## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Gagnon v. Schickel

, 2012 IL App (1st) 120645

Appellate Court Caption MI CHAEL J

. GA GN ON
, P l ai n t i ff -A p p el l an t , v

. DE BO RAH S CHI CKEL
, Def

endant- Appellee (Michae l J

. L aird and Mark I les, J r. , Def endants).

District & N o. First District, F irst Division Docke t No. 1-12-0645

Filed Dec ember 21, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from a joint venture betwee n plaintiff and defe ndant in which they

wer e alleg edly

“doingrea l estate tog ether ,” the trial court
proper ly dismiss ed the co u n t s seeking a decla ratory judgme nt and specific perf

ormanc e and claiming unjust enric hment
, since plaintiff’s claims wer e co n t radic ted by the g ift letter he wrote to defe ndant, there

was no wr itten contrac t, and a c laim for unjust enric hment could not be based on an express oral agree ment; howeve r, the trial court’s ruling s on the claim for unjust enric hment related to promises defe ndant alleg edly made to plai n t i ff with respe ct to the second proper ty purcha sed and on claims for promissory fra

ud and for a constructive trust wer e reve rsed and the ca use wa s remande d.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 08-CH-37052; the Hon. Martin S. Agran, Judge , presiding

.

J udg ment Affir med in part, re verse d in part, and r emande d with directions.Counsel on

Appea l L avin & Waldon, P.C ., of Chicag o (De nnis C. W aldon, of c ounsel), for appellant.

Ka plan Silverman L L C, of Chicag o (Arnold Kaplan, of counsel), for appellee

.

Panel PRES I DI NG J USTI CE HOF FMAN delivere d the judgme nt of the court, with opinion.
J ustices Cunningham and Delort concur red in the judgme nt and opinion.

OP INION

¶ 1 The plaintiff, Michae l Gagnon, appea ls from the trial court’s judgme nt finding in favor of the a ppellee, D ebora

h Schickel, on sever al counts of his 15- count complaint ag ainst her and two other defe ndants, Mi ch ael L aird and Mark I les, J r. , who are not parties to this 1
appea l. On appea l, the plaint i ff argues that the trial court err ed in dismiss ing three of the
counts of his c omplaint prior to tr ial and in finding in f avor of Schickel on three additional
counts following trial. For the rea sons that follow, we aff irm the trial court’s dismiss al of the first three counts of the plaintiff’s complaint, but we revers e th e t ri al court’s reje ction of three additional claims following a trial. We rema nd the cause wit h direc tions for t h e trial court to make further

finding s in acc ordanc e with the views expressed here in, a nd to order damag es as a

ppropriate

. ¶ 2 The plainti ff filed his amended c omplaint in May 2005. In that complaint, the pl aintiff alleg ed that he and Schickel agree d in 2004 to purcha se a Tinley Park house toge ther and to share the attendant costs and profits. The plaintiff alleg ed that he contributed his portion of the purcha se price and that he there afte r paid for a portion o f t h e u t i l i t i es, taxes, and i m p rovements. Howeve r, despite her assura nces that she would file a quitclaim dee d confe rring upon him a one-ha lf interest in the Tinley Park proper ty , Schickel never filed that deed; instead, she rema ined the sole rec ord owner of the Tinley Park proper ty

. In Dec ember 2 0 0 6, Schickel lear

ned that the plaintiff intended to purcha se investment prope rt y i n Bour bonnais. The complaint aver red that she “dema

nded *** that she be put on the title a s

a co-owner, beca

use, in her words, ‘we are doing rea l estate toge ther.’ ” Ba sed on his belief that the appellee had filed the quitclaim de ed for the Tinley Park proper ty naming him as a

co-owner, the plaintiff acc eded to Schickel’s demand. The complaint alleg ed that, there afte r, the plaintiff paid all of the expenses related to the Bour bonais proper

ty , including mortg ag e pay ments, taxes, appliance s, and improvements, and he rec eived all of the renta l income that

I le s’ s fi li ngs in the ci rc uit cou rt ind ic at e that his name is “M ark I le s,” not “M ark I le s, J r.” 1 However, we us e the s pel li ng fro m th e c om pla int

.
-2-the prope rty produce d. ¶ 3 The complaint stated that, in 2008, the parties’ person a l r e la tionship soured, and Schicke l there afte r denied that the pl aintiff had any interest in the Ti nley Park property

