                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   CNA International, Inc. v. Baer, 2012 IL App (1st) 112174




Appellate Court            CNA INTERNATIONAL, INC., and GOLD COAST DEVELOPMENT,
Caption                    LLC, Plaintiffs-Appellants, v. STEVEN H. BAER, RALLY CAPITAL
                           SERVICES, LLC, and COLE TAYLOR BANK, Defendants-Appellees.


District & No.             First District, Fourth Division
                           Docket Nos. 1-11-2174, 1-11-2893 cons.


Rule 23 Order filed        October 4, 2012
Rule 23 Order
withdrawn                  November 5, 2012
Opinion filed              November 21, 2012


Held                       In an action by the developer and guarantors of a foreclosed
(Note: This syllabus       condominium project against the receiver and mortgagee for damage to
constitutes no part of     the property while it was in the receiver’s control, the trial court properly
the opinion of the court   dismissed plaintiffs’ second amended complaint for failing to state a
but has been prepared      cause of action for negligence, and the trial court did not abuse its
by the Reporter of         discretion in denying leave to file a third amended complaint, since the
Decisions for the          proposed amendment did not cure the deficiencies in the earlier
convenience of the         complaint.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CH-17629; the
Review                     Hon. Darryl B. Simko, Judge, presiding.



Judgment                   No. 1-11-2174, Affirmed.
                           No. 1-11-2893, Affirmed.
Counsel on                 Jin B. Kim and Michael W. Rathsack, both of Chicago, for appellants.
Appeal
                           Martin J. O’Hara, of Much Shelist, P.C., and Michael Resis and William
                           Silas Hackney III, both of SmithAmundsen LLC, both of Chicago, for
                           appellees.


Panel                      JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                           Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the
                           judgment and opinion.



                                             OPINION

¶1          In this consolidated appeal, plaintiffs, CNA International, Inc. (CNA), and Gold Coast
        Development, LLC, appeal the trial court’s orders: (1) granting the motion of defendants
        Steven H. Baer and Rally Capital Services, LLC, to dismiss counts I through IV of plaintiffs’
        second amended complaint; (2) discharging Baer as receiver; (3) granting defendant Cole
        Taylor Bank’s motion to dismiss counts V and VI of plaintiffs’ second amended complaint;
        and (4) denying plaintiffs’ request to file a third amended complaint. For the reasons that
        follow, we affirm.

¶2                                        BACKGROUND
¶3          On August 30, 2005, Gold Coast Development, LLC (Gold Coast), entered into a
        mortgage agreement with Cole Taylor Bank (Cole Taylor) relating to property located at
        1938 West Diversey Avenue in Chicago (the subject property). The subject property was a
        partially constructed three-unit condominium building. This action arose when Cole Taylor
        filed a verified complaint for mortgage foreclosure on May 14, 2008 against Gold Coast
        regarding the subject property, as well as two verified complaints relating to two other
        properties.
¶4          In its complaint regarding the subject property, Cole Taylor alleged that it had made a
        commercial loan to Gold Coast for $907,605 evidenced by a promissory note and secured
        by a construction mortgage on the subject property. Cole Taylor further alleged that Gold
        Coast was in default because: (1) it had not paid monthly installments of principal and
        interest that were due; (2) mechanics’ liens had been filed against the property; and (3) Gold
        Coast had not paid the real estate taxes that were due. Cole Taylor sought to recover
        $934,654.85 on a promissory note executed by Gold Coast, as well as guarantees executed
        by certain individuals. Cole Taylor also sought a judgment of foreclosure and sale, an order
        granting possession and appointing a receiver for the subject property, costs, expenses, and
        attorney fees.


