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Kroot v. Chan

Court of Appeals of Illinois, First District, Sixth Division

September 15, 2017

MEREDITH PAIGE KROOT and JASON M. KROOT, Plaintiffs-Appellees,
SHU B. CHAN and YVONNE LAU, Defendants-Appellants.

          Rehearing denied September 8, 2017

         Appeal from the Circuit Court of Cook County, No. 13-L-12254; the Hon. James E. Snyder, Judge, presiding.

          Ben Goldwater, of Goldwater & Associates, of Chicago, for appellants.

          Kirsten M. Dunne, of Goldberg Weisman Cairo, of Chicago, for appellees.

          Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.



         ¶ 1 The defendants, Shu B. Chan and Yvonne Lau, appeal from orders of the trial court (1) denying their motion for summary judgment; (2) entering judgment against them and in favor of the plaintiffs, Meredith Paige Kroot (Meredith) and Jason M. Kroot (Jason), in the sum of $64, 518.67 "plus costs and fees" on the plaintiffs' claims for a violation of the Residential Real Property Disclosure Act (Act) (765 ILCS 77/1 et seq. (West 2012)) and common law fraud; (3) entering judgment against them and in favor of the plaintiffs in the sum of $28, 130.16 on the plaintiffs' petition for attorney fees and costs; and (4) denying their motion to vacate the judgment for attorney fees and costs. For the reasons that follow, we dismiss the defendants' appeal from the denial of their motion for summary judgment, affirm the trial court's $64, 518.67 judgment in favor of the plaintiffs, vacate the trial court's $28, 130.16 judgment in favor of the plaintiffs for attorney fees and costs, and remand this cause to the trial court for further proceedings.

         ¶ 2 The following factual recitation is taken from the pleadings filed by the parties and the evidence introduced at the trial of this cause.

         ¶ 3 In 2002, the defendants purchased the property commonly known as 3833 North Claremont Street, Chicago, Illinois, and improved with a single family residence (hereinafter referred to as the Property). The defendants resided in the Property from 2002 until December 2011 when they moved to a condominium unit.

         ¶ 4 On April 12, 2013, in preparation for their sale of the Property, the defendants executed a Residential Real Property Disclosure Report (Disclosure Report) as required by sections 20 and 35 of the Act (765 ILCS 77/20, 35 (West 2012)), in which they claimed no knowledge of flooding or recurrent leakage problems in the basement, defects in the basement, or material defects in the walls and floors. The plaintiffs were given a copy of the Disclosure Report and, on May 3, 2013, executed a written offer to purchase the Property which the defendants accepted on May 7, 2013 (hereinafter referred to as the Contract). In a letter executed by the parties' attorneys, the Contract was amended in a number of respects. Included within that letter is a representation that the defendants had no knowledge of the existence of any mold within the Property nor had there been any attempt to remove any substance from the sump pump room wall. It was also represented that there had been no flooding or water infiltration during the time that the defendants owned the Property. There is a paragraph within the letter, which states that the plaintiffs had the Property inspected and that the inspection noted "a number of issues" for which the plaintiffs requested a credit. Although executed by their respective attorneys, the letter was not signed by either the plaintiffs or the defendants. The closing of the sale and purchase of the Property contemplated by the Contract took place on June 25, 2013.

         ¶ 5 On November 4, 2013, the plaintiffs commenced the instant action with the filing of their four-count complaint against the defendants. According to the complaint, within 24 hours of purchasing the Property, the plaintiffs experienced water infiltration in the basement through the walls and floors. They asserted that there had been longstanding and recurring water infiltration problems with the Property during the defendants' ownership and that before and after signing the Disclosure Report and the Contract, the defendants knew it was likely that there was mold in the basement. According to the complaint, there were material defects in the basement, flooring, and walls of the Property along with mold caused by flooding and water infiltration. The plaintiffs alleged that they would not have gone forward with the closing for the agreed upon price had they known of the defects in the Property. The plaintiffs sought judgment for the costs of repairing the Property, all consequential damages, attorney fees, and costs. Count I of the complaint set forth a claim pursuant to the Act against both defendants, count II asserted a claim against the defendants for a violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2012)), count III was a common law fraud action against the defendants, and count IV was a negligence claim against Lau only.

         ¶ 6 The defendants answered the complaint, denying the material allegations. On June 24, 2014, they filed a motion to dismiss count II of the complaint, which the trial court granted without opposition from the plaintiffs. On January 27, 2015, the defendants filed a motion seeking summary judgment in their favor on the three remaining counts, alleging, inter alia, that, during the time that they owned the Property, they did not possess actual knowledge of any water infiltration or mold. The trial court denied the motion on April 21, 2015.

         ¶ 7 A bench trial was conducted on counts I, III, and IV of the complaint, following which the trial court entered its judgment order on March 28, 2016, finding in favor of the plaintiffs and against Chan on count I and in favor of the plaintiffs and against both defendants on count III. The trial court entered judgment in favor of the plaintiffs and against the defendants in the sum of $64, 518.67, plus costs and fees. The trial court found in favor of Lau and against the plaintiffs on counts I and IV.

         ¶ 8 On April 19, 2016, the plaintiffs filed their petition, seeking attorney fees and costs, and on June 23, 2016, the trial court entered an order awarding them $28, 130.16. On July 8, 2016, the defendants filed their motion to vacate the order of June 23, 2016, which the trial court denied on August 9, 2016. On August 22, 2016, the defendants filed their notice of appeal ...

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