D'Attomo v. Baumbeck

2015 IL App (2d) 140865, 36 N.E.3d 892

• Court: Appellate Court of Illinois
• Decided: June 30, 2015
• Docket: 2-14-0865
• Status: Unpublished

Opinion

2015 IL App (2d) 140865 No. 2-14-0865 Opinion filed June 30, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

PETER L. D’ATTOMO and KATHLEEN T. ) Appeal from the Circuit Court D’ATTOMO, ) of Du Page County. ) Plaintiffs-Appellants, ) ) v. ) No. 13-L-969 ) THOMAS H. BAUMBECK, Individually and ) in His Capacity as Trustee of the Thomas H. ) Baumbeck Trust Under an Agreement Dated ) July 6, 1995; THE MUSEUM SQUARE ) CONDOMINIUM ASSOCIATION; and THE ) BOARD OF DIRECTORS OF THE MUSEUM ) SQUARE CONDOMINIUM ASSOCIATION, ) Honorable ) Kenneth L. Popejoy, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Peter L. D’Attomo and Kathleen T. D’Attomo, appeal from a judgment of the

circuit court of Du Page County dismissing their six-count complaint against Thomas H.

Baumbeck, individually and in his capacity as trustee of the Thomas H. Baumbeck Trust under

an agreement dated July 6, 1995; the Museum Square Condominium Association; and the Board

of Directors of the Museum Square Condominium Association. For the reasons set forth below, 2015 IL App (2d) 140865

we dismiss the appeal in part, affirm in part, reverse in part, and remand this matter for further

proceedings.

¶2 I. BACKGROUND

¶3 This appeal arises out of a dispute concerning the sale of a condominium unit. Plaintiffs,

the purchasers of the condominium unit, claim that limitations on the rental of the property were

not disclosed to them prior to the closing. Plaintiffs filed their complaint on October 15, 2013.

We take the following facts from plaintiffs’ complaint and the exhibits appended thereto. The

Museum Square Condominium (Condominium) is a residential condominium development

consisting of 56 units, located at 131 West Adelaide Street, Elmhurst, Illinois. The Museum

Square Condominium Association (Association) is the governing body of the Condominium.

The board of directors of the Association (Board) is responsible for directing and managing the

affairs of the Association. At all relevant times prior to June 21, 2013, the Thomas H. Baumbeck

Trust under an agreement dated July 6, 1995 (Trust), was the legal owner of Unit 305 (Unit) in

the Condominium. Thomas H. Baumbeck is the trustee of the Trust. 1

¶4 For several years prior to June 2013, plaintiffs were actively seeking to purchase a

condominium unit in Elmhurst. Plaintiffs intended to reside in the condominium unit after they

retired and sold their existing residence. Prior to such time, plaintiffs intended to lease the

condominium unit while simultaneously maintaining their existing residence. On or about April

28, 2013, plaintiffs and the Trust, acting through Baumbeck, entered into a written real estate

sales contract (Contract) whereby plaintiffs agreed to purchase the Unit from the Trust. On May

7, 2013, plaintiffs, through their attorney, Samuel J. Macaluso, requested that the Trust provide

1 For simplicity, we will refer to Thomas H. Baumbeck, both individually and in his

capacity as trustee of the Trust, as “Baumbeck.”

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“written notice to Buyer’s attorney of any changes in [the] condominium documents.” Further,

on May 16, 2013, during the attorney-review period, plaintiffs, through Macaluso, requested that

the Trust provide them with a comprehensive “22.1 Disclosure” (see 765 ILCS 605/22.1 (West

2012)), including the Condominium’s declaration, bylaws, 2013 budget, 2012 financial

statements, and 2012 and 2013 minutes of the meetings of the Board.

¶5 On May 22, 2013, an employee in the office of counsel for the Trust sent to Macaluso via

email a copy of a condominium declaration dated June 14, 2002 (2002 Declaration). The 2002

Declaration expressly permitted the lease of units in the Condominium. Specifically, paragraph

7 of the 2002 Declaration provided in relevant part that “[a]ny Unit Owner shall have the right to

lease, or permit a subsequent sublease or assignment of all (but not less than all) of his Unit upon

such terms and conditions as the Unit Owner may deem acceptable, except that no Unit shall be

leased, subleased or assigned for transient or hotel purposes.”

¶6 On June 21, 2013, plaintiffs attended the closing for their purchase of the Unit. Also

present at the closing were: Macaluso; the Trust’s attorney; the closing agent for the title

company; and Jill Bennis, the listing broker for the sale of the Unit. Plaintiffs’ intention to lease

the Unit during the first year of ownership was openly discussed at the closing, in the presence of

the Trust’s attorney. Moreover, at the closing, plaintiffs retained Bennis as the leasing broker to

procure a tenant for the Unit. To this end, on or about July 10, 2013, plaintiffs entered into a

lease agreement pursuant to which prospective tenants agreed to lease the Unit for a 12-month

term commencing on August 1, 2013, at a rental rate of $2,600 per month.

¶7 Unbeknownst to plaintiffs prior to the closing, in or about 2010, the Board and the

Association adopted an amendment to the 2002 Declaration (2010 Amendment) that, among

other things, (1) precluded a unit owner in the Condominium from renting his or her unit unless

such person owned and resided in the unit for a minimum of one year and (2) prohibited the

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rental of more than 10% of the units in the Condominium. (We refer to the foregoing provisions

of the 2010 Amendment as the “Rental Limitations.”) Baumbeck was a member of the Board as

well as vice president of the Association at all relevant times, and he personally voted against

adopting the Rental Limitations in 2009 when they were proposed. Prior to the closing, the 2010

Amendment was not provided to plaintiffs and the Rental Limitations were not otherwise

disclosed to plaintiffs. Rather, following the closing, plaintiffs discovered a binder of documents

containing the 2010 Amendment. The binder was tendered to plaintiffs at the closing by the

Trust’s attorney after the purchase of the Unit was funded and all documents were signed. As a

result of the Rental Limitations, plaintiffs were forced to terminate their lease with the

prospective tenants and sell the Unit.

¶8 Counts I and II of the complaint were directed against Baumbeck in his capacity as

trustee of the Trust. In count I, plaintiffs alleged a violation of section 22.1(a) of the

Condominium Property Act (Act) (765 ILCS 605/22.1(a) (West 2012)). Specifically, plaintiffs

asserted as follows. Section 22.1(a) of the Act provides that, in connection with any resale of a

condominium unit in Illinois, the seller must, upon demand, provide various documents to the

prospective purchaser, including “[a] copy of the Declaration, by-laws, other condominium

instruments and any rules and regulations.” On May 16, 2013, plaintiffs requested that

Baumbeck provide them with a comprehensive “22.1 Disclosure,” including the Condominium’s

declaration and bylaws and the minutes of meetings of the Board. Furthermore, by letter dated

May 7, 2013, plaintiffs expressly requested that Baumbeck provide them with “written notice

*** of any changes in [the] condominium documents.” Under section 22.1(a), Baumbeck had a

duty to provide plaintiffs, as prospective purchasers, “with the current Condominium

Declaration, Association Bylaws, and other rules and regulations affecting the *** Unit prior to

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Closing.” Baumbeck breached this duty and violated the Act by failing to provide the

aforementioned documents or to otherwise disclose the Rental Limitations prior to the closing.

¶9 Count II alleged that Baumbeck’s failure to provide plaintiffs with the 2010 Amendment

or to otherwise disclose the Rental Limitations prior to the closing constituted a breach of

contract. In support of this count, plaintiffs alleged the following. Plaintiffs and Baumbeck

entered into a valid and enforceable contract. Plaintiffs fully performed their obligations under

the Contract. However, Baumbeck failed to provide plaintiffs with the 2010 Amendment or

otherwise disclose the existence of the Rental Limitations prior to the closing. The failure to

provide plaintiffs with the 2010 Amendment or otherwise disclose the Rental Limitations prior

to the closing constituted a breach of the Contract.

¶ 10 Count II further alleged that every contract in Illinois contains an implied covenant of

good faith and fair dealing. By entering into the Contract, Baumbeck impliedly promised that he

would: (1) perform his contractual obligations in good faith, with proper motive, and not

arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the

parties; (2) in advance of the sale, make the disclosures required by the Contract and section

22.1(a) of the Act in a manner sufficient to apprise plaintiffs of the Rental Limitations and any

other rules, regulations, or restrictions affecting the Unit; (3) refrain from conduct that would

interfere with, frustrate, or preclude plaintiffs from obtaining ownership rights in the Unit

consistent with the provisions of the Condominium declaration and bylaws provided to plaintiffs

during the attorney-review period, including the right to lease the Unit during their first year of

ownership; and (4) convey ownership of the Unit to plaintiffs free of undisclosed restrictions that

would materially affect plaintiffs’ use and enjoyment of the Unit, including the right to lease the

Unit during their first year of ownership. In breach of the contractual obligations owed to

plaintiffs under the Contract, Baumbeck failed to provide plaintiffs with a copy of the 2010

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Amendment or otherwise disclose the Rental Limitations prior to the closing, but instead

surreptitiously included the 2010 Amendment in a binder of documents delivered to plaintiffs for

the first time after all documents were signed at the closing and after the transaction was funded.

