Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 16 L 1501 The
Honorable Jerry A. Esrig, Judge Presiding.
Attorneys for Appellant: Pericles Abbasi, of Chicago, for
Attorneys for Appellee: Robert A. Shipley, of Shipley Law
Group, Ltd., of Chicago, for appellees.
PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion. Justices Reyes and Burke concurred in the
judgment and opinion.
1 After a bench trial, defendant, Magdalena Maslikiewicz, was
found liable for common- law fraud and for violating the
Consumer Fraud and Deceptive Business Practices Act (Consumer
Fraud Act) (815 ILCS 505/1 et seq. (West 2016)), in
connection with her sale of a single-family residence to
plaintiffs, Adam and Jennifer Pack. A judgment was entered in
favor of plaintiffs and against defendant for $148, 119.50,
plus costs and attorney fees of $68, 444.79. Defendant
appeals, claiming that (1) the trial court's findings
were against the manifest weight of the evidence, (2) the
trial court erred in finding the Consumer Fraud Act
applicable, (3) the trial court erred in admitting certain
evidence, and (4) the trial court erred in awarding attorney
fees and costs. For the reasons that follow, we affirm.
3 I. Complaint
4 On February 16, 2016, plaintiffs filed a verified two-count
complaint against defendant. Count I was for common-law fraud
and alleged that plaintiffs were the owners of a
single-family home on North Moody Avenue, which they agreed
to purchase from defendant on October 28, 2013. Defendant had
previously purchased the home and rehabbed it, advertising
that the property was for sale as a " 'complete
renovation.' " Plaintiffs alleged that
defendant's purchase and renovation of the property was
"solely for ultimate sale and commercial gain" and
that defendant never resided at the home. Plaintiffs alleged
that they executed a real estate sales contract to purchase
the residence "based upon defendant's marketing
representations that there had been a complete renovation
along with the representations in the contract in which
defendant denied any issues or problems with the residence
including specifically the basement, foundation, electrical
or HVAC systems."
5 Plaintiffs alleged that defendant was "directly and
intimately involved with the original purchase of the
property and the subsequent construction activities, "
and that prior to listing the property for sale, defendant
"had actual or presumed knowledge" as to the
condition of the property, including the scope of any
renovation construction activities. Plaintiffs further
alleged that defendant was "directly and intimately
involved" with the marketing of the property and
"was aware of and had actual or presumed knowledge"
of the conditions and defects alleged in the complaint.
However, plaintiffs alleged that defendant falsely denied the
existence of any alleged issues, including during the interim
period between execution of the contract and the December 4,
2013, closing, "with the intent of inducing [plaintiffs]
to rely upon the statements and misrepresentations and
complete the purchase [of] the property."
6 Plaintiffs alleged that the defects present within the
property were known to defendant but "were covered up
and hidden during the ordinary and normal course of
construction and could not have been discovered by"
plaintiffs. Plaintiffs further alleged that the defects were
"apparent and known only by defendant as the renovation
construction did not comply with applicable construction
standards and codes as well as construction customs and
practices." Plaintiffs alleged that they relied on
defendant to complete the renovation construction of the home
in compliance with the applicable construction standards and
codes and that they did not know, and could not have known,
that the renovation construction did not comply with
applicable construction standards and codes.
7 Plaintiffs alleged that after the execution of the
contract, but prior to closing, they asked defendant several
questions about the property, including "questions
relating to water infiltration and improper electrical
service." Defendant denied the existence of any water
infiltration and represented that the electrical service was
adequate and appropriate; plaintiffs alleged that they relied
on these denials. However, after the closing, plaintiffs
discovered multiple issues concerning water infiltration and
the electrical service and also discovered that the
representations defendant had made concerning " 'new
appliances' " were false. Due to these issues,
plaintiffs retained multiple contractors to inspect the home.
8 Plaintiffs alleged that the contractors informed them of
numerous defects and problems with the home, including:
"a. Failure to waterproof the basement;
b. Failure to install drain tile in the basement;
c. Failure to demolish the existing walls when performing
renovation construction of the basement;
d. Improper electrical grounding in the basement wiring;
e. Buried electric boxes in the basement walls;
f. Failure to install proper load bearing support beams in
g. Failure to properly construct the basement floor."
alleged that as a result of defendant's knowing failure
to comply with applicable building codes and construction
customs and practices, plaintiffs had spent substantial sums
of money to identify and correct the defects.
9 Count II of the complaint alleged the same facts as in
count I but alleged that defendant's conduct constituted
deceptive acts and business practices in violation of the
Consumer Fraud Act.
