Urban Vibe Entertainment, LLC v. The Board of Trustees of the University of Illinois

ORDER

This cause comes before the Court on the Respondent’s Combined Motion to Dismiss the Claimant’s Amended Complaint. The Claimant filed an objection, and the Respondent filed a reply. The Court having read the pleadings and being fully advised finds as follows:

Introduction

Claimant, a concert promoter, brings this action against the Board of Trustees of the University of Illinois (the “University”), for alleged breach of contract arising out of a canceled show at the UIC Pavilion (the “Pavilion”) in Chicago.

The Amended Complaint alleges that the Claimant booked the Pavilion, a 10,000- seat multipurpose indoor arena owned and operated by the University and located on the University of Illinois-Chicago (UIC) campus, for a concert featuring musical artists New Edition and Babyface, among others, to be held on July 23, 2016. On the night of the show, a severe thunderstorm hit the Chicago area, causing portions of the Pavilion to flood. The University canceled the show and subsequent attempts by the parties to reschedule were unsuccessful.

Claimant alleges that the University breached its written contract and has filed the instant six-count complaint seeking over $1.5 million in money damages resulting from the loss of ticket revenue, guaranteed payments to the performers, and damage to reputation among other injuries. The Amended Complaint cites three counts for breach of contract (Counts I, II and V) along with claims of detrimental reliance, promissory estoppel and estoppel (Counts II, IV and VI).

[*144] Facts

The following relevant facts are set forth in the Claimant’s Amended Complaint and are taken as true for purposes of this motion, as they must when reviewing a motion to dismiss.

On or about April 22, 2016, the Respondent entered into a written contract with Claimant to furnish the Pavilion for an indoor concert featuring New Edition, Kenny “Babyface” Edmonds and other acts, to be held on the evening of July 23, 2016.

Under the contract, Claimant agreed to pay Respondent, as consideration for the above, a “rental fee” of $12,500 and a “house package” of $25,000, as well as other “reimbursable costs”, set forth in the contract. In addition, Claimant agreed to pay Respondent a $12,500 deposit.

Under the contract, Respondent agreed to provide Claimant with no less than 30 days’ notice before terminating the contract with or without cause. However, Respondent could terminate without providing 30 days’ notice if any part of the facilities was damaged or destroyed or in an unforeseen occurrence rendered use of the facilities impossible.

Claimant attached to its Amended Complaint a copy of the written contract.

Article 9 of the contract contained the following Immediate Termination Provision:

9.4 Immediate Termination

In the event the Facilities or any part thereof its destroyed or damaged by any cause, or if any other casualty or unforeseen occurrence shall render use of the Facilities impossible, in the sole judgment of the University, then this Agreement shall terminate. Organization hereby waives any claims for damages or compensation resulting in termination of use due to the causes described herein, and may leave all exhibits, equipment or materials in the Facilities in the event of causes described herein.

[*145] Article 20 of the contract contained the following Integration Provision:

Article 20. Integration

This Agreement, with its accompanying exhibits, addenda and agreed upon riders if any constitutes the entire agreement of the parties. It is expressly understood and agreed that the University makes no representation or agreements, oral or otherwise, outside the terms of this Agreement which add to, broaden, vary, or conflict with the provisions hereof. Any purported outside representation or agreement have no force or effect upon the rights or duties of the University hereunder. No term, provision, or condition of this Agreement may be altered, amended or added except the execution of a written agreement by the parties herein… The Amended Complaint states that on the afternoon of July 23, 2016, a large thunderstorm struck the Chicago area and the Pavilion area experienced heavy rainfall at or before the concert and that the heavy rainfall flooded and damaged the Pavilion.

It also states, upon information and belief, that Respondent unilaterally terminated the contract and canceled the show because “Respondent’s plumbing, sewage, and/or drainage systems at the Pavilion were outdated, inadequate, and poorly maintained, including the drains and/or pipes being clogged, and therefore, insufficient to handle the water from a summer Chicago rainstorm, causing flooding at or in the Pavilion.”

