                          No. 3-05-0774
Filed February 16, 2007.
_________________________________________________________________

                             IN THE

                   APPELLATE COURT OF ILLINOIS

                         THIRD DISTRICT

                           A.D., 2007

SUE RAMIREZ, individually       ) Appeal from the Circuit Court
and on behalf of a class of     ) of the 10th Judicial Circuit,
similarly situated individuals, ) Peoria County, Illinois,
                                )
     Plaintiff-Appellant,       )
                                )
     v.                         )
                                ) No. 01-L-385
SMART CORPORATION, a            )
California corporation          )
authorized to do business       )
in the State of Illinois,       ) Honorable
                                ) Joe Vespa,
     Defendant-Appellee.        ) Judge, Presiding.
_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________


     Plaintiff Sue Ramirez obtained copies of her hospital medical

records from Smart Corporation, a company that provides record

retrieval and copying service.     She later filed a four-count

complaint against Smart, alleging that the company overcharged

hospital patients for such services and requesting class action

certification.   The trial court granted summary judgment on all

four counts and denied certification of the class.   We affirm in

part, reverse in part and remand for further proceedings.

     In 1993, Pekin Hospital contracted with Smart to respond to
requests from patients and their agents for copies of patient

records.   When a request was received, the hospital would turn it

over to Smart which maintained its own employees and copying

machine on the hospital premises.      A Smart employee retrieved the

patient’s records from the record storage area and copied them.

The Smart employee then returned the file to a hospital employee

who returned the records to the storage area.        After copying the

patient’s records, Smart delivered the records to the patient,

along with a bill for the copying charges.

     Ramirez sustained injuries and was treated in the emergency

room at Pekin Hospital.     Shortly thereafter, Ramirez retained the

law firm of Hamm & Hanna, Ltd. and, in January 1999, filed a

workers compensation claim.     To prepare the claim, attorney Robert

Hanna sent a letter to the hospital requesting copies of Ramirez’

records of her treatment.     Smart responded to the request and sent

her hospital records, which totaled six pages, with a bill for

$34.78 to Hanna’s office. The charges on the bill were itemized as

follows:

                "Basic fee         $15.00

                 Per page charge $1.00 (x 6)

           Photocopy Charge                 $21.00

           Facility Retrieval/Search Fee $10.00

           Shipping/Handling                $3.78"

A cover letter stated:


                                   2
     "Smart will continue to copy records that you request

     from this facility or, if you prefer, you may make

     arrangements    for     one   of   your    own       personnel    or   an

     independent copy service to copy the requested records.

     However, you must obtain prior permission and schedule an

     appointment    with     the   medical     records      department      in

     advance."

Hanna’s    secretary,   Diana      McPherson,     reviewed       the    bill     and

authorized payment. Hanna’s office paid the bill without objecting

to the amount or nature of the charges.          Ramirez did not review the

invoice prior to the firm’s payment of the bill.

     In    an   affidavit,    Brenda    Bouris,       a    hospital    supervisor

responsible for records, stated that the hospital never permitted

patients or patients’ attorneys to personally handle their own

medical records or copy the records themselves. While the hospital

was under contract with Smart, the only way a patient could obtain

a copy of the patient’s records was for Smart to perform the

copying.

     Ramirez filed a complaint "seeking to represent a class of all

persons in Illinois who had been victimized by Smart’s excessive

charges to obtain copies of their own records."                 Count I alleged

that Smart charged an unreasonable price under the common law.

Count II contended that Smart violated the Inspection of Hospital

Records Act (Hospital Records Act) (735 ILCS 5/8-2001 (West 1998)).


                                        3
Count III alleged that Smart’s fees were deceptive and misleading

and violated the Consumer Fraud and Deceptive Business Practices

Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)).

Count IV claimed that Smart was unjustly enriched because of the

excessive fees.

     Ramirez also filed a motion for class certification.                The

court denied the request, finding that Ramirez was not an adequate

representative of the class because Hanna’s office, not Ramirez,

had reviewed the Smart invoice and paid the bill.

     Smart moved for summary judgment on all counts.            The court

granted judgment in favor of Smart, concluding that Ramirez’ claims

were barred by the voluntary payment doctrine.           The trial court

also held that Ramirez was precluded from suing for damages under

the Hospital Records Act because the Act contains an express right

of action compelling a hospital to permit copying of records with

an award of attorney fees. Finally, the court concluded that

Smart’s charges were not deceptive or unfair under the Consumer

Fraud Act.

