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03/14/94 CHARLES BONNELL v. REGIONAL BOARD SCHOOL

March 14, 1994

CHARLES BONNELL, TRUSTEE OF LAND TRUST NO. 83-225, A/K/A BANK OF ALTON LAND TRUST NO. 83-225, PLAINTIFF-APPELLANT,
v.
THE REGIONAL BOARD OF SCHOOL TRUSTEES OF MADISON COUNTY, ILLINOIS, JOSEPH BARRY, EARL VUAGNIAUX, C.A. HENNING, BILL KELLER, WILLARD FLAGG, HOMER HUBER, JOSEPH HIGGINS, HAROLD BRIGGS, AND ALTON COMMUNITY UNIT SCHOOL DISTRICT NO. 11, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 92-L-231. Honorable P.J. O'Neill, Judge Presiding.

As Corrected April 21, 1994.

Welch, Lewis, Maag

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

Charles Bonnell, Trustee of Land Trust No. 83-225, a/k/a Bank of Alton Land Trust No. 83-225, appeals from the dismissal with prejudice of his amended complaint against the Regional Board of School Trustees of Madison County, Illinois, Joseph Barry, Earl Vaugniaux, C.A. Henning, Bill Keller, Willard Flagg, Homer Huber, Joseph Higgins, and Harold Briggs (Board), and Alton Community Unit School District No. 11 (District). The amended complaint, filed August 10, 1992, in the circuit court of Madison County, sought damages fortortious misrepresentation in the sale of real estate and damages for breach of the contract to sell the real estate, alleging that defendants had sold to plaintiff a school building which defendants knew contained asbestos without disclosing this fact to plaintiff. Pursuant to motions of defendants, the trial court dismissed the complaint with prejudice.

Counts I and II of the amended complaint, directed against the Board and the District, respectively, seek damages in tort. The amended complaint alleges that prior to July 8, 1983, the District directed the Board to sell the property known as Lincoln School. On July 8, 1983, the Board published a notice of sale for the property, and on July 25, 1983, plaintiff appeared at the auction and was the high bidder for the property.

Thereupon, plaintiff entered into a contract with defendants for the purchase of Lincoln School as evidenced by a "Temporary Receipt" showing the total purchase price of $30,000 for the Lincoln School and payment by plaintiff of $6,000, being 20% of the purchase price, and directing that the balance of $24,000 was to be paid on the delivery of the deed and evidence of merchantable title. The "Temporary Receipt," which is attached to the complaint, is dated and is signed by Harold E. Briggs, regional superintendent of schools and ex officio secretary of the Board. On September 9, 1983, plaintiff received the deed to the property.

The complaint alleges that, prior to the sale, the defendants knew that asbestos was located on the property but willfully and fraudulently failed to disclose this fact to plaintiff. The complaint alleges that the asbestos was a hidden defect which was not apparent to plaintiff and was not readily detectable by visual inspection. Plaintiff alleges that defendants had a duty to disclose to a purchaser the presence of asbestos.

After purchasing the property, plaintiff expended considerable sums in rehabilitation of the property. Thereafter, in March 1991, at the request of a prospective renter, the property was tested for the presence of asbestos, and on March 20, 1992, plaintiff first learned of the presence of asbestos. Plaintiff alleges that as a direct and proximate result of the defendants' failure to disclose the presence of asbestos, defendant has incurred damages.

Counts III and IV of the amended complaint are directed against the Board and the District respectively and seek damages for breach of contract. In addition to the allegations contained in counts I and II, these counts allege that, as a condition of all real estate sales contracts, the seller must disclose all hidden defects which affect the value of the property, and that the defendants breached the contractfor the sale of the real estate by failing to disclose the fact that there was asbestos located on the property in that at the time of the sale defendants knew of the presence of asbestos on the property. The complaint alleges that plaintiff has performed all conditions required of him under the terms of the contract and alleges that, as a direct result of defendants' breach of contract by its failure to disclose the hidden defect on the property, plaintiff has suffered damages.

On August 31, 1992, and September 2, 1992, the Board and the District, respectively, filed motions to dismiss the amended complaint. With respect to counts I and II, the motions allege that the defendants are immune from suit under sections 2-106, 2-210, and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1989, ch. 85, pars. 2-106, 2-210, 2-109.) With respect to counts III and IV, the motions allege that the allegation of breach of contract is not supported by any allegations of the terms or conditions of the contract which create the obligation under the contract which plaintiff alleges was violated.

On September 18, 1992, the court entered its order granting the motions to dismiss and dismissing the amended complaint with prejudice. The record contains no indication of the trial court's reasoning or rationale. Plaintiff appeals.

Because this cause comes before us for review of a trial court's grant of a motion to dismiss the complaint, all well-pleaded allegations in the complaint are taken as true. ( Eck v. McHenry County Public Building Comm'n (1992), 237 Ill. App. 3d 755, 758, 604 N.E.2d 1109, 1112, 178 Ill. Dec. 586.) However, any allegations which are merely Conclusions, unsupported by allegations of specific facts, are not admitted. Eck, 237 Ill. App. 3d at 758, 604 N.E.2d at 1112.

The motions to dismiss counts I and II of the amended complaint were based on the immunity provided to public entities and public employees by the Local Governmental and Governmental Employees Tort Immunity Act (Act). (Ill. Rev. Stat. 1989, ch. 85, par. 1-101 et seq.) The purpose of that Act is to protect public entities and public employees from liability arising from the operation of government. (Ill. Rev. Stat. 1989, ch. 85, par. 1-101.1(a).) Both defendants constitute "local public entities" within the meaning of ...


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