Mentgen v. Dowell

2021 IL App (2d) 200017-U

• Court: Appellate Court of Illinois
• Decided: March 10, 2022
• Docket: 2-20-0017
• Status: Unpublished

Opinion

2022 IL App (2d) 200017-U No. 2-20-0017 Order filed March 10, 2022

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

SUSAN BEESON MENTGEN, as Trustee ) Appeal from the Circuit Court of the May H. Beeson Trust, dated May ) of McHenry County. 19, 1992, ) ) Plaintiff-Appellant, ) ) v. ) No. 17-LA-402 ) CHARLES F. DOWELL, ROXANN ) DOWELL, PAT BETLINSKI, BERKSHIRE ) HATHAWAY HOME SERVICES STARCK ) REAL ESTATE, an Illinois corporation, ) CODY BOOK, LISA HADERLEIN, and THE ) LAND CONSERVANCY OF MCHENRY ) COUNTY, an Illinois not-for-profit corporation,) ) Defendants ) ) (Charles F. Dowell, Roxann Dowell, ) Pat Betlinski, Berkshire Hathaway Home ) Services Starck Real Estate, an Illinois ) Honorable corporation, and Cody Book, Defendants- ) Thomas Meyer, Appellees). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court. Justices Jorgensen and Brennan concurred in the judgment.

ORDER 2022 IL App (2d) 200017-U

¶1 Held: (1) Plaintiff failed to properly preserve for appeal the issues of whether the trial court erred in dismissing counts I, II, V, and VII of her Amended Complaint; plaintiff filed a Second Amended Complaint that changed the allegations of those counts instead of one that realleges, incorporates by reference, or refers to the dismissed counts; (2) the trial court erred in dismissing counts alleging unjust enrichment and breach of fiduciary duty; (3) trial court affirmed in part, reversed in part, and the cause remanded for further proceedings.

¶2 Plaintiff, Susan Beeson Mentgen, as Trustee of the May H. Beeson Trust dated May 9,

1992 (Trust), appeals from (1) the trial court’s dismissal of various counts of her amended and

second-amended complaints and (2) the trial court’s denial of her motion to reconsider and motion

for leave to file a second-amended complaint against certain defendants. We reverse and remand.

¶3 I. BACKGROUND

¶4 The facts herein are drawn from the factual allegations contained in Mentgen’s Second

Amended Complaint. The Trust is the former owner of a 120-acre parcel of property in Harvard,

Illinois. More than 60 acres of the property had been used as a nursery and for land conservation

purposes. In 2009, the Trust conveyed a conservation easement on the property to defendant, The

Land Conservancy of McHenry County (TLC), a nonprofit land trust whose purpose includes the

conservation of farmland. The reason for the grant of the easement was two-fold: (1) to preserve

the property in its current condition; and (2) an income tax deduction. An appraisal of the property

done for income tax purposes revealed a value of $1,200,000 before the implementation of the

easement and a value of $600,000 after implementation. This appraisal was accepted by the

Internal Revenue Service for tax deduction purposes.

¶5 The easement provided in relevant part that 75 acres of the property was utilized for

nursery, 40 acres remained native forest, woodland, and savanna in predominantly natural

condition, and 5 acres contained all the buildings. The property possessed “natural and scenic

values (collectively ‘Conservation Values’)” that were “of great importance to Grantors, the people

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of McHenry County and the people of the State of Illinois.” The “Conservation Purpose” of the

easement included the preservation of the conservation values by continuing the land use patterns

existing at the time of the grant. The easement expressly prohibited “any activity on or use of the

Property inconsistent with the purpose of this Easement.” Amongst other things, it specifically

prohibited any alteration of the surface topography and hydrology of the land, any use or activity

that causes or is likely to cause significant soil degradation or erosion, and “row cropping of corn,

soybeans or other commodity grains”. TLC was to manage the property according to the attached

Management Plan, which could be amended or modified. However, no amendment or

modification could “materially and adversely affect the conservation purpose” of the Easement.

Any modification was required to be in a written instrument signed by the Grantors and Grantees

and recorded.

