Mentgen v. Dowell , 2021 IL App (2d) 200017-U ( 2022 )

2022 IL App (2d) 200017-UNo. 2-20-0017
Order filed March 10, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
SUSAN BEESON MENTGEN, as Trustee ) Appeal from the Circuit Court
of the May H. Beeson Trust, dated May ) of McHenry County.
19, 1992, )
)
Plaintiff-Appellant, )
)
v. ) No. 17-LA-402
)
CHARLES F. DOWELL, ROXANN )
DOWELL, PAT BETLINSKI, BERKSHIRE )
HATHAWAY HOME SERVICES STARCK )
REAL ESTATE, an Illinois corporation, )
CODY BOOK, LISA HADERLEIN, and THE )
LAND CONSERVANCY OF MCHENRY )
COUNTY, an Illinois not-for-profit corporation,)
)
Defendants )
)
(Charles F. Dowell, Roxann Dowell, )
Pat Betlinski, Berkshire Hathaway Home )
Services Starck Real Estate, an Illinois ) Honorable
corporation, and Cody Book, Defendants- ) Thomas Meyer,
Appellees). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
2022 IL App (2d) 200017-U¶1 Held: (1) Plaintiff failed to properly preserve for appeal the issues of whether the trial
court erred in dismissing counts I, II, V, and VII of her Amended Complaint;
plaintiff filed a Second Amended Complaint that changed the allegations of those
counts instead of one that realleges, incorporates by reference, or refers to the
dismissed counts; (2) the trial court erred in dismissing counts alleging unjust
enrichment and breach of fiduciary duty; (3) trial court affirmed in part, reversed
in part, and the cause remanded for further proceedings.
¶2 Plaintiff, Susan Beeson Mentgen, as Trustee of the May H. Beeson Trust dated May 9,
1992 (Trust), appeals from (1) the trial court’s dismissal of various counts of her amended and
second-amended complaints and (2) the trial court’s denial of her motion to reconsider and motion
for leave to file a second-amended complaint against certain defendants. We reverse and remand.
¶3 I. BACKGROUND
¶4 The facts herein are drawn from the factual allegations contained in Mentgen’s Second
Amended Complaint. The Trust is the former owner of a 120-acre parcel of property in Harvard,
Illinois. More than 60 acres of the property had been used as a nursery and for land conservation
purposes. In 2009, the Trust conveyed a conservation easement on the property to defendant, The
Land Conservancy of McHenry County (TLC), a nonprofit land trust whose purpose includes the
conservation of farmland. The reason for the grant of the easement was two-fold: (1) to preserve
the property in its current condition; and (2) an income tax deduction. An appraisal of the property
done for income tax purposes revealed a value of $1,200,000 before the implementation of the
easement and a value of $600,000 after implementation. This appraisal was accepted by the
Internal Revenue Service for tax deduction purposes.
¶5 The easement provided in relevant part that 75 acres of the property was utilized for
nursery, 40 acres remained native forest, woodland, and savanna in predominantly natural
condition, and 5 acres contained all the buildings. The property possessed “natural and scenic
values (collectively ‘Conservation Values’)” that were “of great importance to Grantors, the people
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2022 IL App (2d) 200017-Uof McHenry County and the people of the State of Illinois.” The “Conservation Purpose” of the
easement included the preservation of the conservation values by continuing the land use patterns
existing at the time of the grant. The easement expressly prohibited “any activity on or use of the
Property inconsistent with the purpose of this Easement.” Amongst other things, it specifically
prohibited any alteration of the surface topography and hydrology of the land, any use or activity
that causes or is likely to cause significant soil degradation or erosion, and “row cropping of corn,
soybeans or other commodity grains”. TLC was to manage the property according to the attached
Management Plan, which could be amended or modified. However, no amendment or
modification could “materially and adversely affect the conservation purpose” of the Easement.
Any modification was required to be in a written instrument signed by the Grantors and Grantees
and recorded.
¶6 Following the death of May Beeson, the property was the subject of a lawsuit involving
the Beeson siblings, including Mentgen. The suit resulted in a judgment that the easement remain
in effect and that the property be listed for sale to the general public. Both the listing and sales
prices were to be set and approved by the court, and any sales contract was subject to the court’s
acceptance. In April 2015, the court selected defendants Pat Betlinski and Berkshire Hathaway
Home Services Starck Real Estate (Berkshire) to list and sell the property and approved a listing
price of $724,900.
