Ray v. R.A. Mechanical, Inc.

2023 IL App (1st) 221639-U

• Court: Appellate Court of Illinois
• Decided: December 13, 2023
• Docket: 1-22-1639
• Status: Unpublished

Opinion

2023 IL App (1st) 221639-U

THIRD DIVISION December 13, 2023

No. 1-22-1639

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 FIRST JUDICIAL DISTRICT

JOHN H. RAY, III, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 2021 L 3412 ) R.A. MECHANICAL, INC., d/b/a R.A. PLUMBING ) & MECHANICAL; ROBERT J. ARVETIS; ) ) Honorable Mary Colleen Roberts, Defendants-Appellees ) Judge, presiding.

JUSTICE D.B. WALKER delivered the judgment of the court. Justices Lampkin and Reyes concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in granting defendants’ motions to dismiss. Affirmed.

¶2 Plaintiff John H. Ray, III, filed a complaint against R.A. Mechanical, Inc., d/b/a R.A.

Plumbing & Mechanical (R.A. Mechanical) and Robert J. Arvetis (the president of R.A.

Mechanical) in connection with plumbing services for a construction project at plaintiff’s home.

The complaint alleged breach of contract (count I), common law fraud (count II), professional

negligence (count III), and violations of the Consumer Fraud and Deceptive Business Practices No. 1-22-1639

Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2020)) (count IV). 1 Initially, defendants

filed a motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735

ILCS 5/2-619.1 (West 2022)), which the trial court granted but with leave to replead solely as to

counts I and II. Plaintiff subsequently amended his complaint with respect to counts I and II,

which defendants then moved to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-

615(e) (West 2022)). The court granted defendants’ motion and dismissed the cause with

prejudice. On appeal, plaintiff contends that the trial court erred in dismissing counts I, II, and IV

because (1) regarding count I, it improperly made factual findings and rejected as “ ‘back door’

consideration the direct payment promise by plaintiff and consent to approve defendants as

subcontractors”; (2) regarding count II, it failed to consider “the entirety of the factual allegations”

that constituted plaintiff’s alleged “change order scheme” instead of one written change order; and

(3) regarding count IV, it erroneously found that plaintiff’s allegation provided duplicative

recovery for his breach of contract claim. We affirm. 2

¶3 BACKGROUND

¶4 As noted above, the trial court dismissed counts I and II of the original complaint with

leave to replead, but it dismissed counts III and IV, presumably with prejudice, although not

expressly stated in its order. Plaintiff then filed an amended complaint focused solely on counts I

and II, which fully incorporated all allegations and claims from the original complaint and attached

the original complaint as an exhibit. In his brief before this court, plaintiff additionally states that

1 Plaintiff erroneously labeled this count as a duplicate count “III.” 2 This appeal has been resolved without oral argument upon the entry of a separate written order pursuant to Illinois Supreme Court Rule 352(a) (eff. July 1, 2018).

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the factual allegations in the amended complaint3 are “substantially the same” as those in the

original complaint. Accordingly, we will recite the factual allegations from both the original and

the amended complaint.

¶5 On September 7, 2019, plaintiff entered into a written general contractor agreement (the

Agreement) with Rigsby Builders, Inc. (Rigsby), related to the remodeling of plaintiff’s home,

which plaintiff and Rigsby subsequently amended on April 14, 2020. On June 1, 2020, Rigsby

entered into a written subcontractor agreement (the Subcontractor Agreement) with R.A.

Mechanical to provide plumbing subcontractor services on the remodeling project for a total cost

of $21,125. This amount consisted of $15,625 for “Rough Plumbing” and “Gas Pipe,” and an

additional $5,500 in “Trim Plumbing.” Plaintiff admitted that he never entered into any written

agreement with defendants and further described the Subcontractor Agreement between R.A.

Mechanical and Rigsby as a “collateral agreement (to which [plaintiff] was not a party).”

