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02/05/88 Betty Prevendar Et Al., v. Raymond Thonn Et Al.

February 5, 1988

BETTY PREVENDAR ET AL., PLAINTIFFS-APPELLANTS

v.

RAYMOND THONN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

518 N.E.2d 1374, 166 Ill. App. 3d 30, 116 Ill. Dec. 394 1988.IL.148

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiffs, Betty Prevendar and Anne Heckbert, former owners of real estate located at 1505 South Addison, Lombard, Illinois, brought this action against Raymond and Linda Thonn, John S. Fitzgerald, Century 21 Atlas Real Estate, Inc. (Century 21), and two corporate officers of Century 21 to recover for property damage occurring on plaintiffs' property. A default judgment was entered against the Thonns, and they are not parties to this appeal. Further, plaintiffs' complaint sought no relief as to the individual officers of Century 21. This appeal arises from orders of the trial court directing a verdict in favor of Fitzgerald and Century 21 at the close of plaintiffs' case and denying plaintiffs' motion for reconsideration. Plaintiffs further appeal the trial court's order assessing attorney fees in favor of Century 21 against both plaintiffs and plaintiffs' counsel pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat., 1986 Supp., ch. 110, par. 2-611). Fitzgerald has subsequently been dismissed from this action and is not part of this appeal. We affirm in part and reverse in part.

Plaintiffs inherited the Lombard Street property in 1980. The property consisted of a main house, coach house, and garage. The structures were vacant and had been winterized in November 1981 by Fitzgerald, a plumbing contractor. At that time, Century 21 was acting as listing agent for plaintiffs' property. In April 1982, Century 21 approached Prevendar about the possibility of renting the property to the Thonns with an option to purchase. Prevendar agreed and subsequently executed a one-year lease in accordance with those terms.

Thereafter, plaintiffs had difficulty obtaining the rent payments from the Thonns. In November 1982, Prevendar and a companion went to inspect the property and discovered some plumbing damage in the coach house. A burst pipe which had been removed from the wall was on the floor of the coach house, and the wall between the kitchen and the bathroom had a hole in it. Prevendar subsequently contacted Century 21 by telephone and solicited management services for the property. Prevendar explained to the Century 21 representative that such services were necessary because she was having trouble collecting rent and there was plumbing damage which needed repair. Century 21 informed Prevendar that a written management agreement would be prepared and sent to her for signature.

Thereafter, Century 21 prepared a written management agreement for the property and forwarded that agreement to Prevendar. Prevendar received the written agreement, executed it, and returned it to Century 21. The written agreement took effect on December 1, 1982. Century 21's responsibilities under the written agreement included renting the property, collecting the rents, and terminating tenancies. In addition, the written agreement provided that Century 21 effectuate and supervise any repairs and decorating of the property. However, the agreement further provided that expenses exceeding $49.99 had to be authorized in writing by plaintiffs.

Following the execution of the written management agreement, Century 21 contacted the Thonns on four or five occasions in an attempt to collect the delinquent rent. Century 21's attempts to collect the rent were unsuccessful. Century 21 did not take any steps to initiate eviction proceedings against the Thonns, but rather recommended to Prevendar that she contact her attorney for that purpose. Century 21 also informed Prevendar of several complaints the Thonns had regarding the condition of the premises. When asked about the status of the plumbing problem and rent collection attempts, Century 21 advised Prevendar that they were taking care of it. In fact, Century 21 obtained a bid for repairs sometime in February or March 1983. The returned bid was for $1,850; however, the record does not reflect the exact date on which the bid was taken or the condition of the property at that time. Century 21 did not communicate the bid to Prevendar, but believed that the plumber had done so in February or March 1983. In any event, Prevendar stated that the bid was not communicated to her until April 1983. At no time during the duration of the written agreement did Century 21 request, or plaintiffs' provide, written authorization to effectuate any repairs on the property. No action was taken on the bid.

Following the termination of the Thonns' lease in April 1983, Prevendar and a companion went to the property and discovered that the Thonns had vacated the premises. Neither Prevendar nor Century 21 was aware that the Thonns had vacated the property. Upon inspection, Prevendar discovered that the condition of the coach house had substantially deteriorated from the time when she first noticed the broken pipe and hole in the wall. The walls and ceilings were covered with mildew. There was substantial water and mildew damage throughout the coach house, and the metal cabinets in the kitchen were rusted. The parties subsequently terminated their relationship, and plaintiffs sold the property in August 1983.

On September 5, 1985, plaintiffs filed their complaint in this action. Plaintiffs alleged that Century 21 breached the terms of the management agreement with plaintiffs and willfully and wantonly disregarded its duties under the contract. The trial court, in a bench trial, bifurcated the proceedings as to liability and damages. A hearing on liability was held on March 11 and 12, 1987. Among the witnesses called by plaintiffs was plaintiffs' designated expert, John Ball. After extensive voir dire, the court determined that plaintiffs had not adequately qualified Ball as an expert. At the Conclusion of plaintiffs' case, Century 21 moved to strike evidence as to the condition of the property after termination of the lease and management agreement. Century 21 also moved for a directed verdict. Both motions were granted. Plaintiffs' motion for reconsideration was denied. At the same time, the court considered Century 21's petition for attorney fees and costs pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat., 1986 Supp., ch. 110, par. 2-611). The trial court granted Century 21's petition for fees against plaintiffs and plaintiffs' counsel. Plaintiffs brought this timely appeal arguing that the trial court erred in (1) entering a directed verdict in favor of Century 21; (2) striking the evidence as to the condition of the property after termination of the management agreement; (3) disqualifying plaintiffs' expert; and (4) applying section 2-611.

This case comes before this court after the trial court in a bench trial directed a verdict in favor of Century 21 at the Conclusion of plaintiffs' case. Section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1110) sets forth the applicable standard in a bench trial when a defendant moves for directed verdict at the Conclusion of a plaintiff's case. Section 2-1110 provides that "[in] ruling on the motion, the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence." (Ill. Rev. Stat. 1985, ch. 110, par. 2-1110.) Our supreme court has held that, pursuant to such a motion, the trial court is to determine in the first instance whether the plaintiff has made out a prima facie case as a matter of law. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 155.) If the plaintiff has not made out a prima facie case, the defendant's motion should be granted, and judgment should be entered in his favor. (81 Ill. 2d at 155.) However, if the court determines that the plaintiff has made out a prima facie case, the trial Judge, as the finder of fact, must then weigh the plaintiff's evidence. (81 Ill. 2d at 155.) This weighing process may result in the negation of some of the evidence necessary to the plaintiff's prima facie case. If this occurs, the defendant's motion should be granted and judgment should be entered in his favor. (81 Ill. 2d at 155.) In weighing the evidence, the court must consider all of the evidence, including any favorable to the defendant. (81 Ill. 2d at 154.) The court is not to view the evidence in the light most favorable to the plaintiff. (81 Ill. 2d at 154.) On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. (81 Ill. 2d at 154.) Manifest weight has been described as the weight of the evidence which is clear, plain, and indisputable. See Development Management Group, Inc. v. Interstate Realty, Inc. (1978), 61 Ill. App. 3d 155, 161.

Plaintiffs agree that the applicable standard before the trial court was to weigh the credibility of the witnesses and the quality of evidence. However, plaintiffs point out that the trial Judge did not state his findings and argue that he did not perform the weighing function properly. Furthermore, plaintiffs expressly challenge the well-accepted maxim that a trial court is in a better position to observe ...


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