¶7 Over a year later, in July 2016, Betlinski filed an updated market analysis stating that
marketing activity on the property was limited due to the easement’s restrictions on row cropping
of corn, soybeans or other commodity grains. According to the opinions of two appraisers, the
easement decreased the value of the property by 50 % of current farmland prices, indicating a
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2022 IL App (2d) 200017-Ucurrent value of $465,000. The court decreased the price to $649,900, and later that year to
$599,000.
¶8 In December 2016, Mentgen signed a Disclosure and Consent to Dual Agency, which
notified her that Betlinski would be representing defendants Charles F. Dowell and Roxann Dowell
as their real estate agent. In 2015, Betlinski had learned that the Dowells were interested in
purchasing the property in order to lease it to their son-in-law, defendant Cody Book, to farm row
crops, including corn. However, the Dowells were put off by the easement’s prohibition of such
farming.
¶9 Later that month, defendant Lisa Haderlein, executive director of TLC met with Book and
the Dowells to discuss an Amended Management Plan that would allow Book to row crop the
property. Haderlein verbally approved an amended plan that would allow the removal of all the
trees in the nursery area, the leveling of the terraces, a buffer around the nursery area to allow the
use of large motorized farm equipment, and a cyclical farming plan that allowed row crops if soil
erosion was kept within tolerable erosion levels.
¶ 10 The Dowells submitted an offer of $300,000 for the property; negotiations eventually led,
on February 2, 2017, to an agreed-upon purchase price of $470,000, subject to the easement and
court approval. The easement, including the original Management Plan, was attached to the
contract, and the parties initialed every page thereof. Mentgen had no information regarding the
approval of the Amended Management Plan and alleged that she would not have agreed to the real
estate contract at the sale price had she known of it. Betlinski knew of the amended agreement but
never told Mentgen of it. The court approved the real estate contract on February 22. The sale
closed on April 5, 2017; the trustee’s deed specifically made the conveyance subject to the
easement.
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2022 IL App (2d) 200017-U¶ 11 On April 8, Book brought in earth moving equipment and leveled, plowed and tilled the
nursery area and planted row corn. On May 1, the TLC board confirmed Haderlein’s approval of
the amended management plan.
¶ 12 Mentgen filed a seven-count complaint, alleging: (1) fraudulent inducement against the
Dowells; (2) breach of fiduciary duty against Betlinski and Berkshire; (3) consumer fraud against
Betlinski and Berkshire; (4) tortious interference with contract against Book; (5) tortious
interference with contract against Haderlein; (6) breach of fiduciary duty against Haderlein; and
(7) civil conspiracy against the Dowells, Betlinski, Berkshire, Book and Haderlein. On July 25,
2018, the trial court granted without prejudice the defendants’ motion to dismiss pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) and granted
Mentgen leave to file an amended complaint.
¶ 13 Mentgen then filed an eight-count Amended Complaint, alleging: (1) fraudulent
inducement against the Dowells; (2) fraudulent concealment against the Dowells; (3) breach of
fiduciary duty against Betlinski and Berkshire; (4) consumer fraud against Betlinski and Berkshire;
(5) tortious interference with contract against Book; (6) breach of fiduciary duty against Haderlein
and TLC; (7) aiding and abetting against all of the defendants other than the Dowells; and
(8) concert of action against all of the defendants other than the Dowells. The Dowells and Book
brought a combined motion to dismiss pursuant to section 2-619(a)(9) and to strike pursuant to
2/615 of the Code (735 ILCS 2-619(a)(9), 5/2-615 (West 2016)) that the trial court granted on
February 20, 2019, dismissing with prejudice all counts against the Dowells and Book. The court
subsequently denied Mentgen’s motion to reconsider and for leave to file a second-Amended
Complaint against the Dowells and Book. The court also dismissed without prejudice all counts
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2022 IL App (2d) 200017-Uagainst Betlinski, Berkshire, Haderlein and TLC and granted Mentgen leave to file a second-
amended complaint against these defendants.