By denying plaintiffs any reasonable opportunity to discover the 2010 Amendment and the

Rental Limitations prior to the closing, Baumbeck interfered with, frustrated, and precluded

plaintiffs from obtaining ownership rights in the Unit as contemplated by the Contract.

¶ 11 Counts III and IV of plaintiffs’ complaint were directed against Baumbeck, both

individually and in his capacity as trustee of the Trust. Count III of the complaint, titled

“Fraudulent Concealment,” alleged as follows. Baumbeck had constructive knowledge of the

Rental Limitations by virtue of his position as a member of the Board and vice president of the

Association when the Rental Limitations were voted upon and adopted. Baumbeck also had

actual knowledge of the Rental Limitations, as evidenced by the fact that he personally voted

against adopting them. He also knew that the Rental Limitations would materially affect an

owner’s use and enjoyment of the Unit, because, on information and belief, Baumbeck himself

was leasing the Unit to a tenant. Baumbeck knowingly concealed a material fact, i.e., the

existence of the Rental Limitations, with the intent to deceive plaintiffs and to induce the false

belief that nothing precluded plaintiffs from leasing the Unit, as evidenced by the fact that

Baumbeck surreptitiously included the 2010 Amendment in the binder of documents tendered to

plaintiffs for the first time after all documents were signed at the closing and after the transaction

was funded. Baumbeck had the opportunity, for several weeks prior to the closing, to provide

plaintiffs with a copy of the 2010 Amendment or otherwise disclose the Rental Limitations to

plaintiffs and was under a duty to disclose the Rental Limitations pursuant to section 22.1(a) of

the Act. Baumbeck had knowledge of the falsity of his misrepresentation, intended to deceive

plaintiffs, and intended that his misrepresentation induce plaintiffs to proceed with their purchase

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of the Unit. Plaintiffs reasonably and justifiably relied on the failure to disclose the Rental

Limitations. The Rental Limitations were material facts in connection with plaintiffs’ decision to

purchase the Unit, as plaintiffs would not have agreed to purchase the Unit had they known of

the Rental Limitations. Count IV of the complaint essentially repeated the allegations of count

III, except that, in lieu of fraudulent concealment, it alleged fraudulent misrepresentation.

¶ 12 Counts V and VI of plaintiffs’ complaint were directed against Baumbeck individually,

the Association, and the Board. In count V, plaintiffs sought to state a claim for breach of

fiduciary duty. In count VI, plaintiffs sought to state a claim for constructive fraud. The

allegations in counts V and VI were essentially identical and provided as follows. Upon the

closing, plaintiffs became owners in the Condominium and members of the Association.

Pursuant to the Act, the officers of the Association, the Board, and each individual member of

the Board owe a fiduciary duty to each unit owner in the Condominium. By operation of law, a

breach of fiduciary duty by a member of the Board results in liability for the Board and each of

its individual members. Baumbeck, the Board, and each individual member of the Board owed

plaintiffs (1) a fiduciary duty of care and loyalty and (2) the duty to act with the utmost honesty,

good faith, and fairness in all matters relating to the administration of the Association and

plaintiffs’ interest in the Unit. In breach of his fiduciary duty, Baumbeck failed to act honestly

and in good faith toward plaintiffs relative to their interests in the Unit by, among other things:

(1) failing to disclose the Rental Limitations; (2) affirmatively concealing the 2010 Amendment;

(3) ignoring, refusing, and rejecting plaintiffs’ efforts to address and remedy the fraudulent

conduct when detected after the closing; (4) intentionally remaining silent and failing to act

honestly and in good faith toward plaintiffs to address and remedy the fraudulent conduct when

detected after the closing; and (5) wrongfully placing his own personal interests above the

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interests of plaintiffs relative to the Unit. This breach of fiduciary duty results in liability for the

Board, each individual member of the Board, and the Association.

¶ 13 Counts V and VI further alleged that article IV, section 12, of the bylaws of the

Association provides that, with certain exceptions not applicable here, all meetings of the Board

shall be open to all members of the Association. In contravention of this provision, and in

breach of the fiduciary duties owed to plaintiffs, the Board (1) refused and rejected plaintiffs’

request to attend a special meeting the Board held on July 28, 2013, to furnish information

relating to the circumstances surrounding their purchase of the Unit and the concealment of the

Rental Limitations and (2) impeded and failed to cooperate with plaintiffs in their effort to

communicate with the Board concerning the circumstances surrounding their purchase of the

Unit and the concealment of the Rental Limitations. This breach of fiduciary duty and violation

of the bylaws was particularly damaging because, on information and belief, the Board accepted

as true, without any input from plaintiffs, certain false and defamatory statements by agents of

Lieberman Management Services, Inc., to the effect that plaintiffs had knowledge of the Rental

Limitations prior to the closing. Counts V and VI also alleged that the Board and the individual

members of the Board breached fiduciary duties owed to plaintiffs, separate and apart from any

imputed liability arising from the conduct of Baumbeck, by (1) failing to ensure that article IV,

section 12, of the bylaws was followed and (2) failing to properly investigate the facts and

circumstances surrounding plaintiffs’ purchase of the Unit and the concealment of the Rental

Limitations by Baumbeck. Both counts further alleged that the conduct of the Board and the

individual members of the Board was intentional, grossly negligent, and fraudulent.

¶ 14 With respect to each of the six counts in their complaint, plaintiffs alleged that they

suffered damages as a direct and proximate result of the foregoing conduct of Baumbeck, the

Association, and the Board. Plaintiffs attached to their complaint the following documents: (1) a

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copy of the Contract; (2) correspondence dated May 7, 2013, and May 16, 2013, between

Macaluso and the attorney for the Trust; (3) portions of the 2002 Declaration, including

paragraph 7; (4) a letter dated June 24, 2010, notifying unit owners that the Rental Limitations

had been adopted effective May 19, 2010, along with a copy of the text of the 2010 Amendment;

(5) the July 10, 2013, lease between plaintiffs and the prospective tenants; (6) Baumbeck’s

proxy/ballot dated November 15, 2009, showing his vote with respect to the proposal to impose

the Rental Limitations; and (7) article IV, section 12, of the Association’s bylaws.

¶ 15 On January 30, 2014, the Association and the Board moved to dismiss the counts against

them, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

2012)). In their motion, the Association and the Board asserted that the allegations in counts V

and VI stemmed almost exclusively from actions taken prior to the closing of the sale of the

Unit. The Association and the Board argued that they did not owe a fiduciary duty to plaintiffs

prior to the closing, as plaintiffs were not owners in the Association at that time. The

Association and the Board further asserted that plaintiffs’ remaining allegations—that the Board

refused to allow plaintiffs to attend a meeting after the closing—did not establish that a fiduciary

duty was breached. The Association and the Board also argued that the counts against them

should be dismissed based on an exculpatory provision contained in the Association’s bylaws

and on the business-judgment rule.

¶ 16 On February 27, 2014, the trial court granted the motion of the Association and the Board

and dismissed “without prejudice” counts V and VI against them. The court found that the

allegations against the Association and the Board were conclusory and without any factual basis.

In addition, the court questioned how prohibiting plaintiffs from attending the July 28, 2013,

meeting could constitute the proximate cause of plaintiffs’ damages. The court granted plaintiffs

leave to refile counts V and VI as they pertained to the Association and the Board.

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¶ 17 Also on February 27, 2014, Baumbeck filed a motion to dismiss the allegations against

him, pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2012)). With

respect to count I of the complaint, Baumbeck argued that plaintiffs did not have a cause of

action under the Act, because they failed to timely request the Condominium documents under

section 14(c) of the Contract, which provides that the buyer has five business days from the date

of acceptance to demand from the seller “items as stipulated by the [Act].” Baumbeck further

argued that, regardless of the timeliness of the request, plaintiffs had no remedy available under

the Act, as it provides only for preclosing remedies, e.g., terminating the Contract and requesting

the return of the earnest money. With respect to count II, Baumbeck claimed that, absent a

timely request from plaintiffs, he had no duty under the Contract to provide any Condominium

documentation to plaintiffs, and, therefore, there could be no cause of action for breach of

contract or for breach of the implied covenant of good faith and fair dealing. Baumbeck further

asserted that plaintiffs’ allegations of fraudulent concealment (count III), fraudulent

misrepresentation (count IV), and constructive fraud (count VI) must be dismissed because they

were based upon the alleged implied duty to provide plaintiffs with information regarding the

restrictions on renting the Unit and Illinois does not recognize a cause of action for fraud based

upon misrepresentations regarding implied obligations. Finally, Baumbeck argued that plaintiffs

failed to establish that he owed a fiduciary duty to plaintiffs as alleged in count V. In this regard,

Baumbeck noted that the Association owed a duty only to each unit owner, which plaintiffs

became only at the closing. He further stated that he was not a member or officer of the Board

once the property was sold to plaintiffs, as he was no longer a unit owner. In support of this

latter claim, Baumbeck attached his own affidavit.

