Marx v. Chorvat

2024 IL App (1st) 230847-U

• Court: Appellate Court of Illinois
• Decided: December 31, 2024
• Docket: 1-23-0847
• Status: Unpublished

Opinion

2024 IL App (1st) 230847-U SIXTH DIVISION

December 31, 2024

No. 1-23-0847

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ AARON AND STACY MARX, ) Appeal from the Circuit Court ) of Cook County. Plaintiffs-Appellants, ) ) ) v. ) No. 19 L 2839 ) MICHAEL CHORVAT, JENNIFER KIRCHENS, HOME ) ADVANTAGE INSPECTIONS, INC., and FERNANDO ) LOPEZ, ) Honorable ) Jerry A. Esrig, Defendants-Appellees. ) Judge, presiding.

JUSTICE C.A. WALKER delivered the judgment of the court. Justice Hyman concurred in the judgment. Justice Gamrath concurred in part and dissented in part.

ORDER

¶1 Held: Appellants homebuyers brought claims against the sellers for common-law fraud and violations of the Residential Real Property Disclosure Act (765 ILCS 77/1 et seq. (West 2016)), along with claims against their home inspection service and No. 1-23-0847

inspector for Consumer Fraud, common-law fraud, negligence, and breach of contract. The circuit court granted summary judgment to all defendants. On appeal, we partially reverse summary judgment in favor of the sellers because there is a genuine issue of material fact regarding whether they had actual knowledge of a material defect that caused leaking in the basement, and affirm the grant of summary judgment with respect to the home inspection company and the inspector because the inspection contract contained an enforceable exculpatory clause, and there was no evidence of fraud.

¶2 This case arises from a home purchase by the plaintiffs-appellants Aaron and Stacy Marx

(the Buyers) from defendants-appellees Michael Chorvat and Jennifer Kirchens (the Sellers).

Before the closing, the Buyers hired defendant-appellee Home Advantage Inspections, Inc. (Home

Advantage) to perform a home inspection, which defendant-appellee Fernando Lopez

(collectively, “Inspection defendants”) performed. Following the closing, the Buyers allegedly

discovered numerous defects and brought claims against the Sellers and the Inspection defendants.

The circuit court granted summary judgment to all defendants. For the reasons below, we reverse

in part and affirm in part as to the Sellers, affirm as to the Inspection defendants, and reverse the

attorney fees awarded to both.

¶3 BACKGROUND

¶4 On February 28, 2018, the Buyers agreed to purchase a home (“the Property”) located on

the 4400 block of North Keystone Avenue in Chicago from the Sellers. The Sellers provided the

Buyers with a Residential Real Property Disclosure Report (“disclosure form”) pursuant to the

Residential Real Property Disclosure Act (Disclosure Act) (see 765 ILCS 77/1 et seq. (West

2016)). Therein, the Sellers indicated they were not aware of any material defects in the Property.

¶5 Before the closing, the Buyers entered into a written agreement (“the Agreement”) with

Home Advantage to inspect the Property. The Agreement contained the following clause: “Home

Advantage Inspections assumes no liability and shall not be liable for any mistakes, omissions, or

errors in judgment of its employees, or subcontractors, beyond the cost of the inspection report,”

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or $449. Lopez inspected the subject property on behalf of Home Advantage and prepared a report

(2018 Inspection). 1 The closing occurred on April 16, 2018.

¶6 On March 15, 2019, the Buyers filed their initial complaint against the Sellers and Home

Advantage. They later filed amended and second amended complaints, the latter of which the

circuit court dismissed with prejudice in part and without prejudice in part. Those portions of the

Buyers’ claims dismissed with prejudice are not at issue in this appeal. On August 3, 2020, the

Buyers filed their third amended complaint, the operative complaint here, in which they raised five

claims (Counts I to V) under the Disclosure Act for failure to disclose material defects in five

corresponding categories: (I) Flooding and Sewer, (II) Roof, (III) Windows and Walls, (IV)

Electrical Issues, and (V) HVAC. Count I complained, in relevant part, that the Sellers “knew that

the basement was subject to flooding and leakage and that the sewer was substantially impaired.”

