483 N.E.2d 1225 (Ill. 1985), 61084, Home Sav. and Loan Ass'n of Joliet v. Schneider

Docket Nº:61084.
Citation:483 N.E.2d 1225, 108 Ill.2d 277, 91 Ill.Dec. 590
Party Name:HOME SAVINGS AND LOAN ASSOCIATION OF JOLIET v. Roy E. SCHNEIDER et al. (Ernest L. HARRELSON et al., Appellees, v. Richard H. HATABURDA et al., Appellants).
Case Date:October 03, 1985
Court:Supreme Court of Illinois

Page 1225

483 N.E.2d 1225 (Ill. 1985)

108 Ill.2d 277, 91 Ill.Dec. 590



Roy E. SCHNEIDER et al.

(Ernest L. HARRELSON et al., Appellees,


Richard H. HATABURDA et al., Appellants).

No. 61084.

Supreme Court of Illinois.

October 3, 1985.

[108 Ill.2d 279] Anesi, Ozmon, Lewin & Associates, Ltd., Chicago, for appellants; Nat P. Ozman, Steven E. Nieslawski, of counsel.

Page 1226

[91 Ill.Dec. 591] Stefanich, McGarry & Wols, Ltd., Joliet, for appellees; Roman R. Okrei, Joliet, of counsel.

MORAN, Justice.

This action was filed in the circuit court of Will County by Home Savings and Loan Association of Joliet (Home Savings), seeking enforcement of a "due-on-sale" provision in a mortgage executed by Roy E. Schneider and Sue C. Schneider. Also named as defendants were Richard H. Hataburda and Patricia D. Hataburda, who assumed the mortgage from the Schneiders with Home Savings' consent. In addition, the complaint named as [108 Ill.2d 280] defendants Ernest L. Harrelson and Peggy J. Harrelson, who, without Home Savings' knowledge or consent, purchased the property on contract from the Hataburdas. The Harrelsons filed a cross-complaint against the Hataburdas, alleging fraud and misrepresentation in the sale of the property, and the Hataburdas counterclaimed against the Harrelsons for forcible entry and detainer.

The Hataburdas settled with Home Savings by paying off the balance outstanding on the mortgage. Home Savings therefore withdrew from the litigation. The Harrelsons' claims against the Hataburdas proceeded to trial, along with the Hataburdas' counterclaim. Shortly after commencement of the trial, however, the Hataburdas voluntarily dismissed their counterclaim.

At the conclusion of the trial the jury awarded the Harrelsons $32,000 in compensatory damages on the fraud counts of their complaint, and also awarded $50,000 in punitive damages. The jury returned no verdict on the Harrelsons' negligent-misrepresentation counts, and the trial court sent them back to reach a verdict on those counts. The jury then awarded an additional $15,000 in damages for negligent misrepresentation.

On appeal the appellate court affirmed the finding of liability for fraud (127 Ill.App.3d 689, 693-94, 82 Ill.Dec. 941, 469 N.E.2d 585), but vacated the award for negligent misrepresentation (127 Ill.App.3d 689, 694, 82 Ill.Dec. 941, 469 N.E.2d 585). The court noted that the fraud and negligent-misrepresentation allegations involved the same conduct, differing only in the scienter involved, and therefore the jury's initial award of damages for fraud precluded an award of additional damages for negligent misrepresentation. (127 Ill.App.3d 689, 694, 82 Ill.Dec. 941, 469 N.E.2d 585.) The court also held that, while the Harrelsons had demonstrated damages, the $32,000 in compensatory damages was not supported by the evidence. (127 Ill.App.3d 689, 696, 82 Ill.Dec. 941, 469 N.E.2d 585.) The court, however, upheld the award of $50,000 in [108 Ill.2d 281] punitive damages and remanded for a new trial solely on the issue of compensatory damages. This court granted the Hataburdas' petition for leave to appeal.

The Hataburdas (hereinafter defendants) raise four issues for review: (1) Does the record support a finding that the Harrelsons sustained damage due to the defendants'...

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