Schenker v. Chicago Title & Trust Co.

• Citation: 128 Ill.App.3d 488,83 Ill.Dec. 844,470 N.E.2d 1264
• Decision Date: 07 November 1984
• Docket Number: No. 83-2558,83-2558
• Parties: , 83 Ill.Dec. 844 Helen SCHENKER, Plaintiff-Appellant, v. CHICAGO TITLE & TRUST COMPANY and David C. Eckles, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1264

470 N.E.2d 1264

128 Ill.App.3d 488, 83 Ill.Dec. 844

Helen SCHENKER, Plaintiff-Appellant, v. CHICAGO TITLE & TRUST COMPANY and David C. Eckles,

Defendants-Appellees.

No. 83-2558.

Appellate Court of Illinois,

First District, Second Division.

Nov. 7, 1984.

Dennis M. O'Brien, Chicago, for plaintiff-appellant.

Mark A. Stang, Burke, Bosselman, Freivogel, Weaver, Glaves & Ryan, Chicago, for defendants-appellees.

DOWNING, Justice:

Plaintiff, Helen Schenker, asks us to review the trial court's denial of her motion to vacate its earlier dismissal of her complaint with prejudice, or in the alternative, for leave to file a second amended complaint.

Plaintiff alleges the following facts in her amended complaint. Plaintiff was, prior to 1978 and until about April 15, 1980, the owner of the premises commonly known as 163 West Burton Street and 1447 North Wells Street in Chicago. Chicago Title & Trust Company as Trustee under Trust # 1073079 was the legal title holder of property known as 170 West Burton Street, and David C. Eckles (hereinafter referred to as "defendant") was the beneficiary of the trust. Beginning in late spring of 1978 and continuing into the summer of that year, defendant approached plaintiff for the purpose of requesting that he act as plaintiff's agent in the care and maintenance of her properties. Defendant represented to plaintiff that he had great skill and experience in matters of real estate care and maintenance and knew that plaintiff was unskilled and inexperienced in these areas.

During this period of time, defendant was remodeling his aforementioned premises and engaged the same tradesmen and architect who were working on his property to work on plaintiff's. Plaintiff alleged that defendant demanded and received credits or other payments from the tradesmen toward the remodeling of his property. Knowing that plaintiff's husband was ill and that plaintiff had borrowed $100,000 for hospital bills and used her properties as collateral, defendant nonetheless directed the workers to "gut" her buildings under the pretext of converting the property into salable units even though plaintiff had no commitment for financing such an extensive conversion. In this regard, defendant acted without plaintiff's knowledge or authority.

Plaintiff further averred that defendant knew that she had listed her property for sale at $295,000; however, as a result of defendant's conduct, plaintiff lost rental income from her property and was forced to sell it to repay the loans and received only $125,000 as the sales price. Plaintiff claimed she had no adequate remedy at law.

In Count I of her amended complaint, plaintiff averred that defendant acted as her agent. In Count II, she claimed that a fiduciary relationship had been established between them. Plaintiff requested that a constructive trust be impressed on defendant's real property in favor of plaintiff "for the money wrongfully diverted which was used to enhance and improve defendant's property." In Count III, plaintiff alleged that defendant negligently failed to fulfill his fiduciary duties and prayed for a judgment against defendant in the amount of $190,000. In the final count, plaintiff claimed that defendant had made various representations to plaintiff which were false and known to be false by defendant and that a fraudulent scheme was perpetrated against plaintiff. Plaintiff paid over $20,000 to various tradesmen as a result of defendant's fraud, and therefore requested exemplary damages of $200,000.

Plaintiff's original complaint was filed on July 17, 1980 and survived defendant's first motion to dismiss on November 18, 1980. Nearly three years later, in June of 1983, defendant's motion to dismiss was granted. The trial court noted that plaintiff's memorandum submitted to it contained assertions not found in the complaint and suggested that plaintiff incorporate these assertions so that the complaint comported with the memorandum. Plaintiff was granted leave to file a first amended complaint.

During argument on defendant's motion to dismiss the first amended complaint, the trial court carefully reviewed each of the four counts pointing out their deficiencies. Specifically, the court found that there were insufficient allegations to establish an agency relationship. Further, even if agency had been properly pleaded, the court noted that there was no allegation that the tradesmen worked to plaintiff's detriment at defendant's instigation. The court also concluded that plaintiff had not successfully pleaded facts which would establish a fiduciary relationship. In dismissing Count II because of the deficiencies in pleading the existence of a fiduciary relationship, the court commented that it was not familiar with authority to support an action for negligent breach of a fiduciary duty. The court also struck Count IV, which sounded in fraud, because the complaint did not allege with specificity to whom the fraudulent representations were made and the circumstances surrounding them. Further, the representations made by defendant were merely statements of opinion and not facts, and therefore were not actionable. The trial court dismissed plaintiff's first amended complaint with prejudice on September 21, 1983.

Plaintiff subsequently filed a motion to vacate this order, or in the alternative, leave to file a second amended complaint. In her motion, plaintiff contended that she had, in her proposed second amended complaint, rectified the deficiencies. In opposition to her motion, defendant argued that plaintiff had not offered any newly discovered material or had otherwise presented a valid reason for vacation of the dismissal order. In addition, defendant argued that a motion for leave to file an amended complaint is not a proper post-trial motion under Ill.Rev.Stat.1983, ch. 110, par. 2-1203, formerly Ill.Rev.Stat.1979, ch. 110, par. 68.3.

The trial court ruled that it was satisfied that the complaint did not state a cause of action and that the proposed second amended complaint did...