¶6 Around July 2020, plaintiff entered into an oral agreement (the first oral agreement) with

defendants. Plaintiff stated that “in order to obtain and in exchange for [plaintiff’s] consent and

for his direct agreement and obligation to make payment,” defendants made various

representations concerning the work they promised to perform, including “performing all of the

subcontracted plumbing services in compliance with (a) the [S]ubcontractor [A]greement, (b) the

building code of the City of Chicago, (c) the architectural plans ***, and most important (d)

[plaintiff’s] direction (an obligation beyond the [S]ubcontractor [A]greement).”

¶7 Around August 24, 2020, plaintiff expressed dissatisfaction with certain aspects of the

plumbing work. Plaintiff met with Rigsby and Arvetis, and the parties agreed on a plan to address

plaintiff’s issues with the plumbing. Around September 16, 2020, the parties agreed orally that

3 Plaintiff’s brief erroneously refers to the amended complaint as the “Second Amended” complaint. No such second amended complaint exists in the record on appeal.

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the plan would cost plaintiff an additional $2,500 “all in” (the second oral agreement). By October

19, 2020, however, R.A. Mechanical sent two invoices to Rigsby for the changes totaling

$12,256.16: one invoice for $10,756.16 (dated October 5, 2020) and another for $1,500 (dated

October 19, 2020). Plaintiff refused to pay more than the $2,500 amount purportedly agreed to.

¶8 Following discussion amongst the parties, plaintiff and Rigsby each agreed to pay 1/3 of

the $12,256.16, i.e., $4,085.39. Plaintiff added that, “reflecting part of these exchanges and

agreement,” Arvetis stated the following in an e-mail sent to plaintiff on November 19, 2020: “The

only way that I will accept the 1/3 split[,] however, is with a signed letter through my attorney that

will state [that] I am completely off of the remainder of the project, you accept the plumbing as is,

and [you] lose any and all warranties from us regarding your plumbing.” Plaintiff stated that,

“upon information and belief,” he made the additional payment to defendant “through Rigsby,”

but defendants failed to complete the work as promised. Defendants refused to complete the work,

and plaintiff had to hire another plumber to do so, which cost him in excess of $2,500.

¶9 On March 30, 2021, plaintiff filed his initial complaint against defendants alleging, inter

alia, breach of contract (count I), fraud (count II), and violation of the Consumer Fraud Act (count

IV). Plaintiff’s breach of contract claim alleged that defendants breached their oral agreements

with plaintiff based upon defendants’ failure to complete all of the rough plumbing despite plaintiff

paying “through Rigsby” $19,710.39, which consisted of $15,625 from the original Agreement

plus plaintiff’s 1/3 share of the subsequently negotiated agreement ($4,085.39). Plaintiff’s fraud

claim alleged that defendants “intentionally and knowingly” represented that (1) the work would

comply with both the architectural plans and plaintiff’s direction and (2) they would complete all

of the rough plumbing and subsequently negotiated “correction” work. Finally, plaintiff’s

Consumer Fraud Act claim alleged that defendants engaged in the following unfair and deceptive

acts or practices: knowingly and falsely claiming their work would conform to the architectural

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plans and plaintiff’s direction, intentionally deviating from the architectural plan and plaintiff’s

direction so as to demand a change order and obtain more money, agreeing to complete the

correction work in exchange for $24,795.78 but with no intention of completing the work, falsely

representing the corrective work was complete, and refusing to complete any remaining work.

Plaintiff added, “Defendants’ actions are likely to cause public injury, because of the potential for

repetition.”

¶ 10 On December 14, 2021, defendants filed a motion to dismiss the complaint pursuant to

section 2-619.1 of the Code. Defendants motion contended, inter alia, that counts I, II, and IV

should be dismissed pursuant to both sections 2-615 and 2-619 (735 ILCS 5/2-615, 2-619 (West

2022)). On March 18, 2022, the trial court granted the motion to dismiss pursuant to section 2-

615. The breach of contract and fraud claims (counts I and II, respectively) were dismissed “with

leave to replead,” whereas the professional negligence and Consumer Fraud Act claims (counts III

and IV) were dismissed without the leave to replead language. 4 Regarding count IV, the court

found that plaintiff “failed to allege sufficient facts to give rise to a cause of action for consumer

fraud” and stated that this claim “would be more aptly pled as a claim for breach of contract.”

