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Kupper v. Powers

Court of Appeals of Illinois, Third District

January 30, 2017

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 the 27 day of January, 2006, Known as Trust No. 20-101, Plaintiffs and Counterdefendants-Appellees,
v.
ROBERT L. POWERS, Defendant and Counterplaintiff-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-16-0141 Circuit No. 14-LM-106 Honorable Katherine S. Gorman, Judge, Presiding.

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

          OPINION

          CARTER JUSTICE

         ¶ 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. ***
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 ***."

         ¶ 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 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 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 ...


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