                                   Illinois Official Reports

                                           Appellate Court



                             Messerly v. Boehmke, 2014 IL App (4th) 130397



Appellate Court               RICHARD MESSERLY and RHONDA MESSERLY, Plaintiffs-
Caption                       Appellants, v. ROBERT E. BOEHMKE, SR., Defendant-Appellee.


District & No.                Fourth District
                              Docket No. 4-13-0397

Filed                         March 11, 2014

Held                          The entry of summary judgment for defendant in an action alleging
(Note: This syllabus          that defendant violated the Residential Real Property Disclosure Act
constitutes no part of the    and that plaintiffs suffered damages as a result of defendant’s failure
opinion of the court but      to complete the disclosures required under the Act in connection with
has been prepared by the      the sale of his house to plaintiffs was reversed, since plaintiffs did not
Reporter of Decisions         waive defendant’s obligations under the Act and genuine issues of
for the convenience of        material fact existed as to whether there were material defects in the
the reader.)                  plumbing system and the foundation of the house.




Decision Under                Appeal from the Circuit Court of Macoupin County, No. 04-LM-53;
Review                        the Hon. Patrick J. Londrigan, Judge, presiding.



Judgment                      Reversed.


Counsel on                    Edward T. McCarthy (argued), of McCarthy & Allen, of
Appeal                        Edwardsville, for appellants.

                              Rick Verticchio and Gina Verticchio (argued), both of Verticchio &
                              Verticchio, of Gillespie, for appellee.
     Panel                     JUSTICE KNECHT delivered the judgment of the court, with
                               opinion.
                               Justices Turner and Steigmann concurred in the judgment and
                               opinion.




                                                 OPINION

¶1         In March 2004, plaintiffs Richard and Rhonda Messerly filed a complaint against
       defendant, Robert E. Boehmke, Sr. Plaintiffs’ third amended complaint alleged (1) defendant
       violated the Residential Real Property Disclosure Act (Act) (765 ILCS 77/25 (West 1998)) and
       (2) plaintiffs incurred damages due to the incomplete disclosures. Both parties moved for
       summary judgment. The trial court granted defendant’s motion.
¶2         On appeal, plaintiffs claim the record contains evidence defendant knowingly violated the
       Act and the trial court erroneously concluded plaintiffs could waive defendant’s obligations
       under the Act. Plaintiffs also ask this court to reverse the trial court’s grant of summary
       judgment in favor of defendant and order the trial court to grant their motion for summary
       judgment as to defendant’s liability. We reverse.

¶3                                          I. BACKGROUND
¶4                                       A. Plaintiffs’ Allegations
¶5         In the July 2010 amendment to plaintiffs’ complaint, they alleged on September 29, 1998,
       they purchased a home from defendant, at 105 Shelby, in Gillespie, Illinois, for $87,000. On or
       about August 7, 1998, defendant filled out and signed the disclosure report. Plaintiffs alleged
       defendant violated the Act as the disclosure report was false and incomplete because it did not
       disclose material defects in the home’s foundation and plumbing system. See 765 ILCS
       77/25(b) (West 1998). Plaintiffs alleged the plumbing system in the property was seriously
       defective so as to require repairs in excess of $15,000 but less than $50,000. They claimed the
       foundation and wall of the premises were and are unstable and continue to settle, sink, and
       move, causing additional damages. Plaintiffs requested judgment for over $50,000 plus court
       costs and reasonable attorney fees.

¶6                                               B. Discovery
¶7                                          1. The Disclosure Form
¶8         In August 1998, prior to the sale, defendant filled out a “Residential Real Property
       Disclosure Report” (disclosure form) as required under the Act. See 765 ILCS 77/35 (West
       1998) (specifying the required disclosure report form). The disclosure form indicated the
       address of the property and included blanks consisting of 22 statements. The disclosure form
       required the seller to fill in “yes” or “no” to indicate his or her knowledge of specific defects in
       the property. Id.



