NOTICE 2014 IL App (5th) 130163 Decision filed 06/27/14. The text of this decision may be NO. 5-13-0163 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
ROBERT BUTLER and ELIZABETH BUTLER, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees and Cross-Appellants, ) Madison County. ) v. ) No. 09-SC-5187 ) MARK HARRIS, ) ) Defendant-Appellant and Cross-Appellee ) Honorable ) Thomas W. Chapman, (Lisa Harris, n/k/a Lisa Bohnenstiehl, Defendant). ) Judge, presiding. ________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Cates concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Robert and Elizabeth Butler, filed a two-count complaint against
defendants, Mark Harris and Lisa Harris (now Lisa Bohnenstiehl due to defendants'
divorce), to recover between $3,200 and $4,000 in septic system repairs and over $32,000
in attorney fees. Count I alleged common law fraud, and count II alleged a violation of
the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/1 et seq.
(West 2008). After a bench trial in the circuit court of Madison County, the trial court
entered judgment in favor of defendants on count I and a judgment in favor of plaintiffs
1 on count II in the amount of $12,000. Mark Harris filed a timely notice of appeal, raising
the following two issues: (1) whether the trial court erred in finding that the standard of
proof in a case based upon the Disclosure Act is preponderance of the evidence, and (2)
whether the trial court erred in finding defendants violated the Disclosure Act. Plaintiffs
filed a cross-appeal in which they raise the following issues: (1) whether the trial court
erred in refusing to find defendants committed fraud, and (2) whether the trial court erred
in failing to award them all of their damages and attorney fees. We affirm in part and
reverse in part on the basis that plaintiffs failed to meet their burden of proof on either
count and remand with directions that each party pay his or her own attorney fees. We
note that Lisa Bohnenstiehl has not participated in this appeal.
¶2 BACKGROUND
¶3 On October 30, 2008, plaintiffs purchased a house located at 20 Creekwoods Trail
in Highland from defendants. Approximately six months after moving into the home,
plaintiffs received notice from Madison County that the septic system was not in
compliance with its codes and ordinances and that the county had received complaints
regarding drainage on plaintiffs' property. As a result, on October 30, 2009, plaintiffs
filed a two-count small claims complaint against defendants in which they alleged that
defendants fraudulently misrepresented the condition of the property with the intent to
induce plaintiffs to complete the purchase and failed to disclose the septic system defects
and prior drainage problems on the residential real property disclosure report form
(disclosure report form) required by the Disclosure Act (765 ILCS 77/35 (West 2008)).
2 Plaintiffs alleged that as of the date of filing the complaint their damages exceeded
$5,000, but were less than $10,000.
¶4 On May 27, 2010, Lisa Bohnenstiehl filed a pro se motion to continue the case,
which was set for June 2, 2010. On June 2, 2010, the only party to appear was defendant
Mark Harris. The trial court entered a judgment in favor of defendants and ordered
plaintiffs to pay costs. Plaintiffs filed a motion to vacate the default judgment in which
they explained that they did not appear after having been advised that Bohnenstiehl was
granted a continuance because she was having surgery on June 2, 2010. The trial court
denied the motion to vacate, specifically stating that the judgment entered on June 2,
2010, was not a "default judgment" because the case was set for trial and no continuance
was granted. Plaintiffs appealed to this court. In an unpublished order, we reversed and
remanded with directions that defendant Bohnenstiehl's motion to continue be set for
hearing and noted that even if the motion to continue were to be denied, plaintiffs must
be given the opportunity to have the matter heard on the merits. Butler v. Harris, No.
5-10-0463 (2011) (unpublished order pursuant to Supreme Court Rule 23).