                                                 -2-
¶5        The record indicates that Gold Coast had failed to procure insurance for the subject
     property, as required under the mortgage agreement. In June 2008 Cole Taylor “force placed”
     an insurance policy (No. CCP538144) with Century Surety Company protecting Cole
     Taylor’s interests.
¶6        On November 10, 2008, Cole Taylor filed a verified motion for appointment of a receiver
     pursuant to section 15-1701 of the Illinois Mortgage Foreclosure Law. 735 ILCS 5/15-1701
     (West 2008) (the Act). On December 23, 2008, Gold Coast filed a motion to strike Cole
     Taylor’s motion for the appointment of a receiver. On December 24, 2008, over Gold Coast’s
     objections, the court appointed defendant Steven Baer of Rally Capital Services, LLC, as
     receiver. The five-page order granted Baer the power and authority allowed under section 15-
     1704 of the Act (735 ILCS 5/15-1704 (West 2008)). Among other things, the receiver was
     “authorized to protect, possess, preserve, control, manage, and operate” the property. Gold
     Coast was directed to deliver possession of the subject property, any insurance policies,
     maintenance and service contracts, and other documentation relating to the management and
     development of the subject property. On December 30, 2008, the appointment of the receiver
     became effective when the court entered the receiver’s bond of $25,000. Gold Coast did not
     file an appeal from the December 24, 2008 order.
¶7        On January 28, 2009, Cole Taylor filed an emergency motion for authority to forcibly
     enter the premises. The motion was granted on January 30, 2009, and the receiver was
     “authorized to forcibly enter the premises as of 3:30 p.m. CST on January 30, 2009.” Gold
     Coast did not file an appeal from the January 30, 2009 order.
¶8        On January 30, 2009, according to a report in the record prepared for Baer by Vicky
     Jones of VJ Rally Capital Services, LLC, and dated February 6, 2009, Baer’s agent gained
     access to the property by forced entry pursuant to the court order. The agent conducted a site
     inspection on January 30 and January 31, 2009, which revealed significant damage to the
     property. The report noted that the overall condition of the property was poor because it had
     not been winterized. The report further noted frozen and warped window casings, the
     presence of ice on the hardwood floors and in the cracked toilet tanks, as well as water
     damage and mold throughout the building. Based on the site inspection, the report contained
     several “recommendations to be considered to preserve and protect the property in order to
     not have continued damage and increasing costs of repairs.” The recommendations included
     having all mechanicals inspected by trade professionals and to follow their recommendations,
     remediating all water-damaged areas, establishing utility services in Baer’s name, removing
     construction debris from the site, inspecting the roof, installing a security system,
     implementing a maintenance schedule for mechanicals, and establishing general property
     maintenance–landscaping, filters, lights and a security system.
¶9        The court order appointing Baer provided that he file the initial report with the court on
     or before January 30, 2009 and that a hearing on the report was to be conducted on February
     6, 2009. The record is unclear as to whether either occurred but no party has raised it as an
     issue. Baer did provide a copy of the report to Cole Taylor and it chose not to follow the
     receiver’s recommendations. In February 2009, Cole Taylor submitted a claim for property
     damage to Century Surety Company.


