller of liability for fraud); Murray v. D & J
Motor Co., Inc., 958 P.2d 823, 830 (Okla. Civ. App. 1998) (stating that fraudulent
misrepresentations “concerning the condition, value, quality, characteristics or fitness of the
goods” could render an “as is” clause “unreasonable and ineffective”); Maybee v. Jacobs Motor
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Co., Inc., 519 N.W.2d 341, 344 (S.D. 1994) (in a case involving the sale of a used car, stating
“[a]lthough ‘as is’ clauses place the risk upon the buyer to accept the product with all its faults,
this does not grant the seller a license to mislead the buyer or conceal facts.”); Godwin Aircraft,
Inc. v. Houston, 851 S.W.2d 816 (Tenn. Ct. App. 1992) (“As is” language in contract for sale of
private airplane did not preclude buyer’s recovery from seller based on seller’s fraudulent
representation that the airplane was airworthy); George Robberecht Seafood Inc. v. Maitland Bros.
Co., 255 S.E.2d 682, 683 (Va. 1979) (“While *** contracting parties may waive their contractual
rights or limit certain liabilities, a ‘false representation of a material fact, constituting an
inducement to the contract, on which the purchaser had a right to rely, is always ground for
recission of the contract by a court of equity.’ ” (quoting Wilson v. Carpenter, 21 S.E. 243, 244
(Va. 1895))); Traders Bank v. Dils, 704 S.E.2d 691, 696 (W. Va. 2010) (Fraud is “recognized to
be an exception to the contractual language typically found in an integration or merger clause
which seeks to limit one party’s liability to the other.”).
¶ 29 The rationale behind this rule is that, if the seller induces the buyer to execute a written
contract through fraud, the contract is invalid and the buyer seeking to rescind the contract is not
bound by its terms. Wagner, 885 P.2d at 176; see also CNC Service Center, 731 F. Supp. at 301
(Fraud in the inducement “would invalidate the contract.”). We find this reasoning persuasive and
conclude that “as is” contractual language does not preclude a claim of fraud if it resulted in the
inducement to execute a contract, regardless of whether real estate is involved. Aptly explained by
an Oklahoma court: “To hold otherwise would allow a seller to profit from his fraud and to be
effectively granted a license to mislead or conceal facts.” Murray, 958 P.2d at 830.
¶ 30 Based on the foregoing, we agree with plaintiff that the contractual phrase “as is” is not a
defense to fraud and should not have had “conclusive effect” on his complaint. Plaintiff requests
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that we reverse the trial court’s dismissal because it improperly considered that contractual
language in ruling in favor of defendants; however, our review is de novo, and we may affirm on
any basis or ground appearing in the record. See Potek v. City of Chicago, 2022 IL App (1st)
211286, ¶ 31. Upon reviewing the pleadings, we conclude that the trial court’s dismissal was
nonetheless proper under section 2-615 where plaintiff failed to state a cause of action upon which
relief may be granted as to both fraudulent misrepresentation and fraudulent concealment.
¶ 31 “The elements of common law fraud are (1) false statement of material fact; (2) defendant’s
knowledge that the statement was false; (3) defendant’s intent that the statement induce the
plaintiff to act; (4) plaintiff’s reliance on the statement; and (5) plaintiff’s damages resulting from
reliance on the statement.” Miller v. William Chevrolet/GEO, Inc., 326 Ill. App. 3d 642, 648 (2001)
(citing Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496 (1996)). Further, “the reliance by the
other party must be justified[.]” Soules v. General Motors Corp., 79 Ill. 2d 282, 286 (1980). “There
is a high standard of specificity required for pleading claims of fraud.” Cwikla v. Sheir, 345 Ill.
App. 3d 23, 31 (2003). “A successful common law fraud complaint must allege, with specificity
and particularity, facts from which fraud is the necessary or probable inference, including what
misrepresentations were made, when they were made, who made the representations[,] and to
whom they were made.” Connick, 174 Ill. 2d at 496-97. The elements of fraud must be proven by
clear and convincing evidence. In re Application of Rosewell, 106 Ill. 2d 311, 318-19 (1985).
¶ 32 As to fraudulent misrepresentation, we conclude that plaintiff did not allege a false
statement of material fact in his second amended complaint. That element consists of three
requirements: “the defendant must (1) make a misrepresentation, (2) it must involve a fact and (3)
the misrepresentation must be material.” Miller, 326 Ill. App. 3d at 649.
