No. 2—10—0036 Opinion filed Marc h 10, 2011

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L INOI S SECOND DI STRI CT

______________________________________________________________________________ PAUL A B ONHOMME, ) Appea l from the Circuit Court ) of Ka ne County

. Plaintiff-Appellant, ) ) v. ) No. 08—L —317 ) ) J ANNA ST. JAMES, ) Honora ble ) Robert B . Spence, Def endant- Appellee

. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE McL AREN deliver ed the judg ment of the c ourt, with opinion. J ustices Hutchinson conc urre d in the judgme nt and opinion. J ustice Schostok concur

red in pa rt and dissented in pa

rt, with opinion. OP INION Plaintiff, Paula Bonhomme, appea ls from th e order s of the trial court dismiss ing with prejudice her second and third amende d complaints. We aff irm in part, reve rse in part, and rema nd for f urther pr ocee dings. The following fac ts wer e alleg ed in plaintiff’s third amen d ed co m p laint. I n April 2005, plaintiff, a resident of L os Ang eles, California, beg an on-line conver sations w ith de fenda nt, Janna St. J ames, on the “De adwood Boa rds,” an I nterne t chatr oom dedica ted to the HB O television series “De adwood.” Def

endant, a resident of Ba tavia, I llinois , had reg istered as a user of the site under the

name “Ms. Mag nolia.” I n J une, defe ndant reg istered ag ain, posing as a man named J esse J ames andNo. 2—10—0036

under the user name of “Auboy .” “Jesse” beg an chatting with and e-ma iling plaintiff in J uly 2005. Def endant, in her own name, also beg an e-ma il i ng plaintiff in J uly

. Def endant repr esente d to plaintiff that she kne w “Jesse” a nd many of the pe ople in “Jesse’s” life. Plaintiff and “J esse” beg an an on- line romantic re lationship that lasted until J uly 2006. I n addition to e-ma ils, “Jesse” and plaintiff exchang ed persona l photos, handwr itten letters, and g ifts. They even spoke reg ularly on the telephone; plaintiff alleg ed that defe ndant used a voice- altering device to disguise her fema le voice. Def endant, under her own name, also maintained a relationship with plaintiff during this period. I n ad d i t i o n , defe ndant cre ated a universe of approximately 20 fictional on-line char acte rs involved with “Jess e, ” including an ex-wife, a son, various family members, a thera

pist, and friends living in the United S t at es and abroa d. These char acte rs communicated with plaintiff from separ ate and distinct e-ma il acc ounts an d ev en sent photos, handwr itten mail, and packa g es from differ ent states and fore ign countries. Plaintiff sent g ifts worth over $10,000 to de fenda nt, “J esse,” and various other cha rac ters. Plaintiff purcha sed round-trip airline tickets from Bur bank, California, to Denve r, Colorado, in S ep t em b er 2005 to meet “Jesse” in person. Howeve r, “Jesse” canc elled the plans. Shortly there afte r, defe ndant communicated to plaintiff that “Jesse” had attempted suicide. This cause d plaintiff “gr eat emotional dist ress,” and plainti ff beg an seeing a therapist, with bills totaling more than $5,000. “Jesse” and plaintiff continued t h eir rela tionship and, in April 2006, decide d to move in toge ther in “Jesse’s” Co l orado home. Plaintiff spent approximately $700 prepa ring for the anticipated J uly move. Howeve r, in J uly , plaintiff was informed by “Jesse’s” sister “Alice ” that “Jesse” had died of liver cance r. De fenda nt, posing a s the other f ictional char acte rs, sent plaintiff

