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Messerly v. Boehmke

Court of Appeals of Illinois, Fourth District

March 11, 2014

RICHARD MESSERLY and RHONDA MESSERLY, Plaintiffs-Appellants,
v.
ROBERT E. BOEHMKE, SR., Defendant-Appellee

Appeal from Circuit Court of Macoupin County. No. 04LM53. Honorable Patrick J. Londrigan, Judge Presiding.

Reversed.

SYLLABUS

The entry of summary judgment for defendant in an action alleging that defendant violated the Residential Real Property Disclosure Act and that plaintiffs suffered damages as a result of defendant's failure to complete the disclosures required under the Act in connection with the sale of his house to plaintiffs was reversed, since plaintiffs did not waive defendant's obligations under the Act and genuine issues of material fact existed as to whether there were material defects in the plumbing system and the foundation of the house.

Edward T. McCarthy (argued), of McCarthy & Allen, of Edwardsville, for appellants.

Rick Verticchio and Gina Verticchio (argued), both of Verticchio & Verticchio, of Gillespie, for appellee.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.

OPINION

KNECHT, JUSTICE.

Page 58

[¶1] In March 2004, plaintiffs Richard and Rhonda Messerly filed a complaint against defendant, Robert E. Boehmke, Sr. Plaintiffs' third amended complaint alleged (1) defendant violated the Residential Real Property Disclosure Act (Act) (765 ILCS 77/25 (West 1998)) and (2) plaintiffs incurred damages due to the incomplete disclosures. Both parties moved for summary judgment. The trial court granted defendant's motion.

[¶2] On appeal, plaintiffs claim the record contains evidence defendant knowingly violated the Act and the trial court erroneously concluded plaintiffs could waive defendant's obligations under the Act. Plaintiffs also ask this court to reverse the trial court's grant of summary judgment in favor of defendant and order the trial court to grant their motion for summary judgment as to defendant's liability. We reverse.

[¶3] I. BACKGROUND

[¶4] A. Plaintiffs' Allegations

[¶5] In the July 2010 amendment to plaintiffs' complaint, they alleged on September 29, 1998, they purchased a home from defendant, at 105 Shelby, in Gillespie, Illinois, for $87,000. On or about August 7, 1998, defendant filled out and signed the disclosure report. Plaintiffs alleged defendant violated the Act as the disclosure report was false and incomplete because it did not disclose material defects in the home's foundation and plumbing system. See 765 ILCS 77/25(b) (West 1998). Plaintiffs alleged the plumbing system in the property was seriously defective so as to require repairs in excess of $15,000 but less than $50,000. They claimed the foundation and wall of the premises were and are unstable and continue to settle, sink, and move, causing additional damages. Plaintiffs requested judgment for over $50,000 plus court costs and reasonable attorney fees.

[¶6] B. Discovery

[¶7] 1. The Disclosure Form

[¶8] In August 1998, prior to the sale, defendant filled out a " Residential Real Property Disclosure Report" (disclosure form) as required under the Act. See 765 ILCS 77/35 (West 1998) (specifying the required disclosure report form). The disclosure form indicated the address of the property and included blanks consisting of 22 statements. The disclosure form required the seller to fill in " yes" or " no" to indicate his or her knowledge of specific defects in the property. Id.

Page 59

[¶9] Defendant answered questions Nos. 1 through 17 on the form, answering " no" to all the questions answered except question No. 4. Question No. 4 states, " I am aware of material defects in the basement or foundation (including cracks and bulges)." Id. Defendant answered " yes" to this question. In the space provided to explain defendant's affirmative answer, defendant stated, " no damages from water in basement from crack."

[¶10] Question No. 6 asked if defendant was " aware of material defects in the walls or floors" ( id.) and defendant answered " no" . Defendant also answered " no" to question No. 8, which asked if he was " aware of material defects in the plumbing system (includes such things as water heater, sump pump, water treatment system, sprinkler system, and swimming pool)." Id. Defendant did not answer question Nos. 17 through 22. Question No. 17 asked if defendant was " aware of mine subsidence, underground pits, settlement, sliding, upheaval, or other earth stability defects on the premises." Id.

[¶11] A space on the form is provided for signatures along with a space for the date. Defendant signed the disclosure form and wrote " August 8, 1998," next to his name. Plaintiffs also both signed the disclosure form and wrote " August 25, 1998," next to their names.

[¶12] 2. The Letter From Defendant's Insurance Company

[¶13] Prior to October 1991, defendant submitted a claim to his insurance carrier, State Farm Fire and Casualty Company (State Farm). State Farm responded with a letter dated October 30, 1991, and addressed to defendant, stating State Farm had received a report for the Illinois Mine Subsidence Insurance Fund (Fund). State Farm indicated the Fund had investigated defendant's claim and concluded " the damage to your home is not the result of mine subsidence but rather settling." The letter stated damage from ...


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