Hirsch v. Feuer
| Decision Date | 16 October 1998 |
| Docket Number | No. 1-97-4480,1-97-4480 |
| Parties | , 234 Ill.Dec. 99 Martin HIRSCH and Noreen Hirsch, Plaintiffs-Appellants, v. Stuart FEUER and Helen Feuer, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Phillip A. Couri of Couri and Couri, Winnetka, for Plaintiffs-Appellants.
Jeanne M. Reynolds of Reynolds & Reynolds, Ltd., Chicago, for Defendants-Appellees.
Plaintiffs Martin and Noreen Hirsch brought suit against defendants Stuart and Helen Feuer alleging claims for breach of contract, violation of the Residential Real Property Disclosure Act (765 ILCS 77/1 et seq. (West 1994)) (Property Disclosure Act), and fraudulent misrepresentation and concealment related to plaintiffs' purchase of a home from defendants. The circuit court granted defendants' motion to dismiss plaintiffs' fifth amended complaint with prejudice. The court then denied plaintiffs' motion to reconsider. Plaintiffs appeal, arguing that the circuit court erred in dismissing the complaint and in denying the motion to reconsider.
For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.
On February 6, 1996, plaintiffs brought a complaint against defendants alleging breach of contract, fraudulent concealment and willful and wanton misconduct related to the purchase of a home from defendants. Defendants moved to dismiss, but the circuit court granted leave to replead and found defendants' motion moot. Plaintiffs subsequently filed several amended complaints, each alleging similar claims. The court granted defendants' motions to dismiss each complaint but allowed plaintiffs to replead after each dismissal.
On August 21, 1997, plaintiffs filed their fifth amended complaint, alleging claims for breach of contract, violation of the Property Disclosure Act, and fraudulent misrepresentation and concealment. The complaint alleged that in January 1995 plaintiffs entered into a real estate contract with defendants for the purchase of defendants' property at 1578 Hazel Road, Winnetka. The first count, for breach of contract, stated "4. In paragraph twelve (12) of the real estate contract, it states: 'sellers represent that to the best of sellers' knowledge, all heating, central cooling, ventilating, electrical and plumbing fixtures and systems on the real estate and all appliances to be transferred to purchaser pursuant to this contract are in working order and will be so at the time of closing.'
5. On or about February 8, 1995, Plaintiffs duly performed all terms and conditions of the contract and tendered Seven Hundred and Seventy Five Thousand Dollars ($775,000.00) to Defendants for the purchase price of said premises under the contract.
6. After the Plaintiffs moved into said premises, they became aware of certain material defects with the heating, central cooling, ventilating and plumbing fixtures and systems, which they learned from reliable sources that the Defendants had knowledge of prior to entering into the contract.
7. Defendants have breached said contract by misrepresenting themselves in breach of paragraph 12 of the contract when they knew that the heating, central cooling, ventilating and plumbing fixtures and systems were not in working order at the time of closing.
8. Plaintiffs have spent considerable sums of money in order to repair the material defects and rectify the damages caused by Defendants' breach."
The second count, for violation of the Property Disclosure Act, alleged that pursuant to sections 20 and 25 (765 ILCS 77/20, 25 (West 1994)), defendants "were obligated to provide Plaintiffs with a disclosure report revealing all known material and substantial defects within the house." Plaintiffs alleged that defendants provided a residential real property disclosure report indicating that the only defect of the property was the bottom drain of the swimming pool. Plaintiffs further alleged:
"12. After the Plaintiffs moved into said premises, they became aware of substantial material defects within the house which were not disclosed on the disclosure report and which they learned from reliable sources that the Defendants were aware of said defects prior to executing the disclosure report.
13. Pursuant to 765 ILCS 77/55, Defendants have violated the Residential Real Property Disclosure Act by intentionally concealing and failing to disclose known defects in the Disclosure Report.
14. Plaintiffs have spent considerable sums of money in order to repair and rectify the aforementioned material defects and are required to continue to expend in the future substantial sums of money to repair these defects."