                                              -3-
¶ 10       While the litigation was pending, Cole Taylor began settlement discussions with Gold
       Coast and the personal guarantors. They began negotiating a potential “global” resolution of
       this and the two other mortgage foreclosure actions.
¶ 11       On July 20, 2009, Cole Taylor entered into a settlement agreement and general mutual
       release with Gold Coast. Cole Taylor accepted a deed in lieu of foreclosure on one of the
       three properties, that is not involved in this appeal. As part of the settlement, Cole Taylor
       agreed to assign certain of its rights, titles, and interests to plaintiff CNA, in exchange for,
       among other things, a single, lump sum of $1,920,000 representing a payoff of the notes on
       the subject property and a second property. CNA was created by the guarantors.
¶ 12       The agreement provided that nothing in it “shall prevent [CNA] from bringing any
       claims, demands or suits against Steve Baer, as the Court-appointed Receiver, for ay [sic]
       acts or omissions of his that occurred during the period of time in which he served as the
       Court-appointed Receiver.” The settlement agreement also provided that Cole Taylor would
       provide to CNA “the contact names, policy numbers and phone numbers of current insurers
       of the property and the respective expiration dates, including any builder risk policies in
       place.” However, nowhere mentioned in the agreement is Cole Taylor’s right, title, or interest
       in or to any insurance policy, or its proceeds. The agreement contained an unconditional
       release and discharge from Gold Coast to Cole Taylor “from any and all obligations, claims,
       demands, actions, arbitrations, attorneys fees and liability, past, present, and future, of
       whatever kind and character, known or unknown including without limitation, all such
       claims relating in any way to, arising from or concerning [the subject property, and the other
       two properties].” The agreement expressly assigned to CNA all of Cole Taylor’s rights to the
       pending litigation against Gold Coast.
¶ 13       Pursuant to the settlement agreement, as evidenced by the various documents, Cole
       Taylor and CNA executed specific assignments: (1) property assessment appeal for one of
       the other properties; (2) construction mortgage regarding subject property; (3) promissory
       note regarding subject property; (4) mortgage regarding a second property; (5) promissory
       note regarding a second property; (6) three commercial guaranties from certain individuals;
       (7) guaranty of completion and performance from a certain individual; and (8) rights to the
       pending litigation against Gold Coast. With respect to the assignment of the construction
       mortgage, Cole Taylor assigned to CNA all of Cole Taylor’s “right, title and interest now
       owned or hereinafter acquired in, to and under that certain Construction Mortgage dated
       August 30, 2005 made and executed by Gold Coast *** together with the Note as described
       therein, and the money due or to become due thereon.” There is no document evidencing any
       assignment of any insurance policy or any proceeds resulting therefrom, including the
       Century Surety Company insurance policy.
¶ 14       CNA gained access to the property in July 2009 and discovered significant water damage.
       The record contains an affidavit from Soodong Choi, one of the guarantors, in his role as
       general counsel for CNA, stating that “in mid-August of 2009, CNA filed a claim against the
       insurance policy issued by Century Surety Company.”
¶ 15       In September 2009, CNA filed a motion to substitute its appearance in the litigation in
       place of Cole Taylor. On October 16, 2009, the court granted the motion. Thus, CNA became


                                                 -4-
       the plaintiff in the litigation against Gold Coast.
¶ 16        In March 2010, Century Surety Company paid Cole Taylor approximately $44,000 for
       Cole Taylor’s February 2009 property damage claim.
¶ 17        On August 26, 2010, more than a year after the settlement, CNA, together with Gold
       Coast, filed a motion for leave to file an amended complaint, in the pending mortgage
       foreclosure action, based upon the water damage that CNA had discovered in July 2009.
       CNA and Gold Coast alleged that the water damage occurred during the time Baer was in
       exclusive control and possession of the property. The amended complaint removed all counts
       of the original complaint, all of which had been filed against Gold Coast and certain personal
       guarantors, at least one of which was a member of Gold Coast. The amended complaint
       contained two counts. Both counts alleged negligence against Baer and Rally Capital
       Services, LLC (Rally). Count I was filed on behalf of CNA; count II was filed on behalf of
       Gold Coast.
¶ 18        On September 27, 2010, the trial court granted CNA and Gold Coast leave to file their
       amended complaint. Thus, CNA and Gold Coast were realigned from plaintiff and defendant
       to coplaintiffs against the receiver. On or about September 29, 2010, Century Surety
       Company denied CNA’s August 2009 claim.
¶ 19        On October 25, 2010, Baer and Rally filed a motion to dismiss the amended complaint.
       CNA and Gold Coast filed a response to the motion to dismiss and a simultaneous motion
       for leave to file a second amended complaint. The trial court granted the motion for leave to
       amend.
¶ 20        On or about January 6, 2011, CNA and Gold Coast filed a second amended complaint.
       Counts I and II were brought by CNA “as Assignee of Cole Taylor Bank.” Count I alleged
       negligence against Baer and count II alleged negligence against Rally under a respondeat
       superior theory. Counts III and IV were brought by Gold Coast. Count III alleged negligence
       against Baer and count IV alleged negligence against Rally under a respondeat superior
       theory. Counts V and VI were brought, in the alternative, by CNA against Cole Taylor.
       Count V alleged breach of contract and count VI alleged unjust enrichment.
¶ 21        In support of their claims against Baer and Rally, CNA and Gold Coast alleged that Baer
       was negligent in not accessing the property sooner, that Baer had not been denied access to
       the property after being appointed receiver, that Gold Coast had responded to telephone calls
       from Rally, and that Gold Coast had made arrangements for Rally to take possession of the
       keys to the property in early January. CNA and Gold Coast further alleged that, after Baer
       gained access to the property through the forcible detainer order, he was negligent in not
       remedying the water damage.
¶ 22        On January 28, 2011, Baer and Rally filed a motion to dismiss counts I through IV of the
       second amended complaint pursuant to section 2-615 of the Code of Civil Procedure. 735
       ILCS 5/2-615 (West 2010). Baer and Rally argued that all claims premised on CNA and
       Gold Coast being damaged as a result of Baer not entering the property sooner were
       precluded as a matter of law because Gold Coast failed to appeal the forcible entry order and,
       therefore, under the law of the case doctrine, could not contest the basis for the order. They
       also argued that plaintiffs could not allege facts establishing that Baer failed to maintain the