¶5 While the initial appeal was pending, Bohnenstiehl filed for bankruptcy and a stay
was issued. Plaintiffs obtained a relief from stay. On July 18, 2012, plaintiffs filed their
first amended complaint. Plaintiffs again alleged that when defendants sold their home to
plaintiffs, defendants knew of defects with the home's septic system, but did not disclose
those defects and reported that they had no problems with the septic system. The first
amended complaint raised the same counts of common law fraud and a violation of the
3 Disclosure Act, but due to attorney fees, plaintiffs now alleged their damages were "more
than $10,000 but less than $50,000."
¶6 A bench trial was conducted on January 29 and 30, 2013, during which the
following evidence was adduced. Plaintiffs and defendants entered into negotiations for
the purchase of property. Plaintiffs received a disclosure report form before they made
an offer on the property. The form was signed by both defendants, but at different times
due to the fact they were separated at the time. On the form, defendants checked "No" to
the question, "I am aware of material defects in the septic, sanitary, sewer, or other
disposal system." However, defendants made a notation on the form in which they
specifically stated: "In the past, the ejector pump has backed up twice. Replaced GFI[−]
has not happened since."
¶7 Defendants' original asking price was $242,000. Elizabeth Butler testified that she
and her husband were not willing to pay that much, so they originally ruled out the home.
However, a few months later she noticed the price was lowered to $185,000, so they
called the realtor and went to look at the home. Before making an offer, Robert Butler
prepared a sheet outlining problems with the property and the estimated costs of repairs.
This sheet was submitted along with plaintiffs' offer to purchase the home and was
entered into evidence as exhibit 11 by defendants. The sheet that outlines the home's
problems specifically lists flooring, roof, furnace, central air, and septic system as items
which need to be repaired. The sheet also contains an estimated repair value on all of
these items, except the septic system repair. The sheet specifically states that the costs of
such repairs are "unknown." 4 ¶8 On August 21, 2008, plaintiffs offered to purchase the home for $162,375. Along
with the offer, they submitted the sheet on which Robert Butler set forth problems with
the home in the hope that they could justify their low offer. Defendants accepted the
offer, and closing was scheduled for September 21, 2008. An addendum was later added
as more time was needed to complete the sale because the sale of the property was a
"short sale" and the bank needed more time to decide whether to accept the offer.
Closing was extended to November 7, 2008. An addendum to the original contract
specifically provided, "Property is being sold in an 'as is' condition."
¶9 Elizabeth Butler testified that prior to closing, plaintiffs hired both a home
inspector to do an inspection of the property and Frank's Septic Company to do a more
thorough inspection of the septic system. Frank's report specifically states:
"Pump out [and] inspect tank- precast aeration tank- Jet tank aprox 1500 Gal-
Tank looks ok- Inlet line open water level good- motor working media looks
good- Needs rock in back filter vaults by chlorinator- needs chlorine in tube-
Discharge open- Discharge area may need new rock at some point."
Elizabeth Butler testified she first noticed problems with the septic system "around that
January/February mark as things start to kind of thaw outside [sic]." The actual closing
on the home took place on October 30, 2008.
¶ 10 According to Elizabeth Butler, water would come into the basement when she ran
the dishwasher or did too many loads of laundry. She said the problems were worse
when it rained heavily.
5 ¶ 11 Robert Butler testified that he first noticed water problems on the property in the
spring of 2009 when there were heavy rains. Eventually, he selected Phillip McDowell
of D-N-P Plumbing to correct the septic problem at a cost of $3,275. He testified that he
had several conversations with his neighbors, the Toennieses, about water problems. On
one occasion, he came home to find that Deborah Toennies placed clay mud on the
common road leading to the neighborhood tennis courts and covered it with straw.
Robert Butler removed the clay and straw because he said it was aggravating drainage
problems on his property. In removing these layers, he found a drainage pipe on his
property that was covered with dirt and impacted with mud. Robert Butler confirmed
that he put river rock in this area in May 2009. Robert Butler denied adding to the
aeration pipe on his property.