. It was only then, t he plainti ff al l ege d, that he learned that Schickel never conveyed a one-ha lf interest in the proper

ty to him. ¶ 4 Ba sed on the above alleg ations, the plai n t i ff b rought claims ag ainst Schickel see king

rec oupment of money he had contributed to the proper ties, an order compelling Schickel to convey to him a one-ha lf interest in the Tinley Park proper t y , an d an order compelling Schickel to relinquish any interest in the Bour bonnais proper

ty

. For the reme dies relating to the Tinley Park proper

ty , the plaintiff asser

ted claims for declara t o ry j udg ment (count I ), specific perf

ormanc e (count I I ), unjust enric hment (count I I I ), brea ch of contra ct (count V), brea ch of fiduciar

y duty (count VI ), p rom issory estoppel (count VI I ), equitable estoppel (count VI I I ), common law fra ud (count IX), constructive trust (count X), and rec ission of his
g ift ( i.e. , his contribution to the purchase price ) to Schickel (c ount X I ). Wit h respe ct to the Bo u rbonnais proper

ty , the plaintiff asser

ted a cause of action based on unjust enric hment (count IV), contending that it would be unjust to allow Schickel to r etain her interest in the Bour bonnais proper

ty , beca use the plaintiff conveyed it to h er , and paid all the expenses related to the proper

ty , based on his bel i ef that he share d owner ship of the Tinley Park
proper ty

. The plaintiff also s o ug ht reple vin of persona l proper ty left at the Tinley Park residenc e (count XI I ). The rema ining three counts of t he co mp l aint alleg ed malpractice or neg lige nce ag ainst L aird, an attorney involved in the transac tions (counts XI I I and XV), and I les, a mortgag e broker involved in the tra nsactions (c ount XIV). Those latter three counts

wer e dismissed befor e trial. ¶ 5 C o u n t I
, wh i ch as s er t ed a cl ai m for decla ratory relief ag ainst Schickel, sough t decla ratio n s th at (1) the parties had enter ed into a joint venture and oral agree ment to purcha se the Tinley Park p ro p er t y toge ther, to acquir e a 50% interest in the proper ty , and share the associate d costs of maintaining the proper ty and the profits from the appre ciation of the proper

ty ; (2) Schickel brea ched the terms of their oral agree ment by failing to rec ord the quitcl ai m d ee d; and (3) Schickel is bound by the terms of the joint venture and the
agree ment to sign the quitcla im deed, and have it recor ded with the Cook County rec order of dee ds. ¶ 6 Count I I sought a judgment requiring Schickel t o specific al l y p er form under the terms of the oral agree ment and j o i n t v enture with respe ct to the Tinley Park proper ty

. The complaint reque sted that the circ uit court order Schickel to sign the quitclaim deed and have it rec orded imm ediately with th e C o o k County rec order of deeds. In addition, the pl aintiff
reque sted injunctive relief prohibiting responde nt from acting inconsistently with the terms of the a g ree ment. ¶ 7 Count I I I alleg ed, in the alternati v e, t h at S ch i ck el was unjustly enric hed by the sole

owner ship of the Tinley Park prop er t y

. It asser ted that during the closing of that proper ty , Schickel rec eived a g ift from the plaintiff in the amount of $147,250, which was conditioned

on her signing a quitclaim deed convey ing 50% owner ship of the Tinley Park proper ty to the plaintiff within 30 day s of closing and rec ording it with the Cook County rec order of deeds.

-3-The plaintiff alleg ed that he paid for the g as and telephone bills rela ted to the Tinley Park
proper ty , as well as improvements and remode ling in excess of $37,000; one-ha lf of the rea l
estate taxes, estimated at $5,300 annually ; and that he spent more than 2,700 hours working

on the Tinley Park proper ty improvem ents and remode ling. Count I I I further alleg ed that Schickel obtained a $75,000 line of cre dit and used the Tinley Pa rk proper ty as collater al. Moreove r, the plaintiff claimed that the Tinley Park proper ty is va lued at least at $350,000 and that Schickel was unjustly enric h ed b y reta ining the benef its of the plaintiff’s contributions, monetary

and other wise. ¶ 8 Pursuant to Schickel’s motion, the trial court dismiss ed counts I
, I I
, I I I
, V, VI
, VI I I
, and XI of the complaint. In dismiss ing count I
, the trial court conclude d that the plaintiff failed
to adequa tely plead the elements nece ssary to show the parties’ intent to form a joint venture

