The Henderson Square Condominium Association v. LAB Townhomes, LLC

2015 IL 118139
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118139)
HENDERSON SQUARE CONDOMINIUM ASSOCIATION et al., Appellees,
v. LAB TOWNHOMES, LLC, et al., Appellants.
Opinion filed November 4, 2015.—Modified upon denial of rehearing January 28,
2016.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Kilbride and Theis concurred in the
judgment and opinion.
Justice Burke dissented, with opinion, joined by Justices Freeman and
Karmeier.
OPINION
¶1 Plaintiffs, Henderson Square Condominium Association (Henderson) and
Henderson’s board of managers (Board), filed suit against defendants, alleging five
separate counts: breach of the implied warranty of habitability, fraud, negligence,
breach of the Chicago Municipal Code’s prohibition against misrepresenting
material facts in the course of marketing and selling real estate (see Chicago
Municipal Code § 13-72-030) and breach of a fiduciary duty. Relevant to this
appeal, the circuit court of Cook County granted defendant’s second motion to
dismiss with prejudice, finding that plaintiffs failed to adequately plead counts IV
(Chicago Municipal Code violation) and V (breach of fiduciary duty) and that these
counts were time-barred under section 13-214 of the Code of Civil Procedure (735
ILCS 5/13-214 (West 1996)). Plaintiffs appealed, and the appellate court reversed
the dismissal of counts IV and V, and remanded for further proceedings on those
counts. 2014 IL App (1st) 130764. We allowed defendants’ petition for leave to
appeal, and for the reasons that follow, we affirm the judgment of the appellate
court.
¶2 BACKGROUND
¶3 Plaintiffs filed their initial complaint on October 31, 2011. Plaintiff Henderson
is a not-for-profit corporation with its principal place of business located in
Chicago. Henderson is the governing body of a property of townhomes located in
Chicago, and Henderson is controlled by its Board, which is comprised of elected
managers.
¶4 Defendants can be divided into three groups, which we will refer to as (1) the
development companies; (2) Enterprise; and (3) the Shipkas. The development
companies are defendants LAB Townhomes, LAB Lofts, and Lincoln, Ashland &
Belmont, which are limited liability companies incorporated in Delaware.
Defendant Enterprise Development Company (Enterprise) is an Illinois corporation
with its principal place of business in Chicago. The Shipkas are defendants Ronald
Shipka, Sr., Ronald Shipka, Jr., and John Shipka, who are persons residing in Cook
County.
¶5 Plaintiffs’ original complaint alleged that the Shipkas are in the business of
developing residential property, and they own, manage and operate Enterprise. The
plaintiffs further alleged that Enterprise represented on its website that it was the
“largest and most respected developer” in the Chicago area due to, among other
things, its “commitment to rigid quality standards.” The Shipkas were chosen by
the City of Chicago to be the developers for a project known as the
Lincoln-Belmont-Ashland Redevelopment Project Area. The Shipkas formed the
development companies, which entered into a contract with the City of Chicago to
construct a mixed use project. The project included retail space, a parking structure,
loft condominiums, and townhouses. The development companies entered into an
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agreement with Enterprise, under which Enterprise would “perform general
contracting services to construct the Project or perform other services to assist with
the development of the Project.”
¶6 Prior to the completion of the project, Henderson was established as a
condominium association in accordance with the Condominium Property Act (765
ILCS 605/1 et seq. (West 1996)) and its creation was recorded with the Cook
County recorder of deeds. On June 20, 1996, Henderson was incorporated with the
Illinois Secretary of State. The Shipkas designated themselves as Henderson’s first
board of managers, and during their time as managers, the Shipkas controlled all of
Henderson’s funds. The Shipkas turned over control to the first elected Board
sometime in late 1996.
¶7 Plaintiffs alleged that defendants began to market and sell individual units of
the project in 1996, and in doing so, they represented and impliedly warranted that
the property and the units would be habitable and free from defects. Plaintiffs also
alleged that the development companies sold the units with a form sales contract,
which included a provision stating that the common elements of the project and the
units would be “constructed substantially in accordance with the plans and
specifications.” After the project was completed and the owners began to occupy
the units, certain units began to experience water seepage and resulting damage.
¶8 The Board retained Warton, Inc. (Warton), an exterior restoration consultant
and engineer, to investigate the water problem. On May 18, 2009, Warton issued a
report of its findings, concluding that “significant amounts of water were entering
into certain units at various locations, including various exterior wall components.”
Warton further concluded that the “overall quality of construction detailing and
workmanship at the specific areas that were investigated was very poor” and that
the water penetration problems would be very difficult, if not impossible, to
mitigate unless there was substantial reconstruction of the units.
¶9 After the Board reviewed the Warton report, it retained a contractor to solve the
problem. The contractor began its work and confirmed that there were “a
significant number of deficiencies with the original construction.” The contractor
reported that the coping leaked, the masonry lacked mortar, there was no flashing
or drainage system, the lintels and sills were not sealed, and the roofing systems
were defective.
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¶ 10 Plaintiffs alleged that the defects identified by Warton and the contractor could
not have been discovered without performing extensive testing of the units or
opening up the walls or common areas and units. The defects were concealed and
were therefore not reasonably discoverable by the unit owners who did not possess
special knowledge or skill in the field of construction. Plaintiffs alleged that
defendants did not construct the units in a workmanlike manner or in accordance
with the plans and specifications as required. Moreover, plaintiffs alleged on
information and belief that the development companies and Enterprise knowingly
failed to comply with the plans and specifications, cutting costs for the purpose of
realizing greater profits from the city contract.
¶ 11 On January 3, 2012, defendants filed their first motion to dismiss, brought
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
2010)). In their motion, defendants addressed counts I, II, and III, but did not
address counts IV and V. Defendants maintained that under section 13-214(a) and
(b) of the Code (735 ILCS 5/13-214(a), (b) (West 1996)), plaintiffs’ claims were
time-barred, having been filed more than 14 years after defendants turned over
control of Henderson to the Board in 1996.
¶ 12 The trial court granted defendants’ section 2-619 motion to dismiss counts I, II
and III without prejudice. The court also granted plaintiffs leave to file an amended
complaint concerning counts IV and V.
¶ 13 Plaintiffs filed an amended complaint on July 2, 2012. Plaintiff repleaded the
allegations of counts I, II, and III for the purpose of preserving them for appeal.
With respect to count IV of that complaint, plaintiffs allege that defendants
Enterprise and the development companies, but not the Shipkas, breached section
13-72-030 of the Chicago Municipal Code (Municipal Code), which states that
“[n]o person shall with the intent that a prospective purchaser rely on such act or
omission, advertise, sell or offer for sale any condominium unit by (a) employing
any statement or pictorial representation which is false or (b) omitting any material
statement or pictorial representation.” Chicago Municipal Code § 13-72-030. In the
course of selling the units, Enterprise and the development companies represented
that the project and the units would be constructed in accordance with the plans and
specifications, and would be free from defects. Section 13-72-100 of the Municipal
Code states that “any prospective purchaser, purchaser or owner of a unit” may
bring an action to enforce section 13-72-030. Chicago Municipal Code § 13-72-100
(amended Nov. 16, 2011).
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¶ 14 Plaintiffs’ amended complaint further alleges that when defendants began
marketing the units for sale, defendants provided prospective purchasers with an
information packet (information packet) that included details about the project,
including building specifications. The information packet, which plaintiffs attached
to their amended complaint, stated that “[a]ll insulation shall be soundbatt
fiberglass with the following R values: Exterior walls—R11; Third floor
ceiling—R30 with integral vapor barrier.”
¶ 15 The amended complaint also alleges that Enterprise and the development
companies, in the course of selling the units, made false material representations in
the information packet, which it summarizes as follows:
“(1) that the Property and the Units reflected ‘new architectural energies
and solid construction skills’;
(2) that the [development companies] and/or Enterprise was committed to
‘quality construction and detail’ for the Property and Units;
(3) that the [development companies] and/or Enterprise consistently deliver
‘quality buildings’ and ‘successful developments’ which succeed
‘architecturally, aesthetically and economically’; and
(4) that ‘[a]ll insulation shall be soundbatt fiberglass with the following R
values: Exterior walls—R11; Third floor ceiling—R30 with integral vapor
barrier.’ ”
Plaintiffs allege that Enterprise and the development companies knew and intended
the representations in the information packet to be false.
¶ 16 With respect to count V of the amended complaint, plaintiffs allege that the
Shipkas breached their fiduciary duty to the unit owners to pay their share of
common expenses and to fund sufficient reserves. 1 Plaintiffs allege that the
Shipkas, during their time as members of the Board, failed to fund common
expenses and reserves sufficiently to repair the project despite the fact that they
knew or should have known that plaintiff Henderson’s obligations could not be met
without sufficient reserve funds. Further, the Shipkas knew or should have known
that the project contained extensive defects and that the funding they provided
during their tenure on the Board was inadequate to address those defects. The
1
Plaintiffs’ original complaint alleged that all of the defendants breached a fiduciary duty.
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Shipkas also participated in making the above misrepresentations concerning the
project with the intention of deceiving purchasers.
