Fleisher v. Lettvin

557 N.E.2d 383, 199 Ill. App. 3d 504, 145 Ill. Dec. 613, 1990 Ill. App. LEXIS 772
CourtAppellate Court of Illinois
DecidedMay 23, 1990
Docket1—88—2176, 1—88—2728 cons.
StatusPublished
Cited by13 cases

This text of 557 N.E.2d 383 (Fleisher v. Lettvin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleisher v. Lettvin, 557 N.E.2d 383, 199 Ill. App. 3d 504, 145 Ill. Dec. 613, 1990 Ill. App. LEXIS 772 (Ill. Ct. App. 1990).

Opinion

JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Richard Fleisher, brought a four-count complaint against defendants Norman and Roslyn Lettvin et al., to recover damages incurred from plaintiff’s purchase of residential property from defendants. After the close of plaintiff’s case in chief, the trial court entered judgment for defendants on counts III and IV of plaintiff’s complaint. After the close of all the evidence, the trial court entered judgment for defendants on counts I and II of plaintiff’s complaint. Thereafter, the trial court denied defendants’ motion for attorney fees and costs under section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Plaintiff appeals the judgments for defendants. Defendants appeal the denial of their section 2—611 motion. The appeals have been consolidated.

Count I of plaintiff’s complaint sounded in fraud. It alleged that, after he took possession of the premises purchased from defendants, located at 345 Cedar Avenue in Highland Park, Illinois, plaintiff learned that: (1) there was water damage to the structure; (2) water flowing through the gutter system, which was contained within the walls of the structure, was leaking into the structure’s interior walls; (3) the leaking had damaged the electrical system, electrical conduits, insulation and lathe and plaster work; (4) the garage door opener was defective and unusable; and (5) the plumbing system was defective and unusable and not in the condition warranted to plaintiff. Count I further alleged that defendants were aware of the leakage condition, the defective plumbing and garage door opener; contracted with various repairmen and roofers over a period of years to secure estimates on repairs but had made none; and had concealed the water damage with wallpaper and patchwork plastering, which prevented plaintiff from discovering it.

Count II alleged that the alleged defects in the structure constituted a breach of a warranty to plaintiff contained in the real estate contract with defendants that “the mechanical, electrical, plumbing, heating and cooling systems and appliances are in good working order and will be maintained up to and including the date of possession.” It further alleged that plaintiff had relied on the warranty. Count III of plaintiff’s complaint alleged that defendants’ misrepresentations of the condition of the premises were negligent. Count IV alleged that defendants’ misrepresentations constituted a violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261, et seq.).

The testimony at trial is too voluminous to allow a witness-by-witness summary sufficient to give a clear understanding of their often conflicting and varying testimony. Therefore, we will at this point set forth only those facts essential to a basic understanding of this case.

Plaintiff and defendants entered a real estate contract for the purchase and sale of the premises involved (hereinafter the house) in July 1982. Plaintiff’s wife (hereinafter Mrs. Fleisher) had been shown the home in the spring of 1982 for the first time. During a subsequent visit by plaintiff and his wife (hereinafter the Fleishers), they noticed signs of water damage in the walls of two bedrooms on the second floor and in the basement. The Fleishers thus inquired about water damage to the house and were specifically told that it resulted from a 1979 winter storm. Subsequently one or both of the Fleishers returned to the house with various individuals to inspect it further. One of these was Paul Cocose, the president of Mayfair Construction Company (Mayfair), a general contractor. He also noticed and therefore inquired about water damage to the house. Plaintiff and Cocose claimed at trial that in response they were told only of the 1979 winter storm. After this inspection, Cocose did not advise against the purchase of the house.

Prior to signing the real estate contract, plaintiff requested another inspection of the house. During this inspection, Ira Kephart, a licensed architect employed as a project manager by Mayfair, accompanied plaintiff and Cocose. During this inspection, all three men again noticed signs of water damage and conjectured as to its causes. Kephart testified that he told plaintiff that it could not be determined whether there was any water damage in the second-floor walls of the house without opening them up, that it could not be determined whether there was a problem with the gutter and downspouts of the house because they were an interior type, installed inside the exterior wall of the house. He also told him that there could be a problem with water draining from the roof but that, without opening up the roof, they would have to rely on what defendants told them. As a result of his inspection, Kephart advised plaintiff that the house required $14,400 worth of repairs. Plaintiff reduced his offer for the house accordingly.

Also before signing the contract, Mrs. Fleisher took Mr. Soprani of Superior Sheet Metal (Superior), a specialist in copper gutters, to examine the condition of the gutters on the house. Soprani attempted to determine whether there was any water in the walls by placing a meter on the surface but was unsuccessful because of their thickness. He therefore stated that the only way to make that determination was to open the walls up.

The Fleischers eventually took possession of the house in January 1983. However, they did not move in until May 1983. In the interim, they employed Mayfair and others to perform major renovations and repairs to the house.

In entering judgment for defendants on count I, the trial court found that plaintiff had failed to prove scienter on defendants’ part or reliance on defendants’ alleged misrepresentations. In entering judgment for defendants on count II, the court found that defendants had not breached the term of the contract with plaintiff requiring that “the mechanical, electrical, plumbing, heating and cooling systems and appliances be in good working order and be so maintained up to and including the date of possession,” whether or not that term constituted a warranty.

On appeal, plaintiff contends the trial court’s findings were against the manifest weight of the evidence.

I

Initially, plaintiff contends that he established that defendants knew of leakage problems in the house’s gutter system, specifically the downspouts. The trial court’s reliance on defendants’ inability to observe the gutter system, plaintiff asserts, ignored that defendants could and did observe the effects of the defects in the downspouts. Plaintiff therefore argues that this knowledge imposed upon defendants the duty to inform plaintiff of the prior damage caused by this problem and the prior repairs necessitated thereby.

In an action for fraud, each of the elements of the action must be proved by clear and convincing evidence. (In re Marriage of Morris (1986), 147 Ill. App. 3d 380, 497 N.E.2d 1173.) Moreover, on review of a judgment in such an action, the applicable inquiry is whether the judgment is against the manifest weight of the evidence. (Morris, 147 Ill. App. 3d 380, 497 N.E.2d 1173

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Bluebook (online)
557 N.E.2d 383, 199 Ill. App. 3d 504, 145 Ill. Dec. 613, 1990 Ill. App. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleisher-v-lettvin-illappct-1990.