Dispute over Farm Assets and Cell Tower Lease: A Breach of Contract and Fraud Case, Study notes of Law

Download Dispute over Farm Assets and Cell Tower Lease: A Breach of Contract and Fraud Case and more Study notes Law in PDF only on Docsity! NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 2020 IL App (3d) 190080-U Order filed July 24, 2020 ____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2020 BRIAN D. NELSON and REBECCA K. ) NELSON, ) ) Plaintiffs-Appellants, ) ) v. ) ) DOUGLAS R. NELSON, NEAL R. NELSON, ) LORI B. NELSON, LANDMARK DIVIDEND, ) LLC, LANDMARK INFRASTRUCTURE ) HOLDING CO., BRUCE L. CARMEN, and ) CARMEN LAW OFFICE, P.C., ) ) Defendants-Appellees. ) Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Appeal No. 3-19-0080 Circuit No. 15-L-23 Honorable Terence M. Patton, Judge, Presiding. ____________________________________________________________________________ JUSTICE SCHMIDT delivered the judgment of the court. Justices Carter and Holdridge concurred in the judgment. ORDER ¶ 1 Held: The circuit court did not err in its disposition of plaintiffs’ claims. ¶ 2 This dispute arises out of the attempt to transfer business and personal assets valued in the millions of dollars between family members. The transfers were meant to effectuate the substitution of one party for another in the Nelson Family Farms, LLC (LLC). The contract - 2 - controlling these transactions consisted of handwriting on two sides of a single sheet of paper. Plaintiffs, Brian and Rebecca Nelson, drafted the contract. Without consulting an attorney or exercising due diligence, the parties began exchanging money and equipment. One of the parties contacted an attorney to complete the title work necessary to transfer parcels of real estate contemplated in the contract and to effectuate the substitution of members in the LLC. Plaintiffs advanced numerous arguments based on the contract language, transfer of real property, fiduciary duties, and an alleged oral contract delegating responsibility for the transfer of the real property. Specifically, at issue in this matter is a lessor’s interest in a cell tower lease sold to a third party. The circuit court either dismissed plaintiffs’ claims or granted summary judgment in favor of defendants. For the reasons that follow, we affirm. ¶ 3 I. BACKGROUND ¶ 4 Brothers Brian and Doug Nelson jointly operated a hog confinement business. In 2007, the brothers created the LLC, an Illinois limited liability company, with each being equal owners and serving as member-managers. The LLC owned the land on which the confinement business was located. Abutting this land was a grain handling facility that was imbedded within a 160-acre parcel referred to as the Home Farm. Brian, Doug, and their mother created a land trust in 1990 known as the Nelson Family Land Trust. Brian and Doug are the sole beneficiaries (and owners) of the trust. The land trust held legal title to some of the property involved in the farm operations including the Home Farm. Brian, Doug, and Doug’s son, Neal Nelson, each farmed grain on land they owned or rented individually but made payments to each other to equalize the amount of land each farmed. ¶ 5 Neal and his wife, Lori Nelson, jointly owned a 64-acre property referred to as Viola Farm and a lessor’s interest in a lease for a cell tower located on the property. The lessor’s interest in the - 5 - an outstanding mortgage encumbering the property was also apparent. Carmen sent invoices to the LLC for the work done at the direction of Doug. ¶ 12 B. Cell Tower Lease ¶ 13 In order to transfer Viola Farm to Brian, Neal was required to pay off the mortgage encumbering the property before closing. Prior to December 13, 2014, Neal had been in contact with Landmark Dividend, LLC, and Landmark Infrastructure Holding Company, LLC, (Landmark) about selling the lessor’s interest in the cell tower lease. After Brian, Doug, and Neal had signed the contract these discussions with Landmark continued. Neal informed Landmark that he was in the process of selling Viola Farm. On or about January 14, 2015, Neal and Lori granted Landmark an option to purchase their lessor’s interest in the cell tower lease and obtain an easement for the purchase price of $106,000. Neal requested that the option agreement be backdated to December 12, 2014. He also requested that Landmark make payment directly to his lender Bank Orion who held the mortgage on Viola Farm. Landmark acquiesced and the parties signed the option agreement. ¶ 14 Neither Brian nor Rebecca had any knowledge of the option agreement prior to the April 4, 2015, closing for Viola Farm. On March 2, 2015, Johnson, received an inner office message from Carmen, instructing “Call Neal Nelson and make an appointment