. The court further found that the g ift letter, which was attache d as an exhibi t to the complaint, direc tly contra dicted, and there fore defe ated, the plaintiff’s claim alleg ing that the $147,250 he g ave to Schicke l was a c onditional gift. ¶ 9 Wit h reg ard to count I I
, the trial co u rt ru l ed t h at the plaintiff’s claim for spe cific perf ormanc e of the alleg ed oral contra ct must be dismiss ed beca use th e s t at u t e of fra

uds
prec ludes enfor ceme nt of a contra ct for the s ale of land wit hout a sig ned, wr itten contrac t. The court also conclude d, that even if the contra ct wer e enfor cea ble, the plaintiff did not satisfy his obligation under the contra ct, beca use the $147,250 was not g iven in exchang e for

an owner ship interest in the proper ty or any obligation of repa y ment, as demonstrated by the
g ift letter that wa s attache d as an e x hibit to t he complaint. ¶ 10 L astly
, count II I wa s d i s m issed based on the trial court’s deter mination that the theory of unj ust enric hment can apply only to a contra ct implied in law. There fore , the cour t held that the claim for u n

j ust enric hment could not proce ed wher e the plaintiff simult aneously alleg ed the pa

rties had a

n express oral agree ment. ¶ 11 The circ uit court also initially dismiss ed count IV, on the basis that an unjust e nrichment theory asser

ts the exis tence of a quasi-contr actua l relationship, which cannot ex ist wher e there is an actua l contra ct. T h e court rea soned that the mortg ag e and title documents ref lecting Schickel’s owner ship constituted such an actua l contra ct. Howeve r, in response to Schickel’s motion to rec onsider, the court conce ded that the dismiss al had been improper, and it reinstated c ount IV. The c ause pr ocee ded to trial on counts IV, VI I , IX, X, and X I I

. ¶ 12 In his trial testimony
, the plaintiff explained that he contribut ed t o the purcha se of the Tinley Park home with the expectation that Schickel would file a quitclaim deed convey ing

a one-ha lf interest to him. In fac t, he testified, she agree d to do so, assure d him afte r the purcha se that she would do so, but in ac tuality never did. He also descr ibed improvements he had made to the Tinley Park residenc e. He fu rt h er ex p l ained that he purcha sed the Bour bonnais proper

ty with his own money , but allowed Schickel to have a one-ha lf

owner s h i p i ntere st, beca

use she told him that they wer e “doing rea l estate toge ther.” He stated that he paid all expenses relating to the Bour bonnais proper

ty

. For her part, Schickel testified that the plaintiff agree d to allow her to reta in fu l l owner ship of the Tinley Park
proper ty as a way to assuag e her conce rn that joint owner ship might complicate any brea kup of their volatile relationship. She also said that the parties rea ched an agree ment to have the

-4-plaintiff pay for the B ourbonnais prope rty but to share owne rship. ¶ 13 In a memorandum decision fol l o wi n g t h e trial, the circ uit court g rante d the plaintiff a judgme nt based on promissory estoppel (count VI I ), premised on a finding that the plaintiff helped purcha se the Tinley Park proper ty in relianc e on a promise that he would be g iven an equal owner ship share

. The court found in Schickel’s favor on the plaintiff’s claims of unjust enric hment (count IV) and common-law fra ud (count IX), and it reje cted the plaintiff’s
reque sts for a c onstructive trust (c ount X) or f or replevin (count XI I ). ¶ 14 The court reje cted the unjust enric hment cl ai m fo r t h e s am e rea sons it had initially dismiss ed the claim: it rea soned t hat t h e exis tence of an actua l contra ct (the mortg ag e and deed relating to the Bour

bonnais proper

ty) prec luded a cause of action for unjust enric hment, which is a quasi-contr actua l reme dy

. With respe ct to the common-law fra ud claim, the court conclude d that promissory fra ud “is not actionable in I llinois unless the promise is part of a scheme to defr aud.” The court found t hat S chicke l “promised to quitclaim one half of t he Tinley Park proper

ty to Plaintiff” but “neve r intended to do so,” and held that “[t] his meets the definition of promissory fra ud” and thus that the plaintiff could not succe ed on his fra ud claim. The court reje cted the plaintiff’s reque st for a constructive trust premised on the fra ud
argument which the c ourt had re jected. ¶ 15 Ba sed on its promissory estoppel finding
, the court awa rded the plaintiff a ref

und of the
money he had c ontributed to the purcha se of the Tinley Park prope rty , plus one-half of the
proper ty ’s incre ase in va lue. ¶ 16 Whil e a postjudgment motion rema ined pending
, the plaintiff filed an appea l of the trial court’s ruling
, which we dismiss ed as p re m at u re