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letters of condolenc e. Plaintiff enter ed a dee p d ep ression, experiencing heada ches, exhaustion, inability to sleep, and inability to focus on job-rela ted tasks. She also contra cted a rec urring infec tion known as MRSA (multidrug resistant staphy lococc us aure us) beca use her immune sy stem

was so we akene d. Even afte r “Jesse’s” death, defe ndant stay ed in touch with plaintiff, communicating with her

on a d ai l y basis for the next seven months. Plaintiff met defe ndant in Colorado to see some of “Jesse’s” favor ite place s, then drove to New Mexi co to visit other “Jesse”-r elated sites. During that trip, defe ndant g ave plaintiff a letter that “Jesse” had written in which h e p ro fe s s ed his love for plaintiff and se t out his “dy ing w ishes.” I n Fe bruary 2007, defe ndant visited plaintiff in California. Plaintiff spent $1,000 prepa ring her home for defe ndant, buy ing an inflatable bed and linens and i n s t al ling a handra il and sliding chair , alo ng with other “medica l bath assist device s” in her bathroom. During this trip, some of plaintiff’s actua l friends discovere d the fictional nature of the universe of people that defe ndant had

cre ated, and they confr onted defe ndant. Def endant admitted on videotape that she had put plaintiff t h rough an “emotional ring er [ sic ]” for “may be a y ear and a half.” Plaintiff continued t o s ee a thera pist to deal with the emotional afte rmath of the false statements reg arding the exis tence of the fictional char acte rs, and her thera py bills continued to acc umulate. Her “af fec ted mental state” also had re sulted in lost earning s. Plaintiff filed a five-c ount complaint ag ainst d ef en d ant in Fe bruary 2008. Her second amende d complaint co n t ained seven counts, including both intentional and neglig ent i nfliction of emotional distress, defa mation per se and per quod , neg lige nt d efamation, fraudulent misrepre sentation, and false light. The trial court g rante d defe ndant’s m o t i on to dismiss broug ht

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pursuant to section 2—615 of the Code of Civil Procedur e (Code) (735 I L CS 5/2—615 (West 2008)) and dismissed with prejudice a ll counts e x cept count VI , fraudulent misrepre sentation, which wa s dismiss ed without prejudice

. Plaintiff filed a motion to rec onsider, which the trial court denied on Aug ust 19, 2009. Plaintiff then filed a motion reque sting e ither a finding pursuant to I llinois Supreme Court Rule 304(a) (ef

f. Jan. 1, 2006) or, alterna tively , an order certify ing four questions of law pur suant to I llinois Supreme Court Rule 308 (ef f. Fe b. 1, 1994). On the same day , plaintiff filed a notice of appea l from the trial court’s denial of her motion to rec onsider. Plaintiff note d that, while the trial court had not y et ruled on her moti on for a R u l e 304(a) finding or R ule 308 cer tification, she was submitt ing the notice “to apprise the Courts of the proce dural posture of this case .” On September 1 15, 2009, the trial court denied plaintiff’s motion, and plaintiff filed a third amended co m plaint, alleg ing one count of fraudulent misrepre sentation

. T h e t ri al court g rante d defe ndant’s section 2—615 motion to dismiss and dismiss ed the third amende d complaint with prejudice on Dec ember 22, 2009. This appea l followed. Although no one has raised or ad d re s s ed the issue, we must first note that plaintiff has abandone d her claims in her second amende d co m p laint. To prese rve for appea l the dismiss al of claims, a plaintiff must either stand on the dismiss ed counts and challeng e the ruling in the appellate court or rea lleg e or incorp o ra t e the dismiss ed counts in a subsequent complaint. Ottawa Savings Bank v. JDI L o a n s , Inc. , 374 I ll. App. 3d 394, 399 (2007). A s imple footnote or para g raph in the amende d pleading , notify ing the court and the defe ndant that the plaintiff is prese rving the dismiss ed portions of the former complaint for appea l, is sufficie nt. Childs v. Pinnacle Health Care, LLC , 399

Plaintiff subsequently

withdrew this notice of

appea l on October

1, 2009. 1 -4-No. 2—10—0036

I ll. App. 3d 167, 176 (2010). A party who files an amende d complaint without so incorporating or

rea lleg ing the prior complaint forf eits any objection to the trial court’s ruling on the prior complaint. Ottawa Savings Bank , 374 I ll. App. 3d at 400. Her e, plaintiff filed a notice of appea l befor e the trial court had ruled on her motion for a finding or certification. Once that motion was denied, plaintiff filed her third amende d complaint without any mention of intent to prese rve the dismiss ed portions of her second amende d complaint and withdrew her notice of appea l. Thus, plaintiff failed to prese rve the dismiss al of counts I , I I , I I I , I V, V, and VI I of her second amende d complaint, and she has aba ndoned them for

purposes of a

ppeal. Plaintiff’s only viable contention, then, is that the trial court erre d in dismiss ing count I of her third amende d complaint. The trial court ordere d the dismiss al pursuant to section 2—615 of the Code (735 I L CS 5/2—615 (West 2008)). A complaint should be dismiss ed under section 2—615 for failure to state a cause of action only when it clea rly appea rs that no set of fac ts could be proved under the pleading s that would entitle the plaintiff to relief

