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                                  Appellate Court                        Date: 2017.01.11
                                                                         14:58:09 -06'00'




                      Cantrall v. Bergner, 2016 IL App (4th) 150984



Appellate Court       ANDREA CANTRALL, Plaintiff-Appellant and Cross-Appellee, v.
Caption               DANIEL BERGNER and VICKIE BERGNER, Defendants-
                      Appellees and Cross-Appellants.



District & No.        Fourth District
                      Docket No. 4-15-0984



Rule 23 order filed   October 21, 2016
Rule 23 order
withdrawn             December 19, 2016
Opinion filed         December 19, 2016



Decision Under        Appeal from the Circuit Court of Sangamon County, No. 12-LM-247;
Review                the Hon. Chris Perrin, Judge, presiding.



Judgment              Affirmed.



Counsel on            Duane D. Young (argued), of LaBarre, Young & Behnke, of
Appeal                Springfield, for appellant.

                      Ashton N. Nowlan (argued), of Londrigan Potter Randle, P.C., of
                      Springfield, for appellees.
     Panel                     PRESIDING JUSTICE KNECHT delivered the judgment of the court,
                               with opinion.
                               Justices Appleton and Steigmann concurred in the judgment and
                               opinion.


                                                OPINION

¶1         In March 2011, plaintiff, Andrea Cantrall, entered into a contract to purchase the home of
       defendants, Daniel and Vickie Bergner. Defendants delivered a residential real property
       disclosure report as required by the Residential Real Property Disclosure Act (Act) (765 ILCS
       77/35 (West 2010)) that indicated, in part, they were unaware of any leaks or material defects
       in the roof, ceilings, or chimney. After a home inspection revealed issues with the roof, the
       parties executed a repair addendum where defendants, if competent to do so themselves or by a
       qualified and reputable contractor, were required to repair or replace all wood rot and missing
       fascia on the home and garage. In April 2011, plaintiff moved into the home and noticed the
       roof was leaking.
¶2         In February 2012, plaintiff filed a three-count complaint against defendants, alleging a
       violation of the Act (765 ILCS 77/1 to 99 (West 2010)) (count I), fraudulent concealment
       (count II), and breach of contract (count III). The trial court entered judgment for plaintiff on
       count III and for defendants on counts I and II and denied both parties’ requests for attorney
       fees. Plaintiff appeals, arguing she was entitled to attorney fees under the fee-shifting provision
       in the sales contract. Defendants cross-appeal, claiming the court abused its discretion when it
       denied them fees under the Act because plaintiff engaged in knowing misconduct.

¶3                                          I. BACKGROUND
¶4         In March 2011, the parties entered into a residential real estate sales contract, where
       plaintiff agreed to purchase defendants’ home. Soon thereafter, plaintiff ordered a home
       inspection. Plaintiff was present during a portion of the inspection and noticed a visible
       watermark on a wall in the back stairway of the house and observed it was “wet, two or three
       inches long and half an inch wide.” The inspector noted the fascia was physically damaged and
       missing in places and there was rotted wood. The inspector further recommended plaintiff seek
       an evaluation by a roofer. Based on the inspection report, the parties agreed, via a repair
       addendum, that defendants, if competent to do so themselves or by a qualified and reputable
       contractor, would repair or replace all wood rot and missing fascia on the home and garage.
¶5         Defendant (Daniel) repaired the fascia under the edge of the roof himself and applied
       caulk. He did not seek the assistance, presence, advice, or consultation of any engineer,
       carpenter, contractor, inspector, roofer, or other persons knowledgeable of the building trades
       or any other person, lay or professional. Defendant had no knowledge of roofing or building
       trades, but he had been a painter years ago. Prior to closing, plaintiff completed a final
       walk-through of the house. Plaintiff still noticed the watermark on the wall but assumed the
       agreed repairs were completed. Plaintiff was not concerned about the watermark because she
       assumed it was a stain and could be painted over. At this time, plaintiff did not have the roof
       evaluated by a roofer per the inspector’s suggestion.