¶ 17 On August 6, 2012, defendants filed their second motion to dismiss, this time
seeking dismissal pursuant to both sections 2-615 and 2-619 of the Code in a
combined motion to dismiss. See 735 ILCS 5/2-619.1 (West 2010). Defendants
attached to the motion as exhibits certificates of occupancy to assert that
construction was completed on November 27, 1996. Defendants also attached the
affidavit of John Shipka, stating that all units were conveyed to the original owners
by the end of 1996. Defendants argued that these documents show that more than
14 years passed from the time of completion of the work and turnover to Henderson
in 1996 to the filing of the lawsuit on October 31, 2011.
¶ 18 Defendants based their section 2-619 motion on the argument that all of
plaintiffs’ causes of action were time-barred. Defendants relied upon section
13-214(a), (b) of the Code of Civil Procedure (735 ILCS 5/13-214(a), (b) (West
1996)) to contend that construction claims are subject to a 4-year statute of
limitations and a 10-year statute of repose.
¶ 19 Section 13-214 applies only to real estate construction claims, and sets forth
both (a) a statute of limitations and (b) a statute of repose. Subsection (a) of section
13-214, which sets forth the statute of limitations, states in relevant part as follows:
“(a) Actions based upon tort, contract or otherwise against any person for an
act or omission of such person in the design, planning, supervision, observation
or management of construction, or construction of an improvement to real
property shall be commenced within 4 years from the time the person bringing
an action, or his or her privity, knew or should reasonably have known of such
act or omission.” 735 ILCS 5/13-214(a) (West 1996).
¶ 20 Subsection (b) of section 13-214, which sets forth the statute of repose, states in
relevant part as follows:
“(b) No action based upon tort, contract or otherwise may be brought
against any person for an act or omission of such person in the design, planning,
supervision, observation or management of construction, or construction of an
improvement to real property after 10 years have elapsed from the time of such
act or omission. However, any person who discovers such act or omission prior
to the expiration of 10 years from the time of such act or omission shall in no
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event have less than 4 years to bring an action as provided in subsection (a) of
this Section.” 735 ILCS 5/13-214(b) (West 1996).
¶ 21 In the alternative, defendants argued in their motion that all of plaintiffs’ claims
were time-barred under section 13-205 of the Code of Civil Procedure (735 ILCS
5/13-205 (West 1996)). Section 13-205 establishes a five-year statute of limitations
to “recover damages for an injury done to property, real or personal.” Id.
Defendants argued that plaintiffs failed to allege in their complaint when they first
became aware they might have a cause of action on their hands, and therefore
plaintiffs cannot allege they were unaware they had a cause of action until within
five years from the filing the original complaint on October 13, 2011.
¶ 22 Defendants also moved to dismiss count IV pursuant to section 2-615, arguing
that it failed to state a cause of action. Defendants asserted that count IV, alleging a
violation of the Municipal Code, must be dismissed because the Municipal Code
does not provide for a private right of action.
¶ 23 In their response to defendants’ second motion to dismiss, plaintiffs argued,
among other things, that by its own terms, the limitation of section 13-214 does not
apply to causes of action arising out of fraudulent misrepresentations or to
fraudulent concealment of causes of action. See 735 ILCS 5/13-214(e) (West
1996). For both the statute of limitations and the statute of repose, the section
provides an exception for fraud: “The limitations of this Section shall not apply to
causes of action arising out of fraudulent misrepresentations or to fraudulent
concealment of causes of action.” Id.
¶ 24 Plaintiffs argued that defendants knowingly misrepresented the condition of the
property and then concealed the defects. Thus, section 13-214 is not applicable.
Instead, the appropriate statute of limitations that governs this case is found in
section 13-205, which has no period of repose, and affords litigants five years after
the cause of action is discovered to bring their claims. Plaintiffs further argued that
a question of fact exists as to when the limitations period was triggered.
¶ 25 The trial court ruled in favor of defendants and dismissed plaintiffs’ amended
complaint with prejudice. In so doing, the court rejected plaintiffs’ argument that
the liability was not based on construction-related activity. The court found that
regardless of whether plaintiffs’ claims were based on a misrepresentation or a
fiduciary duty, the claims were construction claims for purposes of applying the
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statute of limitations and statute of repose because plaintiffs sought to recover the
costs to repair the alleged deficiencies.
¶ 26 The trial court found that the fraud exception to the statute of limitations and
statute of repose did not apply because plaintiffs failed to allege facts with the
necessary particularity to support a claim for fraud. In the court’s view, a fraudulent
misrepresentation requires the misrepresentation of a preexisting fact and does not
encompass a promise to perform future conduct. 2
¶ 27 Moreover, the trial court further found that plaintiffs failed to state a claim for
either breach of a fiduciary duty or for misrepresentation under section 13-72-030
of the Municipal Code. According to the court, plaintiffs alleged that defendants
were silent with regard to construction defects, but silence is not enough to support
a claim for fraud unless defendant owes plaintiff a fiduciary duty. The trial court
found that defendants did not owe plaintiffs a fiduciary duty in their role as
“general contractor, constructor or landowner.” The only fiduciary duty owed by
defendants arose from their role as members of the Board, and that duty “was
limited to securing funds, expenses and/or reserves sufficient to repair the common
elements of property” for a short time through 1996. But defendants “had no duty to
maintain fund[s] on behalf of the condominium in 2009.” For these reasons, the
court found that plaintiffs failed to state a claim in either count IV or V.
¶ 28 The plaintiffs appealed, and the appellate court reversed and remanded for
further proceedings. 2014 IL App (1st) 130764, ¶ 136. The appellate court found
that plaintiff’s claims in count IV and V were construction related and therefore the
limitation and repose of section 13-214 of the Code were applicable in the first
instance. Id. ¶ 91. The court then found, however, that the fraud exception of
section 13-214(e) was applicable (id. ¶ 93), and dismissal under section 2-619 of
the Code was not appropriate because issues of material fact remained (id.
2
The trial court overlooked a well-recognized exception to the general rule it sets forth. “[T]he
general rule denies recovery for fraud based on a false representation of intention or future conduct,
but there is a recognized exception where the false promise or representation of future conduct is
alleged to be the scheme employed to accomplish the fraud.” Steinberg v. Chicago Medical School,
69 Ill. 2d 320, 334 (1977); accord HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131
Ill. 2d 145, 168-69 (1989); Stamatakis Industries, Inc. v. King, 165 Ill. App. 3d 879, 882 (1987).
Here, count II of plaintiffs’ original complaint alleged that the Shipkas made the false
representations “as part of a scheme to induce prospective purchasers to purchase the units so
[defendants] could profit from the sales.” Furthermore, that count alleges that “[t]he unit owners
relied upon those representations when they purchased their units and would not have purchased the
units had they known the property and the units contained multiple and significant defects.”
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¶¶ 93-105). In particular, the appellate court rejected defendants’ argument that
there were no material misrepresentations or actions that could support a finding of
fraudulent concealment. Id. ¶ 105. The court determined that defendants were
“more than silent,” as the amended complaint alleged that the marketing packet
included specifications regarding the insulation to be used in constructing the
project and stated that insulation would be used in the exterior walls and third-floor
ceiling. Id. ¶ 102. Moreover, the plaintiffs’ allegations of insufficient funding of the
reserves raised a question of fact as to concealment. Id. ¶¶ 104-05.
¶ 29 The appellate court also found that the circuit court erred in dismissing counts
IV and V under section 2-615 for failure to state a cause of action. With respect to
count IV, the appellate court concluded that the Municipal Code allows private
parties to seek damages under its provisions and that the representations
here—which were made during the marketing process before construction was
complete—were actionable under that Code. Id. ¶¶ 108-17. With respect to count
V, the appellate court concluded that defendants had a fiduciary duty to budget for
reasonable reserves. Id. ¶ 128. And whether defendants provided reasonable
reserve funds for the repair and replacement necessitated by the allegedly known
latent defects was a question of fact that was erroneously decided by the circuit
court pursuant to a section 2-615 dismissal. Id.
¶ 30 Defendants filed a petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1,
2013)), which we granted.
¶ 31 ANALYSIS
¶ 32 This appeal arises from an order granting defendants combined motion to
dismiss filed under section 2-619.1 of the Code of Civil Procedure. 735 ILCS
5/2-619.1 (West 2010). Section 2-619.1 allows parties to file a single motion,
containing motions pursuant to both section 2-615 and section 2-619 of the Code,
so long as each motion is separated into a different part of the document.
¶ 33 I. Section 2-619
¶ 34 Defendants’ motion to dismiss plaintiffs’ amended complaint as time-barred
was based upon section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West
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2010)). A section 2-619 motion to dismiss admits as true all well-pleaded facts,
along with all reasonable inferences that can be gleaned from those facts. Wackrow
v. Niemi, 231 Ill. 2d 418, 422 (2008). In ruling on a motion to dismiss, a court must
interpret the pleadings and supporting documents in the light most favorable to the
nonmoving party. Id. This court’s review of a section 2-619 motion to dismiss is
de novo. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 504 (2006).
