SIXTH DIVISION Filing Date April 23, 2021

No. 1-19-1858 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

MICHELLE WOLFF, as Executor of the ESTATE OF ) Appeal from the MARJORIE HAMILTON, individually and as the ) Circuit Court of representative of a class of similarly situated persons, ) Cook County. ) Plaintiff-Appellant, ) No. 14 CH 003433 ) v. ) The Honorable ) Michael T. Mullen, BETHANY NORTH SUBURBAN GROUP, d/b/a ) Judge, Presiding. CHESTNUT SQUARE AT THE GLEN ASSOCIATION, ) ) Defendant-Appellee. )

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion. Presiding Justice Mikva & Justice Harris concurred in the judgment, and opinion.

OPINION

¶1 Plaintiff Michelle Wolff, as Executor of the Estate of Marjorie Hamilton, individually and

as the representative of a class of similarly situated persons, appeals from an order of the circuit

court of Cook County that granted summary judgment in favor of defendant, Bethany North

Suburban Group d/b/a Chestnut Square at The Glen Association (Bethany) and denied No. 1-19-1858

plaintiff’s partial motion for summary judgment. Plaintiff, as representative of a class of

similarly situated persons, sought damages from Bethany for violations of the Security Deposit

Interest Act (Interest Act) (765 ILCS 710/1 et seq. (West 2014)) and the Security Deposit

Return Act (Deposit Return Act) (765 ILCS 715/1 et seq. (West 2014)). Plaintiff also sought

individual damages for consumer fraud under the Consumer Fraud Act (815 ILCS 505/1 et

seq. (West 2014)) and breach of contract.

¶2 Plaintiff raises the following issues on appeal: (1) whether the circuit court erred in granting

Bethany’s motion for summary judgment on both the class claims and her individual claims,

and (2) whether the circuit court erred in denying her motion for partial summary judgment on

the class claims. For the following reasons, we affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 A. Factual Background

¶5 Marjorie Hamilton (Hamilton) entered into a contract titled “Residency and Services

Agreement” (Agreement) Chestnut Square at The Glen Association (Chestnut Square) for

Apartment 1309A on December 1, 2004. In the definitions section of the Agreement, Chestnut

Square was defined as an Illinois not for profit corporation that operates an independent living

senior housing community for persons 55 years and older 1 in Glenview, Illinois, and is

affiliated with Bethany Methodist Corporation. The Agreement provided for an initial deposit

that was to be paid by Hamilton to reserve a residence in Chestnut Square that would only be

refunded as expressly provided in the Agreement. The Agreement further stated that Chestnut

Square would pay interest on the initial deposit at the passbook savings rate established by

1 Bethany describes Chestnut Square as a “continuing care retirement community.”

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Bank One. The entrance fee, which is the fee at issue, was defined as “the fee charged by

Chestnut Square Association upon your taking possession of your residence (“the

Apartment”).”

¶6 The Agreement was divided into several sections; those that are relevant to the controversy

at hand are as follows. Section II, Admission & Occupancy, contained the following key

provisions: (1) the Agreement was conditioned on Chestnut Square securing all necessary

financing, permits, licenses and government approvals required for the construction of the

property within five years; (2) if such financing, permits, licenses and government approvals

were not received within five years and upon notice from Chestnut of same, either party could

elect to terminate the Agreement within 90 days after the expiration of the five-year period or

the notice is sent, and the initial deposit would be refunded with the interest earned; (3)

Hamilton could elect to terminate the Agreement at any time prior to occupancy of the

apartment and receive a refund of her initial deposit without interest, when another Agreement

for the apartment had been signed and the initial deposit received; (4) failure to take occupancy

within 60 days of the occupancy date could result in the apartment being reassigned and the

Agreement terminated; the initial deposit would be refunded without interest, at the time the

apartment became occupied by another resident and a new entrance fee received; and (5)

Hamilton had the right to reside at Chestnut Square under the terms of the Agreement and to

receive services during the balance of her lifetime or until the Agreement was terminated as

provided in Section VIII.