10 II. Pretrial Proceedings
11 After the denial of a motion to dismiss, the parties
proceeded to discovery, and defendant filed a motion for
summary judgment, which was denied on November 13, 2017. On
December 6, 2017, defendant filed a motion to bar the
testimony of David Larkin, the president of DAL Builders
(DAL), the contractor who discovered and repaired the alleged
defects in the home. Defendant claimed that plaintiffs had
indicated during the briefing on the motion for summary
judgment that Larkin would serve as an expert in their case,
but that Larkin had, in fact, never agreed to be their
expert. Defendant further argued that the supplemental
disclosures under Illinois Supreme Court Rule 213 (eff. Jan.
1, 2007) naming Larkin as an expert were untimely since they
were filed after the court's deadline. Finally, defendant
claimed that the alleged opinions set forth in the
supplemental disclosures were insufficient and did not
provide a basis for any of Larkin's opinions.
Accordingly, defendant sought to bar Larkin's testimony.
12 Attached to the motion to bar was an undated certification
by Larkin, in which he stated that "nobody ever asked me
to act as an expert or offer any opinions related to any work
performed by others and I have no opinions one way or the
other on the work performed by any other persons."
Larkin further stated that "I do not have any opinions
to provide in this case including opinions that there was
[sic] 'code violations and construction defects
as well as the scope of the construction activities.'
" Attached to his certification were e-mails between
Larkin and defendant's counsel,  in which defense counsel
stated that he had discovered that DAL's work was
performed without permits and indicated that he "[would]
have no choice but to alert the proper authorities about the
illegal work and ask that the City of Chicago conduct an
investigation into DAL and its business practices in the City
of Chicago." However, defense counsel stated that
"[o]f course, if [plaintiffs] agree to dismiss the case
immediately with prejudice or if DAL tells me in writing that
they will withdraw any and all testimony in this case, then
the matter will be dropped." Larkin responded that
"if it is a[n] option to withdraw all testimony and not
be involved with this case at all I am all for that option.
Let me know what needs to be done so I am done with all
this." In later e-mails, Larkin reaffirmed that he would
not be acting as an expert in the matter.
13 Also attached to the motion to bar was a June 5, 2017,
case management order providing that the parties were to
answer Rule 213(f) interrogatories by August 3, 2017, and
that depositions of Rule 213(f)(1), (2), and (3) witnesses
were to be completed by September 3, 2017. The order also
provided that the parties "waive 60 day rule for expert
14 Finally, attached to the motion to bar was an unfiled copy
of plaintiffs' supplemental Rule 213 disclosures, in
which plaintiffs stated that Larkin, "previously
disclosed as a witness, " was additionally
"expected to testify to the following defects and code
"1. New basement walls having been constructed in front
of existing (old) walls.
2. The pre-existing 'old' walls had clear evidence of
water damage and staining.
3. Debris and garbage was stuffed between the old and new
4. Buried live electrical connections in the old wall, which
created a fire hazard.
5. Improper grounding of the water service.
6. Improperly wired switches.
7 .Improper use of BX in electrical wiring.
8. Improper excavation of the old concrete floor and pouring
of a new concrete floor directly onto clay. The excavation of
the old floor was not sufficiently deep and there was a
failure to properly prepare the base with gravel and rebar.
The existing water and sewer lines were not replaced and
buried within the new floor. The result was that the
'new' concrete floor heaved and cracked.
9. The posts supporting the basement ceiling were not
properly secured in the concrete. No piers were constructed.
When the old basement floor was excavated, the existing area
which surrounded the post was left with the new floor poured
around. The existing concrete 'supporting' the posts
was crumbling, causing a structural issue.
10. Concrete and debris from the basement demolition and
excavation was found buried in the crawl space."
supplemental disclosure also provided that "Mr. Larkin
is further expected to testify consistent with the notes
taken during the project, previously identified as Exhibit 6
and discussed during plaintiffs' depositions."
15 In response, plaintiffs claimed that Larkin had been
timely disclosed as an expert. They claimed that he was first
disclosed in plaintiffs' answers to interrogatories on
March 7, 2017, which were supplemented on August 3, 2017, and
which were further supplemented, following defendant's
refusal to depose Larkin, on September 14, 2017, more than 90
days prior to trial. Plaintiffs also noted that the 60-day
rule for expert discovery had been waived per the June 5,
2017, case management order.
16 Plaintiffs further claimed that they had disclosed the
basis for Larkin's opinions by producing copies of
DAL's records, which included records reflecting DAL
opinions and observations, and that both plaintiffs testified
in their depositions concerning DAL's scope of work,
observations, and opinions. Plaintiffs claimed that defense
counsel chose not to depose Larkin, cancelling his scheduled
deposition and refusing to reschedule, and also
"emphasize[d]" that defense counsel had
"engaged in a series of threatening emails to the
witness as well as plaintiffs' counsel." Finally,
plaintiffs claimed that the first time they had seen
Larkin's "certification" was in connection with
the motion to bar and that they had not had the opportunity
to depose Larkin as to its contents or the circumstances
under which it was procured.
