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Cantrall v. Bergner

Court of Appeals of Illinois, Fourth District

December 19, 2016

ANDREA CANTRALL, Plaintiff-Appellant and Cross-Appellee,
v.
DANIEL BERGNER and VICKIE BERGNER, Defendants-Appellees and Cross-Appellants.

         Appeal 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

          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 leaking.

         ¶ 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 misconduct.

         ¶ 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 garage.

         ¶ 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 ...

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