. Gagnon v. Schick el
, 2012 I L App (1st) 111421-U. The plaintiff t here afte r obt ained a final rul i n g o n th e pending motion and filed this ti mely

appea l. ¶ 17 The plaintiff’s first argument on appea l is that the trial court err ed in dismiss ing the first three counts of his complaint. A motion to dismiss a complaint may be brought under section 2-615 or section 2-619 of the Code of Civil Procedur e. See 735 I L CS 5/2-615, 2-619 (West 2010). A section 2-615 motion to dismiss attacks the leg al sufficie ncy of the complaint and it must point, with specific ity
, to the allege d defe cts on the face of the complaint. S ee 7 3 5 I L CS 5 / 2 -6 1 5 (W es t 2010). On revie w of a dis missal for failure to state a claim, t he court

conce rns itself only with the alleg ations of the complaint and whether they adequately state the necessar

y elements for

the ca use of a ction alleg ed. Duncan v . Rzonca , 133 I ll. App. 3d 184, 190-91, 478 N.E.2d 603, 607 (1985). On the o t h er h an d
, a section 2-619 motion to dismiss does not attac k the leg al sufficie ncy of the claims, but rather attacks the complaint by raising defe nses or other aff irmative matters, based on the alleg ations pleade d or outside authority
, which would defe at the plaintiff’s claims. Aurelius v. State Farm Fire & Casualty Co. , 384 I ll. App. 3d 969, 972-73, 894 N.E.2d 765, 769 (2008)

. ¶ 18 Pleading s must be construed liberally with the aim of “doing substantial justice betwee n the parties.” W

ysock i v. Bedrosian
, 124 I ll. App. 3d 158, 162, 463 N.E.2d 1339, 1343 (1984). The revie wing court should interpre t the asser tions of the co m p l aint in the light most favor able to the plaintiff by acc epting as true al l we l l -pl eade d fac ts and the rea sonable infere nces that can be drawn from them. Id. at 162-63, 463 N.E.2d at 1343; see also Aurelius
,

-5-384 I ll. App. 3d at 973, 894 N.E.2d at 769 (noting that this rule applies to motions to dismiss

brought under both sections 2-615 and 2-619). An exhibi t attache d to a complaint become s part of the pleading for ev er y p u rp o se, including the decision on a motion to dismiss

. W ysock i
, 124 I ll. App. 3d at 162, 463 N.E.2d at 1343 (citing I ll. Rev. Stat. 1981, ch. 110, ¶ 2- 606); see a lso Brunette v. V ulcan Materials Co. , 119 I ll. App. 2d 390, 395- 96, 256 N.E.2d 44, 46 (1970) (af

firming the dismiss al of a complaint for specific perf orm an ce wher e the plaintiff fa iled to adequately plead the e x istence of an ora l contrac t beca use exhibit s to the complaint showed that the parties intended to subsequently formalize thei r agreement in writing
, but did not do so). Where an exhibi t c ontradicts the alleg ations in a complaint, the exhibi t controls. In re Estate of Casey
, 222 I l l

. App. 3d 12, 19, 583 N.E.2d 83, 88 (1991) (citing Outboard Marine Corp. v. Jam es Chisholm &Sons, Inc. , 133 I ll. App. 3d 238, 478 N.E.2d 651 (1985)). A trial court’s dismiss al pursuant to a section 2-615 or section 2-619 motion is revie wed de novo

. Aurelius , 384 I ll. App. 3d at 973, 894 N.E.2d at 769. ¶ 19 Her e, the plaintiff alleg ed that he and Schickel enter ed into an oral agree ment, pursuant to which he agree d to pa

y Schickel one- half the pur chase price of the Tinley Park proper

ty in e x chang e for her promise to convey a 50% interest to him afte r the closing

. As such, the essential nature of the agree ment betwee n the plaintiff and Schickel was for the purcha se of

an interest in rea l proper

ty

. Acc ording ly
, the statute of fra uds would preve nt enfor ceme nt of their alleg ed oral agree ment. See 740 I L CS 8 0 / 2 (West 2010). The plaintiff attempts to

overc ome this hurdle by alleg ing that he “fully perf ormed all of his oblig ations pursuant to the J oint Venture and the [a] g ree ment” and, thus, that the perfo rmanc e exception to the
statute of fra

uds is applicable to permit enfor ce m ent of the alleg ed agree ment despite the absenc e of a written agree ment. See An s o n v. Haywood
, 397 I ll. 370, 379, 74 N.E.2d 489, 493-94 (1947) (holdingthat oral c ontrac ts f or the future c onveyance of land a re not ba rre d by the s tatute of fra

uds if one party has already fully perf ormed his par

t of the agree ment). As his perf

ormanc e of the alleg ed agree ment, the plaintiff points to : (1 ) h i s expenditures related to the improvements and remode ling of the proper ty ; (2) his annual pay

ment of 50% of the proper

ty ’s rea l estate tax; (3) the hours he dedicated to working on the improvements and remode ling of the proper ty ; (4) his pay

ments of all the g as and telephone bills related to the proper

ty ; and (5) his condition al g ift to Schickel of 50% of the purcha se price for the
proper ty