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¶ 33 Here, plaintiff alleged that defendants “knowingly engaged” in fraudulent
misrepresentation by “[f]alsely stating that the van was not in a prior accident by making non-
verbal representation of no accident damage by sending a censored set of photographs, and falsely
stating that the van’s service history showed nothing out of the ordinary[.]” As we read these
allegations, defendants made no statements either that the van was accident-free or that any repairs
had been done on the van. Additionally, service history typically relates to the general maintenance
of a vehicle and not to repairs as related to accidents. Thus, we do not consider defendants’ alleged
response to be a misrepresentation regarding prior accidents. Finally, plaintiff did not include these
allegedly “censored” photographs and, thus, we cannot say that they constituted a
misrepresentation as to the condition of the van. As such, where no affirmative representation was
made, the facts as alleged in the second amended complaint fail to support a claim under fraudulent
misrepresentation. 2 We now turn to plaintiff’s claim of fraudulent concealment.
¶ 34 “In order to state a claim for fraudulent concealment, a plaintiff must allege that the
defendant concealed a material fact when he was under a duty to disclose that fact to plaintiff.”
Connick, 174 Ill. 2d at 500; see also Warren Chevrolet, Inc. v. Bemis, 197 Ill. App. 3d 680, 684
(1990) (“[F]raud may also consist of the omission or concealment of a material fact if accompanied
by the intent to deceive under the circumstances which create the opportunity and the duty to
speak.”). There are two situations where a duty to disclose would arise: (1) where the plaintiff and
the defendant are in a fiduciary or confidential relationship and (2) where the defendant is placed
in a position of influence and superiority as a result of the plaintiff’s trust and confidence. Connick,
2 To the extent that there is also a question as to whether plaintiff’s complaint adequately alleged the element of justifiable reliance where he had the opportunity to have a mechanic inspect the van and he test-drove and inspected the van himself, we note that several Illinois courts have stated that justifiable reliance is a question of fact to be determined by the trier of fact, not by the trial court as a matter of law. See Cwikla, 345 Ill. App. 3d at 31 (citing cases).
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174 Ill. 2d at 500. A position of superiority “may arise by reason of friendship, agency, or
experience.” Id. A failure to establish a fiduciary or special relationship giving rise to a duty to
speak is fatal to a claim of fraudulent concealment. Hassan v. Yusuf, 408 Ill. App. 3d 327, 345
(2011).
¶ 35 There is nothing in plaintiff’s second amended complaint to suggest that defendants had a
duty to speak under the circumstances in this case. The complaint merely alleges that defendants
were “under a duty not to lie and to disclose to [p]laintiff the true facts” without setting forth any
specific facts to support this conclusion. See Small v. Sussman, 306 Ill. App. 3d 639, 646 (1999)
(conclusory allegations cannot substitute for well-pleaded facts). This is not sufficient for the
specificity required of fraud claims. See Ash v. PSP Distribution, LLC, 2023 IL App (1st) 220151,
¶ 22 (stating that there is a “high standard of specificity for claims of common-law fraud”). Further,
“[t]he mere fact that business transactions occurred or that a contractual relationship existed is
insufficient to support” a finding of a fiduciary relationship. State Security Insurance Co. v. Frank
B. Hall & Co., 258 Ill. App. 3d 588, 597 (1994). Nothing in the complaint suggests that the parties’
relationship was anything more than buyer and seller of goods sold via the Internet. Because
plaintiff failed to allege a duty to disclose material facts, we conclude that plaintiff’s allegations
as to fraudulent concealment were insufficient to state a cause of action. See Connick, 174 Ill. 2d
at 501. Accordingly, plaintiff’s second amended complaint did not contain specific factual
allegations setting forth claims of fraudulent misrepresentation or fraudulent concealment and was
properly dismissed.
¶ 36 Because we have found that the trial court correctly dismissed the complaint, we need not
address the motion for summary judgment pursuant to 2-1005. We nonetheless note in passing
that, at the summary judgment stage, it is not appropriate for the trial court to address the credibility
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of competing affidavits. See Schulenburg v. Rexnord, Inc., 254 Ill. App. 3d 445, 451 (1993)
(“[T[he credibility of a witness is a question for the trier of fact to resolve, not a matter to be
decided on a motion for summary judgment.”); see also Gatlin v. Ruder, 137 Ill. 2d 284, 294 (1990)
(on a motion for summary judgment, “[a] court cannot decide factual disputes as a matter of law”).
Thus, although it does not affect our outcome here, we conclude that the trial court erred in
considering the credibility of the affiants.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the judgment of the circuit court.
¶ 39 Affirmed.
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