¶ 11 On April 15, 2022, plaintiff filed an amended complaint. Plaintiff’s amended complaint

alleged only breach of contract (count I) and fraud (count II) but stated that it “incorporate[d] by

reference all of the allegations and claims of the original complaint in full.” The amended

complaint also included the original complaint as an exhibit.

¶ 12 Plaintiff’s breach of contract claim again alleged that defendant breached the oral

agreements by failing to complete the rough plumbing and “correction work” despite plaintiff

having paid $15,625 for the work “through Rigsby Builders.” With respect to the oral agreements,

4 Plaintiff does not challenge the dismissal of count III.

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plaintiff alleged that, “in exchange for his direct obligation to pay for the agreed services *** and

agreement to providing his consent to [d]efendants serving as the subcontractors on the project,”

defendants agreed to complete “the rough plumbing and correction work *** consistent with the

[S]ubcontractor [A]greement, [c]ity building code, architectural plans, and at [p]laintiff’s

discretion.” Plaintiff claimed “significant injury and damages” due to defendants’ breach.

¶ 13 In support of his claim for fraud, plaintiff re-alleged that defendants “intentionally and

knowingly” represented that (1) the plumbing work “would comply” with both the architectural

plans, the “City building code,” and plaintiff’s direction; and (2) they “would complete” all of the

rough plumbing and subsequently negotiated “correction” work. Plaintiff alleged that defendants

only made those representations to advance a “ ‘change order’ scheme” to defraud plaintiff.

Plaintiff explained that the scheme involved defendants receiving plaintiff’s approval to perform

the plumbing work at the agreed rate, but with defendants having “no intention of performing the

work they represented they would perform” and then demanding “additional ‘change orders’ and

money to complete the work promised.”

¶ 14 On June 7, 2022, defendants filed a motion to dismiss pursuant to section 2-615 of the

Code. On October 31, 2022, the trial court entered a written order granting defendants’ motion,

dismissing the breach of contract and fraud claims with prejudice.

¶ 15 This appeal follows.

¶ 16 ANALYSIS

¶ 17 On appeal, plaintiff contends that the trial court erroneously granted defendants’ motions

to dismiss. Plaintiff argues, in essence, that the court improperly made factual findings, failed to

consider the entirety of his factual allegations, and wrongfully found his Consumer Fraud Act

claim was duplicative of his breach of contract claim. Plaintiff asks that we reverse the judgment

of the trial court and remand for further proceedings.

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¶ 18 Jurisdiction

¶ 19 Although neither party has raised the issue, we must discuss our jurisdiction. We have an

independent duty to consider whether we have jurisdiction and to dismiss an appeal for lack of

jurisdiction. Williams Montgomery & John Ltd. v. Broaddus, 2017 IL App (1st) 161063, ¶ 32

(citing Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536 (1984)).

¶ 20 This court has the authority to hear appeals from (1) “final judgments” and (2) nonfinal

orders as defined by supreme court rule. Ill. Const. 1970, art. VI, § 6. A proceeding for attorney

fees pursuant to Rule 137 is “within and a part of the underlying civil action, not a separate cause

of action.” Phoenix Capital, LLC v. Tabiti, 2016 IL App (1st) 162686, ¶ 7 (citing Marsh v.

Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 468 (1990), Berger v. Matthews, 216

Ill. App. 3d 942, 944 (1991)). Therefore, it must be resolved before the case becomes appealable

absent a finding pursuant to Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016)) that there is no

just reason to delay enforcement or appeal. Id.