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¶6       In April 2011, plaintiff was assured by defendants at closing that all repairs had been made.
     A few days later, plaintiff moved into the home. Within two weeks, it rained and the roof
     leaked. Defendants refused to repair the leak. Eventually, plaintiff paid $2500 for a roofer to
     make the repairs. In February 2012, plaintiff filed a three-count complaint against defendants,
     alleging a violation of the Act (765 ILCS 77/1 to 99 (West 2010)) (count I), fraudulent
     concealment (count II), and breach of contract (count III).
¶7       Before the trial court made its decision, both parties requested attorney fees. Plaintiff
     argued she was entitled to fees under the fee-shifting provision in the sales contract. The
     fee-shifting provision provided, “All costs, expenses[,] and reasonable attorney’s fees incurred
     by one party in enforcing said party’s rights under this [c]ontract may be recovered from the
     other party.” Defendants argued they were entitled to fees under the Act because plaintiff
     engaged in knowing misconduct (765 ILCS 77/55 (West 2010)). In November 2015, the court
     issued a written order with the following findings:
                 “A. The Plaintiff has failed to meet her burden of proof as to a knowing violation of
             the [Act]. There was insufficient evidence presented at trial that the Defendants had
             actual knowledge of a material defect in the roof at the time the residential real property
             disclosure was completed.
                 B. The Defendants[’] failure to supplement the residential real property disclosure
             pursuant to Section 30 of the [Act] is permissible as the wood rot was discovered by the
             Plaintiff and made known to Defendants by the Plaintiff through the Repair
             Addendum.
                 ***
                 D. The Plaintiff has failed to meet her burden of proof as to her claim for fraud.
             There was insufficient evidence presented at trial to support Plaintiff’s claims that the
             Defendants knowingly deceived, concealed[,] or withheld information as to the
             condition of the roof.
                 E. The Plaintiff’s reliance upon the Defendants’ representation was not reasonable
             or justifiable. Knowing her home inspector’s opinion regarding the marginal condition
             of the roof and still seeing the watermark in the stairwell of the home, Plaintiff
             undertook no follow up to verify that the repairs had been completed in a reasonable
             and workmanlike manner. Additionally, Plaintiff chose not to have the roof inspected
             by a qualified roofer as her inspection report recommended. The Plaintiff could have
             learned the actual condition of the roof through the exercise of ordinary prudence. A
             plaintiff may not close her eyes and then claim that she has been deceived by others.
             [Citation.]
                 F. The Defendants were, by virtue of the Repair Addendum, contractually obligated
             to repair, if competent to do so, or cause to be repaired by a qualified and reputable
             contractor all wood rot and missing fascia on the home and garage.
                 G. The Defendants breached the Repair Addendum in that they did not repair, or
             cause to be repaired by a qualified and reputable contractor, all wood rot on the home
             and garage.
                 H. The Plaintiff’s damages arose from Defendants’ breach of contract.”
     The court entered judgment on count III for plaintiff and on counts I and II for defendants. The
     court denied (1) plaintiff’s request for attorney fees pursuant to the fee-shifting provision in the

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       sales contract and (2) defendants’ request for attorney fees pursuant to the Act. The parties
       filed motions to reconsider, which the court denied.
¶8         This appeal followed.

¶9                                             II. ANALYSIS
¶ 10       On appeal, plaintiff argues that the trial court erred when it denied her request for attorney
       fees because the fee-shifting provision in the sales contract made the award of attorney fees
       mandatory. Defendants argue that the trial court had discretion whether to award plaintiff
       attorney fees, and it appropriately denied plaintiff’s request. On cross-appeal, defendants argue
       that the trial court erred when it denied them attorney fees pursuant to the Act (765 ILCS 77/55
       (West 2010)) because plaintiff engaged in knowing misconduct. In response, plaintiff argues
       that, since she prevailed on count III, her claims were not meritless and defendants failed to
       establish she engaged in knowing misconduct. We address each of these contentions in turn.