regarding the sale of some cell tower land.” The next day at Carmen’s direction, Johnson called Neal and verified that the cell tower lease was not part of Brian, Doug, and Neal’s agreement; Neal stated it was not. On March 6, 2015, Neal and Lori finalized their transaction with Landmark executing an easement and assignment of lease agreement. Neal used the proceeds to extinguish the encumbrance on Viola Farm. On March 31, 2015, Johnson received a copy of the recorded mortgage release on Viola Farm from Bank Orion. A title commitment was secured on April 2, 2015, and on April 30, - 6 - Johnson mailed a copy of the warranty deed, recorded April 8, to Brian and Rebecca. Carmen billed the LLC for the work done transferring the cell tower lease for Neal. ¶ 15 C. The Dispute ¶ 16 After receiving the deed and taking possession of Viola Farm, Brian approached Neal and asked for information regarding the cell tower lease; Neal informed Brian he had sold the lessor’s interest in the cell tower lease. Brian and Rebecca expected that the interest in the cell tower lease would be conveyed to them along with the fee interest in Viola Farm. The belief that they were to receive the lessor’s interest in the cell tower lease is the crux of this dispute. ¶ 17 After mediation proved unsuccessful, Brian and Rebeca filed the current suit in October 2015. The operative pleading in this instance is the 54-page, 8-count second amended complaint and its various amended counts. Concerning Neal and Lori, counts I and II claimed a breach of contract by fraudulent misrepresentation and concealment of material facts, count III asserted tortious interference with contract, count IV averred common law fraud, count V claimed civil conspiracy, and count VIII claimed consumer fraud. Regarding Doug, he was included as a defendant in counts II and IV. The complaint named Landmark as a defendant under the civil conspiracy claim in count V and the conversion claim under count VI. Bruce Carmen and Carmen Law Office, P.C., were named as a defendant in count VII, which pled legal malpractice. Doug, Neal, and Lori brought motions to dismiss which achieved dismissal of Doug from the action and count III (tortious interference of contract) and count VIII (Consumer Fraud Act claims). ¶ 18 Subsequently, Neal asserted a counterclaim against Brian alleging breach of contract for failing to convey the one-half interest in the grain site. After receiving the counterclaim, Brian filed a third-party complaint against Doug, which is also relevant to this appeal. The third-party complaint contained three counts, count I alleged breach of contract by way of fraudulent - 7 - misrepresentation and concealment of material facts. Brian alleged that Doug breached an oral contract to effectuate the transfers of real estate on his behalf when he failed to direct Carmen to transfer the one-half grain site to Neal. Count II asserted common law fraud based on the same facts and, count III claimed Doug breached a fiduciary duty owed to Brian by way of the LLC and a grain farming partnership when he transferred the grain site to himself. ¶ 19 D. Depositions ¶ 20 Brian was deposed twice in this matter. He stated that he and his brother Doug had been partners in running the hog confinement business for close to 30 years. There was also a grain operation that functioned as a three-way partnership between himself, Neal, and Doug. They covered their own expenses and made payments to each other to equalize the amount of land farmed. To his knowledge, Neal never advertised Viola Farm as being for sale to the general public. Although he knew the cell tower lease was a separate item, he believed it was included in the sale of Viola Farm because the tower was on the property. Brian was aware the cell tower lease could be severed from the land from his own dealings with a company trying to buy the lessor’s interest in a wind turbine on one of his own properties. ¶ 21 Brian confirmed that he dictated the terms of the contract to Rebecca. Brian also acknowledged that he failed to do any of the following: (1) talk to Neal or Lori about receiving the cell tower lease, (2) find out the terms of the cell tower lease or ask for a copy of the lease, (3) discuss receiving the cell tower lease with Carmen or his office, (4) examine the warranty deed for Viola Farm which expressly excluded the cell tower lease, or (5) ask Carmen to represent him. Brian further noted that Neal and Lori never said whether the cell tower was included in the sale of Viola Farm. Lori and Brian failed to discuss any transaction concerning Viola Farm and Brian thought he was being “generous” as to the valuation of Viola Farm. Brian assigned the value of - 10 - not going to transfer property that