                          I.    Summary Judgment

     Summary   judgment    is    a   drastic   method   of   disposing   of

litigation.    It is proper only when the pleadings, depositions,

and admissions clearly demonstrate that there are no genuine issues

of material fact and the moving party is entitled to judgment as a

matter of law. 735 ILCS 5/2-1005(c) (West 2004); Pennsylvania Life


                                      4
Insurance Co. v. Pavlick, 265 Ill. App. 3d 526 (1994).            In

reviewing an order for summary judgment, all of the facts must be

viewed in a light most favorable to the nonmoving party.   Eyrich v.

Johnson, 279 Ill. App. 3d 1067 (1996).    Thus, on examination of the

record, if it can be fairly stated that a triable issue of fact

exists, the motion should be denied.    Bellmer by Bellmer v. Charter

Security Life Insurance Co., 140 Ill. App. 3d 752 (1986).     When a

trial court grants summary judgment, we review de novo. Courson ex

rel. Courson v. Danville School District No. 118, 301 Ill. App. 3d

752 (1998).

                    A.   Voluntary Payment Doctrine

     Ramirez claims that the trial court erred in granting summary

judgment on the basis that her claims were barred by the voluntary

payment doctrine.    Ramirez argues that the doctrine does not apply

to this case because she had no "reasonable alternative" for

obtaining her medical records from any other source.

     Under the voluntary payment doctrine, absent fraud, duress or

mistake of fact, money voluntarily paid on a claim of right to the

payment cannot be recovered on the ground that the claim was

illegal.   King v. First Capital Financial Services Corp., 215 Ill.

2d 1 (2005).   The voluntary payment doctrine applies to any cause

of action which seeks to recover payment of a claim of right,

whether that claim is premised on a contractual relationship or a

statutory obligation.     Smith v. Prime Cable of Chicago, 276 Ill.


                                   5
App. 3d 843 (1995).    Though payment under protest is the typical

means by which a plaintiff signifies his contention that a tax or

charge is improper, the absence of such a protest does not, without

more, require the application of the voluntary payment doctrine.

Getto v. City of Chicago, 86 Ill. 2d 39 (1981).     It must also be

shown that the plaintiff had knowledge of the facts upon which to

base a protest and that the payments were not made under duress or

compulsion.   Getto, 86 Ill. 2d at 48-49.

                                 1.

     In this case, Ramirez does not dispute that she paid the

invoices without protest.   However, she claims that the exception

of duress has been adequately set forth and raises a question of

fact sufficient to defeat a motion for summary judgment.

     To defeat the voluntary payment doctrine on the basis of

duress, the plaintiff must show that the payment was not voluntary

because there was some necessity that amounted to compulsion and

that the payment was made under the influence of that compulsion.

King, 215 Ill. 2d 1.     Whether the plaintiff had to protest the

charge is irrelevant to the issue of duress.    Geary v. Dominick’s

Finer Foods, Inc., 129 Ill. 2d 389 (1989).   A plaintiff must prove

duress by demonstrating both that the service is a necessity and

that no reasonable alternative exists.   Geary, 129 Ill. 2d 389.   To

establish that "no reasonable alternative exists," plaintiffs need

not plead that they attempted to obtain the product or services


                                 6
elsewhere or that they had actual knowledge of defendant’s policy

of refusal to provide the product or services if the charge was not

paid. Geary, 129 Ill. 2d 389.     Moreover, plaintiffs do not have to

plead an actual threat; implied duress is sufficient.           See Geary,

129 Ill. 2d 389; Getto, 86 Ill. 2d 39; Illinois Glass v. Chicago

Telephone Co., 234 Ill. 535 (1908).          The issue of duress and

compulsory payment generally is one of fact to be judged in light

of all the circumstances surrounding the transaction.           Smith, 276

Ill. App. 3d 843 (1995).

     As set forth above, there are two prongs to the application of

the duress exception: necessity and the lack of a reasonable

alternative.    Smart does not dispute that Ramirez’ medical records

were a necessity.    Thus, the sole issue is whether Ramirez had a

reasonable alternative of obtaining her medical records without

paying Smart’s charges.