¶7 Section III, Obligations of Chestnut Square, contained the following key provisions

regarding the services provided by Chestnut Square to Hamilton as part of her monthly service

fee: (1) water, heat and air conditioning; (2) necessary repairs, painting, maintenance and

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replacement of property and equipment of Chestnut Square; (3) weekly basic interior

housekeeping; (4) one meal per day was included but additional meals could be available for

additional charges; (5) local transportation; (6) a 24-hour Emergency Response System; (7)

access to a beauty/barber shop with additional fees for services used; (8) use of common areas

and participation in social activities; (9) reservation of guest rooms at an additional fee; (10)

outdoor parking; (11) limited on-site storage; (12) the ability to modify her apartment with

prior written consent; and (13) healthcare services- limited home health care services through

a third party; priority access to Bethany Terrace Nursing Centre; and assistance in medical

emergencies. 2

¶8 Section IV, Fees, covered the entrance fee, which was $123,600; the monthly service fee

of $1600; underground parking space entrance fee and monthly service fee, which Hamilton

did not pay; tax and special assessment obligations; and the guarantee of continued residency.

Hamilton did not have a separate tax obligation; her portion of real estate taxes was included

in her monthly service fee. The guarantee of continued residency provision provided that

Hamilton would not be removed from residency solely based on her financial inability to pay

the monthly service fee or other charges and could continue to reside at Chestnut Square if

facts were established that justified deferment of charges without impairing the operation of

Chestnut Square. Any deferred charges under this provision would be deducted from the

entrance fee refund that may become due to Hamilton.

¶9 Sections V-VII governed Hamilton’s transfer from her apartment. Section V, Transfers,

allowed Hamilton to request a transfer from one apartment to another as well as provided for

2 Bethany employs approximately 50 employees at Chestnut Square to provide the services to the residents.

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Chestnut Square’s assistance in arranging a transfer to Bethany Terrace Nursing Centre or the

health facility of her choice if special medical or nursing care was needed. Section VI, Release

of Apartment, provided for the release of the apartment if Hamilton’s condition required more

than a temporary transfer from the apartment. Section VII, Cost Factors Involved in Transfers,

contained provisions regarding calculating the cost of various types of transfers, including

transfers to an apartment with a higher or lower entrance fee.

¶ 10 Section VIII, Termination and Refund After Occupancy, contained the following key

provisions: (1) Termination by Resident- the Agreement could be terminated by Hamilton at

any time with written notice that specified the effective date of the termination, not less than

120 days after service of the notice; under such termination the Agreement remained in effect

until the later of expiration of the 120 days or until the apartment was vacated; the monthly

service fee remained in effect until the termination of the Agreement, at which time all financial

obligations to Chestnut Square would cease; (2) Death of Resident- Hamilton’s legal

representative could terminate the Agreement upon 30 days’ written notice to Chestnut Square

and the estate would remain liable for the monthly services fee during that 30-day period; (3)

Termination by Chestnut Square- the Agreement could be terminated by Chestnut Square for

good and sufficient cause on notice, at which time possession to the apartment would be

“promptly” surrendered; (4) Refund of Entrance Fee- upon termination of the Agreement, after

occupancy, Chestnut Square refunds 100% of the amount of the entrance fee paid; the refund

will be paid to the resident or their estate upon re-occupancy of the apartment minus any

expenses necessary to return the apartment to like-new condition; (5) Termination of Monthly

Service Fee- the monthly service fee remained due and payable until the termination date or

removal of the resident’s personal property, whichever was last.

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¶ 11 Section IX, Limitation of Rights, limited Hamilton’s rights to those expressly granted in

the Agreement. Specifically, the Agreement granted no proprietary interest in Chestnut Square,

Chestnut Square Association, or any other assets, real or personal property of Chestnut Square

or Bethany. Additionally, the Agreement noted that residency conveyed no title, legal or

equitable, to the real property or improvements of Chestnut Square or Chestnut Square

Association.

¶ 12 Section X, Limitations on Chestnut Square Association’s Obligations, concerned Chestnut

Square’s property and liability insurance and stated further that its obligations were subject to

fire or other casualty, war, riot, strikes, lockouts, delays, inability to obtain labor, material or

supplies or other causes beyond its control.

¶ 13 Section XI contained general provisions including a subsection M on Professional Advice

which stated that Hamilton’s signature acknowledged that the Agreement involved significant

financial, legal and tax considerations and that Chestnut Square recommended that she obtain

independent tax advice concerning those matters.

