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Woods v. Pence

March 12, 1999

JAMES M. WOODS AND JOELL L. WOODS, PLAINTIFFS-APPELLANTS,
v.
GEORGE E. PENCE, IONE K. PENCE, MICHAEL PARTIN, AND VERN BURWELL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois, No. 97-LM-52 Honorable A. Scott Madson, Judge, Presiding.

The opinion of the court was delivered by: Justice Slater

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiffs James and Joell Woods filed a complaint seeking damages for violation of the Illinois Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/20 et seq. (West 1996)) and for negligent misrepresentation arising from plaintiffs' purchase of a residence from defendants George and Ione Pence. The trial court granted summary judgment in favor of the Pences, and plaintiffs now appeal from that judgment. Plaintiffs' claims against defendants Michael Partin and Vern Burwell, real estate agents involved in the transaction, were dismissed and are not at issue on appeal. We affirm in part and reverse in part and remand for further proceedings.

I. Facts

A. Overview

Plaintiffs purchased a house in Princeton, Illinois, from the Pences on August 9, 1996. Prior to that time, the Pences had completed and signed a residential real property disclosure report and had delivered it to plaintiffs. The report stated that the Pences were not aware of leaks or material defects in the roof of the house. After purchasing the house, plaintiffs continued to live at their original home, which had not yet been sold. On March 1, 1997, while working on the house, a substantial rainfall occurred and plaintiffs saw water leaking from the roof and running down from the second floor to the basement. Plaintiffs obtained estimates for repairing and replacing the roof and they alleged damages of $30,000.

B. Evidence of previous repairs

In the spring of 1992, defendant George Pence became aware of a leak in the roof. The defendant had William Williams, a general contractor, put patching compound on the roof. No further leaks were noted until the summer of 1993 or 1994, when a leak occurred in the same general area. Williams again put patching compound on the roof. In October or November of 1995 the roof leaked again. After patching the roof for the third time, Williams told the defendant that the roof would have to be replaced at some point, but no specific time frame was mentioned.

In addition to these repairs, the record contains portions of Williams' deposition testimony indicating that another man, Steve Birdsley, had also done repairs to the roof. These repairs apparently occurred in September of 1991 and sometime in 1992.

C. Plaintiffs' knowledge of the leaks

Plaintiff James Woods testified at his deposition that when he and his wife walked through the house during an open house, he noted "evident" water damage in the dining room to the window sill, baseboard and floor, as well as damage to the ceiling and floor in the master bedroom. When plaintiff received the disclosure report indicating no roof leaks, it raised questions in his mind. The realtors told plaintiff those questions would be addressed at the final walk-through prior to closing, but no walk-through occurred.

II. Analysis

A. Standard of review

Summary judgment should be granted only when the pleadings, affidavits, depositions, admissions and exhibits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1996); Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 688 N.E.2d 106 (1997). In ruling on a summary judgment motion, the trial court must construe the pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). Summary judgment is a drastic measure of disposing of litigation and it should only be granted when the movant's right to relief is clear and free ...


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