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¶9         Defendant answered question Nos. 1 through 17 on the form, answering “no” to all the
       questions answered except question No. 4. Question No. 4 states, “I am aware of material
       defects in the basement or foundation (including cracks and bulges).” Id. Defendant answered
       “yes” to this question. In the space provided to explain defendant’s affirmative answer,
       defendant stated, “no damages from water in basement from crack.”
¶ 10       Question No. 6 asked if defendant was “aware of material defects in the walls or floors”
       (id.) and defendant answered “no.” Defendant also answered “no” to question No. 8, which
       asked if he was “aware of material defects in the plumbing system (includes such things as
       water heater, sump pump, water treatment system, sprinkler system, and swimming pool).” Id.
       Defendant did not answer question Nos. 17 through 22. Question No. 17 asked if defendant
       was “aware of mine subsidence, underground pits, settlement, sliding, upheaval, or other earth
       stability defects on the premises.” Id.
¶ 11       A space on the form is provided for signatures along with a space for the date. Defendant
       signed the disclosure form and wrote “August 8, 1998,” next to his name. Plaintiffs also both
       signed the disclosure form and wrote “August 25, 1998,” next to their names.

¶ 12                                2. The Letter From Defendant’s
                                          Insurance Company
¶ 13       Prior to October 1991, defendant submitted a claim to his insurance carrier, State Farm Fire
       and Casualty Company (State Farm). State Farm responded with a letter dated October 30,
       1991, and addressed to defendant, stating State Farm had received a report for the Illinois Mine
       Subsidence Insurance Fund (Fund). State Farm indicated the Fund had investigated
       defendant’s claim and concluded “the damage to your home is not the result of mine
       subsidence but rather settling.” The letter stated damage from settling was specifically
       excluded from defendant’s homeowner’s insurance policy and denied defendant’s claim.

¶ 14                            3. Richard Messerly’s Deposition Testimony
¶ 15       Richard testified he purchased the house at 105 Shelby from defendant in 1998. Richard
       lives in the house with his wife, Rhonda; his son; and his son’s girlfriend and two children.
¶ 16       Richard stated within two days of moving into the house his children took a shower
       downstairs and “water was leaking all over the place.” Specifically, the water was “coming out
       of the wall itself and leaking down into the basement floor.” Richard’s wife Rhonda contacted
       defendant, who indicated a certain wrench or extension was necessary to tighten the area where
       the leak occurred. Richard called a plumber, who told him the problem was poor craftsmanship
       and the only way to fix it was to tear it all out. Richard did not fix the shower.
¶ 17       The plumber found other necessary repairs, including some he believed violated health
       codes. A later inspection by the Illinois Department of Public Health found 21 violations.
       Richard also mentioned that shortly after moving in the family noticed an “excessively bad
       odor in the home.” Richard testified the odor was caused by a defective drain line from the
       furnace system.
¶ 18       Richard also stated he was aware of the letter from State Farm to defendant regarding
       settling on the property. Richard indicated after moving into the home he discovered shelving
       and a “plaster-type finish” covered cracks in the basement, some of which leaked water into

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       the basement. Richard stated he believed defendant covered the cracks or knew they were
       covered because defendant and his late wife were the only people to live in the house.
¶ 19       Richard and Rhonda called HelioTech to investigate the foundation and basement wall.
       HelioTech told Richard repairs would be very expensive. Richard stated he had documents
       from HelioTech detailing why the damage had occurred and specifically what repairs would be
       required.

¶ 20                          4. Rhonda Messerly’s Deposition Testimony
¶ 21       Rhonda stated she called defendant about the leak in the basement bathroom. Defendant
       told her to take the ceiling tile (a drop-ceiling tile) off the top of the shower and get an
       extension on a wrench to tighten the pipe. Rhonda also testified she called defendant regarding
       a foul smell in the house. Defendant told her sometimes the hoses in the basement need to be
       changed out. These hoses came from the furnace and air conditioner. The plumber changed
       these hoses and “it got rid of the smell *** for a short time.” Like her husband, she stated
       cracks in the basement were covered with shelving and plaster.