¶ 14 Section XII, Explanation of Your Rights, gave Hamilton 14 days from the (1) execution of

the Agreement or (2) payment of any money as a deposit or application fee, whichever occurred

last, to rescind the Agreement without penalty or obligation. That section further provided that

Hamilton could not be required to move into Chestnut Square until after the expiration of the

14-day rescission period.

¶ 15 In February 2013, Hamilton gave the required notice to terminate her residency, and

vacated her apartment on April 26, 2013. Bethany did not refund her entrance fee until July

2014. Hamilton did not receive any interest with her entrance fee refund. Subsequent to her

leaving Chestnut Square, Hamilton suffered a decline in health and became a resident of a

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skilled nursing facility with 24-hour care. Plaintiff’s daughter and guardian personally paid

some of Hamilton’s medical expenses.

¶ 16 B. Procedural Background

¶ 17 On February 26, 2014, plaintiff filed a class action complaint against Bethany asserting

claims of unconscionability, violation of the Consumer Fraud Act, violation of the Deposit

Return Act, and violation of the Interest Act. On September 2, 2014, plaintiff was given leave

to file an amended complaint by agreed order. Plaintiff filed her amended class action

complaint, adding an additional named plaintiff, Ruth Ackerman, and an amended motion for

class certification, on September 12, 2014.

¶ 18 Bethany subsequently filed a section 2-615 (735 ILCS 5/2-615 (West 2014)) motion to

dismiss and strike plaintiff’s amended complaint because the amended complaint did not

sufficiently plead a deceptive act under the Consumer Fraud Act. On February 2, 2015, the

circuit court granted Bethany’s motion to dismiss the unconscionability claim with prejudice,

dismissed the Consumer Fraud Act claim without prejudice and denied Bethany’s motion to

dismiss the Deposit Return Act and Interest Act claims.

¶ 19 On February 20, 2015, plaintiff filed a six-count second amended class action complaint,

alleging breach of contract (count I), violation of the Consumer Fraud Act (count II), violation

of the Deposit Return Act (count III), violation of the Interest Act (count IV); and repleading

claims of unconscionability (count V), and violation of the Consumer Fraud Act (count VI) for

purposes of appeal that were previously dismissed. Bethany filed its answer to the second

amended complaint on March 25, 2015. Bethany simultaneously filed another section 2-615

(735 ILCS 5/2-615 (West 2014)) motion to dismiss the second amended complaint.

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¶ 20 On June 9, 2015, the circuit court denied Bethany’s motion to dismiss counts I and II, and

granted Bethany’s motion to dismiss as to counts V and VI as set forth in the previous order

dismissing those counts. Bethany’s amended answer to plaintiff’s second amended class action

complaint was filed on July 15, 2015. On October 27, 2015, Bethany filed its affirmative

defenses to plaintiff’s second amended complaint. Bethany raised the following affirmative

defenses: (1) the entrance fee was not a security deposit within the meaning of the Deposit

Return Act or the Interest Act because Bethany provided services beyond those of a landlord-

tenant relationship, provided guaranteed residency, and used the entrance fee to fund its

services; (2) the refund policy was fully disclosed in the Agreement which established that

Bethany did not intend for plaintiff to rely on any deceptive acts; (3) plaintiffs’ claims under

the Deposit Return Act were barred by the statute of limitations; (4) plaintiffs’ claims were

barred by laches as Bethany acted in reliance of its legal right to possess the entrance fees; and

(5) as both plaintiffs’ were refunded their entrance fees, the claims are moot because there was

no controversy for the court to decide. Plaintiff filed a motion to strike and dismiss Bethany’s

affirmative defenses on November 24, 2015, which the circuit court granted without prejudice

on December 16, 2015. Bethany refiled its affirmative defenses on January 4, 2016.

¶ 21 Plaintiff filed a third amended motion for class certification on January 19, 2016. On

April 27, 2016, the circuit court granted class certification for the Deposit Return Act and

Interest Act claims but denied class certification for the Consumer Fraud Act and breach of

contract claims. Hamilton was appointed as the class representative. The record indicates that

on July 15, 2016, plaintiff moved to approve class notice. Bethany subsequently moved to

decertify the classes, but the circuit court denied the motion on January 5, 2017. A second

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motion to decertify the classes was filed on February 14, 2018, which the circuit court denied

on August 14, 2018.