. Howeve r, we need not decide whether the statu t e o f fr auds bars the plaintiff’s claim, beca

use we find that he has failed to adequately plead the exis tence of an oral contra ct. ¶ 20 The plaintiff alleg ed, as a term of the oral contra ct, that he g ave Schickel a “conditional
g ift” consisting of one-ha lf of the purcha se price for the proper ty

. Howeve r, the g ift letter that

was attache d as an exhibi t to the plaintiff’s complaint entirely ref utes his alleg ations that his monetary g ift was conditioned on some subsequent action by Schickel. The g ift letter clea rly
states that it was “a bona fide g ift with no obligation expected or implied, to repa y this sum at any time” and that the donor’s g ift is not “being made available from any person or entity with an intere st in the sale of this proper ty .” ¶ 21 The plaintiff attempts to explain the appar ent discrepa ncy by arguing that a conve y ance of an inter est in the proper ty is not the equivalent of repa y ment, and, therefor e, the exhibi t is not inconsistent with his claim that the amount tender ed was a conditional gift. This
argument is unpersua sive. The later convey ance of an i n t er es t i n the proper ty is a form of

-6-repa y ment, expected or implied. Moreove r, the plaintiff has clea rly alleg ed in his complaint that he had an interest in the sale of the proper ty , i.e
, acquiring an owner ship interest in the

rea l estate. Acc ording ly
, the g ift letter the plaintiff attache d to his complaint direc tly ref utes any alleg ation that he had a contra ct for the conveyance of proper ty

. As noted above, wher e

a complaint’s alleg ations and exhibi ts conflict, the exhibi ts control. See Estate of Casey
, 222 I ll. App. 3 d at 1 9
, 583 N.E.2d at 88 (citing Outboard Marine
, 133 I ll. App. 3d 238, 478 N.E.2d 651). ¶ 22 Be ca u s e an ex hibit to the complaint contra dicts an essential term of the alleg ed o ra l
contra ct, he has failed to sufficie ntly alleg e an oral contra ct. There fore
, the plaintiff’s claim for specific perfor

mance was properly dismiss ed for failure to adequat ely plead a cause of action. See Intini v. Marino
, 112 I ll. App. 3d 252, 256, 44 5 N. E

. 2 d 4 6 0
, 464 (1983) (conc luding that to enfor ce an oral agree ment for the sale of land, “ ‘the court must find [i n part] that the terms of the contra ct are clea r, definite, and unequivoca l’ ” (quoting Blaise v. Stein , 75 I ll. App. 3d 793, 796, 394 N.E.2d 836, 839 (1979)) ). ¶ 23 We next consider the propriety of the dismiss al of the p l ai n t iff’s claim for de clar atory relief

. Dec laratory judgme nt is a mode of relief which permits a court to consider a m atter afte r the dispute has d ev el o p ed
, but “bef ore steps are taken which g ive rise to claims for damag es or other relief

.” (Interna l quotation marks omitted.) Beahringer v. Page
, 204 I ll. 2d 363, 373, 789 N.E.2d 1216, 1223 (2003) (quoting Kaske v. City ofRock ford
, 96 I ll. 2d 298, 306, 450 N.E.2d 314, 317-18 (1983))

. Its purpose is to al l o w t h e p ar ties to resolve the disputes or aspec ts of the dispute befor e either party has chang ed their position in way s that will irrevoc ably aff

ect their rig hts. First of

America Bank, Rock

ford, N.A. v. Netsch
, 166 I ll. 2d 165, 174, 651 N.E.2d 1105, 1109 (1995). To succe ssfully all ege a ca u se of action for decla ratory judgme nt, the complaint must suff iciently state an actua l a

nd leg al controve rsy and a reque st for decla

ration of rig hts. Senese v. Climatemp, Inc.
, 222 I ll. App. 3d 302, 313, 582 N.E.2d 1180, 1187 (1991)

. ¶ 24 In this case , the plaintiff’s complaint soug ht decla rations that the parties had enter ed into

a joint venture and an agree ment to purcha se the Tinley Park proper ty , that Schickel brea ched that agree ment, that she was bound to perf orm her obligations under the agree ment, and that she is e stopped from disputing the afor ementioned decla rations. The plaintiff’s alleg ations rely on a dete rm ination that a valid, enfor cea ble agree ment exis ted betwee n the parties. Howeve r, for t h e re as o ns we have alre ady discussed, the plaintiff has failed to alleg e the exis tence of an enfor cea

ble agree ment. Acc ording ly
, we conclude that the plaintiff’s claim for de clar atory

relief was prope rly

dismiss ed. ¶ 25 We next addre ss the plaintiff’s ar gu m en t t h at the circ uit court err ed in dismiss ing his claim for unjust enric hment relating to the Tinley Park proper ty