Later, it adds, upon information and belief, that “the Pavilion was flooded when the clogged drainage system caused water to enter the arena through the loading dock area.”

Attached to the Amended Complaint are photographs of the pavilion on the night of July 23, 2016, showing a portion of the loading dock affected by the water. The exhibits are labeled “New Edition Concert Images of Water Damage Inside the UIC

Arena.”

[*146] The Amended Complaint alleges that in reliance on the University’s promise to provide the arena for the concert, Claimant entered into guaranteed contracts with New Edition, Babyface and other artists.

According to the Amended Complaint, the Respondent repeatedly promised to reschedule the event, but then failed to follow up as needed to do so. Such assurances and representations included multiple posts on the Pavilion’s Facebook page and Twitter feed, which Respondent controls. One such Twitter post, a screenshot of which was attached to the Amended Complaint, stated “Tonight’s New Edition show has been postponed. We will announce a new date on Tuesday…” A later Facebook post stated “On Saturday, the UIC Pavilion was forced to postpone the New Edition concert… We are in close contact with the promoters, discussing the best way to handle and reschedule.”

Notwithstanding these alleged representations, the Amended Complaint states that the University ultimately refused to reschedule the concert and instead unilaterally announced to the public on August 16, 2017, that the concert would not be rescheduled.

Respondent then unilaterally refunded the value of the concert tickets to those who had purchased them.

The Amended Complaint alleges that as a result of the University’s conduct, the Claimant suffered significant loss of revenue in the form of ticket refunds and the payments to musical acts, as well as reputational damage in the concert promotion industry. It states that the University’s decision to cancel the concert was unreasonable, given that several other high-profile concerts and events in and around the Chicago area scheduled for that night of July 23, 2016, including Coldplay concert at Soldier Field, proceeded despite the storm, and that it was the University’s own failure to properly maintain the Pavilion that led to the water situation in the arena. As such, the Amended Complaint states that the Claimant is entitled to compensation, either on a theory of breach of contract or detrimental reliance/estoppel.

Respondent has moved to dismiss each count of the Amended Complaint pursuant to either 735 ILCS 5/2-615 and/or 753 ILCS 5/2-619, on the basis that the Amended Complaint fails to state a claim for breach of contract and/or that this court lacks subject matter jurisdiction over the claims sounding in equity.

[*147] Analysis

Section 219.1 of the Illinois Code of Civil Procedure allows for motions regarding pleadings under 2-615 and 2-619 to be filed together as a single motion. 735 ILCS 5/219.1.

Under 2-615 a complaint may be dismissed for failure to state a cause of action.

The motion calls into question the legal sufficiency of the facts alleged to state a cause of action for which relief may be granted. Cove Management v. AFLAC, Inc., 2013 IL App (1st) 120884, ¶ 20. The motion accepts all well-pleaded facts as true and reviews them in a light most favorable to the nonmoving party. CAN International, Inc. v. Baer, 2012 IL App (1st) 112174, ¶ 30.

Respondent’s motion to dismiss under 2-619 cites to 735 ILCS 5/2-619(a)(1), which provides for dismissal when the court does not have jurisdiction over the subject matter of the cause and the relief sought. Cohen V. McDonald’s Corp., 347 Ill. App. 3d 627, 632-33 (1st Dist. 2004).

The Court will rule on each count set forth in the Amended Complaint as grouped by whether dismissal is being requested pursuant to Section 2-615 or 2-619.

Counts I, III, and V (2-615):

To state a claim for breach of contract, a claimant must plead “(i) the existence of a valid and enforceable contract, (ii) performance by the claimant, (iii) breach of the contract by the respondent, and (iv) resultant injury to the claimant.” Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 27. Where an agreement’s terms are unambiguous, they “should generally be enforced as they appear, and those terms will control the rights of the parties.” Id. “If the language of the contract is facially unambiguous,” then a court need not look outside its four corners to interpret it. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999).