¶ 21 The trial court here entered its final judgment granting defendants’ 2-615 motion to dismiss

on October 31, 2022. Plaintiff filed his notice of appeal on the same day. The record on appeal in

this case, however, reveals that on November 30, 2022, defendants timely filed a motion for

sanctions, including attorney fees, pursuant to Rule 137. See Ill. S. Ct. R. 137(b) (eff. Jan. 1,

2018)) (providing that motions brought under this rule must be filed within 30 days of either the

final judgment or the ruling on a timely postjudgment motion). Plaintiff then filed a combined

response opposing defendants’ motion for sanctions and a cross-motion for Rule 137 sanctions on

December 1, 2022. Plaintiff’s cross-motion similarly sought attorney fees. There is nothing in the

record (nor in the parties’ briefs) indicating whether the trial court disposed of these motions.

¶ 22 Although plaintiff’s notice of appeal was initially premature, this fact does not necessarily

deprive this court of jurisdiction. Where, as here, a timely postjudgment motion has been filed

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after the filing of a notice of appeal, Rule 303(a)(2) states that the notice of appeal becomes

effective when the trial court enters an order disposing of that timely postjudgment motion. Ill. S.

Ct. R. 303(a)(2) (eff. July 1, 2017). According to the circuit clerk’s online docket for this case—

of which this court may take judicial notice (see People v. Grau, 263 Ill. App. 3d 874, 876

(1994))—the trial court entered an order denying the motions on February 16, 2023. 5 Pursuant to

Rule 303(a)(2), plaintiff’s notice of appeal became effective at that time, i.e., when the court

disposed of the motions. Therefore, we have jurisdiction over this appeal.

¶ 23 Plaintiff’s Appellate Briefs

¶ 24 We further note that plaintiff’s brief does not comply with Illinois Supreme Court Rule

341(h). In particular, the statement of facts in plaintiff’s briefs does not cite to the record, but

instead to various pages in the separate appendix to plaintiff’s opening brief. This violates Rule

341, which plainly requires reference to “the pages of the record on appeal ” and not the appendix

to a brief. (Emphasis added.) Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020).

¶ 25 Supreme court rules are not mere suggestions; they are rules that must be followed. In re

Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57. “Where an appellant’s brief fails to comply

with supreme court rules, this court has the inherent authority to dismiss the appeal.” Epstein v.

Galuska, 362 Ill. App. 3d 36, 42 (2005). We may also strike an appellant’s brief for noncompliance

with Rule 341. North Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st)

133672, ¶ 14. Nonetheless, we recognize that striking a brief or dismissing an appeal for failure

to comply with supreme court rules is a harsh sanction. In re Detention of Powell, 217 Ill. 2d 123,

132 (2005). Here, we are able to find the precise location in the record to which plaintiff’s citations

5 Neither party challenges these denials in this appeal.

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to the separate appendix refer, and we can otherwise discern the basis for plaintiff’s claims of error,

despite the violation of court rules. Accordingly, we will consider the merits of the appeal.

¶ 26 Section 2-615 of the Code

¶ 27 To survive a section 2-615 motion to dismiss, a complaint must be both legally and

factually sufficient. Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 22. When ruling on a motion

to dismiss under section 2-615, a court must accept all well-pleaded facts in the complaint as true

and draw all reasonable inferences from those facts in favor of the nonmoving party. Id. ¶ 24

(citing Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003)).

Thus, a court should deny a motion to dismiss pursuant to section 2-615 unless it is clearly apparent

that no set of facts can be proved that would entitle the plaintiff to recovery. Id. (citing Marshall

v. Burger King Corp., 222 Ill. 2d 422, 429 (2006)).

¶ 28 Additionally, it is well established that exhibits attached to a complaint become a part of a

complaint, and if there is any conflict between the factual matters in the exhibits and those alleged

in the complaint, the factual matters in the exhibit control. Id. (citing Charles Hester Enterprises,

Inc. v. Illinois Founders Insurance Co., 114 Ill. 2d 278, 287 (1986) (citing Fowley v. Braden, 4 Ill.

2d 355, 359-60 (1954))). We review de novo the trial court’s decision on a motion to dismiss

brought under section 2-615. Id. Finally, we review the judgment, not the reasoning, of the trial

court, and we may affirm on any grounds in the record, regardless of whether the trial court relied

on those grounds or whether the trial court’s reasoning was correct. Id. (citing Leonardi v. Loyola

University of Chicago, 168 Ill. 2d 83, 97 (1995)).