¶ 22 On September 17, 2018, plaintiff was substituted as the named plaintiff and class

representative, and Ackerman was voluntarily dismissed. Notice of class certification was

mailed to the certified classes, and seven class members opted to exclude themselves. On April

3, 2019, Bethany filed a motion for summary judgment as to all claims and plaintiff filed a

cross-motion for partial summary judgment on liability under the Interest Act and Deposit

Return Act claims.

¶ 23 A hearing was held on the cross-motions for summary judgment on August 14, 2019. Prior

to hearing the parties’ argument, the circuit court noted that the crux of the case was whether

the Agreement was a lease or services agreement.

¶ 24 After hearing the arguments of both parties, the circuit court granted summary judgment

in favor of Bethany on both the class claims and plaintiff’s individual claims. The court first

held that the Agreement was not a lease and further that, based on various provisions in the

agreement, the entrance fee could not be classified as a security deposit. Specifically, the court

found that it was clear that the parties entered into this Agreement where a fee would be

charged for labor and services, especially for professional services; it could be terminated by

either party at any time; and it was not for a fixed period of time. The circuit court concluded

that the overwhelming intent of the Agreement was that Bethany would provide services to the

individual who would be provided exclusive rights to occupy a particular area of the property.

The circuit court then granted summary judgment on the class claims for violation of the

Deposit Return Act and the Interest Act, finding that the entrance fee could not be classified

as a security deposit as it was not held for property damage.

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¶ 25 The circuit court then examined plaintiff’s individual claims of fraud and breach of

contract, finding that there was no evidence that the entrance fee was in any way misleading

and no evidence to support a claim under the Consumer Fraud Act. In short, the circuit court

did not find any evidence that Bethany breached the Agreement. After concluding that there

was no genuine issue of material fact on either claim, the circuit court granted summary

judgment as to the individual claims as well. Plaintiff’s timely notice of appeal was filed on

September 12, 2019.

¶ 26 ANALYSIS

¶ 27 On appeal, plaintiff contends that the circuit court erred in granting Bethany’s motion for

summary judgment on all counts and denying her motion for partial summary judgment on the

class claims.

¶ 28 A. Standard of Review

¶ 29 The purpose of summary judgment is not to try a question of fact, but rather to determine

whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co.,

(2004). A motion for summary judgment should only be granted if the pleadings,

depositions and affidavits on file demonstrate that no genuine issues of material fact exist, and

the movant is entitled to judgment as a matter of law. Barnard v. City of Chicago Heights,

(1998). In determining whether a genuine issue as to any material fact

exists, a reviewing court must view the evidence in the light most favorable to the nonmoving

party. Barnard,

. A genuine issue of material fact precluding summary

judgment exists where the material facts are disputed, or if the material facts are undisputed,

reasonable persons might draw different inferences from the undisputed facts. Hilgard v. 210

Mittel Drive Partnership,

.

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¶ 30 On a summary judgment motion, once the moving party has demonstrated the right to

judgment, the burden shifts to the nonmoving party to present evidence showing a genuine

issue of material fact or that the moving party was not entitled to judgment as a matter of law.

Mere argument is not enough to raise an issue of material fact. Triple R Development, LLC v.

Golfview Apartments I, L.P.,

. We review the circuit court’s

decision to grant summary judgment de novo. Loncarevic & Associates, Inc. v. Stanley Foam

Corp.,

; Evans v. Brown,

(2010).

¶ 31 Our review of the record reveals that there was no evidence of any genuine issue of material

fact or showing that Bethany was not entitled to judgment as a matter of law. Nor has plaintiff

raised any issue of material fact on appeal, as we discuss in more detail below.

¶ 32 B. Cross-Motions for Summary Judgment on the Class Claims

¶ 33 Plaintiff first contends that the circuit court erred in granting Bethany’s motion for

summary judgment and denying her motion for summary judgment on the class claims of

violation of the Interest Act and the Deposit Return Act. Specifically, plaintiff maintains that:

(1) it was error to conclude that Bethany’s entrance fee was not a security deposit; (2) it was

error to conclude that the Agreement was primarily a service agreement and not a lease; (3)

Chestnut Square was not a Life Care Facility and was therefore not exempt from the Interest

Act or the Deposit Return Act; (4) it was error to conclude that the Agreement was not a lease

because it was not for a fixed amount of time; and (5) Bethany’s affirmative defenses were

unavailing.