¶ 35 A. Fraudulent Concealment
¶ 36 Under the fraudulent concealment doctrine, the statute of limitations will be
tolled if the plaintiff pleads and proves that fraud prevented discovery of the cause
of action. 735 ILCS 5/13-215 (West 2010); Clay v. Kuhl, 189 Ill. 2d 603, 613
(2000). If a defendant has fraudulently concealed the cause of action from the
plaintiff, the action may be brought within five years from the date the plaintiff
discovers that he has a cause of action. 735 ILCS 5/13-215 (West 2010). Section
13-214(e) of the Code goes beyond tolling, however, and instead excepts from
application the limitation period in subsection (a) and the repose period in
subsection (b) of all “fraud-based construction claims,” as well as all construction
claims that are fraudulently concealed. Gillespie Community Unit School District
No. 7 v. Wight & Co., 2014 IL 115330, ¶ 41. But just because a construction-based
claim has been fraudulently concealed and the limitations of section 13-214 are
therefore not applicable, does not mean that no limitation period is applicable to the
claim. Rather, such construction-based claims would still be governed by both the
five-year statute of limitations in section 13-205 of the Code (735 ILCS 5/13-205
(West 2010); Gillespie, 2014 IL 115330, ¶ 41), and the discovery rule that provides
that a party’s cause of action accrues when a party knows or reasonably should
know of an injury and that it was wrongfully caused (Clay, 189 Ill. 2d at 608).
¶ 37 Before this court, defendants first argue that plaintiffs failed to establish
fraudulent concealment of their cause of action. They contend that plaintiffs were
required to allege affirmative acts by defendants that occurred after the allegedly
tortious acts (i.e., the misrepresentations in the packet and the breach of fiduciary
duty in connection with the reserve fund) that were calculated to induce defendants
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into delaying the filing of their claims or preventing them from discovering their
claims. 3
¶ 38 We note that generally the concealment necessary to toll the statute of
limitations must consist of affirmative acts or representations calculated to lull or
induce a plaintiff into delaying the filing of his claim or preventing him from
discovering the claim. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 18
(2007). Defendants are mistaken, however, in their contention that the affirmative
acts that constitute the fraudulent concealment must always be subsequent to and
can never be the same statements or omissions that form the basis of the cause of
action. This is especially true where section 13-214(e) is involved, which provides
an exception to the limitation and repose periods for fraud-based construction
claims. In fact, if defendants’ premise is correct—i.e., that the same fraudulent
statements used to support fraudulent concealment are also being used to form the
basis of plaintiffs’ cause of action in this case—then the exception of section
13-214(e) would apply for the additional reason that it expressly states that “[t]he
limitations of this Section shall not apply to causes of action arising out of
fraudulent misrepresentations or to fraudulent concealment of causes of action.”
(Emphasis added.) 735 ILCS 5/13-214(e) (West 1996).
¶ 39 At any rate, this court held in Keithley v. Mutual Life Insurance Co. of New
York, 271 Ill. 584, 598 (1916), that even though the acts constituting the fraudulent
concealment “ordinarily must be subsequent to the accruing of the cause of action,
*** they may be concurrent or coincident with it, or even precede it, provided they
are of such a nature *** as to operate after the time when the cause of action arose
and thereby prevent its discovery, and were so designed and intended.” Here,
plaintiffs’ amended complaint alleges that the defendant companies—which the
Shipkas own, manage and operate—knew and intended the misrepresentations in
the marketing information packet to be false. Furthermore, plaintiffs allege that the
defendant companies knowingly failed to comply with the plans and specifications
3
Defendants additionally argue that the appellate court erred in relying upon cases that discuss
the tort of fraudulent concealment (see 2014 IL App (1st) 130764, ¶¶ 99-103 (discussing Fichtel v.
Board of Directors of the River Shore of Naperville Condominium Ass’n, 389 Ill. App. 3d 951
(2009), Mitchell v. Skubiak, 248 Ill. App. 3d 1000 (1993), and Heider v. Leewards Creative Crafts,
Inc., 245 Ill. App. 3d 258 (1993))), rather than the doctrine of fraudulent concealment of a cause of
action. Defendants argue that there is a difference between the tort of fraudulent concealment and
the fraudulent concealment of a cause of action. See Gillespie, 2014 IL 115330, ¶ 18 n.1. We find,
however, that it is unnecessary to consider defendants’ point further, as we will conduct our own
de novo review, which will not rely upon the complained-of case law or the tort of fraudulent
concealment.
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in the packet, including the specifications regarding the insulation to be used in
constructing the project and that the insulation would be included in the exterior
walls and third-floor ceiling. Plaintiffs allege that defendants “covered up the
Units’ deficiencies in brick and mortar,” cutting costs for the purpose of realizing
greater profits from the city contract, and that these deficiencies could not have
been discovered by plaintiffs “without extensive testing and opening up the walls
of the common elements and the Units.” Here, the allegations of plaintiffs’
amended complaint read in the light most favorable to plaintiffs indicate a scheme
to defraud plaintiffs that began with the misrepresentations in the packet and which
was designed and intended to operate after the cause of action arose to prevent its
discovery. Accordingly, we believe that the allegations of counts IV and V of the
amended complaint fall within the exception of Keithley, and therefore dismissal
pursuant to section 2-619 of the Code would not be proper.
¶ 40 Plaintiffs’ counts at issue here also survive dismissal pursuant to section 2-619
of the Code because plaintiffs have sufficiently alleged a fiduciary duty in
connection with the fraudulent concealment doctrine. Although it has been held
that mere silence on the part of the defendant is insufficient to constitute fraudulent
concealment (Orlak, 228 Ill. 2d at 18), a different rule applies when a fiduciary duty
is involved:
“ ‘ “ ‘[i]t is the prevailing rule that, as between persons sustaining a fiduciary or
trust or other confidential relationship toward each other, the person occupying
the relation of fiduciary or of confidence is under a duty to reveal the facts to the
plaintiff (the other party), and that his silence when he ought to speak, or his
failure to disclose what he ought to disclose, is as much a fraud at law as an
actual affirmative false representation or act; and that mere silence on his part
as to a cause of action, the facts giving rise to which it was his duty to disclose,
amounts to a fraudulent concealment ***.’ ” ’ ” Orlak, 228 Ill. 2d at 19
(quoting Hagney v. Lopeman, 147 Ill. 2d 458, 463 (1992), quoting Chicago
Park District v. Kenroy, Inc., 78 Ill. 2d 555, 562 (1980), quoting L.S. Tellier,
Annot., What Constitutes Concealment Which Will Prevent Running of Statute
of Limitations, 173 A.L.R. 576, 588 (1948)).
The facts that indicate that the fraud was kept concealed through confidence placed
in the fiduciary must be specifically pled in order to bring the discovery rule into
play and to toll the statute of limitations. Hagney, 147 Ill. 2d at 465.
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¶ 41 Plaintiffs’ amended complaint alleges a fiduciary duty on the part of the
Shipkas in connection with the reserve fund during their time on the board of
managers. Section 9(c)(2) of the Condominium Property Act (765 ILCS
605/9(c)(2) (West 1996)) states that “[a]ll budgets adopted by a board of managers
*** shall provide for reasonable reserves for capital expenditures and deferred
maintenance for repair or replacement of the common elements.” A board of
managers shall determine what is reasonable by examining various factors,
including “the repair and replacement cost, and the estimated useful life, of the
property which the association is obligated to maintain.” Id. The question of what
constitutes reasonable budgeting for the reserve fund is a question of fact to be
decided by the trier of fact. See 2014 IL App (1st) 130764, ¶ 104; see also Board of
Managers of Weathersfield Condominium Ass’n v. Schaumburg Ltd. Partnership,
307 Ill. App. 3d 614, 623 (1999).
¶ 42 Specifically, plaintiffs allege that the Shipkas failed to provide sufficient
funding for the reserve fund to meet the repairs needed due to the extensive defects
in the construction. Furthermore, the amended complaint alleges that the Shipkas
participated in making the misrepresentations concerning the project with the intent
of deceiving the purchasers. Finally, the amended complaint alleges that the
Shipkas knew or should have known that the project contained extensive defects
and that the funding they provided during their tenure on the Board was not
adequate to address those defects. Plaintiffs use these well-pled facts to argue
before this court that defendants’ misrepresentations, coupled with the Shipkas’
failure to adequately fund the reserve fund was sufficient to allege fraudulent
concealment. Plaintiffs explain that the amount budgeted for repairs by the Shipkas
gave the appearance that the building was in much better shape than it was.
¶ 43 Defendants, on the other hand, rely upon this court’s decisions in Hagney and
Orlak to argue that plaintiffs were required to allege facts attributing the failure to
discover the cause of action to the trust placed in the fiduciary. Defendants
maintain that plaintiffs’ amended complaint fails to allege such facts. Moreover,
defendants take issue with plaintiffs’ allegation that the Shipkas “knew or should
have known” that the project contained extensive defects and that the funding
provided during their tenure on the board was therefore inadequate. According to
defendants, this allegation’s inclusion of the words “or should have known” was
not sufficient to satisfy the scienter element for a fraudulent concealment claim
based upon a fiduciary duty.