¶ 14 Mentgen filed a Second-Amended Complaint, captioning the first seven counts the same
as the Amended Complaint and alleging the same defendants as before. She then added a new
count VIII; instead of re-alleging concert of action against all defendants, Mentgen alleged unjust
enrichment against the Dowells. The trial court subsequently granted the section 2-615 motion to
dismiss with prejudice of the Dowells, Book, Betlinski, and Berkshire. The trial court also granted
a section 2-615 motion to dismiss Count VII as to Haderlein and TLC but denied the motion as to
Count VI (breach of fiduciary duty against Haderlein and TLC). The court found no just reason
for delaying either enforcement or appeal.
¶ 15 Mentgen then filed her notice of appeal, appealing from: (1) the February 20, 2019 order
dismissing with prejudice all counts against the Dowells and Book in the Amended Complaint;
(2) the April 23, 2019 order denying her motion to reconsider the February 20, 2019 order and for
leave to file a Second-Amended Complaint against the Dowells and Book; and (3) the December
11, 2019 order dismissing with prejudice all counts of the Second-Amended Complaint against the
Dowells, Book, Betlinski, and Berkshire.
¶ 16 II. ANALYSIS
¶ 17 We will first address Mentgen’s contention that the trial court erred in denying her motion
to file a Second Amended Complaint against the Dowells and Book. The trial court dismissed
with prejudice all counts of the Amended Complaint against the Dowells and Book. On April 23,
2019, the trial court entered an order denying Mentgen’s combined motion to reconsider and for
leave to file a Second Amended Complaint with counts against the Dowells and Book. However,
the motions to dismiss the Amended Complaint by Berkshire, Betlinski, TLC, and Haderlein were
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2022 IL App (2d) 200017-Unot granted until the following month, at which time the trial court also ordered that Mentgen be
granted leave to file a Second Amended Complaint. Mentgen’s Second Amended Complaint
contained, inter alia, newly amended counts I, II, V, and VII against the Dowells and Book along
with a new count alleging unjust enrichment against the Dowells. The Dowells and Book filed a
combined motion to dismiss the counts of the Second Amended Complaint pertaining to them,
which the trial court granted after briefing and a hearing.
¶ 18 While the trial court may have denied leave to file second amended counts against the
Dowells and Book, the record is clear that the court subsequently allowed such counts to be filed
as part of the Second Amended Complaint and considered briefing and arguments on them in
motions to dismiss. Therefore, this contention is without merit.
¶ 19 We must then address the status of the Second-Amended Complaint as it applies to the
dismissed counts of the Amended Complaint against the Dowells and Book. When Mentgen filed
her Second-Amended Complaint, she again included counts of fraudulent inducement and
fraudulent concealment against the Dowells (I and II), tortious interference with contract against
Book (V) and aiding and abetting (including Book) (VII).
¶ 20 A party who files an amended pleading waives any objection to the trial court’s ruling on
any prior complaints. Bonhomme v. St. James, 2012 IL 112393, ¶ 17. “[W]here an amendment is
complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to
be a part of the record for most purposes, being in effect abandoned and withdrawn.” (Internal
quotation marks omitted.) Id. This rule applies to theories of recovery as well as to factual
allegations. Fazekas v. City of De Kalb, 2021 IL App (2d) 200692, ¶ 17. A party has three avenues
for avoiding such waiver and preserving for appellate review any dismissed claims: (1) stand on
the dismissed counts, voluntarily dismiss any remaining counts, and argue the matter before the
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2022 IL App (2d) 200017-Ureviewing court; (2) file an amended pleading that realleges, incorporates by reference, or refers
to the dismissed counts; or (3) perfect an appeal from the dismissal order prior to filing an amended
pleading. Id. Where a party has failed to use one of these methods for avoiding forfeiture, ongoing
objections to a dismissal order are insufficient to preserve the issue for appeal. Bonhomme, 2012
IL 112393, ¶¶ 20–22. This is true even where a party raises objections to a dismissal order in a
motion to reconsider, in a motion for a new trial, or in motions in limine. Id. ¶¶ 20–23.
