Vista North Condominium Assoc. v. Hispanic Housing Development Corp.

2023 IL App (1st) 211161-UNo. 1-21-1161
FIRST DIVISION
March 20, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
VISTA NORTH CONDOMINIUM ) Appeal from the Circuit Court of
ASSOCIATION, by its Board of Directors, ) Cook County, Illinois County
) Department, Chancery Division
Plaintiff-Appellant, )
) No. 19 CH 8013
v. )
) The Honorable
HISPANIC HOUSING DEVELOPMENT ) Anna M. Loftus,
CORPORATION, an Illinois not-for-profit ) Judge Presiding.
corporation; HIPOLITO ROLDÁN, an )
individual; and THE CITY OF CHICAGO, )
)
Defendants-Appellees. )
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Coghlan concurred in the judgment.
ORDER
¶1 Held: We affirm the order of the circuit court denying the plaintiff’s motion to reconsider
dismissal of the plaintiff’s complaint or, in the alternative, leave to file an amended
complaint. We agree with the circuit court that the plaintiff is unable to state a claim under
any of its proposed theories, and its proposed amendments to the pleadings would not cure
the defects. Furthermore, all of the plaintiff’s claims, including the proposed new counts,
are untimely brought.
¶2 Plaintiff Vista North Condominium Association (“Vista North”) filed suit against
Defendants Hispanic Housing Development Corporation (“HHDC”), Hipolito Roldán, and the
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City of Chicago for their failure to provide and develop a plot of land for use as a parking lot for a
condominium building. Defendants collectively moved to dismiss the five-count complaint
pursuant to 735 ILCS 5/2-619.1, and the circuit court granted the motion with prejudice. Vista
North then filed a motion to reconsider, or, alternatively, for leave to file an amended complaint,
which Vista North attached to its motion. The circuit court denied the motion, and this appeal
followed. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Defendant HHDC is the developer of a twenty-two-unit residential condominium building
(“Condominium”) located at 7732-7742 North Paulina Street in Chicago. The work took place
between 2002 and 2003. Individual defendant Hipolito Roldán is the president of HHDC. The
property did not include adjoining parking space for future residents, but HHCD was
contemplating various non-adjacent parcels of land to develop into a parking lot for the
Condominium. One such parcel (“the Parcel”) ended up the subject of this lawsuit. Throughout
the relevant span of time, that land was owned by Defendant City of Chicago. Plaintiff Vista North
is the governing body of the Condominium, as established by the Declaration of Condominium
(“Declaration”) recorded on October 24, 2002.
¶5 The Condominium Documents
¶6 HHCD prepared a Property Report, signed by Roldán on January 1, 2002, that would be
tendered to prospective purchasers. The Property Report is split into two parts—a narrative portion
and exhibits. The narrative portion is described in the Property Report as a summary of the
significant features of the Condominium and additional information of interest for prospective
buyers. The exhibits include legal documents, forms of sales documents for individual units, and
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an estimated budget and engineer’s report. The Property Report’s narrative portion reads, in
pertinent part:
In the event of any inconsistency between the narrative and exhibits, the exhibits will
govern. All of the Developer’s sales and other representatives are prohibited from orally
changing any of the terms and conditions of the Condominium Instruments or, with the
exception of the Developer’s attorneys, attempting to interpret their legal effect. ***
Prospective purchasers are urged to read all documents and this Property Report carefully
and to rely only on their own attorneys and advisors. The Property Report is not a legal
offer to sell real estate; a contract only results if the prospective purchaser submits a
written offer to purchase a Unit which is accepted by the seller in writing.
***
[The Developer] *** intends to redevelop the buildings into twenty-two Residential
Units, and one outdoor parking lot containing at least twenty-two (22) Parking Units ***
The parking lot will not be located adjacent to the building. The Developer has several
sites under consideration and will be adding the parking lot to the Condominium after
conversion of the building to condominiums and submission of the building to the
Condominium Act. All parking spaces within the Condominium will be Limited
Common Elements specifically assigned for use of a specific Residential Unit and
indicated as Parking Units on the Plat of Survey. All Residential Units, Parking Units,
Common Elements and Easements Appurtenant to the Condominium are referred to
collectively as the Condominium Property.
¶7 Section R of the Property Report specifically addresses parking:
There are currently no Parking Spaces for the Property. However, the Developer is
negotiating with the City of Chicago to acquire property located on West Juneway Terrace
to be used as a Parking Lot for the Condominiums. In the event the Developer obtains this
property from the City of Chicago, the land will be added to the Declaration and improved
as a parking lot. The Parking Spaces will appurtenant to the ownership of a Residential Use
for use of the designated Unit Owner as a Limited Common Element *** PARKING
SPACES ASSOCIATED WITH THIS BUILDING ARE NOT OWNED BY THE
UNIT OWNERS AND MAY BE SUBJECT TO BEING DENIED TO OR TAKEN
FROM UNIT OWNERS.
(emphasis in original).
¶8 The Declaration was attached as an exhibit to the Property Report. Regarding the parking
lot, the Declaration states as follows:
(a) The Developer reserves the right to add the Additional Land . . . by recording an
amended Plat . . . and an amendment to the Declaration *** within three (3) years from
the date of recording of the Declaration. The Additional Land if added will be used to
provide at least twenty-two (22) off street parking spaces for the Condominium. The use
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of a parking space will be assigned to each unit Owner as a limited Common Element
***
(b) The Additional Land, if added to the Property, will be added at one time. The
improvements to be located on the Additional Land will be striped parking, with
appropriate lighting, fencing and landscaping constructed pursuant to and in compliance
with the Building Code of the City of Chicago. The improvements constructed on the
Add-On Property will be compatible with the configuration of the Property in relation to
density, use, construction and architectural style.
***
(d) The provisions of this Section do not bind or obligate the Developer to exercise the
option to add the Additional Land to the Declaration. The Additional Land is subject to
acquisition from the City of Chicago. Any obligation to add the Additional Land is
subject to Developer’s ability to acquire the Additional Land from the City of Chicago
upon terms acceptable to Developer, in its sole and absolute discretion.
