Kupper v. Powers

2017 IL App (3d) 160141, 71 N.E.3d 347

• Court: Appellate Court of Illinois
• Decided: January 30, 2017
• Docket: 3-16-0141
• Status: Unpublished

Opinion

2017 IL App (3d) 160141

Opinion filed January 30, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

ROBERT H. KUPPER II, KEVIN I. KUPPER, ) Appeal from the Circuit Court ALAN KUPPER, and DAVID G. KUPPER, ) of the 10th Judicial Circuit, as Beneficiaries of the Heritage Bank of Central ) Peoria County, Illinois, Illinois, as Trustee Under the Provisions of a ) Trust Agreement dated the 27 day of January, ) 2006, Known as Trust No. 20-101, ) ) Appeal No. 3-16-0141 Plaintiffs and Counterdefendants- ) Circuit No. 14-LM-106 Appellees, ) ) v. ) ) ROBERT L. POWERS, ) ) Honorable Defendant and Counterplaintiff- ) Katherine S. Gorman, Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Robert L. Powers, appeals the dismissal of his third amended

countercomplaint and the trial court’s order granting summary judgment in favor of plaintiffs.

Specifically, defendant argues that the trial court erred in dismissing his fraudulent

misrepresentation claim because the alleged false statements made by plaintiffs, Robert H.

Kupper II, Kevin I. Kupper, Alan Kupper, and David G. Kupper, as beneficiaries of the Heritage Bank of Central Illinois, as trustee under the provisions of a trust agreement dated January 27,

2006, known as trust No. 20-101, were false statements of material fact. Defendant contends that

the trial court erred in dismissing his negligent misrepresentation claim because plaintiffs owed a

public duty to convey accurate information about the zoning of the premises. Defendant also

argues that the trial court erred in dismissing with prejudice his claim that plaintiffs violated the

Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1

et seq. (West 2014)), which was pled in his first amended countercomplaint. Additionally,

defendant contends that the trial court erred in granting plaintiffs’ motion for summary judgment

because (1) the trial court lacked jurisdiction to rule on the motion and (2) there were genuine

issues of material fact. We affirm.

¶2 FACTS

¶3 On September 29, 2006, plaintiffs and defendant signed a written “Agreement for

Warranty Deed” (Agreement) under which plaintiffs agreed to sell a building located at 255

Northeast Randolph Avenue in Peoria, Illinois, (the premises) to defendant for $215,000.

Defendant was to make a down payment of $21,500 at the time the Agreement was signed and

then monthly payments in the amount of $1300 until October 1, 2013. The entire remaining

unpaid principal and interest were due on October 1, 2013. The Agreement provided, in relevant

part, as follows:

“4. REAL ESTATE TAXES. Buyer agrees to pay all real estate taxes and

assessments that may be legally levied upon the Premises after the date of

possession. ***

2 5. DEFAULT. If Buyer fails to make any payment or perform any other

covenant as provided herein, at the option of Seller (in addition to any other

remedies available to Seller):

A. This Agreement shall be forfeited and determined, and Buyer

shall forfeit all payments made on this Agreement and such payments

shall be retained by Seller in full satisfaction and in liquidation of damages

sustained by Seller (except as provided at Article 18), and Seller shall

have the right to re-enter and take possession of the Premises; or

***

6. POSSESSION. Seller agrees to give possession of the Premises to

Buyer October 1, 2006.

18. ATTORNEY’S FEES; RENT. If either party should find it necessary

to retain an attorney for the enforcement of any of the provisions hereunder

occasioned by the fault of the other party, the party not in default shall be entitled

to recover for reasonable attorney’s fees and court costs incurred ***. Buyer

agrees that attorney’s fees, court costs, accrued real estate taxes and title costs are

recoverable by Seller even though the Premises may be forfeited *** under the

provisions of Article 5.

Buyer further agrees that Seller may recover from Buyer a fair and

reasonable rent for the use and occupation of the Premises after the forfeiture of

the agreement where Buyer has retained possession after such forfeiture ***.”

3 ¶4 On January 29, 2014, plaintiffs filed a two-count complaint seeking (1) possession of the

premises under the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West 2014)) and

(2) rent for the use and occupation of the premises after forfeiture of the Agreement. The

complaint alleged that defendant defaulted on the Agreement by failing to make the final

payment and pay all real estate taxes and assessments. The complaint alleged that defendant was

unlawfully withholding possession of the premises from plaintiffs. Plaintiffs attached the

Agreement and a demand notice plaintiffs had mailed to defendant on December 20, 2013. 1

¶5 Defendant answered the complaint. Defendant admitted that he failed to make the final

payment and pay the 2012 real estate taxes, but he otherwise denied defaulting on the

Agreement.