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¶ 44 We reject defendants’ arguments and note that their reliance upon Hagney and
Orlak is misplaced. Hagney merely requires that the facts necessary to indicate that
the fraud was kept concealed through confidence placed in the fiduciary be pled in
the complaint. Plaintiffs’ complaint was inartfully drafted, but nonetheless it is
apparent that the basic facts to bring the case within the standard set forth in
Hagney have been met.
¶ 45 As to the allegation that the Shipkas knew or should have known that the
project contained extensive defects and that the funding was therefore inadequate,
we do not find it fatal to the cause of action under the circumstances. Plaintiffs have
alleged that the Shipkas participated in making the misrepresentations concerning
the project with the intent of deceiving the purchasers in a scheme to gain greater
profits from the city contract. Plaintiffs have also alleged that the Shipkas
controlled and operated the defendant companies that performed the contracting
work, and those companies were supposed to be committed to “quality
construction” that was to be performed in accordance with the plans and
specifications they listed. Moreover, it was alleged that the Shipkas owed a
fiduciary duty to the unit owners in connection with the funding of the reserve fund
and that they breached that duty by failing to fund it in a sufficient manner and by
participating in the fraudulent representations with the intent of deceiving the unit
owners. These are sufficient facts from which it can reasonably be inferred that “the
trust which was reposed in the fiduciary prevented the discovery of the cause of
action” so as to satisfy the Hagney standard. See Hagney, 147 Ill. 2d at 465.
¶ 46 Defendant’s reliance upon Orlak is also unavailing. There, the plaintiff was
hospitalized in 1989 for an accident and received a blood transfusion under the
defendant’s care. In 1990, the defendant advised the plaintiff to be tested for HIV,
which she did, testing negative. In 2000, the defendant advised the plaintiff to be
tested for the hepatitis C virus (HCV), and the plaintiff tested positive for that virus.
The plaintiff filed suit in 2002, alleging that the defendant was liable for failure to
notify her by March 1997—when accurate testing for HCV allegedly first became
available—that she should be tested for HCV. The defendant argued that the suit
was time-barred under the four-year medical malpractice statute of repose (735
ILCS 5/13-212(a) (West 2002)). The plaintiff argued that the statute of repose was
tolled by the fraudulent concealment exception of section 13-215 of the Code (735
ILCS 5/13-215 (West 2002)). Recognizing that she could not point to any
affirmative acts on the defendant’s part, the plaintiff instead argued that the general
rule requiring affirmative acts does not apply where the parties have a fiduciary
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relationship. Orlak, 228 Ill. 2d at 19. This court found that because the plaintiff was
discharged from the defendant’s care in 1989, there was no fiduciary relationship
between the plaintiff and the defendant in 1996 and 1997, the time that the plaintiff
alleges the defendant should have notified her of the need for HCV testing. Id. at
20.
¶ 47 Orlak has no application to the present case that is helpful to defendants
because in Orlak, the plaintiff alleged that the defendant had an obligation to
disclose facts that the defendant first learned seven years after the fiduciary
relationship ended. Here, in contrast, plaintiffs’ amended complaint alleges that the
Shipkas participated in making the misrepresentations in the packet with the
intention of deceiving the purchasers and that they then should have known that the
reserve funding was inadequate to address the construction defects during the time
that the Shipkas were still on the board and during the time they still had a fiduciary
relationship. The present case is also distinguishable from Orlak because plaintiffs
here have alleged affirmative acts to constitute fraudulent concealment in the form
of the misrepresentations in the packet that were designed and intended to operate
after the cause of action arose.
¶ 48 In sum, counts IV and V of plaintiffs’ amended complaint were sufficient to
survive a section 2-619 dismissal given the specific allegations. We find that at the
very least a question of fact remains as to whether defendants’ failure to speak
about the construction deficiencies or in the alternative to adequately fund the
reserve fund, coupled with the earlier alleged misrepresentations, amounted to
fraudulent concealment so as to invoke the exception of subsection 13-214(e) to the
limitation and repose periods of subsections 13-214(a) and (b).
¶ 49 B. Section 13-205
¶ 50 Defendants next argue that the appellate court erred by failing to continue its
statute of limitations analysis to consider whether the amended complaint was
time-barred under the default five-year statute of limitations set forth in section
13-205 of the Code. The limitation of that section applies to “all civil actions not
otherwise provided for.” 735 ILCS 5/13-205 (West 1996).
¶ 51 As we have already noted, Gillespie holds that the time constraints of section
13-214 of the Code do not apply to causes of action arising out of fraudulent
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misrepresentations or to fraudulent concealment, but that this does not mean that no
limitations shall apply to causes of action arising out of fraudulent
misrepresentations or to fraudulent concealment. Gillespie, 2014 IL 115330, ¶ 33.
Rather, the five-year limitation of section 13-205 is applicable to fraud-based and
fraudulently concealed construction claims. Id. We therefore agree that the
appellate court should have completed an analysis under section 13-205, but we
disagree with defendant’s conclusion that the end result would have been a
dismissal of plaintiffs’ complaint at this stage.
¶ 52 Section 13-205 provides that the cause of action “shall be commenced within 5
years next after the cause of action accrued.” 735 ILCS 5/13-205 (West 1996). A
cause of action “accrues” when facts exist that authorize the bringing of the cause
of action. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 20. This court has,
however, adopted the discovery rule to ameliorate the potentially harsh effect of a
mechanical application of the statute of limitations that would result in it expiring
before a plaintiff even knows of his cause of action. Id. The discovery rule
postpones the start of the limitations period until a party knows or reasonably
should know both that an injury has occurred and that it was wrongfully caused. Id.
¶ 21. At the point when the party knows or reasonably should know that the injury
was wrongfully caused, the party is under obligation to inquire further to determine
whether an actionable wrong has been committed. Id. The question of when a party
knew or reasonably should have known both of an injury and its wrongful cause is
one of fact, unless the facts are undisputed and only one conclusion may be drawn
from them. Id.
¶ 53 Defendants argue that plaintiffs were vague and evasive in their pleading when
they alleged their discovery of the water leakage “no later than the winter of
2007/2008.” Defendants also point to the Warton report attached to plaintiffs’
amended complaint. According to that report, the water leaks had been “ongoing
for years” and several different repair attempts had been made. Defendants argue
that plaintiffs failed to allege sufficient facts as to the date of discovery to properly
invoke the discovery rule.
¶ 54 In response, plaintiffs argue that in late 2007 or early 2008, 4 of plaintiffs’ 47
units, the garden units, first experienced minor leaks from the wooden decks that
were located on the units above them. Plaintiffs believed that the repairs were
sufficient, but when the leaks persisted, they engaged an engineer and a contractor
to investigate. It was only then, in 2009, that plaintiffs first learned the construction
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of the units was so poor that they would essentially have to be reconstructed. In
2009, plaintiffs also learned for the first time that the representations defendants
made about the inclusion of insulation and the vapor barrier when they purchased
the units were false. It was also at this time that plaintiffs discovered that the
reserve fund set by the Shipkas was grossly insufficient to cover the deficiencies
that existed from the time the units were originally constructed.
¶ 55 From our review of plaintiffs’ amended complaint, we find that a question of
fact exists that precludes dismissal pursuant to defendants’ section 2-619 motion.
Defendants focus all of their attention on the date plaintiffs first knew that there
was water infiltration into the units. Plaintiffs, on the other hand, interpret their
pleading as having alleged that water infiltration first occurred in late 2007 or early
2008. We note that if plaintiffs indeed intended to allege that water first infiltrated
the units in late 2007 or early 2008, they have done an abysmally poor job of it. We
find, however, that this point is of no moment under the circumstances here where
the discovery rule requires that a plaintiff know both of his injury and that it was
wrongfully caused to set the limitations period running. Here, plaintiffs filed their
initial complaint on October 31, 2011. Thus, if it can be said that before October 31,
2006, plaintiffs did not know nor should they have reasonably known that their
injury was wrongfully caused, then plaintiffs’ suit is considered timely filed.
¶ 56 We find that the allegations of plaintiffs’ complaint were clearly sufficient to
raise a question of fact as to the time when plaintiffs knew or reasonably should
have known that their injury was wrongfully caused. It is apparent from plaintiffs’
amended complaint that after plaintiffs began experiencing water problems from
the wood decks, they “hired a contractor to perform minor suggested repairs and
undertake certain maintenance work to abate the problem.” According to the
amended complaint, plaintiffs “reasonably believed they had remediated the water
infiltration problems.” But despite plaintiffs’ best efforts and given their lack of
knowledge of the latent defects, “the water infiltration problem continued and
further units began to experience similar problems.” As a result, they then hired
Warton in 2009 to evaluate the source of water infiltration. Plaintiffs then reviewed
the Warton report issued in May 2009, and as a result hired a contractor to begin
remediation work. It was only after the contractor’s work progressed and he opened
up the walls to undertake invasive testing and repairs, which first started in late
2009, that plaintiffs first discovered that a significant number of latent deficiencies
existed with the original construction, including leaky coping, masonry that lacked
mortar, lack of flashing or a drainage system, unsealed lintels and sills, and walls
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and top-floor ceilings that lacked insulation and a proper and integral vapor barrier.
Finally, plaintiffs alleged that the defects could not have been discovered any
sooner than 2009 when testing and work was begun.