. To state a claim for unjust enric hment, “a plaintiff must alleg e that the defe ndant has unjustly reta ined a benef it to the plaintiff’s detr iment, and that def endant’ s rete ntion of the benef it violates the fundame ntal principles of justice, equity
, and g ood conscie nce.” HPI Health Care Servic es, Inc. v. Mt. Vernon Hospital, Inc.
, 131 I ll. 2d 145, 160, 545 N.E.2d 672, 679 (1989). Unjust enric hment is not an independent cause of a ction. Martis v. Grinnell Mutual Reinsurance Co.
, 388 I ll. App. 3d 1017, 1024, 905 N.E.2d 920, 928 (2009) (citing Mulligan v. QVC, Inc.
, 382 I ll. 2d 620, 631, 888 N.E.2d 1190, 1200 (1989))

. Rather, “it is a condition that may be brought

-7-about by unlawful or improper conduct as define d by law, such as fra ud, duress, or undue influence ” (interna l quotation marks omit t ed) ( Alliance Acc eptance Co. v. Y ale Insurance Agenc y, Inc.
, 271 I ll. App. 3d 483, 492, 648 N.E.2d 971, 977 (1995))
, or, alternatively
, it may be based on contra cts which are implied in law ( Perez v. Citi corp Mortgage, Inc.
, 301 I ll. App. 3d 413, 425, 703 N.E.2d 518, 526 (1998))

. This theory is inapplicable wher e an express contra ct, oral or written, g overns the parties’ relationship. Id

. A plaintiff is permitted to plead brea ch of contra ct claims in addition to unjust enric hment. See Bureau Servic e Co. v. King
, 308 I ll. App. 3d 835, 721 N.E.2d 159 (1999) (a complaint may proper ly pl ea d al ternative theories of rec overy d es p i t e their appar ent inconsistency ). Thus, althoug h a plaintiff may plead claims alternatively based on express contra ct and an unjust enric hment
, t h e unjust enric hment claim cannot include alleg ations of an express contra ct. Guinn v. Hoskins Chevrolet , 361 I ll. App. 3d 575, 604, 836 N.E.2d 681, 704 (2005). ¶ 26 Her e, the basis of t he plainti ff’s claim of unj ust enric hment rela ting to the Ti nley

Park
proper ty is that he and Schickel had a quasi-contr actua l agree ment that obligated her to g rant him an interest in the proper ty in exchang e for his contribution to its purcha se. Howeve r, as with the first two counts of the complaint, this alleg ation is rebutted by the g ift letter the plaintiff attache d to his complaint. See Sharkey v. Snow
, 13 I ll. App. 3d 448, 451, 300 N.E.2d 279, 281 (1973) (“e x hibits attac hed to [a] c omplaint [become ] a part there of for all
purposes [citation]
, and the fac tual matters contained in the exhibi ts which are inconsistent with aver ments of the complaint s er v e to neg ate such aver ments”). Be cause the g ift letter
contra dicts and eff

ecti v el y n u llifies the “conditional g ift” asser tion, the plaintiff cannot sustain a claim for unjust e nrichment. Acc ording ly , we aff irm the dismiss al of Count I I I of the plaintiff’s c omplaint. ¶ 27 The plaintiff’s rema ining arguments challeng e the trial court’s judgme nt followingtrial. The first of these arguments challeng es the trial court’s reje ction of the claim raised in count IV of his complaint for unjust enric hment relating to the Bour bonais proper

ty

. Whil e count I I I was premised on an agree ment betwee n the p ar t i es t o transfe r owner ship in the Tinley Park p ro p erty in exchang e for funds descr ibed in the g ift letter, count IV is premised on a differ ent set of promises entirely

. In count IV, the plaintiff alleg ed that his decision to g rant the pl aintiff an interest in the Bourbonais property was in du ce d by her assuranc es t hat s he had or would g rant him an interest in the Tinley Park proper ty

. Thus, the g ift letter does not ref ute the plaintiff’s alleg ations on this point . Nonethele ss, we conclude that the trial court

err ed in re jectingcount IV. ¶ 28 To reje ct t he plainti ff’ s unjust enrichment cla im, the trial court cited Perez for the rule that “[t] he theory of unjust e nrichment is based on a contra ct implied in law and, there fore
, does not apply wher e there is a specific contra ct that g overns the relationship of the parties.” See Perez
, 301 I ll. App. 3d at 425, 703 N.E.2d at 526. The trial court rea soned that, here
, the deed convey

ing the Bour

bonais proper

ty to the parties in joint tenanc y , and the mortg ag e and loan documents on which their names appear , constitute the t y pe of contra cts b et we en the parties that pr eclude rec overy for unjust enric hment. We disag ree