¶6 Following the death of May Beeson, the property was the subject of a lawsuit involving

the Beeson siblings, including Mentgen. The suit resulted in a judgment that the easement remain

in effect and that the property be listed for sale to the general public. Both the listing and sales

prices were to be set and approved by the court, and any sales contract was subject to the court’s

acceptance. In April 2015, the court selected defendants Pat Betlinski and Berkshire Hathaway

Home Services Starck Real Estate (Berkshire) to list and sell the property and approved a listing

price of $724,900.

¶7 Over a year later, in July 2016, Betlinski filed an updated market analysis stating that

marketing activity on the property was limited due to the easement’s restrictions on row cropping

of corn, soybeans or other commodity grains. According to the opinions of two appraisers, the

easement decreased the value of the property by 50 % of current farmland prices, indicating a

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current value of $465,000. The court decreased the price to $649,900, and later that year to

$599,000.

¶8 In December 2016, Mentgen signed a Disclosure and Consent to Dual Agency, which

notified her that Betlinski would be representing defendants Charles F. Dowell and Roxann Dowell

as their real estate agent. In 2015, Betlinski had learned that the Dowells were interested in

purchasing the property in order to lease it to their son-in-law, defendant Cody Book, to farm row

crops, including corn. However, the Dowells were put off by the easement’s prohibition of such

farming.

¶9 Later that month, defendant Lisa Haderlein, executive director of TLC met with Book and

the Dowells to discuss an Amended Management Plan that would allow Book to row crop the

property. Haderlein verbally approved an amended plan that would allow the removal of all the

trees in the nursery area, the leveling of the terraces, a buffer around the nursery area to allow the

use of large motorized farm equipment, and a cyclical farming plan that allowed row crops if soil

erosion was kept within tolerable erosion levels.

¶ 10 The Dowells submitted an offer of $300,000 for the property; negotiations eventually led,

on February 2, 2017, to an agreed-upon purchase price of $470,000, subject to the easement and

court approval. The easement, including the original Management Plan, was attached to the

contract, and the parties initialed every page thereof. Mentgen had no information regarding the

approval of the Amended Management Plan and alleged that she would not have agreed to the real

estate contract at the sale price had she known of it. Betlinski knew of the amended agreement but

never told Mentgen of it. The court approved the real estate contract on February 22. The sale

closed on April 5, 2017; the trustee’s deed specifically made the conveyance subject to the

easement.

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¶ 11 On April 8, Book brought in earth moving equipment and leveled, plowed and tilled the

nursery area and planted row corn. On May 1, the TLC board confirmed Haderlein’s approval of

the amended management plan.

¶ 12 Mentgen filed a seven-count complaint, alleging: (1) fraudulent inducement against the

Dowells; (2) breach of fiduciary duty against Betlinski and Berkshire; (3) consumer fraud against

Betlinski and Berkshire; (4) tortious interference with contract against Book; (5) tortious

interference with contract against Haderlein; (6) breach of fiduciary duty against Haderlein; and

(7) civil conspiracy against the Dowells, Betlinski, Berkshire, Book and Haderlein. On July 25,

2018, the trial court granted without prejudice the defendants’ motion to dismiss pursuant to

section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) and granted

Mentgen leave to file an amended complaint.

¶ 13 Mentgen then filed an eight-count Amended Complaint, alleging: (1) fraudulent

inducement against the Dowells; (2) fraudulent concealment against the Dowells; (3) breach of

fiduciary duty against Betlinski and Berkshire; (4) consumer fraud against Betlinski and Berkshire;

(5) tortious interference with contract against Book; (6) breach of fiduciary duty against Haderlein

and TLC; (7) aiding and abetting against all of the defendants other than the Dowells; and

(8) concert of action against all of the defendants other than the Dowells. The Dowells and Book

brought a combined motion to dismiss pursuant to section 2-619(a)(9) and to strike pursuant to

2/615 of the Code (735 ILCS 2-619(a)(9), 5/2-615 (West 2016)) that the trial court granted on

February 20, 2019, dismissing with prejudice all counts against the Dowells and Book. The court

subsequently denied Mentgen’s motion to reconsider and for leave to file a second-Amended

Complaint against the Dowells and Book. The court also dismissed without prejudice all counts

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against Betlinski, Berkshire, Haderlein and TLC and granted Mentgen leave to file a second-

amended complaint against these defendants.