¶6 Defendant filed a countercomplaint alleging that, prior to the entry of the Agreement, the

plaintiffs fraudulently represented that the property was zoned for 13 dwelling units when it was

only zoned for 9 units. Plaintiffs answered the countercomplaint and filed a motion to dismiss.

The trial court dismissed the countercomplaint without prejudice.

¶7 Defendant filed an amended countercomplaint alleging (1) fraudulent misrepresentation

of zoning density, (2) violation of the Consumer Fraud Act, and (3) violation of the Dwelling

Unit Installment Contract Act (765 ILCS 75/0.01 et seq. (West 2014)). Regarding the Consumer

Fraud Act claim, the amended countercomplaint argued that the plaintiffs gave deceptive and

misleading information regarding the zoning of the premises. Specifically, defendant referenced

a Craigslist advertisement, past income tax returns of the owners of the property, and an

appraisal of the property stating that it was a 13-unit building. Defendant also alleged that Robert

1 The signatures of defendant, Robert H. Kupper II, Kevin I. Kupper, and David G. Kupper appear on the copy of the Agreement attached to the complaint. Alan Kupper’s signature does not appear on the Agreement. 4 Kupper asserted “that for three generations he was aware of the past legal zoning history usage

of the structures.”

¶8 Plaintiffs filed a motion to dismiss the amended countercomplaint. On March 4, 2015, the

trial court dismissed the fraudulent misrepresentation claim without prejudice. The trial court

dismissed the remaining counts with prejudice.

¶9 On April 1, 2015, defendant filed a second amended countercomplaint alleging negligent

misrepresentation. On April 6, 2015, defendant filed a motion to reconsider the dismissal of the

Consumer Fraud count of the first amended countercomplaint. Plaintiffs filed a motion to

dismiss. The trial court dismissed the second amended countercomplaint without prejudice and

denied the motion to reconsider.

¶ 10 Defendant filed a third amended countercomplaint alleging (1) fraudulent

misrepresentation of zoning density and (2) negligent misrepresentation. Regarding the

fraudulent misrepresentation claim, the complaint alleged:

“The zoning ordinance for the City of Peoria allowed a maximum density

legal conforming usage of three (3) dwelling units on [the premises] in 2006 but

since the property was built in 1891, a higher non-conforming use is allowed if

the zoning applicant can prove more dwelling units existed prior [to] the passage

of the City of Peoria zoning laws in 1931.”

¶ 11 The third amended countercomplaint alleged that defendant relied on statements in the

plaintiffs’ Craigslist advertisement, income tax documents, and property appraisal indicating that

the premises contained 13 dwelling units. Defendant attached the Craigslist advertisement,

income tax documents, and appraisal to his third amended countercomplaint. Defendant alleged

that these documents “impliedly warranted that the thirteen (13) unit property was subject to and

5 in compliance with City of Peoria zoning Laws when in fact it was not.” The third amended

countercomplaint also alleged that plaintiffs’ “ancestral family had ownership of [the premises]

since 1942.” Additionally, Robert Kupper gave defendant “a tour of said premises through

thirteen (13) dwelling units stating he was aware of the past zoning history through his family of

the property and that the units were legal and extolled their income potential for the future.”

¶ 12 Upon motion of plaintiffs, the trial court dismissed the third amended countercomplaint

with prejudice. The written order stated:

“1. Count I [alleging fraudulent misrepresentation] is dismissed with

prejudice as the statements as to the zoning were statements of law, not of fact,

and other reasons of record.

2. Count II [alleging negligent misrepresentation] is dismissed with

prejudice as the Counter Defendants had no public duty and other reasons of

record.” 2

¶ 13 On October 15, 2015, plaintiffs filed a motion for summary judgment. The motion

alleged that it was undisputed that defendant breached the Agreement by failing to make the final

payment and failing to pay the real estate taxes for 2011 through 2014. Plaintiffs were required

to redeem the real estate taxes for 2011 through 2013 and pay the 2014 taxes. The motion also

alleged that defendant failed to make at least six of his monthly payments of $1300 under the

Agreement, which were due prior to the balloon payment.