¶ 29 Breach of Contract

¶ 30 The essential elements of a breach of contract claim are: (i) the existence of a valid and

enforceable contract, (ii) performance by the plaintiff, (iii) breach of the contract by the defendant,

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and (iv) resultant injury to the plaintiff. Coghlan, 2013 IL App (1st) 120891, ¶ 27. The issue

presented to this court concerns the first element, the existence of a valid and enforceable contract.

¶ 31 It has long been held that, in Illinois, “the basic ingredients” of a contract are an offer, an

acceptance, and consideration. Melena v. Anheuser-Busch, Inc., 219 Ill. 2d 135, 151 (2006) (citing

Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 329 (1977)). Consideration must consist of

something of detriment or disadvantage to one party or benefit to the other, and the bargained-for

exchange between them. Mulvey v. Carl Sandburg High School, 2016 IL App (1st) 151615, ¶ 35

(citing Steinberg, 69 Ill. 2d at 330). It is well established that the mere performance of an act that

one is legally obligated to do is not consideration that would support a contract, because there is

no detriment. Id. (citing Johnson v. Maki & Associates, Inc., 289 Ill. App. 3d 1023, 1028 (1997)).

¶ 32 In this case, the trial court correctly granted defendants’ motion to dismiss plaintiff’s

breach of contract claim. Plaintiff’s amended complaint alleged that he entered into the Agreement

with Rigsby in connection with the renovation of his personal residence, and in turn, Rigsby

entered into the Subcontractor Agreement with defendants to perform the plumbing portion of the

renovation. Pursuant to the purported oral contracts, plaintiff agreed to (1) fulfill his “direct

obligation to pay” defendants for their completion of the rough plumbing and subsequent

“correction” work and (2) “consent” to defendants serving as subcontractors. In return, defendants

agreed to complete the rough plumbing and correction work in compliance with (1) the

Subcontractor Agreement (between defendants and Rigsby only), (2) the “City building code,”

(3) the architectural plans, and (4) plaintiff’s “discretion.” Plaintiff alleged that he satisfied his

obligation by paying $15,625 to Rigsby, but defendants failed to complete their work.

¶ 33 The work contemplated, however, was already agreed to as part of defendants’ contract

with Rigsby: both the original work as well as the subsequent “correction” work were included as

exhibits to plaintiff’s complaint. In addition, plaintiff freely admitted that the work would be

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“consistent with” the Subcontractor Agreement (i.e., the agreement solely between defendants and

Rigsby). Furthermore, as noted in the exhibit to plaintiff’s complaint, the amount plaintiff paid

($15,625) is precisely the amount payable for the “rough plumbing” and “gas pipe” in the

Subcontractor Agreement. Plaintiff thus already had a preexisting duty to pay defendants (through

Rigsby) for any work defendants completed. Although plaintiff alleged the oral agreements had

additional obligations on the part of defendants (such as, their work being in compliance with the

“City building code,” etc.), plaintiff did not allege any additional consideration in return for these

purported promises. Consequently, plaintiff’s purported oral contracts fail for want of

consideration. See Mulvey, 2016 IL App (1st) 151615, ¶ 35.

¶ 34 Nonetheless, plaintiff asserts that he successfully alleged additional consideration in the

form of his “agreement to continue with and approve Defendants as subcontractors.” In support

of his claim, plaintiff relies primarily upon Boomer v. AT & T Corp., 309 F.3d 404 (7th Cir. 2002).

Plaintiff’s reliance, however, is misplaced.