¶ 34 Because the parties filed cross-motions for summary judgment, they conceded that no

material questions of fact existed and the only issue that needed to be decided by the court was

a question of law: which could be decided on the record. Pielet v. Pielet,

, ¶

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28. Appellate review of the circuit court’s decision as to cross-motions for summary judgment

is de novo. Id. at ¶ 30.

¶ 35 In order to determine whether summary judgment was proper, we must determine if the

Agreement constituted a lease and further whether the entrance fee was a security deposit. This

requires us to construe the Agreement.

¶ 36 The construction of a contract is an issue of law to be determined by the court (Intersport,

Inc. v. National Collegiate Athletic Association,

(2008)) and is

reviewed de novo (K’s Merchandise Mart, Inc. v. Northgate Ltd. Partnership,

(2005)). Contract construction and interpretation are generally well suited to

disposition by summary judgment. William Blair and Co., LLC v. FI Liquidation Corp.,

(2005).

¶ 37 The principal objective in construing a contract is to determine and give effect to the

intention of the parties at the time they entered into the contract. Bright Horizons Children’s

Centers, LLC v. Riverway Midwest II, LLC,

(2010). To determine

the intent of the parties, the court must look to the instrument itself, its purpose and the

surrounding circumstances of its execution and performance.

When a dispute exists

between the parties as to the meaning of a contract provision, the threshold issue is whether

the contract is ambiguous.

Contract language is ambiguous when it is susceptible to more

than one meaning or is obscure in meaning. William Blair,

. An

ambiguity is not created by the mere fact, that, as here, the parties disagree on an interpretation.

See Fleet Business Credit, LLC v. Enterasys Networks, Inc., 352 Ill. App.3 d 456,469 (2004).

¶ 38 The question here is whether the Agreement was simply a lease or something more. For

a lease to be valid in Illinois, “there must be agreement as to the extent and bounds of the

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property, the rental price and time and manner of payment, and the term of the lease.” Ceres

Illinois, Inc. v. Illinois Scrap Processing, Inc.,

(1986). Additionally, this

court has held that the essence of a lease was the transfer of possession, while a license merely

entitles one party to use property subject to the management and control of the other party.

Cook v. University Plaza,

, 754 (1981) (citing In re Application of

Rosewell,

(1979)).

¶ 39 As noted above, Hamilton entered into a contract titled “Residency and Services

Agreement” with Chestnut Square for Apartment 1309A on December 1, 2004. The

Agreement provided for an initial deposit of $12,300 that was paid by Hamilton to reserve a

residence in Chestnut Square and would only be refunded as expressly provided in the

Agreement. The total entrance fee was $123,600, and the balance was payable within 60 days

of the established occupancy date or possession of the apartment. The Agreement also

contained provisions related to various services that would be provided by Chestnut Square,

including meals, housekeeping, resident social activities, and local transportation. The

Agreement also had no expiration date; presumably, a resident could live there for their natural

life barring any major medical condition that prevented them from living independently.

Further, the Agreement could be terminated at any time by either party.

¶ 40 While the Agreement contained certain aspects normally associated with leases such as the

reference to a specific apartment, we note that it also allowed a resident to change units on

request. As noted above, there was no rental price specified; the agreement provided for an

initial deposit, an entrance fee and a monthly services fee. The monthly services fee covered

personal care and some assisted living services. The term was indefinite; a resident could stay

for the reminder of their life, could terminate the Agreement on notice to Chestnut Square or

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could relocate to another Bethany-operated facility or be assisted in moving to a health facility

of their choice. Bethany expected its residents to live independently but offered added

conveniences for its aging residents. We find that the Agreement went beyond the terms of a

simple lease contract.