¶ 11                      A. Attorney Fees Pursuant to the Fee-Shifting Provision
¶ 12       Illinois follows the “American Rule,” which provides, absent statutory authority or a
       contractual agreement providing otherwise, each party must bear his or her own attorney fees
       and costs. Housing Authority v. Lyles, 395 Ill. App. 3d 1036, 1038, 918 N.E.2d 1276, 1278
       (2009). When a contract provides a fee-shifting provision for attorney fees, a reviewing court
       is required to strictly construe it to mean nothing more, but also nothing less, than the plain
       language of the provision. Bright Horizons Children’s Centers, LLC v. Riverway Midwest II,
       LLC, 403 Ill. App. 3d 234, 254-55, 931 N.E.2d 780, 798 (2010).
¶ 13       First, we clarify our standard of review. Plaintiff contends that, because her argument
       involves the interpretation of a contract, our review is de novo (citing Fontana v. TLD
       Builders, Inc., 362 Ill. App. 3d 491, 510, 840 N.E.2d 767, 784 (2005)). Defendants argue that
       the trial court had discretion as to whether it awarded attorney fees and its decision should not
       be disturbed absent an abuse of discretion (citing Powers v. Rockford Stop-N-Go, Inc., 326 Ill.
       App. 3d 511, 516, 761 N.E.2d 237, 241 (2001)). When interpreting a fee-shifting provision to
       determine whether the use of the term “may” is discretionary or mandatory, our review is
       de novo. Carr v. Gateway, Inc., 241 Ill. 2d 15, 20, 944 N.E.2d 327, 329 (2011). We then
       address whether a trial court’s award or denial of attorney fees pursuant to a contractual
       fee-shifting provision is an abuse of discretion. McHenry Savings Bank v. Autoworks of
       Wauconda, Inc., 399 Ill. App. 3d 104, 113, 924 N.E.2d 1197, 1206 (2010).
¶ 14       As previously noted, the contractual agreement between plaintiff and defendants contained
       the following fee-shifting provision for the award of attorney fees:
                “All costs, expenses[,] and reasonable attorney’s fees incurred by one party in
                enforcing said party’s rights under this [c]ontract may be recovered from the other
                party.” (Emphasis added.)
¶ 15       Plaintiff suggests the term “may” simply confers on the prevailing party enforcing the
       contract the right to seek recovery of fees, and once initiated, the trial court is required to award
       attorney fees. Defendants argue that the contract language is unambiguous and the use of the
       term “may” indicates the awarding of fees is permissive and not mandatory, and as a result,
       whether to award attorney fees was within the court’s discretion. We agree with defendants.



