from Circuit Court of Sangamon County No. 12LM247 Honorable
Chris Perrin, Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court,
with opinion. Justices Appleton and Steigmann concurred in
the judgment and opinion
KNECHT, PRESIDING JUSTICE.
1 In March 2011, plaintiff, Andrea Cantrall, entered into a
contract to purchase the home of defendants, Daniel and
Vickie Bergner. Defendants delivered a residential real
property disclosure report as required by the Residential
Real Property Disclosure Act (Act) (765 ILCS 77/35 (West
2010)) that indicated, in part, they were unaware of any
leaks or material defects in the roof, ceilings, or chimney.
After a home inspection revealed issues with the roof, the
parties executed a repair addendum where defendants, if
competent to do so themselves or by a qualified and reputable
contractor, were required to repair or replace all wood rot
and missing fascia on the home and garage. In April 2011,
plaintiff moved into the home and noticed the roof was
2 In February 2012, plaintiff filed a three-count complaint
against defendants, alleging a violation of the Act (765 ILCS
77/1 to 99 (West 2010)) (count I), fraudulent concealment
(count II), and breach of contract (count III). The trial
court entered judgment for plaintiff on count III and for
defendants on counts I and II and denied both parties'
requests for attorney fees. Plaintiff appeals, arguing she
was entitled to attorney fees under the fee-shifting
provision in the sales contract. Defendants cross-appeal,
claiming the court abused its discretion when it denied them
fees under the Act because plaintiff engaged in knowing
3 I. BACKGROUND
4 In March 2011, the parties entered into a residential real
estate sales contract, where plaintiff agreed to purchase
defendants' home. Soon thereafter, plaintiff ordered a
home inspection. Plaintiff was present during a portion of
the inspection and noticed a visible watermark on a wall in
the back stairway of the house and observed it was "wet,
two or three inches long and half an inch wide." The
inspector noted the fascia was physically damaged and missing
in places and there was rotted wood. The inspector further
recommended plaintiff seek an evaluation by a roofer. Based
on the inspection report, the parties agreed, via a repair
addendum, that defendants, if competent to do so themselves
or by a qualified and reputable contractor, would repair or
replace all wood rot and missing fascia on the home and
5 Defendant (Daniel) repaired the fascia under the edge of
the roof himself and applied caulk. He did not seek the
assistance, presence, advice, or consultation of any
engineer, carpenter, contractor, inspector, roofer, or other
persons knowledgeable of the building trades or any other
person, lay or professional. Defendant had no knowledge of
roofing or building trades, but he had been a painter years
ago. Prior to closing, plaintiff completed a final
walk-through of the house. Plaintiff still noticed the
watermark on the wall but assumed the agreed repairs were
completed. Plaintiff was not concerned about the watermark
because she assumed it was a stain and could be painted over.
At this time, plaintiff did not have the roof evaluated by a
roofer per the inspector's suggestion.
6 In April 2011, plaintiff was assured by defendants at
closing that all repairs had been made. A few days later,
plaintiff moved into the home. Within two weeks, it rained
and the roof leaked. Defendants refused to repair the leak.
Eventually, plaintiff paid $2, 500 for a roofer to make the
repairs. In February 2012, plaintiff filed a three-count
complaint against defendants, alleging a violation of the Act
(765 ILCS 77/1 to 99 (West 2010)) (count I), fraudulent
concealment (count II), and breach of contract (count III).
7 Before the trial court made its decision, both parties
requested attorney fees. Plaintiff argued she was entitled to
fees under the fee-shifting provision in the sales contract.
The fee-shifting provision provided, "All costs,
expenses[, ] and reasonable attorney's fees incurred by
one party in enforcing said party's rights under this
[c]ontract may be recovered from the other party."
Defendants argued they were entitled to fees under the Act
because plaintiff engaged in knowing misconduct (765 ILCS
77/55 (West 2010)). In November 2015, the court issued a
written order with the following findings:
"A. The Plaintiff has failed to meet her burden of proof
as to a knowing violation of the [Act]. There was
insufficient evidence presented at trial that the Defendants
had actual knowledge of a material defect in the roof at the
time the residential real property disclosure was completed.
B. The Defendants['] failure to supplement the
residential real property disclosure pursuant to Section 30
of the [Act] is permissible as the wood rot was discovered by
the Plaintiff and made known to Defendants by the Plaintiff
through the Repair Addendum.
D. The Plaintiff has failed to meet her burden of proof as to
her claim for fraud. There was insufficient evidence
presented at trial to support Plaintiff's claims that the
Defendants knowingly deceived, concealed[, ] or ...