was the subject of a legal dispute. Doug also stated that he was not responsible to have the survey conducted to properly transfer the grain site. ¶ 26 Neal did not tell Doug about the communications with Landmark concerning the cell tower lease. Doug did not give the contract to Carmen when requesting the transfer of the properties. Doug stated he, Brian, and Neal were partners in a grain operation. They all paid their own expenses. It was not established how any profits from the farming of grain were shared. ¶ 27 E. Disposition of Claims Below ¶ 28 In July 2017, the circuit court granted Neal and Lori’s motion to dismiss with prejudice the claim under the Illinois Consumer Fraud and Deceptive Practices Act (Act) (815 ILCS 505/1 et seq. (West 2018)), finding the act did not apply to a private sale of real estate. The court believed that the Act did not apply to the facts of this case; specifically, a private real estate transaction between family members. Approximately two years later, Neal and Lori moved for summary judgment on all counts pled against them by Brian and Rebecca but did not ask for judgment on their counterclaim. They argued there was no enforceable contract as to the cell tower lease because Lori never signed the agreement. Additionally, the parties never discussed the inclusion of the cell tower lease. Concerning the fraud claim, Neal and Lori argued they made no false misrepresentations and had no duty to disclose absent facts giving rise to a fiduciary relationship. ¶ 29 Carmen filed two motions, one for summary judgment and another for partial summary judgment. Of importance, he argued that he was not the proximate cause of Brian and Rebecca’s damages. ¶ 30 Regarding Doug, the court previously dismissed count I (breach of contract) of the third- party complaint for want of consideration. In the same order, the court denied Doug’s request for partial summary judgment on counts II and III. - 11 - ¶ 31 The court took the matter under advisement and in December 2018 issued its opinion. On the contract claims regarding Neal and Lori, the court found that there was no enforceable contract to convey the cell tower lease because Lori was a joint tenant and never signed the contract or orally agreed to convey the lease. The court also found that Brian and Rebecca failed to convey the one-half grain site interest to Neal barring any claim of full performance. And even if fully performed, there was no agreement, oral or otherwise, with Lori that could be saved by the exception to the statute of frauds. On the fraud claim, the court found that Neal and Lori made no representations to Brian and Rebecca concerning the cell tower lease. The court found the fraudulent concealment claim must fail because caveat emptor is the traditional rule in real estate transactions and there were no facts pled giving rise to a duty to disclose. Given the failure of Brian and Rebecca’s underlying tort claim, the court ruled in favor of Landmark on the conspiracy claim. ¶ 32 The court also entered judgment in favor of Carmen, finding that he was not the proximate cause of Brian and Rebecca’s damages. Specifically, the court noted that Carmen would have had only four days to discover that the contract, which he did not have and did not mention a cell tower lease, was intended by Brian and Rebecca to convey the cell tower lease along with Viola Farm before Neal executed the option agreement with Landmark. ¶ 33 The court then exercised its discretion to reconsider its previous ruling on Doug’s motion for partial summary judgment with respect to the remaining counts in the third-party complaint. The court vacated its previous decision denying Doug the relief requested and entered judgment on counts II and III of the third-party complaint in his favor. ¶ 34 Following the ruling, Neal voluntarily dismissed his counterclaim against Brian and Rebecca without prejudice. ¶ 35 Brian and Rebecca appeal. - 12 - ¶ 36 II. ANALYSIS ¶ 37 Brian and Rebecca present numerous contentions of error below. They argue (1) genuine issues of material fact preclude summary judgment on all counts, (2) the court erred in applying the law in their legal malpractice, contract, and consumer fraud claims, (3) Neal and Doug owed Brian a fiduciary duty, and (4) the court erred by ruling in favor of Doug on the third-party complaint. Defendants, by and large, maintain and repeat the arguments adopted below. For clarity, we will discuss Brian and Rebecca’s arguments as they relate to each defendant: (1) Carmen, (2) Neal, Lori, and Landmark, and (3) Doug. ¶ 38 The purpose of summary judgment is not to try a question of fact but to determine if one exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment is proper where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). The party moving for summary judgment bears the initial burden of proof. Performance Food Group Co., LLC v. ARBA Care Center of Bloomington, LLC, 2017 IL App (3d) 160348, ¶ 18. A defendant moving for summary judgment may meet his or her burden of production in two ways: (1) by affirmatively showing that some element of the case must be resolved in his or her favor or (2) by establishing that there is an absence of evidence to support the nonmovants case. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). “Once the moving party satisfies its initial burden of production in the summary judgment proceeding, the burden of production shifts to the nonmoving party *** to present evidence to establish that there are genuine issues of material fact and/or that the moving party is not entitled to judgment as a matter of law.” Performance Food Group, 2017 IL App (3d) 160348, ¶ 18. If the plaintiff fails to establish any element of his or her claim, summary judgment - 15 - claim must be resolved in his favor. Merely pointing us to different elements asserting that questions of fact remain is inadequate to overcome this fatal defect. See Hayward v. C.H. Robinson Co., 2014 IL App (3d) 130530, ¶ 32 (stating defendant is entitled to judgment if plaintiff fails to establish all elements of claim); see also Jackiewicz v. Village of Bolingbrook, 2020 IL App (3d) 180346, ¶ 48 (Holdridge, J., dissenting) (noting where a defendant moving for summary judgment establishes plaintiff lacks sufficient evidence to prove an essential element of the claim, the burden shifts to plaintiff to provide a factual basis supporting the elements of the claim). ¶ 46 The circuit court focused on “but for” causation in disposing of this claim below. The court reasoned that there was no written contract for the cell tower lease. Even assuming a valid contract for the cell tower lease, the undisputed facts showed that Carmen was not the but for causation of Brian and Rebecca’s alleged damages. The court found a genuine issue of material fact existed as to who Carmen represented the LLC alone, or the LLC and individuals involved. After conducting our own review, we agree with the circuit court that Carmen was not the proximate cause of Brian and Rebecca’s damages. ¶ 47 Carmen did not give Brian and Rebecca any legal advice that they relied on in making their decisions in this transaction. The record shows that Brian knew the cell tower lease was a separate item but assumed it was included in the sale. See infra ¶ 75 (record notice of exclusion of cell tower lease in Viola Farm warranty deed is imputed to buyer). Brian and Rebecca failed to include language in the contract concerning the cell tower lease. Brian knew Lori needed to sign the contract because she was a joint tenant but continued without her signature. This was all done before Carmen was involved in this matter. As a result, Brian and Rebecca cannot claim that had the undisclosed risk been known, they would not have accepted the risk and consented to the recommended course of action. There was no recommended course of action and their pleadings - 16 - and deposition testimony make clear that they were aware of the risks. The circuit court properly found Brian and Rebecca could not establish proximate cause. ¶ 48 Another argument advanced is that Carmen’s failure to request a copy of the underlying contract before effectuating the property transfers was “legally deficient” and “incompetence.” Even if Carmen was in possession of the contract, this would not change our finding. The contract contained no mention of the cell tower lease and would not have alerted Carmen to Brian and Rebecca’s assumption they were to receive it. See Majumdar v. Lurie, 274 Ill. App. 3d 267, 271 (1995) (noting attorneys need not be clairvoyant when discharging their legal obligations). ¶ 49 Rounding out the arguments under this heading, Brian and Rebecca contend Carmen was conflicted when he took on Neal as a client and that Carmen did not follow the formalities laid out in the LLC operating agreement or the land trust. Having found Carmen was not the proximate cause of Brian and Rebecca’s damages, the contention that he was conflicted when he took Neal on as a client is without merit. See Owens, 316 Ill. App. 3d at 353 (“The mere fact that an attorney may have violated professional ethics does not, in and of itself, give rise to a cause of action for damages.”). We further find that the contentions that Carmen failed to follow the formalities of the LLC and the land trust offers no relief. Even if the formalities of these two legal entities were followed, Viola Farm was not a property owned by the LLC or the land trust and compliance would