                                                     -4-
¶ 16        Black’s Law Dictionary defines the term “may” as follows: “1. To be permitted to *** 2.
       To be a possibility ***.” Black’s Law Dictionary 1000 (8th ed. 2004). When effectuating
       legislative intent in interpreting statutes, courts have held “may” to be synonymous with
       “shall” or “must.” Black’s Law Dictionary 1000 (8th ed. 2004). A different publication by the
       editor of Black’s Law Dictionary defines “may” as follows: “(1) has discretion to; is permitted
       to ***; (2) possibly will ***; or (3) shall.” Bryan A. Garner, A Dictionary of Modern Legal
       Usage 552 (2d ed. 1995) (“courts not infrequently construe may as shall or must to the end that
       justice may not be the slave of grammar” (emphases in original and internal quotation marks
       omitted)). However, as noted by defendants, the use of “may” does not mean “shall” when
       interpreting private contracts (citing Lukasik v. Riddell, Inc., 116 Ill. App. 3d 339, 345, 452
       N.E.2d 55, 59 (1983)).
¶ 17        The plain and ordinary meaning of “may” indicates the fee-shifting provision is
       permissive. Although courts will sometimes construe statutes using “may” to mean “shall” by
       examining legislative intent, due to the steep ramifications of fee-shifting provisions in
       contracts, we are bound to strictly construe them to mean nothing more, but also nothing less,
       than the plain language used by the parties. Bright Horizons, 403 Ill. App. 3d at 254-55, 931
       N.E.2d at 798. We disagree with plaintiff’s assessment that the term “may” simply confers on
       the prevailing party enforcing the contract the right to seek recovery of fees. Based on the
       construction of the clause, the provision leaves the decision as to whether a prevailing party
       can receive fees to the discretion of the trial court.
¶ 18        Nonetheless, plaintiff argues that this fee-shifting provision is similar to the fee-shifting
       provision presented in Pioneer Trust & Savings Bank v. Zonta, 96 Ill. App. 3d 339, 349, 421
       N.E.2d 239, 247 (1981). In Pioneer, the fee-shifting provision provided “the lessee pay all
       ‘reasonable costs, attorney’s fees and expenses that may be incurred by Lessor, in enforcing
       the covenants and agreements of this lease.’ ” Pioneer, 96 Ill. App. 3d at 349, 421 N.E.2d at
       247. In the case at bar, we find the fee-shifting provision distinguishable. The fee-shifting
       provision in Pioneer entitled the Lessor to all reasonable costs, attorney fees, and expenses that
       may be incurred by the lessor. The provision in the present case uses the term “may” to state
       fees and costs may be recoverable against the other party. The ordering of the words in the
       fee-shifting provision is significant, especially when the court is required to strictly construe
       the provision. See Bright Horizons, 403 Ill. App. 3d at 254-55, 931 N.E.2d at 798.
¶ 19        Plaintiff argues that if this court finds the fee-shifting provision discretionary, it conflicts
       with this court’s holding in Housing Authority v. Lyles, 395 Ill. App. 3d 1036, 1040, 918
       N.E.2d 1276, 1279-80 (2009). In Housing Authority, a landlord filed a complaint in forcible
       entry and detainer alleging that the defendant-tenant breached the terms of the lease by keeping
       her unit in an unsanitary and unsafe condition. Housing Authority, 395 Ill. App. 3d at 1037,
       918 N.E.2d at 1277. The trial court found for the defendant-tenant and awarded her $5,089.50
       in attorney fees based on the fee-shifting provision contained in the lease. Housing Authority,
       395 Ill. App. 3d at 1038, 918 N.E.2d at 1278. The fee-shifting provision provided, “ ‘In the
       event one party to this lease defaults in fulfilling any of the provisions of this lease, the
       non[ ]defaulting party may recover all costs and reasonable attorney[ ] fees incurred in
       enforcing this lease, whether or not suit shall be required.’ [Citation.]” Housing Authority, 395
       Ill. App. 3d at 1039, 918 N.E.2d at 1279.
¶ 20        In Housing Authority, the parties disputed on appeal whether the defendant-tenant was
       enforcing the lease and, therefore, could request fees pursuant to the fee-shifting provision.