¶ 21 Here, counts I, II, V, and VII of the Second-Amended Complaint are not simple re-
allegations of the dismissed counts from the Amended complaint. While alleging the same causes
of action and defendants, the specific allegations, including the alleged damages suffered, have
been changed. As Mentgen stated in her Motion to Reconsider and for Leave to File the Second-
Amended Complaint:
“49. The purposed [sic] 2nd Amended Complaint changes the substance of the
allegations to address the Court’s ruling of February 20, 2019 and adds a new count against
the DOWELL defendants which should be allowed pursuant to 735 ILCS 5/2-616(a).”
(Emphasis added.)
¶ 22 For example, Count I (Fraudulent Inducement) of the Amended Complaint alleged that The
Dowells and Book obtained from Haderlein a “verbal agreement***to amend [the] Management
Plan” prior to the closing of the sale, while the same count of the Second Amended Complaint
alleged that they obtained from Haderlein “verbal approval***for the Amended Management
Plan*** which was contingent upon the DOWELLS becoming the contract purchasers and a crop
rotation that had erosion level below tolerable levels” and that, because Mentgen “did not know or
suspect that LISA HADERLEIN had already approved an Amended Management Plan***, she
never thought to ask for a copy of any Amended Management Plan prior to closing.” (Emphases
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2022 IL App (2d) 200017-Uadded.) The Second-Amended Complaint alleged that the subsequent approval of the Amended
Management Plan by the TLC board was simply a rubber stamp of Haderlein’s verbal agreement
and that, according to the President of TLC, approval of an amended management plan by the
board was not necessary. The Amended Complaint contained no such allegations.
¶ 23 As Mentgen argued in her reply to the Dowells’ and Book’s response to her motion to
reconsider and for leave to file, “The proposed 2nd Amended Complaint alleges new facts
regarding damages which counsel for the plaintiff found after the hearing.” According to Mentgen,
“the 2nd Amended Complaint changed the allegations of damages to correct the defect in the
Amended Complaint raised by this Court at the hearing on the Motion to Dismiss the Amended
Complaint.” The Amended Complaint sought approximately $470,000 in damages, the alleged
“difference between the sale price and the value of the property with the provisions of the verbal
agreement to amend the Management Plan.” The Second Amended Complaint sought $600,000
for that difference plus another $300,000 for the cost “to establish and defend the terms of the
Conservation Easement which were violated by the Amended Management Plan.” These
differences also affected counts II, V, and VII.
¶ 24 Further, the Second-Amended Complaint in no way refers to or adopts the dismissed
pleadings from the Amended Complaint, thereby rendering the earlier pleadings “in effect
abandoned and withdrawn.” Bonhomme, 2012 IL 112393, ¶ 17. Thus, we conclude that any issues
arising from the trial court’s dismissal of counts I, II, V, and VII of the Amended Complaint were
not properly preserved for appellate review and will not be considered.
¶ 25 For similar reasons, we must also find that Mentgen’s contention that the trial court erred
in denying her motion to reconsider is not preserved for appellate review. By filing the Second
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2022 IL App (2d) 200017-UAmended Complaint, Mentgen abandoned the motion to reconsider the abandoned counts of the
amended complaint.
¶ 26 Mentgen next contends that the trial court erred in dismissing Count VIII of the Second
Amended Complaint alleging unjust enrichment against the Dowells. The Dowells’ brought
combined motions to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure and
to strike pursuant to section 2-615 of the Code (735 ILCS 5/2-619(a)(9), -615 (West 2018). We
review de novo a trial court’s ruling under either section. See Gatreaux v. DKW Enterprises, LLC,
2011 IL App (1st) 103482, ¶ 10.
¶ 27 To state a claim for unjust enrichment, a plaintiff must allege that: (1) the defendant has
unjustly retained a benefit to the plaintiff’s detriment; and (2) the defendant’s retention of the
benefit violates the fundamental principles of justice, equity, and good conscience. Gagnon v.
Schickel, 2012 IL App (1st) 120645, ¶ 25. A claim of unjust enrichment does not require fault or
illegality on the defendant’s part; the essence of the cause of action is that one party is enriched,
and it would be unjust for that party to retain the enrichment. Stathis v. Geldermann, Inc., 295 Ill.
App. 3d 844, 864 (1998). The principle of unjust enrichment has no application where a specific
contract governs the relationship of the parties; it only applies in the context of an implied contract.