¶ 41 Additionally, in instances where Bethany was unable to meet a resident’s care

requirements, the Agreement provided that arrangements were made with other facilities to

ensure that the care was ultimately made available to the resident, similar to arrangements at a

life care facility. See Antler v. Classic Residence Management Ltd. Partnership,

(2000). The record does not indicate that Chestnut Square was a licensed life

care facility under the Act, as noted by plaintiff. A life care facility is defined by the Life Care

Facilities Act (Act) as “a place or places in which a provider undertakes to provide a resident

with nursing services, medical services or personal care services, in addition to maintenance

services for a term in excess of one year or for life pursuant to a life care contract. The term

also means a place or places in which a provider undertakes to provide such services to a non-

resident.” 210 ILCS 40/2(f) (West 2018). However, despite Chestnut Square’s not providing

comprehensive medical care, and contrary to plaintiff’s assertion, we find that the Agreement

and the residency at Chestnut Square was a continuing care residency agreement and more

closely resembled a life care facility based on the many services it did provide to residents.

See Jackim v. CC-Lake, Inc.,

(2005). While there is no current

statutory enactment related to continuing care facilities, this court has previously recognized

such facilities that provide less care than a life care facility, including those that required the

transfer of a resident’s assets to the facility. See e.g., Franciscan Communities, Inc. v. Hamer,

2012 IL app (2d) 110431; Sears Bank and Trust Co. v. Holmstad, Inc.,

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(1985); Piel v. Norwegian Old People’s Home Society of Chicago,

(1984).

Accordingly, we find that the Agreement created much more than a simple landlord-tenant

relationship between the parties and therefore the Agreement was not a lease.

¶ 42 It follows then, that the Interest Act and Deposit Return Act do not apply to the entrance

fee. Parties are only covered by the statutes if the agreement between the residents and Chestnut

Square can be considered a lease. See Cook, 100 Ill. App. 3d at 755. We have previously

described a security deposit as money a tenant deposits with a landlord as security for the

tenants full and faithful performance of the lease terms. Steens v. MAC Property Management,

LLC,

. Under the terms of a lease agreement, a security deposit

remains the tenant’s property which the landlord holds in trust for the tenant’s benefit subject

to the tenant fulfilling its obligations under the lease.

¶ 43 Section 1 of the Interest Act provides in relevant part that a lessor of residential real

property containing 25 or more units in a single building or complex who receives a security

deposit from a lessee to secure the payment of rent or compensation for damage to property

shall pay interest to the lessee on any deposit held by the lessor for more than six months. 765

ILCS 715/1 (West 2014). Similarly, Section 1(a) of the Deposit Return Act provides that a

lessor of residential real property containing five or more units who has received a security

deposit from a lessee to secure the payment of rent or to compensate for damage to the leased

premises shall return the security deposit in full within 45 days of the date that the lessee

vacated the premises. 765 ILCS 710/1(a) (West 2014).

¶ 44 In this case, our review of the record reveals no evidence that would support classification

of the entrance fee as a security deposit. The entrance fee was not held to secure the payment

of rent or as compensation for damage to property; instead, per the Agreement, it was held to

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cover the resident’s continued residency and the various services provided by Bethany during

such occupancy, regardless of whether the resident was able to pay the monthly services fee.

¶ 45 Moreover, the Agreement expressly stated that Chestnut Square would pay interest on the

initial deposit at the passbook savings rate established by Bank One. The initial deposit, along

with interest that accrued on it, was applied to the entrance fee. Deposition testimony of one

of Bethany’s employees, Vera, indicated that Hamilton was allowed to “spend down” part of

her entrance fee on medical expenses. We conclude, as a matter of law, that the entrance fee

was not a security deposit, and that summary judgment was properly granted in Bethany’s

favor on those class claims.

¶ 46 C. Summary Judgment – Individual Claims

¶ 47 Plaintiff also contends that the circuit court erred in granting Bethany’s motion for

summary judgment as to her individual claims of fraud under the Consumer Fraud Act (815

ILCS 505/1 et seq. (West 2014)) and breach of contract.

¶ 48 As stated previously, when reviewing a circuit court's ruling on a motion for summary

judgment, the appellate court examines the record anew to determine whether a material

question of fact exists. CE Design, Ltd. v. Speedway Crane, LLC,

; Coole v. Central Area Recycling,

(2008). We review the circuit

court’s decision to grant summary judgment de novo. Loncarevic & Associates,

. We examine each of plaintiff’s individual claims in turn.

