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Blevins v. Marcheschi

Court of Appeals of Illinois, Second District

April 24, 2018

BRADLEY E. BLEVINS and ANNE KINSELLA BLEVINS, Plaintiffs-Appellants,
v.
JOHN MARCHESCHI, LAURA MARCHESCHI, and GREAT HOUSE REAL ESTATE, LLC, Defendants-Appellees.

          Appeal from the Circuit Court of Du Page County. No. 15-L-137, Honorable Brian R. McKillip, Judge, Presiding.

          BURKE JUSTICE delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

          OPINION

          BURKE JUSTICE.

         ¶ 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 complaint.

         ¶ 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 remediation process.

         ¶ 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 the damage.

         ¶ 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 ...


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