not have revealed the assumption by Brian and Rebecca that they were to receive the interest in the cell tower lease when the contract was silent on that point. ¶ 50 Accordingly, the circuit court did not err by granting judgment in favor of Carmen. ¶ 51 B. Claims Against Neal, Lori, and Landmark - 17 - ¶ 52 Brian and Rebecca contend summary judgment in favor of Neal and Lori was improper on their breach of contract and common law fraud claims. They also allege the lower court erred by granting summary judgment in favor of Landmark on the conspiracy claim. ¶ 53 1. Breach of Contract ¶ 54 Brian and Rebecca argue that the circuit court’s grant of summary judgment on their contract claims was improper owing to the fact that there are still genuine issues of material fact left unresolved. Specifically, the meaning of the $600,000 value attached to Viola Farm. Further, they argue that Neal’s agreement to the $600,000 value severed the joint tenancy as to the cell tower lease, citing Ennis v. Johnson, 3 Ill. 2d 383 (1954). The circuit court concluded there was no enforceable contract to sell the lessor’s interest in the cell tower lease relying on Dineff v. Wernecke, 27 Ill. 2d 476 (1963), and Hosty v. Kroupa, 117 Ill. App. 2d 419 (1969). ¶ 55 “It is well established that to prevail on a breach of contract claim, a plaintiff must plead and prove that: (1) a contract exists, (2) plaintiff performed his obligations under the contract, (3) defendant breached the contract, and (4) plaintiff sustained damages as a result of defendant’s breach.” International Supply Co. v. Campbell, 391 Ill. App. 3d 439, 450 (2009). ¶ 56 Further, in order to be enforceable under Illinois’s statute of frauds, a contract for the sale of land must be in writing, contain the essential terms of the agreement, and be signed by the parties to the contract. 740 ILCS 80/2 (West 2018). ¶ 57 We first dispose of plaintiffs’ contention that genuine issues of material fact precluded summary judgement. The circuit court found that plaintiffs could not prove an essential element of their claim. Namely, that a valid contract existed between the parties for the transfer of the cell tower lease. Given that Brian and Rebecca failed to establish an element of their claim, pointing to issues of material fact regarding other elements offers them no relief. See supra ¶ 45. - 20 - Rebecca’s assumption that they would receive the lease simply because they believed the cell tower was located on Viola Farm does not make it a term within the contract. ¶ 64 Brian and Rebecca go on to advance a convoluted argument claiming their full performance makes the statute of frauds inapplicable in this matter. ¶ 65 The full performance doctrine is distinct from the part performance doctrine. American College of Surgeons v. Lumbermens Mutual Casualty Co., 142 Ill. App. 3d 680, 700 (1986). Where a contract or agreement is fully performed by the party seeking to enforce it the statute of frauds will not apply as a defense. Ropacki v. Ropacki, 354 Ill. 502, 508 (1933). The rationale for this doctrine is that when one party fully performs his or her obligations, allowing the other party to avoid its corresponding duties under the agreement while enjoying the benefits and asserting the defense of the statute of frauds would be unfair. Meyer v. Logue, 100 Ill. App. 3d 1039, 1043-44 (1981). ¶ 66 There are deficiencies with the claim of full performance that cannot be overcome. Although Brian and Rebecca argue the performance doctrine would take the contract with Lori out of the statute of frauds, it is not clear to what contract they are referring. Lori never signed the contract. Brian and Rebecca both admit in their depositions that Lori promised them nothing. What we are asked to do is to create an agreement out of thin air between Brian, Rebecca, and Lori. We decline the invitation to do so. ¶ 67 Further, the full performance argument disregards the fact that Brian and Rebecca did not transfer the one-half grain site to Neal. Partial performance does not allow a party to avoid the defense of the statute of frauds when seeking legal damages. Phillips v. Britton, 162 Ill. App. 3d 774, 782 (1987). Brian’s alleged delegation to Doug of the responsibility to transfer the one-half grain site to Neal does not absolve Brian of his responsibilities under the contract. See Restatement - 21 - (Second) of Contracts § 318 (1981) (“Unless the obligee agrees otherwise, neither delegation of performance nor a contract to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor.”). ¶ 68 Leaving no stone unturned, Brian and Rebecca also argue that Lori fully performed her obligations under the agreement by signing the warranty deed to complete the conveyance of Viola Farm. This, they