Id. However, “unjust enrichment may be predicated on either quasi-contract or tort.” Id.. Where
an unjust enrichment claim is based on tort, instead of quasi-contract, the existence of a specific
contract does not defeat a plaintiff’s cause of action. Id. See also Pedinghaus v. Pedinghaus, 295
Ill. App. 3d 943, 949 (1998) (“In the present case, plaintiff bases his unjust enrichment claim on a
tort theory, specifically, that defendants, through their agent Carl, fraudulently induced him to sell
his shares in the CUP trust. Since plaintiff’s unjust enrichment claim is based on tort, instead of
quasi-contract, the existence of a specific contract does not defeat his cause of action.”)
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2022 IL App (2d) 200017-U¶ 28 Here, Mentgen alleged that the Dowells were able to purchase the subject property for half
of its value considering the uses that were allowed under the Amended Management Plan that had
been negotiated and verbally approved without her knowledge before the closing of the sale. The
Dowells knew that Mentgen was unaware of the approved Amended Plan and knew that Mentgen
would not have agreed to the $470,000 purchase price had she been aware of it. The Dowells also
knew that the agreed upon price of $470,000 did not reflect the true value of the property with the
Amended Plan verbally approved before closing. The Dowells purposely concealed the existence
of the Amended Plan so that they could purchase the property for approximately half of its value,
given the terms of the Plan. Thus, the Dowells benefitted from the verbal approval of the Amended
Plan prior to closing because the Plan greatly increased the value of the property, and they did not
have to pay for the increased value. According to Mentgen, this violated the fundamental
principles of equity, justice, and good conscience.
¶ 29 In granting the motion to dismiss the unjust enrichment count, the trial court stated in part:
“I agree that they [Dowells] got a benefit. They got a benefit through negotiations
with TLC, and whether or not you were aware of it isn’t terribly important. I’m just failing
to see how their actions created a wrongful act, or are defined—came to be defined as a
wrongful act.”
¶ 30 As we have already noted, a claim of unjust enrichment does not require fault or illegality
on the defendant’s part. See Stathis, 295 Ill. App. 3d at 864. The essence of the cause of action is
that one party is enriched, and it would be unjust for that party to retain the enrichment. Thus, to
the extent that the trial court relied on this reasoning as a basis for dismissal, its reliance was in
error.
¶ 31 The trial court also stated:
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2022 IL App (2d) 200017-U“I—For purposes of this motion, I accept that representation that they did that, but
it still doesn’t establish for me that the Dowells owed some—or Book owed some sort of
a duty to the Plaintiff and [T]rust to disclose these discussions.
Their—As I said before, their relationship was controlled by the written contract
for the purchase of the sale which was supervised by the Court.
So, I’m going to grant the motion. I don't believe—I’m going to dismiss Dowell
and Book [sic] with prejudice. I don’t believe that there is a cause of action because I—
there is no duty for them to disclose their discussions regarding what they can do with this
property. So, they’re dismissed with prejudice***.”
¶ 32 The Dowells argue, as the court mentioned, that they and Mentgen were parties to the real
estate contract; therefore, unjust enrichment has no application. See Stathis, 295 Ill. App. 3d at
864. Mentgen replies that the claim of unjust enrichment is based not on the real estate contract
but on the amended management plan between the Dowells and TLC; thus, “there is not a specific
contract between the TRUST and the DOWELLS that governs the relationship of the DOWELLS
and TLC.”
¶ 33 Mentgen’s argument misses the point. Unjust enrichment has no application where a
specific contract governs the relationship of the parties, i.e. the plaintiff and the defendant, not the
defendant and another actor. See Stathis, 295 Ill. App. 3d at 864. However, Mentgen based her
claim of unjust enrichment on the tort of fraudulent concealment, alleging that the Dowells
“purposely concealed the existence of the verbally approved Amended Management Plan from
SUSAN BEESON MENTGEN so it could purchase the subject property for approximately half its
value.” Because this claim was based on tort, the existence of the real estate contract does not
defeat Mentgen’s cause of action. See . Pedinghaus, 295 Ill. App. 3d at 949.
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2022 IL App (2d) 200017-U¶ 34 The required allegations for a claim of unjust enrichment are few. Mentgen clearly alleged
that the Dowells obtained the benefit of a substantially lower price for the property than would
have been expected by fraudulently concealing the amendment of the management plan and that
the Dowells’ retention of the benefit violates the fundamental principles of justice, equity, and
good conscience. We conclude that the trial court erred in dismissing this count.
