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,
ROBERT L. POWERS, Defendant and Counterplaintiff-Appellant.
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.
JUSTICE delivered the judgment of the court, with opinion.
Presiding Justice Holdridge and Justice Lytton concurred in
the judgment and 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.
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
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,
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
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
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
"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
2. Count II [alleging negligent misrepresentation] is
dismissed with prejudice as the Counter Defendants had no
public duty and other reasons of record."
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 ...