good morning everyone or first case on the call the docket today wednesday march fourteenth two thousand and twelve there's agenda number four case numbers one one two three nine three and one one two three nine eight and i amended complaint is insufficient to state a cause of action for fraudulent misrepresentation we present two fundamental arguments on appeal and these are first that the cause of action for fraudulent misrepresentation does not and should not extend to the facts alleged which refer to a personal setting and personal circumstances and secondly that the element of justifiable reliance is not well pleaded that the complaint does not contain sufficient facts and in so far as it contains allegations those allegations are of a most nature referring then to the initial argument that the cause of action should not be extended to the facts said there's no question but they have traditionally the tort or cause of action for fraudulent misrepresentation is limited to a commercial or business context as recently as two thousand and eight when this court decided the case  it recognize this historical background of the cause of action and indeed refuse to extend the cause to be action under the facts presented in the act which case finding that they were inappropriate the purely personal setting presented in that case was inappropriate to the recognition and expansion of the cause of action in the act particularly case the plaintiffs hit claim to basis for the claim of fraudulent misrepresentation by the plaintiff is not completely clear the gist of the claim is they have the defendant dnd created twenty or so fictional characters and caused the plaintiffs to interact with these characters and particularly cause the plaintiffs foreign to see the pla form a romantic relationship particularly with one of these characters named jesse james the appellate court opinion in this case denied they had the it's recognition of the tort in these circumstances was an extension into a purely personal setting in this regard the appellate court noted that it that the plaintiff had parted with money or property things the value as a result of these personal relationships we submit that this isn't in proper interpretation of what a personal setting is a personal setting should be distinguished from what from those things that traditionally have been recognized regarding the bargaining transactions as the nature of the intended scope of the action there's no aspect of business in the relationship between the plaintiff and the defendant in this case there's no aspect of bargain that this is very simply a personal no setting between the plaintiff and the defendant and the nature of their relationship is totally devoid of business it's totally devoid of a bargaining aspect do you think this case more accurately described as an emotional distress case where the distress was caused by the misrepresentation rather than i would believe that it would be somewhat easier to understand the case in that context we have course denied that the complaint in that would have been the second amended complaint that the allegations in that complaint were sufficient to state a cause of fiction for extreme emotional distress but never the less i would submit that it is easier to understand the case in that context than it is to compare it to fraudulent misrepresentation but aren't you saying in your in your arguments that the court here used the act of lie or making  misrepresentation with the well i'm saying that they improperly expanded the cause of action to secure money from her to secure gifts from her to secure anything else of value and there are the allegations of the complaint do not create that type of nexus we are submitting that the allegations of the complaint are very unclear is to exactly what the complaint is for instance in describing the alleged misrepresentations by the  is no description of the language used in the alleged misrepresentations we for instance claimed that this violates the rule of specificity that is required in the pleading no fraud this is a longstanding rule that fraud must be pleaded with specificity in this case we see conclusory allegations that the defendant misrepresented the identity of the fictional characters we don't see an allegation of any precise language that may have constituted this misrepresentation so we certainly deny that there's any  to show that any representation by the defendant induced any specific conduct by the plaintiffs the course is a requirement in frau so we maintain that the appellate court decision is a great deviation from starry decisis it's the first case in the state of illinois to extend cause of action for fraudulent misrepresentation into a purely personal setting we believe that this expansion of the tort by the appellate court should be reversed generally speaking in order to recognize a new cause of action or to expand an existing cause of action to different circumstances there must be an underlying policy to justify the expansion of the cause additionally a cause of action should not be expanded or recognized it cannot be clearly an objective plea to find so that it can be consistently administered by the courts we maintain that there is not a public policy that justifies expansion of this cause of action and we maintain that the expanded cause of action is incapable of precise definition had its limits and scope cannot be adequately define regarding the policy question it is of course well established that the role of the course is to determine existing policy it is not the role of the courts to set policy there is no public policy that covers the issue of the facts are that it covers matter of private interpersonal relationships generally that relationships are not subject to the control of the law and there are not existing rules as to how private relationships in general should be conduct additionally the law of illinois never has recognized a broad duty