Here, Claimant sufficiently pleads that it has a written agreement with the University and that Claimant performed its obligations. However, it fails to adequately allege the third element (breach) necessary to state a claim for breach of contract against [*148] the University. Claimant does not identify any term of the contract that the University purportedly breached. “Only a duty imposed by the terms of a contract can give rise to a breach.” W.W. Vincent & Co. v. First Colony Life Ins. Co., 351 Ill. App. 3d 752, 759 (1st Dist. 2004).

The Amended Complaint acknowledges the Pavilion was flooded and suffered damages on the night of the event. Section 9.4 of the contract allowed the University to terminate it in its “sole judgment in the event the Facilities or any parts thereof were destroyed or damaged by any cause, or if any other casualty or unforeseen occurrence shall render use of the Facilities impossible…” (emphasis added). It then adds expressly that the claimant in this case “hereby waives any claims for damages or compensation resulting in termination of use due to the causes described herein.”

Claimant argues that this provision should not apply because severe summer thunderstorms were a “foreseeable” occurrence but pleads no facts to establish how it would be foreseeable that such a storm would lead to severe flooding of the Pavilion so as to render it unusable for an indoor concert.

Claimant also argues on information and belief that but for the University’s allegedly faulty maintenance of the drainage system surrounding the Pavilion, the venue would have been unusable despite the storm. These factual allegations, if proven true, may be better suited under a theory of negligence. However, Claimant does not assert a negligence claim, and the facts asserted would most likely be found insufficient to establish the requisite plausibility. Claimant simply cannot plead facts sufficiently establishing that a breach of contract occurred where, as here, the contract contained a clear provision that allowed the University to terminate the contract “in its sole judgment” in the event the arena or any part thereof became unusable due to any casualty or unforeseen cause. “[A] court cannot alter, change or modify the existing terms of a contract or add new terms or conditions to which the parties do not appear to have assented, write into the contract something which the parties have omitted or take away something which the parties have included.” Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (1st Dist. 2006) citing 12A Ill. L. & Prac. Contracts § 233 (1983). “A presumption exists against provisions that easily could have been included in the contract but were not.” Id. citing [*149] Lee v. Allstate Life Insurance Co., 361 Ill. App. 3d 970, 979 (2d Dist. 2005). “Further, where a contract purports on its face to be a complete expression of the entire agreement, courts will not add another term about which the agreement is silent.” Id. at 301-302 (citing Pritchett v. Asbestos Claims Management Corp., 332 Ill. App. 3d 890, 897 (5th Dist. 2002)).

While the Court is sympathetic to the plight of a promoter who suffers a bad break such as this one, it cannot alter the terms of a written agreement that provides a venue owner with an unilateral right to terminate an event such as the one that occurred here and that expressly waives any claims for damages based on the same. Claimant concedes the Pavilion was flooded and suffered damage, and we find that Respondent’s decision to exercise its “sole judgment” and terminate the contract was supported by the contractual language agreed to by both parties and thus cannot form the basis for a breach of contract claim.

The Court further notes that the implied covenant of good faith and fair dealing (Count V) is not a cause of action. See Anderson v. Burton Associates, Ltd., 218 Ill. App. 3d 261, 267 (1st Dist. 1991) (holding that while it is true that this obligation exists in every contract in Illinois, it is essentially used as a construction aid in determining parties’ intent, and “vague notions of fair dealing” do not form the basis for in independent tort. (Internal citation omitted.)) For the reasons set forth above, we find that the Claimant cannot meet its burden of pleading all the necessary elements for a breach of contract claim in this case and Counts I, III and V must be dismissed with prejudice.

Counts II, IV and VI (2-615 and 2-619):

Counts II and IV are labeled as “Detrimental Reliance & Promissory Estoppel” claims and Count VI is labeled as “Estoppel.” In essence, Claimant has offered these legal theories for recovery on equitable doctrines as an alternative to its breach of contract claims.

The Court of Claims has consistently held that it lacks jurisdiction over claims sounding in equity. Turpin v. Bd. of Trustees of Southern Illinois University, 65 Ill. Ct. C1.