¶ 14 Plaintiffs attached an affidavit executed by Robert Kupper stating, inter alia, that

(1) defendant failed to maintain insurance on the premises, (2) defendant failed to pay property

taxes for 2011 through 2014, and (3) plaintiffs redeemed the property taxes for 2011 through

2 It is unclear on this record whether a hearing was held on the motion to dismiss the third amended countercomplaint. No transcript was filed in the report of proceedings on appeal. 6 2013 and paid the 2014 property taxes. Plaintiffs attached a redemption receipt from the Peoria

County clerk’s office showing that plaintiffs redeemed the 2011 through 2013 real estate taxes

for the premises in the amount of $15,114.51. Plaintiffs also attached a real estate tax statement

from 2014, showing the total real estate taxes on the premises to be $4099.14.

¶ 15 On October 16, 2015, defendant filed a notice of appeal of the order dismissing his third

amended countercomplaint with prejudice.

¶ 16 On November 9, 2015, defendant filed a response to plaintiffs’ motion for summary

judgment. In the response, defendant denied that he failed to make monthly payments under the

Agreement. Defendant also “denie[d] that he failed to make the required balloon payment on

October 1, 2013, since the balloon payment which was due at the closing was never obtained,

since the Plaintiffs[ ] failed to hold a closing.” Defendant denied that he failed to pay the real

estate taxes for 2011 but admitted that he did not pay the taxes in 2012, 2013, or 2014.

Defendant also denied that he was required to pay rent under the Agreement for the months after

forfeiture during which he retained possession of the premises.

¶ 17 A hearing on the motion for summary judgment was held on November 20, 2015. The

trial court found that it lacked jurisdiction to rule on the motion for summary judgment due to the

notice of appeal filed by defendant on October 16.

¶ 18 On December 15, 2015, we issued an order dismissing the October 16 appeal for lack of

jurisdiction. Specifically, we noted that there was no express written finding pursuant to Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Kupper v. Powers, No. 3-15-0726 (Dec. 15,

2015) (unpublished dispositional order under Rule 23(c)). The mandate issued on February 4,

2016.

7 ¶ 19 On February 19, 2016, a hearing was held on plaintiffs’ motion for summary judgment.

Plaintiffs’ counsel argued that its motion for summary judgment and supporting documentation

showed that defendant defaulted on the Agreement by failing to pay six of the monthly payments

before the balloon payment came due; pay the balloon payment, which was due on October 1,

2013; pay the real estate taxes for 2011 through 2014; and maintain insurance on the premises.

Plaintiffs’ counsel requested damages in the amount of $116,584.80 for the six unpaid monthly

payments, rent after forfeiture, real estate taxes from 2011 through 2014, and attorney fees.

Defense counsel then stated: “In response, everything [plaintiffs’ counsel] said is true. She just

left out a lot of facts.” Defense counsel argued that plaintiffs violated the contract by failing to

obtain a zoning certificate for 13 dwelling units, and as a result, defendant was unable to obtain

financing to make the final balloon payment. Defense counsel acknowledged that defendant

failed to pay the real estate taxes on the premises.

¶ 20 The trial court granted plaintiffs’ motion for summary judgment, finding that there was

no genuine issue of material fact that defendant breached the Agreement. 3 The court reasoned:

“Well, from where I sit right here, right now, there’s no dispute that there was an

agreement. There’s no dispute that payments were not made before the balloon

payment came due. There’s no dispute that insurance was not maintained on the

property. There’s no dispute that real estate taxes were not paid. All of those

things breach the agreement, entitling the plaintiff to the relief sought. And there’s

nothing to refute the damages as pled, so I will award those.”

3 When the trial court granted the motion for summary judgment, it also ordered that defendant could take an interlocutory appeal regarding the dismissal of his countercomplaint under Rule 304(a) in response to a motion seeking a Rule 304(a) finding that defendant had previously filed. The trial court’s Rule 304(a) finding was unnecessary, however, because the order granting summary judgment was a final, appealable order. 8 ¶ 21 ANALYSIS

¶ 22 I. Countercomplaint

¶ 23 Defendant argues that the trial court erred in dismissing his third amended

countercomplaint. Defendant also contends that the trial court erred in dismissing with prejudice

his claim under the Consumer Fraud Act, which was alleged in the first amended

countercomplaint.