to tell the truth in all circumstances or as it applies to this case to fiction this that this of course is a great deviation from existing law existing law does not establish such a duty such a duty simply does not exist significantly criticizes the contect of the defendant in this case but i submit to the court that they're assuming that everything that has been said is true and assuming that the plaintiffs herself did not intend to engage in a virtual or fictional relationship assuming those things nevertheless the law should not cover this conduct there is a difference between an aspiration a desire that certain tonka not occur and on the other hand the establishment of a rule of law that such conduct is not to be allowed and that it will be controlled by the courts in addition to the lack of policy underlying expansion of the cause of action into the purely personal setting there would be great problem defining the scope of such a cause of action and we refer particularly to the issue of materiality what is  material misrepresentation which is first elements of the cause of action defined by illinois law what is the materiality of any statement in an interpersonal cont it is submitted that that personal relationships are so diverse and so unique so sui generous that it is impossible for the courts to determine what a material misrepresentation would be we have cited for the court one case from massachusetts conley versus remarry where's the significantly the court refused to extend a fraud action to an interpersonal relationship to a romantic relationship in that particular case the then t n t allegedly had misrepresented his ability and willingness to father children so in a business transaction in a commercial transaction the ambition of the parties involved in the transaction generally is quite clear there and their insurer action is narrow in the interpersonal context there is a very broad intra action that has many aspects the ability of a court to determine what is material to they act relationship is extremely difficult if not if not impossible so it is our position that policy does not support expansion of the tort in this case and furthermore that administration of such a tort in the personal context would be difficult or impossible for consistent application for definition of what is material what a material representation would be in these unique circumstances of interpersonal relationships our second primary argument and this appeal is that the element of justifiable reliance was not well pleaded in the third of men to complaint justifiable reliance of course is one of the essential elements of the cause of action in this court's discussion of justifiable reliance in its dealing opinion that addresses the element of justifiable reliance we maintain that the only reference to justifiable reliance in the complaint is found in its paragraph eighty one and in that paragraph the plaintiff states and relies upon the repeated or the continuing misrepresentations by the pla justifiable reliance and it is our position that this separate our meant requires separate facts to support it there are no such separate facts when it is simply concluded that the repeated misrepresentations were sufficient to establish justifiable relian this court special concurrence and tilling gives considerable attention to the question of what the proper standard is for justifiable reliance we maintain that the standard is one that requires at least some cursory investigation by the plane that it is fundamentally on reasonable and unreasonable risk taking plaintiff or for the plaintiff in this case to have engaged in personal relationships with strangers to the extent of incurring damages and then expecting that the log over award young rate and reasonable risk that was taken alternatively if this court should accept the restatements approach to the justifiable reliance element there certainly was adequate cause as shown by the allegations that this complaint to put  refer to it at that point it should have been the obvious falsity of any representations that the fictional people were real people should have been obvious to the plaintiff at the time when face to face meeting was delayed for months and then when it was finally arranged it was  these facts are such as to have given the plaintiff's adequate notice of the falsity event of the statements even under the restatement  is our position that third amended complaint by its very allegation negates the element of justifiable reliance again the complaint is of the most conclusory nature it does not describe the words used in any misrepresentation it does not describe what plaintiff's expectations may have been in think before your time starts running before you know i'm sure self you decided to split it ten and that's correct i will be addressing the first half of the argument with respect to the fraud count and my colleague adam bandt check will be covering the abandonment issue in the second saper and i am here on behalf of plaintiff appellant home well what we've heard right now is that there is absolutely nothing at issue with respect to the facts as alleged there is no two six one nine motion here denying the fabrication of the lies denying the fact the defendant created just the james denying the fact that she eventually dishnet corroborated the existence of jesse james with an additional twenty other characters nor does she deny that she happily accepted ten thousand dollars worth worth of gifts over the course of a year and a half most importantly defendant does not stand before you here today and deny that sheen gauge plate if she initiated the relationship initially initially through indeed she did that her fiance did indeed have hiv so in that context there were certain factors that the court had to decide most important before i get into distinguishing of that case and with this case note that that case had a very lengthy history and was extensively