¶ 35 In Boomer, the plaintiff filed a putative class action complaint against the defendant, and

the defendant moved to compel arbitration. Id. at 408. The lower court denied the defendant’s

motion, and the defendant appealed. Id. In response to the defendant’s arguments on appeal, the

plaintiff contended that the “Customer Service Agreement” (CSA)—which the defendant sent to

the plaintiff (and which contained a new notice of mandatory arbitration)—was not a valid contract

because, inter alia, the CSA contained language that his service or billing “ ‘will not change’ ”

under the CSA. The plaintiff concluded that this indicated that he received no consideration in

exchange for his agreement to arbitration. Id. at 415-16. The Boomer court, however, explained

that, in exchange for his agreement to arbitration, the defendant agreed to provide continued

telephone services, which the defendant had “no legal obligation to continue providing.” Id. at

416. The court consequently rejected the plaintiff’s argument. Id.

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¶ 36 We note at the outset that the decisions of lower federal courts are not binding on this court.

See Vulpitta v. Walsh Construction Co., 2016 IL App (1st) 152203, ¶ 34 (citing Prodromos v.

Everen Securities, Inc., 389 Ill. App. 3d 157, 175 (2009) (citing Travelers Insurance Co. v. Eljer

Manufacturing, Inc., 197 Ill. 2d 278, 302 (2001))). Moreover, Boomer is factually distinct. There,

the court repeatedly stated that the defendant corporation did not have a preexisting duty to provide

telephone service to the plaintiff. See Boomer, 309 F.3d at 416 (noting both that defendant “had

no legal obligation to continue providing Boomer with telephone services” and also defendant’s

“promise to continue telephone services (something it was not obligated to do)”). Here, by

contrast, plaintiff was obligated to “consent” to defendants’ completion of the plumbing work.

The purported oral agreements stated, inter alia, that defendants promised to complete the

plumbing work. It is a deeply rooted rule that one of the essential elements for formation of a

contract is a manifestation of agreement or mutual assent by the parties to the terms thereof. Allen

v. Amber Manor Apartments Partnership, 95 Ill. App. 3d 541, 549 (1981). If plaintiff refused to

consent to defendants performing the plumbing work, defendants could not fulfill their part of the

agreement, vitiating the mutual assent required to form a contract. We reject plaintiff’s argument

that his consent to defendant fulfilling his promises under the oral agreements can serve as valid

consideration. Boomer is therefore unavailing, and plaintiff’s argument on this point is meritless.

¶ 37 Common Law Fraud

¶ 38 Plaintiff’s common law fraud claim is grounded in the underlying tortious conduct of

fraudulent misrepresentation. See Soules v. General Motors Corp., 79 Ill. 2d 282, 286 (1980). To

prevail on a claim of fraudulent misrepresentation, a plaintiff must establish the following

elements: “ ‘(1) a false statement of material fact; (2) known or believed to be false by the person

making it; (3) an intent to induce the plaintiff to act; (4) action by the plaintiff in justifiable reliance

on the truth of the statement; and (5) damage to the plaintiff resulting from such reliance.’ ”

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Certain Underwriters at Lloyd’s, London v. Abbott Laboratories, 2014 IL App (1st) 132020, ¶ 47

(quoting Doe v. Dilling, 228 Ill. 2d 324, 342-43 (2008)).

¶ 39 Claims of fraud must meet a higher standard of specificity and require specific allegations

of facts from which “fraud is the necessary or probable inference.” See Connick v. Suzuki Motor

Co., Ltd., 174 Ill. 2d 482, 496-97 (1996). A promise to perform some future act, even if made with

the intent to not perform that act, is not actionable fraud unless that false promise is “part of a

fraudulent scheme.” People ex rel. Peters v. Murphy-Knight, 248 Ill. App. 3d 382, 387-88 (1993);

see also Merrilees v. Merrilees, 2013 IL App (1st) 121897, ¶ 41 (holding that “assurances as to

future events are generally not considered misrepresentations of fact”). In addition, an opinion is

not a false statement of material fact and does not support a claim of fraud. Id. ¶ 30. Notably, as

our supreme court held over a century ago, “A mere breach of a contract does not amount to a

fraud, and neither a knowledge of inability to perform, nor an intention not to do so, would make

the transaction fraudulent.” Miller v. Sutliff, 241 Ill. 521, 527 (1909).