¶9 The Property Report also included as an exhibit a copy of the form Purchase Agreement
that would be provided to purchasers. The Purchase Agreement also discussed parking:
22. Off-Street Parking. Seller reserves the right in its sole discretion, at any time before or
after closing until three (3) years after the recording of the Declaration, to add additional
land to the Condominium and amend the Condominium Declaration and Association By-
Laws as Seller may deem necessary or appropriate to add one or more off-street parking
locations to the Condominium, either as part of the Common Elements or Limited
Common Elements. Purchaser acknowledges and agrees that neither Seller nor its agent
or broker has many any promise or representation concerning off-street parking and that
Seller shall have no obligation whatsoever to add off-street parking to the Condominium.
The Purchase Agreement also contains an integration clause, which represents that no other
warranties or representations were made leading up to the sale.
¶ 10 The City Ordinance
¶ 11 On May 15, 2002, the City of Chicago passed an ordinance (“the Ordinance”) allowing for
the conveyance of the Parcel to HHDC. The Ordinance states, in pertinent part:
WHEREAS, To facilitate development of the Property as described in this ordinance, the
City shall also convey to Developer that certain parcel *** for the nominal consideration
of One and no/100 Dollars ($1.00) which shall be utilized as parking for the purchasers of
condominium units at the Building; and
***
Be It Ordained by the City Council of the City of Chicago:
***
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SECTION 4. To facilitate the redevelopment of the building pursuant to the Program, the
City is also authorized to convey the Parking Lot Parcel to Developer for the sum of One
and no/100 Dollars ($1.00).
SECTION 5. The Mayor or his proxy is authorized to execute, and the City Clerk to
attest, a quitclaim deed conveying to Developer the Parking Lot Parcel in accordance
with the terms and conditions contained in the proposed redevelopment agreement ***
Said parcel shall be developed for use as parking by the purchasers of condominium units
at the Building and their successors, and shall be developed pursuant to the Chicago
Parking Lot Ordinance and the Program Guidelines.
***
Exhibit B.
Department of Zoning.
Zoning approval is required as part of the building permit process and is covered under
the building permit fee schedule described above. However, any private legal work, such
as noticing nearby property owners if a zoning change is requested, is not waived.
J. Proc. Chi. City Council, May 29, 2002, vol. 2, at 86260-66.
¶ 12 The last of the twenty-two Condominium Units was sold to purchasers on July 3, 2003. At
that time, HHDC had not acquired the Parcel and the Condominium did not include a parking lot.
In its Complaint and proposed First Amended Complaint (“FAC”), Vista North alleged that it
sought the delivery of the parking lot from HHDC, and HHDC responded with assurances that it
would do so. The Complaint does not detail these exchanges; however, the proposed FAC includes
additional facts, stating that HHDC met with City representatives around February 2005, when
HHDC represented that development of the parking lot had stalled, but was proceeding. The office
of then-Alderman Joe Moore communicated this to Vista North’s board president, stating that a
special use permit would have to be obtained from the Zoning Board of Appeals before
construction of the parking lot could begin. At that time, the Parcel had not been conveyed by the
City to HHDC.
¶ 13 Continued Efforts to Acquire and Develop the Parcel
¶ 14 Vista North next claims in the proposed FAC that a representative from the alderman’s
office emailed Vista North’s board president on November 10, 2005, writing that the parking lot
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would be built on a certain City-owned parcel of land. Vista North allegedly requested a status
update on November 1, 2007, and received a message that, in lieu of obtaining a special use permit,
HHDC intended to obtain a zoning variance from the City. The next activity allegedly occurred in
August 2008, when the Zoning Board of Appeals approved a variance to allow construction of the
parking lot.
¶ 15 On April 26, 2010, Roldán sent a letter (the “Roldán Letter”) to the board treasurer of Vista
North discussing the proposed parking lot, detailing how during pre-development, “it was hoped”
that City property could be secured for the construction of a parking lot and the developer was
negotiating with the City to acquire the Parcel. He wrote that while the City had eventually secured
the land, it had not been conveyed to HHDC at the time of writing. Roldán concluded that obtaining
the necessary capital, as well as a permit and transfer of the Parcel from the City, would allow for
construction of the parking lot to occur in the spring of 2011. In addition to this letter, which is
attached as an exhibit to the Complaint and FAC, Vista North claims that members of HHDC
communicated with Vista North board members at other points around this time, in March and
October of 2010 and January of 2011. In response to Vista North’s requests for updates on the
progress of the parking lot, HHDC allegedly maintained that while various delays had prevented
construction from continuing as per the original timeline, the developer would follow up with Vista
North on a new schedule.
¶ 16 On December 8, 2015, Vista North’s attorneys sent a letter to Roldán and HHDC,
referencing alleged promises made in the 2010 letter and threatening to sue by December 18, 2015
if Vista North did not hear from HHDC regarding a commitment to complete the parking lot by
that date. Counsel for HHDC responded via emails sent on December 18 and 23, 2015 and January
3, 2016, promising to provide a substantive response to the December 8 letter. Vista North claims
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that it did not receive that response, and communication between the parties regarding the
continued development of the parking lot ceased. On August 17, 2016, the City allegedly indicated
that it was not legally authorized to convey the Parcel to Vista North because of the erroneous PIN
and street address listed in its 2002 Ordinance.
¶ 17 Vista North’s Lawsuit and Procedural History
¶ 18 Vista North filed suit against HHDC, Roldán, and the City on July 1, 2019, pleading five
separate counts: Count I sought a declaration that the Parcel was to be conveyed to Vista North
and an order requiring HHDC and the City to make this conveyance; Count II sought specific
performance of HHDC purchasing, developing, and conveying the Parcel; Count III, pled in the
alternative to Count II, was for breach of contract based on the Purchase Agreement between Vista
North as representative of the unit owners and HHDC, and also requested that HHDC purchase,
develop, and convey the Parcel; Count IV pled a violation of the Municipal Code of Chicago, §
13-70-030, which prohibits the use of fraudulent representations or omissions when selling a
condominium unit; and Count V was for common-law fraud against HHDC and Roldán for various
misrepresentations made regarding their intent to acquire, develop, and convey the Parcel. HHDC
and Roldán together and the City separately moved to dismiss all counts with prejudice. The circuit
court granted the motions and dismissed all counts with prejudice on December 11, 2019 for the
reasons stated on the record.