debated through discovery expert testimony depositions of multiple multiple people involved which goes to show that the complaint survived the fundamental question of whether or not it could survive as a five count word here only to decide not the merits of the case not whether or not plaintiff was justified in deciding to believe these comments not whether there was any material misrepresentation although again i have basis to explain why those still to stand but essentially the facts after discovery allowed the court to determine that in mat personal situation in those certain circumstances there was evidence to show that she should have for behalf of the defendant as the power cord recognized we have here the transaction of ten thousand dollars but also different is that this wasn't a traditional boyfriend girlfriend relationship where the parties meet and some other you know real life sighting we have here and this  a relationship that was initiated purely on fraud but who are plaintiffs misrepresentations with respect to their relationship she would not have engaged in an online romantic relationship but plaintiff did and this is where the application of a duty in cases that are not traditionally commercial applied so defendant discusses duty in her company her briefs especially with respect to adoption cases and cases involving the transmission of sexually transmitted diseases and in those cases the court tried to limit the application of the fraud count in noncommercial settings to a situation where there was some overarching policy reason or duty to prevent the misrepresentation of the doctrine agencies clearly would not want to option agencies to disclose the background of the children and the case where a person has a sexually transmitted disease we want to prevent transmission of that disease in this case we want to prevent simply cons we don't want someone to be able to go under the guise of the anonymity of the internet fabricate such an extraordinary number of people in order to for personal sadistic gain manipulate claim to have and then also benefit through trips to california and gifts that included two and in fact he turns out to be five foot two because invent case i'd still have to for example prove the element of damages how was i harmed in the instance of me going on the state and realizing this man was actually six feet was in the hypothetical i gave you  be dismissed on its face what i'm arguing is that this stage it's premature to make a decision we need to go into the discovery stage and let the parties sit through depositions and explain their motivations and mental state of mind when this transaction occurred body look at the f t c they just set out guidelines governing material connections with respect to bloggers i know i'm getting very tangential but the point is we have we can't ignore but the medium of the internet is increasingly used as a tool as a business transaction an that is so beyond a nigerian scam you know you get where you can clearly tell the misspellings and and the way that it's presented show that you that it's a scam here we have a slow dripping hoax trick by  so it's not only reliance it's just so if this court finds that giving ten thousand dollars in christmas to a person who'll legibly live in another state whom the point of never met we have to term look at that and say whether that reliance was justifiable in light of the fact that the internet is the vehicle known to perpetrate yes and no i hate for example handle other cases in my practice that involve the fr creation of fake facebook and and fickling to make counts just because someone acts in a deceptive manner and uses a website doesn't automatically mean that people on the internet are bad if you know people buy things they get their credit card online they they trust of the transactions they utilize over the internet has some voracity otherwise our entire economy wouldn't work i mean that's that's the case you have to look at things i'm a case by case basis it's premature to make a rule without assessing the facts it relates to each situation that's presented before you this is not a simple case of fraud again this involves a woman who i mean let's take it from the perspective the plaintive she's innocently in gauging in a chat room about a t v show she likes to watch she contacted and she's not even expecting under the context of wishing made this relationship that someone would have the time or the desire or the energy to create not just to pose not just as herself but also as this man named jesse and every time she did try to investigate and so i can time that and as the point as the complaint demonstrates she wasn't passively accepting everything is true she every time she questioned something but the camera st james the defendant was arguing a new character would defended misappropriated her name her likeness and then communicated with defendant as if she was a licensed therapist if you look up any martel i mean at what point do for fact stop the truth stop in the eyes start it so convoluted the facts are so expensive but again it's it's unreasonable to expect is the point could is already identified it's unreasonable to expect defendant to have inquired about the veracity of these statements in light of the situation and moreover she didn't pursue a version of relationship on two occasions she purchased rights should play it should purchase plane tickets and hotel rooms she had every intention to meet this individual and she engaged in phone conversations she  package from different countries those front phone conversations were of a sexual nature at times which means janice and james had be audacity to sit there pose as a different person i mean in conversations that are very intimate but she would of course never hav gauging had she thought that the relationship was not a real one time has expired amendment is complete in itself and does not refer to or adopt the prior pleading the earlier