. Kinn v. Prairie Farms/Muller Pinehurst , 368 I ll. App. 3d 728, 732 (2006). I n revie wing the sufficie ncy of a complaint, this court must acc ept

as true all well-plea ded fac ts and all re asonable infere nces that may be draw n from those fac ts. Raleigh v. Alcon Laboratori es, Inc. , 403 I ll. App. 3d 863, 868 (2010). This court must construe the alleg ations in the complaint in the light most favor able to the plaintiff. See W eidner v. Karlin , 402 I ll. App. 3d 1084, 1086 (2010). We revie w de novo a trial court’s dismiss al of a complaint pursuant to section 2—615. Kinn , 368 I ll. App. 3d at 732. Count I of plaintiff’s third amende d complaint soug ht actua l, specia l, compensa tory , and punitive damag es for fraudulent misrepre sentation. The ele m en t s o f a claim of fraudulent misrepre sentation are : (1) a false statement of materia l fac t; (2) knowledg e or belief of the falsity by

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the party making it; (3) intention to induce the plaintiff to act; (4) action by the plaintiff in justifiable relianc e on the truth of the state ment; and (5) da mag e to t he plainti ff resulting from that relianc e. Doe v. Dilling , 228 I ll. 2d 324, 342-43 (2008). A plaintiff must alleg e, wi t h specific ity and particula rity , fac ts from which fraud is the nece ssary or probable infere n ce , i n cluding what misrepre sentations wer e made, when they wer e made, who made them, and to whom they wer e

m ad e. W

eidner , 402 I ll. App. 3d at 1087. I n this reg ard, we believe that the complain t h as adequately

pleade d a cour se of c onduct of c ontinuing fr audulent misrepr esenta tions. Th e o rig in of the tort of fraudulent misrepre sentation lies in the common-law action of dece it, “a ve ry narr ow tort that applied only to case s involving business or fina ncial tra nsactions betwe en parties.” Doe , 228 I ll. 2d at 343. Fr audulent m i s re p resentation has been “historically trea ted as purely an economic tort under which one may only rec over damag es for pecunia ry harm.” Doe , 228 I ll. 2d at 343. This court has previously declined “to extend the tort of fraudulent misrepre sentation to e ncompass noncommerc ial and nonfina ncial dea lings be tween pa rties.” Neurosurgery & Spine Surgery v. Goldman , S.C. , 339 I ll. App. 3d 177, 187 (2003). Howeve r, since then, our supreme court has acknow ledg ed that there have been limit ed occa sions in which this cause of action has been held to lie for persona l injuries. See Doe , 228 I ll. 2d at 344 (citing W. Pag e Kee t o n et a l

. , Prosser & Kee ton on Torts §105, at 726 (5th ed. 1984) ). Ke eton, in fac t, stated: “The re is no essential rea son to preve nt a dece it action from being maintained, for intentional misstatements at least, wher e other types of interests are invaded; and there are a few case s in which it has been held to lie for persona l injuries, for tricking the plaintiff into an invalid marria g e or marria g e with one who is phy sically unfit, or for inducing the plaintiff to le ave

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a husband, or to incur criminal penalties.” W. Pag e Kee ton et al. , Prosser & Kee ton on Torts §105, at 726 (5th ed. 1984)

. Even so, Kee ton descr

ibed the “ty

pical case ” as “one in which the plaintiff has parte d with money , or property of value, in relianc e upon the defe ndant’s repr esenta tion.” W. Pag e Kee ton et al. , Prosser & K eeton on Torts §105, at 726-27 (5th ed. 1984)