17 III. Trial
18 The parties came before the trial court for a bench trial
on December 18 and 19, 2017. Prior to trial, the court
addressed defendant's motion to bar Larkin's
testimony. The court denied the motion, finding that Larkin
had timely been identified as a Rule 213(f)(1) and potential
Rule 213(f)(2) witness. The court further advised defendant
that if Larkin testified to an opinion that counsel felt had
not been properly disclosed, the court would rule on the
objection at that time.
19 A. Plaintiffs' Case-in-Chief
20 1. Defendant
21 Plaintiffs' first witness was defendant, who testified
as an adverse witness. Defendant testified that she came to
the United States from Poland, where she had received a
master's degree in economics. She was residing with
Arthur Maliszewski at a home in Norridge at the time she
purchased the subject property in November 2012 and continued
to live with him at the time of trial; defendant testified
that Maliszewski was the owner of Midwest Electric, Inc.
(Midwest), one of the contractors that performed work on the
subject property. Defendant further testified that
Maliszewski was the individual who defendant relied on as her
construction representative during the renovation of the
22 Defendant testified that, prior to the purchase of the
subject property, she had purchased two other properties: a
condo that she continued to own and a single-family home that
she sold for a profit in 2012. Defendant also purchased three
additional properties after the purchase of the subject
property, all of which had been sold for a profit.
23 Defendant testified that she visited the subject property
twice before closing on its purchase. During the attorney
review period, in response to a question from defendant's
attorney, the seller disclosed that there had previously been
a leak in the basement three or four years ago, which the
seller had not observed since that time. The seller also
disclosed that she had no knowledge of any mold, seepage, or
flooding problems, other than a 2008 roof leak and the leak
in the basement; defendant testified that she did not
consider the leak in the basement to be a "basement
leak" because "[i]t was connected to the leak from
the roof." Since she believed the source of the leak was
the roof, which had been repaired, defendant testified that
she did not hire a contractor to investigate the source or
cause of the basement leak.
24 Defendant testified that the subject property was listed
for sale in 2013; defendant prepared the description of the
property used in the listing in connection with the listing
agency. Plaintiffs eventually made an offer on the property,
and the parties signed a contract for the sale of the
property in October 2013. Defendant confirmed that one page
of the contract was entitled " 'Residential Real
Property Disclosure Report' " and that she filled
out and signed this page. On the form, defendant answered
"no" to questions asking whether she was aware of
any flooding or recurring problems in the basement, any leaks
or material defects in the roof, any defects in the walls or
floors, any defects in the electrical system, or any defects
in the plumbing system. Defendant was aware that this
information was going to be given to purchasers and that the
purchasers would rely on the information contained on the
25 Defendant testified that, during the attorney review
period, plaintiffs' attorney asked questions about the
condition of the basement, and defendant did not disclose the
prior basement leak because "[t]hat was four years
before, and they said they never had the same problem
26 Defendant testified that the only permit obtained for the
renovation of the subject property was a permit for the
exterior work on the home. There was no permit for any
interior work, and the City of Chicago did not inspect the
plumbing or electrical work. Defendant testified that she
visited the property "from time to time" during the
renovations, and that she had the ability to visit at any
time because she had keys to the property. Defendant
identified a lien waiver signed by Maliszewski on December
31, 2013, with respect to the work performed on the subject
property but did not have a canceled check to corroborate
27 Defendant testified that Maliszewski decided what repairs
should be made on the property and that she relied on
Maliszewski on that subject. Defendant testified that she
"didn't have enough knowledge to really decide what
should be repaired and what shouldn't." Defendant
was aware that drywall work was involved in the basement.
Defendant also observed hairline cracks on the concrete
basement floor during the renovation, which she asked to be
repaired. Defendant was not aware of how the repairs were
performed, but "just [knew] that it was fixed."
28 2. Plaintiff Adam Pack
29 Plaintiffs' next witness was plaintiff Adam Pack,
testified that he was currently employed with the Evanston
Police Department. He and plaintiff Jennifer Pack, his wife,
closed on the purchase of the subject property on December 4,
2013, and had lived there continuously since that date. Adam
was first introduced to the property through plaintiffs'
realtor and reviewed a listing posted concerning the
property, which included a statement that the property was a
"complete renovation." Adam testified that the
characterization of the property as completely renovated was
significant to him because he and Jennifer were looking for a
property that needed no additional work. Adam further
testified that, in his mind, a "complete
renovation" meant "finding any defects or issues
with a property, fixing them. New mechanicals, new roof,
plumbing, electrical. Any kind of ...