                                                     -5-
       The trial court’s judgment was reversed because the defendant-tenant was not enforcing
       anything but, rather, defending against the forcible entry and detainer action alleging she had
       breached the lease. Housing Authority, 395 Ill. App. 3d at 1040, 918 N.E.2d at 1279. This court
       concluded, “[a]pplying these common definitions [of ‘enforcing’] to the language of the lease,
       this court finds as a matter of law that the lessor or lessee would be entitled to attorney fees
       only if that party was suing to compel or make effective the covenants of the lease.” Housing
       Authority, 395 Ill. App. 3d at 1040, 918 N.E.2d at 1279.
¶ 21        This statement was made in the context of whether the defendant was enforcing the lease,
       and this court did not address whether the fee-shifting provision was mandatory or permissive.
       Plaintiff argues the following on this holding: “[w]hile not an explicit holding, this court did
       decide, perhaps in a left-handed way *** that a fee[-]shifting [provision] in a lease using the
       word ‘may’ warranted the award of attorney[ ] fees to the prevailing party as a matter of law.”
       We disagree. As stated above, and as plaintiff points out, the context was entirely different, and
       this court was not presented with the issue of whether the term “may” in the fee-shifting
       provision was permissive or mandatory. See, e.g., People v. Flatt, 82 Ill. 2d 250, 261, 412
       N.E.2d 509, 515 (1980) (“It is well settled that the precedential scope of a decision is limited to
       the facts before the court.”). Therefore, our decision in Housing Authority is not instructive
       here. We conclude that the plain and ordinary meaning of the term “may” used in the
       fee-shifting provision indicates the trial court had discretion as to whether to award attorney
       fees.
¶ 22        Next, we address whether the trial court abused its discretion when it denied plaintiff
       attorney fees pursuant to the fee-shifting provision. McHenry Savings Bank, 399 Ill. App. 3d at
       113, 924 N.E.2d at 1206. “An abuse of discretion occurs only when the trial court’s decision is
       arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted
       by the trial court.” Seymour v. Collins, 2015 IL 118432, ¶ 41, 39 N.E.3d 961.
¶ 23        Based on our discussion above, the term “may” in the fee-shifting provision provided the
       trial with discretion as to whether to award fees and the amount awarded. In multicount cases,
       where the parties have each won and lost on different claims, it may be inappropriate to award
       attorney fees to either party. Timan v. Ourada, 2012 IL App (2d) 100834, ¶ 29, 972 N.E.2d
       744. In the present case, the trial court entered judgment in favor of plaintiff on count III and
       defendants on counts I and II. For count III, breach of contract, the court found defendants
       breached the repair addendum “in that they did not repair, or cause to be repaired by a qualified
       and reputable contractor, all wood rot on the home and garage.” The court awarded plaintiff
       $2500 and court costs for the breach. Based on the facts of the breach and since plaintiff was
       unsuccessful on two of her three claims, we cannot say it was unreasonable for the court to
       deny her request for attorney fees. Therefore, the trial court did not abuse its discretion when it
       denied plaintiff’s request for attorney fees.

¶ 24                               B. Attorney Fees Pursuant to the Act
¶ 25       In their cross-appeal, defendants argue that the trial court erred when it denied their request
       for attorney fees as the prevailing party pursuant to the Act (765 ILCS 77/55 (West 2010)). In
       response, plaintiff argues that defendants failed to prove plaintiff engaged in knowing
       misconduct to prevail under the Act for an award of attorney fees. The award of attorney fees
       under the Act is discretionary; therefore, we will not reverse a court’s decision absent an abuse
       of discretion. Miller v. Bizzell, 311 Ill. App. 3d 971, 976, 726 N.E.2d 175, 179 (2000).

