                                          2014 IL App (3d) 130406

                               Opinion filed October 29, 2014
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                  A.D., 2014

     BRIAN BOUTON,                          )     Appeal from the Circuit Court
                                            )     of the12 Judicial Circuit,
           Plaintiff-Appellant,             )     Will County, Illinois,
                                            )
           v.                               )
                                            )     Appeal No. 3-13-0406
     ERIN BAILIE and ROBERT BAILIE,         )     Circuit No. 10-SC-3032
                                            )
           Defendants-Appellees.            )
                                            )     The Honorable
                                            )     Mark Thomas Carney
                                            )     Judge, presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Presiding Justice Lytton and Justice Holdridge concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                  OPINION

¶1          Brian Bouton appeals from the trial court’s dismissal of his complaint seeking to hold

     Erin and Robert Bailie liable for an alleged violation of the Residential Real Property Disclosure

     Act (the Act) (765 ILCS 77/1 et seq. (West 2010)). The Bailies argued that the Act was

     inapplicable to them because the type of transaction resulting in the sale of the property is

     exempted by the Act. We reverse the order of the trial court and remand the matter for further

     proceedings consistent with this decision.

¶2                                                 FACTS
¶3           The plaintiff Brian Bouton purchased the residential real property located at 25517

     Prairiewood Lane, Shorewood, Illinois (the property), from Prudential Relocation, Inc.

     (Prudential), which had acquired title, by agreement, from defendants Robert and Erin Bailie (the

     Bailies). As the titleholder and pursuant to the terms of the statute, Prudential had the Bailies

     execute a disclosure form, which Prudential provided to Bouton prior to his purchase of the

     property. After completion of the purchase, however, Bouton filed a small claims complaint

     against the Bailies under the Act, alleging misrepresentations on the form. In his complaint,

     Bouton alleged that the Bailies falsely represented that they were not aware of any flooding or

     recurring leakage problems in the crawl space or basement and that they knew of no defects

     associated with such water problems. Bouton claimed to have suffered damages as a result of

     the undisclosed defects.

¶4           A default judgment was obtained against the Bailies, and Bouton initiated wage

     garnishment proceedings. The Bailies had the default judgment vacated and filed a motion to

     dismiss Bouton’s complaint because the Act was applicable to a transfer by Prudential and there

     was no privity of contract between them and Prudential. The motion was granted and Bouton’s

     claim under the Act was dismissed. A timely notice of appeal was filed.

¶5                                                ANALYSIS

¶6           Bouton argues that the trial court erred in granting the Bailies’ motion to dismiss because

     its reading of the Act as not including his type of transfer and thus foreclosing his action against

     the real sellers pursuant to the Act renders his right to relief effectively void. He also asserts that

     the intent of the legislature is thwarted if the Act is not read broadly to include liability of the

     seller who executes the required form that the hired entity provides to the prospective buyer.




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¶7            When we review the trial court’s ruling on a motion to dismiss, the standard of review is

       de novo. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009); Lydon v.

       Eagle Food Centers, Inc., 297 Ill. App. 3d 90, 92 (1998). Further, issues of statutory

       construction are questions of law, which are reviewed de novo. Kalkman v. Nedved, 2013 IL

       App (3d) 120800, ¶ 11.

¶8            The court interprets statutes as drafted by the legislature. If the language of the statute is

       clear and unambiguous, it will be given its plain and ordinary meaning without resorting to

       further aids of statutory construction. People v. Santiago, 236 Ill. 2d 417, 428 (2010); Kalkman

       v. Nedved, 2013 IL App (3d) 120800, ¶ 12. A court may not depart from the plain statutory

       language by reading into it exceptions, limitations, or conditions not expressed by the legislature.

       Id. Yet, “[o]ne of the fundamental principles of statutory construction is viewing all the

       provisions of an enactment as a whole.” Santiago, 236 Ill. 2d at 428. Words and phrases in a

       statute should be “interpreted in light of other relevant provisions of the statute.” Id.