¶ 19 Vista North filed a motion to reconsider and for leave to file an amended complaint on
January 10, 2020. The court denied the motion in a written opinion and order on August 27, 2021.
The circuit court first summarized the basis for its prior ruling on the motions to dismiss. It
previously dismissed Count I, the declaratory judgment, on the grounds that rather than seeking to
declare the parties’ rights, Vista North was seeking to force Defendants to convey the parking lot,
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and no pleading of declaratory judgment could be properly stated to obtain such relief. Counts II
and III, specific performance and breach of contract as to HHDC, were dismissed because the court
found that no contract required HHDC to purchase, develop, and convey the parking lot. Counts
IV for a Municipal Code violation and Count V for common-law fraud were dismissed because
the court found that the record did not contain any evidence of misrepresentation made by HHDC.
All counts were dismissed with prejudice, as the circuit court found that the plain language of all
of the Condominium Documents 1 could never give rise to any of Vista North’s causes of action,
and because of the issue with the relief sought under the declaratory judgment count.
¶ 20 Separate from the court’s granting the motions to dismiss pursuant to Section 2-615, the
court found that the complaint was untimely. The parties dispute whether the appropriate statute
of limitations is the four-year period for actions based on acts or omissions in construction (735
ILCS 5/13-214(a)) or the five-year catch-all period (735 ILCS 5/13-205). They also dispute the
date from which the limitations period should run, putting forth the date that the development of
the Condominium was completed (some time in 2002); the date marking three years after the
Declaration was recorded, during which HHDC reserved the right to add the additional land for a
parking lot (October 2005); the date of the Roldán Letter (April 26, 2010); the date of “spring
2011” Roldán mentioned in that letter; or the date of the demand letter sent by Vista North’s
counsel (December 8, 2015). Vista North further argued that HHDC and Roldán made repeated
assurances meant to lull Vista North into believing that they intended to acquire and develop the
Parcel into a parking lot, and that this behavior either constituted fraudulent concealment or
extended the limitations period under the discovery rule.
1
“Condominium Documents” refers to, collectively, the Property Report, the Purchase Agreement, and Declaration.
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¶ 21 The circuit court first rejected the possibility of the December 8, 2015 starting date, stating
that, even if Vista North sufficiently pled that HHDC and Roldán’s assurances concealed the
existence of its causes of action, this theory relied on the defendants’ actions, while the 2015 letter
was sent by Vista North. The court stated that a plaintiff cannot extend the running of the
limitations period by sending a demand letter. The court further found that Vista North’s claims
of concealment and lulling were unsupported by the facts. The court identified the April 26, 2010
date of the Roldán Letter as the latest possible action by the defendants as alleged by Vista North,
and determined that even if Vista North was able to plead that the letter created any obligations,
they would fall outside of the fully integrated Condominium Documents, which state that HHDC
and Roldán could not alter their obligations.
¶ 22 The court nevertheless went further, and noted that even if it were to take Roldán’s
statement that construction of the parking lot could be completed by spring 2011 if the necessary
capital and permits were secured as the creation of a binding promise, Vista North could not claim
that it was not aware of the fact that no parking lot had been developed by the end of spring 2011.
The existence, or lack thereof, of a parking lot on the Parcel was openly visible and could not be
concealed. Therefore, taking the end of spring 2011 as the latest possible date that Vista North
pled as a possible starting point for the running of the limitations period, the complaint was still
untimely. Since the court rejected all claims of concealment or activity tolling the limitations
period pursuant to the discovery rule, the final remaining question was whether the four-year or
five-year statute governed Vista North’s claims. However, the court did not need to decide that
issue, as the complaint—filed on July 1, 2019—was filed well past either deadline.
¶ 23 Turning to the question of amendment, the circuit court determined that the Property
Report, Declaration, and Purchase Agreement were clear on their faces and created no obligation
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on HHDC and Roldán to develop a parking lot. In its prior ruling granting the motions to dismiss,
the court allowed Vista North to seek leave to amend the complaint to propose any other theory
under which it could plead a cause of action. On Vista North’s motion to reconsider or leave to
amend, the court reviewed the new theories advanced in the FAC. In the fact section, the FAC
places greater emphasis on the language of the Ordinance, as cited above, and adds additional
communications between the parties between the years of 2005 and 2016, also detailed above. The
new complaint now alleges that the last act by HHDC was the January 3, 2016 email from HHDC’s
counsel allegedly promising to follow up with a substantive response to Vista North’s demand
letter. It alleges that the last act by the City occurred on August 17, 2016, when it indicated that it
was not authorized to convey the Parcel to Vista North because of the erroneous PIN and street
address listed in the 2002 Ordinance.
1111
¶ 24 As for the amended counts, Count I still seeks a declaratory judgment stating that HHDC
was obligated to obtain and convey the Parcel. Count II is still for specific performance of the
Property Report, Declaration, Purchase Agreement, and Ordinance. Count III, no longer pled in
the alternative to Count II, is still for breach of contract and seeks money damages in the amount
by which the Condominium’s value is diminished because of the lack of parking. Count IV is a
new count for breach of the implied covenant of good faith and fair dealing against HHDC for its
failure to acquire, develop, and convey the Parcel as a parking lot. Count V is the same as the
previous Count IV, alleging that the City violated the Ordinance. Count VI is the previous Count
V, for common law fraud against HHDC and Roldán. Count VII is a new count against the City
for violation of the Ordinance, and asks that the City convey the Parcel directly to Vista North,
arguing that the Ordinance contains an implied private right of action for Vista North. Finally,
Count VIII is a new count brought against the City for a writ of mandamus, also asking that the
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City convey the Parcel to Vista North. Vista North theorized that because the Purchase Agreements
that would go to individual buyers incorporated the Declaration, and the Declaration refers to
HHDC’s obligation to obtain the Parcel, and that obligation is premised on the Ordinance, the
Ordinance is therefore incorporated into the Purchase Agreements. Vista North also pled that the
Condominium Property Act at 765 ILCS 605/18.2 (“Condominium Act”) put the Condominium
association in the position of the developer after the former’s creation.