[*150] 189, 197 (2013); Ace Coffee Bar, Inc. v. The University of Illinois, 51 Ill. Ct. C1. 395 (1999); Garimella v. Board of Trustees of the University of Illinois, 50 Ill. Ct. C1. 350 (1996). The basis for these holdings is that this Court is a creature of statute and its jurisdiction is controlled by Section 505/8 of the Court of Claims Act. 705 ILCS 505/8.

This Court is not a court of general jurisdiction where it is empowered to consider the equities of a dispute. Turpin, 65 Ill. Ct. C1. at 197. As such, we simply do not have jurisdiction to hear these particular three counts based on estoppel theories.

We note as well that even if we did have jurisdiction to entertain Claimant’s estoppel claims here, we nonetheless would still find that Claimant’s counts II, IV and IV fail to satisfy the elements of the respective doctrines.

To state a claim of promissory estoppel, the plaintiff must allege that: (1) the defendant made him an unambiguous promise; (2) the plaintiff relied on the promise; (3) the plaintiff’s reliance was expected and foreseeable by the defendants; and (4) the plaintiff relied on the promise to his detriment. See Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 233 Ill. 2d 46, 51 (2009).

Here, the Amended Complaint does not identify any unambiguous “promise” relied upon by Complaint to its detriment. Although Count II alleges that Respondent promised to reschedule the Concert, it does not plead sufficient facts that would establish an unambiguous promise to do so, such as specific dates and times and terms that would make any reliance reasonable. The Amended Complaint does point to some University social media posts, but none of those posts contains an unambiguous promise. Count IV alleges that Respondent encouraged Claimant to enter into third-party contracts with the musical acts but again Claimant does not and cannot plead sufficient facts to show how this conduct formed a legally enforceable promise. Because Claimant cannot set forth the prima facie elements for a promissory estoppel claim, Counts II and IV of the Amended Complaint must be dismissed.

Claimant’s estoppel claim in Count VI suffers from the same defects.

In order to assert a claim of estoppel, a plaintiff must allege the following: (1) words or conduct amounting to a misrepresentation or concealment of material facts; (2) the party against whom estoppel is alleged must have had knowledge at the time the representations were made that they were untrue; (3) the truth as to the representations [*151] must have been unknown to the party asserting estoppel at the time they were relied upon; (4) the party estopped must have intended or reasonably expected the conduct or representations acted upon; (5) the party asserting estoppel must have relied in good faith on the misrepresentation to his or her detriment; and (6) the party asserting estoppel must have so acted because of such representations of conduct and must be prejudiced if the party to be estopped is permitted to deny the truth thereof. Elson v. State Farm Fire & Gas Co., 295 Ill. App. 3d 1, 15-16 (1st Dist. 1998) (citing Vaughn v. Speaker, 126 Ill. 2d 150, 162-63 (1988)).

In its objections, Claimant repeats its allegations that the University assured it that Claimant’s losses due to the concert cancellation would be considered for settlement through the University’s self-insurance plan. However, Claimant does not allege sufficient facts to show how this would be a misrepresentation, let alone one that the University knew to be false at the time. Elson, 295 Ill. App. 33d at 15-16 (1st Dist. 1998) (holding that estoppel requires pleading, among other things, words or conduct amounting to the misrepresentation or concealment of material facts). Nor does Claimant plead sufficient facts to establish how any such reliance on the University’s statements caused it any detriment. Here again, Claimant fails to present a prima facie claim for estoppel, and thus Count VI of the Amended Complaint must be dismissed as well.

Once again, however, we find that regardless of these pleading defects the Claimant’s claim based on equitable principles as set forth in Counts II, IV and VI of the Amended Complaint must be denied for lack of jurisdiction.

Because the Claimant cannot state a cause of action for breach of contract and this Court lacks jurisdiction over the Claimant’s claims sounding in equity, the Respondent’s Combined Motion to Dismiss is granted and the Claimant’s claims are dismissed with prejudice.

Conclusion

IT IS HEREBY ORDERED that Respondent’s Combined Motion to Dismiss is GRANTED and the Claimant’s claims are dismissed with prejudice.