. ¶ 29 It is true that a party may not seek a quasi-contr actua l reme dy such as unjust enrichment wher e an actua l contra ct g overns their relationship. That is, “[t] he courts will not im p l y a contra ct wher e there exis ts an ex p re s s contract betwee n the parties on the same subject

-8-matter.” University of Illinois v. Continental Ca s u a l t y Co. , 234 I ll. App. 3d 340, 353, 599 N.E.2d 1338, 1348 (1992). Indeed, this is the rea son we uphold the trial court’s dismiss al of Count I I I of the complaint rela ting to the Tinley Park proper ty

. Howeve r, the deed and loan documents re lating to the Bourbonais property do not underc ut the plaintiff’s B ourbonaisrelated alleg ations in the s ame way the g ift letter underc uts his Tinley Park-r elated alleg ations. The deed define s the parties’ share d proper ty rights, and the mortg ag e and loan documents outline their share d debt obligation to their lender

. None of these documents define the parties’ obligations to eac h other. Fur ther, none of the documents cover the same subject matter a s forms the basis of t he plainti ff’ s unjust enric hment claim. To support his claim, the plaintiff alleg ed that Schickel was u n j u s t ly enric hed beca

use her fra

udulent conduct induced his agree ment to share owner ship of the Bour bonais proper

ty with her. The deed rec ording the conveyance of that proper ty , and the l o an documents relating to the

co n v ey an ce, do not speak to the inducement on which the plaintiff bases his claim–they memorialize the eff

ect of the alleg ed induce ment. ¶ 30 In her brief on appea l, the defe ndant asser ts that the plaintiff ca n n o t o b tain a quasicontra ctual reme dy beca

use, under the doctrine of merg er by deed, any agree ments betwee n the parties are g overne d by the deed to the Bour bonais proper

ty

. Howeve r, as the defe ndant
notes in her brief, the doctrine of merg er by deed holds that “all prior agree ments between

a buyer and a seller are merg ed in the deed upon its acc eptanc e.” (Emphasis added.) Czarobski v. Lata
, 227 I ll. 2d 364, 369, 882 N.E.2d 536, 540 (2008). Her e, the dispute does
not conce rn an arr ang ement betwee n the buyer and seller of the Bo u rb o n ai s proper ty , but betwee n the co-buyers of the Bour bonais proper

ty

. Thus, the doctrine of merg er by deed does not apply

. ¶ 31 Acc ording ly
, we agree with the plaintiff that the trial court err ed in r uling that the dee d and loan documents constitute writt en contracts that pre empt his unjust enric hment claim. For that rea son, we conclude that the trial court err ed in its judgme nt as to count IV. That is
not to say , howeve r, that the plaintiff must succe ed on his unjust enric hment claim. The trial
court reje cted his c laim sole ly based on the theory that it wa s pree mpted as a ma tter of law by the deed and loan documents. Thus, the c ourt did not resolve a ny of the other fac tual or leg al issues relating to the claim. For that rea son, we must reve rse that portion o f t h e t rial court’s ruling reje cting the plaintiff’s unjust e nrichment claim on the Bour bonais proper

ty , and re mand for f

urther pr ocee dings c onsistent with thi s decision. ¶ 32 The plai n t i ff n ex t argues that the trial court err ed in reje cting his common-law f raud claim on the basis that it constituted non-ac tionable promissory fra ud. The promissory fra

ud doctr i n e, a doctrine peculiar to I llinois law, holds that a plaintiff cannot maintain a fra ud action based on a fra

udulent promise to perf

orm a future act. See Michae l J

. Polelle & Br uce L

. Ottley
, I llinois Tort L aw § 9.04 (3d ed. 2001) (discussing the promissory fra ud doctrine)

. In 1909, the supreme court a rticulated the rationale supporting this doctrine as follows:
“I f a promise is ma de to do somethingin the future a nd at the time it is not i ntended to perf orm the promise, that fac t do es n ot constitute a fra ud in the law. [C itations.] I f an intention not to perf

orm constituted fra

ud, ever y transac tion might be avoided wher e the fac ts justified an infere nce that a party did not intend to pay the considera tion or keep his
agr eement. A mere brea ch of a contra ct does not amount to a fra ud, and neit h er a

-9-knowledg e of inability to perf orm, nor an intention not to do so, wo u l d m ake the
transac tion f

raudule nt.” Miller v. Sutliff
, 241 I ll. 521, 526-27, 89 N.E. 651, 652 (1909). ¶ 33 This promissory fra ud doctrine is limit ed, however, by th e ru l e t hat even such fraud is

ac t i o nable if it was part of a scheme or artifice to defr aud. See Polelle & Ottley
, s u p r a , § 9.04; Doherty v. Kahn
, 289 I ll. App. 3d 544, 562, 682 N.E.2d 163, 176 (1997) ( abrogated

on other grounds by Byung Moo Soh v. Target Marke ting Systems, Inc.
, 353 I ll. App. 3d 126, 817 N.E.2d 1105 (2004))