     In   her   complaint,   plaintiff   alleged    that   to   obtain   the

requested copies of her medical records, she had to pay the charges

to Smart.   She claimed that those records were not available to her

from any other source without payment of the charges.             She also

submitted an affidavit which stated that the hospital did not

permit patients or their attorneys to copy the records themselves

but rather required them to use Smart.             These allegations are

sufficient to raise a material issue of fact regarding duress.

     Smart claims that Ramirez’ failure to protest the charges


                                   7
prior to payment and her failure to seek access to the records

directly from the hospital precludes application of the duress

exception. However, courts have generally held that plaintiffs are

allowed to use duress as an exception to the voluntary payment

doctrine regardless of protest or actual denial of the product or

services.   See Geary, 129 Ill. 2d at 407 (citing Getto, 86 Ill. 2d

39, and Illinois Glass, 234 Ill. 535).     Ramirez does not have to

allege that she actually tried to obtain her records without paying

the charge and that the hospital or Smart refused to provide them.

See Getto, 86 Ill. 2d at 53 (courts will not require plaintiff to

perform a useless act to demonstrate duress); Geary, 129 Ill. 2d at

400 (taxpayer claiming tax on tampons was illegal did not have to

allege that they tried to purchase items without paying tax at

another retail store). Even if Ramirez had attempted to obtain the

records through the hospital, Bouris’s affidavit strongly suggests

that she would have been denied access and referred to Smart.

Thus, viewing the evidence liberally in favor of Ramirez, factual

questions   exist   regarding   the    availability   of   reasonable

alternative services.

     Smart argues that the holding in Harris v. Chartone, 362 Ill.

App. 3d 878 (2005), requires the application of the voluntary

payment doctrine.   We disagree.

     In Harris, the plaintiffs alleged that defendant's company was

charging an unreasonable fee for copying medical records.        The


                                   8
plaintiffs’ complaint did allege that a named party had gone to the

hospital to inspect the medical records and "was not offered an

opportunity to see the records."             The plaintiffs did not allege

that they had made a request in writing as required under section

8-2001 of the Hospital Records Act.            The appellate court applied

the voluntary payment doctrine to dismiss the complaint, noting

that "plaintiffs’ allegations do not show that the plaintiffs were

compelled to accept the records from the defendants and pay the

defendants’ invoices."      Harris, 362 Ill. App. 3d at 884.

     Unlike the plaintiffs in Harris, Ramirez provided an affidavit

signed by hospital personnel which verified her allegation that she

would have    been   compelled     to   accept   the   records   from   Smart.

Plaintiff’s   allegations    of    duress     supported   by   affidavit   are

sufficient to create a material issue of fact.

                                        2.

     Alternatively, we also consider whether the statute requiring

hospitals to provide medical records to patients precludes the

application of the voluntary payment doctrine.            See Pratt v. Smart

Corporation, 968 S.W. 2d 868 (Tenn. App. 1997).           Section 8-2001 of

the Hospital Records Act obligates every hospital in Illinois to

enable patients to obtain copies of their medical records.                 735

ILCS 5/8/2001 (West 1998).        The purpose of the statute is to allow

patients access to their medical records in a timely manner.               See

Rodgers v. St. Mary’s Hospital, 149 Ill. 2d 302 (1992).


                                        9
        The statute leaves implementation of that duty to those who

are most intimately involved.         It has been generally accepted that

hospitals can compel a patient to obtain their records by paying an

outside copying service.        Clay v. Little Company of Mary Hospital,

227 Ill. App. 3d 175 (1995).           In Clay, the court construed the

statute to imply a reasonableness standard in both the charges to

the patient as well as the manner of photocopying, finding that the

intent of the statute could not be otherwise.                 Thus, in order to

implement the Hospital Records Act, hospitals can use copying

services, but they must act reasonably in its implementation.

Clay, 227 Ill. App. 3d at 180.             We agree with Clay that a proper

construction of the statute necessarily implies reasonableness in

the billing of patients for the service.               Clay, 227 Ill. App. 3d at

180.1

        In   Pratt,   the   court   held    that   a    patient   could   recover

excessive charges for copies of her medical records that she had

remitted to Smart "but which were in derogation of the public



        1

        We note that section 8-2001 of the Hospital Records Act was

substantially amended in September of 2001.                    The statute now

imposes specified monetary limits on the various charges a hospital

may     impose,   including   the   costs     of   independent     copy   service

companies, for "reasonable expenses."                  735 ILCS 5/8-2001 (West

2002) (amended by P.A. 92-228, eff. September 1, 2001).

