Appeal from the Circuit Court of Du Page County; the Hon. John
S. Teschner, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Victor Julian (Victor) and Grace Julian (Grace) appeal from an order of the circuit court of Du Page County which directed a finding in favor of defendants, Ronald Spiegel (Ronald) and Sandra Spiegel (Sandra) on plaintiffs' action for rescission of their real estate contract. Plaintiffs assert the trial court erred in concluding that the evidence failed to establish a prima facie violation of the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1983, ch. 121 1/2, par. 261 et seq.). Because we conclude the trial court's order was not contrary to the manifest weight of the evidence, we affirm.
Plaintiffs filed on August 11, 1983, a two-count complaint seeking rescission of their contract to purchase a single-family ranch-style house located in Oak Brook, owned by defendants. Both counts were predicated on allegations that defendants' agents misrepresented to plaintiffs that the house contained a full basement. Count I was based upon common law fraud, while count II alleged a violation of the Act. Ill. Rev. Stat. 1983, ch. 121 1/2, par. 262.
According to the evidence adduced at trial, plaintiffs during June 1983 were considering the purchase of a new house. While driving through Oak Brook in early June 1983, Victor testified, plaintiffs became interested in one house located down the street from defendants' residence and telephoned the offices of intervening defendant-appellee Coldwell Banker Residential Real Estate Services of Illinois, Inc. (Coldwell Banker), whose sign was posted on the lawn. Mehri Briant (Briant), a real estate broker employed by Coldwell Banker, showed plaintiffs the house, and after they expressed little interest, telephoned them several days later requesting that they view defendants' house. Defendants' house was offered on the market pursuant to an exclusive listing agreement with intervening plaintiffs, counterdefendants and appellees John Brennan and Barbara Brennan, d/b/a RE/Max of Naperville (RE/Max). Nancy Schaaf, a broker with RE/Max, acted as the listing broker for the sale of defendant's house. Accepting the invitation from Briant, plaintiffs met her at defendants' house and inspected each room in the house on the main floor except for two bedrooms, because the doors to those rooms were closed. Victor also walked down the stairs to the basement, but because he and Briant were unable to locate the light switch, Victor testified, they could not view the entire basement area. According to plaintiffs' exhibit No. 6, the basement area includes a 31.31-foot south wall, a 33.36-foot east wall, a 26.20-foot north wall, and an irregular west wall totaling approximately 32.13 feet. However, the basement comprises only about one-third of the entire square footage of the main floor, with the remaining area occupied by a crawl space.
After completing the inspection, plaintiffs within several days submitted a written offer to purchase the property, which after several additional days of negotiation on the matter of price, was accepted in writing by plaintiffs. Plaintiffs thereafter immediately left Illinois for a two-week Florida vacation. Upon their return, plaintiffs again visited the subject house and, according to Victor's testimony, only then learned that the house contained a basement which did not extend the entire length and width of the main floor. Knowledge of this fact, plaintiffs allege, prompted them to seek rescission of the contract and repayment of their $30,000 earnest-money deposit. In response, defendants elected to retain the earnest money as liquidated damages pursuant to paragraph No. 18 of their contract with plaintiffs.
Plaintiffs thereafter filed suit, and at the close of their case in chief, defendants made a motion for directed findings as to count I and II of plaintiffs' complaint. The trial court granted defendants' motion as to count II, but denied a directed finding as to count I predicated on common law fraud. Defendants thereafter proceeded with their case in chief. At the close of defendants' evidence, the trial court entered judgment on May 22, 1984, in favor of defendants as to count I, finding that "[t]he JULIANS had both the obligation and opportunity to investigate the basement area." As to count II, the trial court found that "[t]he JULIANS failed to produce evidence in their case in chief to maintain a cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act." Plaintiffs did not submit a post-trial motion, but did file a timely notice of appeal on June 20, 1984.
• 1 The only question raised by this appeal is whether the decision of the trial court directing a finding in favor of defendants is contrary to the manifest weight of the evidence. (International Harvester Credit Corp. v. Helland (1985), 130 Ill. App.3d 836, 474 N.E.2d 882; Proctor v. Handke (1983), 116 Ill. App.3d 742, 452 N.E.2d 742; see Ill. Rev. Stat. 1983, ch. 110, par. 2-1110.) In entertaining a motion for a directed finding during a non-jury trial, the trial court must employ a two-step analysis. First, the trial court must determine if the plaintiff has made out a prima facie case (i.e., has presented at least some evidence on every element necessary to his cause of action). (Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154-55.) Failure to introduce such evidence warrants a directed finding in favor of the moving party. (Kokinis v. Kotrich (1980), 81 Ill.2d 151.) If some evidence is introduced on each element, then the trial court in its role as fact finder is required to weigh the plaintiff's evidence, and if the weighing process negates some of the evidence necessary to the plaintiff's prima facie case, then the court should grant the defendant's motion and enter judgment in its favor. (Kokinis v. Kotrich (1980), 81 Ill.2d 151.) The supreme court has described this weighing requirement in the following terms.