¶ 40 In this case, plaintiff alleged that defendants “intentionally and knowingly” misrepresented

that (1) the plumbing work “would comply” with both the architectural plans, the “City building

code,” and plaintiff’s direction; and (2) they “would complete” all of the rough plumbing and

subsequently negotiated “correction” work. These statements, however, all involve future

conduct: defendants purportedly misrepresented that they would comply with various

requirements and that they would complete the rough plumbing and correction work. Therefore,

even if defendants had no intention to meet those requirements, plaintiff still cannot successfully

plead common law fraud. See Peters, 248 Ill. App. 3d at 387-88.

¶ 41 Although plaintiff asserts that defendant’s future promises were part of a scheme, his

attempts to rescue this claim must fail. Plaintiff alleged that the scheme was simply that defendants

(1) would “receive [plaintiff’s] approval” to perform the plumbing work at the rate agreed but had

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“no intention of performing the work they represented they would perform” and then (2) demand

“additional ‘change orders’ and money to complete the work promised.” Plaintiff, however, does

not specify what exactly (if anything) defendants did that induced plaintiff to “approve” defendants

as the subcontractor. As discussed, a “successful common law fraud complaint must allege, with

specificity and particularity, facts from which fraud is the necessary or probable inference,

including what misrepresentations were made, when they were made, who made the

misrepresentations and to whom they were made.” Connick, 174 Ill. 2d at 496-97. Even accepting

all well-pleaded facts in the complaint as true and drawing all reasonable inferences from those

facts in favor of the nonmoving party (here, plaintiff), as we must (Coghlan v. Beck, 2013 IL App

(1st) 120891, ¶ 24), we cannot hold that fraud is the necessary or probable inference from

plaintiff’s allegations (Connick, 174 Ill. 2d at 496-97). To the contrary, plaintiff’s allegations

sound in breach of contract, which under well-established precedent do not amount to common

law fraud. See Miller, 241 Ill. at 527. We therefore reject plaintiff’s claim of error on this point.

¶ 42 Furthermore, plaintiff’s reliance upon Mitchell v. Norman James Construction Co., 291 Ill.

App. 3d 927 (1997), does not alter our holding. In Mitchell, the plaintiff homeowner alleged that,

to induce her to enter into a construction contract and make periodic payments under the contract,

the defendant contractor (1) did not build in accordance with the architect’s plans,

(2) “intentionally concealed his defective work,” and (3) “failed to request that village authorities

inspect his work” (which would have revealed its nonconformity with both the plans and village

ordinances). Id. at 940. The Mitchell court found that the plaintiff sufficiently alleged a scheme

or pattern of broken promises that could constitute promissory fraud. Id. Unlike Mitchell,

however, plaintiff here does not describe a scheme or series of misrepresentations to the degree of

specificity required of these claims. As we noted above, this is in substance a mere breach of

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contract claim masquerading as a common law fraud claim, which does not amount to fraud.

Miller, 241 Ill. at 527. Plaintiff’s reliance upon Mitchell is therefore unavailing.

¶ 43 The Consumer Fraud Act

¶ 44 The Consumer Fraud Act is a regulatory and remedial statute intended to protect

consumers, borrowers, and businesspersons against fraud, unfair methods of competition, and

other unfair and deceptive business practices. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d

403, 416-17 (2002). 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,

and (3) the occurrence of the deception during a course of conduct involving trade or commerce.

Id. at 417. Although the Consumer Fraud Act should be liberally construed (Connick, 174 Ill. 2d

at 503), a complaint alleging statutory consumer fraud must be pled with the same particularity

and specificity as that required under common law fraud (Id. at 501). In addition, although

plaintiff’s reliance is not an element of a claim under the Consumer Fraud Act, a valid claim must

show that the consumer fraud proximately caused plaintiff’s injury. Id.

