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Miller v. Bizzell

March 03, 2000

EDITH MILLER AND MURRY J. MILLER, PLAINTIFFS-APPELLANTS,
v.
MELVIN L. BIZZELL AND CRYSTAL E. BIZZELL, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Sangamon County No. 96LM280 Honorable Roger W. Holmes, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiffs, Edith and Murry J. Miller, sued defendants, Melvin L. and Crystal E. Bizzell, for alleged damages they incurred from the purchase of defendants' home. Following a bench trial, the trial court entered judgment for defendants. The trial court then awarded defendants attorney fees pursuant to section 55 of the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/55 (West 1994)). Plaintiffs appeal the award of attorney fees. We vacate the award of attorney fees and remand with directions.

In May 1995, plaintiffs entered into a contract to purchase defendants' home. Defendants delivered a residential real property disclosure report as required by the Disclosure Act (765 ILCS 77/35 (West 1994)) that indicated, in part, no material defects existed in the roof, ceilings, or chimney. In July 1995, plaintiffs moved into the home. In October 1995, plaintiffs became aware of a leak in the roof in the second-floor bedroom closet.

In February 1996, plaintiffs sued defendants, alleging a cause of action under the Disclosure Act and fraudulent misrepresentation. Plaintiffs alleged that defendants knew of the leak in the roof and failed to disclose the leak on the disclosure form. In February 1999, defendants filed a motion for summary judgment. In March 1999, the trial court denied defendants' motion for summary judgment and held a bench trial. At the close of plaintiffs' case, the trial court entered judgment for defendants.

In April 1999, defendants filed a petition for attorney fees as the "prevailing party," pursuant to the Disclosure Act (765 ILCS 77/55 (West 1998)). In May 1999, the trial court granted defendants' petition for attorney fees. The trial court interpreted section 55 of the Disclosure Act, "on its face as making no differentiation between a prevailing seller or buyer as to the awarding of attorney fees." This appeal followed.

Plaintiffs argue that the trial court erred in its interpretation of section 55 of the Disclosure Act, which provides an award of attorney fees to the prevailing party:

"A person who knowingly violates or fails to perform any duty prescribed by any provision of this Act or who discloses any information on the Residential Real Property Disclosure Report that he knows to be false shall be liable in the amount of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party." 765 ILCS 77/55 (West 1998).

Plaintiffs argue the legislature had buyers, not sellers, in mind when it included the provision to award fees to the prevailing party. In addition, plaintiffs argue that if defendants can receive attorney fees under section 55 of the Disclosure Act, defendants here are not entitled to fees because the trial court never found plaintiffs' action was frivolous.

The primary rule of statutory construction is to ascertain and give effect to the true intent of the statute. People ex rel. Baker v. Cowlin, 154 Ill. 2d 193, 197, 607 N.E.2d 1251, 1253 (1992). The court should first consider the statutory language itself, and if that statutory language is clear, that language should be given effect without resorting to other aids of construction. Cowlin, 154 Ill. 2d at 197, 607 N.E.2d at 1253.

We disagree with plaintiff that allowing attorney fees to defendants would have a chilling effect on these causes of action, inconsistent with the purposes of the Act. The Act, which changed the long-standing common-law rule of caveat emptor, expresses no intention to treat plaintiffs differently from defendants.

The sentence allowing the grant of attorney fees applies to "[a] person"; it does not specify a specific party to the transaction. 765 ILCS 77/55 (West 1998). When the legislature wants provisions of the Disclosure Act to apply to a specific party, it has so specified. For example, the beginning of section 55 specifies, "If the seller ***" (765 ILCS 77/55 (ILCS 1998)); section 25 addresses the "liability of seller" (765 ILCS 77/25 (West 1998)); and section 40 does not allow the "prospective buyer" the right to terminate the contract under certain circumstances (765 ILCS 77/40 (West 1998)). In addition, the legislature defined the terms "seller" and "prospective buyer" to assure the correct enforcement of the Disclosure Act. See 765 ILCS 77/5 (West 1998).

The legislature also used the term "prevailing party" when addressing the award of attorney fees. The use of the term "prevailing party" in statutes allowing the grant of attorney fees has been interpreted to include both plaintiffs and defendants. See Haskell v. Blumthal, 204 Ill. App. 3d 596, 599, 561 N.E.2d 1315, 1317 (1990); Casey v. Jerry Yusim Nissan, Inc., 296 Ill. App. 3d 102, 106-07, 694 N.E.2d 206, 209 (1998). The purpose of statutes that allow the transfer of fees is to curb abuses by both parties. See Haskell, 204 Ill. App. 3d at 599, 561 N.E.2d at 1317; R. Friedman, Private Right of Action Under the Illinois Consumer Fraud and Deceptive Business Practices Act, 76 Ill. B.J. 748, 751 (1987). If the present act, the Disclosure Act, is interpreted to allow the award of attorney fees only to prevailing buyers, it will afford no limitation on buyers who file meritless claims.

A review of other Illinois statutes that provide for a grant of attorney fees to a prevailing party shows that when the legislature intends that certain parties can or cannot receive attorney fees, it has been specific. See 215 ILCS 5/132.7(a), (d) (West 1998) ("[p]ersons identified in subsection (a) [(director, director's authorized representatives, or any examiner appointed by the director)] shall be entitled to an award of attorney's fees and costs if they are a prevailing party in a civil action for ***"); 775 ILCS 5/10-102(C)(2) (West 1998) ("the court, in its discretion, may allow the prevailing party, other than the State of Illinois, reasonable attorney fees and costs"); 815 ILCS 5/13(A) (West 1998) ("[i]f the purchaser shall prevail in any action brought to enforce any of the remedies provided in this subsection, the court shall assess costs together with the reasonable fees and expenses of the purchaser's attorney against the defendant"); 815 ILCS 510/3 ...


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