The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County, The Honorable David Lichtenstein, Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Plaintiffs Martin and Noreen Hirsch brought suit against defendants Stuart and Helen Feuer alleging claims for breach of contract, violation of the Residential Real Property Disclosure Act (765 ILCS 77/1 et seq. (West 1994)) (Property Disclosure Act), and fraudulent misrepresentation and concealment related to plaintiffs' purchase of a home from defendants. The circuit court granted defendants' motion to dismiss plaintiffs' fifth amended complaint with prejudice. The court then denied plaintiffs' motion to reconsider. Plaintiffs appeal, arguing that the circuit court erred in dismissing the complaint and in denying the motion to reconsider.
For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.
On February 6, 1996, plaintiffs brought a complaint against defendants alleging breach of contract, fraudulent concealment and willful and wanton misconduct related to the purchase of a home from defendants. Defendants moved to dismiss, but the circuit court granted leave to replead and found defendants' motion moot. Plaintiffs subsequently filed several amended complaints, each alleging similar claims. The court granted defendants' motions to dismiss each complaint but allowed plaintiffs to replead after each dismissal.
On August 21, 1997, plaintiffs filed their fifth amended complaint, alleging claims for breach of contract, violation of the Property Disclosure Act, and fraudulent misrepresentation and concealment. The complaint alleged that in January 1995 plaintiffs entered into a real estate contract with defendants for the purchase of defendants' property at 1578 Hazel Road, Winnetka. The first count, for breach of contract, stated:
"4.In paragraph twelve (12) of the real estate contract, it states: 'sellers represent that to the best of sellers' knowledge, all heating, central cooling, ventilating, electrical and plumbing fixtures and systems on the real estate and all appliances to be transferred to purchaser pursuant to this contract are in working order and will be so at the time of closing.'
5.On or about February 8, 1995, Plaintiffs duly performed all terms and conditions of the contract and tendered Seven Hundred and Seventy Five Thousand Dollars ($775,000.00) to Defendants for the purchase price of said premises under the contract.
6.After the Plaintiffs moved into said premises, they became aware of certain material defects with the heating, central cooling, ventilating and plumbing fixtures and systems, which they learned from reliable sources that the Defendants had knowledge of prior to entering into the contract.
7.Defendants have breached said contract by misrepresenting themselves in breach of paragraph 12 of the contract when they knew that the heating, central cooling, ventilating and plumbing fixtures and systems were not in working order at the time of closing.
8.Plaintiffs have spent considerable sums of money in order to repair the material defects and rectify the damages caused by Defendants' breach."
The second count, for violation of the Property Disclosure Act, alleged that pursuant to sections 20 and 25 (765 ILCS 77/20, 25 (West 1994)), defendants "were obligated to provide Plaintiffs with a disclosure report revealing all known material and substantial defects within the house." Plaintiffs alleged that defendants provided a residential real property disclosure report indicating that the only defect of the property was the bottom drain of the swimming pool. Plaintiffs further alleged:
"12.After the Plaintiffs moved into said premises, they became aware of substantial material defects within the house which were not disclosed on the disclosure report and which they learned from reliable sources that the Defendants were aware of said defects prior to executing the disclosure report.
13.Pursuant to 765 ILCS 77/55, Defendants have violated the Residential Real Property Disclosure Act by intentionally concealing and failing to disclose known defects in the Disclosure Report.
14.Plaintiffs have spent considerable sums of money in order to repair and rectify the aforementioned material defects and are required to continue to expend in the future substantial sums of money to repair these defects."
The third count alleged fraudulent misrepresentation and concealment, stating:
"17. Prior to entering into the contract and closing the transaction, Defendants expressly represented to the Plaintiffs and on the disclosure report that the only known, existing material defect ...