¶ 45 Nonetheless, it is important to note that “[a] breach of a contractual promise, without more,

is not actionable under the Consumer Fraud Act.” Avery v. State Farm Mutual Automobile

Insurance Co., 216 Ill. 2d 100, 169 (2005) (citing American Airlines, Inc. v. Wolens, 513 U.S. 219,

233 (1995) (quoting Golembiewski v. Hallberg Insurance Agency, Inc., 262 Ill. App. 3d 1082,

1093 (1994))). In other words, the purpose of the Consumer Fraud Act is not to “ ‘supplement

every breach of contract claim with a redundant remedy.’ ” Id. (quoting Zankle v. Queen Anne

Landscaping, 311 Ill. App. 3d 308, 312 (2000)). As the Avery court reiterated, the “deceptive act

or practice” element required of these claims involves “ ‘more than the mere fact that a defendant

promised something and then failed to do it. That type of “misrepresentation” occurs every time

a defendant breaches a contract.’ ” Id. (quoting Zankle, 311 Ill. App. 3d at 312).

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¶ 46 In this case, the trial court did not err in granting defendants’ motion to dismiss this claim.

Here, as in Zankle, plaintiff’s Consumer Fraud Act claim is simply a breach of contract claim.

Both counts alleged that, in essence, defendants failed to perform their contractual obligations,

namely, that defendants promised to complete certain plumbing work for a set price but failed to

do so. Defendants’ asserted failure to complete the plumbing work to plaintiff’s satisfaction and

to complete the additional work for a previously agreed-upon price does not transform a

contractual breach into consumer fraud. This is especially true here, where plaintiff’s allegations

surrounding the Consumer Fraud Act count solely relate to allegedly deceptive acts and practices

directed solely against plaintiff: Plaintiff merely speculated that defendants’ actions were likely

to cause public injury because of the potential for repetition. This court has repeatedly held that

isolated breach of contract claims are insufficient to establish a violation of the Consumer Fraud

Act. See, e.g., Golembiewski v. Hallberg Insurance Agency, Inc., 262 Ill. App. 3d 1082, 1093

(1994) (“In the absence of any evidence about the defendant’s practice, other than this isolated

breach of contract claim, the directed verdict in favor of the plaintiff on the consumer fraud claim

must be reversed.”), appeal denied, 157 Ill. 2d 499 (1994); cf. Rumford v. Countrywide Funding

Corp., 287 Ill. App. 3d 330, 336 (1997) (holding that summary judgment in favor of the defendant

was inappropriate where the plaintiff’s consumer fraud claim was “not based on a simple breach

of contract but on an allegation that [the] defendant was engaged in a pattern of misrepresenting

to customers that additional charges would not be assessed at the time their mortgages were

released”), appeal denied, 174 Ill. 2d 594 (1997); see also Martinez v. River Park Place, LLC,

2012 IL App (1st) 111478, ¶ 38. Plaintiff offers no compelling reason for us to depart from

existing precedent. Accordingly, we reject this claim of error.

¶ 47 Although plaintiff complains that the trial court dismissed this claim on “sua sponte

grounds” without affording him an opportunity to replead, neither complaint withstands scrutiny.

16 No. 1-22-1639

First, the court’s basis for dismissal—that plaintiff “failed to allege sufficient facts to give rise to

a cause of action for consumer fraud”—was hardly sua sponte; rather it was, in substance, a

dismissal pursuant to section 2-615. See 735 ILCS 5/2-615 (West 2022); RBC Mortgage Co. v.

National Union Fire Insurance Co. of Pittsburgh, 349 Ill. App. 3d 706, 711 (2004) (“The question

presented by a section 2-615 motion to dismiss is whether sufficient facts have been pled in the

complaint which, if proved, would entitle plaintiff to relief.”). Finally, plaintiff’s complaint that

the court erred in allowing him an opportunity to replead is unsupported by any citation to relevant

authority. This undeveloped argument is thus forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1,

2020). The trial court’s granting of defendants’ motions to dismiss was thus not erroneous.

¶ 48 CONCLUSION

¶ 49 The trial court properly granted defendants’ motions to dismiss. Accordingly, we affirm

the judgment of the circuit court of Cook County.

¶ 50 Affirmed.