                                                 -5-
       property in as good a condition as existed at the time he gained access to the property.
       Additionally, regarding the claim that Baer was negligent in not remedying the water
       damage, Rally argued it was not liable under a theory of respondeat superior and Baer was
       not its agent but instead was an agent of the court. Baer and Rally also asserted that Baer had
       no duty to CNA or Gold Coast to remediate the water damage problem when he was not
       provided with funds to perform the remediation.
¶ 23       On February 17, 2011, Cole Taylor filed a motion to dismiss counts V and VI of the
       second amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure. 735
       ILCS 5/2-619.1 (West 2010). Cole Taylor argued that count V, the breach of contract claim,
       should be dismissed pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-
       619 (West 2010)) because the settlement agreement and supporting exhibits were clear that
       there was no agreement to assign any rights to any insurance policy to CNA. Cole Taylor
       sought to dismiss count VI, the unjust enrichment claim, pursuant to section 2-615 of the
       Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)) because Cole Taylor could not
       have been unjustly enriched by receiving the benefits of an insurance policy that Cole Taylor
       itself procured, paid for, and made a claim against.
¶ 24       On April 15, 2011, after hearing arguments, the trial court granted the receiver’s motion
       to dismiss and dismissed all claims against Baer and Rally (counts I through IV) with
       prejudice. As to Cole Taylor’s motion, the trial court dismissed count VI (unjust enrichment)
       pursuant to section 2-615 in favor of Cole Taylor. The court denied the motion to dismiss
       count V (breach of contract) and granted Cole Taylor 60 days to file its answer to count V.
       The court also denied CNA and Gold Coast’s oral motion for leave to file a third amended
       complaint.
¶ 25       On July 1, 2011, the trial court denied CNA and Gold Coast’s motion to reconsider the
       denial of their oral motion to reconsider, and also discharged Baer as receiver. On July 21,
       2011, the trial court granted a motion to supplement the receiver’s final report, approved the
       final report, approved the issuance of a receiver’s certificate to Rally in an amount equal to
       the professional fees that had been approved, and cancelled the receiver’s bond. Also on July
       21, 2011, the trial court made the order of dismissal of Baer and Rally a final and appealable
       order pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). On July 28, 2011,
       CNA and Gold Coast filed a notice of appeal.
¶ 26       On or about July 29, 2011, Cole Taylor filed its renewed motion to dismiss count V of
       the second amended complaint pursuant to section 2-619. Attached to the motion was an
       affidavit of Linda Weber, Cole Taylor’s group senior vice president, special assets. She
       testified that at no time did Cole Taylor agree to assign its right, title and interest in the
       insurance policy or proceeds to CNA. CNA filed a response and attached an affidavit of
       Soodong Choi, who stated that no one at Cole Taylor informed CNA that Cole Taylor
       believed it was entitled to the insurance proceeds.
¶ 27       On September 6, 2011, the trial court granted Cole Taylor’s motion to dismiss count V
       of the second amended complaint. On September 27, 2011, CNA and Gold Coast filed a
       notice of appeal from the orders dismissing counts V and VI. The two appeals were
       subsequently consolidated.