. Doe also acknow ledged, but distinguished, both I llinois and out-of-state case s that have extended the tort of fraudulent misrepre sentation to noncommerc ial situations. I n both Roe v. Jewish Ch i ldren’s Bureau of Chicago , 339 I ll. App. 3d 119 (2003), and Roe v. Catholi c Chariti es of the Diocese of S

p r i n gfield, Illinois , 225 I ll. App. 3d 519 (1992), the appellate court found a cause of action for fraudul ent misrepre sentation in the adoption setting wher e adoption ag encie s made intentional misrepre sentations reg arding a child’s health and psy cholog ical backg round. Doe found those case s to be “animated by the uni que facts pre sented by adoption proce eding s, wher ein t here is an inhere nt duty on the part of [an] ag ency to provide full and complete disclosure of the adopted child’s backg round and history —information that is held exclusively by the ag ency .” Doe , 228 I ll. 2d at 348. The court also rec og nized decisions rende red in sever al other states that rec o gn i z ed a

c a u s e o f a c ti o n f

or fraudulent misrepre sentation for the transmission of sexually transmi tt e d d is e a s e s ; those decisions wer e distinguished fac tually beca use Doe involved misrepre sentations made by the pare nts of a competent HI V-infe cted adult tortfea sor, not, as in the other case s, misrepre sentations made by the person who actua lly communicated the disease. Doe , 228 I ll. 2d at 348-50. Thus, the court found that it was “inappr opriate to expand the tort of fraudulent misrepre sentation to the fac ts of plaintiff’s c ase.” Doe , 228 I ll. 2d at 351.

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I t is clear, t h en , that while the “ty pical case ” of fraudulent misrepre sentation arises in a

commerc ial context, our supreme court has acknowledg ed that this tort may , in the appropriate circ umstances, be expanded to cover are as outside of the commerc ial context. We conclude that this is an appropr iate circ umstance in which to expand the application of fraudulent misrepre sentation. We first note that this case is “one in which the plaintiff has parte d with money , or property of value, in relianc e upon the defe ndant’s repr esenta tion” (W. Pag e Kee ton et al. , Prosser & Kee ton on Torts §105, at 726-27 (5th ed. 1984)), so it is not, all at once, an expansion of the tort into “pure ly persona l settings.” See Doe , 228 I ll. 2d at 348. Plaintiff clea rly pleade d that she spent over $10,000 on g ifts,

some of which wer e for defe ndant, but some of which wer e for “Jesse” and other char acte rs invented by defe ndant, and $700 for prepa rations for a move to live with “Jesse.” Clearly , these are economic losses alleg ed to have resulted from defe ndant’s misrepre sentations. Plaintiff has also alleg ed other damag es, including bills for t h er ap y an d medical expenses “to rec over from Def endant’ s false repr esenta tion reg ardi n g th e fictitious char acte rs and their activities.” Howeve r, as this case involves a motion to dism iss during the pretria l stag e, we need not a ddress whether such damag es could be

rec overe d here

. L ooking ag ain to the elements of this cause of action ((1) a false statement of materia l fac t; (2) knowledg e or belief of the falsity by the party making it; (3) intention to induce the plaintiff to act; (4) action by the plaintiff in justifiable relianc e on the truth of the statement; and (5) damag e to the pl aintiff resulting from that relianc e), w e conc lude that pl aintiff has alleg ed sufficient specific fac ts to establish a cause of action for fraudulent misrepre sentation. Plaintiff alleg ed that defe ndant posed as at l east 20 fictional cha rac ters betwe en June 2005 and April 2007, the mos t important of which was “Jesse,” with whom plaintiff started “chatting” in the Dea dwood chatr oom in J uly 2005.