¶ 49 1. Fraud Claims

¶ 50 With respect to her fraud claims, plaintiff contends that the circuit court erred in finding

that there was no evidence that the entrance fee was in any way misleading under the Consumer

Fraud Act (815 ILCS 505/1 et seq. (West 2014)). Plaintiff claims the court erred because the

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Agreement is both deceptive and unfair; while it states that the entrance fee will be refunded

only when the apartment is re-occupied by a new tenant, it fails to disclose that the time for re-

occupancy is generally a year or more. Plaintiff contends that the length of time for re-

occupancy, longer than for ordinary apartments, is material and its omission is deceptive.

Plaintiff asserts that the omission of a material fact can be the basis for a claim of fraudulent

concealment.

¶ 51 It appears that plaintiff conflates fraud claims under the Consumer Fraud Act with common

law claims of fraudulent concealment. “To prove fraudulent concealment, a plaintiff must

establish that: (1) the defendant concealed a material fact under circumstances that created a

duty to speak; (2) plaintiff could not have discovered the truth through reasonable inquiry or

inspection, or was prevented from making a reasonable inquiry or inspection, and justifiably

relied upon the defendant’s silence as a representation that the fact did not exist; (4) the

concealed information was such that the plaintiff would have acted differently had he or she

been aware of it; and (5) the plaintiff’s reliance resulted in damages.” Phillips v. DePaul

University,

, (quoting Bauer v. Giannis,

(2005)). To assert a claim for fraudulent concealment, plaintiff must establish the

existence of a special or fiduciary relationship, which in turn gives rise to a duty to speak.

Phillips,

.

¶ 52 Plaintiff has made no such showings here. First, the record does not indicate that the refund

policy was concealed; the policy was clearly stated in the Agreement. Although the Agreement

did not contain a specific timeline for when the refund would occur, it did state “upon re-

occupancy of the apartment.” There is nothing in the record that suggests Hamilton was

prevented from making a reasonable inquiry as to the average or usual timeline of such refund

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if she decided to end her residency, nor was there any suggestion that Hamilton was prevented

from having the Agreement inspected by a family member or legal counsel before signing it.

In short, plaintiff’s only argument to support her claim of fraudulent concealment is the delay

of the refund itself. This argument does not satisfy the requirement of a genuine issue of

material fact that is necessary to avoid summary judgment, as mere argument is not enough to

raise an issue of material fact. Triple R Development, LLC,

.

¶ 53 Plaintiff further contends that Bethany’s practice was unfair under the Consumer Fraud

Act because Hamilton had no way of knowing the typical re-occupancy timeline, nor did she

have any meaningful control over re-occupancy of the apartment. Plaintiff maintains that the

Agreement is a nonnegotiable adhesion contract, the tenants are senior citizens, and the

entrance fee provision is buried in the contract without full disclosure of the likely waiting

period of a year or more. Plaintiff further argues that Bethany’s residents would reasonably,

but wrongly, assume that Bethany uses the four-month termination period to begin remarketing

the unit and prepare the refund. Plaintiff concludes that the deprivation of Hamilton’s entrance

fee for more than a year is the kind of unreasonable burden the Consumer Fraud Act is designed

to prevent. We disagree.

¶ 54 “The Consumer Fraud Act is a regulatory and remedial statute intended to protect

consumers against fraud, unfair methods of competition, and other unfair and deceptive

business practices.” Cripe v. Leiter,

(1998). It is to be liberally

construed to effectuate its purpose.

. Section 10a(c) of the Consumer Fraud Act

authorizes a private right of action for “[a]ny person who suffers actual damages as a result of

a violation of [the] Act.” 815 ILCS 505/10a(a) (West 2018); Krautsack v. Anderson,

(2006).

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¶ 55 Section 2 of the Consumer Fraud Act describes unfair or deceptive practices as:

“including but not limited to the use or employment of any deception, fraud, false

pretense, false promise, misrepresentation or the concealment, suppression or admission of

any material fact, with intent that others rely upon the concealment, suppression or

omission of such material fact * * * in the conduct of any trade or commerce * * *.” 815

ILCS 505/2 (West 2014).

¶ 56 Consequently, to sustain a deceptive practice claim under the Consumer Fraud Act, the

pleader must allege “(1) a deceptive act or practice by the defendant; (2) the defendant’s intent

that the plaintiff rely on the deception; and (3) that the deception occurred in the course of

conduct involving trade and commerce.” Evitts v. Daimler-Chrysler Mot. Corp.,

(2005) (citing Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A.,

(1999)). Additionally, a valid claim must show that the fraud proximately caused an

injury to the plaintiff. Kelly v. Sears Roebuck and Co.,

(1999).