                                       10
policy behind a specific statute."        Pratt, 968 S.W. 2d at 872.   In

that case, the court found that Smart’s alleged actions violated

the policy established by a legislative enactment requiring that

the charges for such photocopying services be reasonable.          Thus,

the company’s conduct was subject to review by the courts even

though it was fully consummated.         Pratt, 968 S.W. 2d 868.

     The purpose of section 8-2001, as construed, leads us to agree

with Pratt that, like Tennessee, this state has an interest in

transactions that violate "statutorily-defined public policy."

Pratt, 968 S.W. 2d at 872.      The effect of such transgressive acts,

generally speaking, is that the voluntary payment rule will not be

applicable.   Pratt, 968 S.W. 2d 868; see, for example, Great Lakes

Mortgage Co., v. Collymore, 14 Ill. App. 3d 68, 71 (1973) (statute

in derogation of common law abrogates common law rule to extent

expressed by words of the statute or necessarily implied from what

is expressed).       Here, if   proved, Smart’s allegedly excessive

charges might well violate the intent of the Hospital Records Act,

i.e., that a party must act reasonably when fulfilling its mandate.

See Clay, 277 Ill. App. 3d 175.      Therefore, the voluntary payment

doctrine would not impede Ramirez’ cause of action and does not

provide an adequate basis for sustaining the trial court’s grant of

summary judgment.2



     2

     In her complaint, Ramirez alleges that Smart’s charges were

                                    11
                                 3.

     We find that another exception to the voluntary payment rule,

mistake of fact, exists in this case.    While a mistake of law is

sufficient to bar plaintiff’s recovery, a mistake of fact is not.

Kerr Steamship Co. v. Chicago Title & Trust Co., 120 Ill. App. 3d

998 (1983); Hartford v. Doubler, 105 Ill. App. 3d 999 (1982).    The

voluntary   payment   doctrine   provides   that,    absent   fraud,

misrepresentation or mistake of fact, money that is voluntarily

paid under a claim of right to the payment and with full knowledge

of the facts by the payer cannot be recovered unless the payment


unfair and deceptive under the Consumer Fraud Act.   The intent and

purpose of that Act lend additional support to our refusal to apply

the voluntary payment doctrine to this case.   See 815 ILCS 505/1 et

seq. (West 1998).     The Consumer Fraud Act is a regulatory and

remedial statute intended to give broad protection to consumers,

borrowers, and business people against fraud, unfair methods of

competition, and other unfair and deceptive business practices.

815 ILCS 505/2 (West 1998); Robinson v. Toyota Motor Credit Corp.,

201 Ill. 2d 403 (2002); Johnson v. Matrix Financial Service Corp.,

354 Ill. App. 3d 684 (2004).     The object of the statute is the

protection of the public interest.    Zazove v. Pelikan, Inc., 326

Ill. App. 3d 798 (2001). Thus, Smart’s allegedly excessive charges

would violate the fairness requirements of the Consumer Fraud Act

as well.

                                 12
was made as a result of compulsion.         Illinois Graphics Co. v.

Nickum, 159 Ill. 2d 469 (1994) (noting that a cause of action for

the recovery of voluntary payments made because of a mistake of

fact has long been recognized).    Incomplete knowledge of facts can

contribute to the mistake of fact exception to the voluntary

payment doctrine.   Alexian Brothers Heath Providers Assoc. Inc. v.

Humana Health Plan, Inc., 277 F. Supp. 2d 880 (2003).             The

determination as to why the payments were made is generally an

issue of material fact not properly decided as a matter of law.

Cf. Kerr, 120 Ill. App. 3d at 1008 (mistake of fact not properly

decided on a motion to dismiss).