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Def endant al s o co m municated with plaintiff in her own name and repr esente d to plaintiff that “Jesse” and the other char acte rs wer e rea l persons she knew. Thus beg an an alm o s t -t wo -y ear masquera de of false statements from defe ndant to plaintif f, s t at em ents that defe ndant obviously knew wer e untrue. The complaint is filled with specific dates of, and quotes from, e-ma ils from defe ndant, “Jesse,” a nd other c hara cter s. Def endant arg ues t h at such repr esenta tions are not “fa lse statements of materia l fac t.” I nstead, she a sserts, plaintiff’s c omplaint is based: “more on the fiction pursue d by Def endant than it is on specif ic re prese ntations. *** The

conce pts of falsity and materia l fac t do not ap p l y i n the context of fiction, beca use fiction does not purport to re prese nt actuality .” Howeve r, rathe r than prese nt these repr esenta tions as fiction, d ef en dant prese nted them as fac t. Def endant has attempted to sug g est that, as long as a defe ndant knows that the masquera de is fiction, there can be no mis repr esenta tion. S u ch an ar g ument moves the element of relianc e upon the misrepre sentati o n fr o m the i njured party to the ut tere r. As such, i t truly mis place s the dut y not to prese nt fiction as fa ct to another

. Reg arding the third eleme nt of the cause of a ction (intention to induce the plaintiff to act), plaintiff alleg ed that, under the g uise of the fictitious char acte rs, defe ndant induced her to buy g ifts, spend mo ney on trave l, spend money on her home in anticipation of defe ndant’s visit, disclose persona l information, and eng ag e in rela tionships with individuals that did not exis t, and that she would not have done so without defe ndant’s fals e representa tions. Def endant arg ues that these alleg ations are insufficient to alleg e that defe ndant “intended to induce such actions on P laintiff’s part.” Howeve r, it is not ne cessa ry that the defe ndant in a fraud action intend the conseque nces of

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its fra ud. Jewish Children’s Bureau , 339 I ll. App. 3d at 135. A plaintiff must alleg e the defe ndant’s intention to induce the plaintiff to act ( Doe , 228 I ll. 2d at 343), not nece ssarily the intention to induce the specific actions that the plaintiff took. Plaintiff alleg ed an almost-two-y ear -long series of contac ts, via sundry media, including the I nterne t, the telephone, the mail, and persona l contac t, and in the names of more than 20 fictitious char acte rs in addition to defe ndant as h er s el f, creating a universe tha t was oper ated by no one other than def endant. Give n the unpre dictability inhere nt in a person’s reactions t o such a bombardment of f alse infor mation, it would be impossi ble to alleg e that defe ndant intended plaintiff t o commit any one action, let alone all the actions that she committed in response to the massive char ade. I n addition, we view the alleg ations in the light most favor able to plaintiff ( W

eidner , 402 I ll. App. 3d at 1086) and acc ept as true all well-plea ded fac ts and all rea sonable infere nces that may be draw n from those fac ts ( Raleigh , 403 I ll. App. 3d at 868). We can, and do, rea sonably infer that defe ndant intended such a manipulative endea vor to induce some action on the pa

rt of plaintiff. Def endant also arg ues that plaintiff failed to alleg e fac ts to show why plaintiff’s relianc e was justified. J ustifiable re liance has bee n char acte rized as the plaintiff’ s burden to esta blish her rig ht to rely upon a statement. Johnson v. W aterfront Servic es Co. , 391 I ll. App. 3d 985, 993 (2009). Whether the plai n t i ff ’s relianc e was justified is a fac tual issue that must be viewed in light of the surrounding circ umstances. Johnson , 391 I ll. App. 3d at 993. This takes into acc ount both what the plaintiff knew and what she could have lear ned throug h the exercise of ordinary prudenc e. Johnson , 391 I ll. App. 3d at 993. A plaintiff may not close her ey es and then claim that she has been dece ived by others. Johnson , 391 I ll. App. 3d at 993. Howeve r, a perso n may rely on a statement without

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inves t i gat i o n if the party making the statement cre ates a false sense of secur ity or blocks further inquiry

. Marino v. United Bank of Illinois, N

.A. , 137 I ll. App. 3d 523, 527 (1985). Her e, plaintiff alleg ed that she was initially befr iended by defe ndant, a rea l person, who then g radua lly introduced plaintiff t o h er cre ations and even vouched for their rea lity