¶ 24 A. Third Amended Countercomplaint

¶ 25 Defendant’s third amended countercomplaint alleged claims of fraudulent

misrepresentation and negligent misrepresentation. Plaintiffs moved to dismiss the third

amended countercomplaint under section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-

619.1 (West 2014)). “A motion under section 2-619.1 allows a party to ‘combine a section 2-615

motion to dismiss based upon a plaintiff’s substantially insufficient pleadings with a section 2-

619 motion to dismiss based upon certain defects or defenses.’ ” Schloss v. Jumper, 2014 IL App

(4th) 121086, ¶ 15 (quoting Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill.

App. 3d 156, 164 (2003)). We review de novo the dismissal of a complaint under section 2-

619.1. Id.

¶ 26 1. Fraudulent Misrepresentation of Zoning Density

¶ 27 Defendant argues that the trial court erred in dismissing his claim for fraudulent

misrepresentation of zoning density because the alleged statements of plaintiffs regarding the

zoning of the premises were statements of material fact, not statements of law. We find that the

trial court did not err in dismissing defendant’s fraudulent misrepresentation claim because,

based on the allegations in the third amended countercomplaint, defendant could have discovered

9 the premises’ zoning nonconformity through the exercise of ordinary prudence by merely

reviewing the ordinance.

“The elements of a cause of action for fraudulent misrepresentation are:

(1) false statement of a material fact; (2) known to be false by the party making it;

(3) an intent to induce the other party to act; (4) action by the other party in

reasonable reliance on the statement; and (5) damage to the other party resulting

from such reliance.” Stichauf v. Cermak Road Realty, 236 Ill. App. 3d 557, 567

(1992).

¶ 28 In order to sustain a claim of fraudulent misrepresentation, one must allege a false

statement of material fact rather than a false statement of law. “[A]s a general rule, one is not

entitled to rely upon a representation of law because both parties are presumed to be equally

capable of knowing and interpreting the law.” Id. In determining whether a misrepresentation is

one of fact or law, “the analytical focus *** has evolved beyond a strict fact versus law

dichotomy.” Randels v. Best Real Estate, Inc., 243 Ill. App. 3d 801, 807 (1993).

“[T]he key question is whether a defendant’s misrepresentations or omissions

were discoverable through the exercise of ordinary prudence by the plaintiff, and

a finding of liability is made when the defendant misrepresents or omits facts of

which he possesses almost exclusive knowledge the truth or falsity of which is not

readily ascertainable by the plaintiff.” Id.

¶ 29 The parties cite several cases that reach various conclusions regarding whether statements

of zoning or building code violations were statements of law or statements of fact. Plaintiffs cite

Stichauf, 236 Ill. App. 3d 557, and City of Aurora v. Green, 126 Ill. App. 3d 684 (1984), in

10 support of their argument that the trial court properly found that statements regarding zoning

were statements of law rather than statements of fact.

¶ 30 In Stichauf, the plaintiff purchased two buildings located on a single lot in violation of a

zoning ordinance, which allowed only one building per lot. Stichauf, 236 Ill. App. 3d at 559-60.

The plaintiff filed a fraudulent misrepresentation lawsuit against the sellers of the building and

their real estate agency based on statements made by the agency that both buildings could be

legally used and were in compliance with the zoning ordinance. Id. at 567. The court held that

the defendants did not make false statements of material fact sufficient to support a claim of

fraudulent misrepresentation. Id. at 568. The court reasoned that the zoning ordinance “clearly

and unequivocally state[d] that no more than one principal detached building shall be located on

a lot” and it was “readily apparent” that there were two buildings on the lot. Id. The court further

reasoned that “[e]ven a cursory review of the *** zoning ordinance would have put the plaintiff

on notice that the property may have been in violation of the ordinance.” Id.

¶ 31 Similarly, in City of Aurora, the third-party defendants converted a building that formerly

had commercial space on the first floor and two residential units on the second floor into five

residential units in violation of a city zoning ordinance that allowed for only two-family

residences. City of Aurora, 126 Ill. App. 3d at 685. The third-party defendants sold the building

to the third-party plaintiffs and represented that it was properly zoned for five residential units.

Id. The court held that the third-party defendants’ statements regarding zoning were statements

of law such that the third-party plaintiffs could not reasonably rely on them. Id. at 689. In

reaching its holding, the court rejected the third-party plaintiffs’ argument that if they had called

the city regarding the zoning of the building, they would have only been told that the building

11 was in a two-family dwelling district and not whether the nonconforming use could have been

continued. Id. at 688. The court reasoned:

“The zoning map and the information available at the city hall would have

revealed that the property was located in an R-4 district and would have shown

that the five-unit apartment building was not a permitted use in an R-4 district.