¶ 22                                     C. The Parties’ Motions for
                                             Summary Judgment
¶ 23       Defendant filed a motion for summary judgment, arguing plaintiffs had not presented an
       issue of material fact concerning defendant’s failure to disclose material defects in the
       plumbing system. Defendant also argued he did not disclose any knowledge of mine
       subsidence on the property because he was advised by State Farm no mine subsidence
       occurred on the property. Defendant further argued plaintiffs had no evidence to show he failed
       to disclose foundation and subsidence issues.
¶ 24       Along with the motion for summary judgment, defendant filed an affidavit he authored,
       denying knowledge of material defects concerning the plumbing system of the home.
       Defendant stated, “pursuant to correspondence on or about October 30, 1991, [State Farm]
       advised [defendant the Fund] had determined no mine subsidence event occurred on the
       property[;] however, the cracks in the basement floor were the result of settling.” Defendant
       also conceded he filed a claim with State Farm regarding cracks in the basement. Defendant
       strongly denied any “material defects or wrong doing concerning the property.”
¶ 25       Plaintiffs filed a response and cross-motion for summary judgment, arguing they had
       presented evidence demonstrating that, at closing, defendant had actual knowledge of material
       defects in the plumbing system. Plaintiffs requested summary judgment as to defendant’s
       liability for failing to disclose defects caused by settling, arguing defendant failed to answer
       question No. 17 on the disclosure from, which mentioned settling. Plaintiffs also argued
       defendant admitted State Farm advised him the Fund determined settling caused damages to
       the property.

¶ 26                                  D. The Trial Court’s Order
¶ 27       The trial court granted defendant’s motion for summary judgment, holding the record
       contained no evidence “defendant[ ] knowingly disclosed false information or failed to
       disclose any known material defects in the residence.” The court also found defendant’s failure

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       “to complete the [disclosure form] in full and the plaintiff[s’] acceptance of the disclosure form
       waives any action against the defendant[ ].” The court dismissed plaintiffs’ motion for
       summary judgment as moot.
¶ 28       This appeal followed.

¶ 29                                          II. ANALYSIS
¶ 30                                      A. Standard of Review
¶ 31       Under section 2-1005(c) of the Code of Civil Procedure, a party is entitled to summary
       judgment as a matter of law when “the pleadings, depositions, and admissions on file, together
       with the affidavits, if any, show that there is no genuine issue as to any material fact.” 735
       ILCS 5/2-1005(c) (West 2012). “In ruling on a summary judgment motion, the trial court must
       construe the pleadings, depositions, and affidavits strictly against the movant and in favor of
       the opposing party.” Woods v. Pence, 303 Ill. App. 3d 573, 575, 708 N.E.2d 563, 564 (1999).
       “Summary judgment is a drastic measure of disposing of litigation and it should only be
       granted when the movant’s right to relief is clear and free from doubt.” Id. at 575-76, 708
       N.E.2d at 564.
¶ 32       “The purpose of a summary judgment proceeding is not to try issues of fact but is to
       determine whether any triable issues exist.” Id. at 577, 708 N.E.2d at 565-66. “A triable issue
       exists where there is a dispute concerning material facts or where those facts are undisputed but
       reasonable persons might draw different inferences from those facts.” Id. at 577, 708 N.E.2d at
       566. The de novo standard of review applies to an order granting summary judgment. Id. at
       576, 708 N.E.2d at 564.

¶ 33                                             B. Waiver
¶ 34       Defendant argues by accepting an incomplete disclosure form, plaintiffs waived any right
       to recovery based on the incomplete items. Plaintiffs argue the seller’s obligations under the
       Act cannot be waived, and we agree.
¶ 35       In Curtis Investment Firm, Ltd. Partnership v. Schuch, 321 Ill. App. 3d 197, 200, 746
       N.E.2d 1233, 1236 (2001), the Third District held, “a buyer’s right to receive a disclosure
       statement prior to closing cannot be waived.” In Curtis, the sellers who failed to provide a
       disclosure form were liable for failing to disclose a defective water supply system, even though
       the buyer continued with the sale without the form. Id. at 200-01, 746 N.E.2d at 1237. The
       court noted, under section 20 of the Act:
                   “ ‘A seller of residential real property shall complete all applicable items in the
              disclosure document described in Section 35 of this Act. The seller shall deliver to the
              prospective buyer the written disclosure statement required by this Act before the
              signing of a written agreement by the seller and prospective buyer that would, subject
              to the satisfaction of any negotiated contingencies, require the prospective buyer to
              accept a transfer of the residential real property.’ ” (Emphases added.) Id. at 199, 746
              N.E.2d at 1236 (quoting 765 ILCS 77/20 (West 1998)).
       The court concluded the word “ ‘shall’ ” required “a mandatory reading of the provision,”
       noting the statute did not list any exceptions. Curtis, 321 Ill. App. 3d at 200, 746 N.E.2d at
       1236.