¶ 18 On April 1, 2014, plaintiffs filed a response to Baumbeck’s motion to dismiss and a

motion to strike Baumbeck’s affidavit. With respect to the latter motion, plaintiffs argued that

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Baumbeck’s affidavit failed to satisfy the requirements of Illinois Supreme Court Rule 191 (eff.

Jan. 4, 2013), as it consisted of legal conclusions concerning his status with respect to the

Association and the Board.

¶ 19 On April 24, 2014, the trial court held a hearing on the parties’ motions. Initially, the

court denied plaintiffs’ motion to strike Baumbeck’s affidavit. The court then granted

Baumbeck’s motion and dismissed with prejudice all six counts against him. The order entered

on April 24, 2014, provides that it is “a final and appealable order.” On May 20, 2014, plaintiffs

filed a “Motion to Vacate, Alter and/or Amend” the judgment entered on April 24, 2014. On

August 5, 2014, following a hearing, the trial court denied plaintiffs’ motion in its entirety. The

August 5, 2014, order provides that the final-and-appealable language in the order of April 24,

2014, “was intended as a Rule 304(a) finding that there is no just reason to delay appeal.” See

Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). On August 29, 2014, plaintiffs filed a notice of appeal

from the orders entered on February 27, 2014, April 24, 2014, and August 5, 2014.

¶ 20 II. ANALYSIS

¶ 21 A. Jurisdiction

¶ 22 Before we reach the merits of plaintiffs’ appeal, we address the issue of our jurisdiction

as it pertains to the dismissal of counts V and VI against the Association and the Board.

Although neither the Association nor the Board contests jurisdiction in this case, we have an

independent duty to confirm our jurisdiction and dismiss an appeal, or portion thereof, if

jurisdiction is lacking. In re Marriage of Alyassir, 335 Ill. App. 3d 998, 999 (2003).

¶ 23 The counts against the Association and the Board were dismissed “without prejudice”

pursuant to the order entered by the trial court on February 27, 2014. Except as provided by

statute or the rules of our supreme court, a court of review lacks jurisdiction to review

judgments, orders, or decrees that are not final. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Department

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of Transportation ex rel. People v. 151 Interstate Road Corp., 209 Ill. 2d 471, 478 (2004); Cole

v. Hoogendoorn, Talbot, Davids, Godfrey & Milligan, 325 Ill. App. 3d 1152, 1153 (2001). Our

supreme court has stated that including in an order a statement that a dismissal is “without

prejudice,” such as occurred here, clearly manifests the intent of the trial court that the order not

be considered final and appealable. Pfaff v. Chrysler Corp., 155 Ill. 2d 35, 63 (1992), overruled

on other grounds by ABN Amro Mortgage Group, Inc. v. McGahan, 237 Ill. 2d 526 (2010);

Flores v. Dugan, 91 Ill. 2d 108, 114 (1982); see also Paul H. Schwendener, Inc. v. Jupiter

Electric Co., 358 Ill. App. 3d 65, 73 (2005) (“An order dismissing an action ‘without prejudice’

is not deemed final for purposes of appeal ***.”). In light of this authority, we lack jurisdiction

to consider that portion of plaintiffs’ appeal from the order of February 27, 2014, dismissing

counts V and VI against the Association and the Board.

¶ 24 In so finding, we acknowledge case law providing that “the effect of a dismissal order is

determined by its substance, and not by the incantation of any particular magic words.” Schal

Bovis, Inc. v. Casualty Insurance Co., 314 Ill. App. 3d 562, 568 (1999). However, as the

supreme court has stated, while “substance rather than form may determine whether a general

order of dismissal represents a final adjudication,” a court of review should “decline to engage in

any interpretation of an order which *** affirmatively indicates on its face that a final

adjudication was not made.” (Emphasis added.) Pfaff, 155 Ill. 2d at 62-63; see also Hynes v.

Department of Revenue, 269 Ill. App. 3d 697, 710 (1995) (noting that, where trial court’s order

does not indicate whether dismissal is with or without prejudice, a reviewing court must examine

the substance of the order to determine whether the order is final). As the Pfaff court explained,

when the trial court’s dismissal order contains the phrase “without prejudice,” a reviewing court

is not presented with the situation “where certain ‘magic words’ indicative of a final decision on

the merits were not included in a dismissal order such that it becomes necessary to look to the

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substance of the order.” Pfaff, 155 Ill. 2d at 63. In this case, the order entered on February 27,

2014, clearly indicates that the dismissal was “without prejudice.” Accordingly, it was not a

final and appealable order.

¶ 25 Even if we were to examine the substance of the February 27, 2014, dismissal order, we

would still find that we lack jurisdiction to consider plaintiffs’ appeal from the dismissal of

counts V and VI against the Association and the Board. “Normally an order striking or

dismissing a complaint is not final and therefore not appealable unless its language indicates the

litigation is terminated and the plaintiff will not be permitted to replead.” Cole, 325 Ill. App. 3d

at 1153; see also Schal Bovis, Inc., 314 Ill. App. 3d at 567-68 (holding that, if a pleading’s

deficiency can be cured by simple technical amendment, the order is not appealable, but if the

dismissal is due to a perceived legal deficiency, the order is final regardless of the inclusion of

the phrase “without prejudice”).

¶ 26 In this case, evidence other than the inclusion of the phrase “without prejudice” indicates

that the February 27, 2014, order is not final. First, in ruling on the motion to dismiss at issue,

the trial court clearly granted plaintiffs leave to refile the counts against the Association and the

Board. See Flores, 91 Ill. 2d at 114 (noting that a dismissal entered without prejudice to refile

clearly manifested the intent of the court that the order not be considered final and appealable);

Paul H. Schwendener, Inc., 358 Ill. App. 3d at 73. For instance, the court stated, “Now, if you

think you can try to amend [count V] in some manner [sic]. It’s the first time it’s been pled. ***

And if you think you may have something, you can try.” The court later added, “You have leave

to refile [count V] but you’re cautioned in regard to refiling that you’ll need to find something

more than not allow[ing] an individual to attend a meeting.” The court made a similar remark

when ruling on the dismissal of count VI against the Association and the Board, stating, “And if

you think you have something else other than the failure to attend a meeting, you are free to

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replead in that regard.” Importantly, these comments by the court suggest that the dismissal was

not due to a perceived legal deficiency. Cf. Krause v. USA DocuFinish, 2015 IL App (3d)

130585, ¶ 16 (holding that, although the trial court’s order did not explicitly state whether

dismissal was with prejudice, dismissal order was final and appealable because it was premised

upon a lack of jurisdiction and the trial court denied the plaintiff’s oral motion for leave to

amend); Schal Bovis, Inc., 314 Ill. App. 3d at 567-68 (concluding that, regardless of the inclusion

of “without prejudice” language, dismissal order was final because the trial court determined as a

matter of law that the plaintiffs had not suffered any legally cognizable damages). Second, we

find no indication that plaintiffs informed the trial court that they intended to stand on the counts

against the Association and the Board and thereafter sought a dismissal of those counts with

prejudice. See Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578, 588 (2003) (noting

that, where the trial court dismissed count without prejudice to refile, “[p]laintiff could have

chosen to stand on his complaint and sought an order dismissing the complaint with prejudice, as

a means of obtaining a final, appealable judgment”).

¶ 27 The fact that the trial court attached a finding pursuant to Illinois Supreme Court Rule

304(a) (eff. Feb. 26, 2010) to the order entered on April 24, 2014, does not alter our decision.

First, the April 24, 2014, order does not reference the motion to dismiss filed by the Association

and the Board. To the contrary, the April 24, 2014, order expressly indicates that it was entered

in response to Baumbeck’s motion to dismiss. The record establishes that a Rule 304(a) finding

was attached to the April 24, 2014, order because there remained pending a fee petition filed by

Baumbeck. The court did not include Rule 304(a) language in the order entered on February 27,

2014, which dismissed counts V and VI against the Association and the Board. More important,

a nonfinal order cannot be made final simply by including a Rule 304(a) finding. See DeLuna v.

St. Elizabeth’s Hospital, 147 Ill. 2d 57, 76 (1992) (noting that an order dismissing an action

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without prejudice is not final and cannot be made so simply by including a Rule 304(a) finding);

Paul H. Schwendener, Inc., 358 Ill. App. 3d at 73 (same); Schal Bovis, Inc., 314 Ill. App. 3d at

567 (noting that a final judgment is a requirement for appealability under Rule 304(a)).

