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Rolando v. Pence

May 23, 2002

LAWRENCE ROLANDO AND JENNIFER ROLANDO, PLAINTIFFS-APPELLEES,
v.
WESTING E. PENCE AND BARBARA L. PENCE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County. No. 99-AR-840 Honorable C. Stanley Austin, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum

UNPUBLISHED

Plaintiffs, Lawrence and Jennifer Rolando, purchased a house from defendants, Westing and Barbara Pence, and subsequently experienced problems with a leaking roof. Plaintiffs sued defendants for, inter alia, fraudulent misrepresentation based on disclosures defendants made in connection with the transaction. Following plaintiffs' case in chief, defendants moved for a directed finding, arguing that representations made pursuant to the Illinois Residential Real Property Disclosure Act (the Act) (765 ILCS 77/1 et seq. (West 1998)) cannot form the basis for a fraudulent misrepresentation claim. The court denied the motion. Following the bench trial, the court granted judgment in favor of plaintiffs on the fraud count and awarded them $59,000 in damages. Defendants appeal, challenging the denial of their motion and the judgment. We affirm.

Defendant Westing Pence, an architect, designed and built the home that he and his wife sold to plaintiffs.

Defendants moved into the home in 1988. They experienced leaks in the living room and kitchen in 1993, which Westing Pence testified that he repaired and of which there was no recurrence. Defendants again experienced leaking in 1994 in the toilet closure and around the chimney. Pence stated that he repaired those leaks without subsequent recurrence. Leaking occurred again in 1995 near the kitchen windows, in the garage ceiling, and on the west side of the living room, all of which Pence stated that he repaired and of which there was no recurrence. All of his repairs consisted of the application of silicone to the affected areas.

Westing Pence testified that there were no leaks in the home from the summer of 1996 through March 25, 1998, the date that defendants turned over possession to plaintiffs.

On February 23, 1998, plaintiffs had entered into a contract with defendants to purchase defendants' home. Defendants completed and tendered to plaintiffs a "Residential Real Property Disclosure Report" (Disclosure Report). 765 ILCS 77/20 (West 1998). In the Disclosure Report, the defendants answered "no" to the statement "I am aware of material defects in the roof, ceilings or chimney of the home."

Plaintiffs moved into the home shortly after their purchase. Lawrence Rolando testified that they began experiencing leaks from the roof in various rooms between April and June of 1998. The situation worsened such that he had to place a tarp over part of the roof. Rolando testified that plaintiffs found evidence of previous leaks and repairs throughout the home, none of which were discovered by their home inspector.

On November 29, 1999, plaintiffs sued defendants, for, inter alia, fraudulent concealment and fraudulent misrepresentation. In the fraudulent concealment count, plaintiffs alleged that defendants actively concealed evidence of leaks by, among other methods, painting over the affected areas. With respect to their fraudulent misrepresentation count, plaintiffs alleged that defendants knew that their answer in the Disclosure Report was false; that they had actual knowledge of material damage to the home caused by water leaking from the roof; that they knew that plaintiffs would rely on their representation in the Disclosure Report; that this statement constituted a material misrepresentation made to induce plaintiffs to purchase the property; and that plaintiffs relied on defendants' representation. After plaintiffs' case in chief, defendants moved for a directed finding, arguing that (1) plaintiffs did not introduce any representation other than the answer in the Disclosure Report, which cannot form the sole basis for a fraudulent misrepresentation claim; and (2) plaintiffs did not establish that they relied on any representation in the Disclosure Report because they retained an independent home inspector to examine the home. The court denied their motion. Ultimately, the court granted judgment in favor of plaintiffs, and defendants appealed. Defendants argue first that the court erred in denying their motion because (1) plaintiffs failed to establish any representations of material fact, other than the representation made pursuant to the Act; and (2) plaintiffs failed to establish that defendants had a duty to disclose defects that they reasonably believed were corrected.

Plaintiffs challenge defendants' ability to contest the denial, arguing that defendants waived such right by presenting evidence in their defense.

Section 2--1110 of the Code of Civil Procedure provides:

"In all cases tried without a jury, defendant may, at the close of plaintiff's case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived." (Emphasis added.) 735 ILCS 5/2--1110 (West 1998).

Defendants respond that they presented evidence in defense of only the fraudulent concealment count; therefore, they did not waive their motion with respect to the fraudulent misrepresentation count. We agree.

When construing a statute, a court must give the statutory language its plain meaning and must import to the statute the fullest possible meaning to which it is susceptible. People v. Ferrell, 277 Ill. App. 3d 74, 77 (1995). The primary rule of statutory construction is to ascertain and give effect to the true intent of the legislature, and the legislative intent is best determined by the language of the statute. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 97 (1996). Where the statutory language is unambiguous, it is given effect without resort to other aids of statutory construction. Augustus, 278 Ill. App. 3d at ...


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