. This “sche me to defr aud” exception has been explaine d a s f o ll ows: “As a g ener al rule, promissory fra ud, based on fut u re ac t s, is not actionable in I llinois unless the promi s e i s a p ar t of a ‘sche me’ to defr aud. [C itation.] The distinguishing features of a ‘sche me,’ howeve r, are not clea r in I llinois case law, an d th e exception, there fore
, s ee ms to engulf the g ener al rule beca use, ‘[a]s fra

ud occur s when a misrepre sentation is ma de with intent to induc e a victim to rely there on and a vic tim is dece ived and relies ther eon to his detriment, such misrepre sentations are ordinarily the scheme s by which the victim is defr auded reg ardle s s of whether the misrepre sentation is as to the decla

rant’s future intent or otherwise.’ [C itatons.] ” Gene ral Electric Credit Auto Lease, Inc . v. Jank

uski , 177 I ll. App. 3d 380, 384, 532 N.E.2d 361, 364 (1988). ¶ 34 Ba sed on this co n ce p t i o n o f a s ch eme to defr aud, there can be no doubt that such a scheme exis ted here

. The trial court found that “[i] t is clea r from the evidenc e that [S chicke l] promised to quit claim one half of the Tinley Park proper ty to Plaintiff” but “neve r intended
to do so.” This intentional misrepre sentation amounts to a scheme to defr aud, so t h at h er promissory

fra ud is, in fact, ac tionable. ¶ 35 The trial c ourt reje cted the pla intiff’s fraud claim based solely on the above rea soning, without reac hing a

ny of the a dditional factua l or leg al issues raise d by the claim. Thus, we

reve rse the trial court’s judgme nt on this claim and rema nd for further finding s consistent with this opi nion. ¶ 36 In so doing, we observe that the defe ndant argues that there cannot have been any fra ud based on a promise to convey the Tinley Park proper t y , b ec au s e she could not have made such a promise without violating the terms of her Tinley Park mortg ag e. This point, howeve r, does not pr eclude a finding that the defe ndant committed fra ud ag ainst the plaintiff; it only establishes that, if she did promise to convey owner ship of the Tinley Park proper ty to him, she promised a lso to breac h her mortg ag e agree ment. ¶ 37 The plaintiff’s final argument on appea l is that the trial court err ed in reje cting his c laim for a constructive trust on the Tinley Park proper ty

. The trial court’s sole rea son for reje cting the pl aintiff’s constructive trust claim was that the claim was premised on the fr au d claim the court had alre ady reje cted. Be cause we hold that the trial court err ed in reje cting the fra ud claim, we m u s t al so hold that the trial court err ed in reje cting the claim for a constructive
trust. ¶ 38 For the foreg oing rea sons, we affirm the trial court’s dismissal of the first thre e counts

o f t h e p laintiff’s complaint. On count IV, we reve rse the trial court’s reje ction o f t h e plaintiff’s unjust enric hment claim on the Bour bonais proper

ty and reman d for further
proce eding s consistent with this decision. L ikewise, we reve rse the tr ial court’s rulings on

co u n t s IX and X. We rema nd the cause with direc tions for the trial court to make furth er

-10-finding s in acc ordanc e with the views expressed above, and to order damag es as appropr iate.

In so direc ting, we note that the trial court has alre ady g rante d the plaintiff relief –in the form of half of the purcha se price of the Tinley Park residenc e plus half of its appre ciation–on his promissory estoppel claim. Many of the plaintiff’s other prayers for relief are stated (or must be considere d) as alternatives to, rathe r than cumulative with, the relief alre ady g rante d him. Thus, we also instruct that, afte r it has rec onsidered the vacated portions of its judgme nt, the trial court should, to the extent nece ssary , rec onsider the damag es to be awa rded the plaintiff
to ensure that the total relief grante d to him is equitable and consistent. That is, the plaintiff should be allowed to rec over only once, whether by money damag es or some other relief
, for
any wrong ful deprivation of rig hts relating to the Tinley Park proper ty

. L ikew i s e, t h e plaintiff’s claims relating to the Bour bonnais proper

ty assume that he was wrong fully denied

an interest in the Tinley Park proper ty

. I f he is g rante d owner ship of the Tinley Park proper ty , or the monetary equivalent, an awa rd of further damag es relating to th e Bour bonnais proper

ty would amount to a double rec overy and would rende r the jud gm en t inconsistent in its totality

.

¶ 39 Affir

med in part, re verse d in part, and r emande d with directions.

-11-