                                                -6-
¶ 28                                  STANDARD OF REVIEW
¶ 29       “A motion to dismiss under section 2-615(a) of the Code (735 ILCS 5/2-615(a) (West
       2006)) tests the legal sufficiency of the complaint, whereas a motion to dismiss under section
       2-619(a) of the Code (735 ILCS 5/2-619(a) (West 2006)) admits the legal sufficiency of the
       complaint, but asserts affirmative matter outside the complaint that defeats the cause of
       action. [Citations.]” Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). Our standard
       of review is de novo under either section. Id.
¶ 30       Regarding 2-615 motions to dismiss, we have further explained:
               “A complaint should be dismissed under section 2-615 for failure to state a cause of
           action only when it clearly appears that no set of facts could be proved under the
           pleadings which would entitle the plaintiff to relief. [Citations.] This broad statement,
           however, should not be interpreted as an adoption of notice pleading. [Citation.] Illinois
           remains a fact-pleading jurisdiction. [Citation.]
               A section 2-615 motion admits all well-pleaded facts as true, but not conclusions of
           law or factual conclusions which are unsupported by allegations of specific facts.
           [Citation.] If after disregarding any legal and factual conclusions the complaint does not
           allege sufficient facts to state a cause of action, the motion to dismiss should be granted.
           [Citation.] In ruling on a motion to dismiss for failure to state a cause of action, the
           complaint’s factual allegations are to be interpreted in the light most favorable to the
           plaintiff, but factual deficiencies may not be cured by liberal construction. [Citation.]”
           Lagen v. Balcor Co., 274 Ill. App. 3d 11, 16 (1995).
¶ 31       As we have also explained:
           “The purpose of a section 2-619 motion is to dispose of issues of law and easily proved
           issues of fact early in the litigation. [Citation.] When ruling on a section 2-619 motion,
           the court must construe the pleadings and supporting documents in the light most
           favorable to the nonmoving party. [Citation.] The reviewing court must consider whether
           the existence of a genuine issue of material fact should have precluded the dismissal or,
           absent an issue of material fact, whether a dismissal was proper as a matter of law.
           [Citation.] We may affirm the dismissal on any proper basis found in the record.
           [Citation.]” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 910-11
           (2010).
¶ 32       With respect to the trial court’s order denying plaintiff’s leave to file a third amended
       complaint, we review the decision under an abuse of discretion standard. Loyola Academy
       v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992).

¶ 33                                         ANALYSIS
¶ 34         The Trial Court Correctly Granted Baer and Rally’s Motion to Dismiss
¶ 35       Plaintiffs concede that only Gold Coast is pursuing the claim of negligence against Baer
       and Rally and there is no issue as to any claim by CNA against the receiver. Thus, the trial
       court correctly dismissed counts I and II of the second amended complaint. Gold Coast
       asserts that the receiver was obligated to take action to preserve the condition of the property