¶ 57 The facts alleged in the present case are similar to those in a number of cases
where Illinois courts have found that fixing a date of discovery was a question of
fact for the trier of fact that could not be decided on a defendant’s motion to
dismiss. See, e.g., County of Du Page v. Graham, Anderson, Probst & White, Inc.,
109 Ill. 2d 143, 153-54 (1985) (the date the plaintiff knew or reasonably should
have known that his injury was wrongfully caused is normally a question of fact);
La Salle National Bank v. Skidmore, Owings & Merrill, 262 Ill. App. 3d 899, 906
(1994) (same); Society of Mount Carmel v. Fox, 31 Ill. App. 3d 1060 (1975) (same).
In Graham, this court emphasized that under the discovery rule, the statute of
limitations in construction cases begins to run “when a person knows or reasonably
should know of his injury and also knows or reasonably should know that it was
wrongfully caused.” (Internal quotation marks omitted and emphasis added.)
Graham, 109 Ill. 2d at 153-54. In Graham, the plaintiff knew of moisture problems
in its building, which was constructed by the defendant eight years before the
plaintiff’s complaint was filed in 1982 for faulty construction. The architect had
provided reasons for the moisture problems that were not actionable, and the
plaintiff attempted repairs over a number of years that were unsuccessful in solving
the problem. This court reversed the trial court’s order that dismissed the plaintiff’s
cause of action. In so doing, this court observed as follows:
“Although the [plaintiff] was aware of the moisture problem as early as
1974, it is impossible to state, as a matter of law, that this knowledge was
sufficient to trigger the running of the limitations period. It is possible that the
suggestions of the architect and the resulting repairs were adequate to keep a
reasonable person from investigating further.” Id. at 154.
¶ 58 In Fox, the plaintiffs sued their architect for the faulty construction of a school.
Plaintiffs noticed cracks and defects in the building more than five years before
their complaint was filed. Plaintiffs, however, attempted repairs of what they were
led to believe were “maintenance problems.” Sometime later, the plaintiffs
obtained a report that indicated the cracks were caused by a design defect involving
the lack of expansion joints. Fox affirmed a verdict for the plaintiffs after a lengthy
trial and held that the statute of limitations did not begin to run until the date of the
discovery of the design defect, rather than the date when the plaintiffs knew of the
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cracks in the building. Society of Mount Carmel v. Fox, 90 Ill. App. 3d 537, 538-39
(1980).
¶ 59 Similar to Graham and Fox, we find that it is possible that the minor repairs in
the present case, coupled with the limited nature of the water infiltration
experienced, was enough to reasonably delay plaintiffs’ hiring of professional
contractors to open up the wall and to discover the latent defects. We conclude that
the date when plaintiffs knew or reasonably should have known that an injury
occurred and that it was wrongfully caused was a question of fact not to be decided
on a motion to dismiss under the circumstances of the present case.
¶ 60 II. Section 2-615
¶ 61 We now turn to the section 2-615 portion of defendants’ motion to dismiss,
which tests the legal sufficiency of the amended complaint. The question presented
on review is whether the allegations of the complaint, construed in the light most
favorable to the plaintiff, are sufficient to state a cause of action upon which relief
can be granted. Turner v. Memorial Medical Center, 233 Ill. 2d 494, 499 (2009). In
making this determination, all well-pleaded facts must be taken as true. Doe-3 v.
McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. A
court should not dismiss a complaint pursuant to section 2-615 unless it clearly
appears that no set of facts can be proved that would entitle the plaintiff to recovery.
Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). The standard of review
is de novo. Id.
¶ 62 A. Count IV—Section 13-72-030 of the Chicago Municipal Code
¶ 63 As previously noted, count IV of plaintiffs’ amended complaint alleges a
violation of section 13-72-030 of the Municipal Code. That section provides as
follows:
“No person shall with the intent that a prospective purchaser rely on such
act or omission, advertise, sell or offer for sale any condominium unit by (a)
employing any statement or pictorial representation which is false or (b)
omitting any material statement or pictorial representation.” Chicago
Municipal Code § 13-72-030.
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¶ 64 The trial court found that because section 13-72-030 “appears to prohibit
misrepresentations or omissions of material fact[,] *** it is similar to a fraud
claim.” The trial court noted that the statements regarding the kind of construction
methods and material to be used were “not the sort of specific statements which
form the basis of a misrepresentation claim.” The trial court then concluded that
“[s]imilar to a fraud claim, the language of section 13-72-030 applies to
misrepresentations of pre-existing facts, and therefore does not apply to a promise
to perform future conduct.”
¶ 65 The appellate court disagreed with the trial court’s analysis and found that
section 13-72-030 is not a codification of common-law fraud and the trial court’s
conclusion that it only applies to preexisting facts was erroneous. The appellate
court found that the provision was a remedy in addition to common-law fraud and
was not limited to preexisting facts because it “concerns the marketing and sale of
condominiums, which may occur before construction is complete.” 2014 IL App
(1st) 130764, ¶ 117. Justice Palmer in his special concurrence wrote to emphasize
that section 13-72-030 cannot be equated with common-law fraud because by its
plain language, it does not require that the offending statement be a statement of
fact. He noted that if the city council had wanted to equate this section with
common-law fraud it could have easily done so by using the phrase, “statement of
fact which is false,” as opposed to simply using the phrase “any statement ***
which is false.” (Emphasis in original.) 2014 IL App (1st) 130764, ¶ 143 (Palmer,
J., specially concurring).
¶ 66 Defendants argue that the trial court has the better view, and the protections of
the Municipal Code should be construed narrowly to bar recovery for statements
that do not concern purported preexisting facts but are instead simply promises that
turn out to be false. Defendants also argue that the phrase “any statement” in
section 13-72-030 should be limited to refer to the specific statements a developer
is required to disclose to a prospective purchaser in its “property report.” A
property report is mentioned in a different section of the Municipal Code, section
13-72-020. See Chicago Municipal Code § 13-72-020. Section 13-72-020 requires
disclosure in a “property report” of certain information, such as the name of the
developer, whether the purchaser may purchase more than one unit, whether there
is anything that would affect title to the property, the current taxes and the
estimated monthly payments in the first year that includes a list of certain expenses
associated with the property, and other items. Chicago Municipal Code
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§ 13-72-020. Defendants note that section 13-72-020 does not require any
disclosures about the insulation to be used in the units.
¶ 67 This court’s primary objective in interpreting a statute or ordinance is to
ascertain and give effect to the intent of the legislative body. See Gillespie, 2014 IL
115330, ¶ 31; People v. Martino, 2012 IL App (2d) 101244, ¶ 25. The best
indication of that intent is the language used, which must be given its plain and
ordinary meaning. Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234,
¶ 18. If the language is clear and unambiguous, it will be given effect without resort
to other aids of statutory construction. Kunkel v. Walton, 179 Ill. 2d 519, 534
(1997).
¶ 68 Here, we find that the language of section 13-72-030 unambiguously provides
that “any” false statement employed in connection with the advertising or sale of a
condominium unit with the intent that the prospective purchaser rely upon it is
actionable. Moreover, nothing in the section tethers the “any statement *** which
is false” language to the kind of statement required to maintain a common-law
fraud claim. Section 13-72-030 relates to the marketing and sale of condominiums,
which may occur before construction is complete. Thus, the statements made in
connection with the marketing and sale may not, and probably do not, concern
preexisting facts. Instead, the statements are made with the intent that the
prospective purchaser rely on them, which, in the developer’s view, will hopefully
lead to that prospective purchaser actually buying a unit. We also find no merit to
the defendants’ contention that the “any statement” language in section 13-72-030
should be construed to refer to the limited information required by section
13-72-020 to be included in the “property report.” It seems to us that defendants’
interpretation would be inconsistent with the plain language of the ordinance and
would defeat the apparent intent of the city council to fully address the problem of
deceit in the marketing and sale of condominium projects that are being newly
developed. We also agree with the specially concurring justice in the appellate
court who believed that if the city council had intended to limit the scope of section
13-72-030 to statements that involve preexisting facts, it would have said so.
¶ 69 We further note that the trial court’s analysis seems to have ignored the
well-recognized exception to the general rule against common-law promissory
fraud actions. Under that exception, false promises or misrepresentations of future
conduct are actionable where they are alleged to be the scheme employed to
accomplish the fraud. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc.,
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131 Ill. 2d 145, 168-69 (1989); Steinberg v. Chicago Medical School, 69 Ill. 2d
320, 334 (1977); Roda v. Berko, 401 Ill. 335, 340 (1948); Stamatakis Industries,
Inc. v. King, 165 Ill. App. 3d 879, 882-83 (1987). Here, count II of plaintiffs’
complaint, which was also dismissed by the trial court, did allege that the
defendants made false representations in a “scheme to induce prospective
purchasers to purchase the units so [defendants] could profit from the sales.”
