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Grass v. Homann

OPINION FILED OCTOBER 11, 1984.

WILLIAM GRASS ET AL., PLAINTIFFS-APPELLEES,

v.

GERALD HOMANN, D/B/A B & R ENTERPRISES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

False termite inspection report.

Suit sounding in negligence and consumer fraud.

Neither theory applies here.

Reversed and remanded.

William and Yolanda Grass bought a home at 908 Lafayette in Mattoon. The home was financed by Paul Shafer, who bought it from David and Sheryl Crawford, and then resold it to the Grasses for his purchase price — plus $1,000. Yolanda Grass wanted the home inspected for termites and termite damage before consummating the deal. On June 13, 1977, William Bright of B & R Enterprises conducted a termite inspection and gave a termite inspection certificate to the Crawfords.

Two aspects of the certificate are pertinent here. First, the certificate stated that B & R Enterprises was bonded, which it was not. Second, the certificate stated that the home was free from termites and needed no repairs because of these pests. In fact, most of the support system for the entire home — including the floor joists and main weight-bearing timbers — was entirely eaten away with termite damage. Bright admitted at trial that the conditions were known to him at the time he issued and signed the certificate.

Plaintiffs first became aware of the termite damage in June of 1979, when the floors of the home began pulling away from the walls. They brought suit against Bright in 1981 and received a judgment which Bright discharged in bankruptcy.

Plaintiffs then brought the instant suit against Gerald Homann. They alleged that at the time the certificate was issued, Homann was a partner of Bright's in B & R Enterprises. The complaint was stated in four counts. Count I alleged that B & R had breached an agreement with David Crawford, which agreement had been entered for the benefit of the Grasses, and sought damages in an amount exceeding $15,000. Count II alleged that William Bright, acting on behalf of B & R Enterprises, had negligently and carelessly performed a termite examination of the home, which negligence had damaged the plaintiffs in an amount exceeding $15,000. Count III alleged that William Bright wilfully and wantonly failed in his responsibility to perform a termite inspection of the premises, thereby damaging plaintiffs in an amount exceeding $15,000 and creating a liability for $50,000 in punitive damages. Count IV stated the existence of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 261 et seq.) and alleged that B & R Enterprises had violated the Act by misrepresenting to the plaintiffs the absence of termite damage and in issuing a certificate which bore the untrue assertion that B & R Enterprises was bonded and insured, when in fact it was not bonded. This count alleged that plaintiffs had been damaged in an amount exceeding $15,000 and also sought attorney fees.

Following a trial on all the issues, an instruction conference was held. At this time plaintiffs' counsel moved that count I (the count sounding in contract) be voluntarily dismissed. The motion was granted. Defense counsel moved that count III, seeking punitive damages, be dismissed. That motion was also granted, leaving for the jury count II, sounding in negligence, and count IV, alleging the violation of the Consumer Fraud and Deceptive Business Practices Act.

After settling on the appropriate instructions, both counsel gave closing arguments to the jury. During his closing argument, plaintiffs' attorney asked the jury to determine whether the defendant had been negligent or had violated a statute. He told them that they were to be put to a choice and could not find that the defendant had been both negligent and had violated the statute. He suggested that the evidence more strongly supported a finding based on the statutory violation.

Defense counsel gave his closing argument and the jury was instructed. After deliberations, the jury returned two verdict forms, both favoring plaintiffs. The jury found that the defendant had been negligent in his inspection of the home and set damages at $11,600. The jury also found that the defendant had violated the Consumer Fraud and Deceptive Business Practices Act and fixed damages for that violation at $2,500.

After the judgment was entered, an appeal was filed. But this court dismissed the appeal because the trial court had reserved its ruling on attorney fees sought in count II. Following a hearing on attorney fees, the court eventually decided that plaintiffs were entitled to 35% of the entire verdict as attorney fees, ...


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