                                                 -7-
       and failed to do so both before and after he took possession of the property.
¶ 36       We shall first address Gold Coast’s “pre-access” claim. In support of its claim, Gold
       Coast contended that Baer had not been denied access to the subject property. Gold Coast
       stated that it had responded to telephone calls from Rally and had made arrangements for
       Rally to take possession of the keys in early January.
¶ 37       It is undisputed that, after Baer’s appointment became effective on December 30, 2008,
       Cole Taylor filed, on January 28, 2009, an emergency motion for authority to forcibly enter
       the premises. Baer stated that despite the trial court’s order directing Gold Coast to deliver
       possession of the subject property to Baer, he still could not gain access. Baer noted that he
       had “attempted to work with the defendants in order to gain access to the [subject property]
       only to be rebuked for one reason or another.” Baer also argued that “[a]ny further delay in
       gaining access to and securing the [subject property] could result in damage to the [subject
       property] and will undoubtably result in irreparable harm to Cole Taylor Bank’s collateral.”
       The motion was presented to the court, and granted in full, on January 30, 2009. The order
       provided that the receiver was “authorized to forcibly enter the premises as of 3:30 p.m. CST
       on January 30, 2009.” Gold Coast did not file an appeal from the January 30, 2009 order.
¶ 38       The trial court concluded that the law of the case doctrine precluded Gold Coast from
       now asserting that Baer was negligent in not gaining access sooner. “The rule of the law of
       the case provides that where an issue has been litigated and decided, a court’s unreversed
       decision on a question of law or fact settles that question for all subsequent stages of the
       suit.” Norton v. City of Chicago, 293 Ill. App. 3d 620, 624 (1997).
¶ 39       Gold Coast argues that the law of the case doctrine does not apply to the basis for the trial
       court’s order, i.e., Baer’s inability to access the property because no evidentiary hearing was
       held. We believe that the law of the case doctrine now precludes Gold Coast from arguing
       that Baer had access to the property. It has been explained that the law of the case doctrine
       encompasses a court’s explicit decisions, as well as those issues decided by necessary
       implication. Aardvark Art, Inc. v. Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 632-33
       (1996). More importantly, as Baer correctly notes, the grant of the emergency motion to
       allow him access was final and appealable under Illinois Supreme Court Rule 307(a)(3) (eff.
       Feb. 26, 2010). Gold Coast failed to appeal. Thus, the order granting the motion in full
       became the law of the case. See Bradford v. Wynstone Property Owners’ Ass’n, 355 Ill. App.
       3d 736, 740 (2005). The trial court correctly concluded that Gold Coast failed to state a cause
       of action for negligence against Baer for failing to access the subject property before the date
       he accessed it through the use of forcible entry.
¶ 40       We next address Gold Coast’s “post-access” claims of negligence against Baer. Gold
       Coast alleged that Baer was negligent in failing to take reasonable steps to remediate the
       damage to the subject property, and secure and protect the subject property to prevent future
       damage from occurring.
¶ 41       Under the Act, a receiver is required to use reasonable efforts “to maintain the real estate
       and other property subject to the mortgage in at least as good condition as existed at the time
       the receiver took possession.” 735 ILCS 5/15-1704(c)(2) (West 2008). In the instant case,
       as demonstrated by the receiver’s report, there was substantial and significant damage to the