                                                    -6-
¶ 26        Under section 25(b) of the Act, “[t]he seller shall disclose material defects of which the
       seller has actual knowledge.” 765 ILCS 77/25(b) (West 2010). However, a seller is not
       required “to make any specific investigation or inquiry in an effort to complete the disclosure
       statement.” 765 ILCS 77/25(c) (West 2010). In the present case, count I of plaintiff’s
       complaint alleged defendants made false representations on the residential real property
       disclosure form because they stated they were unaware of any leaks or material defects in the
       roof. The trial court found plaintiff failed to show defendants had actual knowledge of a
       material defect in the roof at the time the disclosure statement was completed. Therefore, the
       court entered judgment for defendants on count I.
¶ 27        Section 55 of the Act provides for liability and damages and states, in relevant part, as
       follows:
                “A person who knowingly violates or fails to perform any duty prescribed by any
                provision of this Act or who discloses any information on the Residential Real Property
                Disclosure Report that he knows to be false 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 2010).
¶ 28        Defendants argue that the trial court abused its discretion when it denied their request for
       attorney fees as the prevailing party because plaintiff engaged in knowing misconduct. More
       specifically, defendants argue that plaintiff engaged in knowing misconduct when she had
       actual knowledge of the roof’s condition and decided to sue defendants anyway, causing
       unnecessary delay and/or a needless increase in the cost of litigation. Plaintiff argues that
       because she prevailed on count III, her actions were not meritless and defendants have failed to
       establish she engaged in knowing misconduct.
¶ 29        The parties do not dispute that defendants were the prevailing party on count I but instead
       argue whether plaintiff’s actions demonstrated she engaged in knowing misconduct. When a
       defendant seeks attorney fees under the Act, he is required to show knowing misconduct on the
       part of the plaintiff. Miller, 311 Ill. App. 3d at 976, 726 N.E.2d at 179. Courts look to Illinois
       Supreme Court Rule 137 (eff. Feb. 1, 1994) for a guideline as to when attorney fees should be
       awarded to a defendant under the Act. Miller, 311 Ill. App. 3d at 975, 726 N.E.2d at 178;
       Krautsack v. Anderson, 223 Ill. 2d 541, 560, 861 N.E.2d 633, 647 (2006). “Under Rule 137,
       sanctions may be granted (1) if either party files a pleading or motion that to the best of the
       attorney’s ‘knowledge, information, and belief’ is not ‘well grounded in fact’ and is not
       ‘warranted by existing law or a good-faith argument for the extension, modification, or
       reversal of existing law,’ or (2) if the pleading or motion is interposed to ‘harass or cause
       unnecessary delay or needless increase in the cost of litigation.’ ” (Emphasis in original.)
       Miller, 311 Ill. App. 3d at 976, 726 N.E.2d at 179 (quoting Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)).
       Factors a trial court might consider include “(1) the degree of bad faith by the opposing party,
       (2) whether an award of fees would deter others from acting under similar circumstances, and
       (3) the relative merits of the parties’ positions.” Miller, 311 Ill. App. 3d at 976-77, 726 N.E.2d
       at 179.
¶ 30        Defendants argue that the evidence presented at trial showed plaintiff’s misconduct and, as
       to count I, plaintiff caused unnecessary delay and/or a needless increase in the cost of
       litigation. Defendants rely on the following to support this proposition: (1) plaintiff testified
       she was present when the inspection took place and noticed the watermark, (2) defendants
       never received the inspection report, (3) plaintiff assumed the roof was fixed despite the visible

                                                    -7-
       watermark during the final walk-through, (4) plaintiff did not follow up with the repairs or seek
       advice from a qualified roofer, (5) plaintiff did not repair the roof until five months after she
       discovered it was still leaking, and (6) plaintiff could have learned the condition of the roof by
       exercising ordinary prudence. In response, plaintiff asserts that defendants failed to establish
       knowing misconduct and her claims were not meritless, as she prevailed on count III.
¶ 31       We find the record devoid of any indication that plaintiff engaged in knowing misconduct.
       Even though plaintiff noticed the watermark at the time of the inspection and at the final
       walk-through, it is not indicative of whether defendants had actual knowledge that there was a
       leak and, therefore, failed to properly disclose items on the disclosure form. To make this
       determination, it was necessary for the parties to engage in discovery. If the watermark was
       visible, plaintiff would have a reasonable belief that defendants knew there was a roof leak and
       failed to disclose it. It does not matter that plaintiff was put on actual notice of the watermark
       by her own observation, as the only issue for count I was whether defendants were aware of the
       leak when they completed the disclosure form. As a result, the trial court did not abuse its
       discretion when it denied defendants’ request for attorney fees under the Act.

¶ 32                                     III. CONCLUSION
¶ 33      For the foregoing reasons, we affirm the trial court’s judgment.

¶ 34      Affirmed.




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