The third amended complaint also alleged common-law fraud against the Sellers based on the

representations made regarding the five categories of defects, along with an additional alleged

misrepresentation that the Property was a “rehab.”

¶7 The Buyers also raised four claims against the Inspection defendants: (1) negligence in the

performance of the home inspection, (2) breach of contract, (3) common-law fraud for Lopez’s

failure to properly explain certain defects in the 2018 Inspection; and (4) a violation of the

Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2016)).

¶8 On June 2, 2021, the circuit court referred the parties to arbitration, which resulted in a

decision in favor of all defendants. The Buyers rejected the arbitration decision and continued the

litigation pursuant to Cook County Circuit Court Rule 25.11(d) (Apr. 1, 2021).

1 We note that Home Advantage did not acknowledge Lopez’s employment or contractor status but stated in its answer that Lopez “was the Inspector for Home Advantage Inspections who conducted the inspection.” 3 No. 1-23-0847

¶9 Following discovery, the Sellers moved for summary judgment. Regarding the Disclosure

Act claims, the Sellers contended the Buyers had developed no evidence that the Sellers had actual

knowledge of material defects they failed to disclose. Instead, the Sellers argued, the Buyers’

evidence only consisted of photographs and videos taken after closing which did not allow for an

inference of actual knowledge. The Sellers noted the 2018 Inspection only identified the potential

for water intrusion issues to occur in the future, and further contended they completed the

disclosure form consistent with the information they received from their initial inspection (2013

Inspection) and the 2018 Inspection.

¶ 10 The Sellers also claimed summary judgment was appropriate because the Buyers waived

their Disclosure Act claims by virtue of a letter from the Buyers’ attorney preceding closing. In

the letter, the Buyers represented they would be “willing to forego any action on” issues listed in

the 2018 Inspection, with the exception of HVAC and foundation issues. The letter expressed

concern with “the foundation and its current condition” because “various areas show cracks,

moisture intrusion, and efflorescence that is likely the result of years of moisture buildup.” In

reaction to the letter, the parties agreed to a $3000 cash payment from the Sellers to the Buyers to

address the foundation, and the Sellers addressed the HVAC concerns before closing.

¶ 11 Regarding common-law fraud, the Sellers argued the Buyers could not show reasonable

reliance because they conducted their own pre-sale inspection and post-sale repairs, and the Sellers

did not misrepresent that the home was a rehab because “[w]hen [the] Sellers purchased the

Property it was described as a ‘recent rehab’ in the MLS listing and [the] Sellers had no reason to

believe it was not.”

¶ 12 The 2013 Inspection, attached to the Sellers’ motion, contained the following passages:

“Downspouts discharge too close to building foundation at front. Water draining against

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foundation can cause serious damage to structure and water leakage into the basement over time.”

It further noted that the “basement finished walls” had no moisture issues detected. The 2018

Inspection, also attached, contained the following entry, titled “Basement foundation”:

“Efflorescence, a white salty deposit, was noted on the surface of the concrete foundation. This

may indicate moisture penetration into the walls with subsequent surface evaporation. This

condition should be monitored and evaluated as needed by a qualified waterproofing contractor.

No elevated levels of moisture were found.”

¶ 13 Chorvat also attached his affidavit to the motion, in which he stated, in relevant part, that,

“When we purchased the Property, the home had many new components, including but not limited

to new siding, new windows, new appliances, new cabinets, new fixtures, new electrical, new

flooring, and a new rear deck. The Property was exceptionally clean. I believed the Property was

rehabbed in 2013 when we purchased the Property, and I believe that the Property was rehabbed

*** to this day.” He further stated, “In the five years that we lived at the Property, I never

experienced any flooding or recurring leakage in the crawl space or the basement, and we never

had the crawl space or basement evaluated by a professional for any problem related to flooding

or recurring leakage.” Moreover, “In the five years that we lived at the Property, I did not have

any knowledge of any active leaking in the basement or crawl space and did not have any

knowledge of water stains that could suggest a problem.” Finally, “Shortly before we listed the

Property for sale, I noticed efflorescence on the basement wall at some point in late 2017 or early

2018 but we did not have it evaluated by a professional and neither of us had any knowledge of

what causes efflorescence. We did not conceal any efflorescence as evidenced by [the 2018

Inspection], which clearly identified the issue prior to the [Buyers’] purchase of the Property.”

