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                               Appellate Court                           Date: 2018.06.26
                                                                         10:22:06 -05'00'




                  Blevins v. Marcheschi, 2018 IL App (2d) 170340



Appellate Court    BRADLEY E. BLEVINS and ANNE KINSELLA BLEVINS,
Caption            Plaintiffs-Appellants, v. JOHN MARCHESCHI, LAURA
                   MARCHESCHI, and GREAT HOUSE REAL ESTATE, LLC,
                   Defendants-Appellees.



District & No.     Second District
                   Docket No. 2-17-0340



Filed              April 24, 2018



Decision Under     Appeal from the Circuit Court of Du Page County, No. 15-L-137; the
Review             Hon. Brian R. McKillip, Judge, presiding.



Judgment           Reversed and remanded with directions.


Counsel on         Reese J. Peck and Kaitlyn Anne Wild, of Rathje & Woodward LLC, of
Appeal             Wheaton, for appellants.

                   John D. Dalton and Joseph R. Fortunato Jr., of Kaufman Dolowich &
                   Voluck, LLP, of Chicago, for appellees.



Panel              JUSTICE BURKE delivered the judgment of the court, with opinion.
                   Justices Zenoff and Schostok concurred in the judgment and opinion.
                                              OPINION

¶1       Plaintiffs, Bradley E. Blevins and Anne Kinsella Blevins, sued defendants, John
     Marcheschi, Laura Marcheschi, and Great House Real Estate, LLC, for breach of contract,
     consumer fraud, fraudulent misrepresentation, and negligent misrepresentation based on
     defendants’ failure to disclose water damage in the house they sold to plaintiffs. The trial court
     granted defendants’ motion to dismiss plaintiffs’ complaint, without prejudice, pursuant to
     sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619
     (West 2014)). The court ruled that, because plaintiffs’ complaint was based on the Residential
     Real Property Disclosure Report (Disclosure Report) completed by the Marcheschis, it was
     untimely under the one-year statute of limitations set forth in the Residential Real Property
     Disclosure Act (Disclosure Act) (765 ILCS 77/60 (West 2014)). Then, striking the allegations
     regarding the Disclosure Report from the complaint, the court found the complaint insufficient
     to state a cause of action. Plaintiffs filed an amended complaint and a second amended
     complaint, preserving their rights on appeal by incorporating the claims in the original
     complaint. The court dismissed those complaints without prejudice. Thereafter, the court
     granted plaintiffs’ request to dismiss the second amended complaint with prejudice.
¶2       On appeal, plaintiffs argue that the trial court erred in applying the Disclosure Act’s
     one-year limitations period on the basis of the Disclosure Report, dismissing the complaint
     pursuant to section 2-619, and striking the allegations regarding the Disclosure Report. They
     also argue that the court erred in finding the complaint factually insufficient pursuant to section
     2-615. We reverse and remand the cause with directions to reinstate the original complaint.

¶3                                             I. FACTS
¶4       Plaintiffs’ pleadings alleged the following facts. On August 21, 2012, plaintiffs purchased
     from defendants a single-family home in Glen Ellyn, Illinois. The contract specifically
     referenced the residential real estate disclosures required by statute, including the Disclosure
     Report required by the Disclosure Act (id. §§ 20, 35). In the Disclosure Report, defendants
     represented that they were not “aware of material defects in the walls or floors.”
¶5       On or about October 22, 2012, a few months after plaintiffs moved in, a painting contractor
     hired to paint the kitchen noticed an area of damaged gypsum wallboard on the western wall.
     He advised plaintiffs that the damage appeared to have been caused by water. He repaired it,
     but around January 2013, a mushroom-like material began to protrude from the damaged area.
     Plaintiffs retained KJN Renovations (KJN) to remediate the damage. Plaintiffs also retained
     GZA GeoEnvironmental, Inc. (GZA), to investigate during the remediation process.
¶6       On August 28, 2013, materials were removed from the damaged wall and significant
     damage was located inside the wall. The damage included water-damaged trim work and
     gypsum wallboard, additional fungal growth, and nail corrosion, and the exterior facade of the
     wall was removed. Under the exterior facade, KJN and GZA found wet wood and water
     damage to exterior sheathing comprised of oriented strand board and to the wooden supports of
     the window bank. GZA issued a report (GZA Report) concluding that the conditions found
     under the wallboard were from water infiltration and that the infiltration and damage began
     before plaintiffs purchased the property. Further, considering the “chronic damage” and “the
     significance of the fungal contamination,” GZA concluded that it was “inconceivable that
     [defendants] were not aware of the water damage, fungal growth, or building materials