This information would have alerted the [plaintiffs] to further inquiry and it is no

defense to argue as they do that they would have no access to information that the

conversion was made without the permission of the city. The relevant point is that

the inquiry would have alerted them to the fact that the use was apparently not

permitted and at least that they should inquire further.” Id. at 688-89.

¶ 32 We now turn to the cases cited by defendant in support of his argument that the plaintiffs

made false statements of material fact rather than statements of law. Defendant cites Kinsey v.

Scott, 124 Ill. App. 3d 329, 339 (1984), Perkins v. Collette, 179 Ill. App. 3d 852, 859 (1989), and

Tan v. Boyke, 156 Ill. App. 3d 49, 52 (1987). In Kinsey, the defendant represented that a building

he constructed was a five-unit building when he knew that he had received a building permit to

construct only a four-unit building. Kinsey, 124 Ill. App. 3d at 339. The court held that this was a

misrepresentation of fact rather than law where the defendant knew that this was factually untrue

and was “vouching for the proper construction of all five units in his position as builder and

owner.” Id. The Kinsey court reasoned that “there [was] nothing in the record to indicate that

plaintiff herself might have discovered by the exercise of ordinary prudence that the basement

apartment was not constructed according to the housing and building code.” Id. at 338.

¶ 33 In Tan, 156 Ill. App. 3d at 52, the defendant sold two apartment buildings on two lots

containing a total of 66 units to the plaintiff. The defendant did not tell the plaintiff prior to the

12 sale that when he obtained the building permits for the two buildings, he included the south 60

feet of one of the lots on both applications. Id. As a result, the buildings contained a greater

density of housing and less parking spaces than zoning ordinances permitted. Id. The Tan court

held that the defendant had a duty to disclose the discrepancies on the building permits when he

represented to the plaintiff that all 66 units could be used. Id. at 54. The court rejected the

defendant’s argument that he made no misrepresentation of fact to the plaintiff because the

plaintiff had an opportunity to review the applicable zoning requirements. Id. at 55. The court

reasoned:

“[T]he plaintiff produced uncontroverted evidence that the only way [the]

discrepancies [in the building permits] could have been discovered was *** by

obtaining and reviewing the plat of survey with an accurate square-footage figure

and calculating the buildings’ unit densities as well as those permitted by the

applicable ordinances. The facts were clearly not readily discernible by a simple

review of the ordinances ***. Yet they were well known to the defendant.” Id. at

57.

¶ 34 Similarly, in Perkins, the plaintiffs alleged that the defendant, a real estate agent, told

them that a lot they had purchased was a suitable location for a home when the defendant himself

had been denied a building permit for the lot. Perkins, 179 Ill. App. 3d at 859. The Perkins court

rejected the defendant’s argument that the alleged misrepresentations mentioned in the complaint

were misrepresentations of law rather than fact. Id. In doing so, the Perkins court distinguished

City of Aurora (as well as other cases that reached similar conclusions) from Kinsey and Tan,

reasoning: “The primary factor which distinguishes *** City of Aurora from Kinsey and Tan is

whether the seller’s misrepresentations could have been discovered merely by reviewing

13 applicable zoning or building ordinances.” Id. The Perkins court concluded the facts alleged in

the complaint did not conclusively indicate that the plaintiffs could have discovered the

defendant’s misrepresentations by merely reviewing applicable building and zoning ordinances.

Id.

¶ 35 We find that the instant case is more similar to Stichauf and City of Aurora than Kinsey,

Tan, and Perkins. In Kinsey and Tan, the courts found that the plaintiffs could not have

discovered that the real estate they purchased was not in compliance with building and zoning

codes by merely looking up the applicable ordinances. Kinsey, 124 Ill. App. 3d at 339; Tan, 156

Ill. App. 3d at 54. Similarly, in Perkins, the court found that the facts alleged in the complaint

did not show that the plaintiffs could have discovered the defendant’s false statement by merely

reviewing the applicable ordinances. Perkins, 179 Ill. App. 3d at 859. In this case, on the other

hand, defendant alleged in his third amended countercomplaint that when the Agreement was

signed in 2006, “[t]he zoning ordinance for the City of Peoria allowed a maximum density legal

conforming usage of three (3) dwelling units on [the premises] ***.” Like in Stichauf and City of

Aurora, the ordinance should have alerted defendant that the premises, which contained 13 units,

may not be in conformity with the city’s zoning laws.