¶ 35 Mentgen next contends that the trial court erred in dismissing Count III of the Second
Amended Complaint that alleged breach of fiduciary duty against Betlinski and Berkshire. To
state a claim for breach of fiduciary duty, a plaintiff must allege that: (1) a fiduciary duty exists;
(2) the fiduciary duty was breached; and (3) such breach proximately caused the injury of which
the party complains. Lawlor v. North America Corp. of Illinois, 2012 IL 112530, ¶ 69. Our review
of the trial court’s dismissal is de novo.
¶ 36 Mentgen alleged that Bettlinski learned prior to the signing of the real estate contract that
the Dowells had obtained verbal approval of the Amended Management Plan and knew that the
uses allowed under that plan were prohibited by the Easement However, Bettlinski also knew that
Mentgen did not know about the amended plan, and she failed to inform Mentgen and the Trust
about that “material fact” relating to the transaction and affecting the value of the property.
Because of this breach, Mentgen was “induced into accepting a purchase price that was well below
the value of the Subject Property without the prohibitions of the Conservation Easement.”
¶ 37 There is no doubt that a fiduciary relationship existed between Betlinski/Berkshire and
Mentgen, as trustee. A real estate broker has long served as an agent of the owner of property,
bargaining and negotiating on behalf of her principal in relation to the purchase or sale of property.
See Letsos v. Century 21-New West Realty, 285 Ill. App. 3d 1056, 1063 (1996). Pursuant to the
Real Estate License Act of 2000 (Act), licensees under the Act “shall be considered to be
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2022 IL App (2d) 200017-Urepresenting the consumer they are working with as a designated agent for the consumer unless
there is a written agreement between the sponsoring broker and the consumer providing that there
is a different relationship.” 225 ILCS 454/15-10 (West 2020).
¶ 38 However, the Act provides for the concept of dual agency in the same transaction, a
situation that occurred in this case, as Bettlinski/Berkshire represented both Mentgen and the
Dowells. See 225 ILCS 454/15-45 (West 2020). There is no contention here that Mentgen did
not know the implications of a dual agency or that the dual agency agreement, which Mentgen
signed, did not contain the statutorily required information about dual agency. See 225 ILCS
454/15-45 (West 2020). In general, a dual agent is not to disclose recommended or potential
acceptable prices or terms to either the buyer or seller. See 225 ILCS 454/15-45 (West 2020).
Specifically listed as an item of information that an agent cannot disclose in a dual agency situation
is “Confidential information that Licensee may know about a client, without that client's
permission.” 225 ILCS 454/15-45 (West 2020). “Confidential information” is defined as:
“[I]nformation obtained by a licensee from a client during the term of a brokerage
agreement that (i)*** (ii) deals with the negotiating position of the client, or (iii) is
information the disclosure of which could materially harm the negotiating position of the
client unless at any time:
***
(3) the information becomes public from a source other than the licensee.” 225 ILCS
454/1-10.
¶ 39 Here, Mentgen alleged that the “verbally approved Amended Management Plan was a
material fact relating to the transaction and affecting the value of the Subject Property.” (Emphasis
added.) This type of information appears to be the type of confidential information regarding the
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2022 IL App (2d) 200017-Unegotiating position of the Dowells that Betlinski/Berkshire was prohibited from disclosing.
However, Mentgen also alleged that Betlinski was told by the Dowells, Book, and/or Haderlein of
the approval of the Amended Plan and the planned uses of the land. Thus, Mentgen alleged that
the Amended Plan and the Dowells’ future plans were “public from a source other than the
licensee” and no longer confidential. Disclosure of that information would no longer violate
Betlinski’s fiduciary duty to the Dowells, but failure to disclose it to Mentgen did violate her
fiduciary duty to Mentgen. However, this is a clear example of the potential pitfalls of a dual
agency transaction.