                                                   -5-
¶ 36       Like the buyers in Curtis, plaintiffs did not waive their claim under the Act by continuing
       with the sale. While defendant supplied an incomplete disclosure form, omitting answers to
       question Nos. 17 through 22 rather than failing to submit any disclosure form, the court’s
       reasoning in Curtis applies. Section 20 of the Act states the seller “shall complete all applicable
       items in the disclosure document described in Section 35 of this Act.” 765 ILCS 77/20 (West
       1998). This mandatory language requires the seller to complete the entire form.
¶ 37       Further, “[t]he primary purpose of the statute is to provide a remedy for aggrieved buyers
       of residential real property.” Curtis, 321 Ill. App. 3d at 201, 746 N.E.2d at 1236. Consequently,
       “[t]o allow a seller to ignore his obligation under the Act and avoid reporting a material defect,
       thereby defeating a buyer’s subsequent claim, would only encourage the evils the legislature
       sought to remedy.” Id. at 200-01, 746 N.E.2d at 1236-37. Plaintiffs’ claim is not defeated
       because they continued with the closing, as such an outcome would allow defendant to fail to
       perform his duty to complete the entire disclosure form with impunity.
¶ 38       Defendant argues the dissent in Curtis presents the more appropriate reasoning because
       “the incomplete items are not the basis for any factual defect that allegedly existed in the
       residence transferred between the parties.” As best we can discern, defendant argues plaintiffs
       have not shown settling exists as a material defect in the property. We disagree. Plaintiffs have
       shown settling of the foundation caused damage to the property. Both plaintiffs testified about
       the damages caused by the cracking in the wall and basement. Robert testified a contracting
       company, HelioTech, had investigated the damages and determined they would be expensive
       to repair. Defendant himself was concerned enough about the damage caused to file an
       insurance claim regarding the cracks.
¶ 39       We are not persuaded by the dissent in Curtis. The dissenting justice explained he would
       have found “the buyers waived the right to recovery under the Act” because the buyers had the
       right to terminate the contract yet proceeded with the transaction. Id. at 202, 746 N.E.2d at
       1238 (Holdridge, J., dissenting). As the majority pointed out in Curtis, terminating the contract
       is not the buyer’s only right or remedy, as section 55 also “allows the buyer to sue the seller to
       recover actual damages and costs–the remedy sought by [plaintiff].” Id. at 200 n.1, 746 N.E.2d
       at 1236 n.1. Plaintiffs in this case also seek damages and costs. We follow the majority in
       Curtis and conclude plaintiffs have not waived the right to receive damages based on the
       incomplete disclosure form.

¶ 40                               C. Defendant’s Liability Under the Act
¶ 41       Under section 55 of the Act, a “person who knowingly violates or fails to perform any duty
       prescribed by any provision of this Act *** shall be liable in the amount of actual damages and
       court costs, and the court may award reasonable attorney fees incurred by the prevailing
       party.” 765 ILCS 77/55 (West 1998). Under section 25(b), the seller “shall disclose material
       defects of which the seller has actual knowledge.” 765 ILCS 77/25(b) (West 1998). A seller is
       not required “to make any specific investigation or inquiry” to complete the disclosure form.
       765 ILCS 77/25(c) (West 1998).
¶ 42       Plaintiffs argue the trial court erred in granting summary judgment in favor of defendant.
       First, plaintiffs allege the record evidence demonstrates a material issue of fact as to whether
       defendant knew about and failed to disclose defects in the home’s plumbing system. Second,
       plaintiffs argue they are entitled to summary judgment as there is no material issue of fact as to

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       whether defendant knowingly failed to disclose defects in the home’s foundation caused by
       settling. We address each argument in turn.