                                                 -8-
       property prior to the time Baer gained access by forcible entry. The damage included serious
       water and mold damage throughout. Baer met his obligations under the Act by identifying
       the damage to Cole Taylor and making recommendations. Rather than remediate the damage,
       Cole Taylor filed a claim with its insurer. As the trial court concluded, to the extent Gold
       Coast has a problem with Cole Taylor’s decision not to remediate the damage, that is an issue
       between Gold Coast and Cole Taylor.
¶ 42       We also note that section 15-704(c) of the Act explicitly conditions a receiver’s duties,
       including the duty to maintain the property. The Act provides that the receiver’s duties apply
       only: “to the extent the receiver receives sufficient receipts from the mortgaged real estate,
       such other property or other sources.” 735 ILCS 5/15-1704(c) (West 2008). The subject
       property here did not generate any receipts from rent. Nothing in the Act imposes a duty on
       the receiver to invest his own funds in the property for which he has been appointed a
       receiver. Thus, Gold Coast has failed to state a cause of action for negligence against Baer
       for his “post-access” actions.
¶ 43       In view of our determination, we need not address Rally’s argument that it could not be
       liable for Baer’s negligence under a respondeat superior theory. The trial court correctly
       concluded that Gold Coast failed to state a cause of action for negligence against Baer and
       Rally.
¶ 44           The Trial Court Correctly Granted Cole Taylor’s Motion to Dismiss
¶ 45       Count V of the second amended complaint asserts a claim for breach of contract brought
       by CNA against Cole Taylor. “In order to state a cause of action for breach of contract, a
       plaintiff must allege (1) an offer and acceptance; (2) consideration; (3) definite and certain
       terms of the contract; (4) plaintiff’s performance of all required contractual conditions; (5)
       defendant’s breach of the terms of the contract; and (6) damage resulting from the breach.”
       Weis v. State Farm Mutual Automobile Insurance Co., 333 Ill. App. 3d 402, 407 (2002).
¶ 46       The basis of Gold Coast’s claim against Cole Taylor was that it “accepted and retained
       payment for a claim against the insurance policy in existence against the [subject property]
       at the time of the ice and water damage.” Gold Coast attached, as exhibits to its second
       amended complaint, copies of the assignments of the mortgage and the promissory note to
       the subject property. It did not, however, attach the settlement agreement or any of the other
       assignments and now argues that “plaintiffs cannot see where any other documents were
       shown to be relevant.” We disagree. Moreover, although stating it for a different proposition
       (namely, that the contractual language requiring Cole Taylor to provide the insurance
       information was the same as assigning Cole Taylor’s right to the insurance proceeds),
       plaintiffs concede that “it was undisputed that the assignment was part of a broader
       settlement agreement.”
¶ 47       Section 2-606 of the Code of Civil Procedure states:
           “If a claim or defense is founded upon a written instrument, a copy thereof, or of so much
           of the same as is relevant, must be attached to the pleading as an exhibit or recited therein
           ***. *** [T]he exhibit constitutes a part of the pleading for all purposes.” 735 ILCS 5/2-
           606 (West 2008).
       A plaintiff who alleges breach of contract is statutorily required to attach the contract at issue

                                                  -9-
       to its complaint. Barber v. American Airlines, Inc., 398 Ill. App. 3d 868, 885 (2010), rev’d
       on other grounds, 241 Ill. 2d 450 (2011). Although plaintiffs attached only certain exhibits
       to their second amended complaint, all settlement documents are to be considered. See, e.g.,
       Lagen v. Balcor Co., 274 Ill. App. 3d 11, 17 (1995). Plaintiffs assert that Lagen is inapposite
       because the trial court there considered the additional documents whereas the record here
       does not show that the trial court did so. Our review is de novo and this distinction is
       immaterial. As we have explained, we may affirm the trial court’s dismissal on any proper
       basis found in the record. Zerjal, 405 Ill. App. 3d at 911.
¶ 48        An assignment is a contract and is interpreted or construed according to the rules of
       contract construction. Amalgamated Transit Worker’s Union, Local 241 v. Pace Suburban
       Bus Division, 407 Ill. App. 3d 55, 60 (2011). “The cardinal rule of contract interpretation is
       to discern the parties’ intent from the contract language.” Buenz v. Frontline Transportation
       Co., 227 Ill. 2d 302, 308 (2008). Unambiguous contract language should be given its plain
       and ordinary meaning. Id. Under the clear and unambiguous terms of the assignment, Cole
       Taylor assigned to CNA all of Cole Taylor’s “right, title and interest now owned or
       hereinafter acquired in, to and under that certain Construction Mortgage dated August 30,
       2005 made and executed by Gold Coast *** together with the Note as described therein, and
       the money due or to become due thereon.” It is undisputed that there is no document
       evidencing any assignment of any insurance policy or any proceeds resulting therefrom,
       including the Century Surety Company insurance policy. It is also undisputed that Cole
       Taylor’s right, title, or interest in or to any insurance policy, or its proceeds, is not mentioned
       in the agreement. As Cole Taylor notes, it assigned rights to receive money due on the note
       and not money due on a separate insurance contract referenced nowhere in the assignment.
¶ 49        Nonetheless, CNA takes the position that “Cole Taylor’s insurable interest in the subject
       property arose only from the construction mortgage.” CNA contends that Cole Taylor’s
       assignment effectively transferred Cole Taylor’s forced placed insurance policy, and all of
       its rights under the policy, to CNA. CNA has not cited any authority in support of its
       contention. Additionally, the circumstances surrounding the settlement do not support its
       argument.
¶ 50        As Cole Taylor notes, the parties executed 10 separate assignments as part of the “global”
       settlement. None assigned, or even mentioned, Cole Taylor’s rights in its insurance policy.
       Count V contains bare assertions that part of the consideration for the settlement was the
       payment of insurance premiums advanced by Cole Taylor and that Cole Taylor agreed to
       cooperate with CNA and assist CNA in working with Century Surety Company toward
       payment of a claim. However, CNA did not allege what the insurance premiums for the
       forced placed policy were, what the outstanding loan balance was on the subject property (or
       the second property). Moreover, Choi’s declaration in opposition to Cole Taylor’s motion
       to dismiss count V contained assertions made on “information and belief” that Cole Taylor
       added the premiums for the insurance it had placed on the subject property to the loan
       balance. CNA also failed to allege how Cole Taylor had “cooperated” with CNA in
       presenting an insurance claim to Century Surety Company. We agree with Cole Taylor that
       these conclusory allegations are not supported by specific factual allegations and can be
       disregarded. Thus, CNA’s breach of contract claim fails. The trial court correctly dismissed

