Provenzale v. Forister

• Decision Date: 23 January 2001
• Docket Number: No. 2-00-0108.,2-00-0108.
• Citation: 252 Ill.Dec. 808,318 Ill.App.3d 869,743 N.E.2d 676
• Parties: Donald J. PROVENZALE, Jr., and Danielle T. Provenzale, Plaintiffs-Appellants, v. Harold FORISTER and Ruth Forister, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

743 N.E.2d 676

318 Ill.App.3d 869

252 Ill.Dec. 808

Donald J. PROVENZALE, Jr., and Danielle T. Provenzale, Plaintiffs-Appellants, v. Harold FORISTER and Ruth Forister, Defendants-Appellees.

No. 2-00-0108.

Appellate Court of Illinois, Second District.

January 23, 2001.

Aldo E. Botti, Brian J. Armstrong, and Mark W. Salkeld, all of Botti, Marinaccio & DeLongis, Ltd., Oak Brook, for appellants.

Eric A. Burgeson, Keith E. Roberts, Jr., and Rosemarie Frontzak, all of Donovan & Roberts, P.C., Wheaton, for appellee Harold Forister.

B.J. Farrell and Joseph I. Solon, Jr., both of Fortunato, Farrell, Davenport & Arnold, Ltd., Westmont, for appellee Ruth Forister.

Justice RAPP delivered the opinion of the court:

Plaintiffs, Donald J. Provenzale, Jr., and Danielle T. Provenzale, appeal from the trial court's orders granting the motions to dismiss of defendants, Harold Forister and Ruth Forister. Plaintiffs contend that the trial court erred in dismissing their claims for (1) violation of the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/1 et seq. (West 1996)); (2) violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)); (3) fraud; (4) breach of contract; and (5) conspiracy to defraud. The Provenzales also appeal the trial court's orders forfeiting their earnest money and awarding attorney fees to defendants. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

The Provenzales filed a complaint in the circuit court of Du Page County after a contract to purchase a parcel of real estate from the Foristers failed to close. In the first amended complaint, it was alleged that the Foristers owned a parcel of real property at 8 S 049 S. Mitchell, Naperville, Du Page County (the property), that was offered for sale in October 1994. At that time, the Foristers executed a residential real property disclosure report (disclosure report) pursuant to the Disclosure Act, indicating that they were not aware that the property was located in a flood plain. A copy of the disclosure report was attached as an exhibit to the complaint.

On July 23, 1996, the Provenzales entered into a contract to purchase the property (the contract) and deposited $5,000 in earnest money. A copy of the contract was attached as an exhibit to the complaint. It was alleged further that, prior to the Provenzales' execution of the contract, Harold Forister affirmatively stated to the Provenzales that the property was not located within a flood plain. The Provenzales alleged that, contrary to the statements and the disclosure report, the property is, in fact, located within a flood plain and that the Foristers had knowledge of this fact when making the statement and when executing the disclosure report.

In count I of the first amended complaint, the Provenzales alleged that the Foristers materially breached the contract by (1) intentionally and knowingly inducing the execution of the contract by fraud, in making misrepresentations to conceal the flood plain status of the property; (2) failing to comply with the "operable furnace" contract term; and (3) failing to tender a septic system report on the date set for closing. The Provenzales prayed for a declaration that the contract was null and void; for damages in the amount of $34,946 or, alternatively, for compensatory damages equal to the diminution in value of the property; and for attorney fees and costs.

Count II alleged fraud in that the disclosure report and Harold Forister's statements were wilfully made with full knowledge that the property was located within a flood plain, to induce the Provenzales to enter into the contract. Counts III and IV alleged violations of the Disclosure Act and the Consumer Fraud Act.

On May 21, 1997, the trial court dismissed counts III (violation of the Disclosure Act) and IV (violation of the Consumer Fraud Act) of the first amended complaint with prejudice. On November 12, 1997, the Foristers' attorney was granted leave to withdraw. Subsequently, separate counsel entered appearances on behalf of each of the Foristers.

In a bill of particulars, the Provenzales stated that they first obtained the disclosure report on May 2, 1996, more than two months before entering into the contract. The Provenzales obtained the disclosure report from their real estate agent, who had obtained it from the Foristers' real estate agent.