                                                  -2-
       impacts” within the wall. Plaintiffs incurred $45,640 in costs for the remediation of the
       damage.
¶7         On February 11, 2015, plaintiffs filed their original complaint, alleging breach of contract,
       consumer fraud, fraudulent misrepresentation, and negligent misrepresentation. Defendants
       filed a motion to dismiss pursuant to sections 2-619 and 2-615. They argued that, because the
       allegations were all based on the Marcheschis’ representation in the Disclosure Report that
       they were unaware of any material defects in the walls, the Disclosure Act’s one-year
       limitations period applied and the complaint was therefore barred. Id. § 60. Defendants also
       maintained that “[t]here is not one fact in the complaint that gives any real basis for saying
       [defendants] knew of water infiltration or water damage” and that plaintiffs attempted to fill
       this factual void with an opinion from a contractor.
¶8         As for defendants’ argument regarding section 2-619, the court applied the Disclosure
       Act’s one-year limitations period because it “believe[d] that the gist of each and every count in
       the complaint [was] based upon the [Disclosure Act].” The court stated that, “when you use
       [the Disclosure Report] as the underlying basis and you state that that was a fact that was
       misstated or an omission, then I think [you are] invoking the [Disclosure Act] and the actual
       remedies given in that [Act].”
¶9         In addressing defendants’ argument under section 2-615, the court stated:
               “[B]ecause if I take those allegations out of the complaint, strike them and then read the
               complaint and each and every count again and striking what I’m talking about is the
               actual contract any allusion to or statement regarding the facts contained in the Real
               Estate Residential Disclosure Act, and you strike those out of the complaint, you will
               see that the complaint is insufficient to state a cause of action as far as the standard
               needed as to facts regarding a third situation, which would be—the third situation
               would be a situation where statements are made by the defendants to the plaintiff, some
               type of oral or written statement outside of the Real Estate Residential Disclosure
               Report.”
¶ 10       The court granted defendants’ motion to dismiss and dismissed the complaint without
       prejudice, granting plaintiffs leave to file an amended complaint, including claims “with
       regard to other situations or that they can place in the complaint that do not include statements
       contained in the Residential Real Property Disclosure Report.”
¶ 11       Plaintiffs filed an amended complaint, reiterating their argument regarding the
       inapplicability of the Disclosure Act and explaining that the trial court had made it “impossible
       for Plaintiffs to file an amended complaint that fully complies with the Court’s order.”
       Preserving their rights on appeal, plaintiffs stated in the amended complaint that they “are not
       replacing their original Complaint and fully incorporate the claims stated therein as though
       fully restated and realleged in this Amended Complaint.” Plaintiffs also attached a copy of the
       original complaint as an exhibit to the amended complaint.
¶ 12       The amended complaint alleged the same four causes of action as in the original
       complaint―breach of contract, consumer fraud, fraudulent misrepresentation, and negligent
       misrepresentation―but made no allegations regarding the Disclosure Report. However,
       plaintiffs attached a copy of the GZA Report as an exhibit to support the allegations regarding
       the cause and duration of the damage to the kitchen wall. Defendants filed a motion to dismiss



                                                   -3-
       and a motion for leave to file motions for sanctions and attorney fees.1 Defendants restated and
       incorporated by reference their motion to dismiss the original complaint and their response to
       plaintiffs’ motion to reconsider.
¶ 13       Following arguments, the trial court dismissed the amended complaint without prejudice.
       The court found no support for the breach-of-contract claim because the contract imposed no
       obligation on defendants to disclose the water damage to the property. The court also found
       that the allegations regarding the condition of the property and the GZA Report did not support
       the fraud or misrepresentation claims. It struck all four causes of action under section 2-603 of
       the Code (735 ILCS 5/2-603 (West 2014)) and recommended that plaintiffs allege more
       “ultimate facts” in their next amended complaint.
¶ 14       Plaintiffs filed a second amended complaint, alleging the same four causes of action. The
       complaint contained no allegations regarding the Disclosure Report, but plaintiffs again fully
       incorporated the claims of the first two complaints to preserve those claims for purposes of
       appeal. Defendants moved to dismiss, arguing that the claims suffered from the same pleading
       deficiencies that the previous complaints had.
¶ 15       The trial court granted the motion to dismiss, without prejudice. Plaintiffs, however,
       requested that the second amended complaint be dismissed with prejudice, and the court
       granted their request. Plaintiffs timely appeal.

