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12/30/96 JOHN PARIS AND BARBARA PARIS v. SAMUEL

December 30, 1996

JOHN PARIS AND BARBARA PARIS, PLAINTIFFS-APPELLANTS,
v.
SAMUEL FEDER, DOMINGO GUALBERTO, VICTOR A. TYLER, JR., LIBERTY REAL ESTATE, INC., DEFENDANTS, AND ILLINOIS DEPARTMENT OF PROFESSIONAL REGULATION, DEFENDANT-INTERVENOR-APPELLEE.



Appeal from the Circuit Court of Cook County. 95 L 881. Honorable Sidney Jones, III, Judge Presiding.

Released for Publication February 13, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Theis and S.m. O'brien, JJ., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

John and Barbara Paris appeal an order awarding them $10,000 plus $1,500 in attorney's fees from the Real Estate Recovery Fund. Their complaint had asked for the full amount of their loss, $23,000.

Plaintiffs signed an agreement for the purchase of real estate on August 17, 1993. Plaintiffs deposited $20,750 in earnest money with defendants, who were licensed real estate agents. The agreement terminated without default, but the brokers never returned the earnest money. Plaintiff's filed a complaint against the brokers on January 19, 1995, for conversion and breach of a promissory note. Judgment was entered against the brokers, Samuel Feeder and Liberty Real Estate, Inc.

Plaintiffs filed a verified claim against the Real Estate Recovery Fund for $20,000 plus $3,000 attorney fees and costs. The Illinois Department of Professional Regulation, which maintains the Real Estate Recovery Fund, intervened and filed a response. The Department argued that the statute governing the Fund limited recovery to a maximum of $10,000 for each real estate transaction, no matter how many persons suffered losses. The court agreed with the Department and directed the Fund to pay plaintiffs $10,000 plus $1,500 in attorney fees and cost. This appeal followed. We affirm.

The facts are undisputed, so our decision depends on the interpretation of the statute. Von Meeteren v. Sell-Sold, Ltd., 274 Ill. App. 3d 993, 996, 654 N.E.2d 577, 211 Ill. Dec. 115 (1995). Our standard for review is de novo. Von Meeteren, 274 Ill. App. 3d at 996, 654 N.E.2d 577.

Two appellate court opinions address the interpretation of this statute but come to opposite conclusions: Von Meeteren, 274 Ill. App. 3d 993, 654 N.E.2d 577, 211 Ill. Dec. 115; and Reda v. Otero, 251 Ill. App. 3d 666, 622 N.E.2d 825, 190 Ill. Dec. 795 (1993). We agree with the reasoning and conclusion of the court in Von Meeteren though we acknowledge that the court reached its conclusion in dicta.

First, we find that the statute is clear on its face. We need not explore legislative intent to determine the meaning of the statute. Branson v. Department of Revenue, 168 Ill. 2d 247, 659 N.E.2d 961, 213 Ill. Dec. 615 (1995).

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

"The Department shall establish and maintain a Real Estate Recovery 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 any 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 that $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 the connection therewith of not to exceed 15% of the amount of the recovery ordered paid from the Fund. ***

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).

We agree with the analysis in Von Meeteren that the statute unambiguously states that for a single "act" the person or persons aggrieved may recover no more than $10,000. The statute then goes on to provide that "*** the judgment order shall spread the award equitably among all co-owners or to otherwise aggrieved persons, if any." 225 ILCS 455/23 (West 1993). When a single broker is guilty of more than one fraudulent transaction the maximum ...


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