¶ 25 The circuit court held that the proposed FAC failed for substantially the same reasons as
the original complaint, and found that no set of facts, even with the new factual allegations, would
entitle Vista North to recovery under the theories it put forward. Regarding the new alleged facts,
the court noted that they were all available to Vista North at the time of its original complaint, and
the FAC was an attempt at a “second bite of the pleadings apple.” The court further noted that
Vista North’s motion to reconsider did not challenge the court’s dismissal of its original complaint,
only challenging its dismissal with prejudice, and Vista North’s failure to defend its original
pleading gave the court no reason to reconsider its dismissal. Because the FAC kept the same
counts as in the original complaint, the court’s decision to dismiss those counts was unchanged.
¶ 26 As for Vista North’s theory regarding obligations created by the Ordinance, upon which
Vista North’s two new counts were based, the court determined that this interpretation was not
supported by the plain language of the Ordinance. Despite Vista North’s emphasis of the language
stating that “the City shall also convey to Developer that certain parcel,” the court noted that in
context, all that the Ordinance did was authorize the sale of the Parcel, and the obligation on the
City to convey it would only occur if HHDC sought a conveyance, and if certain conditions, such
as zoning approval, were met. However, nothing mandated that the sale occur. Next, the court
rejected Vista North’s theory that it was a party in interest to the Ordinance. HHDC did eventually
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attempt to acquire the Parcel from the City. The Ordinance only required that the City accept the
sale and convey the land to HHDC, not Vista North. The court stated that it was known at the time
of writing the Ordinance that the land was intended for a parking lot for the Condominium, and
language could have been added to make the Condominium association a beneficiary of the
conveyance.
¶ 27 The court also rejected Vista North’s attempt to plead that it succeeded to any rights of
HHDC upon its formation, which the court explained was a misinterpretation of the Condominium
Act. Vista North relied on the provision stating that a condominium developer acts as the board
prior to the election of a unit owner board to allege that the board succeeded to the rights of the
developer upon its creation. See 765 ILCS 605/18.2(a). The court stated that the statute granted
the developer the authority to act as the board up until the election of the first board, and this did
not conversely transfer any of the developer’s authority to the new board. Therefore, there was no
basis in the Ordinance for Vista North to claim an obligation was created on the City to Vista
North.
¶ 28 Next, the circuit court turned to Vista North’s attempts to plead that the defendants’
misrepresentations and concealment delayed the running of the limitations period. The court found
the proposed new factual allegations detailing the long history of communications between the
parties to show only that HHDC and Roldán believed that they would eventually be able to develop
a parking lot, and their failure to do so did not conceal or misrepresent their efforts to fulfill any
obligation that Vista North claims they had. The court reiterated that the Condominium Documents
did not contain any binding obligation on the defendants to develop and convey a parking lot, and
that the lack of a parking lot on the Parcel could not be concealed because it was out in the open
for anyone to see.
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¶ 29 Regarding the timeliness issue, Vista North proposed a new theory for which limitations
period applied to its claims, arguing that it should be the ten-year period for breach of contract
claims where no date of performance is specified. 735 ILCS 5/13-206. The circuit court rejected
this argument, stating that while the Declaration did not create any obligations, it does provide a
deadline for which HHDC reserved the right to obtain and develop land for a parking lot, which
was three years from the date of recording the Declaration. The deadline would therefore have
been October 24, 2005, and even a ten-year limitations period would make Vista North’s complaint
untimely. Furthermore, the court noted that this was a new legal argument improperly raised on a
motion for reconsideration. Otherwise, the circuit court did not change its analysis of the timeliness
issue, finding that while the four-year construction statute applied, there was no possible date from
which that period could have started to run that would cure the untimeliness of the pleadings.
¶ 30 Vista North now appeals from the circuit court’s order, arguing that the FAC cured any
defects the circuit court found in its original complaint and it was not clearly apparent that no set
of facts could entitle Vista North to recovery.
¶ 31 ANALYSIS
¶ 32 Standard of Review
¶ 33 A Section 2-619.1 motion allows for a combined motion to dismiss under Sections 2-615
and 2-619, as well as motions for summary judgment under Section 2-1005. Johnson v. Matrix
Financial Services Corp., 354 Ill.App.3d 684, 688 (1st Dist. 2004).
¶ 34 A Section 2-615 motion to dismiss presents the question of whether the plaintiff has pled
sufficient facts in the complaint to entitle him to relief if proven. Powell v. American Service Ins.
Co., 2014 IL App (1st) 123643, ¶ 13. In reviewing a dismissal pursuant to Section 2–615, all well-
pleaded facts in the complaint are taken as true and are construed in the light most favorable to the
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plaintiff. Id. A dismissal pursuant to Section 2-615 is only proper where it clearly appears that no
set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Id.;
Casualty Insurance Co. v. Hill Mechanical Group, 323 Ill.App.3d 1028, 1033 (1st Dist. 2001). A
plaintiff cannot simply rely upon conclusions of law or fact unsupported by specific factual
allegations. Powell, 2014 IL App (1st) 123643, ¶ 13; Grund v. Donegan, 298 Ill.App.3d 1034,
1039 (1st Dist. 1998). However, the complaint is to be liberally construed, viewed in the light most
favorable to the plaintiffs. Fox v. Seiden, 382 Ill.App.3d 288, 294 (1st Dist. 2008). The standard
of review for a dismissal under Section 2-615 is de novo. Powell, 2014 IL App (1st) 123643, ¶ 13.
¶ 35 An order of dismissal pursuant to a Section 2-619 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-619 (West 2019)) is similarly reviewed de novo. Porter v. Decatur Memorial
Hosp., 227 Ill. 2d 343, 352 (2008). The Section 2-619 motion admits as true all well-pleaded
facts, all reasonable inferences to be drawn from the facts, and the legal sufficiency of the claim.
Id. In addition, all pleadings and supporting documents must be construed in the light most
favorable to the non-moving party. Id. A dismissal of a pleading pursuant to Section 2-619 is
based on certain defects or defenses that defeat the claim. Richter v. Prairie Farms Dairy, Inc.,
2016 IL 119518, ¶ 18. Section 2-619(a)(5) requires dismissal when “the action was not
commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5).