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¶ 14 The Buyers filed a response in opposition to the Seller’s motion for summary judgment,

arguing the record contained sufficient evidence to create genuine issues of material fact as to

whether the Sellers knowingly failed to disclose defects in the five claimed categories. In support,

the Buyers pointed to four portions of the record:

1. The affidavit of their neighbor Timothy Davis, who stated that he observed water pooling

on the Property’s patio after rain, and birds nesting in the southwest gutters while the

Sellers owned the home. Davis averred that he informed Chorvat of the nests, though

Chorvat testified at his deposition that he recalled no such conversation.

2. A statement from a contractor detailing work performed on the Property post-closing.

3. The deposition of Carl Byrd, a deputy commissioner for the City of Chicago Department

of Buildings, who testified that a post-closing inspection of the Property revealed code

violations and work likely done by uncertified or unlicensed contractors.

4. The report from their retained expert Michael Panish, which included his opinion that

the Sellers were likely “intimately aware” of on-going water leakage issues in the

basement.

¶ 15 For their fraud claim, the Buyers contended that the Property did not meet the Midwest

Real Estate Data (MRED) definition of a “rehab,” which allegedly denoted “repair or replacement

within the past year of at least 75 percent of fixtures and systems throughout the majority, if not

all, [of] the residence.” They further argued, “when it was advantageous not to claim the home as

a rehab when seeking a tax reduction, [the Sellers] capitalized on the opportunity to compare the

subject property to other homes that were land value only or needed to be fully gutted and

rehabbed,” referencing documents submitted by the Sellers to the Cook County Assessor’s Office

in an effort to reduce their property taxes.

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¶ 16 The Buyers referenced exhibits in their response, but did not file the exhibits along with

the response, and did not include Panish’s deposition transcript amongst them.

¶ 17 The Inspection defendants also moved for summary judgment, arguing in relevant part that

the Agreement’s exculpatory clause was enforceable and limited their liability to the cost of the

inspection. They further contended the Buyers could point to no evidence demonstrating Home

Advantage or Lopez knowingly made any false representations or engaged in any deceitful

conduct. Instead, they argued, the 2018 Inspection appropriately identified potential issues with

the Property and recommended that the Buyers conduct further inspections, advice the Buyers

ignored. The Buyers responded, arguing in relevant part that the Agreement’s exculpatory clause

should be deemed unenforceable, and the 2018 Inspection failed to provide “accurate”

information. They also argued Lopez’s conduct violated the Home Inspector License Act (see 225

ILCS 441/1-1 (West 2016)).

¶ 18 The exhibits attached to the Inspection defendants’ motion included Panish’s deposition

and the exhibits thereto, including his report and CV. Panish’s report was not in the form of an

affidavit, and did not have attached to it the materials on which he based his opinions. During his

deposition, when asked to explain his conclusion that the Sellers had actual knowledge of flooding

and leaks in the basement, Panish responded, “I have seen evidence that they deny that they had

any awareness of [flooding or leaking], but it’s highly unlikely from efflorescence that I saw in

that foundation and from the overall intrusions through the paint and the bubbling and all the

cracking that was down there that they lived in that property for a period of time without knowing

there was water actively leaking through the foundation.” He also emphasized the “smell and the

mildew and the mold odors that occur with leaking foundations.” Panish further explained he

believed the leaking issues had been present for years because of the “drainage, you can tell by the

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condition of the grade next to the house, you can tell by the condition of the foundation, you can

tell by all of the overall paint inside, the bubbles and peels and cracks that this has been an ongoing

continual situation for a long period of time.” He acknowledged he did not visit the Property

between 2013 and 2018, and his site visit did not occur until October 17, 2021.

