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Bouton v. Bailie

Court of Appeals of Illinois, Third District

October 29, 2014

BRIAN BOUTON, Plaintiff-Appellant,
v.
ERIN BAILIE and ROBERT BAILIE, Defendants-Appellees

Appeal from the Circuit Court of the 12 Judicial Circuit, Will County, Illinois, Circuit No. 10-SC-3032. The Honorable Mark Thomas Carney Judge, presiding.

SYLLABUS

In proceedings on a complaint filed by the purchaser of a residential property alleging tat defendants violated the Residential Real Property Disclosure Act by failing to disclose certain water leakage problems, the trial court's dismissal of the complaint on the ground that the transaction was exempt from the Act because defendants conveyed title to a relocation company which then conveyed title to plaintiff along with a disclosure form in which defendants falsely represented that they were unaware of any water problems was reversed, since section 15(7) of the Act does exempt such relocation companies from liability in such transactions if they comply with the requirement of providing a disclosure form furnished by the seller of the residence and the statute as a whole intends to preclude imposing liability on a relocation company for failing to disclose defects beyond its knowledge, but section 55 of the Act also imposes liability not only on " a seller" but on " a person" who fails to comply with its requirements; therefore, the cause was remanded for further proceedings.

David P. Smith (argued), of Brumund, Jacobs, Hammel, Davidson & Andreano, LLC, of Joliet, for appellant.

John A. Urban (argued), of Law Office of John A. Urban, of Wilmington, for appellees.

JUSTICE McDADE delivered the judgment of the court, with opinion. Presiding Justice Lytton and Justice Holdridge concurred in the judgment and opinion.

OPINION

McDADE, JUSTICE.

[¶1] Brian Bouton appeals from the trial court's dismissal of his complaint seeking to hold Erin and Robert Bailie liable for an alleged violation of the Residential Real Property Disclosure Act (the Act) (765 ILCS 77/1 et seq. (West 2010)). The Bailies argued that the Act was inapplicable to them because the type of transaction resulting in the sale of the property is exempted by the Act. We reverse the order of the trial court and remand the matter for further proceedings consistent with this decision.

Page 534

[¶2] FACTS

[¶3] The plaintiff Brian Bouton purchased the residential real property located at 25517 Prairiewood Lane, Shorewood, Illinois (the property), from Prudential Relocation, Inc. (Prudential), which had acquired title, by agreement, from defendants Robert and Erin Bailie (the Bailies). As the titleholder and pursuant to the terms of the statute, Prudential had the Bailies execute a disclosure form, which Prudential provided to Bouton prior to his purchase of the property. After completion of the purchase, however, Bouton filed a small claims complaint against the Bailies under the Act, alleging misrepresentations on the form. In his complaint, Bouton alleged that the Bailies falsely represented that they were not aware of any flooding or recurring leakage problems in the crawl space or basement and that they knew of no defects associated with such water problems. Bouton claimed to have suffered damages as a result of the undisclosed defects.

[¶4] A default judgment was obtained against the Bailies, and Bouton initiated wage garnishment proceedings. The Bailies had the default judgment vacated and filed a motion to dismiss Bouton's complaint because the Act was applicable to a transfer by Prudential and there was no privity of contract between them and Prudential. The motion was granted and Bouton's claim under the Act was dismissed. A timely notice of appeal was filed.

[¶5] ANALYSIS

[¶6] Bouton argues that the trial court erred in granting the Bailies' motion to dismiss because its reading of the Act as not including his type of transfer and thus foreclosing his action against the real sellers pursuant to the Act renders his right to relief effectively void. He also asserts that the intent of the legislature is thwarted if the Act is not read broadly to include liability of the ...


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