¶ 36 When a court finds the allegations insufficient under either the Section 2-615 or Section
2-619 standard, it may allow the plaintiff to amend the complaint as appropriate. If the plaintiff is
able to state a cause of action by amending the complaint, a court abuses its discretion if it
dismisses the claims with prejudice, rather than allowing for amendment. Loyola Academy v. S &
S Roof Maintenance, Inc., 146 Ill.2d 263, 272-73 (1992); Brown Leasing, Inc. v. Stone, 284
Ill.App.3d 1035. A complaint should not be dismissed for failure to state a cause of action
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“unless it clearly appears that no set of facts could be proved under the pleadings which would
entitle plaintiff to relief.” Rudnick v. Vokaty, 84 Ill.App.3d 1003, 1007-08 (1st Dist. 1980). We
review a ruling on a motion for leave to amend the pleadings on an abuse of discretion standard.
Loyola Academy, 146 Ill.2d at 273. While this is a deferential standard, where the proposed
amendment would be futile, denial of leave to amend is not an abuse of discretion. Malacina v.
Cook County Sheriff’s Merit Board, 2021 IL App (1st) 191893, ¶ 40.
¶ 37 The purpose of a motion to reconsider is to bring to a court's attention: (1) newly
discovered evidence; (2) changes in the law; or (3) errors in the court's previous application of
existing law. River Plaza Homeowner's Ass’n v. Healey, 389 Ill.App.3d 268, 280 (1st Dist.
2009). It is not proper to use a motion to reconsider to raise a new legal theory or factual
argument that was available prior to the hearing on the motion from which the motion to
reconsider arises. Id. We use an abuse of discretion standard for reviewing a trial court’s denial
of a motion to reconsider that is based on new matters, including additional facts or new legal
theories that were not presented during the prior course of proceedings. Muhammad v.
Muhammad-Rahmah, 363 Ill.App.3d 407, 415 (1st Dist. 2006). When the denial is based only on
the trial court's application of existing law, the standard is de novo. Id. Here, Vista North’s
motion was based on new matters, and we apply the abuse of discretion standard.
¶ 38 Breach of Contract2
¶ 39 Vista North's breach of contract claim and related claims against HHDC and Roldán hinge
on the existence of an obligation owed by the developers to Vista North to develop and convey a
2
We reiterate that, as the circuit court noted, Vista North failed to defend its original pleadings in its motion to
reconsider, relying on the addition of newly-alleged facts regarding the language of the Ordinance and additional
communications between the parties, all of which was available to Vista North prior to its motion and can properly
be disregarded on a motion to reconsider. Therefore, we could end our analysis there, to the extent that the proposed
FAC substantially restates the original claims, and determine that Vista North has waived its right to attempt to
defend those pleadings on appeal. However, we may affirm the circuit court’s ruling on any valid basis, and we will
continue in reviewing the pleadings.
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parking lot. The relevant documents forming a valid and enforceable contract, according to Vista
North, are the Declaration and Property Report. Specifically, Vista North points to Paragraph 4 of
the Property Report, which is a portion of the narrative section laying out the developer's "inten[t]
to redevelop *** one outdoor parking lot containing at least twenty-two (22) Parking Units" and
further stating that the developer "has several sites under consideration and will be adding the
parking lot to the Condominium after conversion of the building to condominium and submission
of the building to the Condominium Act." Vista North also cites to Paragraphs B(4), B(5), and
B(9) of the Statutory Disclosures portion of the Property Report, an argument it makes for the first
time on appeal and does not include in either the underlying motion or proposed FAC. Those
sections, respectively, state that the Condominium property improvements consist of the
Condominium building and "a parking lot;" that the parking lot is "located to the West of the
Parcel;" and that a "purchaser may purchase more than one Residential Unit and Parking Unit (or
any combination thereof) if the Developer in its sole discretion chooses to sell more than one Unit
to the purchaser." Defendants, as well as the circuit court in its order, add to these citations Section
R of the Property Report, cited in relevant part above, which states that the developer was
negotiating with the City to obtain property for a parking lot, and "in the event" that it acquired
such property, "the land will be added to the Declaration and improved as a parking lot."
¶ 40 Vista North’s selective quoting from the Property Report is an attempt to create a meaning
from the document that simply isn’t there, when all parts of the report are read in context. See
Gallagher v. Lenart, 226 Ill.2d 208, 233 (2007) (“[B]ecause words derive their meaning from the
context in which they are used, a contract must be construed as a whole, viewing each part in light
of the others. The intent of the parties is not to be gathered from detached portions of a contract or
from any clause or provision standing by itself.”) (internal citations removed); Morningside North
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Apartments I, LLC v. 1000 N. LaSalle, LLC, 2017 IL App (1st) 162274, ¶ 15 (“We construe the
contract as a whole, viewing each provision in light of the other provisions. We do not construe a
contract by viewing a clause or provision in isolation”) (internal citations removed). When viewing
the Property Report in its entirety, it is clear from its face that, as far as the parking lot is concerned,
the document begins with a statement of HHDC’s intent to acquire and develop land for a parking
lot. It cannot reasonably be read as an obligation to actually do so. If that land is acquired and
developed, the document contains the process for it to be added to the Condominium. Furthermore,
nothing in the record suggests that HHDC’s statement of intent was misleading or fraudulent in
any way—the facts show that HHDC did make efforts to acquire the Parcel for development as a
parking lot, including selecting the Parcel from among the possible properties, obtaining a zoning
variance from the City, and attempting to acquire the Parcel. The developer was ultimately
unsuccessful because the City determined it lacked the authority to convey the land pursuant to
the Ordinance, due to an erroneous PIN and address listed in the Ordinance.
¶ 41 The remaining citations to various other portions of the Property Report that reference a
parking lot, when read as part of the whole document and in their proper context, are statements
describing certain features and elements of the parking lot, or detailing the conditions that must be
met for HHDC to be able to acquire, develop, and convey the land, but not statements requiring
HHDC to develop a parking lot. Sections B(4), B(5), and B(9) are part of the disclosures required
by the Condominium Act—Vista North overreaches attempting to find a binding promise by
HHDC to acquire a parking lot here. Certainly, if the Condominium did have a parking lot, this is
the information that HHDC must disclose about it, but that is all. Section R, meanwhile, plainly
states that HHDC was negotiating with the City to acquire the Parcel, a statement that is neither
contradicted by any facts in the record, nor a promise to acquire the Parcel. The section continues,
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making it even clearer that the procurement of a parking lot is merely a conditional statement, not
an obligation: “In the event the Developer obtains this property from the City of Chicago, the land
will be added to the Declaration and improved as a parking lot” (emphasis added).