     In this case, plaintiff alleges that some of the fees charged

by Smart were for services provided by the hospital and that she

did not know that the itemized fees included charges for services

not actually rendered by Smart when she made the payment.      In her

complaint, Ramirez claims that Smart charged for services that it

did not provide and double billed fees for essentially the same

services.   She also claims, based on McPherson’s deposition, that

she paid the bill based on the assumption that the charges were for

work actually performed by Smart. Plaintiff’s allegations indicate

that a mistake of fact existed concerning what services she was

paying for when she paid the bill.     See Illinois Graphics, 159 Ill.

2d at 490 (inferred a mistake of fact claim based on detailed

allegations in complaint).    In its motion for summary judgment,


                                  13
Smart failed to establish that Ramirez had full knowledge of all

the circumstances relating to the charges she agreed to pay. Thus,

a genuine issue of material fact exits which precludes summary

judgment.

                         B.    Consumer Fraud Claim

     Next, plaintiff argues that the court erred in concluding, as

a matter of law, that Smart’s conduct was neither deceptive nor

unfair under the Consumer Fraud Act.

     The    Consumer Fraud Act is intended to protect consumers

against fraud, unfair methods of competition and other unfair and

deceptive business practices.         Cripe v. Leiter, 184 Ill. 2d 185

(1998).    The policy of the Act is to give broader protection than

common law fraud or negligent misrepresentation by prohibiting any

"unfair or deceptive acts or practice, 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 ***

in the conduct of any trade or commerce."           815 ILCS 505/2 (West

1998).      The elements of a claim under the Act are (1) a deceptive

act or practice by the defendant, (2) the defendant’s intent that

plaintiff    rely   on   the   deception,   (3)   the   occurrence   of   the

deception during a course of conduct involving trade or commerce,

(4) actual damage to the plaintiff and (5) proximately caused by


                                      14
the deception.     Avery v. State Farm Mutual Automobile Insurance,

216 Ill. 2d 100 (2005).          Recovery may be had for unfair as well as

deceptive practices.           Saunders v. Michigan Avenue National Bank,

278 Ill. App. 3d 307 (1996).          To be unfair, the defendant’s conduct

must:   (1)    offend    public      policy;   (2)   be    immoral,    unethical,

oppressive, or unscrupulous; and (3) cause substantial injury to

consumers.     Robinson, 201 Ill. 2d 403.           "All three criteria do not

need to be satisfied to support a finding of unfairness.                          A

practice may be unfair because of the degree to which it meets one

of the criteria or because to a lesser extent it meets all three."

Robinson, 201 Ill. 2d at 418 (quoting Cheshire Mortgage Service,

Inc. v. Montes,        612 A. 2d 1130 (Conn 1992)).

     In her complaint, Ramirez alleged that Smart engaged                       in

deceptive conduct by "describing fees in an inherently vague and

ambiguous manner as to confuse patients into believing that they

are being charged for important services provided, when they are

not." Ramirez alleged that Smart charged for services which it did

not provide. The complaint also alleged that patients were charged

"for the      actual    cost    of   certain   services,      like   shipping   and

handling, although defendant charged amounts far in excess of the

actual costs of such services."           In support of these allegations,

Ramirez    submitted     the     affidavit     of   Hanna’s    assistant,   Diane

McPherson.     The affidavit stated that McPherson paid the bill and

that she did so believing the invoice represented separate charges


                                         15
for actual costs incurred by Smart.            Ramirez also presented the

invoice from Smart which listed a "Basic Fee" of $15.00 in addition

to a $1 "Per Page" charge, amounting to a total "Photocopy Charge"

of $21.00.    The invoice also included a "Shipping/Handling" fee of

$3.78.   The purpose of the basic fee, as well as the other charges,

was not disclosed on the invoice, and Smart has offered no evidence

to contradict Ramirez’ claim that the charges do not represent

actual expenses.    The mere recitation of the charges suggests that

a reasonable jury could find that the invoice deceptively or

confusingly caused consumers to pay these bills based on the

reliance that they covered actual expenses.            See Martin v. Heinold

Commodities, Inc., 163 Ill. 2d 33 (1994) (failure to disclose

actual   charges   for    "foreign   service    fee"    was   misleading   and

deceptive).

     At a minimum, a reasonable inference from the limited evidence

adduced indicates that Ramirez sufficiently pled a cause of action

under the statute.       This cause involves a uniform billing practice

that, at this stage of the proceedings, has the potential to be

unethical and offend public policy.            Accordingly, we find that

there is sufficient evidence to create a genuine issue of material

fact as to whether Smart’s actions violated the Consumer Fraud Act.