¶ 28 Because the trial court’s order of February 27, 2014, is not a final order, we lack

jurisdiction to review it. Consequently, we are compelled to dismiss plaintiffs’ appeal from that

order and consider on the merits only their arguments as they relate to the propriety of the trial

court’s dismissal of the counts against Baumbeck. 2

2 During oral argument, plaintiffs’ counsel, citing the interests of judicial economy, urged

us to exercise jurisdiction and address the merits of the trial court’s order dismissing counts V

and VI against the Association and the Board since the trial court already addressed the issue, the

issue was fully briefed in this court, and the issue is likely to recur on remand. In support of this

argument, counsel directed us to Aasonn, LLC v. Delaney, 2011 IL App (2d) 101125, ¶ 27, and

People v. Braden, 243 Ill. App. 3d 671, 679 (1993). Having reviewed those cases, we fail to see

how they support plaintiffs’ position. Neither Aasonn, LLC, nor Braden stands for the

proposition that a reviewing court may exercise jurisdiction over a nonfinal order dismissing a

count without prejudice. See Aasonn, LLC, 2011 IL App (2d) 101125, ¶¶ 26-27 (reversing final

order of trial court dismissing the plaintiffs’ complaint for lack of personal jurisdiction, but

opting to address issue likely to recur on remand); Braden, 243 Ill. App. 3d at 678-79 (reversing

final order of the trial court requiring the defendant to forfeit and transfer certain weapons

pursuant to section 24-6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, ¶ 24-6) and

opting to address issue “likely to resurface” on remand). Accordingly, those cases do not allow

us to address the merits of the dismissal of counts V and VI against the Association and the

Board.

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¶ 29 B. Baumbeck’s Motion to Dismiss

¶ 30 The trial court granted Baumbeck’s motion to dismiss pursuant to section 2-619(a)(9) of

the Code (735 ILCS 5/2-619(a)(9) (West 2012)). A motion to dismiss pursuant to section 2-

619(a)(9) admits the legal sufficiency of the complaint but asserts some “affirmative matters”

outside of the pleading that defeat the claim. Barba v. Village of Bensenville, 2015 IL App (2d)

140337, ¶ 19. The term “affirmative matter” refers to something in the nature of a defense that

negates the cause of action completely or refutes crucial conclusions of law or conclusions of

material fact contained in or inferred from the complaint. Lawson v. Schmitt Boulder Hill, Inc.,

398 Ill. App. 3d 127, 130 (2010). On a section 2-619(a)(9) motion to dismiss, all well-pleaded

facts and the inferences arising from those facts must be taken as true. Chicago Title Insurance

Co. v. Teachers’ Retirement System, 2014 IL App (1st) 131452, ¶ 13. A reviewing court must

consider whether the existence of a genuine issue of material fact precluded the dismissal or,

absent such an issue of fact, whether the dismissal was proper as a matter of law. Springfield

Heating & Air Conditioning, Inc. v. 3947-55 King Drive at Oakwood, LLC, 387 Ill. App. 3d 906,

909 (2009). We review de novo a dismissal pursuant to section 2-619(a)(9). Barba, 2015 IL

App (2d) 140337, ¶ 19; In re G.M., 2012 IL App (2d) 110370, ¶ 10. Moreover, because we

review the trial court’s judgment, not its rationale, we may affirm for any reason supported by

the record regardless of the basis cited by the trial court. In re Estate of Mankowski, 2014 IL

App (2d) 140154, ¶ 40.

¶ 31 Additionally, the resolution of whether the trial court properly granted Baumbeck’s

motion to dismiss presents issues of statutory construction. Questions of statutory construction

are also reviewed de novo. In re G.M., 2012 IL App (2d) 110370, ¶ 11. The cardinal rule of

statutory construction is to ascertain and give effect to the intent of the legislature. Village of

Lake in the Hills v. Niklaus, 2014 IL App (2d) 130654, ¶ 15. The most reliable indicator of

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legislative intent is the language of the statute itself, which should be given its plain and ordinary

meaning. Village of Lake in the Hills, 2014 IL App (2d) 130654, ¶ 15. Where the language of

the statute is clear and unambiguous, it must be applied as written, without resort to other tools

of statutory construction. Village of Lake in the Hills, 2014 IL App (2d) 130654, ¶ 15.

Moreover, we should not depart from a statute’s plain language by reading into it exceptions,

limitations, or conditions that the legislature did not express, and we should avoid rendering any

part of the statute meaningless or superfluous. Village of Lake in the Hills, 2014 IL App (2d)

130654, ¶ 15. However, we may consider the consequences that would result from construing

the statute one way or another, and, in doing so, we presume that the legislature did not intend to

create absurd, inconvenient, or unjust results. Village of Lake in the Hills, 2014 IL App (2d)

130654, ¶ 15. Only where the language of the statute is ambiguous, or where a literal

interpretation of the statute would either lead to absurd results or thwart the goals of the statutory

scheme, may a court look beyond the express language of the statute and consider extrinsic aids

of construction. Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164, ¶ 30; NDC LLC

v. Topinka, 374 Ill. App. 3d 341, 359 (2007). With these principles in mind, we turn to

plaintiffs’ arguments.

¶ 32 1. Count I: Section 22.1(a) of the Act

¶ 33 As noted previously, count I of plaintiffs’ complaint was directed against Baumbeck in

his capacity as the trustee of the Trust and alleged a violation of section 22.1(a) of the Act (765

ILCS 605/22.1(a)(1) (West 2012)), based on Baumbeck’s failure to provide plaintiffs with the

current Condominium declaration, the bylaws, and other rules and regulations affecting the Unit

prior to the closing. The trial court dismissed this count, reasoning that plaintiffs had no post-

closing remedy for the failure to comply with section 22.1(a) of the Act. The trial court

concluded that the sole remedy available to a purchaser alleging a seller’s failure to comply with

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section 22.1(a) is termination of the purchase agreement prior to the closing. Plaintiffs argue that

the trial court’s conclusion is untenable, where Baumbeck failed to disclose information

requested pursuant to section 22.1(a) until after the closing and the withheld information

materially affected their rights in the Unit.

¶ 34 Section 22.1(a) of the Act (765 ILCS 605/22.1(a) (West 2012)) provides that, with

respect to “any resale of a condominium unit by a unit owner other than the developer such

owner shall obtain from the Board of Managers and shall make available for inspection to the

prospective purchaser, upon demand,” certain enumerated documents, including “[a] copy of the

Declaration, by-laws, other condominium instruments and any rules and regulations.” For

purposes of the Act, the term “Declaration” includes any amendments thereto. 765 ILCS

605/2(a) (West 2012). The disclosure requirements imposed by section 22.1 are intended “to

encourage disclosure by the seller of a condominium unit for the protection of the prospective

purchaser.” Mikulecky v. Bart, 355 Ill. App. 3d 1006, 1012 (2004); see also Nikolopulos v.

Balourdos, 245 Ill. App. 3d 71, 77 (1993). More specifically, section 22.1 is intended “to

prevent prospective purchasers from buying a unit without being fully informed and satisfied

with the financial stability of the condominium as well as the management, rules and regulations

which affect the unit [being purchased].” Nikolopulos, 245 Ill. App. 3d at 77.

¶ 35 Section 22.1 is silent with respect to any remedy for the violation of the disclosure

obligations imposed by the statute. The trial court interpreted this silence as precluding any

claim or remedy against a seller when the buyer does not discover until after the closing that the

disclosure obligations were not satisfied. However, the absence of statutory language expressly

authorizing a right of action does not preclude a private cause of action under a statute. See

Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386 (1982) (holding that, when a

statute is enacted to protect a particular class of individuals, courts may imply a private cause of

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action for a violation of that statute although no express remedy has been provided); Bier v.

Leanna Lakeside Property Ass’n, 305 Ill. App. 3d 45, 59 (1999) (noting that a private right of

action for a statutory violation can be implied). Indeed, as we discuss below, this principle was

applied with respect to the Act in Nikolopulos, 245 Ill. App. 3d 71.

¶ 36 In Nikolopulos, the buyer entered into a real estate sales contract in March 1990 for the

purchase of a condominium unit. In conjunction with the contract, the buyer made a deposit of

earnest money. Prior to the closing, the buyer’s attorney requested the condominium

association’s financial statements. In response, the seller’s attorney initially provided only the

financial statements for 1987 and 1988. However, at the closing, the seller’s attorney presented a

copy of the condominium association’s 1989 financial statement. The buyer’s attorney agreed to

extend the closing for one week to allow him to examine the 1989 financial statement and

investigate other issues that arose. The 1989 financial statement revealed that the

condominium’s windows had to be replaced at a cost of $2,750,000, and that the work would be

performed over a period of five to seven years. In light of this information, the buyer sought to

terminate the contract and demanded the return of his earnest money. The seller refused, and the

buyer brought a declaratory judgment action. The trial court entered judgment in favor of the

seller and held that the buyer forfeited his earnest money. On appeal, the buyer argued that,

pursuant to what is now section 22.1 of the Act, he retained the right to review the condominium

association’s 1989 financial statement and to terminate the sales contract if the financial

statement disclosed unsatisfactory information. The seller responded that the buyer could not

terminate the contract on the basis of information contained in the 1989 financial statement,

because such a right is not expressly provided by section 22.1 of the Act.

¶ 37 To determine whether section 22.1 of the Act created an implied remedy to terminate the

sales contract, the Nikolopulos court applied a four-part test. Under that test, an implied right of

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action exists if: (1) the plaintiff is within the class of persons the statute is designed to protect;

(2) implying a cause of action is consistent with the underlying purpose of the statute; (3) the

plaintiff’s injury is one the statute is designed to prevent; and (4) implying a cause of action is

necessary to effectuate the purpose of the statute. Nikolopulos, 245 Ill. App. 3d at 77. In

applying this test, the court concluded that under section 22.1 of the Act an implied right of

action existed under section 22.1 of the Act for a buyer to terminate the sales contract “within a

reasonable time after being furnished information revealing previously undisclosed material

expenses.” Nikolopulos, 245 Ill. App. 3d at 77. The court reasoned as follows:

“First, section [22.1] of the Act was clearly designed to protect prospective purchasers of

condominium units; therefore, [the buyer] falls within the intended protected class.