¶ 43                                     1. Plumbing System Defects
¶ 44       Plaintiffs argue they presented evidence creating an issue of fact as to whether defendant
       knowingly failed to disclose defects in the plumbing system. Defendant denies he had
       knowledge of any material defect in the plumbing system.
¶ 45       Generally, a defendant’s knowledge of a defect at the time of the closing is a question of
       fact to be determined by the trial court. Curtis, 321 Ill. App. 3d at 201, 746 N.E.2d at 1237.
       Further, “[a] trier of fact need not accept a party’s testimony that he had no knowledge of a
       particular fact in question if the evidence shows to the contrary.” Id. In Curtis, the Third
       District upheld the trial court’s finding a defendant, who denied any knowledge of defects in
       the water supply line to the home, had knowledge of the defect because he had the water turned
       off at the curb box, rather than the meter inside the home. Id. Here, while defendant denied any
       knowledge of defects in the plumbing system in his affidavit, defendant’s denial is not
       definitive. As Curtis demonstrates, the case may still present an issue of fact if plaintiffs can
       present evidence to the contrary. See id.
¶ 46       In Woods, the Third District held the case presented material issues of fact as to
       defendant’s knowledge of a leak in a home’s roof where, prior to the sale, defendant had the
       roof repaired between three and five times in a four-year period. Woods, 303 Ill. App. 3d at
       576-77, 708 N.E.2d at 565-66. The court in Woods overturned the trial court’s grant of
       summary judgment in favor of defendant because the evidence of the prior fixes “raise[d] at
       least an inference of a chronic condition that had never been permanently eliminated.” Id. at
       576, 708 N.E.2d at 565.
¶ 47       In this case, plaintiffs have presented evidence raising a question of fact as to defendant’s
       knowledge at closing of a material defect in the plumbing system. At her deposition, Rhonda
       testified that within a few days of moving into the home her children attempted to use the
       shower and noticed water leaking from the junction of an interior wall and the floor located
       behind the shower. Rhonda contacted defendant about the leak and he told her to “take off the
       ceiling tile off the top of the shower and get an extension on a wrench to go in and tighten the
       pipe up.” Rhonda clarified he was describing the pipe inside the wall leading to the
       showerhead. Just as the defendant’s repeated prior attempts to fix his roof created an inference
       of a chronic condition in Woods, defendant’s statement raises at least an inference defendant
       had specific knowledge of the leak at closing.
¶ 48       Defendant argues “the need to tighten the showerhead *** hardly could be classified as a
       material defect.” We disagree. Whether a shower leaking into an interior wall constitutes a
       material defect is an issue of fact. Plaintiffs have presented evidence this leak is material. Both
       plaintiffs testified the leak allowed water to enter into an interior wall. Richard testified a
       plumber investigated the leak and concluded the only way to fix it was to remove and reinstall
       the pipes going to the bathroom, and stated such repairs would be expensive. Based on this
       evidence, a trier of fact could find this defect material.
¶ 49       Plaintiffs also argue defendant had knowledge of faulty pipes ventilating the heating and
       air conditioning systems. Rhonda testified defendant described to her how to fix a foul odor in


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       the basement by replacing hoses coming from the heating and air conditioning systems.
       Defendant argues the complaint limited its allegations to defects in the plumbing system and
       unstable foundation and walls, and a faulty ventilation system does not constitute a factual
       description of a material defect in the plumbing system. Richard testified a contractor
       determined the smell was due to defective plumbing of a drain line in the basement. We
       conclude the existence of this alleged defect and whether it constitutes a material defect in the
       plumbing system are questions of fact.