See Avery, 216 Ill. 2d 100 (generally, proof of elements of

Consumer Fraud Act involve factual questions and determinations).

Moreover, our conclusion is consistent with the requirement that


                                     16
the Consumer Fraud Act be construed liberally to promote its

purpose.   Robinson, 201 Ill. 2d at 417.       We therefore reverse the

entry of summary judgment against Ramirez on count IV of her

complaint.

                        C.   Hospital Records Act

     Ramirez argues that the trial court erred in granting judgment

as a matter of law on her claim for damages based on Smart’s

alleged violation of the Hospital Records Act. She maintains that,

contrary to the court’s ruling, section 8-2001 of the Hospital

Records Act does not preclude a private right of action.

     Section   8-2001   of   the   Hospital   Records   Act   provides   as

follows:

           "Examination of records.       Every private and public

     hospital shall, upon the request of any patient who has

     been treated in such hospital and after his or her

     discharge therefrom, permit the patient, his or her

     physician or authorized attorney to examine the hospital

     records *** and permit copies of such records to be made

     by him or her or his or her physician or authorized

     attorney. A request for examination of the records shall

     be in writing and shall be delivered to the administrator

     of such hospital.

                                    ***

     Failure to comply with the time limit requirement of this


                                    17
     Section shall subject the denying party to expenses and

     reasonable attorney fees incurred in connection with any

     court ordered enforcement of this provision of this

     Section."    735 ILCS 5/8-2001 (West 1998).

     Illinois    courts   have   consistently       held   that   a   statute’s

provision for an express right of action precludes any implied

right of action as a matter of law.             Fisher v. Lexington Health

Care, Inc., 188 Ill. 2d 455 (1999); Metzger v. DaRosa, 209 Ill. 2d

30 (2004); King, 215 Ill. 2d 1.             In Metzger, 209 Ill. 2d 30, the

supreme court held "where, as here, the legislature has expressly

provided a private right of action in a specific section of the

statute, we believe the legislature did not intend to imply private

rights of action to enforce another section of the same statute."

Metzger, 209 Ill. 2d at 44; see also King, 215 Ill. 2d 1 (holding

no implied right of action for damages for violation of the

Attorney Act because the         Act   expressly provided for contempt

sanctions).

     In this case, count II of Ramirez’ complaint seeks damages for

charges by Smart which she alleges violate section 8-2001 of the

Hospital Records Act.       That statute however expressly provides

patients with a cause of action for attorney fees if they are

denied access to their records.             Where, as here, the legislature

has expressly provided a private right of action in a specific

section of the statute, the legislature did not intend to imply


                                       18
private rights of action to enforce other provisions.              "Where the

legislature intended to create private right of action for damages,

it will expressly provide for that right."         Metzger, 209 Ill. 2d at

43.   Thus, there is no implied right of action for damages under

the Act.     The trial court properly granted summary judgment in

favor of Smart on count II.

                          D.   Unjust Enrichment

      Plaintiff contends that the trial court erred in granting

summary judgment on her claim for unjust enrichment.

      The theory of unjust enrichment is based on a contract implied

in law.    People ex rel Hartigan v. E & E Hauling, Inc., 153 Ill. 2d

473 (1992).      To recover under a claim for unjust enrichment, the

plaintiff must allege that the defendant voluntarily accepted a

benefit which would be inequitable for him to retain without

payment.    Aardema v. Fitch, 291 Ill. App. 3d 917 (1997).            Because

unjust enrichment is based on an implied contract, "where there is

a specific contract which governs the relationship of the parties,

the doctrine of unjust enrichment has no application." La Throp v.

Bell Federal Savings & Loan Association, 68 Ill.2d 375, 391 (1977).

      As Ramirez’ attorney, Hanna requested that the hospital copy

the   records;    he   received   the   copies   with   a   bill   from   Smart

expressly stating the price; and thereafter paid the bill and

retained the copies.       Thus, Hanna, acting on behalf of Ramirez,

entered into an agreement with Smart for the copies at a specified


                                        19
price.   See ARCO Petroleum Products Co. v. R & D Automotive, Inc.,

118 Ill. App. 3d (1983) (party accepts a tendered contract by

accepting benefits of the contract).          Since a specific agreement

governed the relationship between the parties, Ramirez cannot

maintain a claim based on unjust enrichment.           Therefore, the trial

court properly entered summary judgment on count IV.