Second, implying that [the buyer] may terminate the contract, if unsatisfactory

information is disclosed by the documents, is consistent with assuring that a prospective

purchaser is fully informed and satisfied before he buys a condominium unit. Third, the

statute was designed to prevent prospective purchasers from buying a unit without being

fully informed and satisfied with the financial stability of the condominium as well as the

management, rules and regulations which affect the unit he is seeking to purchase.

Fourth, implying that if the information contained in the documents is unsatisfactory,

a prospective purchaser may terminate the contract and demand return of his earnest

money effectuates the purpose of the Act.” Nikolopulos, 245 Ill. App. 3d at 77.

The Nikolopulos court also reasoned that it would be “meaningless” to give a prospective

purchaser a right to review section 22.1 documents “if the purchaser is left without a remedy

when previously undisclosed financial conditions reveal a substantial additional financial burden

on the owners of condominium units or reveal previously undisclosed defects in the unit or

building.” Nikolopulos, 245 Ill. App. 3d at 76-77.

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¶ 38 Of course, Nikolopulos addressed a situation in which the seller’s failure to comply with

section 22.1 was discovered before the closing. Nevertheless, we find that the Nikolopulos

court’s reasoning applies equally where the buyer alleges that documents requested pursuant to

section 22.1 were concealed until after the closing. Under such circumstances, to deprive a

remedy to a buyer who does not discover a lack of compliance with his section 22.1 request until

after the closing would be just as meaningless as it would be to a buyer who discovers the

nondisclosure prior to the closing. Indeed, there is no language in Nikolopulos that limits a

buyers’s implied remedies under section 22.1 to pre-closing remedies. The Nikolopulos court

addressed only pre-closing remedies because, in that case, the nondisclosure was discovered

prior to the closing.

¶ 39 Moreover, given the purpose of section 22.1 of the Act, we find that a private right of

action should be implied under the factual scenario present in this case, where plaintiffs alleged

that Baumbeck concealed, until after the closing, documents they requested under section 22.1

and that the nondisclosure affected their ownership rights in the Unit. As noted above, the

purpose of section 22.1 is “to prevent prospective purchasers from buying a unit without being

fully informed and satisfied with the financial stability of the condominium as well as the

management, rules and regulations which affect the unit [being purchased].” Nikolopulos, 245

Ill. App. 3d at 77. Here, plaintiffs did not initiate their suit until after the sale of the Unit closed.

However, plaintiffs were prospective purchasers of the Unit when Baumbeck allegedly violated

section 22.1. Thus, they are members of the class of persons whom section 22.1 was designed to

protect. We also find that a right of action is consistent with the underlying purpose of section

22.1. In particular, affording a right of action to a prospective purchaser aggrieved by a seller’s

violation of the disclosure requirements is consistent with ensuring that a prospective purchaser

is fully informed and satisfied with matters affecting the condominium unit. Likewise, plaintiffs’

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complaint alleged that Baumbeck’s failure, prior to closing, to disclose the 2010 Amendment or

otherwise inform them of the Rental Limitations precluded their intended use of the Unit and

required them to sell the property. Thus, plaintiffs’ injury was of the kind that section 22.1 was

designed to prevent, i.e., the nondisclosure materially affected their rights in the Unit. Finally, as

noted previously, section 22.1 is silent regarding a remedy for violations of its provisions. The

disclosure obligations in section 22.1 would be ineffective, as a practical matter, if an aggrieved

purchaser has no remedy against a seller who conceals a requested disclosure until after the

closing. See Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 464 (1999) (noting that an

implied private right of action may be found under a statute where the statute would be

ineffective, as a practical matter, unless such an action were implied). Thus, implying a cause of

action is necessary to effectuate the purpose of the statute. For all these reasons, we hold that

section 22.1 creates an implied private right of action where the seller is alleged to have

concealed documents requested by the buyer pursuant to section 22.1, the concealment is not

discovered until after the closing, and the nondisclosure materially affects the buyer’s rights in

the condominium unit.

¶ 40 Mikulecky, 355 Ill. App. 3d 1006, supports the conclusion that a post-closing remedy

exists for the purchaser of a condominium unit where the seller’s failure to make the disclosures

requested by the purchaser pursuant to section 22.1 of the Act is not discovered until after the

closing. In Mikulecky, the plaintiff entered into a written real estate sales contract to purchase

the defendant’s condominium unit. On November 10, 1999, two days after the sales contract

was executed, the plaintiff’s attorney requested that the defendant disclose information pursuant

to section 22.1, including the condominium association’s proposed budget and a statement of

capital expenditures anticipated by the unit owners within the current or succeeding two fiscal

years. In a letter dated November 15, 1999, the defendant’s attorney refused to disclose any

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“anticipated” capital expenditures, but agreed to disclose those capital expenditures that were

“approved.” The plaintiff’s attorney rejected the proposed modification by striking the

paragraph in which the letter requested the modification. The plaintiff’s attorney then provided

the defendant with a blank condominium disclosure statement to be completed by a

representative of the condominium association. On November 18, 1999, the Association’s

property manager completed the disclosure statement, providing that capital expenditures were

anticipated for the current and next two years for façade repairs, roof replacement, concrete

repairs, and HVAC renovations. Upon receipt of the disclosure statement and the

condominium’s proposed budget, the plaintiff’s attorney contacted the property manager. The

property manager told the plaintiff’s attorney that no special assessments were anticipated and

that the association had sufficient reserves to cover the cost of any anticipated expenditures. The

sale of the property closed on January 29, 2000.

¶ 41 On May 10, 2000, the plaintiff attended a meeting of the board and learned that the

association planned numerous capital expenditures for the building, including custom

replacement windows at each owner’s expense. At that time, the plaintiff received a letter dated

October 27, 1999, from the condominium’s management company, detailing the proposed capital

expenditures for 2000, including the source of funding for the new windows. The plaintiff was

informed that she would be personally responsible for window-replacement expenses in excess

of $10,000. On December 8, 2000, the plaintiff filed a five-count complaint against the

defendant, alleging intentional misrepresentation, fraudulent misrepresentation, fraudulent

concealment, breach of contract, and violations of the Act. In a discovery deposition, the

defendant expressly denied either having received the letter of October 27, 1999, or having any

knowledge of the window-replacement project. The defendant subsequently moved for summary

judgment, which the trial court granted on December 23, 2002.

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¶ 42 On appeal, the plaintiff argued that the trial court erred in granting summary judgment,

because a question of fact remained as to the defendant’s knowledge of the proposed window-

replacement project. The appellate court agreed, reversing the trial court’s entry of summary

judgment and remanding the cause for further proceedings. Mikulecky, 355 Ill. App. 3d at 1010-

14. The court found that information pertinent to the financial status of the condominium

association was withheld from the plaintiff and that this information might have affected her

decision to purchase the defendant’s unit. Mikulecky, 355 Ill. App. 3d at 1013. As the court

explained:

“[T]he Act directs ‘a unit owner other than the developer’ to provide information

regarding anticipated capital expenditures ‘upon demand.’ Thus, upon demand, the seller

of a condominium unit is required to reveal any anticipated capital expenditures to the

prospective purchaser. In the event such disclosures are requested and not provided by

the seller, the purchaser should not be precluded from establishing a breach of the

statute by use of summary judgment.” (Emphasis added.) Mikulecky, 355 Ill. App. 3d at

1013-14.

Thus, Mikulecky tacitly establishes that a post-closing remedy exists for the purchaser of a

condominium unit where the seller fails to make the disclosures requested by the purchaser

pursuant to section 22.1 of the Act and the failure is not discovered until after the closing.

¶ 43 Baumbeck nevertheless argues that the principle of expressio unius est exclusio alterius

precludes us from recognizing a post-closing remedy under section 22.1, because a different

provision of the Act, section 22 (765 ILCS 605/22 (West 2012)), references only a pre-closing

remedy. The principle of expressio unius est exclusio alterius, literally “the expression of one

thing is the exclusion of another” (In re Application of the County Collector, 2014 IL App (2d)

140223, ¶ 18), signifies that “ ‘[w]here a statute lists the things to which it refers, there is an

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inference that all omissions should be understood as exclusions’ ” (In re Application of the

County Treasurer & ex officio County Collector, 378 Ill. App. 3d 842, 850-51 (2007) (quoting

Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997))). The principle is “an

aid of statutory construction, not a rule of law, and is subordinate to the primary rule that the

legislative intent controls in interpreting a statute.” People v. Roberts, 214 Ill. 2d 106, 117

(2005). “[The] maxim is applicable only to help ascertain the intent of the legislature when that

intent is not clear from the plain language of the statute.” Roberts, 214 Ill. 2d at 117.