The Provenzales were granted leave to file a second amended complaint. The second amended complaint differed from the first amended complaint in that it alleged that Harold Forister made oral statements that the property did not flood in addition to his statements that the property was not located within a flood plain. Harold Forister and Ruth Forister filed separate motions to strike and dismiss the second amended complaint pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(9) (West 1998)). The Provenzales filed a consolidated response to the motions to dismiss the second amended complaint.

On June 4, 1998, the trial court entered an order granting the Foristers' section 2-615 motions, striking the paragraph of count I alleging breach of contract by misrepresentation of material fact and the paragraph alleging damages for breach of contract. The trial court granted the Foristers' section 2-619 motions, striking the paragraph alleging breach of contract for failure to comply with the operable furnace term. The Foristers' section 2-619 motions were denied as to the paragraph alleging breach of contract for failure to provide a septic system report. As to count II (alleging fraud) of the second amended complaint, the trial court granted the Foristers' section 2-615 motions with respect to reliance on the disclosure report and allegations of damages, but denied the motions with respect to Harold Forister's oral misrepresentation of the flood plain status of the property. Accordingly, the trial court dismissed count II with prejudice as to Ruth Forister. The Provenzales filed a motion to reconsider the dismissal of the fraud count as to Ruth Forister. The trial court denied that motion.

The Provenzales were then granted leave to file a third amended complaint. Count I of the third amended complaint alleged a breach of contract because the Foristers could not perform their promise to convey to the Provenzales a property that did not flood and was not located in a flood plain. The third amended complaint also omitted the claim for breach of contract due to the Foristers' failure to provide an operable furnace and added a count V alleging conspiracy to defraud. In support of the allegation that the Foristers had knowledge that the property was located within a flood plain and floods, the fraud count was amended to specify that Harold Forister submitted documents in 1988 and 1990 challenging the property's tax assessment. In those documents, Harold Forister stated that the property was in a flood plain and that the property floods four times per year. Harold and Ruth Forister each filed motions to strike and dismiss the third amended complaint pursuant to sections 2-615 and 2-619(a)(9) (735 ILCS 5/2-615, 2-619(a)(9) (West 1998)).

On November 3, 1998, the trial court entered an order dismissing all counts alleged in the third amended complaint with prejudice pursuant to section 2-615. On March 17, 1999, the trial court entered an order granting Ruth Forister's motion for forfeiture of the $5,000 earnest money deposited by the Provenzales. On December 17, 1999, the trial court granted the Foristers' petitions for attorney fees. Plaintiffs timely appealed.

II. DISCUSSION

In reviewing the dismissal of a complaint under section 2-615 and section 2-619 we apply a de novo standard of review. See Neade v. Portes, 193 Ill.2d 433, 439, 250 Ill.Dec. 733, 739 N.E.2d 496 (2000); Mio v. Alberto-Culver Co., 306 Ill. App.3d 822, 825, 239 Ill.Dec. 864, 715 N.E.2d 309 (1999).

A. VIOLATION OF THE RESIDENTIAL REAL PROPERTY DISCLOSURE ACT

Count III of the Provenzales' first amended complaint alleged that the Foristers violated the Disclosure Act by falsely representing the property's flood plain status in the disclosure report. The Disclosure Act requires the seller of residential real property to complete a disclosure report containing certain statements about the property. 765 ILCS 77/35 (West 1996). Statement number three on the disclosure report reads: "I am aware that the property is located within a flood plain or that I currently have flood insurance on the property." The Foristers placed an "x" in the "no" column next to that statement.

Section 10 of the Disclosure Act provides:

"Except as provided in Section 15, this Act applies to any transfer by sale, exchange, installment land sale contract, assignment of beneficial interest, lease with an option to purchase, ground lease, or assignment of ground lease of residential real property." 765 ILCS 77/10 (West 1996).

In granting the Foristers' motion to dismiss, the trial court stated that "since there was not a transfer alleged in Count [III], the motion must be granted."

The Provenzales contend that they have stated a cause of action under the Disclosure Act and the trial court erred in interpreting the Disclosure Act as requiring an actual transfer of real property. The Provenzales point to the inclusion and definition of "prospective buyer" (765 ILCS 77/5 (West 1996)) and the pretransfer duty imposed on sellers to deliver the disclosure report to the prospective buyer before the signing of a contract (765 ILCS 77/20 (West 1996)) in support of their position. The Provenzales argue that the trial court misinterpreted the word "transfer" as a verb rather than a noun because "transfer" refers generally to the different types of transactions that are or are not subject to the Disclosure Act, not simply ...