¶ 12 Andrew Butler, plaintiffs' son, age 28, testified that he lived in the basement of the
home in question and had at least 10 conversations with the neighbor, Deborah Toennies,
about drainage and/or septic problems with the house. He said within months of moving
into the house, he and his dad stopped water intrusion by making necessary repairs. They
also replaced rotted wood on the door frame in the basement, dug out the dirt and clay
two feet down by the door, and filled it with rock. They also extended the gutter line to
the edge of the property in order to alleviate ground saturation caused by runoff and the
septic system. Deborah told him that through the years, defendants tried to fix the
standing water issue between the properties. He said Deborah complained numerous
times about the septic smell.
6 ¶ 13 Mark Harris testified that he bought the home in 2002 and lived there until July
2007, when he and his wife separated. Defendants were not the original owners of the
property. He testified that he did not have any trouble with water in the basement or with
the septic system while he lived there, except for the time the ejector pump failed, which
he disclosed prior to closing. He said his divorce was contentious and during divorce
proceedings he was ordered to pay the mortgage on the house to his wife, but his wife
failed to pay the mortgage with that money, so the home went into foreclosure. He
testified that after he moved out of the home, his ex-wife never complained to him about
any issues with the septic system. He said he never had any complaints from any of his
neighbors about a water problem similar to the complaints alleged in the lawsuit filed by
plaintiffs. He testified Jet Precast performed routine maintenance on the septic system
every two years while he lived there, with the last maintenance done in 2006. Jet Precast
never indicated there was any type of problem with the system.
¶ 14 Lisa Bohnenstiehl testified that there were no problems with the septic system
while she lived in the house, except for the ejector pump failure. She testified she did not
have any conversations with her neighbors, the Toennieses, about the need to fix any kind
of water flow problem. When she lived in the property, she did not experience any of the
problems with the dishwasher and the washing machine or water in the basement as
experienced by plaintiffs.
¶ 15 Jeffrey Hurst, an inspector for Madison County Planning and Development,
testified that he went out to inspect the property on May 5, 2009, after Deborah Toennies
called to complain about effluent (water that comes out of the system after it is treated) 7 running onto her property from plaintiffs' property. This was after plaintiffs did work on
the common road and placed river rock on the road. Hurst sent defendants a letter on
May 7, 2009, outlining the problems he discovered during his inspection, including the
fact that the discharge pipe for the aeration system was not 10 feet from plaintiffs'
property line as required, there was no sample port, there was effluent draining onto
neighboring property creating a nuisance, there was no perforated cover at the end of the
discharge, and the discharge pipe did not allow a free flow.
¶ 16 At trial, Hurst testified the discharge pipe did not allow a free flow because it was
buried in rock. He said this would allow fecal bacteria to grow and cause an odor. In
order to be in compliance with the code, effluent from an aeration system should not
leave a property and the discharge pipe should be 10 feet back from the property line.
Hurst testified there was a fresh pile of dirt near the area where the discharge pipe was
located and it appeared fresh rock had been placed on the common road. Photographs
introduced into evidence confirmed that work had been done to the area by plaintiffs on
May 3, 2009. Hurst confirmed he never received complaints from Deborah Toennies or
anyone else prior to the complaint lodged by Deborah in the spring of 2009.
¶ 17 Deborah Toennies testified that she built her home in 1996 and moved in that year.
She moved out of the neighborhood two years prior to trial. During the time she lived
there, three different people owned the neighboring property, including the original
owners, defendants, and, finally, plaintiffs. Prior to plaintiffs' arrival, she always took
care of what was known as tennis court road, which was dirt and then a top layer of rock.
She treated it as if it were her own yard. However, when plaintiffs moved in, they "dug 8 out the tennis court road where it dips down, the lowest point, dug all the dirt out and
filled it in with rock and disturbing the flow of everything that came down, the rain,
water, everything. It just disturbed everything because it did not absorb anymore."
¶ 18 Deborah talked to the neighborhood association and learned plaintiffs did not get
permission from the association to do what they did, so she called the county inspector.