¶ 44 In this case, we find defendant’s reliance on the principle of expressio unius est exclusio

alterius unpersuasive for several reasons. First, there is no need to resort to an aid of statutory

construction, because the legislative intent behind section 22.1 is clear. The provision is

intended to encourage disclosure by the seller of a condominium unit, for the protection of the

purchaser. Mikulecky, 355 Ill. App. 3d at 1012; Nikolopulos, 245 Ill. App. 3d at 77. Moreover,

the scope of sections 22 and 22.1 are different. Section 22 governs “the initial sale or offering

for sale” of a condominium unit, whereas section 22.1 applies to the “resale” of a condominium

unit. Compare 765 ILCS 605/22 (West 2012) with 765 ILCS 605/22.1 (West 2012). Section 22

expressly references only a pre-closing remedy (765 ILCS 605/22 (West 2012) (“Failure on the

part of the seller to make full disclosure as required by this Section shall entitle the buyer to

rescind the contract for sale at any time before the closing of the contract and to receive a refund

of all deposit moneys paid with interest thereon ***.”)). Thus, arguably, section 22 may be read

to exclude by omission any post-closing remedy for a seller’s failure to make disclosures in

relation to the initial sale or offering of a condominium unit. But see In re Application of the

County Treasurer & ex officio County Collector, 378 Ill. App. 3d at 850-51 (holding that the

enumeration of various post-deed remedies in section 22-45 of the Property Tax Code (35 ILCS

200/22-45 (West 2006)) did not preclude availability of pre-deed remedies under the principle of

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expressio unius est exclusio alterius). The same, however, cannot be said with respect to a

seller’s failure to make disclosures in relation to the resale of a condominium unit, because

section 22.1 is silent as to any remedy for a violation of its provisions.

¶ 45 Additionally, Baumbeck claims that plaintiffs’ rights under section 22.1 of the Act cannot

be rightfully addressed, because plaintiffs “contractually waived” their right to request

documents under that provision. Baumbeck alleges as follows. Section 14(c) of the Contract

grants the buyer five business days from the date of acceptance to demand from the seller “items

as stipulated by the *** Act.” Plaintiffs failed to make a timely request for section 22.1

documents under section 14(c) of the Contract. Baumbeck further alleges that, when plaintiffs

did eventually make a late request for the documents, he denied the request. We find that

Baumbeck has waived his “contractual waiver” argument. See People v. De La Paz, 204 Ill. 2d

426, 433 (2003) (noting that a party “may waive waiver”).

¶ 46 In this regard, the record unequivocally establishes that, on May 16, 2013, Macaluso

requested from Baumbeck a comprehensive section 22.1 disclosure, including the

Condominium’s declaration, bylaws, and budget. At that time, Baumbeck did not deny

plaintiffs’ request on the basis that it was untimely. Instead, Baumbeck’s attorney responded to

plaintiffs’ demand by forwarding a copy of the 2002 Declaration. Baumbeck cannot now argue

that plaintiffs waived their right to the section 22.1 disclosure because their request was

untimely, where Baumbeck affirmatively responded to plaintiffs’ request by partially complying

with it. In addition, the purpose of the statute does not comport with Baumbeck’s suggestion that

the failure to produce all information requested by the purchaser of a condominium unit may be

abrogated by claiming an unstated denial of production. The seller, if he is to invoke a

timeliness claim, should expressly state so rather than stand mute or provide only the information

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that he or she chooses. Accordingly, we hold that Baumbeck waived his claim that plaintiffs

contractually waived their right to request documents under section 22.1.

¶ 47 In short, we find nothing in section 22.1 of the Act that precludes a post-closing remedy

where the seller fails to make the disclosures requested by the purchaser pursuant to section 22.1

of the Act, the nondisclosure is not discovered until after the closing, and the nondisclosure

materially affects the buyer’s rights in the condominium unit. Accordingly, the trial court erred

in dismissing count I of plaintiffs’ complaint on the basis that the statute precludes a post-closing

remedy to redress a violation of its provisions.

¶ 48 B. Count II: Breach of Contract/Breach of Covenant of Good Faith and Fair Dealing

¶ 49 Next, plaintiffs argue that the trial court erred in concluding that count II of their

complaint failed to state a claim for breach of contract or for breach of the implied covenant of

good faith and fair dealing. The trial court dismissed count II, stating that “[t]here’s no breach of

contract in any manner.” The court explained that nothing in the Contract required Baumbeck to

provide the 2010 Amendment or otherwise disclose the Rental Limitations prior to the closing

and that there was no demand on plaintiffs’ part that he specifically disclose any rental

limitations. As an additional basis for dismissing count II, the court cited the absence of a post-

closing remedy for a violation of the disclosure requirements of section 22.1 of the Act. The

court also found that there is no independent cause of action for breach of the implied covenant

of good faith and fair dealing.

¶ 50 We first address the trial court’s finding that plaintiffs failed to state a cause of action for

breach of contract. To state a valid cause of action for breach of contract, a plaintiff must allege:

(1) the existence of a valid and enforceable contract; (2) the performance of the contract by the

plaintiff; (3) the breach of the contract by the defendant; and (4) a resulting injury to the plaintiff.

Klem v. Mann, 279 Ill. App. 3d 735, 740-41 (1996); Hickox v. Bell, 195 Ill. App. 3d 976, 992

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(1990). In this case, plaintiffs’ complaint alleged each of these elements. First, paragraphs 16

and 43 of the complaint alleged that on or about April 28, 2013, plaintiffs and Baumbeck entered

into a valid and enforeceable contract. Further, paragraph 44 of the complaint alleged that

plaintiffs performed their obligations under the contract. Paragraphs 45 and 46 of the complaint

allege that Baumbeck breached his obligations under the Contract by failing to provide plaintiffs

with the 2010 Amendment or otherwise disclose the Rental Limitations prior to the closing.

Paragraph 53 of the complaint alleged that, as a direct and proximate result of the alleged breach

of contract, plaintiffs suffered damages. Accordingly, we find that plaintiffs have adequately

alleged facts stating a cause of action for breach of contract.

¶ 51 Baumbeck nevertheless claims that plaintiffs failed to allege any indication that he had an

actual duty, contained within the Contract, to provide Condominium documents to plaintiffs.

However, the disclosure obligations set forth in section 22.1 of the Act were incorporated into

the Contract as a matter of law. See Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 217

(1997) (“As a general principle of contract law, statutes and laws in existence at the time a

contract is executed are considered part of the contract.”); Schiro v. W.E. Gould & Co., 18 Ill. 2d

538, 544 (1960) (“It is settled that all contracts for the purchase and sale of realty are presumed

to have been executed in the light of existing law ***.”); Mitchell Buick & Oldsmobile Sales,

Inc. v. McHenry Savings Bank, 235 Ill. App. 3d 978, 985 (1992) (“The existing laws and statutes

become implied terms of [a] contract as a matter of law.”). In addition, “[i]t is presumed that

parties contract with knowledge of the existing law.” Braye, 175 Ill. 2d at 217. Thus, the

disclosure requirements imposed by section 22.1 of the Act are deemed part of the Contract, and

Baumbeck was presumed to know that, upon demand from plaintiffs, he was required to disclose

the documents set forth in section 22.1 of the Act.

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¶ 52 Baumbeck contends that plaintiffs never informed him that they were purchasing the Unit

as a rental property. However, Baumbeck cites no authority that required plaintiffs to inform

him of their intended use of the Unit. To the contrary, section 22.1 of the Act imposes an

affirmative obligation on the seller to disclose to the buyer, upon demand, a copy of the

declaration, the bylaws, other condominium instruments, and any rules and regulations affecting

the condominium unit being purchased. Baumbeck also reiterates his claim that plaintiffs failed

to perform their duty under the Contract to make a timely request for documents. According to

Baumbeck, plaintiffs had a duty to request section 22.1 documents no later than May 3, 2013.

However, as we discussed above, Baumbeck waived his claim that plaintiffs’ section 22.1

request was untimely.

¶ 53 Plaintiffs further maintain that count II of their complaint stated a separate claim for

breach of the implied covenant of good faith and fair dealing. Although the covenant of good

faith and fair dealing is implied in every contract (The Reserve at Woodstock, LLC v. City of

Woodstock, 2011 IL App (2d) 100676, ¶ 42), in Voyles v. Sandia Mortgage Corp., 196 Ill. 2d

288, 295-96 (2001), the supreme court held that an independent cause of action for breach of that

implied covenant does not exist except in the narrow context of cases involving an insurer’s

obligation to settle with a third party who has sued a policyholder. Pursuant to Voyles, the trial

court properly dismissed that portion of count II of plaintiffs’ complaint asserting a separate

cause of action for breach of the implied covenant of good faith and fair dealing. See Lozman v.

Putnam, 328 Ill. App. 3d 761, 766-67 (2002) (affirming dismissal of count alleging breach of

covenant of good faith and fair dealing); 7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 409 (2001)

(noting that our supreme court has recognized cause of action for breach of duty of good faith

and fair dealing in only limited circumstances).

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¶ 54 Accordingly, we reverse that portion of the trial court’s order dismissing count II on the

basis that plaintiffs failed to state a cause of action for breach of contract. We affirm that portion

of the trial court’s order dismissing count II on the basis that, under the facts of this case, there is

no independent cause of action for breach of the covenant of good faith and fair dealing.