¶ 36 We reject defendant’s argument that merely reviewing the zoning ordinance would not

have informed him whether the city would permit the building to contain units in excess of what

the ordinance allowed as a legal nonconforming use due to the building’s age and past use. We

note that a similar argument was rejected by the court in City of Aurora. See City of Aurora, 126

Ill. App. 3d at 688. Like in City of Aurora, a review of the ordinance “would have alerted

[defendant] to the fact that the use was apparently not permitted and at least that [he] should

inquire further.” Id. at 689. Defendant was not excused from conducting further inquiry into the

14 zoning of the premises merely because the city may have allowed more units than permitted by

the zoning code as a legal nonconforming use.

¶ 37 Thus, we hold that the trial court properly found that the alleged misrepresentations

regarding zoning were statements of law rather than statements of fact such that they could not

sustain a claim for fraudulent misrepresentation. Accordingly, the trial court did not err in

dismissing defendant’s claim for fraudulent misrepresentation of zoning density with prejudice.

¶ 38 2. Negligent Misrepresentation

¶ 39 Defendant argues that the trial court erred in dismissing his claim of negligent

misrepresentation. We find that the trial court did not err in dismissing the negligent

misrepresentation claim because the plaintiffs had no public duty under the Peoria zoning

ordinance to provide defendant with accurate zoning information.

¶ 40 “In order to state a cause of action for negligent misrepresentation, a complaint must first

allege facts establishing that the defendants owed the plaintiff a duty to communicate accurate

information.” Hoover v. Country Mutual Insurance Co., 2012 IL App (1st) 110939, ¶ 45. Our

supreme court has recognized a duty to communicate accurate information (1) “to avoid

negligently conveying false information that results in physical injury to a person or harm to

property” and (2) “to avoid negligently conveying false information where one is in the business

of supplying information for the guidance of others in their business transactions.” Brogan v.

Mitchell International, Inc., 181 Ill. 2d 178, 183-84 (1998). “[N]egligent misrepresentation

actions are almost universally limited to situations involving a defendant who, in the course of

his business or profession, supplies information for the guidance of others in their business

relations with third parties.” Hoover, 2012 IL App (1st) 110939, ¶ 45.

15 ¶ 41 In Lehmann v. Arnold, 137 Ill. App. 3d 412, 420-21 (1985), the court held that a

negligent misrepresentation action could also be sustained against a party under a public duty to

provide information. In Lehmann, the plaintiffs sued the developers of the subdivision where the

plaintiffs’ house was located. Id. at 413. The plaintiffs alleged that the defendants filed a plat of

the subdivision without first having it approved by the Illinois Department of Transportation for

a flood hazard determination, which was required by statute. Id. at 418. The court held that the

statute created a duty for the defendants to provide accurate information such that the plaintiffs

could maintain an action for negligent misrepresentation based on that duty. Id. at 421. The court

reasoned: “Our conclusion is consistent with other authorities that hold statutes requiring

information to be filed for public record, particularly those which require it to be published after

filing, create a duty to members of the public for whose benefit the statute was created.” Id. at

419.

¶ 42 In the instant case, defendant contends that the Peoria zoning ordinance created a public

duty for the plaintiffs to have possessed a nonconforming use zoning certificate at the time the

Agreement was signed. Specifically, defendant argues:

“Since the City of Peoria requires that all sales of property require a zoning

certificate stating whether there is a non-conforming use for the benefit of the

public and buyer and to resolve zoning disputes, there is a duty to the buyer under

the law in the City of Peoria that the seller be truthful and accurate to the buyer as

to a properties [sic] lawful use.”

16 ¶ 43 In support of his argument, defendant points to various provisions in the Peoria Zoning

Ordinance. 4 Section 2.9 of the ordinance provides for the issuance of zoning compliance

certificates or zoning exception certificates to certify the zoning status of property. Peoria City

Code, app. B, § 2.9(a) (amended Aug. 23, 2011). Section 2.9.c(1) of the zoning ordinance states:

“No instrument which immediately conveys or provides for the future

conveyance of the fee interest in any property within the City of Peoria including

an Agreement for Warranty Deed shall be recorded *** until a Zoning Certificate

has been issued for the property which is to be conveyed ***.” Id. § 2.9(c)(1).