The inspector told her plaintiffs added more pipe to their aeration system and were now
in violation of the code because it was running right up to the road. Deborah testified she
never had a problem with drainage prior to plaintiffs making changes to the road.
Deborah explained that her property was the lowest lying in the subdivision and she and
her husband put in an elaborate drainage system in order to ensure they did not have
problems even during heavy rains. However, after plaintiffs moved in and "dug out the
tennis court road because of where their aeration system is, it would drain by the walkout
basement door." Deborah further explained that after plaintiffs "removed all that dirt out
of the road and put rock in, then it all filtered into [her] front yard to the point that [her]
riding mower would get stuck in [her] front yard." Deborah said plaintiffs came over to
her house and spoke to her and her husband about the problem and she and her husband
asked plaintiffs to undo what they did to the road, but plaintiffs refused.
¶ 19 Deborah insisted she never had any of these water or drainage issues with the
original owners of the property or with defendants. She admitted that sometimes it was
wet at tennis court road because of where the aeration discharge was located, but she
never had any problems with the previous two owners. She also said that sometimes
there was flooding on her property, but it had nothing to do with defendants. Instead it 9 was due to the low-lying nature of her property, of which she and her husband were
cognizant and the reason why they put in an elaborate drainage system. She said
plaintiffs never complained to her that the straw and clay she put on the road caused any
problems for them. She testified the problems arose after plaintiffs took out the dirt on
the road and filled it with rock. The water started to flow onto the Toennieses' property
rather than absorb into the ground.
¶ 20 Stan Toennies testified that he was not aware of drainage problems when
defendants lived on the property and he could not remember any smells when either
defendants or plaintiffs occupied the property. He admitted it is a low-lying area, but
neither he nor his wife ever complained to defendants about any drainage problems. He
testified that drainage problems only arose when plaintiffs moved into the property.
¶ 21 Phillip McDowell of D-N-P Plumbing testified that he corrected the code
violations involving the septic system in August 2009 after he was called by plaintiffs to
correct the discharge pipe covered by rock. He recommended that the discharge be
moved and a rock pit installed. The repairs cost $3,275. McDowell testified he could
smell the system when he went out to inspect it and the previous owners should have
known about the septic system issues because the rock was built up, the water was
running out, and there was an odor. According to McDowell, this type of situation does
not occur overnight.
¶ 22 Plaintiffs also hired Leroy Dawson, an architect, to inspect their home on
September 7, 2010, after the lawsuit was filed. Plaintiffs paid Dawson $250 for an
10 inspection. Dawson did not prepare a written report. Dawson testified at trial for
plaintiffs. He testified that he did not notice a smell with regard to the septic system, but
said defendants should have known of the problems with the property before they sold it
to plaintiffs and the home inspector should have noticed the problems.
¶ 23 Leonard Reeker, a neighbor, testified that on one occasion, he walked on the
common road, tennis court road, and noticed the area in question being very damp and he
smelled sewage; however, Reeker could not remember who owned the property when
this occurred. He also said that this was the only time he noticed a problem.
¶ 24 Randy Wise, who also lived in the subdivision, testified he used the common road
between the property at issue and the Toennieses' property at least once a month since the
1980s. According to Wise, the original owners of 20 Creekwoods Trail had some septic
issues, but fixed the home before they sold it to defendants. Wise did not notice any
drainage issues with the septic system while defendants lived on the property.
¶ 25 On March 5, 2013, the trial court entered judgment in favor of defendants on count
I, the fraud count, but found in favor of plaintiffs on count II, violation of the Disclosure
Act. The trial court awarded plaintiffs $12,000, without itemizing the award. The trial
court's order specifically states:
"After review of the relevant law, and taking all the relevant facts and
circumstances into consideration, the court finds the proper award, arising from
the Disclosure Act case, and including reasonable attorneys fess [sic], and cost of
suit, is in the amount of [$12,000]."