¶ 55 C. Counts III and IV: Fraudulent Concealment and Fraudulent Misrepresentation

¶ 56 Next, plaintiffs argue that the trial court erred in concluding that counts III and IV of their

complaint failed to state claims for fraudulent concealment and fraudulent misrepresentation,

respectively. The trial court dismissed those claims on the basis that there was “absolutely no

representation” concerning the existence or nonexistence of the 2010 Amendment or the Rental

Limitations.

¶ 57 Count III of plaintiffs’ complaint attempted to state a cause of action for fraudulent

concealment. To state a claim for fraudulent concealment, a plaintiff must allege that (1) the

defendant concealed a material fact under circumstances that created a duty to speak; (2) the

defendant intended to induce a false belief; (3) the plaintiff could not have discovered the truth

through reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or

inspection, and justifiably relied upon the defendant’s silence as a representation that the fact did

not exist; (4) the concealed information was such that the plaintiff would have acted differently

had he or she been aware of it; and (5) the plaintiff’s reliance resulted in damages. Bauer v.

Giannis, 359 Ill. App. 3d 897, 902-03 (2005).

¶ 58 As noted previously, count III of plaintiffs’ complaint alleged as follows. Baumbeck had

knowledge of the Rental Limitations and knowingly concealed them by surreptitiously including

the 2010 Amendment in the binder of documents tendered to plaintiffs for the first time at the

closing after all documents were signed and after the transaction was funded. The concealment

of the Rental Limitations was intended to induce a false belief that nothing precluded plaintiffs

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from leasing the Unit. Baumbeck had the opportunity for several weeks prior to the closing to

provide plaintiffs with a copy of the 2010 Amendment or otherwise disclose the Rental

Limitations to plaintiffs and was under a duty to do so pursuant to section 22.1 of the Act.

Plaintiffs would not have agreed to purchase the Unit had they known of the Rental Limitations.

Plaintiffs suffered damages as a direct and proximate result of the fraudulent concealment

alleged.

¶ 59 In Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 500 (1996), the supreme court stated

that, under the first element of a claim for fraudulent concealment, a duty to speak arises if the

plaintiff and the defendant are in a fiduciary or confidential relationship. Such a relationship

exists as a matter of law between: attorneys and clients; principals and agents; guardians and

wards; and members of a partnership or joint venture. Bremer v. Bremer, 411 Ill. 454, 465

(1952); Hassan v. Yusuf, 408 Ill. App. 3d 327, 345-46 (2011). Where a fiduciary or confidential

relationship does not exist as a matter of law, “facts from which a fiduciary relationship arises

must be pleaded and proved by clear and convincing evidence.” Magna Bank of Madison

County v. Jameson, 237 Ill. App. 3d 614, 618 (1992); see also Fichtel v. Board of Directors of

the River Shore of Naperville Condominium Ass’n, 389 Ill. App. 3d 951, 962-63 (2009). In this

regard, a duty to speak may arise from a relationship in which the defendant is placed “in a

position of influence and superiority over [the] plaintiff” by reason of “friendship, agency, or

experience.” Connick, 174 Ill. 2d at 500.

¶ 60 Absent from count III of plaintiffs’ complaint is any allegation that Baumbeck occupied a

fiduciary or confidential relationship resulting in a duty to disclose the 2010 Amendment and the

Rental Limitations. Plaintiffs argue that nothing in Connick suggests or implies that a duty to

disclose could not arise from the Act. However, the only case they cited that remotely supports

this proposition is Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154 (1986). The

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Zimmerman court held that real estate brokers have a duty to disclose material facts under the

Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, ¶ 5701 et seq.),

since they “occupy a position of trust with respect to purchasers with whom they are negotiating

and owe a duty to exercise good faith in their dealing with such purchasers even absent the

existence of an agency relationship.” Zimmerman, 156 Ill. App. 3d at 162. In this case, although

plaintiffs alleged that Baumbeck had a duty to provide the 2010 Amendment or otherwise

disclose the Rental Limitations pursuant to section 22.1 of the Act, they did not allege that a

fiduciary or confidential relationship exists as a matter of law between a seller and a buyer of a

condominium unit, and they did not plead that Baumbeck, as the seller of the Unit, occupied a

position of influence and superiority over them as buyers by reason of friendship, agency,

experience, or otherwise such that a duty to speak arose. Moreover, assuming arguendo that

plaintiffs established a duty to disclose under the Act arising from a fiduciary or confidential

relationship, plaintiffs’ fraudulent-concealment count fails for an entirely separate reason.

Plaintiffs’ complaint lacks any allegation that they could not have discovered the truth through

reasonable inquiry or inspection, or were prevented from making a reasonable inquiry or

inspection. For these reasons, we conclude that the trial court properly dismissed count III of

plaintiffs’ complaint.

¶ 61 Likewise, we conclude that the trial court properly dismissed count IV of plaintiffs’

complaint. Although count IV is captioned as “Fraudulent Misrepresentation,” plaintiffs alleged

that Baumbeck’s act of concealing the 2010 Amendment and the Rental Limitations constituted

the fraudulent misrepresentation. To prove that a concealment constituted a fraudulent

misrepresentation, the plaintiff must show: (1) the defendant concealed a material fact; (2) the

concealment was intended to induce a false belief; (3) the plaintiff could not have discovered the

truth through a reasonable inquiry or inspection and relied upon the silence as a representation

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that the fact did not exist; (4) the concealed information was such that the plaintiff would have

acted differently if he had been aware of it; and (5) the reliance by the plaintiff led to his injury.

Lane v. Anderson, 345 Ill. App. 3d 256, 263 (2004). In this case, the allegations in count IV of

plaintiffs’ complaint, which essentially mirror those in count III, fail to allege the third element.

That is, plaintiffs did not allege that they could not have discovered the 2010 Amendment or the

Rental Limitations through a reasonable inquiry or inspection or that they relied upon

Baumbeck’s silence as a representation that the Rental Limitations did not exist. Accordingly,

we also conclude that count IV of plaintiffs’ complaint was properly dismissed.

¶ 62 D. Counts V and VI: Breach of Fiduciary Duty and Constructive Fraud

¶ 63 Next, plaintiffs argue that the trial court erred in concluding that count V and count VI

failed to state claims for breach of fiduciary duty and constructive fraud, respectively. The trial

court dismissed counts V and VI against Baumbeck, explaining:

“Breach of fiduciary duty in paragraph 5 [sic]. And in regard to Mr. Baumbeck

himself as an individual, there’s nothing in the contract that created any duties for Mr.

Baumbeck to do anything in regard to these buyers except comply with the terms of the

contract and comply to [sic] demands that were made. And if demands were made that

weren’t complied with in regard to the Condo Declaration and the *** Act, buyers have

their remedy not to close. Other than that, there are no other representations or

warranties in the contract and no duties created other than the duties created by the

contract. There’s no individual duty by Mr. Baumbeck as a board member or the

association or the like, that’s created in any manner pursuant to the four corners of the

contract, and paragraph 5 can’t survive in light of that.

And when you get down to Count Six, constructive fraud against Mr. Baumbeck

as an individual *** there hasn’t been shown any aspect of fraud. There’s no

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representation, there’s no misrepresentation, there’s nothing contractually, there’s

nothing pursuant to attorney approval, there’s no additional documentation, there’s no

evidence of additional representations and warranties that are made in any sense of the

word, dealing with whether this—they can use this as a rental property or not. And when

*** they’re taking it tenancy by the entirety, there’s no expectation they’re going to rent

this property out ***. They can’t rent out tenants by the entirety property.”

¶ 64 A fiduciary relationship exists where there is special confidence reposed in one who, in

equity and good conscience, is bound to act in good faith with due regard to the interest of the

other. Wolinsky v. Kadison, 114 Ill. App. 3d 527, 533 (1983). “[A]ssociation officers and board

members owe a fiduciary or quasi-fiduciary duty to the members of the association ***.”

Wolinsky, 114 Ill. App. 3d at 533-34; see also 765 ILCS 605/18.4 (West 2012) (“In the

performance of their duties, the officers and members of the board *** shall exercise the care

required of a fiduciary of the unit owners.”). As part of this fiduciary duty, members of the

board are required to comply with the procedures in the condominium’s bylaws and the strictures

of the Act. Davis v. Dyson, 387 Ill. App. 3d 676, 692 (2008). To state a claim for breach of

fiduciary duty, a plaintiff must allege: (1) the existence of a fiduciary duty; (2) the breach of that

duty; and (3) damages proximately caused thereby. Duffy v. Orlan Brook Condominium

Owners’ Ass’n, 2012 IL App (1st) 113577, ¶ 17.

¶ 65 Plaintiffs argue that the trial court erred as a matter of law in dismissing their claim

against Baumbeck for breach of fiduciary duty on the basis that the Contract did not create such

a duty. Plaintiffs assert that a fiduciary duty arises as a matter of law, not contract. See Kovac v.