Furthermore, that count alleges that “[t]he unit owners relied upon those
representations when they purchased the units and would not have purchased the
units had they known the property and the units contained multiple and significant
defects.” Thus, it is apparent that even if we were to accept the trial court’s and
defendants’ narrow interpretation of section 13-72-030 that limits it to a form of
common-law fraud known as fraudulent misrepresentation (which we do not),
dismissal of count IV of plaintiffs’ amended complaint under section 2-615 would
still seem suspect. This is because even under a traditional, common-law
fraudulent-misrepresentation analysis, it is not clearly apparent that no set of facts
could be alleged and proved that would entitle plaintiffs to recovery where
plaintiffs have demonstrated that they can allege that the false promises were the
scheme employed to accomplish the fraud, a recognized exception to the rule
against promissory fraud claims.
¶ 70 Defendants next argue that the appellate court misconstrued the facts in
reaching its holding that defendants made false statements about the insulation. In
our view, much of defendants’ argument in connection with the missing insulation
raises irrelevant points. Defendants’ main point, however, seems to be that the
appellate court misread the marketing packet to say that insulation would be
provided when the packet actually states that “[a]ll insulation shall be soundbatt
fiberglass with the following R values: Exterior walls—R11; Third floor
ceiling—R30 with integral vapor barrier.” According to defendants, this language
simply means that to the extent that any insulation is installed at all, it would be of
the specified values. In other words, according to defendant, there was no
representation that insulation or a vapor barrier would be installed. 4 We reject
4
Defendants seem to have dropped the argument that they made in the appellate court that the
disclaimer in the packet covered them so that they could not be deemed to have made any
representations about the insulation. The disclaimer provides that the specifications “are subject to
revisions deemed advisable by the developer or architect, or required by law.” We agree with the
appellate court that the disclaimer does not cover defendants “for the sections of the exterior wall
and third-floor ceiling where insulation was missing entirely, or those sections that used insulation
of a different grade than that advertised in the packet.” 2014 IL App (1st) 130764, ¶ 103.
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defendants’ argument. We instead find the statement in the packet to be an
advertisement promising that insulation and a vapor barrier would be installed.
¶ 71 Defendants next argue that the appellate court’s interpretation of section
13-72-030 would change real estate practice in the City of Chicago with respect to
the sale of condominiums by creating a cause of action for false statements without
regard to certain “contractual disclaimers,” such as integration clauses, the parol
evidence rule and the statute of frauds. We find nothing persuasive in defendants’
argument. The appellate court applied the plain meaning of the language used by
the city council to find that any false statement made with the intent that the
prospective purchaser rely upon it in connection with the advertising or offering for
sale of a condominium unit is actionable. The “contractual disclaimers” defendant
mentions have no application to a tort action based on a violation of an ordinance
that seeks to protect prospective purchasers from being induced to enter
condominium sales by false statements made by the developer. Defendants’
concerns about the ordinance seem to be more pointed toward the propriety of the
legislation rather than to the straightforward application of it by the appellate court.
¶ 72 Defendants next argue that the appellate court erred in holding that private
parties could recover monetary damages as a remedy under the preamended version
of section 13-72-100, which is the version applicable here. Section 13-72-100
currently provides that prevailing parties bringing a cause of action for a violation
of chapter 13-72, including section 13-72-030, “shall be entitled to recover, in
addition to any other remedy available, his damages and reasonable attorney fees.”
See Chicago Municipal Code § 13-72-100 (amended Nov. 16, 2011). Defendants
argue that the inclusion of the word “damages” in the above-quoted language
where it was not previously included until the Chicago Municipal Code was
amended in 2011 indicates that the preamended version did not allow a private
party to recover damages for a violation of chapter 13-72.
¶ 73 In rejecting this same argument, the instant appellate court relied upon
Wolinsky v. Kadison, 2013 IL App (1st) 111186, which addressed a remedies
provision in a chapter of the Chicago Municipal Code dealing with discrimination
in the sale or lease of condominiums, which was similar to the preamended
remedies provision in the present case. Wolinsky found that the broad provision that
remedies under the ordinance be cumulative and in addition to other remedies
reflected the legislature’s intent that a cause of action for damages be allowed for
violations of the ordinance. Id. ¶ 40.
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¶ 74 Defendants argue that instead of relying upon Wolinsky, the appellate court
should have looked to the factors set forth in Abbasi v. Paraskevoulakos, 187 Ill. 2d
386, 393 (1999), for determining when a court may imply a private right of action,
which are (1) whether the plaintiff is a member of the class for whose benefit the
statute was enacted, (2) whether a private right of action is consistent with the
underlying purpose of the statute, (3) whether the plaintiff’s injury is one the statute
was designed to prevent, and (4) whether it is necessary to provide an adequate
remedy for violations of the statute. There is no merit to defendants’ argument
given that both the amended and preamended version of the Chicago Municipal
Code expressly gives the plaintiffs a private right of action. Section 13-72-100 of
the Chicago Municipal Code has always provided that “any prospective purchaser,
purchaser or owner of a unit” may bring an action to enforce section 13-72-030 and
“shall be entitled to recover, in addition to any other remedy available, his
reasonable attorney fees.” Thus, the question here is different than Abbasi and
involves the more narrow point of whether plaintiffs could recover damages under
the preamended version, where that version allows a private right of action and
does not limit the remedies set forth but rather states that they are cumulative to
“any others available.”
¶ 75 We believe that the appellate court and Wolinsky have provided the correct
analysis. But we find that plaintiffs would prevail even upon application of the
Abbasi factors. Defendants argue that section 13-72-030 was intended to benefit
only those to whom defendants directly marketed the units, but defendants then
admit that a number of the current unit owners were original purchasers. Moreover,
it is clear that a condominium association generally has standing to pursue claims
that affect the unit owners or the common elements. See Poulet v. H.F.O., L.L.C.,
353 Ill. App. 3d 82, 90 (2004); St. Francis Courts Condominium Ass’n v. Investors
Real Estate, 104 Ill. App. 3d 663, 668 (1982). Thus, we find defendants’ argument
to be unpersuasive.
¶ 76 B. Count V—Breach of Fiduciary Duty
¶ 77 Defendants’ final argument is that plaintiffs failed to allege sufficient facts to
overcome the business judgment rule. Under the business judgment rule, in the
absence of bad faith, fraud, illegality or gross overreaching, courts will not interfere
with the exercise of business judgment by corporate directors. See Palm v. 2800
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Lake Shore Drive Condominium Ass’n, 2014 IL App (1st) 111290. When a board
properly exercises its business judgment in interpreting its own declaration, a court
will not find the board’s interpretation to be a breach of fiduciary duty. See Carney
v. Donley, 261 Ill. App. 3d 1002, 1011 (1994). If, however, the board members fail
to exercise due care, then they may not use the business judgment rule as a shield
for their conduct. See Palm, 2014 IL App (1st) 111290, ¶ 111.
¶ 78 Defendants argue that they only had a duty to prepare an estimated operating
budget projecting a first year reserve fund following turnover. Furthermore,
defendants cite section 13-72-020 (amended May 4, 2011) of the Chicago
Municipal Code, which provides that a developer does not have to fund the reserve
at all if the developer includes a statement in the property report disclosing that the
developer has not provided for the reserve fund and therefore a special assessment
directed to all condominium unit owners may be necessary to pay for future
possible costs should they occur. See Chicago Municipal Code § 13-72-020
(amended May 4, 2011). Defendants fault plaintiffs for failing to allege in their
complaint an absence of such a disclaimer. But defendants do not argue that they
actually chose not to fund the reserve and instead provided a disclaimer. Rather,
defendants take issue with the fact that according to defendants, plaintiffs’
complaint “alleges nearly 15 years after control of the board was turned over to the
unit owners, that the first year initial budget was inadequate, in hindsight, because
it did not set a high enough reserve fund to perform all of the required repairs in the
first year.” Finally, defendants weave into their argument the fact that the
condominium bylaws in this case required that in setting the amount of a reserve
fund, the board take into consideration a number of factors, which includes, among
other things, “the repair and replacement cost, and estimated useful life of the
property, which the association is obligated to maintain.” 5
¶ 79 Defendants’ invocation of the business judgment rule at this point must be
rejected. Plaintiffs’ amended complaint specifically alleges that defendants acted
fraudulently and in bad faith when they knew of the shoddy construction yet failed
to account for those repairs (that would have been immediately required in 1996
had the unit owners known about the latent defects) when they set the reserves. We
find that the questions presented—whether defendants’ actions were reasonable in
5
The other factors are “(ii) the current and anticipated return on investment of association funds;
(iii) any independent professional reserve study which the association may obtain; (iv) the financial
impact on unit owners, and the market value of the units, of any assessment increase needed to fund
the reserves; and (v) the ability of the association to obtain financing or refinancing.”
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light of what they knew, what constitutes reasonable budgeting of a reserve fund in
view of the factors listed in the bylaws, and whether the business judgment rule
prevents plaintiffs from recovering under the particular circumstances—are
questions of fact. See Board of Managers of Weathersfield Condominium Ass’n,
307 Ill. App. 3d at 623. We therefore conclude that plaintiffs’ allegations are
sufficient to state a cause of action for breach of fiduciary duty.
¶ 80 CONCLUSION
¶ 81 For the foregoing reasons, we affirm the appellate court’s decision reversing the
trial court’s order dismissing counts IV and V of plaintiffs’ amended complaint.