¶ 16                                           II. ANALYSIS
¶ 17                                      A. Section 2-619 Motion
¶ 18       Plaintiffs first contend that the trial court erred in dismissing the complaint as untimely
       pursuant to section 2-619. A section 2-619 motion to dismiss admits the legal sufficiency of the
       complaint but asserts affirmative matter to avoid or defeat the claim. Lamar Whiteco Outdoor
       Corp. v. City of West Chicago, 355 Ill. App. 3d 352, 359 (2005). “When ruling on such
       motions, a court must accept as true all well-pleaded facts, as well as any reasonable inferences
       that may arise from them [citation], but a court cannot accept as true mere conclusions
       unsupported by specific facts.” Patrick Engineering, Inc. v. City of Naperville, 2012 IL
       113148, ¶ 31. Our review of a dismissal under section 2-619 is de novo. Id.
¶ 19       Plaintiffs argue that the trial court erred in invoking the Disclosure Act’s one-year
       limitations period to bar the original complaint because the claims were based on the
       Disclosure Report and that it then erred in striking the allegations related to the Disclosure
       Report. We agree.
¶ 20       While section 60 provides that actions brought pursuant to the Disclosure Act may not be
       commenced later than one year from the earliest of the date of possession, the date of
       occupancy, or the date of recording (765 ILCS 77/60 (West 2014)), section 45 provides that the
       Disclosure Act “is not intended to limit or modify any obligation to disclose created by any
       other statute or that may exist in common law in order to avoid fraud, misrepresentation, or
       deceit in the transaction.” Id. § 45.
¶ 21       In Rolando v. Pence, 331 Ill. App. 3d 40 (2002), we held that the Disclosure Act provides,
       “without exception, that it does not limit or modify any duty to disclose information in order to

          1
           On March 22, 2016, defendants were granted leave to file a motion for sanctions. Defendants
       never filed such a motion.

                                                   -4-
       avoid liability for fraud.” Id. at 45. Accordingly, we found that section 45 was unambiguous,
       and we allowed the buyers to seek recovery for fraudulent misrepresentation based solely on a
       disclosure made pursuant to the Disclosure Act. Id. at 46. We further noted that, “[i]f we were
       to hold that a statement in a Disclosure Report was insufficient to sustain a cause of action for
       fraud, we would render section 45 inoperative.” Id. at 45-46.
¶ 22       In King v. Ashbrook, 313 Ill. App. 3d 1040 (2000), an interlineation at the addendum
       section of a contract to purchase a home indicated that an attached Disclosure Report stated
       that the defendant was aware of basement and roof defects that were to be fixed before the
       plaintiffs purchased the property. More than one year after the parties entered into the contract,
       the plaintiffs sued the defendant for breach of contract upon discovering that the disclosed
       defects were not fixed prior to closing as agreed in the contract. Id. at 1041-42. On appeal, the
       defendant argued that the trial court erred in finding that the Disclosure Act’s limitations
       period was not applicable to the breach-of-contract action. The appellate court disagreed. “The
       fact the disclosure report became part of the contract did not eliminate plaintiff’s right to sue
       for a breach of contract or change the statute of limitations for breach of contract. The
       Disclosure Act does not limit or change a purchaser’s common-law remedies.” Id. at 1044.
¶ 23       Here, none of plaintiffs’ claims were brought under the Disclosure Act. As in Rolando and
       King, the fact that the claims arose from the Marcheschis’ representation in the Disclosure
       Report that they were unaware of material defects in the walls did not eliminate plaintiffs’ right
       to sue for breach of contract, consumer fraud, fraudulent misrepresentation, or negligent
       misrepresentation. Taking plaintiffs’ claims as true, as we must, the Marcheschis’
       misrepresentation is actionable under the common-law theories in plaintiffs’ original
       complaint, despite the fact that it was “manifested in the false Disclosure Report.” As plaintiffs
       maintain, “[h]ad the Marcheschis’ misrepresentations been spoken rather than set out in the
       Disclosure Report, there would be no dispute as to what statute of limitation applies.” The
       Disclosure Act’s one-year limitations period does not govern plaintiff’s common-law actions.
       See 765 ILCS 77/45 (West 2014).
¶ 24       In sum, the Disclosure Act does not limit plaintiffs’ ability to bring claims based on the
       common law or other statutes, and plaintiffs can rely on the disclosures made pursuant to the
       Disclosure Act to seek recovery on such theories. We therefore find that the trial court erred
       not only by invoking the Disclosure Act’s one-year limitations period because the claims were
       based on the Disclosure Report but also by striking any reference to those disclosures from
       plaintiffs’ complaint. Defendants do not dispute plaintiffs’ argument that, except for the
       application of section 60 of the Disclosure Act, plaintiff’s causes of action were all timely.
       Accordingly, we find that the trial court erred by granting the section 2-619 motion to dismiss.