                         II.   Class Certification

     To maintain a class action in Illinois, the court must find

that:

     "(1) The class is so numerous that joinder of all members

     is impracticable.

     (2) There are questions of fact or law common to the

     class,    which    common   questions   predominate     over    any

     questions affecting only individual members.

     (3) The representative parties will fairly and adequately

     protect the interests of the class.

     (4) The class action is an appropriate method for the

     fair and efficient adjudication of the controversy." 735

     ILCS 5/2-801 (West 1998).

The trial     court    has   broad   discretion   to   determine    whether   a

proposed class satisfies the requirement for class certification

and should err in favor of maintaining class actions.          Clark v. TAP

Pharmaceutical Products, Inc., 343 Ill. App. 3d 538 (2003).

     Smart claims that class certification was properly denied


                                       20
because Ramirez does not adequately represent the class and no

predominate questions of law or fact are common to the class.

Since Smart does not dispute the remaining requirements, we will

limit our analysis to these two factors.

                   A.   Adequate Representative

     Ramirez argues that she is an adequate representative of the

class although she may have no personal knowledge of Smart’s

misleading or deceptive billing practices.

     To adequately represent the class, the proposed class action

plaintiff must be a member of the class.     McCabe v. Burgess, 57

Ill. App. 3d 450 (1978).   In other words, the named plaintiff must

be able to maintain an individual cause of action against the

defendant.   Avery, 216 Ill. 2d 100.     Named plaintiffs must also

establish that they are not seeking relief which is potentially

antagonistic to the non-represented members of the class.    Client

Follow-Up Co. v. Hynes, 105 Ill. App. 3d 619 (1982).

     The purpose of the adequate representation requirement is

merely to ensure that all class members will receive proper and

efficient protection of their interests in the proceedings. Gordon

v. Boden, 224 Ill. App. 3d 195 (1991).   It has long been recognized

that a plaintiff bringing a class action suit need only allege a

viable individual cause of action, indicate that the claim is being

brought as a class action, and include factual allegations broad

enough to establish the possible existence of a class action. P.J.


                                 21
Concrete Pumping Service, Inc. v. Nextel West Corporation, 345 Ill.

App. 3d 992 (2004); Hayna v. Arby’s, Inc., 99 Ill. App. 3d 700

(1981).     The   class    representative    need   only    have      a   marginal

familiarity with the facts of the case and does not need to

understand the legal theories upon which his case is based. Clark,

343 Ill. App. 3d 538.      Thus, class certification may be proper even

though the named plaintiff does not understand the complaint, has

little knowledge of what the lawsuit is about and relies almost

entirely upon the representations of another person.               Eggleston v.

Chicago Journeymen Plumbers’ Local Union No. 130, 657 F. 2d 890

(7th Cir. 1981) (citing Surowitz v. Hilton Hotels Corp., 383 U.S.

363 (1966)).

     In this case, the trial court denied the motion to certify the

class because Ramirez did not personally request the records or

review the bill prior to paying for Smart’s services. However,

class certification of the consumer fraud claim is not defeated

because Ramirez did not personally ask for her medical records. As

Ramirez’ attorney, Hanna was acting as her agent when he sent the

letter to the hospital.       See Doyle v. Shlensky, 120 Ill. App. 3d

807 (1983).    Additionally, class certification is not defeated by

Ramirez’ failure to view Smart’s bill.         Hanna’s delegation of the

financial   matters   of    his   clients’   accounts      to   his       employee,

McPherson, is also an agency relationship.          Lang v. Silva, 306 Ill.

App. 3d 960 (1999) (employee-employer relationship                    is one of


                                     22
agency).     Therefore, Ramirez can establish the elements of an

individual consumer fraud claim through her agents, Hanna and

McPherson.    Accordingly, it is not readily apparent that Ramirez’

lack of personal knowledge will interfere with her ability to

prosecute the claim on behalf of the class.            See Surowitz, 383 U.S.