¶ 19 Regarding the other Disclosure Act claims, Panish testified that he believed the Sellers did

not fill out the disclosure form accurately with respect to (1) the roof, walls, windows, doors, or

floors because of the “immediate moisture and air infiltration” issues the Buyers allegedly

experienced; (2) the electrical system because it was “non-code compliant”; and (3) the HVAC

system because it “did not look like [it was] in good condition.”

¶ 20 Before the circuit court ruled on the summary judgment motions, the Sellers moved to

exclude Panish’s testimony and strike his report. They argued in relevant part that Panish’s report

did not comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013), because it was not in the

form of an affidavit and did not have attached the documents upon which Panish relied. The Sellers

also moved to exclude all exhibits referenced in the Buyers’ summary judgment response, arguing

that the exhibits were unauthenticated and not properly filed. The record does not indicate that the

Buyers responded to these motions, or that the circuit court resolved them. The record does show

that on October 18, 2022, the Buyers’ exhibits were filed into the record, though it is unclear how

this was accomplished because no corresponding certificate of filing appears in the record. 2

¶ 21 Before the summary judgment hearing, the Buyers filed a sur-reply to the Sellers’ motion

for summary judgment, arguing in relevant part that Panish’s deposition testimony could be

considered in opposition to summary judgment. The Buyers also contended Panish’s report did

2 At oral argument, the Sellers’ counsel contended that the Buyers eventually filed their exhibits but did so in an untimely fashion on October 18, 2022. The court also seemed to acknowledge this during the hearing. 8 No. 1-23-0847

not need to be in the form of an affidavit to be considered as proper evidence because he testified

regarding his opinions at his deposition.

¶ 22 On November 4 and 9, 2022, the circuit court heard oral arguments on the summary

judgment motions. During the November 4 argument, the court first considered the Sellers’ motion

to strike the Buyers’ exhibits, and stated, “I will not consider any evidence submitted by any party

that is not properly authenticated by an affidavit.” The court did not specify which of the Buyers’

exhibits this finding disqualified, but continued, “So if the [Buyers are] asking me to consider a

photograph that is not supported by an affidavit or sworn testimony in a deposition, then I’m not

going to consider it. If the [Buyers are] asking me to consider her expert’s report, and *** there’s

no affidavit attesting to and authenticating expert’s report, it is not going to be considered.” The

court further noted that the Buyers only referenced Panish’s report, not his deposition testimony,

in its initial summary judgment response. It explained, “it is not the job of the Court to search the

record to determine whether or not the facts asserted without citation are supported somewhere in

the record.”

¶ 23 Turning to the substance of their motion, the Sellers’ attorney emphasized their arguments

on lack of actual knowledge, waiver, and lack of reasonable reliance for purposes of fraud. Counsel

argued, “I think the circumstantial evidence still needs to at least create an inference that there

could have been knowledge on behalf of my clients, and I don’t believe that’s the case.” On the

bird’s nest issue, counsel argued Davis’ affidavit did not show knowledge of a material defect, and

the court responded that while there was a “dispute about whether [Chorvat and Davis] ever talked

about birds,” there was “no evidence the neighbor said anything about birds in the siding.”

9 No. 1-23-0847

¶ 24 The hearing was continued until November 9. In the interim, on November 7, the Buyers

filed affidavits from Stacy Marx and Panish purporting to authenticate exhibits. The Panish

affidavit still did not attach the documents he considered for his report.

¶ 25 The hearing resumed on November 9. Counsel for the Sellers reiterated that Panish’s report

was not competent evidence because it was not in the form of an affidavit and did not include the

proper attachments. On common-law fraud, counsel argued the Buyers “actually hired their own

inspection company to investigate the foundation to see what needed to be done with respect to

the moisture, efflorescence, and cracking in the foundation. So the [Buyers] did not rely on the

[S]eller’s representations whatsoever with respect to [that issue].”