¶ 42 If there are any inconsistencies between the Property Report and the Declaration—an
exhibit to the Property Report—the former states that the exhibits shall govern. Therefore, even if
any of the provisions that Vista North points to in the Property Report could reasonably be
construed as obligating HHDC to deliver a parking lot, the Declaration makes it clear that HHDC
had discretion to do so, but did not have to. To summarize the relevant parts, it states: that HHDC
“reserves the right to add” the land that, “if added will be used to provide” off-street parking for
Condominium owners; that this additional land, “if added to the Property,” will meet certain
conditions for how the parking lot should be constructed; and that the aforementioned provisions
“do not bind or obligate the Developer to exercise the option to add the Additional Land to the
Declaration. *** Any obligation to add the Additional Land is subject to Developer’s ability to
acquire the Additional Land from the City of Chicago upon terms acceptable to Developer, in its
sole and absolute discretion.” The Purchase Agreement is also an exhibit to the Property Report,
and it states that HHDC “reserves the right in its sole discretion” to add land for off-street parking
to the Condominium up until three years after the recording of the Declaration.” The Purchase
Agreement further provided that “neither Seller nor its agent or broker has many any promise or
representation concerning off-street parking and [] Seller shall have no obligation whatsoever to
add off-street parking to the Condominium,” with “Seller” referring here to the developer.
¶ 43 Read as a whole, the unambiguous language on the face of the documents gives HHDC the
option, but not the obligation, to acquire land and turn it into off-street parking for the
Condominium; furthermore, that discretion extends only to three years after the Condominium
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Declaration’s recording. That time passed on October 24, 2005. An agreement in which the
promisor does not actually promise to do anything, or where the promised performance is optional,
contains only illusory promises not binding upon the promisor. DiCosola v. Ryan, 2015 IL App
(1st) 150007, ¶ 20. Such is the case here.
¶ 44 Vista North’s final attempt to plead the existence of a contractual obligation is the
Ordinance. As an initial note, Vista North acknowledges that in order to maintain a claim against
the City for violation of the Ordinance, assuming that the Ordinance created an obligation on the
City to sell the Parcel, Vista North must overcome the fact that the Ordinance speaks to the sale of
the land to HHDC, not Vista North. We agree with the circuit court's analysis of Vista North's
argument that, pursuant to the Condominium Act, it succeeded to the rights of the developer upon
the formation of a Condominium board.
¶ 45 Vista North notes that a developer "acts as an agent or on behalf of the owners of units of
an unincorporated association from the date of declaration until the election of the initial board."
Ebert v. Nassau Terrace Condominium, Inc., 145 Ill.App.3d 465, 472 (1st Dist. 1986). However,
this does not mean that the board can retroactively assume the rights held by the developer under
any statute or, in this case, ordinance. As we explained above in interpreting the Condominium
Act, it "provides that the developer is to act as the interim board of managers on behalf of the
Association from the date of declaration until the election of the initial board. The Act further
provides that the developer is to have the same duties, obligations, rights and privileges as the
board of managers, and is to act as a fiduciary of the unit owners." Glickman v. Teglia, 388
Ill.App.3d 141, 150 (1st Dist. 2009); 765 ILCS 605/18.2(a). The developer's authority and
obligation to act as the board ends upon the formation of a board—Vista North has not provided
us with any authority for its position that this provision of the Act was intended to specifically
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broaden the rights of the board. The section speaks to the position of the developer, in relation to
the creation of a board. That is all. We cannot infer a meaning in the statute that does not exist in
the text. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 24 ("When the statutory
language is plain and unambiguous, we may not depart from the law's terms by reading into it
exceptions, limitations, or conditions the legislature did not express, nor may we add provisions
not found in the law.") Having established that Vista North cannot claim any rights or authority of
the developer, we need not further discuss the elements of an implied right of action.
¶ 46 Even if Vista North could establish that the Ordinance provided it with an implied private
right of action, it misstates the purpose of the Ordinance. Rather than obligating the City to sell
the Parcel to HHDC, it merely authorized the City to do so. The Ordinance clearly states that "the
City is *** authorized to convey the *** Parcel." This cannot be read as creating a requirement.
Vista North cites a portion that states in part, "Said parcel shall be developed for use as parking by
the purchasers of condominium units." However, the plaintiff again is being selective in its quoting
of the relevant text. The Ordinance does indeed describe the purpose of the Parcel, namely, to be
developed into a parking lot for buyers of Condominium units. That does not require the City to
provide that land, for much the same reasons that we have already discussed in our interpretation
of the Condominium Documents. At best, it obligates HHDC to develop the Parcel as a parking
lot, if HHDC is first able to acquire the Parcel from the City, which it was not. The same section
that Vista North relies upon for the supposed obligation reads, “The Mayor or his proxy is
authorized to execute *** a quitclaim deed conveying to Developer the Parking Lot Parcel,” and
another provision similarly states that the City is “authorized to convey” the Parcel. Vista North
does not point to any mandatory language in the Ordinance that would provide either Vista North
or HHDC a right to sue for breach of the terms of the Ordinance if no sale occurred. It also fails to
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support its contention that the language is at least ambiguous as to whether it creates an obligation,
and should not be resolved in the defendants’ favor on a motion to dismiss. This might be true,
had Vista North directed us to any language that, when read in the context of the whole Ordinance,
requiring the City to make the sale.
¶ 47 Additionally, we note that the City was within its rights to reject a sale that did not meet
certain conditions, which is what ended up happening in this case—in 2016, City representatives
stated that the City was not authorized to sell the land due to an error in the PIN and address listed
for the Parcel in the Ordinance. Vista North points to nothing in the Ordinance that required the
City to sell the Parcel regardless of whether the appropriate procedure was followed or the City’s
usual requirements for conducting a property sale were met.