¶ 44 The ordinance provides for the issuance of either zoning compliance certificates, which

certify that property is in compliance with the ordinance, or zoning exception certificates. Id.

§ 2.9(a). The ordinance states that “[t]he purpose of a Zoning Exception Certificate is to provide

notice and procedures to resolve disputes as to whether specific premises which do not conform

to this code may be maintained because they are *** [l]egal nonconforming uses ***.” Id.

§ 2.9(a)(1). The ordinance also provides that “[t]he Zoning Administrator shall keep copies of all

Zoning Exception Certificates issued and may maintain a map of the City designating the

locations of all zoning lots for which such certificates have been issued.” Id. § 2.9(b)(3).

¶ 45 Unlike the statute in Lehmann requiring the defendants to file an accurate plat, the above

provisions of the ordinance do not create a duty for plaintiffs to file any information regarding

the zoning of the premises for the benefit of the public or to accurately represent the zoning

status of the premises to prospective buyers. Rather, the ordinance required plaintiffs to obtain a 4 Defendant does not indicate the year of the version of the Peoria Zoning Ordinance he cites in his brief. It is the duty of the appellant to cite the authorities relied upon in support of his argument. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). In this opinion, we cite to the version of the ordinance effective April 30, 2012, as it is identical to the excerpts cited by defendant and is the oldest version of the ordinance available on the City of Peoria’s website. See Peoria Zoning Ordinance (Apr. 30, 2012), https://www.municode.com/library/il/peoria/codes/code_of_ordinances/179607?nodeId=CO_APXBZOO R. 17 zoning certificate before conveying property. Because the ordinance did not require that any

information be filed for the benefit of the public, we find that the ordinance did not create a

public duty. Accordingly, the trial court did not err in dismissing the negligent misrepresentation

count from the third amended countercomplaint.

¶ 46 In reaching our holding, we make no decision as to whether plaintiffs actually complied

with the zoning ordinance. Rather, we merely hold that the ordinance did not create a public duty

upon which defendant may base a negligent misrepresentation action.

¶ 47 B. First Amended Countercomplaint—Consumer Fraud Act Violation

¶ 48 Defendant argues that the trial court erred in dismissing with prejudice the count of his

first amended countercomplaint alleging a violation of the Consumer Fraud Act (815 ILCS 505/1

et seq. (West 2014)). We find that defendant has forfeited review of this claim.

¶ 49 It is a “well-established principle that a party who files an amended pleading waives any

objection to the trial court’s ruling on the former complaints.” Foxcroft Townhome Owners Ass’n

v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153 (1983). “ ‘Where an amendment is complete in

itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of

the record for most purposes, being in effect abandoned and withdrawn.’ ” Id. at 154 (quoting

Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)).

¶ 50 In order to avoid forfeiture under the above rule when a trial court dismisses with

prejudice fewer than all the counts in a complaint, a plaintiff may (1) “stand on the dismissed

counts and argue the matter at the appellate level,” (2) “file an amended complaint realleging,

incorporating by reference, or referring to the claims set forth in the prior complaint,” or

(3) “perfect an appeal from the order dismissing fewer than all of the counts of his or her

complaint prior to filing an amended pleading that does not include reference to the dismissed

18 counts.” (Emphasis added.) Vilardo v. Barrington Community School District 220, 406 Ill. App.

3d 713, 719 (2010); see also Tunca v. Painter, 2012 IL App (1st) 093384, ¶ 30. If a plaintiff does

not exercise any of these options “and files a subsequent complaint that does not reallege or

preserve the dismissed claims, he waives his right to appeal from the trial court’s order

dismissing those counts of his prior complaint.” Tunca, 2012 IL App (1st) 093384, ¶ 30.

¶ 51 Here, defendant filed a second amended countercomplaint that failed to reallege or

incorporate by reference the Consumer Fraud Act claim before he filed a motion to reconsider or

sought appellate review of the dismissal of his Consumer Fraud Act claim. Consequently, by

filing the second amended countercomplaint, defendant forfeited any objection to the dismissal

with prejudice of the Consumer Fraud Act violation alleged in his first amended

countercomplaint. See Foxcroft, 96 Ill. 2d at 153.

¶ 52 Even if we were to excuse defendant’s forfeiture of his Consumer Fraud Act claim, the

claim would fail on its merits.