¶ 26 In response, the Buyers’ counsel emphasized the rehab issue, to which the circuit court

replied, “The trouble of that argument is, No. 1 *** the [Sellers] were told it was a rehab when

they bought the house. There is no evidence that they, in the interim, uncovered anything to suggest

it wasn’t a rehab.” Counsel also argued there was evidence the Sellers “did know on some

occasions that there was flooding, there was water.” The court asked for a citation from the record,

to which counsel responded she was “relying on the invoices and the photographs.”

¶ 27 The circuit court granted the Sellers’ motion for summary judgment on all counts,

explaining, “There is no evidence in this case, let alone clear and convincing evidence, that the

[S]ellers knew about the defects that are complained of here, at least any of the material defects.”

The court further found the Buyers “were put on notice of all of these issues by their own inspection

report, and that there was a contractual waiver when they agreed” to the $3000 payment. Finally,

the court also found no reasonable reliance because the 2018 Inspection suggested the Buyers

should conduct “other inspections, which they decided not to do.”

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¶ 28 The matter moved to the Inspection defendants’ motion for summary judgment. Before any

substantive argument, the circuit court interjected, “[I]s there a question of fact with respect to the

[$449]? Maybe. But if you’re telling me that your clients are willing to agree to a judgment in the

amount of [$449], I certainly find that the with-damage limitation in the contract is enforceable.”

The court concluded, “I think the safest thing to do is to enter judgment in favor of [the Buyers]

for the $[449] *** [and] grant the motion for summary judgment based on the limitation.” The

Buyers’ counsel objected, noting that fraud claims remained pending, and a grant of summary

judgment could expose the Buyers to attorney fee petitions. The court maintained its ruling. The

November 14, 2022, order entering the judgments, however, did not contain a provision awarding

$449 to the Buyers, and simply stated, “For all the reasons stated on the record, the Defendants’

Motions for Summary Judgment are granted.”

¶ 29 Both sets of defendants moved for attorney fees against the Buyers pursuant to Cook

County Circuit Court Rule 25.11 (Apr. 1, 2021). Following a hearing on April 14, 2023, the circuit

court awarded attorney fees to counsel for the Inspection defendants in the amount of $8032.50,

and to counsel for the Sellers in the amount of $11,200. This appeal followed.

¶ 30 JURISDICTION

¶ 31 The circuit court entered the final order on attorney fees on April 14, 2023, and the Buyers

filed their notice of appeal on May 10, 2023, giving this court jurisdiction pursuant to Illinois

Supreme Court Rule 303 (eff. July 1, 2017).

¶ 32 ANALYSIS

¶ 33 On appeal, the Buyers argue the circuit court erred in granting summary judgment to both

sets of defendants on all counts, and also challenges the attorney fee awards. Summary judgment

is appropriate where the “pleadings, depositions, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2020). The purpose

of summary judgment is not to try an issue of fact, but to determine if any genuine issue of material

fact exists. Lewis v. Lead Industries Ass’n, 2020 IL 124107, ¶ 14. A triable issue exists where there

is a dispute concerning material facts or where those facts are undisputed but reasonable persons

might draw different inferences from those facts. Id. ¶ 15. Expert testimony, if sufficiently

supported by the record, can create genuine issues of material fact. See Gillespie v. Edmier, 2020

IL 125262, ¶¶ 13-16; Stone v. Clifford Chrysler-Plymouth, Inc., 333 Ill. App. 3d 363, 369 (2002).

When a party submits affidavits in support of summary judgment, the factual statements contained

therein will be deemed admitted if the opposing party does not rebut the affidavit. See Central

Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 170-71 (2004). Rebuttal can be

accomplished via counteraffidavit, (see Id.), or via deposition testimony (see Sacramento Crushing

Corp. v. Correct/All Sewer Inc., 318 Ill. App. 3d 571, 575 (2000)). Summary judgment is a “drastic

means of disposing of litigation and therefore should be allowed only when the right of the moving

party is clear and free from doubt.” Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). We review a grant

of summary judgment de novo. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).