argue, is sufficient to save the agreement from the statute of frauds. Again, what agreement they are referring to on the part of Lori is unclear. Also, maintaining that Lori fully performed the agreement is curious because if Lori fully performed her obligations under the agreement, then why is she being sued for breach? Further, when Lori signed the warranty deed that excepted the cell tower lease, this only crystalized her intent to not transfer the cell tower lease and brought the merger by deed doctrine into play. See Czarobski v. Lata, 227 Ill. 2d 364, 369-70 (2008) (noting under the doctrine of merger by deed, all prior agreements between a buyer and a seller are merged in the deed upon its acceptance and the deed supersedes the provisions of the real estate contract and becomes the only binding instrument between the parties). However, we need not address the merger by deed doctrine given the analysis above. Brian and Rebecca’s argument on this point is without merit. ¶ 69 Accordingly, the circuit court did not err in ruling in favor of Neal and Lori on the breach of contract claims. ¶ 70 2. Common Law Fraud and Conspiracy ¶ 71 Brian and Rebecca again argue that genuine issues of material fact precluded the grant of summary judgment in favor of defendants on their common law fraud and conspiracy claims. They go on to recount the scheme, alleged knowledge of certain defendants, and alleged fiduciary duties of certain defendants that made summary judgment improper below. - 22 - ¶ 72 To establish fraud, a plaintiff must prove: “(1) a false statement of material fact, (2) knowledge or belief of the falsity by the party making it, (3) intention to induce the other party to act, (4) action by the other party in reliance on the truth of the statements, and (5) damage to the other party resulting from such reliance.” Board of Education of City of Chicago v. A C & S, Inc., 131 Ill. 2d 428, 452 (1989). No action for fraud exists where defendants personally made no representations to plaintiff. See Seefeldt v. Millikin National Bank of Decatur, 154 Ill. App. 3d 715, 720-21 (1987). “[T]he representations must be viewed in the light of all the facts of which the party injured had actual knowledge and also such as he might avail himself of by the exercise of ordinary prudence.” Halla v. Chicago Title & Trust Co., 412 Ill. 39, 47 (1952). Fraud does not exist where the parties possess equal knowledge or the means to obtain equal knowledge. Seefeldt, 154 Ill. App. 3d at 719. ¶ 73 Again, we first dispose of the argument that genuine issues of material fact prevented summary judgement on the fraud claim. We find this argument unavailing for the same reason we disregarded it in the breach of contract claim, Brian and Rebecca have not established every element of fraud. See supra ¶ 45. Namely, they cannot allege a false representation or reliance. ¶ 74 Regarding Neal and Lori, the record is clear that neither Neal nor Lori made any representations about the cell tower to Brian or Rebecca. In Brian’s first deposition, he stated that he never talked to Neal about the cell tower before receiving the deed to Viola Farm. In his second deposition, he claimed to only have talked to him once briefly about the lease before receiving the deed. That conversation consisted merely of Brian asking Neal how much he received from the lease to which Neal responded, “not that much.” Brian had no idea what the terms of the cell tower lease were. He only assumed he would receive the lease because the tower was located on Viola - 25 - the partnership business. Bakalis v. Bressler, 1 Ill. 2d 72, 79 (1953); Couri v. Couri, 95 Ill. 2d 91, 98 (1983). ¶ 81 We note that while Brian and Rebecca claim they sufficiently pled this accusation, they include no citation to the record where these pleadings can be found. After reviewing the pleadings, there is no mention of a fiduciary duty that Neal owes to Brian and Rebecca either in the “General Allegations” or in the text of the fraud claim. Brian and Rebecca failed to raise this argument until their motion to reconsider. Given the failure to timely advance this argument, it has been forfeited. See Barth v. Kantowski, 409 Ill. App. 3d 420, 426 (2011) (“[A] litigant may not raise a new legal theory for the first time in a motion to reconsider.”). ¶ 82 Even absent forfeiture and given the proper establishment of an informal grain partnership or joint venture below, the lessor’s interest in the cell tower lease was a matter outside of that partnership or joint venture. See Bakalis, 1 Ill. 2d at 79 (noting a fiduciary relationship embraces all matters reasonably relating to the partnership); Yokel v. Hite, 348 Ill. App. 3d 703, 710 (2004) (“the fiduciary relationship that