Addison v. Distinctive Homes, Ltd.

836 N.E.2d 88, 359 Ill. App. 3d 997, 296 Ill. Dec. 673
CourtAppellate Court of Illinois
DecidedSeptember 1, 2005
Docket1-04-0151
StatusPublished
Cited by15 cases

This text of 836 N.E.2d 88 (Addison v. Distinctive Homes, Ltd.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Addison v. Distinctive Homes, Ltd., 836 N.E.2d 88, 359 Ill. App. 3d 997, 296 Ill. Dec. 673 (Ill. Ct. App. 2005).

Opinion

JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs appeal from the circuit court’s dismissal of their second amended complaint for common law and statutory fraud. For the reasons that follow, we affirm.

Plaintiffs are all owners of residences in the Preserve at Harley Creek subdevelopment (Preserve) in Orland Park. Defendant MGM Development, Inc. (MGM), initially developed the Preserve and constructed several single-family homes there. Defendant Jack May-her is the principal owner and executive officer of MGM. Defendant Distinctive Homes, Ltd. (Distinctive), constructed several condominiums in the Preserve. Defendant Biyan Nooner serves as chairman of Distinctive.

Plaintiffs filed their initial complaint, as a putative class action, against defendants in February 2002, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)) and common law fraud. Plaintiffs alleged that, from 1997 to 2000, defendants had represented to buyers and prospective buyers that a golf course would be constructed on property adjacent to the Preserve and priced the homes and units in the subdevelopment on that basis. In 2000, the property was rezoned for industrial purposes. Plaintiffs contended that defendants had abandoned plans to construct the golf course as early as 1996, but continued to represent that one would be built there as recently as 2000, and thereby incurred substantial unjust profits..

Defendant Mayher filed a motion to dismiss plaintiffs’ complaint, alleging that plaintiffs had failed to allege specifically that Mayher had made any representations as to plans for the construction of a golf course at the Preserve. The circuit court granted the motion and allowed plaintiffs leave to file an amended complaint. The court also stayed plaintiffs’ discovery requests as to Mayher.

Plaintiffs filed their amended complaint in October 2002, alleging essentially the same counts in their initial complaint and attaching several exhibits of what they purported to be defendants’ representations of plans for a golf course adjacent to the Preserve, including maps of the subdevelopment and advertisements and items in local newspapers. Plaintiffs also filed a motion for class certification and a motion to compel answers to discovery as to MGM, Distinctive, and Nooner. Mayher renewed his motion to dismiss, which the circuit court continued pending plaintiffs’ response. The court granted plaintiffs’ motion to compel and continued their motion for class certification.

The circuit court later denied Mayher’s motion to dismiss and granted Mayher 28 days to comply with plaintiffs’ discovery requests. Plaintiffs filed new motions to compel defendants to produce tax records, which they argued were indicative of the inflated value of all properties in the Preserve due to defendants’ representations. The trial court denied the motion, but allowed plaintiffs to seek discovery of tax records pertaining to their own properties.

Mayher filed another motion to dismiss plaintiffs’ amended complaint and sought sanctions, arguing that the Village of Orland Park Plan Commission minutes yielded in discovery contradicted plaintiffs’ allegations as to Mayher’s representations concerning the proposed construction of a golf course adjacent to the Preserve. May-her also sought sanctions for failure to conduct a reasonable inquiry as to whether Mayher made the statements plaintiffs alleged in their complaint. The trial court continued the motion and granted plaintiffs leave to file a second amended complaint.

Plaintiffs’ second amended complaint alleged several specific instances spanning from 1997 to 1999 in which defendants made specific representations to plaintiffs that there were plans to build a golf course adjacent to the Preserve while defendants were aware that plans for the golf course had in fact been abandoned in 1996. Plaintiffs alleged claims sounding in consumer fraud, common law fraud, and unjust enrichment.

Mayher and MGM filed another motion to dismiss, arguing that plaintiffs’ allegation that they had abandoned plans to construct the golf course was conclusory and was insufficient to support a claim of knowing deception. Nooner and Distinctive adopted the motion. In a memorandum opinion, the circuit court granted the motion and dismissed plaintiffs’ counts of consumer and common law fraud with prejudice, pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615, 2 — 619 (West 2002)), finding that plaintiffs had failed to plead sufficient facts to allege that Mayher and MGM had abandoned plans to construct the golf course but continued to represent that planning for the golf course persisted.

Plaintiffs filed a motion to reconsider, which the circuit court denied, finding no just reason to delay enforcement or appeal of the court’s dismissal of the fraud claims, pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a).

On appeal, plaintiffs contend that the circuit court erred in dismissing their claims for common law fraud and consumer fraud where it employed an erroneous pleading standard in granting the motion to dismiss and that the court erred in not allowing plaintiffs to replead the claims.

This court reviews the grant of a section 2 — 615 motion to dismiss de novo, and we accept all well-pleaded facts in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. Krueger v. Lewis, 342 Ill. App. 3d 467, 470 (2003). We will uphold the dismissal of a complaint when it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Krueger, 342 Ill. App. 3d at 470. The plaintiff is not required to set out his or her evidence, but only allege the ultimate facts to be proved. Krueger, 342 Ill. App. 3d at 470. However, we will disregard mere conclusions of law or fact unsupported by specific factual allegations. Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill. App. 3d 1139, 1144 (2001).

In order to plead a cause of action for common law fraud, a plaintiff must allege: (1) a false statement of material fact by the defendant; (2) the defendant’s knowledge that the statement was false; (3) the defendant’s intent that the statement induce the plaintiff to act; (4) the plaintiffs reliance on the truth of the statement; and (5) damages resulting from the plaintiffs reliance on the statement. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496 (1996). A complaint must allege, with specificity and particularity, facts from which fraud is the necessary or probable inference, including what representations were made, who made them, and to whom. Connick, 174 Ill. 2d at 496-97.

In order to state a cause of action under the Consumer Fraud Act, a plaintiff must allege: (1) a deceptive act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deception; and (3) that the deception occurred in the course of conduct involving trade and commerce. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 492 (1999).

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Bluebook (online)
836 N.E.2d 88, 359 Ill. App. 3d 997, 296 Ill. Dec. 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/addison-v-distinctive-homes-ltd-illappct-2005.