concurring in part and dissenting in part:
I agree with the majority’s answers to the three certified questions on appeal, as framed in the opinion. I write separately, however, to suggest that the better result in this case would be to remand the cause to the trial court rather than to review the propriety of that court’s denial of the defendants’ motion for summary judgment. While I do not dispute this court’s authority to conduct the review, I believe the more measured and equitable approach would allow the parties to use our answers to the certified questions to determine for themselves the future direction of this cause of action.
The questions certified by the trial court are the primary focus of this appeal. Under Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)), a trial court may certify “a question of law as to which there is substantial ground for difference of opinion” if it finds “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Our review of an interlocutory appeal under Rule 308 “is ordinarily limited to the question certified by the circuit court.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153 (2007). Although courts have sometimes addressed the propriety of orders giving rise to the certified question, they have widely acknowledged the applicability of this general rule and narrowly applied any exceptions. Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d 823, 829 (2006) (stating that review is “strictly limited to the certified question presented” and noting that “[w]ith rare exceptions, we do not expand the question under review to answer other, unasked questions,” limiting its task “ ‘to answer the certified questions rather than to rule on the propriety of any underlying order’ ”), quoting Fosse v. Pensabene, 362 Ill. App. 3d 172, 177 (2005); Hudkins v. Egan, 364 Ill. App. 3d 587, 590 (2006) (recognizing the scope of review “is ordinarily limited to the question certified” and that “[generally, our jurisdiction is limited to considering the question certified and we cannot address issues outside that area”); Adams v. Harrah’s Maryland Heights Corp., 338 Ill. App. 3d 745, 747 (2003); Johnson v. State Farm Mutual Automobile Insurance Co., 323 Ill. App. 3d 376, 379 (2001); McGurk v. Lincolnway Community School District No. 210, 287 Ill. App. 3d 1059, 1062-63 (1997) (declining to address the question of willful and wanton conduct as outside the certified question); McMichael v. Michael Reese Health Plan Foundation, 259 Ill. App. 3d 113, 116 (1994) (explaining that, due to Rule 308’s grant of “an exception to the general rule that appeal may be had only from final judgments,” “the appeal must be strictly limited to the question certified by the trial court” and the reviewing court “should not expand upon the question to answer other issues that might have been included”); Kincaid v. Smith, 252 Ill. App. 3d 618, 622-23 (1993) (declining to exercise jurisdiction under Rule 308 because the rule should be “strictly construed and sparingly exercised”).
Although the majority cites Vision Point to support its review of matters beyond the scope of the certified question (235 Ill. 2d at 550), it fails to note that in Vision Point we also declined to address other proposed issues because they “[fell] outside the proper scope of our review of the certified question.” Vision Point, 226 Ill. 2d at 358. Notably, we cited with approval Jones v. City of Carbondale, 217 Ill. App. 3d 85, 88 (1991), for the latter proposition. Vision Point, 226 Ill. 2d at 358.
In Jones, the court explained that “[b]ecause Rule 308 is an exception to the general rule that only final judgments may be appealed, an appeal under Rule 308 should be limited to the question identified by the trial court.” Jones, 217 Ill. App. 3d at 88. In addition to denying the plaintiff’s motions seeking leave to cite additional authority and to reply to objections, the court refused to examine any issues outside the scope of the certified question. Jones, 217 Ill. App. 3d at 88. Even more critical to the proper resolution of the instant case, however, the Jones court did not address the propriety of the denial of the plaintiffs motion for summary judgment that gave rise to the certified question, contrary to the majority in this case. Jones, 217 Ill. App. 3d at 88. I believe similar restraint is justified in the instant case.
Although this court has sometimes reviewed the propriety of the trial court order giving rise to the appeal of a certified question, it has always done so “in the interests of judicial economy and the need to reach an equitable result.” (Emphasis added.) Vision Point, 226 Ill. 2d at 354. Rather than examine the issue of equity, however, the majority simply concludes that judicial economy and equity require it to address the denial of the defendant’s summary judgment motion. 235 Ill. 2d at 550, 558. While judicial economy is undoubtedly advanced whenever a ruling is reviewed on interlocutory appeal, particularly where, as here, the ruling on review is dispositive of the entire case, it is not enough to justify the majority’s review of the summary judgment ruling here; equity must also be considered. In this instance, equity is not materially advanced by this court’s reversal of the denial of summary judgment for the defendants. Indeed, due to the circumstances underlying these certified questions, equity calls on this court to endow the parties and the trial court with the opportunity to develop this case in an enlightened manner on remand by clarifying the relevant pleading standards.
Until today’s decision, Shannon’s recognition of the theory of indirect deception under the Act had been questioned and challenged as merely nonbinding dicta because Shannon concluded the allegations in the complaint failed to allege actual deception sufficiently. See Shannon, 208 Ill. 2d at 527-28. Today’s decision, however, overcomes any lingering doubt about the validity of a plaintiffs reliance on an indirect deception theory in an action brought under the Act. The decision firmly acknowledges this court’s prior adoption, as well as the continuing viability, of the theory of indirect deception. 235 Ill. 2d at 556. Nonetheless, the perception that the indirect deception theory had not yet been definitively accepted by this court appears to have prompted the trial court’s decisions both to deny the defendants’ summary judgment motion and to certify the questions before this court. Thus, the prior actions of both the parties and the trial court were based on their lack of a firm understanding of the applicable law, unaided by this court’s current guidance. Surely, equity is not advanced by this court’s premature reversal of the denial of summary judgment. That resolution immediately cuts off the plaintiffs cause of action, depriving both the trial court and the parties of the opportunity to develop the issues in this case while fully informed of the relevant law and pleading requirements.
For this reason, I believe the most equitable resolution of this matter would be to remand the cause to the trial court for further proceedings. There, the parties could use our answers to the certified questions to shape their next procedural steps, whether they be amendment of the complaint, filing of another motion for summary judgment or dismissal, or an entirely different course of action. See Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 436 (2004) (granting “the plaintiff the opportunity to amend the complaint to cure the defect on remand in spite of the failure to seek leave to amend in the first instance in the trial court”). Whatever their choice, the strategic decision of how best to proceed should belong to the parties, not this court, based on our clarification of the applicable law. Thus, I believe equity favors remanding the cause to the trial court for further proceedings initiated by the parties rather than reviewing the prior summary judgment ruling before the parties have been able to orchestrate their cases to best serve their own purposes.