The third count alleged fraudulent misrepresentation and concealment, stating:
"17. Prior to entering into the contract and closing the transaction, Defendants expressly represented to the Plaintiffs and on the disclosure report that the only known, existing material defect with the home was problems [sic ] with the pool drain.
18. Defendants, however, before the purchase of the real estate, were notified by contractors and technicians that, in addition to the problem with the pool drain, there existed other material defects with the house and therefore, they had knowledge of the defects and knew that their representations were false.
19. Furthermore, Defendants acted fraudulently and misrepresented themselves by concealing the material defects by hiring contractors and technicians to make simple patch-work repairs and by actively misrepresenting to Plaintiffs that their [sic ] was a fully operational and complete sprinkler system on the premises.
20. These misrepresentations and concealments were made for the purpose of inducing Plaintiffs to enter into a contract to purchase their home.
21. Plaintiffs justifiably relied on the Defendants' representations where their inspection of the premises did not reveal the defects because Defendants had actively concealed same and where they were given a disclosure report which fraudulently did not reveal any of the known defects.
22. As a result of Plaintiffs['] reliance on the Defendants' misrepresentations, Plaintiffs were damaged in that they have spent and will continue to spend considerable sums of money to repair and rectify the aforementioned material defects. In addition to spending money to repair said defects, Plaintiffs have suffered other consequential loss."
Defendants moved to dismiss the fifth amended complaint pursuant to sections 2-619(9) and 2-615 of the Code of Civil Procedure (Code)(735 ILCS 5/2-619(9), 2-615 (West 1996)) and the court granted the dismissal with prejudice. While plaintiffs suggest that the circuit court's order is unclear as to the grounds for the court's decision, the transcript indicates that the court granted the dismissal pursuant to section 2-615. During the hearing on the motion, the trial judge stated:
"If I dismiss this complaint with prejudice, it will not be on a finding that no claim could be stated. It will be on a finding that having been given more than five opportunities to state a claim, you choose not to state a claim.
* * *
Nowhere in Count I do you aver that the [defendants'] breached the contract by anything. You just conclude it in Paragraph 7. I have been asking you for more than five complaints now.
* * *
Count I is legally deficient because nowhere in Count I does plaintiff aver that the defendants breached the contract because when they represented that 'to the best of their knowledge all the heating, central cooling, ventilating, electrical, and plumbing fixtures and systems on the real estate and all appliances to be transferred to the purchaser pursuant to the contract are in working order and will be so at the time of closing,' they knew that that statement was false. Nowhere does he aver that.
* * *
I want you to understand clearly if I strike and dismiss with prejudice this complaint, it will not be on a finding that he--in its 615 aspect, it will not be because he could not state a claim, it is because it would be abusive of the process to allow him still one more filing when through what appears to be either willfulness or incompetence he has chosen not to state the claim.
* * *
Instead you aver all sorts of conclusionary [sic ] things, all sorts of things about the state of mind of your client, all sorts of things about how you will be able to prove at trial what her clients must have known. But you never aver that when they made the representation contained in the contract, it was false and they knew it to be false."
Plaintiffs moved to reconsider and the court denied the motion.
Plaintiffs argue on appeal that the circuit court erred in dismissing the fifth amended complaint because it sufficiently alleged their causes of action. Plaintiffs also contend that the circuit court should have granted them leave to amend the fifth amended complaint.
"When the legal sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded facts in the complaint are taken as true and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted." Connick v. Suzuki Motor Co., 174 Ill.2d 482, 490, 221 Ill.Dec. 389, 675 N.E.2d 584 (1996). Because plaintiffs chose to amend each previously dismissed complaint, any error regarding the dismissal of those claims is waived and we consider only the sufficiency of the fifth and final amended complaint. Connick, 174 Ill.2d at 491, 221 Ill.Dec. 389, 675 N.E.2d 584.
Vernon v. Schuster, 179 Ill.2d 338, 344, 228 Ill.Dec. 195, 688 N.E.2d 1172 (1997). A...
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