¶ 48 In summary, the Ordinance authorized the City to sell the Parcel but did not override any
conditions that the City had in place in order to convey its property. That sale would have been to
the developers, not Vista North. Had the sale occurred, HHDC was to turn the land into a parking
lot for the Condominium and for no other purpose. Events never reached that point, as the sale did
not occur. Finally, the Condominium Act did not retroactively grant the newly-formed
Condominium board the right to step in for HHDC in any contractual relationships. Vista North is
not able to plead a claim against the City for breach of the Ordinance, or to refer to any Ordinance-
based obligations on HHDC to connect to its alleged breach of contract based on the Condominium
Documents. The proposed FAC does not cure the original breach of contract claims, and the facts
in the record do not support the proposed added count against the City for breach of contract.
¶ 49 Breach of Implied Covenant of Good Faith and Fair Dealing
¶ 50 Vista North added a new count in the proposed FAC against HHDS for a breach of the
implied covenant of good faith and fair dealing, claiming that even if the Condominium
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Documents granted HHDC discretion with respect to developing and conveying a parking lot, the
exercise of that discretion was governed by the implied covenant. HHDC allegedly breached that
covenant by failing to provide the parking lot. When a party is given broad discretion in performing
the terms of a contract, the implied covenant of good faith and fair dealing requires that this
discretion be exercised “reasonably and with proper motive, not arbitrarily, capriciously, or in a
manner inconsistent with the reasonable expectations of the parties.” Mid-West Energy
Consultants, Inc. v. Covenant Home, Inc., 352 Ill.App.3d 160, 165 (1st Dist. 2004) (quoting
Resolution Trust Corp. v. Holtzman, 248 Ill.App.3d 105, 112 (1st Dist. 1993)). Vista North claims
that HHDC breached that covenant by continuing to make assurances that it was working on
acquiring the Parcel and intended to turn it into a parking lot, and ultimately failing to follow
through on that promise. Vista North again relies on the Condominium Documents and the
Ordinance, in the latter case referencing the provisions stating that the Parcel shall be used as a
parking lot for the Condominium; we have discussed Vista North’s arguments for the existence of
an obligation on the developers in the previous section.
¶ 51 The covenant of good faith and fair dealing cannot be used to create obligations where
none exist by the terms of the contract as written. See Suburban Insurance Services, Inc. v. Virginia
Surety Co., Inc., 322 Ill.App.3d 688, 693 (1st Dist. 2001) (“The covenant of good faith and fair
dealing does not allow a party to read an obligation into a contract that does not exist”); see also
Northern Trust Co. v. VIII South Michigan Associates, 276 Ill.App.3d 355, 367 (1st Dist. 1995)
(stating the same). Nor can the covenant override the express terms of the contract. See Resolution
Trust Corp, 248 Ill.App.3d at 113 (express covenants abrogate the operation of implied covenants,
including the covenant of good faith and fair dealing). Vista North is correct that where a party has
discretion in how to perform an obligation created by the contract, it must exercise that discretion
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in a manner consistent with the reasonable expectations of the parties, pursuant to the implied
covenant. See Northern Trust Co., 276 Ill.App.3d at 367. However, that is only where the
contract’s terms create an obligation. The discretion afforded to HHDC by the Condominium
Documents did not require it to ever provide a parking lot. To allow Vista North to maintain its
cause of action under this theory would be to use the implied covenant to modify the terms of the
contract. As for HHDC’s obligations to provide a parking lot under the Ordinance, we restate our
previous discussion—any conditions placed on the Parcel once HHDC acquired it, first required
the City to sell the property to the developer. Nothing in the Ordinance placed a duty on HHDC to
purchase the Parcel.
¶ 52 Furthermore, none of the facts Vista North pled detailing HHDC’s communications of
promises and assurances display unreasonable, arbitrary, or capricious conduct. HHDC was
negotiating with the City for some time about acquiring the Parcel, and so there is no basis to
believe that any expression on behalf of HHDC to convey a parking lot was not made in good
faith. Vista North’s main evidence is Roldán’s letter stating that construction could occur in spring
2011 was clearly conditioned on obtaining funds and a zoning permit. It would not be reasonable
for Vista North to believe that this was a guarantee from the developer to deliver the lot. The
Condominium Documents also make it clear that there were certain conditions outside of HHDC’s
hands when it came to acquiring City property. Therefore, the circuit court properly rejected Vista
North’s attempt to add this cause of action.
¶ 53 Declaratory Judgment
¶ 54 In its proposed FAC, Vista North maintained its original count for declaratory judgment,
requesting a declaration from the court that HHDC is obligated to acquire the Parcel from the City
and convey it to Vista North. This argument is based on the same facts and theories discussed
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above, regarding alleged obligations on HHDC and the City under the Condominium Documents
and the Ordinance. As those counts were properly dismissed, the underlying claim for declaratory
judgment fails for the same reasons. See Seip v. Rogers Raw Materials Fund, L.P., 408 Ill. App.
3d 434, 447 (1st Dist. 2011) (dismissing declaratory judgment claim found to be reiteration of
other dismissed claims).
¶ 55 Specific Performance and Writ of Mandamus
¶ 56 Vista North’s count seeking specific performance of the Condominium Documents and the
Ordinance by HHDC was properly dismissed for the same reasons as its breach of contract counts.
See Hoxha v. LaSalle National Bank, 365 Ill.App.3d 80, 85 (1st Dist. 2006) (To be entitled to
specific performance, plaintiff must prove, among other factors, the existence of a valid, binding,
and enforceable contract.)
¶ 57 Similarly, Vista North’s newly-proposed count seeking a writ of mandamus against the
City, asking the court to compel conveyance of the Parcel, would fail because the Ordinance did
not give Vista North a clear, affirmative right to relief upon which the writ can be based. See Ryan
v. City of Chicago, 2019 IL App (1st) 181777, ¶ 13.
¶ 58 Common-Law Fraud and Municipal Code Violation
¶ 59 Both versions of Vista North’s pleadings contained a count of common-law fraud against
HHDC and Roldán. The elements of common-law fraud are: “(1) a false statement of material fact
by the defendant, (2) who knew that the statement was false (3) and intended to induce the plaintiff
to act in reliance upon the statement, (4) the plaintiff reasonably relied upon the truth of the
statement, and (5) the plaintiff suffered damage as a result of action in reliance upon the statement.”