¶ 14 Mentgen filed a Second-Amended Complaint, captioning the first seven counts the same

as the Amended Complaint and alleging the same defendants as before. She then added a new

count VIII; instead of re-alleging concert of action against all defendants, Mentgen alleged unjust

enrichment against the Dowells. The trial court subsequently granted the section 2-615 motion to

dismiss with prejudice of the Dowells, Book, Betlinski, and Berkshire. The trial court also granted

a section 2-615 motion to dismiss Count VII as to Haderlein and TLC but denied the motion as to

Count VI (breach of fiduciary duty against Haderlein and TLC). The court found no just reason

for delaying either enforcement or appeal.

¶ 15 Mentgen then filed her notice of appeal, appealing from: (1) the February 20, 2019 order

dismissing with prejudice all counts against the Dowells and Book in the Amended Complaint;

(2) the April 23, 2019 order denying her motion to reconsider the February 20, 2019 order and for

leave to file a Second-Amended Complaint against the Dowells and Book; and (3) the December

11, 2019 order dismissing with prejudice all counts of the Second-Amended Complaint against the

Dowells, Book, Betlinski, and Berkshire.

¶ 16 II. ANALYSIS

¶ 17 We will first address Mentgen’s contention that the trial court erred in denying her motion

to file a Second Amended Complaint against the Dowells and Book. The trial court dismissed

with prejudice all counts of the Amended Complaint against the Dowells and Book. On April 23,

2019, the trial court entered an order denying Mentgen’s combined motion to reconsider and for

leave to file a Second Amended Complaint with counts against the Dowells and Book. However,

the motions to dismiss the Amended Complaint by Berkshire, Betlinski, TLC, and Haderlein were

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not granted until the following month, at which time the trial court also ordered that Mentgen be

granted leave to file a Second Amended Complaint. Mentgen’s Second Amended Complaint

contained, inter alia, newly amended counts I, II, V, and VII against the Dowells and Book along

with a new count alleging unjust enrichment against the Dowells. The Dowells and Book filed a

combined motion to dismiss the counts of the Second Amended Complaint pertaining to them,

which the trial court granted after briefing and a hearing.

¶ 18 While the trial court may have denied leave to file second amended counts against the

Dowells and Book, the record is clear that the court subsequently allowed such counts to be filed

as part of the Second Amended Complaint and considered briefing and arguments on them in

motions to dismiss. Therefore, this contention is without merit.

¶ 19 We must then address the status of the Second-Amended Complaint as it applies to the

dismissed counts of the Amended Complaint against the Dowells and Book. When Mentgen filed

her Second-Amended Complaint, she again included counts of fraudulent inducement and

fraudulent concealment against the Dowells (I and II), tortious interference with contract against

Book (V) and aiding and abetting (including Book) (VII).

¶ 20 A party who files an amended pleading waives any objection to the trial court’s ruling on

any prior complaints. Bonhomme v. St. James, 2012 IL 112393, ¶ 17. “[W]here 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.” (Internal

quotation marks omitted.) Id. This rule applies to theories of recovery as well as to factual

allegations. Fazekas v. City of De Kalb, 2021 IL App (2d) 200692, ¶ 17. A party has three avenues

for avoiding such waiver and preserving for appellate review any dismissed claims: (1) stand on

the dismissed counts, voluntarily dismiss any remaining counts, and argue the matter before the

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reviewing court; (2) file an amended pleading that realleges, incorporates by reference, or refers

to the dismissed counts; or (3) perfect an appeal from the dismissal order prior to filing an amended

pleading. Id. Where a party has failed to use one of these methods for avoiding forfeiture, ongoing

objections to a dismissal order are insufficient to preserve the issue for appeal. Bonhomme, 2012

IL 112393, ¶¶ 20–22. This is true even where a party raises objections to a dismissal order in a

motion to reconsider, in a motion for a new trial, or in motions in limine. Id. ¶¶ 20–23.