We remand the cause to the circuit court of Cook County for further proceedings
consistent with this opinion.
¶ 82 Appellate court judgment affirmed.
¶ 83 Cause remanded.
¶ 84 JUSTICE BURKE, dissenting:
¶ 85 I disagree with both the majority’s holding that plaintiffs have adequately
alleged fraudulent concealment under section 13-214(e) of the Code of Civil
Procedure (735 ILCS 5/13-214(e) (West 1996)), as well as the majority’s holding
that plaintiffs have adequately pled a violation of section 13-72-030 of the Chicago
Municipal Code (Chicago Municipal Code § 13-72-030). I therefore respectfully
dissent.
¶ 86 I. Fraudulent Concealment
¶ 87 The threshold issue in this case is whether plaintiffs’ complaint is barred by
section 13-214(b) of the Code of Civil Procedure (735 ILCS 5/13-214(b) (West
1996)). This provision, which sets forth the statute of repose for construction
related causes of action, states:
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“(b) No action based upon tort, contract or otherwise may be brought
against any person for an act or omission of such person in the design, planning,
supervision, observation or management of construction, or construction of an
improvement to real property after 10 years have elapsed from the time of such
act or omission. However, any person who discovers such act or omission prior
to expiration of 10 years from the time of such act or omission shall in no event
have less than 4 years to bring an action as provided in subsection (a) of this
Section.” Id.
There is no question that section 13-214(b) is applicable in this case as plaintiffs’
complaint was filed approximately 15 years after defendants completed
construction on the residences that plaintiffs allege are defective.
¶ 88 The majority concludes, however, that plaintiffs’ complaint may go forward
under section 13-214(e) (735 ILCS 5/13-214(e) (West 1996)). This provision states
that the 10-year statute of repose “shall not apply to causes of action arising out of
fraudulent misrepresentations or to fraudulent concealment of causes of action.” Id.
According to the majority, plaintiffs’ complaint sufficiently alleges that defendants
fraudulently concealed plaintiffs’ causes of action. The majority offers two
rationales in support of this conclusion: (1) plaintiffs allege that all defendants
knowingly made certain false statements in a sales brochure or informational
packet that was part of the defendants’ marketing efforts when the Henderson
Square units were being sold in 1995 and 1996 and, (2) plaintiffs allege that the
reserve fund set by defendants Ronald Shipka, Sr., Ronald Shipka, Jr., and John
Shipka, when they were on the board of managers for the condominium association
in 1996 was knowingly set at too low a level. Supra ¶¶ 35-48. I address these
rationales in turn.
¶ 89 A. The Statements in Defendants’ Sales Brochure
¶ 90 To establish fraudulent concealment under section 13-214(e), a plaintiff must
plead and prove that the defendant made affirmative representations or acts which
were calculated to lull or induce the plaintiff into delaying the filing of his claim or
to prevent the plaintiff from discovering his claim. Orlak v. Loyola University
Health System, 228 Ill. 2d 1, 18 (2007). In addition, the plaintiff must plead and
prove that these representations were known by the defendant to be false, that they
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were made by the defendant with the intent to deceive the plaintiff, and that the
plaintiff detrimentally relied upon the representations. Id.
¶ 91 In holding that plaintiffs have adequately pled fraudulent concealment, the
majority relies primarily on representations made by defendants in a sales brochure
that was part of the defendants’ marketing in 1995 and 1996. The brochure is
attached to plaintiffs’ complaint and a copy is included in appendix A to this
dissent. Infra ¶ 121. The relevant representations made in the brochure were:
“ ‘(1) that the Property and the Units reflected “new architectural energies
and solid construction skills”;
(2) that the [development companies] and/or Enterprise was committed to
“quality construction and detail” for the Property and Units;
(3) that the [development companies] and/or Enterprise consistently deliver
“quality buildings” and “successful developments” which succeed
“architecturally, aesthetically and economically”; and
(4) that “[a]ll insulation shall be soundbatt fiberglass with the following R
values: Exterior walls—R11; Third floor ceiling—R30 with integral vapor
barrier.” ’ ” Supra ¶ 15.
¶ 92 The majority notes that plaintiffs have alleged in their complaint that
defendants knew these statements “to be false” and that plaintiffs have alleged the
statements were made with the intent to deceive those who read the brochure.
Supra ¶ 39. On this basis, the majority concludes that plaintiffs have adequately
pled a fraudulent scheme by defendants “designed and intended” to prevent
plaintiffs from discovering their causes of action. Id. Therefore, the majority holds,
dismissal of plaintiffs’ complaint “pursuant to section 2-619 of the Code would not
be proper.” Id. I disagree.
¶ 93 The first three statements on the majority’s list, all of which are variations of a
statement by defendants that they provide “quality” construction, cannot form the
basis of fraudulent concealment. As this court has stated, “[d]escribing a product as
‘quality’ or as having ‘high performance criteria’ are the types of subjective
characterizations that Illinois courts have repeatedly held to be mere puffing.”
Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 174 (2005).
As an expression of subjective opinion, a puffing statement cannot be proven true
or false and, therefore, cannot be a basis for fraud. Barbara’s Sales, Inc. v. Intel
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Corp., 227 Ill. 2d 45, 72 (2007). Further, a statement by a builder asserting that it
provides “quality” construction is not only a subjective characterization, it is also
the type of statement made by every builder to its customers—no builder tells its
customers it provides poor quality construction. If, as the majority holds, a mere
statement by a builder that it performs “quality” work can form the basis of
fraudulent concealment so as to negate the statute of repose, then the statute has
effectively been written out of existence.
¶ 94 The fourth statement on the majority’s list is a specification by defendants to
provide thermal insulation of a certain quality in exterior walls and the “third-floor
ceiling,” which plaintiffs allege defendants failed to do. The majority concludes
that defendants’ statement regarding insulation also properly forms the basis of
fraudulent concealment under section 13-214(e). Supra ¶ 39.
¶ 95 Defendants’ specification of a certain type of insulation is not puffing.
However, plaintiffs are not suing defendants because some of the occupants of the
Henderson Square residences are too cold in the winter or too hot in the summer.
They are suing to recover for water damage caused by structural defects. This is
stated explicitly in plaintiffs’ complaint, which alleges “significant water
infiltration and resulting damages,” and spelled out in detail in a report prepared by
a consulting firm, Warton, Inc., that is appended to plaintiffs’ complaint.
¶ 96 In this report, the Warton firm describes how its engineers examined two
“garden-level” units in the Henderson Square development that sit beneath
street-level townhomes. (A picture is included in appendix B to this dissent. Infra ¶
122.) The exterior front walls of the street-level townhomes, as well as outdoor
decks, sit directly over the living areas of the garden-level units. The problem,
according to the report, was that rain and melting snow were penetrating through
various gaps in the exterior front walls of the upper townhomes, such as around the
windows and doors, and then traveling downward into the ceilings of the garden
units. The report does not say, and there is no allegation in plaintiffs’ complaint,
that the water problems in the garden-level units had anything to do with a lack of
insulation, and there is obviously no assertion that these problems had anything to
do with insulation in the “third floor ceiling”—the top floor of the street-level
townhomes, three stories above. 6
6
The vapor barrier mentioned in the sales brochure for the third-floor ceiling insulation is a
material, such as a treated paper, plastic sheet or metallic foil used to prevent moist, indoor air from
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¶ 97 To properly plead fraudulent concealment it is not enough to simply allege that
the defendant made a false statement. The plaintiff must also plead causation by
alleging that he “detrimentally relied” on the false statement. Orlak, 228 Ill. 2d at
18. See also, e.g., Clay v. Kuhl, 189 Ill. 2d 603, 613 (2000) (to establish fraudulent
concealment, a plaintiff must “plead[ ] and prove[ ] that fraud prevented the
discovery of the cause of action”); Foster v. Plaut, 252 Ill. App. 3d 692, 699 (1993)
(“it is necessary to show affirmative acts by the defendant which were designed to
prevent, and in fact did prevent, the discovery of the claim”).
¶ 98 Plaintiffs’ complaint is deficient because, even assuming that defendants’
specification of a certain type of insulation was a false statement for the purposes of
fraudulent concealment under section 13-214(e), plaintiffs have failed to allege
detrimental reliance and, hence, causation. Specifically, plaintiffs have failed to
allege that the statement about insulation prevented any occupant of the Henderson
Square residences from discovering the water penetration in the garden-level units,
or from discovering any cause of action related to the water penetration.
¶ 99 The majority opinion suffers from the same problem. Indeed, the majority’s
holding that defendants’ specification of a certain type of insulation can form the
basis for fraudulent concealment in this case appears to mean that any false
statement made by a defendant, even if it did not, and could not, cause the
plaintiff’s failure to discover the underlying cause of action, can serve as the basis
for fraudulent concealment under section 13-214(e). This is clearly error.