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       count V of the second amended complaint pursuant to section 2-619.
¶ 51       Plaintiffs’ unjust enrichment claim in count VI also fails. “[W]here a specific contract
       governs the relationship between the parties, the doctrine of unjust enrichment is
       inapplicable.” Karimi v. 401 North Wabash Venture, LLC, 2011 IL App (1st) 102670, ¶ 14.
       Although count VI pled unjust enrichment in the alternative to count V’s breach of contract
       claim, it incorporated the same allegations including paragraph 13 which alleged the
       existence of the assignment which we have already explained to be a contract. Moreover,
       “[t]o state a claim for unjust enrichment, a complaint must allege that the defendant has
       unjustly retained a benefit to the plaintiff’s detriment and that the defendant’s retention of
       the benefit violates the fundamental principles of justice, equity, and good conscience.” A.P.
       Properties, Inc. v. Rattner, 2011 IL App (2d) 110061, ¶ 11. Count VI does not meet this
       standard.

¶ 52         The Trial Court Did Not Abuse Its Discretion in Denying Plaintiffs Leave
                                 to File a Third Amended Complaint
¶ 53        Plaintiffs also contend that the trial court abused its discretion in refusing to allow them
       to file a third amended complaint. Plaintiffs made an oral motion to amend their complaint
       at the end of the hearing on April 15, 2011, which the trial court denied. Thereafter, plaintiffs
       filed a motion to reconsider on May 24, 2011. The record contains no report of proceedings
       or bystander’s report. The appellant has the burden of providing a sufficient record to support
       a claim of error, and in the absence of such a record, the reviewing court will presume that
       the trial court’s order was in conformity with established legal principles and had a sufficient
       factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). Moreover, as defendants
       correctly noted in their briefs, and contrary to plaintiffs’ argument, the proposed third
       amended complaint did not cure the deficiencies of the second amended complaint. See, e.g.,
       Reuter v. MasterCard International, Inc., 397 Ill. App. 3d 915, 929 (2010) (a court does not
       abuse its discretion in refusing to allow a plaintiff to amend a complaint if the proposed
       amendment will not cure the defects in the pleading). Plaintiffs have failed to show that the
       trial court abused its discretion in denying them leave to file a third amended complaint.

¶ 54                                     CONCLUSION
¶ 55       In accordance with the foregoing, we conclude that the trial court correctly dismissed the
       second amended complaint. We also conclude that the trial court did not abuse its discretion
       in denying plaintiffs’ leave to file a third amended complaint. We therefore affirm the
       judgment of the circuit court of Cook County.

¶ 56       No. 1-11-2174, Affirmed.
¶ 57       No. 1-11-2893, Affirmed.




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