                         No. 3--07--0571

_________________________________________________________________
Filed October 23, 2008
                              IN THE

                   APPELLATE COURT OF ILLINOIS

                         THIRD DISTRICT

                              A.D., 2008

FIRST NATIONAL BANK OF OTTAWA, ) Appeal from the Circuit Court
a National Banking Corporation, ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellant,       )
                                )
     v.                         )
                                ) No. 03--AR--1718
ROSEMARY DILLINGER, CLIFFORD    )
MOUNTS, and RUB CHEVROLET BUICK )
OLDSMOBILE, INC., an Illinois   )
Corporation,                    ) Honorable
                                ) James E. Garrison,
     Defendants-Appellees.      ) Judge, Presiding.
_________________________________________________________________

     JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________

     The plaintiff, First National Bank of Ottawa, sued the

defendants, Rosemary Dillinger, Clifford Mounts, and Rub

Chevrolet Buick Oldsmobile, Inc. (Rub Chevrolet), in connection

with the sale of a vehicle.    The circuit court entered judgment

against Dillinger and Mounts for breach of contract, and against

Rub Chevrolet on two counts of fraudulent misrepresentation.    The

court also found Rub Chevrolet not liable to the plaintiff on two

counts of breach of contract.    On appeal, the plaintiff argues

that the circuit court erred when it found that Rub Chevrolet was
not liable to the plaintiff on two counts of breach of contract.

We reverse in part and remand with directions.

                                FACTS

     The undisputed evidence presented at trial established the

following facts.    In 2002, Mounts and Dillinger contracted to

purchase a pickup truck from Rub Chevrolet.      Mounts told a Rub

Chevrolet employee that he made $9 per hour at his job.        The

employee was also informed that Dillinger's income consisted of

approximately $1,200 per month from Social Security disability

benefits.   Nevertheless, the employee had Mounts and Dillinger

sign a blank credit application and falsified the application by

misrepresenting the annual incomes of Mounts and Dillinger as

$21,600 and $30,000, respectively.      The falsified credit

application was faxed to the plaintiff.      Believing that the

credit application was truthful, the plaintiff agreed to purchase

the financing contract.    In 2003, Mounts and Dillinger defaulted

on their monthly payments, and the truck was repossessed.

     In 2004, the plaintiff filed a five-count complaint against

the defendants.    Count I alleged that Mounts and Dillinger

breached their contract with the plaintiff.      Counts II and III

alleged that Rub Chevrolet fraudulently misrepresented the

incomes of Mounts and Dillinger.

     Counts IV and V, which are the subject of this appeal,

alleged that Rub Chevrolet breached its contract with the


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plaintiff.   The contract between the plaintiff and Rub Chevrolet

contained a warranty that the sale of the vehicle "was completed

in accordance with all applicable federal and state laws and

regulations."   Counts IV and V alleged that the sale of the

vehicle violated section 17--24 of the Criminal Code of 1961

(Code) (720 ILCS 5/17--24 (West 2002)), which provides, inter

alia, that one commits wire fraud when one "devises or intends to

devise a scheme or artifice to defraud or to obtain money or

property by means of false pretenses, representations, or

promises," and transmits a document in furtherance of the scheme.

The plaintiff alleged that Rub Chevrolet participated in a scheme

to defraud the plaintiff of money based on its misrepresentations

of the incomes of Mounts and Dillinger.

     After a bench trial, the circuit court found that Mounts and

Dillinger breached their contract with the plaintiff.   In finding

Rub Chevrolet liable on two counts of fraudulent

misrepresentation, the court found that the Rub Chevrolet

employee had Mounts and Dillinger sign a blank credit

application, then falsified the incomes of Mounts and Dillinger

to induce the plaintiff to purchase the financing contract.

However, the court found that Rub Chevrolet did not partake in a

"scheme or artifice to defraud" the plaintiff as defined in

section 17--24 of the Code (720 ILCS 5/17--24 (West 2002)) and,

therefore, did not breach its contract with the plaintiff.     The


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plaintiff appealed from the judgment entered in favor of Rub

Chevrolet on counts IV and V.