¶ 21 Here, counts I, II, V, and VII of the Second-Amended Complaint are not simple re-

allegations of the dismissed counts from the Amended complaint. While alleging the same causes

of action and defendants, the specific allegations, including the alleged damages suffered, have

been changed. As Mentgen stated in her Motion to Reconsider and for Leave to File the Second-

Amended Complaint:

“49. The purposed [sic] 2nd Amended Complaint changes the substance of the

allegations to address the Court’s ruling of February 20, 2019 and adds a new count against

the DOWELL defendants which should be allowed pursuant to 735 ILCS 5/2-616(a).”

(Emphasis added.)

¶ 22 For example, Count I (Fraudulent Inducement) of the Amended Complaint alleged that The

Dowells and Book obtained from Haderlein a “verbal agreement***to amend [the] Management

Plan” prior to the closing of the sale, while the same count of the Second Amended Complaint

alleged that they obtained from Haderlein “verbal approval***for the Amended Management

Plan*** which was contingent upon the DOWELLS becoming the contract purchasers and a crop

rotation that had erosion level below tolerable levels” and that, because Mentgen “did not know or

suspect that LISA HADERLEIN had already approved an Amended Management Plan***, she

never thought to ask for a copy of any Amended Management Plan prior to closing.” (Emphases

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added.) The Second-Amended Complaint alleged that the subsequent approval of the Amended

Management Plan by the TLC board was simply a rubber stamp of Haderlein’s verbal agreement

and that, according to the President of TLC, approval of an amended management plan by the

board was not necessary. The Amended Complaint contained no such allegations.

¶ 23 As Mentgen argued in her reply to the Dowells’ and Book’s response to her motion to

reconsider and for leave to file, “The proposed 2nd Amended Complaint alleges new facts

regarding damages which counsel for the plaintiff found after the hearing.” According to Mentgen,

“the 2nd Amended Complaint changed the allegations of damages to correct the defect in the

Amended Complaint raised by this Court at the hearing on the Motion to Dismiss the Amended

Complaint.” The Amended Complaint sought approximately $470,000 in damages, the alleged

“difference between the sale price and the value of the property with the provisions of the verbal

agreement to amend the Management Plan.” The Second Amended Complaint sought $600,000

for that difference plus another $300,000 for the cost “to establish and defend the terms of the

Conservation Easement which were violated by the Amended Management Plan.” These

differences also affected counts II, V, and VII.

¶ 24 Further, the Second-Amended Complaint in no way refers to or adopts the dismissed

pleadings from the Amended Complaint, thereby rendering the earlier pleadings “in effect

abandoned and withdrawn.” Bonhomme, 2012 IL 112393, ¶ 17. Thus, we conclude that any issues

arising from the trial court’s dismissal of counts I, II, V, and VII of the Amended Complaint were

not properly preserved for appellate review and will not be considered.

¶ 25 For similar reasons, we must also find that Mentgen’s contention that the trial court erred

in denying her motion to reconsider is not preserved for appellate review. By filing the Second

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Amended Complaint, Mentgen abandoned the motion to reconsider the abandoned counts of the

amended complaint.

¶ 26 Mentgen next contends that the trial court erred in dismissing Count VIII of the Second

Amended Complaint alleging unjust enrichment against the Dowells. The Dowells’ brought

combined motions to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure and

to strike pursuant to section 2-615 of the Code (735 ILCS 5/2-619(a)(9), -615 (West 2018). We

review de novo a trial court’s ruling under either section. See Gatreaux v. DKW Enterprises, LLC,

2011 IL App (1st) 103482, ¶ 10.

¶ 27 To state a claim for unjust enrichment, a plaintiff must allege that: (1) the defendant has

unjustly retained a benefit to the plaintiff’s detriment; and (2) the defendant’s retention of the

benefit violates the fundamental principles of justice, equity, and good conscience. Gagnon v.

Schickel, 2012 IL App (1st) 120645, ¶ 25. A claim of unjust enrichment does not require fault or

illegality on the defendant’s part; the essence of the cause of action is that one party is enriched,

and it would be unjust for that party to retain the enrichment. Stathis v. Geldermann, Inc., 295 Ill.

App. 3d 844, 864 (1998). The principle of unjust enrichment has no application where a specific

contract governs the relationship of the parties; it only applies in the context of an implied contract.