. Def endant alleg edly used various media to communicate with plaintiff while in the g uise of these fictional char acte rs, even g oing so far as to use a device to disguise her voice and make her sound like a man. Plaintiff was enmeshe d in a web cre ated by defe ndant and dece ived on all sides an d i n numerous

manner s by defe ndant. The dissent posits that, beca use the “re ality of the I nterne t ag e is that an online individual may not alway s be—and indeed fre quently is not—who or what he or she purports to be,” plaintiff’s relianc e was not justifiab l e. S l ip op. at 12. Howeve r, we believe that there are sufficie nt alleg ations to allow the trier of fac t to deter mine if the evidenc e es tablishes justifiable relianc e in fac t. Viewing the alleg ations in the light most favor able to plaintiff, we cannot say that she mere ly closed her ey es and allowed herse lf to be dece ived. The a lleg ations show an extensive masquera de to dece ive, and relianc e on the many -fa cete d and co rr o borative char acte rs and misrepre sentations can be found to be justified. We conclude , then, that plaintiff p ro p er ly pleade d a cause of action for fraudulent misrepre sentation in count I of her third amende d complaint, and the trial court err ed in dismiss ing that complaint. There fore , we reve rse the trial court’s Dec ember 2 2, 2009, order dismiss ing plaintiff’s third ame nded complaint and r emand the c ause f or further proc eeding s. For these rea sons, the j u d gm en t o f the circ uit court of Kane County dismiss ing plaintiff’s

s e c o n d a me nded complaint is aff irmed; the judgme nt dismiss ing plaintiff’s third amende d complain t is rever sed; and the c ause is re manded f or further proc eeding s.

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Affir med in part a nd reve rsed in part; cause r emande d. J USTI CE SC HOSTOK, c oncurring in pa rt and dissenting in part: I ag ree with the majorit y ’s deter mination to aff

irm the dismiss al of the plaintiff’s second amende d complaint. Howeve r, I dis agr ee wi t h reve rsing the dismiss al of the plaintiff’s third amende d complaint and would instead af fi rm that dismiss al. I t is not appropr iate to expand the application of fraudulent misrepre sentation to the fac ts in this case . Moreove r, the plaintiff has not pleade d fac ts sufficient to establish the ele ment of justifiable re liance. I n Do e , our supreme court acknow ledg ed the decisions in Jewish Children’s Bureau and Catholi c Chariti es , but st at ed t h at t h ose case s did not support a deter mination “that I llinois has

rec og nized the tort of fraudulent misrepre sentation in purely persona l settings.” Doe , 228 I ll. 2d at 348. The c ourt noted that adoption is not a purely persona l se tting. Rather, a doption ag encie s are in the business of fac ilitating adoptions and they have an inhere nt duty to provide full and complete disclosure of an adopted child’s b ac k gro u nd and his tory . Id. Moreove r, t he Doe court noted that other states have rec og nized a cause of action under the theory of fraudulent misrepre sentation for the transmission of a sexually transmitted disease. Id. Howeve r, that cause of action has been based

on a person’ s leg al duty to preve nt the sprea d of communicable disease and the interest of the state in preve ntion and control of dang erous diseases. Id. at 349 -5 0

. Under the circ umstances in the prese nt case , involving purely persona l dealing s betwee n two individuals, the plaintiff has failed to show that the state ha s any particula r policy interest at stake . This case does not involve a duty to preve nt the sprea d of disease or any duty of disclosure. Acc ording ly , there is no basis on which to extend the tort of fraudulent misrepre sentation to the circ umstances in the pr esent c ase.

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Yet another rea son to aff

irm the dismiss al of the third amende d complaint is that the plaintiff cannot show that she justifiably relied on the defe ndant’s alleg ed misrepre sentations. The rea lity of the I nterne t ag e is that an online individual may not alway s be—and indeed fre quently is not—who

or what he or she purports to be. The plaintiff’s relianc e on the defe ndant’s alleg ed misrepre sentations, in deciding to spend $10,000 on Christmas g ifts for people who alleg edly lived in another state and whom she had never met, was not justifiable. The plaintiff also cannot be said to have justifiably relied on the alleg ed misrepre sentations in incurring expenses to move to another state t o live with someone she ha d never met in person and w ho had ca ncelled a previous fac e-tofac e meeting afte r she had purcha sed nonref undable airline t i ck et s . Fo r the fore g oing rea sons, I respe ctfully

concur in part and dissent in part.

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