¶ 40 Regarding the third requirement that the breach proximately caused the injury of which the
plaintiff complains, Mentgen alleged that she and the Dowells entered into the sales contract on
February 2, 2017, and the court approved the sale on February 28, 2017. On February 16,
Haderlein had attempted to e-mail Mentgen about the “tentative plan” to clear the nursery stock
and plant corn and then do a crop rotation, but the e-mail had been sent to an old address. It was
not until March 3 that Haderlein e-mailed the information to Mentgen’s brother Joe Beeson and
mailed the information to Mentgen. Mentgen sent an e-mail to Haderlein objecting to the
“tentative plan” on March 18. The sale of the property was closed on April 5, 2017. Prior to the
closing, Mentgen did not know that an Amended Management Plan had been approved, so she
never thought to ask for a copy of any Amended Plan prior to the closing. Because of this breach
of fiduciary duty, Mentgen was induced into accepting a purchase price that was well below the
value of the property without the prohibitions of the Conservation Easement.
¶ 41 Betlinski/Berkshire argue that Mentgen cannot prove that Betlinski’s alleged failure to
disclose the existence of the Amended plan caused any damages because Mentgen was aware of
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2022 IL App (2d) 200017-Uthe information through Haderlein. Further, while Mentgen objected to the plan, she went through
with the sale anyway.
¶ 42 We disagree with this analysis. First, Mentgen alleged that she learned from Haderlein that
there was a “tentative plan” to use the land in a way incompatible with the lease, not that an
Amended Plan for such usage had already been approved. She also learned of this information
after she agreed to the sales contract and the court approved the sale. Had she been told this
information by Betlinski in a timely fashion, she never would have entered into the contract. It is
absurd to argue that Mentgen should be precluded from recovery because she went through with
the sale even though she objected to what she thought was a “tentative plan;” we need not require
the breaching of a court-approved sales contract in order to claim that one was damaged by actions
taken in secret before the contract was entered into. We conclude that Mentgen properly alleged
the proximate cause of her injuries. Therefore, Mentgen pled a proper cause of action in breach
of fiduciary duty against Betlinski and Berkshire. Therefore, the trial court erred in dismissing
Count III of the Second Amended Complaint.
¶ 43 Mentgen next contends that the trial court erred in dismissing Count IV of the Second
Amended Complaint alleging consumer fraud against Betlinski and Berkshire. Mentgen provides
a four-sentence argument culminating in the conclusion that Count IV stated a cause of action
because it alleged that Betlinski “used unfair or deceptive acts by failing to tell Mentgen about the
Amended Management Plan.” This contention is undeveloped and does not conform with the
requirements of Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020), and we will not consider it.
¶ 44 Mentgen next contends that the trial court erroneously dismissed Count VII of the Second
Amended Complaint alleging aiding and abetting against Betlinski, Berkshire, Book, Haderlein,
and TLC. To state a cause of action for aiding and abetting the commission of a tort, a plaintiff
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2022 IL App (2d) 200017-Umust allege: (1) the party whom the defendant aids must perform a wrongful act that causes an
injury; (2) the defendant must be regularly aware of his role as part of the overall or tortious activity
at the time that he provides the assistance; and (3) the defendant must knowingly and substantially
assist the principal violation. Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 28 (2003).
Again, our review of the dismissal of a claim is de novo.
¶ 45 Here, the alleged wrongful acts that caused an injury were the Dowells’ commission of
fraudulent inducement in failing to inform Mentgen of Haderlein’s approval of the amended
Management Plan prior to the execution of the real estate contract and fraudulent concealment for
failure to inform Mentgen of the Amended Management Plan during the pendency of the contract.
Mentgen alleged that all of the defendants “knew about this” and helped to conceal the Dowells’
acts “by not informing Mentgen about the Amended Management Plan.” Mentgen makes no more
argument beyond this assertion that everyone who allegedly knew about the alleged fraud should
have told her about it. She cites no case law to support her position and never addresses the issue
of whether silence or inaction constitute substantial assistance for purposes of aiding and abetting.
We find this issue to be undeveloped and not in conformity with the requirements of Supreme
Court Rule 341(h)(7) (eff. Oct. 1, 2020), and we will not consider it.
¶ 46 III. CONCLUSION
¶ 47 For these reasons, the judgment of the Circuit Court of McHenry County is reversed as to
counts III and VIII of the Second Amended Complaint, and the matter is remanded for further
proceedings on those counts. The judgment is affirmed in all other respects.
¶ 48 Affirmed in part, reversed in part, and remanded for further proceedings.
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