Id. However, “unjust enrichment may be predicated on either quasi-contract or tort.” Id.. Where

an unjust enrichment claim is based on tort, instead of quasi-contract, the existence of a specific

contract does not defeat a plaintiff’s cause of action. Id. See also Pedinghaus v. Pedinghaus, 295

Ill. App. 3d 943, 949 (1998) (“In the present case, plaintiff bases his unjust enrichment claim on a

tort theory, specifically, that defendants, through their agent Carl, fraudulently induced him to sell

his shares in the CUP trust. Since plaintiff’s unjust enrichment claim is based on tort, instead of

quasi-contract, the existence of a specific contract does not defeat his cause of action.”)

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¶ 28 Here, Mentgen alleged that the Dowells were able to purchase the subject property for half

of its value considering the uses that were allowed under the Amended Management Plan that had

been negotiated and verbally approved without her knowledge before the closing of the sale. The

Dowells knew that Mentgen was unaware of the approved Amended Plan and knew that Mentgen

would not have agreed to the $470,000 purchase price had she been aware of it. The Dowells also

knew that the agreed upon price of $470,000 did not reflect the true value of the property with the

Amended Plan verbally approved before closing. The Dowells purposely concealed the existence

of the Amended Plan so that they could purchase the property for approximately half of its value,

given the terms of the Plan. Thus, the Dowells benefitted from the verbal approval of the Amended

Plan prior to closing because the Plan greatly increased the value of the property, and they did not

have to pay for the increased value. According to Mentgen, this violated the fundamental

principles of equity, justice, and good conscience.

¶ 29 In granting the motion to dismiss the unjust enrichment count, the trial court stated in part:

“I agree that they [Dowells] got a benefit. They got a benefit through negotiations

with TLC, and whether or not you were aware of it isn’t terribly important. I’m just failing

to see how their actions created a wrongful act, or are defined—came to be defined as a

wrongful act.”

¶ 30 As we have already noted, a claim of unjust enrichment does not require fault or illegality

on the defendant’s part. See Stathis, 295 Ill. App. 3d at 864. The essence of the cause of action is

that one party is enriched, and it would be unjust for that party to retain the enrichment. Thus, to

the extent that the trial court relied on this reasoning as a basis for dismissal, its reliance was in

error.

¶ 31 The trial court also stated:

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“I—For purposes of this motion, I accept that representation that they did that, but

it still doesn’t establish for me that the Dowells owed some—or Book owed some sort of

a duty to the Plaintiff and [T]rust to disclose these discussions.

Their—As I said before, their relationship was controlled by the written contract

for the purchase of the sale which was supervised by the Court.

So, I’m going to grant the motion. I don't believe—I’m going to dismiss Dowell

and Book [sic] with prejudice. I don’t believe that there is a cause of action because I—

there is no duty for them to disclose their discussions regarding what they can do with this

property. So, they’re dismissed with prejudice***.”

¶ 32 The Dowells argue, as the court mentioned, that they and Mentgen were parties to the real

estate contract; therefore, unjust enrichment has no application. See Stathis, 295 Ill. App. 3d at

864. Mentgen replies that the claim of unjust enrichment is based not on the real estate contract

but on the amended management plan between the Dowells and TLC; thus, “there is not a specific

contract between the TRUST and the DOWELLS that governs the relationship of the DOWELLS

and TLC.”

¶ 33 Mentgen’s argument misses the point. Unjust enrichment has no application where a

specific contract governs the relationship of the parties, i.e. the plaintiff and the defendant, not the

defendant and another actor. See Stathis, 295 Ill. App. 3d at 864. However, Mentgen based her

claim of unjust enrichment on the tort of fraudulent concealment, alleging that the Dowells

“purposely concealed the existence of the verbally approved Amended Management Plan from

SUSAN BEESON MENTGEN so it could purchase the subject property for approximately half its

value.” Because this claim was based on tort, the existence of the real estate contract does not

defeat Mentgen’s cause of action. See . Pedinghaus, 295 Ill. App. 3d at 949.

