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08/16/95 HENRY W. VON MEETEREN AND JANET R. VON

August 16, 1995

HENRY W. VON MEETEREN AND JANET R. VON MEETEREN, PLAINTIFFS-APPELLEES,
v.
SELL-SOLD, LTD., AN ILLINOIS CORPORATION, DOING BUSINESS AS RE/MAX INTOWN, AND CAROLE GIOVINGO, DEFENDANTS, AND THE ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, INTERVENOR-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 93 M1 102726. Honorable John P. Coady, John G. Laurie, Judges Presiding.

Presiding Justice Greiman delivered the opinion of the court: Rizzi and Cerda, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Henry Von Meeteren and Janet Von Meeteren (plaintiffs) entered into an agreement with Sell-Sold, Ltd. and its agent, Carole Giovingo (collectively, Sell-Sold), engaging Sell-Sold as their exclusive agent for the sale of real property owned by plaintiffs. Sell-Sold breached the listing agreement (Agreement) by failing to account for earnest money it received and held in escrow. After failing to satisfy a default judgment against Sell-Sold, plaintiffs successfully petitioned for relief under sections 23 and 25 of the Real Estate License Act of 1983 (the Act.) (225 ILCS 455/23, 455/25 (West 1993).) The trial court awarded plaintiffs $21,596.39 pursuant to rights provided by the Act.

Specifically, the Illinois Department of Professional Regulation (the Department) argues the trial court's award was in error since it exceeded the amount allowable under the Act, because the award includes: (1) the defendants' commission of $9,834; (2) interest on the underlying judgment; (3) costs and attorney fees above the amount established by the Act; and (4) ignores the Act's provision for a maximum recovery of $10,000 for each fraudulent transaction.

We agree that the award to plaintiffs exceeded the amount allowed by the Act, and reverse the trial court's order.

Section 23 of the Real Estate License Act of 1983 provides in relevant part:

The Department shall establish and maintain a Real Estate Recovery Fund (Fund) from which any person aggrieved by an act, representation, transaction or conduct of a duly licensed broker *** which constitutes embezzlement of money or property or results in money or property being unlawfully obtained from any person by false pretenses, artifice, trickery or forgery or by reason of fraud, misrepresentation, discrimination or deceit *** and which results in a loss of actual cash money as opposed to losses in market value, may recover. Such aggrieved person may recover, by order of the circuit court of the county where the violation occurred, an amount of not more than $10,000 from such Fund for damages sustained by the act, representation, transaction, or conduct, together with costs of suit and attorney's fees incurred in connection therewith of not to exceed 15% of the amount of the recovery ordered paid from the Fund. However, no licensed broker, or salesperson may recover from the Fund unless the court finds that the person suffered a loss resulting from intentional misconduct. Such court order shall not include interest on the judgment.

The maximum liability against the Fund arising out of any one act shall be as provided in this Section and the judgment order shall spread the award equitably among all co-owners or otherwise aggrieved persons, if any. The maximum liability against the Fund arising out of the activities of any single broker *** shall be $50,000. 225 ILCS 455/23 (West 1993).

Section 25 of the Act details the procedure by which section 23 relief is afforded, requiring plaintiffs to (1) obtain a valid judgment against a broker, and (2) exhaust all means of enforcing the judgment against such defendant prior to petitioning for relief from the Fund. 225 ILCS 455/25 (West 1993).

Plaintiffs entered into an Agreement with Sell-Sold to list and sell real property owned by plaintiffs. Sell-Sold found a buyer, who deposited $16,390 in earnest money with Sell-Sold. Sell-Sold retained the money and failed to refund the balance at closing after deducting its commission as provided for in the Agreement.

Plaintiffs sued Sell-Sold and obtained two default judgments against it in the amount of $18,556.88, but were unable to enforce either judgment against Sell-Sold, and thereafter petitioned for relief from the Fund.

On April 5, 1994, the trial court ordered the Department to pay plaintiffs the sum of $21,596.39 out of the Fund. The $21,596.39 represented the judgment, plus $2,816.91 in attorney fees, and $223.50 in additional costs. The Department failed to file or appear at this proceeding.

When the facts are undisputed and the decision rests on the proper interpretation of a statute, the appellate court reviews the trial court's ruling as a matter of law. ( Kaszubowski v. Board of Education (1993), 248 Ill. App. 3d 451, 618 N.E.2d 609, 188 Ill. Dec. 39.) Questions of law are determined de novo, giving no deference to the trial court's decision. S.B. Lexington, ...


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