363   (certification       proper   although      representative      did    not

understand her complaint, lacked knowledge of facts of case, did

not   know   defendants     by   name,    nor   even   the   nature   of    their

misconduct); P.J.’s Concrete Pumping Service, Inc., 345 Ill. App.

3d 992 (class certified even though plaintiff filed consumer fraud

claim based on communications to plaintiff’s agent).

      Further, Ramirez’ interests are not antagonistic to the class.

Her interests are the same as those of the absentee class members,

to seek damages based on defendant's deceptive or unfair charges

for copying their medical records.            Although other members of the

class may have different levels of knowledge about the correctness

of the charges and the amount of damages, Ramirez has sufficient

interest in the outcome to ensure vigorous advocacy of the claim.

See Walczak v. Onyx Acceptance Corp., 365 Ill. App. 3d 664 (2006)

(individual questions of injury and damages do not defeat class

certification).        Our consideration of these factors convinces us

that Ramirez is an adequate class representative for a consumer

fraud claim against Smart.

                  B.    Common Questions of Fact or Law


                                         23
     Smart claims that class certification must still be denied

because common questions of fact do not predominate the case.

Smart    argues   that   individual    inquiries      will    be   required    to

determine   the   amount   of   overpayment      by   each   patient   and    the

information those patients relied upon in paying Smart’s bill.

     So long as questions of fact or law common to the class

predominate over questions affecting only individual members of the

class,   the   statutory   requisite       of   commonality    has   been    met.

Steinberg v. Chicago Medical School, 69 Ill. 2d 320 (1977).                    A

common question may be shown when the claims of the individual

class members are based on the common application of a statute

where the members are aggrieved by the same or similar conduct.

Avery, 321 Ill. App. 3d at 280.            A class action can properly be

prosecuted where defendants allegedly acted wrongfully in the same

basic manner as to an entire class.             In such circumstances, the

common class questions predominate the case, and the class action

is not defeated.     Gordon, 224 Ill. App. 3d 195.

     A class action will not be defeated solely because factual

variations exist among class members’ grievances.              See Clark, 343

Ill. App. 3d at 548 (individual questions of overpayment in a

consumer fraud case do not bar class certification on the common

questions involved because court may order separate hearings on

individual questions of damages after determination of common

questions of law and fact); Ridings v. Canadian Imperial Bank of


                                      24
Commerce Trust Co., 94 F.R.D 147 (N.D. Ill. 1982) (individual

questions of reliance in securities fraud case do not bar class

certification on the commonality requisite); see also Steinberg, 69

Ill. 2d 320, 228.        It is appropriate to litigate the questions of

fact    common    to     all   members     of    the   class    and,    after   the

determination of the common questions, to determine in an ancillary

proceeding the questions that may be peculiar to an individual

class   member.        Charles    Hester       Enterprises,    Inc.    v.   Illinois

Founders Insurance Co., 137 Ill. App. 3d 84 (1985).

       The record reveals that the common consumer fraud question is

whether Smart engaged in an unfair or deceptive scheme to charge

hospital patients an excessive fee for copying their medical

records.    See 815 ILCS 505/2 (West 1998).             That claim is based on

Smart’s uniform billing procedure and the standard or basic fee

listed on all Smart invoices.         If, at trial, it is found that Smart

engaged in an unfair or deceptive practice of charging excessive

fees with the intent that hospital patients rely on that deception,

then Smart would have acted wrongfully in the same basic manner as

to the entire class.           The common question of liability will have

been established, and the class members may recover a refund for

their overpayment.         The factual differences in overpayment and

reliance    by    each    patient    do    not     present     individual    issues

sufficient to bar class certification.              See Clark, 343 Ill. App. 3d

at 549.    We therefore conclude that common issues regarding the


                                          25
consumer fraud claim predominate over the issues that affect only

individual members. 735 ILCS 5/2-801(2) (West 2000). Accordingly,

the denial of the request for class certification as to count III

is reversed.

                               CONCLUSION

     We reverse that portion of the trial court’s order granting

summary judgment on count III and denying class certification and

remand for further proceedings on the consumer fraud claim.             The

judgment of    the   circuit   court   of   Peoria   County   is   otherwise

affirmed.

     Affirmed in part and reversed in part; cause remanded.

     LYTTON, PJ., with HOLDRIDGE and O'BRIEN, JJ., concurring.




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