¶ 50                                         2. Foundation Defects
¶ 51        As to the foundation defects, both parties have moved for summary judgment. “By filing
       cross-motions for summary judgment, the parties agree that no factual issues exist and this case
       turns solely on legal issues ***.” Gaffney v. Board of Trustees of the Orland Fire Protection
       District, 2012 IL 110012, ¶ 73, 969 N.E.2d 359. “However, the mere filing of cross-motions
       for summary judgment does not establish that there is no issue of material fact, nor does it
       obligate a court to render summary judgment.” Pielet v. Pielet, 2012 IL 112064, ¶ 28, 978
       N.E.2d 1000. We conclude an issue of fact exists as to this issue.
¶ 52        Plaintiffs argue by not answering question No. 17, defendant failed to comply with his duty
       under the Act as he had actual knowledge settling affected the home. See 765 ILCS 77/25(b)
       (West 1998). In defendant’s affidavit, he admitted he noticed cracks in the foundation, made an
       insurance claim concerning those cracks, and in 1991 he received the letter from State Farm
       informing him the damages were caused by settling. This constitutes evidence that at the 1998
       closing defendant had actual knowledge settling was occurring on the property. Plaintiffs also
       testified some cracks were covered by shelving and a plaster-like material. This evidence
       permits the inference defendant either covered the cracks or had someone cover the cracks, as
       defendant and his late wife were the only other people to ever own or live in the home.
¶ 53        Defendant argues his affirmative answer to question No. 4, indicating he was aware of
       material defects in the basement or foundation, satisfied his duty to disclose defects related to
       cracks in the basement. We disagree. A seller who discloses some information can be subject
       to liability under the Act if the seller knows the information disclosed contains a material error,
       inaccuracy, or omission. Hogan v. Adams, 333 Ill. App. 3d 141, 147, 775 N.E.2d 217, 222
       (2002) (citing 765 ILCS 77/25(a)(i), 55 (West 1998)). In Hogan, the sellers disclosed only one
       flooding incident (occurring when the sump pump was not working due to power failure) when
       it was uncontested the sellers knew the basement had flooded on at least one other occasion
       when the sump pump was working. Hogan, 333 Ill. App. 3d at 148-49, 775 N.E.2d at 223. This
       court concluded defendants knew the information disclosed was incomplete and was
       “particularly misleading because it suggests flooding would only occur if the sump pump was
       not properly functioning.” Id. at 149, 775 N.E.2d at 223.
¶ 54        Here, the trier of fact could find defendant’s explanation, “no damage from water in
       basement from crack,” equally incomplete and misleading. The word “crack” used in the
       disclosure form is singular, indicating there was only one crack, while defendant
       acknowledged in his affidavit he made an insurance claim based on “cracks” occurring in the
       foundation. This distinction is significant because one crack might indicate an isolated
       incident, while the existence of more might put a plaintiff on notice of a more serious defect.
       Defendant’s description is even more misleading in light of facts presented suggesting many of

                                                    -8-
       the cracks in the basement wall were covered by shelving and a plaster-like material, as
       plaintiffs could not have observed the full extent of the cracking. Defendant’s description
       could be incomplete because it does not state the cause of the cracks although defendant
       admitted he was informed they were caused by settling.
¶ 55        Further, defendant’s answer to question No. 4 does not excuse his failure to answer
       question No. 17, because the clear language of the Act requires a seller to answer both
       questions if both apply (see 765 ILCS 77/20 (West 1998)). Defendant does not avoid liability
       for failing to disclose a defect specifically listed in question No. 17 because he indicated
       knowledge of one crack in another more general question. Such an outcome would reward
       sellers for picking and choosing which statements on the form they will answer.
¶ 56        Defendant also argues, without citation to any authority, plaintiffs must show a “causal
       connection” between the damages they allegedly suffered and defendant’s leaving question
       No. 17 blank to establish liability under the Act. Plaintiffs are not required to show causation to
       establish liability, as the plain language of the Act subjects sellers who fail to comply with a
       duty under the Act to mandatory liability. Curtis, 321 Ill. App. 3d at 200, 746 N.E.2d at 1236.
       While causation of damages may be relevant to the amount of damages (see 765 ILCS 77/55
       (West 1998) (successful plaintiffs and entitled to “actual damages” and court costs)), the trial
       court did not reach the issue of damages and it does not affect the outcome of this appeal.
¶ 57        Last, defendant argues no evidence suggests settling affects the premises because at the
       deposition, when asked what evidence he had related to the unstable condition of the
       foundation and the walls, Richard responded, “ ‘I am not sure of any.’ ” This argument takes
       Richard’s statement out of context, as he was responding to the question “ ‘what other
       evidence do you have [defendant] did not disclose proper information on paragraph [No.] 17
       other than what is in [the letter from State Farm]?’ ” (Emphases added.) A negative response to
       this question simply does not amount to “an admission [plaintiff] was not sure of any evidence
       of defects of the foundation and wall,” as defendant argues. In their depositions, plaintiffs
       described the damage caused by cracks and Richard stated contractors from HelioTech have
       evaluated the damages and provided estimates as to the costs of repairs.
¶ 58        We conclude an issue of fact exists as to defendant’s knowledge of the foundation defects
       at the time of the closing.

¶ 59                                      III. CONCLUSION
¶ 60      For the reasons stated, we reverse the trial court’s judgment.

¶ 61      Reversed.




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