Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/24/94 TIMOTHY K. MARSH AND DONNA M. MARSH v.

October 24, 1994

TIMOTHY K. MARSH AND DONNA M. MARSH, PLAINTIFFS-APPELLEES,
v.
LARRY RHEINECKER AND KATHERINE RHEINECKER, DEFENDANTS-APPELLANTS (CHURCHILL, MCDONNELL & HATCH, APPELLEES).



Appeal from the Circuit Court of St. Clair County. No. 91-L-969. Honorable James S. Radcliffe, Judge, presiding.

Maag, Welch, Chapman

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Plaintiffs, Timothy and Donna Marsh, filed suit against the defendants, Larry and Katherine Rheinecker, for alleged breach of contract and fraud pursuant to a real estate sale contract. The complaint also named as a defendant Leonard Bush d/b/a Bush Pest Control.

Bush settled with the plaintiffs prior to trial and was dismissed from the action. Following a bench trial, the court found in favor of the plaintiffs and against the defendants on count I, the contract claim, and in favor of the defendants and against the plaintiffs on count II, the fraud claim. Damages were awarded to the plaintiffs, after all offsets and credits in the amount of $8,588.00. Defendants were also ordered to pay plaintiffs' counsel $4,434.87, representing attorney fees, costs, and expenses. Defendants appeal.

This case arose from the sale of a residence located in Millstadt. On April 9, 1988, plaintiffs as purchasers and defendants as sellers entered into a written contract for the sale of the residence. The contract was a standard form supplied by the Belleville Board of Realtors.

Prior to signing the contract, the plaintiffs inspected the residence. During the inspection, plaintiffs noticed spots on a breezeway ceiling. Upon closer inspection, wood, dust, and splinters flaked out. The defendants were questioned about this condition by the plaintiffs, and the plaintiffs were told that the roof had leaked in the past, causing this condition, but that the leak had been repaired. Plaintiffs told their real estate agent to have that location checked thoroughly when the home was inspected.

At no time did the defendants make any representations or warranties concerning the condition of the home. Defendants had no knowledge of structural or termite damage. Defendants gave the plaintiffs full unrestricted access to the premises.

The real estate sales contract contained a provision, which will be more thoroughly discussed later in this decision, that obligated the defendants to provide and pay for a termite inspection. The inspection was performed by Bush Pest Control. The report indicated that the home had previously been treated for termites, but that there was no evidence of wood-destroying insects or damage. This report was delivered to the plaintiffs.

Prior to closing on the sale, neither plaintiffs nor defendants had any knowledge of any termite damage or other structural damage.

Five months after closing, Timothy Marsh was moving a refrigerator in an apartment adjacent to the breezeway when his foot went through the floor. When the floor and walls were closely inspected, evidence of dry rot and inactive termite damage was discovered. As a result, the plaintiffs filed suit against the defendants.

There is no issue in this case regarding the amount of the damages awarded, nor is there any issue regarding the court's ruling in favor of the defendants on the fraud count. The sole issue we are presented with is whether the defendants breached the real estate sale contract.

Three provisions of the contract are at issue, paragraphs 11, 15, and 16. These paragraphs state:

"11. WOOD INFESTATION REPORT. Not more than sixty days prior to closing, Sellers shall at their expense[] provide a written report from a licensed pest control firm certifying to Buyers that the premises have been inspected for termites and other wood-destroying insect infestation. If active infestation is found, the premises shall be treated at Sellers' expense. If structural damages due to prior or existing infestation is found, repairs shall be made at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.