¶ 100 The majority also offers the following statement in support of its holding that
plaintiffs have adequately alleged fraudulent concealment with respect to the
representations in the sales brochure: “Plaintiffs allege that defendants ‘covered up
the Units’ deficiencies in brick and mortar,’ cutting costs ‘for the purpose of
realizing greater profits from the city contract,’ and that these deficiencies could
not have been discovered by plaintiffs ‘without extensive testing and opening up
diffusing into the ceiling. Keep Warm Illinois, Insulation, at 1 https://www.illinois.gov/KeepWarm/
Documents/insulation.pdf (last visited Oct. 21, 2015). “The warm air inside your house contains
water vapor. If this vapor passes into the insulation and condenses, it can cause significant loss of
insulating value, it can cause mold growth, peeling paint, and eventual rotting of structural wood.”
To prevent this, a vapor barrier is “installed on the warm side, the lived-in side, of the space to be
insulated. This placement prevents the moisture in the warm indoor air from reaching the
insulation.” Id. The vapor barrier referenced in the brochure, in addition to being three stories away
from the garden-level units, has nothing to do with preventing rain or melting snow from penetrating
into the interior of the homes.
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the walls of the common elements and the Units.’ ” Supra ¶ 39. The implication
from this is that because the alleged structural problems in the residential units were
latent defects covered up by “brick and mortar,” the statute of repose is
inapplicable.
¶ 101 However, this court has rejected this proposition. As the appellate court below
stated:
“The presence of latent defects, by themselves, are not sufficient to
circumvent the statute of repose under the section 13-214(e) fraud exception.
For example, in VonHoldt v. Barba & Barba Construction, Inc., 175 Ill. 2d 426
(1997), our supreme court considered whether a cause of action involving a
latent defect was barred by the statute of repose. The supreme court found that
the plaintiff had successfully pleaded a cause of action for breach of the implied
warranty of habitability because a latent defect existed. VonHoldt, 175 Ill. 2d at
432. However, the plaintiff filed the lawsuit 11 years after construction was
completed. VonHoldt, 175 Ill. 2d at 433. The supreme court concluded that the
lawsuit was time-barred by the statute of repose. VonHoldt, 175 Ill. 2d at 434.”
2014 IL App (1st) 130764, ¶ 98.
The majority does not explain why it is rejecting the reasoning of VonHoldt. This,
too, is error.
¶ 102 The statements in defendants’ sales brochure cannot form the basis for
fraudulent concealment. I would hold, therefore, that section 13-214(e) is
inapplicable on this ground.
¶ 103 B. Insufficient Reserve Fund
¶ 104 The majority offers a second basis for finding that plaintiffs have alleged
fraudulent concealment, at least with respect to defendants Ronald Shipka, Sr.,
Ronald Shipka, Jr., and John Shipka. The majority observes that the Shipkas served
as the first board of managers for the condominium association for approximately
six months in 1996, from June until the end of that year, when control was turned
over to the first elected board. During that time, the Shipkas had a fiduciary duty to
maintain a reserve fund for capital expenditures and repairs of common elements in
the condominium association. Supra ¶ 42.
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¶ 105 The majority notes plaintiffs’ allegation that “the Shipkas failed to provide
sufficient funding for the reserve fund to meet the repairs needed due to the
extensive defects in the construction.” Id. According to the majority, this
inadequate funding was essentially a false statement which “gave the appearance
that the building was in much better shape than it was.” Id. The majority further
notes that plaintiffs have alleged that the Shipkas kept the reserve fund low “with
the intent of deceiving the unit owners.” Supra ¶ 45. This, the majority concludes,
adequately alleges a basis for fraudulent concealment on the part of the Shipkas
sufficient to defeat the statute of repose.
¶ 106 Again, however, to plead fraudulent concealment it is not enough to simply
allege that the defendant made a false statement. The plaintiff must also plead
causation by alleging detrimental reliance. Orlak, 228 Ill. 2d at 18. There is no
allegation in plaintiffs’ complaint that any occupant of the Henderson Square
development, whether at the time the residences were first constructed or later, was,
in fact, aware of the amount of money in the reserve fund, and because of that
awareness, was prevented from discovering the water problems in the garden-level
units, or from discovering any cause of action related to those problems. This is
fatal to an assertion of fraudulent concealment under section 13-214(e). See Orlak,
228 Ill. 2d at 18.
¶ 107 Moreover, an inadequate reserve fund is going to exist in every instance where
a condominium board sues a builder for construction problems; if there were an
adequate reserve there would be no need for litigation. Thus, the majority appears
to be saying that whenever a condominium board has to sue a builder, the statute of
repose simply does not apply. I do not think the legislature intended this result.
¶ 108 A statute of repose, such as section 13-214(b), can lead to harsh consequences
since it can cut off a cause of action before the plaintiff has discovered the
underlying injury. See, e.g., Orlak, 228 Ill. 2d at 7-8. Nevertheless, the legislature
has made a policy decision in section 13-214(b) that 10 years (with a possible
four-year extension depending on when the injury is discovered), is sufficient time
to uncover and file construction related causes of action. We should not interpret an
exception to this law in such a way as to render the legislature’s policy decision
meaningless.
¶ 109 I would hold that plaintiffs have failed to plead fraudulent concealment within
the meaning of section 13-214(e) and, therefore, the statute of repose is applicable
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in this case. Accordingly, I would reverse the judgment of the appellate court and
affirm the judgment of the circuit court granting defendants’ motion to dismiss.
¶ 110 II. Count IV—Section 13-72-030 of the Chicago Municipal Code
¶ 111 In count IV of their complaint, plaintiffs allege that defendants violated section
13-72-030 of the Chicago Municipal Code. This section provides:
“No person shall with the intent that a prospective purchaser rely on such
act or omission, advertise, sell or offer for sale any condominium unit by (a)
employing any statement or pictorial representation which is false or (b)
omitting any material statement or pictorial representation.” Chicago
Municipal Code § 13-72-030.
Plaintiffs allege that the four statements in defendants’ sales brochure discussed
above (see supra ¶ 15), constitute “false” statements within the meaning of section
13-72-030.
¶ 112 In addition, plaintiffs contend that, should they prove defendants violated the
ordinance, they are entitled to money damages. Specifically, plaintiffs argue they
would be entitled to the “total cost of remediation of the deficiencies and damage to
the common elements and residential units” plus “reasonable attorney fees.”
¶ 113 The majority agrees and holds that plaintiffs have properly alleged a violation
of section 13-72-030. In so holding, the majority emphasizes that section
13-72-030 cannot be equated with common-law fraud and that the statements
prohibited under the ordinance are not limited to the “kind of statement required to
maintain a common-law fraud claim.” Supra ¶ 68. The majority states that it
“agree[s] with the specially concurring justice in the appellate court” (id.), who
concluded that, by its plain language, section 13-72-030 does not require that the
offending statement be a statement of fact. See 2014 IL App (1st) 130764, ¶ 143
(Palmer, J., specially concurring). Thus, according to the majority, even puffing
statements by a builder that it does “quality” work, like the statements in
defendants’ brochure at issue here, are prohibited under the ordinance.
¶ 114 The majority also concludes that plaintiffs need not prove detrimental reliance
or causation to recover under the ordinance. According to the majority, recovery
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may be had, so long as the “statements are made with the intent that the prospective
purchaser rely on them” (emphasis in original). Supra ¶ 68.
¶ 115 Finally, the majority agrees with plaintiffs that recovery under section
13-72-030 is not limited to fines and attorney fees. Instead, recovery may include
monetary damages such as those sought in plaintiffs’ complaint. Supra ¶¶ 72-75.
¶ 116 The majority’s reasoning cannot be correct. Section 13-72-030 prohibits only
“false” statements. Chicago Municipal Code § 13-72-030. The ordinance must be
referring to factual statements because a mere statement of opinion, such as
puffing, cannot be proven false. See, e.g., O’Donnell v. Field Enterprises, Inc., 145
Ill. App. 3d 1032, 1039 (1986) (“There is no such thing as a false idea or opinion.”).
By its plain terms, the ordinance does not apply to the puffing statements in
defendants’ brochure.
¶ 117 Further, consider the scope of the majority’s holding here. According to the
majority, not only is puffing prohibited under the ordinance, but a plaintiff can
recover damages that were not caused by the puffing. In this case, for example,
even if plaintiffs are unable to prove that anyone actually saw defendants’ sales
brochure, and are unable to prove that the statements in the brochure were in any
way related to the water damage (which is a given), it does not matter. Under the
majority’s reading of section 13-72-030, if plaintiffs show merely that defendants
intended for the statements in the brochure to be relied on in some way, plaintiffs
can recover the “total cost of remediation of the deficiencies and damage to the
common elements and residential units” plus “reasonable attorney fees.” This is an
absurd result. It cannot have been intended by the drafters of the ordinance.
¶ 118 I would hold that section 13-72-030 does not prohibit puffing. I would also hold
that, to successfully plead an action for the recovery of monetary damages under
section 13-72-030, the plaintiff must allege that the false statement or statements
were detrimentally relied upon and thereby caused the damages being sought. That
standard has not been met here. Accordingly, I would affirm the judgment of the
circuit court finding that plaintiffs failed to state a cause of action for monetary
damages under section 13-72-030.
¶ 119 For the foregoing reasons, I respectfully dissent.
¶ 120 JUSTICES FREEMAN and KARMEIER join in this dissent.
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¶ 121 Appendix A
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¶ 122 Appendix B
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