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Mack v. Plaza Dewitt Limited Partnership

OPINION FILED OCTOBER 10, 1985.

JOSEPH L. MACK, PLAINTIFF-APPELLANT,

v.

PLAZA DEWITT LIMITED PARTNERSHIP ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Joseph L. Mack (Mack) filed suit in the Cook County circuit court against Plaza Dewitt Limited Partnership; A-1 Dewitt Corp.; American Invs-Company Management, Inc.; American National Bank & Trust Company as trustee under trust No. 90831; American National Bank & Trust Company as trustee under trust no. 40629; and Unknown Beneficiaries (hereinafter collectively referred to as Developer). The action was brought as a class action suit on behalf of Mack and all other past, present, and future owners of residential units of a building situated in Chicago and commonly known as the Plaza on DeWitt Condominium (the Plaza). Mack claimed that he had purchased a residential condominium unit in the building in 1977.

In the pleading, Mack stated that the Developer had developed and marketed the Plaza, had prepared and recorded its declaration of condominium ownership, and owned certain commercial units in the building. He alleged in substance that the Developer had miscomputed the percentage interest of common element ownership of each of the unit owners as these percentages were stated in the declaration.

Mack claimed that the Developer had committed such miscomputation by overstating the value of the residential units and understating the value of the commercial units. He contended that such error in the percentage interest of the residential unit owners caused them to bear a disproportionately greater share of the real estate taxes, common element expenses, and operating costs of the Plaza; the commercial unit owners, consequently, bore a disproportionately smaller share of these taxes, expenses, and costs.

As ultimately amended, Mack's complaint alleged that such errors in computation violated the provisions of the Illinois Condominium Property Act (Ill. Rev. Stat. 1981, ch. 30, par. 301 et seq.) and the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, pars. 261 et seq.). Based on these allegations, Mack's pleading requested a declaratory judgment (count I), damages for statutory fraud (count II), and damages for common law fraud (count III).

The trial court dismissed the complaint and denied Mack leave to amend pursuant to Developer's motion to strike and dismiss the complaint in accordance with sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2-615, 2-619). Mack appeals from that order.

The parties raise the following questions for our review:

1. Whether count I of the amended complaint stated a claim for declaratory judgment;

2. Whether counts II and III stated claims for statutory and common law fraud;

3. Whether count II of the amended complaint was barred by the statute of limitations;

4. Whether Mack's claims were appropriate for class certification.

We conclude that counts I, II, and III failed to state claims for the relief requested. Accordingly, we affirm the order of the court below.

BACKGROUND

Mack filed his first class action complaint for equitable and other relief against the Developer on May 20, 1981. The pleading was in five counts, and requested relief based upon theories of: (1) violation of the Illinois Condominium Property Act (Ill. Rev. Stat. 1981, ch. 30, par. 301 et seq.); (2) unjust enrichment; (3) common law fraud; (4) violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121 1/2, par. 261 et seq.); and (5) breach of fiduciary duty.

The Developer filed a motion to dismiss the complaint for failure to state a claim. (Ill. Rev. Stat. 1981, ch. 110, par. 2-615.) The trial court granted the motion and struck the pleading, ...


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