BRADLEY E. BLEVINS and ANNE KINSELLA BLEVINS, Plaintiffs-Appellants,
JOHN MARCHESCHI, LAURA MARCHESCHI, and GREAT HOUSE REAL ESTATE, LLC, Defendants-Appellees.
from the Circuit Court of Du Page County. No. 15-L-137,
Honorable Brian R. McKillip, Judge, Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justices Zenoff and Schostok concurred in the judgment and
1 Plaintiffs, Bradley E. Blevins and Anne Kinsella Blevins,
sued defendants, John Marcheschi, Laura Marcheschi, and Great
House Real Estate, LLC, for breach of contract, consumer
fraud, fraudulent misrepresentation, and negligent
misrepresentation based on defendants' failure to
disclose water damage in the house they sold to plaintiffs.
The trial court granted defendants' motion to dismiss
plaintiffs' complaint, without prejudice, pursuant to
sections 2-615 and 2-619 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615, 2-619 (West 2014)). The court ruled
that, because plaintiffs' complaint was based on the
Residential Real Property Disclosure Report (Disclosure
Report) completed by the Marcheschis, it was untimely under
the one-year statute of limitations set forth in the
Residential Real Property Disclosure Act (Disclosure Act)
(765 ILCS 77/60 (West 2014)). Then, striking the allegations
regarding the Disclosure Report from the complaint, the court
found the complaint insufficient to state a cause of action.
Plaintiffs filed an amended complaint and a second amended
complaint, preserving their rights on appeal by incorporating
the claims in the original complaint. The court dismissed
those complaints without prejudice. Thereafter, the court
granted plaintiffs' request to dismiss the second amended
complaint with prejudice.
2 On appeal, plaintiffs argue that the trial court erred in
applying the Disclosure Act's one-year limitations period
on the basis of the Disclosure Report, dismissing the
complaint pursuant to section 2-619, and striking the
allegations regarding the Disclosure Report. They also argue
that the court erred in finding the complaint factually
insufficient pursuant to section 2-615. We reverse and remand
the cause with directions to reinstate the original
3 I. FACTS
4 Plaintiffs' pleadings alleged the following facts. On
August 21, 2012, plaintiffs purchased from defendants a
single-family home in Glen Ellyn, Illinois. The contract
specifically referenced the residential real estate
disclosures required by statute, including the Disclosure
Report required by the Disclosure Act (id.
§§ 20, 35). In the Disclosure Report, defendants
represented that they were not "aware of material
defects in the walls or floors."
5 On or about October 22, 2012, a few months after plaintiffs
moved in, a painting contractor hired to paint the kitchen
noticed an area of damaged gypsum wallboard on the western
wall. He advised plaintiffs that the damage appeared to have
been caused by water. He repaired it, but around January
2013, a mushroom-like material began to protrude from the
damaged area. Plaintiffs retained KJN Renovations (KJN) to
remediate the damage. Plaintiffs also retained GZA
GeoEnvironmental, Inc. (GZA), to investigate during the
6 On August 28, 2013, materials were removed from the damaged
wall and significant damage was located inside the wall. The
damage included water-damaged trim work and gypsum wallboard,
additional fungal growth, and nail corrosion, and the
exterior facade of the wall was removed. Under the exterior
facade, KJN and GZA found wet wood and water damage to
exterior sheathing comprised of oriented strand board and to
the wooden supports of the window bank. GZA issued a report
(GZA Report) concluding that the conditions found under the
wallboard were from water infiltration and that the
infiltration and damage began before plaintiffs purchased the
property. Further, considering the "chronic damage"
and "the significance of the fungal contamination,
" GZA concluded that it was "inconceivable that
[defendants] were not aware of the water damage, fungal
growth, or building materials impacts" within the wall.
Plaintiffs incurred $45, 640 in costs for the remediation of
7 On February 11, 2015, plaintiffs filed their original
complaint, alleging breach of contract, consumer fraud,
fraudulent misrepresentation, and negligent
misrepresentation. Defendants filed a motion to dismiss
pursuant to sections 2-619 and 2-615. They argued that,
because the allegations were all based on the
Marcheschis' representation in the Disclosure Report that
they were unaware of any material defects in the walls, the
Disclosure Act's one-year limitations period applied and
the complaint was therefore barred. Id. § 60.
Defendants also maintained that "[t]here is not one fact
in the complaint that gives any real basis for saying
[defendants] knew of water infiltration or water damage"
and that plaintiffs attempted to fill this factual void with
an opinion from a contractor.
8 As for defendants' argument regarding section 2-619,
the court applied the Disclosure Act's one-year
limitations period because it "believe[d] that the gist
of each and every count in the complaint [was] based upon the
[Disclosure Act]." The court stated that, "when you
use [the Disclosure Report] as the underlying basis and you
state that that was a fact that was misstated or an omission,
then I think [you are] invoking the [Disclosure Act] and the
actual remedies given in that [Act]."
9 In addressing defendants' argument under section 2-615,
the court stated:
"[B]ecause if I take those allegations out of the
complaint, strike them and then read the complaint and each
and every count again and striking what I'm talking about
is the actual contract any allusion to or statement regarding
the facts contained in the Real Estate Residential Disclosure
Act, and you strike those out of the complaint, you will see
that the complaint is insufficient to state a cause of action
as far as the standard needed as to facts regarding a third
situation, which would be-the third situation would be a
situation where statements are made by the defendants to the
plaintiff, some type of oral or written statement outside of
the Real Estate Residential Disclosure Report."
10 The court granted defendants' motion to dismiss and
dismissed the complaint without prejudice, granting
plaintiffs leave to file an amended complaint, including
claims "with regard to other situations or that they can
place in the complaint that do not include ...