11 Mark Harris filed a timely notice of appeal. Plaintiffs filed a cross-appeal.
¶ 26 ANALYSIS
¶ 27 The first issue we are asked to address is whether the trial court applied the proper
standard of proof in determining whether defendants violated the Disclosure Act. The
trial court applied the preponderance of the evidence standard to plaintiffs' claim under
the Disclosure Act, but defendant Mark Harris insists the proper standard of proof is clear
and convincing. We agree with defendant.
¶ 28 We review the question of whether the proper standard of proof was applied de
novo because the question requires interpretation of the Disclosure Act and is, therefore,
a question of law. Hogan v. Adams, 333 Ill. App. 3d 141, 146, 775 N.E.2d 217, 221
(2002). The Disclosure Act does not provide an express provision regarding the standard
of proof to be applied for a violation. However, according to established rules of
statutory construction, a statute is construed as changing common law "only to the extent
that the terms thereof warrant, or as necessarily implied from what is expressed."
Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039, 430 N.E.2d 652, 654 (1981). An
inference that the common law is repealed is not favored. Hawkins, 102 Ill. App. 3d at
1039, 430 N.E.2d at 654. Common law requires that fraud be proven by clear and
convincing evidence. Brown Specialty Co. v. Allphin, 75 Ill. App. 3d 845, 850-51, 394
N.E.2d 659, 663 (1979).
¶ 29 Here, the trial court applied the preponderance standard on the basis that it is the
standard of proof to be applied in cases brought pursuant to the Consumer Fraud and
12 Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West
2008)). See Fox v. Heimann, 375 Ill. App. 3d 35, 48, 872 N.E.2d 126, 139 (2007).
However, we decline to analogize the Disclosure Act to the Consumer Fraud Act because
"an individual who casually sells his or her own single-family home is not subject to
liability under the Consumer Fraud Act." Provenzale v. Forister, 318 Ill. App. 3d 869,
877, 743 N.E.2d 676, 682 (2001). Moreover, while our General Assembly specifically
states that the Consumer Fraud Act "shall be liberally construed to effect the purposes
thereof" (815 ILCS 505/11a (West 2008)), there is no such provision for liberal
construction in the Disclosure Act. Accordingly, we believe the trial court improperly
applied the preponderance of the evidence standard and that the proper standard of proof
is actually clear and convincing.
¶ 30 The second issue raised by defendant is whether the trial court erred in finding
defendants violated the Disclosure Act. Defendant contends there is no need to remand
the case for further review because the trial court already considered the facts of this case
as to defendants' knowledge under the clear and convincing standard with respect to the
common law fraud claim. For purposes of brevity, we can also consider and dispose of
the first issue raised by plaintiffs in their cross-appeal, whether the trial court erred in
refusing to find defendants committed fraud.
¶ 31 To prove common law fraud, the plaintiffs must prove that the defendants
intentionally made a false statement of material fact or failed to disclose a material fact,
that the plaintiffs had a right to rely on the false statement or omission, that the statement
or omission was made for the purpose of inducing reliance thereon, that the plaintiffs, in 13 fact, relied on the statement or omission, and that the plaintiffs suffered injury as a direct
result. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496, 675 N.E.2d 584, 591 (1996);
Mitchell v. Skubiak, 248 Ill. App. 3d 1000, 1004-05, 618 N.E.2d 1013, 1017 (1993). The
defendants' knowledge of the falsity of the statement, or a deliberate concealment with
the intent to deceive, is an essential element of common law fraud. Park v. Sohn, 89 Ill.
2d 453, 459, 433 N.E.2d 651, 654 (1982). Common law fraud must be proved by clear
and convincing evidence. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.
2d 100, 191, 835 N.E.2d 801, 856 (2005). Here, the trial court specifically found
"against plaintiffs on the fraud action. The evidence considered as a whole suggests no
reliance or no reasonable reliance." We agree.