¶ 25                                     B. Section 2-615 Motion
¶ 26       Plaintiffs next contend that the trial court erred by granting defendants’ motion to dismiss
       the complaint pursuant to section 2-615. A section 2-615 motion to dismiss tests the legal
       sufficiency of the complaint, based on defects apparent on its face. Doe-3 v. McLean County
       Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 15. A section 2-615 motion presents
       the question of whether the facts alleged in the complaint, viewed in the light most favorable to
       the plaintiff and with all well-pleaded facts and all reasonable inferences that may be drawn
       from those facts taken as true, are sufficient to state a cause of action upon which relief may be
       granted. Id. ¶ 16. A section 2-615 dismissal is reviewed de novo. Id. ¶ 15.

                                                   -5-
¶ 27       Defendants first counter that the allegations concerning the disclosures under the
       Disclosure Act must be removed due to the Act’s one-year limitations period. We held above
       that this argument fails.
¶ 28       Defendants next argue that plaintiffs alleged only conclusions and opinions, unsupported
       by facts, that a false statement was knowingly made and relied upon. In particular, defendants
       claim that there was not one actual fact alleged in the complaint to show that defendants knew
       of water infiltration or water damage.
¶ 29       Illinois is a fact-pleading state, which means that, although pleadings are to be liberally
       construed and formal or technical allegations are not necessary, a complaint must,
       nevertheless, contain facts to state a cause of action. People ex rel. Fahner v. Carriage Way
       West, Inc., 88 Ill. 2d 300, 308 (1981). A complaint is deficient when it fails to allege facts
       necessary for the plaintiff to recover. But a pleader is not required to set out his evidence. Only
       the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove
       such ultimate facts. Id. “A statement of a defendant’s knowledge is an allegation of ultimate
       fact and not a conclusion.” Ward v. Community Unit School District No. 220, 243 Ill. App. 3d
       968, 974 (1993). The plaintiff need not plead the evidentiary facts that he will use to prove the
       defendant’s knowledge. Board of Education of the Kankakee School District No. 111 v.
       Kankakee Federation of Teachers Local No. 886, 46 Ill. 2d 439, 446-47 (1970).
¶ 30       The original complaint in this case alleged that defendants knew that there was water
       infiltration and water damage in or about the damaged wallboard.2 This satisfies the pleading
       requirement that plaintiffs need allege only ultimate facts, not evidentiary facts. Id.; Borcia v.
       Hatyina, 2015 IL App (2d) 140559, ¶ 21. (We note that the second amended complaint
       included the same allegations.) Because plaintiffs pled the necessary ultimate facts to bring
       their claims within the causes of action alleged, the original complaint was sufficient. We hold
       that the trial court erred in dismissing the original complaint pursuant to section 2-615.

¶ 31                                      III. CONCLUSION
¶ 32      For the preceding reasons, the judgment of the circuit court of Du Page County is reversed
       and the cause is remanded with directions to reinstate the original complaint.

¶ 33       Reversed and remanded with directions.




           2
            This was supported by the factual allegation that, based on the condition of the wallboard, GZA
       determined that it is inconceivable that the Marcheschis were not aware of the water damage.

                                                    -6-