¶ 34 A. Claims Against the Sellers

¶ 35 I. Disclosure Act Claims

¶ 36 We first consider the grant of summary judgment to the Sellers. The Buyers raised five

claims under the Disclosure Act against the Sellers, corresponding to alleged misrepresentations

regarding the existence of defects in five areas: (1) Flooding and Sewer, (2) Roof, (3) Windows

and Walls, (4) Electrical Issues, and (5) HVAC. The Buyers also pursued a common-law fraud

12 No. 1-23-0847

claim against the Sellers for these alleged misrepresentations, along with a distinct theory of fraud

for the Sellers’ allegedly misrepresenting the Property as a “rehab.”

¶ 37 The Disclosure Act requires sellers to “disclose material defects of which the seller has

actual knowledge.” 765 ILCS 77/25(b) (West 2016). A material defect is any “condition that would

have a substantial adverse effect on the value of the residential real property or that would

significantly impair the health or safety of future occupants of the residential real property.” Id.

§ 35. A claimant under the Disclosure Act may recover for actual damages suffered and need not

prove causation to establish the claim, as liability is “mandatory” for a seller who fails “to comply

with a duty under the Act.” Messerly v. Boehmke, 2014 IL App (4th) 130397, ¶ 56.

¶ 38 We must first determine what evidence is properly in the record on summary judgment, as

the Sellers maintain the following objections on appeal: (1) the Buyers’s exhibits in their response

to the Sellers’ motion were inadmissible, and (2) Panish’s report was improper under Rule 191.

¶ 39 First, regarding the Buyers’ exhibits, the record does not contain a clear indication that the

Buyers properly filed them, though both parties appeared to acknowledge at the summary

judgment hearing that the Buyers did so on October 18, 2022. Outside of the filing issue, the Sellers

also challenge the exhibits on the basis of foundation and authenticity. The Buyers filed affidavits

on November 7, 2022, in between the November 4 and November 9 hearing dates, in an attempt

to cure these issues. While this record is indeed convoluted, and we agree with the Sellers that the

November 7 affidavits are of dubious validity, we conclude that we need not substantively resolve

any admissibility issues on the Buyers’ exhibits. As we explain below, even if the exhibits were

all properly filed, authenticated, and admissible, none of them provide substantive support for the

Buyers’ claims.

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¶ 40 Second, on Panish’s report, we find it did not follow the strictures of Rule 191, and thus is

not part of the record on summary judgment. Rule 191 requires that an expert affidavit filed in

support of, or opposition to, summary judgment must attach the documents upon which the expert

relied. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013). This a strict requirement. Robidoux v. Oliphant, 201

Ill. 2d 324, 335-38 (2002). At no point did the Buyers comply with this requirement, even in the

November 7 filing. Accordingly, Panish’s report is not properly part of the record on summary

judgment and will not be considered substantively by this court.

¶ 41 We now turn to the substance of the Buyers’ claims, beginning with Counts I to V under

the Disclosure Act. First, we find the circuit court properly granted summary judgment on Counts

II through V--each claim besides Count I for Flooding and Sewer. The Buyers do not identify any

grounds in the record (even allowing that their exhibits are part of it) for this court to conclude that

a genuine issue of material fact existed of whether the Sellers had actual knowledge of material

defects in these systems. The Buyers’ arguments on these counts, both in its briefing before this

court and below at summary judgment, were so vague as to border on facially dismissible, and

certainly do not suffice to identify specific genuine issues of material fact. In so finding, we note

specifically that the Davis affidavit was insufficient to create a genuine issue of fact of whether

the Sellers had actual knowledge of a material defect in the siding. The presence of birds in a gutter

does not equate to birds in the siding, meaning even construing this evidence in the light most

favorable to the Buyers, the Davis affidavit cannot support the necessary inference.