¶ 57 Here, plaintiff has not provided any written or verbal statement by any Bethany employee

or agent at any point during Hamilton’s residency indicating that the entrance fee would be

either returned immediately upon notice of moving or within 120 days. Additionally, the

timeliness of returning the entrance fee only became deceptive to plaintiff because she assumed

a promise that was never made. Under plaintiff’s theory, any resident’s unprompted

assumption could become the basis for a deceptive practice claim. This would be an overly

broad interpretation of the Consumer Fraud Act, and this court has determined that the

Consumer Fraud Act is not intended to be used as a vehicle for transforming nondeceptive,

nonfraudulent conduct into actionable conduct. See Kellerman v. Mar–Rue Realty & Builders

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Inc.,

(1985). Thus, we find that Hamilton’s assumption does not

transform the refund policy into an unfair or deceptive practice.

¶ 58 Similarly, plaintiff has been unable to demonstrate that the delay in refunding the entrance

fee proximately caused an injury to Hamilton. Our supreme court has held that a plaintiff must

establish that he was actually deceived by the defendant’s representations or omissions in order

to establish proximate causation. Avery v. State Farm Mutual Automobile Insurance Co.,

(2005). Plaintiff has made no such showing here. Although the record certainly

indicates that the delay resulted in certain difficulties for Hamilton because she subsequently

became ill after moving out of Chestnut Square and later suffered a financial hardship by not

having the use of the entrance fee refund, such difficulties did not ipso facto result from

deception.

¶ 59 Based on the record before us, it is clear that there was no genuine issue of material fact as

to whether Bethany’s refund policy violated the Consumer Fraud Act, but only a dispute as to

the interpretation of the facts. See Borgenson v. Fairhaven Christian Home,

(1971). That is, it is undisputed that the parties signed the Agreement which contained

certain provisions, but the parties disagree as to how the agreement should be interpreted:

fraudulent or not. Thus, we conclude that the circuit court properly granted summary judgment

on plaintiff’s consumer fraud claim.

¶ 60 2. Breach of Contract Claim

¶ 61 Lastly, plaintiff contends that the circuit court erred in granting Bethany’s motion for

summary judgment on her breach of contract claim. Specifically, she argues that Bethany’s

delay in marketing the apartment and the lengthy re-occupancy period which led to Hamilton’s

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financial hardship frustrated Hamilton’s objectives under the Agreement and violated the

Agreement’s implied duty of good faith and fair dealing.

¶ 62 The essential elements of a breach of contract claim are: (1) the existence of a valid and

enforceable contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4)

resulting injury to the plaintiff. Pepper Construction Co. v. Palmolive Tower Condominiums,

LLC,

, ¶ 85. The duty of good faith and fair dealing is implied in

every contract and requires a party vested with contractual discretion to exercise it reasonably,

and not arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations

of parties. Seip v. Rogers Raw Materials Fund, L.P.,

(2011). The

duty, however, is not an independent source of duties for the parties to a contract, and is “used

as a construction aid in determining the intent of the parties where an instrument is susceptible

of two conflicting constructions.”

(quoting Fox v. Heimann,

(2007)).

¶ 63 Here, plaintiff does not allege that Bethany breached any parts of the Agreement as written.

There is also no issue regarding construction of the contract where we must determine the

intent of the parties. Nor does plaintiff allege any issue of material fact regarding her claim for

breach of contract; only the dispute concerning her interpretation of the facts in the case. Such

argument is insufficient to establish that an issue of material fact exists or that plaintiff is

entitled to judgment as a matter of law to overcome summary judgment. Accordingly,

summary judgment was properly granted in favor of Bethany on plaintiff’s breach of contract

claim.

¶ 64 In summary, we conclude that the circuit court properly granted summary judgment in

favor of Bethany on the class claims as a matter of law where the Agreement was not a lease

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subject to the provisions of the Interest Act or Deposit Return Act. Additionally, where the

record fails to disclose any disputed issues of material fact in this case, and plaintiff has not

established that Bethany was not entitled to judgment as a matter of law on her individual

claims, summary judgment was proper.

¶ 65 CONCLUSION

¶ 66 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 67 Affirmed.

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