pleading ceases to be part of the record for most purposes now a strictly literal interpretation of that statement that holding is is somewhat difficult to apply and light of the verbiage however foxcroft is generally interpreted to represent a policy and the policy is to made two very arguably indefensible goals one to ensure that the trial judge and the defendant are perpetually aware of the claims at issue  purposes being in effect abandoned and withdrawn i mean is that is that policy or is that a bright line rule that you know you don't speak up when you file the american why you lose your i believe if you if you look at the procedural factual record of fox truck itself and its progeny what's going on in these cases is that plaintiffs are filing these serial complaints and foxcro old that's not what happened in this case and the fact that the procedural facts of this case are very distinct or completely distinguishable form from the rest of the jurisprudence on this topic because there was a second amended complaint after that was dismissed with exhibits so you know going back to the two policy considerations that we're talking about that we're we're we're we're saying are underlying this less fight of a d ruling in foxrock which agreeing with our going in this case does not have to overrule is that the trial judge in the defendant are aware of all the claims at issue that has always been the case second the fox the foxcroft goal is to prohibit a plane from surprising either this is happened in this case the trial court instructed plaintiff to withdraw her notice of appeal and specifically file a one counter to many complaint and after that was resolved plaintiff could go and appeal everything defend the substance and theory and format of the second the matter complaint had been abandoned but had been maintained that's why they were arguing in the first place at that level so there's no evidence that the policy considerations fundamental to this court's holding in foxrock have been disturbed require the wasn't all the way through to the appellate court but that challenge still existed so in this in this is unlike the plaintiffs in either ottawa or foxtrot and what child's does is merely give an example of a way in which a plaintive could satisfy the well after after filing a motion to reconsider and then filing the third amended complaint under the court's orders specifically to just refer to those four counts and then following those of appeal and then briefing it on a termination otherwise should be reversed i wish to address the issue of the plaintiff's premise that the trial court ordered it to file the third amended complaint there simply is not such an order in this case the record on appeal consists only of common watched act months and none of those documents support a viewpoint that the trial court piling over a third amended complaint and very certainly would not support a conclusion that the trial court ordered a third amended complaint to be filed with out reference to a second amended complaint with the dismissed counts of the second amended complaint there are some cases that refused to apply the facts crawford rule and these cases do involve situations where a trial court directed a certain kind of filing these include the zurich insurance case referring to necessary parties the fiend's case that involved the clause actually the meg case and perhaps others that are discussed in the briefs but the case at bar is not such a case the only thing that the trial court the only orders that the trial court made in this case were suspecting the third amended replayed the counter fraudulent misrepresentation so we maintain that that is a fundamental in accurate premise that apparently underlies the pla instance to the rule of contemporaneous objection it is a proceed general rule that addresses the question of maintaining and preserving issues for the issues in front of the trial court the underlying policy of facts cross is valid today as it was when it was decided regarding the preservation of the issue how ever as i understood the question posed to me during oral argument in the appellate court it had to do with the plaintiff intent in filing the third amended complaint and failing to preserve the issues from the second amended complaint intent of course is not a question under f the intent actually is never a question or a very rarely a question when a chord is addressing preservation of issues my intent when i fail to make a contemporaneous objection or my intent when i fail to file a mandatory trial motion is completely  have forth to the issue and so in this case there is a fourth the truth by the plaintiffs for failure to follow a well established rule this rule should be retain the rule of box office both clause it is a clear it is an objective rule that lends itself to consistent application a subjective rule that investigates the intent of the pleader is a rule that will increase litigation and it is likely to be to inconsistent results the question in this case is not a question of prejudice referring then just very briefly to the rebuttal matters regarding the fraudulent misrepresentation issue of the third amended complaint it has been argued today that the third amended complaint should proceed in order that through the the call of depositions in presumably trial the state of mind of the parties can be explored had to be pleaded with in the terms of the complaint there are statements today today to the effect that defendant act for personal sadistic game that there was a hoax there were many comments i would submit to the court during oral argument the smore ning before the court that are simply not found in this complaint and because the types of beck schwarm matters that were addressed during plaintiff's argument t court this morning do not appear in the third and mentored complaint the third amended complaint is insufficient and for these reasons we asked the court please to