¶9            The purpose of the Act is to use the disclosure form to provide prospective home buyers

       with information about material defects in the home that are known to the seller. Muir v.

       Merano, 378 Ill. App. 3d 1103, 1103 (2008); 765 ILCS 77/25(b), (c) (West 2010). The Act also

       includes relief for purchasers who are injured by misinformation the seller provides on the

       disclosure form. 765 ILCS 77/55 (West 2010).

¶ 10          Section 55 of the Act states in pertinent part:

                      "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


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                         damages and court costs, and the court may award reasonable

                         attorney fees incurred by the prevailing party.” 765 ILCS 77/55

                         (West 2010).

¶ 11           Bouton looks to this section for relief regarding the Bailies’ alleged misrepresentations on

       the form. While the allegations in his complaint would certainly invoke the relief found in

       section 55, section 15 appears to take it away. Specifically, section 15 states:

                         "The provisions of this Act do not apply to the following:

                                                          ***

                                (7) Transfers from an entity that has taken title to

                         residential real property from a seller for the purpose of assisting in

                         the relocation of the seller, so long as the entity makes available to

                         all prospective buyers a copy of the disclosure form furnished to

                         the entity by the seller." (Emphases added.) 765 ILCS 77/15(7)

                         (West 2010).

¶ 12           In setting out the exclusion, section 15(7) appears to do three things: (1) it draws a clear

       distinction between the "seller" and the entity holding title, (2) it persists in referring to the

       person who conveyed title to the entity as the "seller," and (3) it conditions the entity’s own

       insulation from the disclosure requirements on the entity making the disclosure form furnished

       by "the seller" available to the buyer.

¶ 13           This apparent intent to protect the entity from the obligation to disclose information that

       it cannot possess is reinforced by the definition of "seller" set out in section 5. It provides in

       pertinent part:




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                           " 'Seller' means every person or entity *** who has an interest

                       (legal or equitable) in residential real property. However, 'seller'

                       shall not include any person who has both (i) never occupied the

                       residential real property and (ii) never had the management

                       responsibility for the residential real property nor delegated such

                       responsibility for the residential real property to another person or

                       entity." 765 ILCS 77/5 (West 2010).

¶ 14           Read together, these sections establish that the intent of section 15(7) is to preclude

       liability for an entity that never resided in or had management responsibilities for the home and

       that has taken title solely to assist with the seller's relocation by immunizing its transfer of title.

¶ 15           There is no evidence in the statute of any intent to exempt those persons who have

       resided in the home and who are in a position to provide prospective buyers with the actual

       notice of known defects that the statute requires. As noted above, the condition of the entity's

       immunity from the requirements of the Act is its securing and passing on a disclosure form from

       the sellers. 765 ILCS 77/15(7) (West 2010). We also find it significant that, as pointed out by

       Bouton, section 55 imposes liability on "[a] person" who fails to comply with the Act’s

       requirements, not merely on "a seller."

¶ 16           Finally, we note that the statute expressly preserves other remedies for a buyer who has

       been injured by a failure of notice of defects, but who may not have a remedy under its

       provisions. Indeed, this appeal is being heard pursuant to a Illinois Supreme Court Rule 304(a)

       (eff. Feb. 26, 2010) finding because the parties have agreed that, in the event this court affirms

       the trial court’s order, Bouton can amend his complaint to seek such remedies. We do not find

       that the existence of such alternate remedies in the statute undermines our analysis of the


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       statutory language or our determination that the statute provides protection for Prudential while

       allowing Bouton to seek a remedy from the Bailies if he can prove his injuries. Such remedies

       may be appropriate in other cases. See, e.g., King v. Ashbrook, 313 Ill. App. 3d 1040, 1044

       (2000).

¶ 17                                               CONCLUSION

¶ 18             For the foregoing reasons, the order of the trial court is reversed and this matter is

       remanded for further proceedings consistent with this decision.

¶ 19             Reversed and remanded.




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