Kuykendall v. Schneidewind
2017 IL App (5th) 160013
Ill. App. Ct.2017Background
- Kuykendall (buyer) purchased a commercial property from the Evelyn J. Schneidewind Revocable Trust (seller) in July 2014; buyer received a tenant estoppel certificate (Dollar General) stating landlord was not in default as of June 27, 2014.
- After closing, tenant sent multiple certified letters (July–Nov 2014) notifying landlord/owner of needed repairs (parking, drainage, roof, lighting); buyer paid $8,973 to make repairs and sought reimbursement from the Trust.
- Buyer sued alleging fraud, breach of contract (breach of the Agreement’s warranty that the estoppel certificate was accurate), and Consumer Fraud Act violations; he attached the Agreement, the estoppel certificate, tenant letters, and repair receipts.
- Defendants moved to dismiss under 735 ILCS 5/2-619(a)(9), arguing the Agreement’s "AS IS" clause and submitted affidavits denying they were sellers/brokers or had special duties; trial court granted dismissal with prejudice but denied fee and sanctions requests.
- On appeal the Fifth District reversed dismissal (finding the "AS IS" clause did not, on its face, defeat the claims; other contractual warranties and estoppel-specific provisions limit the "AS IS" clause), affirmed denial of sanctions, denied supplementation of the record with an omitted page of the Agreement, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Agreement’s "AS IS" clause is an affirmative matter that bars claims | Kuykendall: the clause does not bar claims because the contract contains seller warranties, duty to disclose known defects, and an express warranty as to estoppel certificates | Trust/defendants: the "AS IS" clause removes seller liability for post-closing defects and defeats the claims | Held: "AS IS" clause is not dispositive; read with the contract it is subject to exceptions (warranties, disclosure duty, estoppel warranty) and does not defeat the complaint under 2-619(a)(9) |
| Whether defendants’ affidavits constitute an affirmative matter negating plaintiff's allegations (no duty/special relationship) | Kuykendall: pleadings allege possible special relationships, enterprise liability, and higher disclosure duties that require discovery | Defendants: affidavits deny ownership, brokerage, agency, or trustee roles and say they had no contact—these facts defeat the claims | Held: affidavits did not negate well-pleaded allegations or refute inference of special relationships; dismissal under 2-619 was improper; summary procedures not appropriate absent fuller record |
| Whether the appellate record may be supplemented with an omitted page of the Agreement | Kuykendall: omitted page alters interpretation and conflicts with "AS IS" provision; should be added to record | Defendants: omitted page was not part of the trial-court record and may not be added on appeal | Held: denied—Rule 329 only permits supplementation with documents that were before the trial court; omitted page not part of record |
| Whether sanctions (trial or appellate) were warranted under Rule 137 or Rule 375 | Kuykendall: (opposed) plaintiff contends claims were reasonable | Defendants: pleadings and appeal were frivolous, seek Rule 137 sanctions and Rule 375 sanctions for frivolous appeal | Held: trial court did not abuse discretion in denying Rule 137 sanctions; appellate Rule 375 sanctions likewise denied—appeal not frivolous |
Key Cases Cited
- Sandholm v. Kuecker, 962 N.E.2d 418 (Ill. 2012) (standard and scope of a section 2-619(a)(9) motion)
- Epstein v. Chicago Bd. of Educ., 687 N.E.2d 1042 (Ill. 1997) (affirmative matter must do more than refute well-pleaded facts)
- Gallagher v. Lenart, 874 N.E.2d 43 (Ill. 2007) (contract construed as a whole; no single clause controls)
- In re Estate of Boyar, 986 N.E.2d 1170 (Ill. 2013) (motion to dismiss under section 2-619 reviewed de novo; pleadings construed for nonmoving party)
- Kedzie & 103rd Currency Exch., Inc. v. Hodge, 619 N.E.2d 732 (Ill. 1993) (definition and effect of affirmative matters)
- Napcor Corp. v. JP Morgan Chase Bank, N.A., 938 N.E.2d 1181 (Ill. App. 2010) (limitations on using an "AS IS" clause to bar contract-based claims)
- Lake Envtl., Inc. v. Arnold, 39 N.E.3d 992 (Ill. 2015) (Rule 137 is discretionary; appellate courts defer to trial court’s sanction decision)