Castlerigg Master Investments, Ltd. v. AbbVie, Inc., 2021 IL App (1st) 200527, ¶ 20. Fraud-based
claims must meet a high standard of specificity, and require “specific allegations of facts from
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which fraud is the necessary or probable inference.” Chatham Surgicore, Ltd. v. Health Care
Service Corp., 356 Ill.App.3d 795, 803-04 (1st Dist. 2005). A promise to perform some future act,
made with the intent to not perform that act, is not actionable fraud unless that false promise “is
part of a scheme or device to defraud another of her property.” Id. at 804; see also Merrilees v.
Merrilees, 2013 IL App (1st) 121897, ¶ 41 (“[A]ssurances as to future events are generally not
considered misrepresentations of fact.”)
¶ 60 Vista North’s other count of fraud alleges that HHDC and Roldán violated the Chicago
Municipal Code, § 13-72-030, which states, “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."
¶ 61 In both versions of its complaint and pertaining to both the counts of fraud, Vista North
pleads that HHDC and Roldán made the following specific misrepresentations: (a) that the
Condominium would include an outdoor parking lot of at least twenty-two spots; (b) that HHDC
would add the parking lot to the Condominium after conversion of the building and submission of
the building to the Condominium Act; (c) that all parking spaces would be limited common
elements assigned for use by specific residential units and indicated as parking units on the Plat of
Survey; and (d) that the parking lot would consist of a striped parking lot with appropriate lighting,
fencing, and landscaping in compliance with the Building Code of the City of Chicago. All of
these alleged promises come from the Condominium Documents, and, as we have previously
stated, only prescribed conditions on the conveyance and development of the parking lot—the
crucial missing element, whose absence is fatal to Vista North’s pleadings, is the lack of any
obligation to construct the parking lot in the first place.
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¶ 62 The documents make it clear that HHDC intended to—but did not contractually promise
to—produce a parking lot for the Condominium, and that it had the discretion to do so. If it had
acquired the Parcel and developed it into a parking lot, it indeed would have had to add at least
twenty-two units, proper fencing and lighting, and all other requirements Vista North identifies.
While HHDC’s ultimate intentions as to the parking lot make no difference to the survival of Vista
North’s fraud count, we reiterate that it did attempt to provide a parking lot, and therefore, it did
not misrepresent its willingness to procure the Parcel in the future. Finally, Vista North cannot
show that it “could not have discovered the truth through a reasonable inquiry or inspection” in
relying on the alleged misrepresentations. Pack v. Maslikiewicz, 2019 IL App (1st) 182447, ¶ 95.
As the developers and the circuit court note, the condition of the Parcel was openly visible to Vista
North; it would not have been reasonable for it to believe that HHDC had developed a parking lot
on the Parcel, whether by October 2005, spring 2011, or any other date. Therefore, the circuit court
properly dismissed the fraud count and denied Vista North’s attempt to amend.
¶ 63 Statute of Limitations
¶ 64 Having disposed of all of Vista North’s original and proposed causes of action, the circuit
court then found that Vista North’s complaint was untimely, under any of the plausible limitations
periods and starting dates put forth by the parties. The factual allegations, both those in the original
complaint and added in the proposed FAC, are detailed above. The parties disagree as to which
limitations period applies to the actions involved in HHDC’s alleged obligation to acquire the
Parcel from the City, develop it into a parking lot, and convey it to Vista North. fall under the
definition of an act or omission in the design, planning, or management of construction. The
options originally put forward were the four-year construction statute for “act[s] or omission[s]
*** in the design, planning, supervision, observation or management of construction, or
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construction of an improvement to real property” (735 ILCS 5/13-214(a)) or the five-year catch-
all period (735 ILCS 5/13-205). In its motion to reconsider or amend, Vista North presents a new
theory—the ten-year period for a breach of contract claim where the contract does not specify the
time for performance. See 735 ILCS 5/13-206, Wilmette Partners v. Hamel, 230 Ill. App. 3d 248,
257 (1st Dist. 1992) (“Where a contract does not specify the time for performance, the law implies
a reasonable time.”) The parties also dispute the date from which the limitations period began to
run, with Vista North claiming that HHDC and Roldán delayed that starting date by lulling Vista
North into the belief that they were still working on delivering a parking lot.
¶ 65 We agree with the circuit court that it is unnecessary to determine either the exact starting
date or which statute applies in this matter. We reject the proposed ten-year period for breach of
contract because, even if the contract in this case created an obligation on the defendants, it did
contain a deadline for performance. The Declaration states that HHDC “reserves the right to add
the [Parcel] within three (3) years from the date of recording of the Declaration.” The Declaration
was recorded on October 24, 2002, meaning that HHDC reserved this right until October 24, 2005.
As previously stated, the Condominium Documents are fully integrated and we need not look
beyond them to determine that this was the date, if any, by which HHDC was required to provide
a parking lot. Finally, we also agree with the circuit court that this new argument regarding the
statute of limitations was improperly brought on a motion for reconsideration. Evanston Insurance
Co. v. Riseborough, 2014 IL 114271, ¶ 36; Healey, 389 Ill.App.3d at 280.
¶ 66 As we have concluded that there were no obligations created by the Condominium
Documents or the Ordinance, and no fraudulent concealment, lulling, or any other actions that
would justify the application of the discovery rule to the limitations period, any activity that
occurred within either four or five years of the July 1, 2019 filing date does not constitute the
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starting date from when Vista North’s causes of action accrued. Additionally, as previously stated,
all of the newly alleged facts regarding communications between the parties extending into 2016
were available to Vista North at the time of its original pleading, and raising them for the first time
on a motion to reconsider is improper. Regardless, they would not cure Vista North’s complaint.
None of the remaining possible dates, which span from October 24, 2005 to the end of spring 2011,
would make the complaint timely. While we sympathize with the condo owners, we are obligated
to analyze the law as it is. Therefore, in addition to finding that Vista North cannot plead a valid
cause of action under any set of facts in the record, we also affirm the circuit court’s decision to
dismiss the complaint and deny the motion to reconsider or for leave to amend, pursuant to 735
ILCS 5/2-619(a)(5).
¶ 67 CONCLUSION
¶ 68 For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.
¶ 69 Affirmed.
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