Kroot v. Chan

Decision Date18 August 2017
Docket NumberNo. 1-16-2315,1-16-2315
Citation2017 IL App (1st) 162315,89 N.E.3d 778
Parties Meredith Paige KROOT and Jason M. Kroot, Plaintiffs–Appellees, v. Shu B. CHAN and Yvonne Lau, Defendants–Appellants.
CourtUnited States Appellate Court of Illinois

Ben Goldwater, of Goldwater & Associates, of Chicago, for appellants.

Kirsten M. Dunne, of Goldberg Weisman Cairo, of Chicago, for appellees.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The defendants, Shu B. Chan and Yvonne Lau, appeal from orders of the trial court: (1) denying their motion for summary judgment; (2) entering judgment against them and in favor of the plaintiffs, Meredith Paige Kroot (Meredith) and Jason M. Kroot (Jason), in the sum of $64,518.67 "plus costs and fees" on the plaintiffs' claims for a violation of the Residential Real Property Disclosure Act (Act) ( 765 ILCS 77/1 et seq. (West 2012)) and common law fraud; (3) entering judgment against them and in favor of the plaintiffs in the sum of $28,130.16 on the plaintiffs' petition for attorney fees and costs; and (4) denying their motion to vacate the judgment for attorney fees and costs. For the reasons which follow, we dismiss the defendants' appeal from the denial of their motion for summary judgment, affirm the trial court's $64,518.67 judgment in favor of the plaintiffs, vacate the trial court's $28,130.16 judgment in favor of the plaintiffs for attorney fees and costs, and remand this cause to the trial court for further proceedings.

¶ 2 The following factual recitation is taken from the pleadings filed by the parties and the evidence introduced at the trial of this cause.

¶ 3 In 2002, the defendants purchased the property commonly known as 3833 North Claremont Street, Chicago, Illinois and improved with a single family residence (hereinafter referred to as the Property). The defendants resided in the Property from 2002 until December 2011 when they moved to a condominium unit.

¶ 4 On April 12, 2013, in preparation for their sale of the Property, the defendants executed a Residential Real Property Disclosure Report (Disclosure Report) as required by sections 20 and 35 of the Act ( 765 ILCS 77/20, 35 (West 2012)) in which they claimed no knowledge of flooding or recurrent leakage problems in the basement, defects in the basement, or material defects in the walls and floors. The plaintiffs were given a copy of the Disclosure Report and, on May 3, 2013, executed a written offer to purchase the Property which the defendants accepted on May 7, 2013 (hereinafter referred to as the Contract).

In a letter executed by the parties' attorneys, the Contract was amended in a number of respects. Included within that letter is a representation that the defendants had no knowledge of the existence of any mold within the Property nor had there been any attempt to remove any substance from the sump pump room wall. It was also represented that there had been no flooding or water infiltration during the time that the defendants owned the Property. There is a paragraph within the letter which states that the plaintiffs had the Property inspected and that the inspection noted "a number of issues" for which the plaintiffs requested a credit. Although executed by their respective attorneys, the letter was not signed by either the plaintiffs or the defendants. The closing of the sale and purchase of the Property contemplated by the Contract took place on June 25, 2013.

¶ 5 On November 4, 2013, the plaintiffs commenced the instant action with the filing of their four-count complaint against the defendants. According to the complaint, within 24 hours of purchasing the Property, the plaintiffs experienced water infiltration in the basement through the walls and floors. They asserted that there had been longstanding and recurring water infiltration problems with the Property during the defendants' ownership, and that before and after signing the Disclosure Report and the Contract, the defendants knew it was likely that there was mold in the basement. According to the complaint, there were material defects in the basement, flooring, and walls of the Property along with mold caused by flooding and water infiltration. The plaintiffs alleged that they would not have gone forward with the closing for the agreed upon price had they known of the defects in the Property. The plaintiffs sought judgment for the costs of repairing the Property, all consequential damages, attorney fees, and costs. Count I of the complaint set forth a claim pursuant to the Act against both defendants, count II asserted a claim against the defendants for a violation of the Consumer Fraud and Deceptive Business Practices Act ( 815 ILCS 505/1 et seq. (West 2012)), count III was a common law fraud action against the defendants, and count IV was a negligence claim against Lau only.

