concurring in part and dissenting in part:
I concur with the result reached by the majority on all issues except their decision to affirm the trial court’s dismissal of count V. I would find that it was error to enter summary judgment as to count V, which seeks statutory relief under the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121V2, par. 262).
Section 2 of the Act provides in relevant part as follows:
“[Ujnfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’ *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1987, ch. 12V-k, par. 262.
“There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties.” Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267; People ex rel. Hartigan v. All American Aluminum & Construction Co. (1988), 171 Ill. App. 3d 27, 33, 524 N.E.2d 1067; Aurora Firefighter’s Credit Union v. Harvey (1987), 163 Ill. App. 3d 915, 924, 516 N.E.2d 1028.
Consistent with the legislature’s mandate, this court has held that section 2 of the Act applies to misrepresentations by real estate brokers to prospective purchasers. Seligman v. First National Investments, Inc. (1989), 184 Ill. App. 3d 1053, 540 N.E.2d 1057; see also Harkala v. Wildwood Realty, Inc. (1990), 200 Ill. App. 3d 447, 558 N.E.2d 195 (the Act was not intended to impose liability upon a broker for latent or hidden defects such as concealed signs of termite damage); Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448.
The Act is intended to provide even broader consumer protection than the common law action of fraud. (Harkala, 200 Ill. App. 3d at 453; First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 520 N.E.2d 660.) Since the Act prohibits any deception or false promise, a plaintiff suing under the Act need not establish all of the elements of common law fraud. (First Security Bank, 165 Ill. App. 3d at 731; Duhl, 102 Ill. App. 3d at 495.) To establish a violation of the Act, a plaintiff must show a deceptive act or practice, an intent by the defendant that the plaintiff rely on the deception, and that the deception occurred in the course of conduct involving a trade or commerce. Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 952, 557 N.E.2d 246.
Under the Act, liability is not limited to existing material facts because the language of the Act specifically includes false promises. (Duhl, 102 Ill. App. 3d at 495.) Furthermore, the good or bad faith of the seller is irrelevant, and a plaintiff can recover for even innocent or negligent misrepresentations. (Harkala, 200 Ill. App. 3d at 453; Duhl, 102 Ill. App. 3d at 495.) Moreover, a plaintiff need not show actual reliance or diligence in ascertaining the accuracy of the misstatements. (Harkala, 200 Ill. App. 3d at 453; Beard, 90 Ill. App. 3d at 627-28 (“neither the mental state of the person making a misrepresentation nor the diligence of the party injured to check as to the accuracy of the misrepresentation [is] material to the existence of a cause of action” under the Act).) Thus, a plaintiff’s burden of proof under the Act differs from the elements which must be established in common law fraud.
In 1982 the Act was amended to alter the “state of mind” required as to the sale of real estate located in Illinois by real estate brokers or salesmen. (Ill. Rev. Stat. 1983, ch. 121V2, par. 270b(4).) Since the purchase agreement at issue was executed in 1981, the amendment is inapplicable to this case. See Warren v. LeMay (1986), 142 Ill. App. 3d 550, 574, 491 N.E.2d 464.
Additionally, in derogation of common law, the Act provides that the court may grant reasonable attorney fees and costs to the prevailing party. Ill. Rev. Stat. 1987, ch. I2IV2, par. 270a(c); Chesrow v. Du Page Auto Brokers, Inc. (1990), 200 Ill. App. 3d 72, 557 N.E.2d 1301; Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 527 N.E.2d 374; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.
This court has held that acts which constitute common law fraud also violate the Act. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 510 N.E.2d 409.) In Zimmerman, this court stated:
“We have already held that the complaint sufficiently alleged the elements of fraud. Our finding that plaintiffs have stated a cause of action for fraud is sufficient to warrant the conclusion that the same acts violate the Consumer Fraud Act because the Act prohibits any misrepresentation at all.” (Zimmerman, 156 Ill. App. 3d at 168.)
Similarly, a trial court’s directed verdict in defendant’s favor as to the Act was reversed because the plaintiff stated a prima facie case of common law fraud. (Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 548 N.E.2d 1151.) Following this court’s holding in Zimmerman, the court in Salkeld held that the determination of the existence of common law fraud was “sufficient to warrant the conclusion that the same acts violated the Consumer Fraud Act because the Act prohibits any misrepresentation at all.” (Salkeld, 192 Ill. App. 3d at 677.) Where, as in the present case, material issues of fact are found to remain as to preclude the entry of summary judgment on a common law fraud count, so also should this finding preclude the entry of summary judgment as to the count based on the Act.
In light of these established principles and for all the reasons included in the majority’s decision to allow the common law fraud claim to stand, I believe that the trial court’s order granting summary judgment on the statutory fraud claim (count V) should be reversed.