accompanies a joint venture applies only to matters within the scope of the joint venture”). The same reasoning applies to the LLC. Further, Neal was not a member of the LLC. The receipts for the cell tower lease went to Neal and Lori individually and not the grain operation or LLC. ¶ 83 Having found that there is no cause of action against Neal and Lori for fraud, Brian and Rebecca’s conspiracy claim against Landmark necessarily fails. See Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 63 (1994) (stating civil conspiracy is not a standalone cause of action but instead a derivative claim of a tortious act committed in furtherance of the agreement). ¶ 84 Accordingly, the circuit court did not err by ruling in favor of Neal, Lori, and Landmark on the common law fraud and conspiracy claims. - 26 - ¶ 85 3. Consumer Fraud and Deceptive Practices Act ¶ 86 Brian and Rebecca also contend that the circuit court erred as a matter of law in dismissing their claim under the Act (815 ILCS 505/1 et seq. (West 2018)). In support of their contentions, they direct this court’s attention to the decision in Benzakry v. Patel, 2017 IL App (3d) 160162. We review judgment on a motion to dismiss de novo. Whipple v. Village of North Utica, 2017 IL App (3d) 150547, ¶ 22. ¶ 87 In order to succeed on a claim under the Act, the plaintiff must show “ ‘(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that plaintiff rely on the deception, (3) the occurrence of the deception during a course of conduct involving trade or commerce, (4) actual damage to the plaintiff [and] (5) proximately caused by the deception.’ ” Benzakry v. Patel, 2017 IL App (3d) 160162, ¶ 81 (quoting Ramirez v. Smart Corp., 371 Ill. App. 3d 797, 806 (2007)). ¶ 88 Although Brian and Rebecca rely on Benzakry for support, we find it distinguishable from this matter. In Benzakry, multiple misrepresentations were made to the plaintiff via an advertisement for a commercial property listed on a real estate website, LoopNet. Benzakry, 2017 IL App (3d) 160162, ¶ 15. A panel of this court found that the “defendants engaged in deceptive acts when they knowingly misrepresented information in their advertisement and in their e-mails to Benzakry.” Id. ¶ 82. Brian and Rebecca point us to no such misrepresentations in this matter. ¶ 89 The second amended complaint averred that “defendants’ acts of misrepresenting the value of the 64 acre Viola farm premises and concealing from [Brian and Rebecca] the January 24, 2015, assigned Cellco Wireless Tower Lease and Easement to Landmark *** were deceptively intended to intentionally convert and deprive [Brian and Rebecca] of receipt of that lease/contract benefit as part of the represented value of the 64 acre Viola farm ***.” This statement ignores the undisputed facts that (1) Brian and Rebecca drafted the contract and (2) Brian stated in his - 27 - deposition that he inflated the value of Viola Farm to induce Neal to sign the contract. Given that Brian and Rebecca assigned the $600,000 value to Viola Farm, the argument that Neal or Lori made this representation to them is disingenuous at best. As laid out above, Brian and Rebecca failed to make an inquiry into the cell tower lease. Instead, they simply assumed its inclusion. See Seefeldt, 154 Ill. App. 3d at 719 (“A person may not enter into a transaction with their eyes closed to available information and then charge he has been deceived by another.”). ¶ 90 Accordingly, the circuit court did not err in dismissing the consumer fraud claim. ¶ 91 C. Claims Against Doug ¶ 92 1. Fraud and Conspiracy ¶ 93 In their fraud claim, Brian and Rebecca contend that Doug breached his fiduciary duty by failing to notify them of the assignment of the cell tower lease to Landmark. Doug responds, stating that Brian and Rebecca throughout the pendency of this litigation have made conclusory arguments while failing to provide factual or legal support. We have previously laid out the law for fraud, conspiracy, and fiduciary duties in a partnership or joint venture. See supra ¶¶ 72, 80, 82, 83. We review the dismissal of the fraud and conspiracy claims against Doug de novo. Whipple, 2017 IL App (3d) 150547, ¶ 22. ¶ 94 For the same reasons we found Brian and Rebecca’s fraud claim failed against Neal and Lori, it also fails against Doug. Brian and Rebecca failed to exercise even a modicum of due diligence before entering into the transaction for Viola Farm. A review of the warranty deed of the property would have put them on notice the cell tower lease was not included with the land. See Seefeldt, 154 Ill. App. 3d. at 719 (noting an individual entering a transaction ignorant of available information cannot claim that they have been deceived by another); Bezin v. Ginsburg, 59 Ill. App.