                              ANALYSIS

     On appeal, the plaintiff argues that the circuit court erred

when it found that defendant Rub Chevrolet was not liable to the

plaintiff on two counts of breach of contract.     Specifically, the

plaintiff contends that the circuit court erred when it found

that defendant Rub Chevrolet did not partake in a scheme to

defraud the plaintiff as defined in section 17--24 of the Code

(720 ILCS 5/17--24 (West 2002)).

     Because this case involves the interpretation of a statute

and the application of the statute to undisputed facts, we review

the circuit court's judgment under the de novo standard.

Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 890 N.E.2d 934

(2008).

     Initially, we note that the defendants have not filed an

appellee's brief with this court.      Generally, we will not act as

an advocate for an appellee who fails to file a brief.     See First

Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 345 N.E.2d 493 (1976).   However, when a record is simple and

the claimed error can easily be decided without the aid of an

appellee's brief, as is the case here, we should decide the

appeal's merits.   First Capitol Mortgage Corp., 63 Ill. 2d 128,

345 N.E.2d 493.


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     Section 17--24(a)(1) of the Code (720 ILCS 5/17--24(a)(1)

(West 2002)) provides that one commits wire fraud when one:

          "(A) devises or intends to devise a scheme or artifice

     to defraud or to obtain money or property by means of false

     pretenses, representations, or promises; and

          (B)(i) transmits or causes to be transmitted from

     within this State ***

                               * * *

     any writings, signals, pictures, sounds, or electronic or

     electric impulses by means of wire, radio, or television

     communications for the purpose of executing the scheme or

     artifice."

We note that the statutes do not specifically define "scheme."

     "In the absence of a statutory definition, words are to be

given their ordinary and commonly understood meaning."    Provena

Health v. Illinois Health Facilities Planning Board, 382 Ill.

App. 3d 34, 44-45, 886 N.E.2d 1054, 1064 (2008).    Black's Law

Dictionary defines "scheme" as "[a]n artful plot or plan, usu. to

deceive others."   Black's Law Dictionary 1346 (7th ed. 1999).

The Random House Dictionary of the English Language defines

"scheme" as "an underhand plot; intrigue."   The Random House

Dictionary of the English Language 1713 (2d ed. 1987).

     In this case, the undisputed evidence presented at trial

established that a Rub Chevrolet employee falsified a credit


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application by having Mounts and Dillinger sign a blank credit

application and then misrepresenting the incomes of both Mounts

and Dillinger on the application.       The falsified application was

faxed to the plaintiff with the intent to deceive the plaintiff

and to induce the plaintiff to purchase the financing contract.

No argument has been made that the employee was acting outside

the scope of his employment or that defendant Rub is otherwise

not liable for his conduct.    We believe Rub Chevrolet's plan

constituted a "scheme" to defraud the plaintiff through false

representations under section 17--24(a)(1) of the Code (720 ILCS

5/17--24(a)(1) (West 2002)).    Under these circumstances, we hold

that the circuit court erred as a matter of law when it found

that Rub Chevrolet's actions did not constitute a "scheme" under

section 17--24 of the Code (720 ILCS 5/17--24 (West 2002)).

Because Rub Chevrolet violated section 17--24, it breached the

contractual warranty given to the plaintiff that the sale of the

vehicle "was completed in accordance with all applicable federal

and state laws and regulations."       Accordingly, the court erred

when it found that Rub Chevrolet did not breach its contract with

the plaintiff.

     The judgment of the circuit court of Will County is reversed

in part, and the cause is remanded with directions to enter

judgment in favor of the plaintiff on counts IV and V.       In all

other respects, we affirm the circuit court's judgment.


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     Affirmed in part and reversed in part; cause remanded with

directions.

     LYTTON and WRIGHT, JJ., concur.




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