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¶ 34 The required allegations for a claim of unjust enrichment are few. Mentgen clearly alleged

that the Dowells obtained the benefit of a substantially lower price for the property than would

have been expected by fraudulently concealing the amendment of the management plan and that

the Dowells’ retention of the benefit violates the fundamental principles of justice, equity, and

good conscience. We conclude that the trial court erred in dismissing this count.

¶ 35 Mentgen next contends that the trial court erred in dismissing Count III of the Second

Amended Complaint that alleged breach of fiduciary duty against Betlinski and Berkshire. To

state a claim for breach of fiduciary duty, a plaintiff must allege that: (1) a fiduciary duty exists;

(2) the fiduciary duty was breached; and (3) such breach proximately caused the injury of which

the party complains. Lawlor v. North America Corp. of Illinois, 2012 IL 112530, ¶ 69. Our review

of the trial court’s dismissal is de novo.

¶ 36 Mentgen alleged that Bettlinski learned prior to the signing of the real estate contract that

the Dowells had obtained verbal approval of the Amended Management Plan and knew that the

uses allowed under that plan were prohibited by the Easement However, Bettlinski also knew that

Mentgen did not know about the amended plan, and she failed to inform Mentgen and the Trust

about that “material fact” relating to the transaction and affecting the value of the property.

Because of this breach, Mentgen was “induced into accepting a purchase price that was well below

the value of the Subject Property without the prohibitions of the Conservation Easement.”

¶ 37 There is no doubt that a fiduciary relationship existed between Betlinski/Berkshire and

Mentgen, as trustee. A real estate broker has long served as an agent of the owner of property,

bargaining and negotiating on behalf of her principal in relation to the purchase or sale of property.

See Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1063 (1996). Pursuant to the

Real Estate License Act of 2000 (Act), licensees under the Act “shall be considered to be

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representing the consumer they are working with as a designated agent for the consumer unless

there is a written agreement between the sponsoring broker and the consumer providing that there

is a different relationship.” 225 ILCS 454/15-10 (West 2020).

¶ 38 However, the Act provides for the concept of dual agency in the same transaction, a

situation that occurred in this case, as Bettlinski/Berkshire represented both Mentgen and the

Dowells. See 225 ILCS 454/15-45 (West 2020). There is no contention here that Mentgen did

not know the implications of a dual agency or that the dual agency agreement, which Mentgen

signed, did not contain the statutorily required information about dual agency. See 225 ILCS

454/15-45 (West 2020). In general, a dual agent is not to disclose recommended or potential

acceptable prices or terms to either the buyer or seller. See 225 ILCS 454/15-45 (West 2020).

Specifically listed as an item of information that an agent cannot disclose in a dual agency situation

is “Confidential information that Licensee may know about a client, without that client's

permission.” 225 ILCS 454/15-45 (West 2020). “Confidential information” is defined as:

“[I]nformation obtained by a licensee from a client during the term of a brokerage

agreement that (i)*** (ii) deals with the negotiating position of the client, or (iii) is

information the disclosure of which could materially harm the negotiating position of the

client unless at any time:

***

(3) the information becomes public from a source other than the licensee.” 225 ILCS

454/1-10.

¶ 39 Here, Mentgen alleged that the “verbally approved Amended Management Plan was a

material fact relating to the transaction and affecting the value of the Subject Property.” (Emphasis

added.) This type of information appears to be the type of confidential information regarding the

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negotiating position of the Dowells that Betlinski/Berkshire was prohibited from disclosing.

However, Mentgen also alleged that Betlinski was told by the Dowells, Book, and/or Haderlein of

the approval of the Amended Plan and the planned uses of the land. Thus, Mentgen alleged that

the Amended Plan and the Dowells’ future plans were “public from a source other than the

licensee” and no longer confidential. Disclosure of that information would no longer violate

Betlinski’s fiduciary duty to the Dowells, but failure to disclose it to Mentgen did violate her

fiduciary duty to Mentgen. However, this is a clear example of the potential pitfalls of a dual

agency transaction.