¶ 6 The defendants answered the complaint, denying the material allegations. On June 24, 2014, they filed a motion to dismiss count II of the complaint which the trial court granted without opposition from the plaintiffs. On January 27, 2015, the defendants filed a motion seeking summary judgment in their favor on the three remaining counts, alleging, inter alia , that, during the time that they owned the Property, they did not possess actual knowledge of any water infiltration or mold. The trial court denied the motion on April 21, 2015.

¶ 7 A bench trial was conducted on counts I, III, and IV of the complaint, following which, the trial court entered its Judgment Order on March 28, 2016, finding in favor of the plaintiffs and against Chan on count I and in favor of the plaintiffs and against both defendants on count III. The trial court entered judgment in favor of the plaintiffs and against the defendants in the sum of $64,518.67, plus costs and fees. The trial court found in favor of Lau and against the plaintiffs on counts I and IV.

¶ 8 On April 19, 2016, the plaintiffs filed their petition seeking attorney fees and costs, and on June 23, 2016, the trial court entered an order awarding them $28,130.16. On July 8, 2016, the defendants filed their motion to vacate the order of June 23, 2016, which the trial court denied on August 9, 2016. On August 22, 2016, the defendants filed their notice of appeal from the trial court's orders of April 21, 2015, March 28, 2016, June 23, 2016, and August 9, 2016.

¶ 9 As to the April 21, 2015 order, denying their motion for summary judgment, the defendants argue that they were entitled to judgment as a matter of law by reason of the plaintiffs' failure to produce any evidence that they made fraudulent representations concerning their knowledge of flooding or mold at the Property or falsified the Disclosure Report. In response, the plaintiffs argue that the order is not reviewable. We agree with the plaintiffs.

¶ 10 An order denying a motion for summary judgment is interlocutory in nature and, subject to an exception not present in this case, is not appealable. In re Estate of Funk , 221 Ill. 2d 30, 85, 302 Ill.Dec. 574, 849 N.E.2d 366 (2006). Any error in the denial of a motion for summary judgment merges into the final judgment rendered by the trial court, and it is from that final judgment that an appeal is taken. Id. ; Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 355, 264 Ill.Dec. 283, 770 N.E.2d 177 (2002). Consequently, we dismiss the defendants' appeal from the trial court's order of April 21, 2015, denying their motion for summary judgment.

¶ 11 Next, the defendants argue that the trial court's $64,518.67 judgment entered on March 28, 2016, is against the manifest weight of the evidence. Before addressing the merits of the defendants' argument in this regard, the plaintiffs argue that this court lacks jurisdiction to review the March 28, 2016, judgment, contending that, because the defendants failed to file a posttrial motion directed against that judgment, their August 22, 2016, notice of appeal from that order was untimely. According to the plaintiffs, the defendants had until July 23, 2016, to file their notice of appeal from the March 28, 2016, judgment. They reason that the trial court's order of June 23, 2016, awarding the plaintiffs $28,130.16 for attorney fees and costs resolved the last pending claim, and as a consequence, the defendants had until July 23, 2016, to file their notice of appeal from the March 28, 2016, judgment. The plaintiffs contend that, since the defendants' motion to vacate filed on July 8, 2016, was addressed only to the June 23, 2016, fee award, the motion did not toll the time for the filing of a notice of appeal from the March 28, 2016, judgment, and therefore, their August 22, 2016, notice of appeal did not vest this court with jurisdiction to review the March 28, 2016, judgment. We disagree with the plaintiffs' jurisdictional argument.

¶ 12 Illinois Supreme Court Rule 303(a)(1) (eff. Jan. 1, 2015) provides that a notice of appeal must be filed:

"within 30 days after the entry of the final judgment appealed from, or, if a timely posttrial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order ***."

An order or judgment is final for purposes of Rule 303(a) if it "terminates the litigation between the parties on the merits of the cause or disposes of the rights of the parties either upon the entire controversy or upon some definite part thereof." F.H. Prince & Co., Inc. v. Towers Financial Corp. , 266 Ill. App. 3d 977, 982, 203 Ill.Dec. 940, 640 N.E.2d 1313 (1994). However, Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) provides that, if multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all claims "only if the...

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