¶ 32 Moreover, even assuming arguendo that the preponderance of the evidence
standard is the proper standard to be applied, we believe the trial court erred in finding
that under the evidence presented at trial, plaintiffs proved their case under the Disclosure
Act. The Disclosure Act provides a seller is not liable for error, inaccuracy, or omission
of any information delivered pursuant to the Act if the seller had no knowledge of such
error, inaccuracy, or omission based upon a reasonable belief that a material defect had
been corrected. 765 ILCS 77/25(a) (West 2010). The Disclosure Act also requires that a
violation be done knowingly. 765 ILCS 77/55 (West 2010); Woods v. Pence, 303 Ill.
App. 3d 573, 576, 708 N.E.2d 563, 565 (1999). Here, the evidence as to defendants'
knowledge was insufficient to meet either the clear and convincing standard or a
preponderance of the evidence standard for the following reasons.
14 ¶ 33 First, on the disclosure report form required by the Disclosure Act, defendants
specifically identified the septic system as a potential problem by noting that in the past
the ejector pump backed up twice. Second, prior to closing, plaintiffs hired not only a
home inspector to do a complete inspection on the property, but also a separate septic
system inspector to inspect the septic system. The home inspector did not notice any
problems with the system, and Frank's Septic Company found only minor issues that
might necessitate the need for future repairs, but ultimately found that the system looked
good. Third, during negotiations, plaintiffs submitted a document in which they
identified problems with the house in an effort to negotiate a lower price. Included on the
list of potential problems was the septic system.
¶ 34 We acknowledge that plaintiffs' best evidence came from Phillip McDowell of D-
N-P Plumbing who was hired by plaintiffs to correct the code violations involving the
septic system. McDowell testified he could smell the system when he went out to inspect
it and that the previous owners should have known about the septic system issues because
it was not the type of situation which would occur overnight. Leroy Dawson, who was
also hired by plaintiffs, testified that while he did not smell any foul odors, defendants
nevertheless should have known about the septic system problems. However, we also
note that Dawson's real concern seemed to be with the home inspector who failed to
notice the problem with the septic system.
¶ 35 Given the fact that neither the home inspector nor Frank's Septic Company, both
of whom were hired by plaintiffs prior to their purchase of the property, noticed the septic
system problems, we cannot say defendants had actual knowledge of the problems in 15 question. Even the neighbors testified that they were not aware of any problems with the
septic system until plaintiffs moved in and made changes to the road, including adding
rock. Finally, our review of the record indicates that no one actually testified that the
repairs made to the septic system constituted a "material" defect which should have been
known when the home was sold, which is required by the Disclosure Act (765 ILCS
77/25(a) (West 2010)).
¶ 36 In reviewing a judgment entered after a bench trial, the trial court's findings will
not be disturbed on appeal unless they are against the manifest weight of the evidence.
Eychaner v. Gross, 202 Ill. 2d 228, 251, 779 N.E.2d 1115, 1130 (2002). A judgment is
against the manifest weight of the evidence where the opposite conclusion is apparent or
where findings appear to be arbitrary, unreasonable, or not based upon the evidence.
Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 155, 839 N.E.2d 524, 531 (2005).
Eychaner, 202 Ill. 2d at 252, 779 N.E.2d at 1130. Here, we find the trial court's decision
against defendants with regard to count II was against the manifest weight of the
evidence under either standard of proof. The trial court's decision with regard to count I,
finding in favor of defendants, was not against the manifest weight of the evidence.
¶ 37 The only remaining issue is the award of damages and attorney fees. In the instant
case, the trial court did not itemize the damages awarded. The judgment order merely
awards plaintiffs $12,000, which includes both attorney fees and the cost of the suit.