¶ 40 Regarding the third requirement that the breach proximately caused the injury of which the

plaintiff complains, Mentgen alleged that she and the Dowells entered into the sales contract on

February 2, 2017, and the court approved the sale on February 28, 2017. On February 16,

Haderlein had attempted to e-mail Mentgen about the “tentative plan” to clear the nursery stock

and plant corn and then do a crop rotation, but the e-mail had been sent to an old address. It was

not until March 3 that Haderlein e-mailed the information to Mentgen’s brother Joe Beeson and

mailed the information to Mentgen. Mentgen sent an e-mail to Haderlein objecting to the

“tentative plan” on March 18. The sale of the property was closed on April 5, 2017. Prior to the

closing, Mentgen did not know that an Amended Management Plan had been approved, so she

never thought to ask for a copy of any Amended Plan prior to the closing. Because of this breach

of fiduciary duty, Mentgen was induced into accepting a purchase price that was well below the

value of the property without the prohibitions of the Conservation Easement.

¶ 41 Betlinski/Berkshire argue that Mentgen cannot prove that Betlinski’s alleged failure to

disclose the existence of the Amended plan caused any damages because Mentgen was aware of

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the information through Haderlein. Further, while Mentgen objected to the plan, she went through

with the sale anyway.

¶ 42 We disagree with this analysis. First, Mentgen alleged that she learned from Haderlein that

there was a “tentative plan” to use the land in a way incompatible with the lease, not that an

Amended Plan for such usage had already been approved. She also learned of this information

after she agreed to the sales contract and the court approved the sale. Had she been told this

information by Betlinski in a timely fashion, she never would have entered into the contract. It is

absurd to argue that Mentgen should be precluded from recovery because she went through with

the sale even though she objected to what she thought was a “tentative plan;” we need not require

the breaching of a court-approved sales contract in order to claim that one was damaged by actions

taken in secret before the contract was entered into. We conclude that Mentgen properly alleged

the proximate cause of her injuries. Therefore, Mentgen pled a proper cause of action in breach

of fiduciary duty against Betlinski and Berkshire. Therefore, the trial court erred in dismissing

Count III of the Second Amended Complaint.

¶ 43 Mentgen next contends that the trial court erred in dismissing Count IV of the Second

Amended Complaint alleging consumer fraud against Betlinski and Berkshire. Mentgen provides

a four-sentence argument culminating in the conclusion that Count IV stated a cause of action

because it alleged that Betlinski “used unfair or deceptive acts by failing to tell Mentgen about the

Amended Management Plan.” This contention is undeveloped and does not conform with the

requirements of Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), and we will not consider it.

¶ 44 Mentgen next contends that the trial court erroneously dismissed Count VII of the Second

Amended Complaint alleging aiding and abetting against Betlinski, Berkshire, Book, Haderlein,

and TLC. To state a cause of action for aiding and abetting the commission of a tort, a plaintiff

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must allege: (1) the party whom the defendant aids must perform a wrongful act that causes an

injury; (2) the defendant must be regularly aware of his role as part of the overall or tortious activity

at the time that he provides the assistance; and (3) the defendant must knowingly and substantially

assist the principal violation. Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 28 (2003).

Again, our review of the dismissal of a claim is de novo.

¶ 45 Here, the alleged wrongful acts that caused an injury were the Dowells’ commission of

fraudulent inducement in failing to inform Mentgen of Haderlein’s approval of the amended

Management Plan prior to the execution of the real estate contract and fraudulent concealment for

failure to inform Mentgen of the Amended Management Plan during the pendency of the contract.

Mentgen alleged that all of the defendants “knew about this” and helped to conceal the Dowells’

acts “by not informing Mentgen about the Amended Management Plan.” Mentgen makes no more

argument beyond this assertion that everyone who allegedly knew about the alleged fraud should

have told her about it. She cites no case law to support her position and never addresses the issue

of whether silence or inaction constitute substantial assistance for purposes of aiding and abetting.

We find this issue to be undeveloped and not in conformity with the requirements of Supreme

Court Rule 341(h)(7) (eff. Oct. 1, 2020), and we will not consider it.

¶ 46 III. CONCLUSION

¶ 47 For these reasons, the judgment of the Circuit Court of McHenry County is reversed as to

counts III and VIII of the Second Amended Complaint, and the matter is remanded for further

proceedings on those counts. The judgment is affirmed in all other respects.

¶ 48 Affirmed in part, reversed in part, and remanded for further proceedings.

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