“The elements of a claim under the Consumer Fraud Act are: (1) a

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

plaintiff rely on the deception; (3) the occurrence of the deception in the course of

conduct involving trade and commerce; and (4) actual damage to the plaintiff

(5) proximately caused by the deception.” Capiccioni v. Brennan Naperville, Inc.,

339 Ill. App. 3d 927, 933 (2003).

¶ 53 As we have held that the alleged misrepresentations regarding zoning were statements of

law rather than statements of fact, defendant would not have been able to establish a deceptive

act on the part of plaintiffs. See id. (“Generally, a deceptive representation or omission of law

19 does not constitute a violation of the Consumer Fraud Act because both parties are presumed to

be equally capable of knowing and interpreting the law.”).

¶ 54 II. Summary Judgment

¶ 55 Defendant contends that the trial court erred in granting summary judgment in favor of

plaintiffs because (1) the trial court lacked jurisdiction to rule on the motion for summary

judgment and (2) there were genuine issues of material fact. For the reasons that follow, we

reject both arguments.

¶ 56 Initially, we reject defendant’s argument that the trial court erred in ruling on the motion

for summary judgment on February 19, 2016, because it lacked jurisdiction. Specifically,

defendant contends that the trial court previously dismissed the motion for summary judgment

on November 20, 2015, for lack of jurisdiction and plaintiffs never refiled the motion. However,

the record shows the trial court did not dismiss the motion for summary judgment on November

20, 2015. Rather, the trial court found that it lacked jurisdiction over the proceedings at that time

due to the pending appeal such that it could not yet rule on the motion for summary judgment.

See Kral v. Fredhill Press Co., 304 Ill. App. 3d 988, 993 (1999) (“Upon the proper filing of a

notice of appeal, the jurisdiction of the appellate court attaches, and the trial court is deprived of

its jurisdiction and loses the ability to modify its judgment or to rule on matters of substance that

are the subject of appeal.”).

¶ 57 The court had jurisdiction over the proceedings at the time the motion was filed, as it was

filed prior to the notice of appeal. Jurisdiction was revested in the trial court when this court

dismissed the appeal and issued its mandate on February 4, 2016. See Longo v. Globe Auto

Recycling, Inc., 318 Ill. App. 3d 1028, 1035 (2001) (“The appellate court’s mandate is the

transmittal of the judgment of the reviewing court to the circuit court and revests the trial court

20 with jurisdiction.”). Once the mandate was filed, the trial court could properly rule on the motion

for summary judgment; there was no need for plaintiffs to refile the motion. See Ill. S. Ct. R.

369(b) (eff. July 1, 1982) (“When the reviewing court dismisses the appeal *** and the mandate

is filed in the circuit court, enforcement of the judgment may be had and other proceedings may

be conducted as if no appeal had been taken.”).

¶ 58 We also reject defendant’s argument that the trial court erred in granting the plaintiffs’

motion for summary judgment because there were genuine issues of material fact. Specifically,

defendant contends that he denied some of plaintiffs’ allegations in his answer to the complaint.

Additionally, defendant argues that in his response to the motion for summary judgment, he

denied that (1) he defaulted under the Agreement by failing to make the required payments,

(2) he must pay rent while withholding possession of the premises from the plaintiffs, and (3) he

failed to make the required balloon payment because the payment never came due as a closing

was never held.

¶ 59 It is uncontroverted, however, that defendant failed to pay real estate taxes on the

premises from 2011 through 2014. Plaintiffs attached a redemption receipt from the office of the

Peoria County clerk to its motion for summary judgment. Plaintiffs also attached an affidavit

executed by Robert Kupper, stating that plaintiffs had paid the 2014 real estate taxes. Defendant

admitted in his answer to the complaint and his response to the motion for summary judgment

that he failed to pay the real estate taxes on the premises for 2012 through 2014. Although

defendant claimed that he paid the 2011 taxes, the redemption receipt showed that he had not.

¶ 60 Under the terms of the Agreement, defendant was to pay all real estate taxes on the

premises after he took possession on October 1, 2006. Defendant’s failure to pay the taxes

caused him to be in default of the Agreement. Under the terms of the Agreement, plaintiffs could

21 declare forfeiture on this basis alone. Accordingly, we affirm the trial court’s grant of summary

judgment solely on this basis.

¶ 61 CONCLUSION

¶ 62 The judgment of the trial court is affirmed.

¶ 63 Affirmed.