Barron, 2014 IL App (2d) 121100, ¶ 63. Plaintiffs contend that, pursuant to section 18.4 of the

Act (765 ILCS 605/18.4 (West 2012)), Baumbeck, as a member of the board and the vice

president of the Association, owed them a fiduciary duty “upon their purchase of the Unit.”

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Plaintiffs cite instances of both pre-closing and post-closing conduct that they allege to have

breached this duty, including: (1) failing to disclose the Rental Limitations; (2) affirmatively

concealing the 2010 Amendment; (3) ignoring, refusing, and rejecting their efforts to address and

remedy the fraudulent conduct when detected after the closing; (4) intentionally remaining silent

and failing to act honestly and in good faith toward plaintiffs to address and remedy the

fraudulent conduct when detected after the closing; and (5) wrongfully placing his own personal

interests above the interests of plaintiffs relative to the Unit.

¶ 66 To the extent that the trial court dismissed count V on the basis that a breach of fiduciary

duty requires a breach of duty imposed by contract, we agree with plaintiffs that the trial court

erred, because a fiduciary duty arises as a matter of law from the relationship of the parties, not

from contract. See Kovac, 2014 IL App (2d) 121100, ¶ 63; Miller v. Harris, 2013 IL App (2d)

120512, ¶ 19. Nevertheless, for the reasons set forth below, we affirm the trial court’s dismissal

of count V.

¶ 67 As noted above, section 18.4 of the Act (765 ILCS 605/18.4 (West 2012)) sets forth the

powers and duties of the members of the board of a condominium association. Relevant here,

section 18.4 states, “In the performance of their duties, the officers and members of the board

*** shall exercise the care required of a fiduciary of the unit owners.” 765 ILCS 605/18.4 (West

2012). The fiduciary duty set forth in section 18.4 is owed by the condominium’s board as well

as the board’s individual members. Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2014

IL App (1st) 111290, ¶ 94; see also Board of Managers of Weathersfield Condominium Ass’n v.

Schaumburg Ltd. Partnership, 307 Ill. App. 3d 614, 622 (1999) (noting that, because board

members owe a fiduciary duty to the members of the association, they must act in a manner

reasonably related to the exercise of that duty and the failure to do so will result in liability not

only for the board, but for the individual members as well). Plaintiffs assert that Baumbeck

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breached the fiduciary duty created by section 18.4, with respect to both pre-closing and post-

closing conduct. However, as section 18.4 makes clear, the Board and its individual members

owe a duty only to each unit owner. See 765 ILCS 605/18.4 (West 2012). Plaintiffs did not

become unit owners until the closing of the transaction. As such, Baumbeck could not owe a

fiduciary duty to plaintiffs with respect to any pre-closing conduct, and any allegation that

Baumbeck breached his fiduciary duty before the closing of the sale of the Unit must fail.

¶ 68 Moreover, in support of his motion to dismiss, Baumbeck submitted an affidavit attesting

to the fact that he was no longer a member of the board “upon the close of the subject property or

thereafter.” Because Baumbeck was not a member of the Board at any time after the sale of the

Unit, any allegations that Baumbeck breached his fiduciary duty after the closing were also

properly dismissed.

¶ 69 Plaintiffs assert that the trial court should have struck Baumbeck’s affidavit because it

failed to satisfy the requirements of Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013).

According to plaintiffs, the affidavit consisted of legal conclusions concerning Baumbeck’s

status vis-à-vis the Association, and not facts admissible in evidence as required by Rule 191.

Plaintiffs further assert that, even if the statements were factual statements, they were lacking in

specific factual support. Baumbeck responds that the court refused to hear plaintiffs’ motion to

strike, because they failed to properly bring the motion before the court. Alternatively,

Baumbeck argues that plaintiffs’ assertion is without merit because the statements in his affidavit

were of facts within his knowledge and did not consist of legal conclusions.

¶ 70 At the outset, we note that the trial court found that plaintiffs’ motion to strike

Baumbeck’s affidavit was not properly brought before the court. The court explained that

plaintiffs, as the movants, “had the obligation” to provide the court with the motion to strike.

The court stated that, because plaintiffs did not provide it with the motion “in advance,” it would

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not consider it. Nevertheless, plaintiffs informed the court that the motion was also included in

their response to Baumbeck’s motion to dismiss. In fact, the court ultimately addressed the

propriety of the affidavit and declined to strike it.

¶ 71 Courts of review in this state have assessed a decision whether to strike a Rule 191

affidavit under both an abuse-of-discretion standard and a de novo standard. Compare Farmers

Automobile Insurance Ass’n v. Neumann, 2015 IL App (3d) 140026, ¶ 14 (applying abuse of

discretion), with Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 386 (2009)

(applying de novo standard). We need not resolve the dispute regarding the appropriate standard

of review, as our result would be the same under either standard. Rule 191 provides that

affidavits submitted in connection with a motion for involuntary dismissal under section 2-619 of

the Code “shall be made on the personal knowledge of the affiants; shall set forth with

particularity the facts upon which the claim, counterclaim, or defense is based; shall have

attached thereto sworn or certified copies of all documents upon which the affiant relies; shall

not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that

the affiant, if sworn as a witness, can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. Jan.

4, 2013). This court has noted that Rule 191 is satisfied if, after review of the affidavit as a

whole, it appears that the affidavit is based upon the personal knowledge of the affiant and there

is a reasonable inference that the affiant could competently testify to its contents at trial.

McDonald v. Lipov, 2014 IL App (2d) 130401, ¶ 34; see also Piser v. State Farm Mutual

Automobile Insurance Co., 405 Ill. App. 3d 341, 349 (2010).

¶ 72 In the affidavit that Baumbeck attached to his motion to dismiss, he stated in relevant part

that he was neither a member of the Board nor an officer of the Association “upon the close of

the subject property or thereafter.” We agree with Baumbeck that these statements consist of

facts within his personal knowledge and therefore satisfy the requirements of Rule 191. In

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particular, it appears that the affidavit is based upon Baumbeck’s personal knowledge regarding

his role as a member of the Board and an officer of the Association. Further, there is a

reasonable inference that Baumbeck could competently testify to its contents at trial. Thus, after

reviewing the affidavit as a whole, we find that it satisfied Rule 191 and that the trial court did

not err in refusing to strike it.

¶ 73 Plaintiffs nevertheless claim that, contrary to the statements contained in Baumbeck’s

affidavit, “the documents” reflect that Baumbeck remained on the Board after the closing on

June 21, 2013. “The documents” cited in support of plaintiffs’ claim is actually one document,

the minutes of the July 8, 2013, Board meeting, which occurred several weeks after the closing.

However, the minutes actually support the statements in Baumbeck’s affidavit. The minutes list

Baumbeck as an “absent” member of the Board but later state in relevant part that “[i]t was noted

that Tom Baumbeck has sold his unit and is thus no longer a member of the Board, leaving an

open Board seat which the Board can fill by appointing someone.” (Emphasis added.) At that

same meeting, the Board appointed another individual to fill the open seat. In other words, the

import of the minutes is that Baumbeck ceased being a member of the Board upon the sale of the

Unit to plaintiffs.

¶ 74 Plaintiffs also argue that the trial court improperly dismissed count VI of their complaint,

which alleged constructive fraud. “Constructive fraud is ‘anything calculated to deceive,

including acts, omissions and concealments involving a breach of legal or equitable duty, trust or

confidence resulting in damage to another.’ ” Kovac, 2014 IL App (2d) 121100, ¶ 64 (quoting

Duffy, 2012 IL App (1st) 113577, ¶ 33). As one court explained, constructive fraud “springs”

from the breach of a fiduciary duty. La Salle National Trust, N.A. v. Board of Directors of the

1100 Lake Shore Drive Condominium, 287 Ill. App. 3d 449, 455 (1997). The elements of

constructive fraud are: (1) a fiduciary relationship; (2) a breach of the duties that are imposed as

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a matter of law because of that relationship; and (3) damages. Kovac, 2014 IL App (2d) 121100,

¶ 64. Plaintiffs insist that their complaint satisfied all three of these elements. However,

inasmuch as plaintiffs cannot establish the existence of a fiduciary duty with respect to the

breach-of-fiduciary-duty count, they also fail to establish the existence of a fiduciary duty with

respect to the constructive-fraud count. Accordingly, we also affirm the dismissal of count VI of

¶ 75 III. CONCLUSION

¶ 76 For the reasons set forth above, we dismiss that portion of plaintiffs’ appeal from the trial

court’s order dismissing without prejudice counts V and VI of their complaint against the

Association and the Board. We affirm the trial court’s ruling with respect to Baumbeck’s

affidavit. We also affirm the dismissal of count II of plaintiffs’ complaint to the extent that it

alleged a breach of the implied covenant of good faith and fair dealing as an independent cause

of action, count III (fraudulent concealment), count IV (fraudulent misrepresentation), count V

against Baumbeck (breach of fiduciary duty), and count VI against Baumbeck (constructive

fraud). We reverse the trial court’s order dismissing with prejudice count I of plaintiffs’

complaint and that portion of count II alleging breach of contract. This cause is remanded for

further proceedings consistent with this opinion.

¶ 77 Appeal dismissed in part; affirmed in part and reversed in part; cause remanded.

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