From this award, it is impossible for us to know how much was allocated toward septic
repairs, which were alleged to be $3,275, attorney fees, which are identified in the trial
court's order as "almost thirty-five thousand dollars," or costs. What is clear is that the 16 trial court reduced the demand for attorney fees, but the trial court failed to provide any
analysis of how it arrived at that figure. In any event, because a buyer seeking attorney
fees under the Disclosure Act is required to establish knowing misconduct on the part of
the seller in order to recover attorney fees, the award must be reversed in its entirety.
Plaintiffs failed to prove that defendants knowingly failed to disclose problems with the
septic system.
¶ 38 We point out that the Disclosure Act specifically provides for an award of attorney
fees to the "prevailing party":
"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 [disclosure report
form] 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 2008).
The sentence allowing for the grant of attorney fees does not specify a specific party to a
transaction. It also uses the term "prevailing party" when addressing the award of
attorney fees.
¶ 39 Because the Disclosure Act does not limit the award of attorney fees to a specific
party, "either plaintiffs or defendants, in appropriate circumstances, may recover fees
under the [Disclosure] Act." Miller v. Bizzell, 311 Ill. App. 3d 971, 975, 726 N.E.2d 175,
178 (2000). However, attorney fees would only be appropriate for a prevailing seller if
the buyer filed a "meritless claim." See Miller, 311 Ill. App. 3d at 974, 726 N.E.2d at
17 178. In the instant case, we cannot say plaintiffs' claims were meritless in light of the fact
that Phillip McDowell and Leroy Dawson testified that defendants should have been
aware of the problems with the septic system.
¶ 40 We agree with the trial court that this case presents a "pretty simple real estate
disclosure case." It is unfortunate that this small claims case escalated from something
simple to something much larger and that the attorney fees and costs got out of hand. It
is time to end this litigation.
¶ 41 The facts clearly show that plaintiffs were aware of potential problems with the
septic system before they purchased the property. Plaintiffs signed an "as is" contract.
"Generally, a sale of property 'as is' means that the property is sold in its existing
condition, and use of the phrase as is relieves the seller from liability for defects in that
condition." (Emphasis in original.) Black's Law Dictionary 129-30 (9th ed. 2009).
Furthermore, plaintiffs even negotiated a lower price based on their own enumerated
deficiencies, including the septic system. Accordingly, we find that plaintiffs are not
entitled to recovery under either count I or count II. However, because we do not find
plaintiffs' suit meritless, we believe each party should pay his or her own attorney fees.
¶ 42 For the foregoing reasons, we hereby affirm the judgment of the circuit court of
Madison County in favor of defendants on count I, reverse the judgment of the circuit
court in favor of plaintiffs on count II, and remand with directions that each party is
required to pay his or her own costs and attorney fees.
18 ¶ 43 Affirmed in part and reversed in part; cause remanded with directions.
19 2014 IL App (5th) 130163
NO. 5-13-0163
IN THE
FIFTH DISTRICT _________________________________________________________________________________
ROBERT BUTLER and ELIZABETH BUTLER, ) Appeal from the ) Circuit Court of Plaintiffs-Appellees and Cross-Appellants, ) Madison County. ) v. ) No. 09-SC-5187 ) MARK HARRIS, ) ) Defendant-Appellant and Cross-Appellee ) Honorable ) Thomas W. Chapman, (Lisa Harris, n/k/a Lisa Bohnenstiehl, Defendant). ) Judge, presiding. _________________________________________________________________________________
Opinion Filed: June 27, 2014 _________________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J. Honorable Thomas M. Welch, P.J., and Honorable Judy L. Cates, J., Concur _________________________________________________________________________________
Attorney Natalie T. Lorenz, Mathis, Marifian & Richter, Ltd., 23 Public Square, Suite 300 for Belleville, IL 62220 Appellant _________________________________________________________________________________
Attorney Thomas W. Burkart, Burkart Law Office, 130 West State Street, P.O. Box 447, for Hamel, IL 62046 Appellee _________________________________________________________________________________