"This weighing process may result in the negation of some of the evidence necessary to the plaintiff's prima facie case, in which event the court should grant the defendant's motion and enter judgment in his favor. On the other hand, if sufficient evidence necessary to establish the plaintiff's prima facie case remains following the weighing process, the court should deny the defendant's motion and proceed as if the motion had not been made." 81 Ill.2d 151, 155.
Defendants imply that, in determining whether the trial court's order is contrary to the manifest weight of the evidence, this court is free to consider any evidence in the record which supports the trial court's judgment, including evidence introduced in defendants' case in chief on the common law fraud count, even though such evidence was admitted after the trial court had directed a finding on the statutory count. As support for that conclusion, defendants cite Cartwright v. Garrison (1983), 113 Ill. App.3d 536, 447 N.E.2d 446, and Rome v. Commonwealth Edison Co. (1980), 81 Ill. App.3d 776, 401 N.E.2d 1032, for the general proposition that a judgment of the trial court may be sustained on any basis in the record regardless of the actual basis for the trial court's decision. Neither Cartwright nor Rome, however, involved a factual situation similar to the one present here, where evidence introduced on a different but related count was admitted after the court had directed the finding on the other count. Rather, Cartwright involved an appeal from an order dismissing the complaint in its entirety, and, in Rome, both counts were dismissed but only one was appealed and no evidence was presented to the trial court after the counts were dismissed. Because, in both Cartwright and Rome, no evidence was received following the order from which the appeal was taken, neither case fairly stands for the proposition that this court can properly consider, as support for the order directing a finding on count II, evidence which was subsequently introduced on the separate but related count I predicated on common law fraud.
The parties have not cited and our research has not disclosed a decision in Illinois discussing whether a reviewing court can consider, in support of a directed finding, evidence on a separate but related count introduced after the finding is directed. In determining the correctness of a directed verdict on one count, however, the court in McMillen v. Carlinville Area Hospital (1983), 114 Ill. App.3d 732, 450 N.E.2d 5, considered whether it could review evidence on a separate but related count introduced after the trial court had directed the verdict. In McMillen, the patient sued the hospital asserting in count I a theory of res ipsa loquitur and in count II a theory of ordinary negligence. At the conclusion of the plaintiff's evidence, the trial court directed a verdict in favor of the defendant on the res ipsa loquitur count. After the close of defendant's case in chief, the negligence count was submitted to the jury, which returned a verdict in favor of the hospital. In determining what evidence it could consider on the appeal solely from the directed verdict, the McMillen court stated:
"Since the directed verdict came at the close of the plaintiff's evidence and since the plaintiff has not appealed the verdict of the jury on count II, we must view the evidence as it existed at the time of the trial court's ruling. The jury's verdict cannot be used to support that ruling; it was not in existence at the time." 114 Ill. App.3d 732, 733, 450 N.E.2d 5, 7.
Because McMillen procedurally is similar to the case at bar, its conclusion is relevant to our inquiry here. Plaintiffs here, as did the plaintiff in McMillen, brought suit on two counts alleging two separate but similar theories of liability. In both cases, the trial court directed judgment on one count at the close of the plaintiff's case, allowed the remaining count to proceed, and ultimately the trier of fact resolved that count in favor of the defendant. As was true in McMillen, plaintiffs here did not appeal the judgment on the surviving count, which was resolved by the trier of fact after hearing all the evidence, but rather only appealed the trial court's order directing judgment on one count at the close of plaintiffs' case. While we recognize the standards for a directed verdict (see Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494) and for a directed finding (see Kokinis v. Kotrich (1980), 81 Ill.2d 151) are different, nevertheless we believe the McMillen court's limitation of its scope of review solely to the evidence which had been presented prior to entry of the directed verdict is persuasive support for consideration in the case at bar only of plaintiffs' evidence introduced prior to entry of the directed finding. The correctness of the trial court's ruling should be determined based upon the evidence which was before the court when it made its ruling and not by consideration of evidence later introduced on a separate but related count. (C.f. Miller v. Illinois Central R.R. Co. (1946), 328 Ill. App. 171, 65 N.E.2d 597, aff'd on other grounds (1946), 395 Ill. 273; Brandt v. Brandt (1936), 286 Ill. App. 151, 3 N.E.2d 96.) Accordingly, in our determination whether the trial court's order was against the manifest weight of the evidence, we base our conclusion upon the evidence presented by plaintiffs in their case in chief prior to the trial court's entry of the directed finding. We note that plaintiffs accommodated the schedule of Sandra by allowing her to testify out of turn during plaintiffs' case in chief. Because Sandra's testimony was presented as part of defendants' case in chief, we do not consider it in resolving the issue presented by this appeal.
Despite the well-reasoned arguments of the parties concerning other elements of the Act, we believe that section 10b(4), which was in effect at the time that the parties' entered into their real estate contract, is all that is necessary for ...