¶ 42 Regarding Count I, however, we find that a genuine issue of material fact exists as to

whether the Sellers had actual knowledge of material defects which caused flooding in the

basement, which they did not disclose to the Buyers on the disclosure form. We reach this finding

based on Panish’s testimony at his deposition (which was filed by the Inspection defendants as an

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exhibit to their summary judgment motion, then referenced by the Buyers in their sur-reply) and

the 2018 Inspection, neither of which the Sellers challenge as not properly part of the record. 3 The

2018 Inspection noted the presence of efflorescence in the basement, knowledge of which Chorvat

admitted in his affidavit, though he denied that he ever experienced actual leaking or flooding.

Panish contradicted this representation at his deposition, testifying that the extent of the

efflorescence and staining issues led him to conclude that the Sellers likely had actual knowledge

of leaking issues in the basement that pre-dated the completion of the disclosure form and was not

disclosed. Interpreted in the light most favorable to the Buyers, the record reflects a dispute of

material fact over whether flooding or leaking of which the Sellers were aware occurred in the

basement before they completed the disclosure form, which is sufficient to create a genuine issue

of material fact such that Count I survives summary judgment. See Johnson v. Armstrong, 2022

IL 127942, ¶ 31; see also In re County Treasurer, 302 Ill. App. 3d 639, 647 (1998) (generally,

circumstantial evidence may suffice to establish actual knowledge). We note that on remand, the

Buyers are limited to the aspect of Count I related to flooding and leaking only and may not pursue

a claim based on a “sewer” defect.

¶ 43 In so finding, we acknowledge the issue, raised by the circuit court during the hearing and

by the Sellers in their briefing, that the Buyers repeatedly failed to cite to the record with sufficient

specificity. Most pertinent here, the court noted during the oral argument that the Buyers failed to

cite specific pages and line numbers of Panish’s deposition testimony on the water intrusion issue.

But while the Buyers’ citations left much to be desired, we find this shortcoming is not fatal. It is

a court’s task when considering a summary judgment motion to determine whether the entire

3 We note that while Panish’s deposition is unsigned, it is still validly part of the record on summary judgment because the Sellers made no motion to strike it below, as required by Illinois Supreme Court Rule 211(d) (eff. Oct. 1, 2024). 15 No. 1-23-0847

record before it is free of doubt as to the existence of a genuine factual dispute, as summary

judgment is a “drastic” resolution only appropriate when the result is “clear.” Purtill, 111 Ill. 2d

at 240. The Buyers at least alerted the circuit court that their flooding and leaking defect claim was

supported by Panish’s opinions, which he offered at his deposition (which the Buyers referenced

generally in their sur-reply, if not during the oral argument). Given this record, we find the Buyers

did just enough to identify the inference of actual knowledge possible from the admitted presence

of efflorescence and other staining in the basement, and Panish’s opinions based thereon.

¶ 44 The Sellers argue that by virtue of the $3000 payment, the Buyers waived this claim. We

disagree because the letter reflected the Buyers’ willingness to waive claims based on the defects

identified in the 2018 Inspection, which did not include the existence of a material defect that had

previously caused flooding or leaking in the basement. The 2018 Inspection revealed both

foundation issues and efflorescence, but only noted that these conditions could indicate moisture

penetration issues. Allowing for the inference discussed above, the 2018 Inspection’s uncertain

language, combined with the Sellers’ misrepresentation that no material flooding or leaking defect

currently existed, is evidence that the Buyers did not know the actual extent of the condition at

issue when it agreed to the $3000 payment, and thus never agreed to waive any claims based on

that condition. See Bauer v. Giannis, 359 Ill. App. 3d 897, 906 (2005) (“Allowing a seller to ignore

his or her obligation under the Act, avoid reporting a material defect, and thereby defeat a buyer’s

subsequent claim would only encourage the evils the legislature sought to remedy.”).

¶ 45 The Sellers also argue that the affidavits they submitted in support of summary judgment,

specifically Chorvat’s, denied that any flood or leaks had occurred, and were not specifically

rebutted by counteraffidavits from the Buyers. This argument fails because sufficient evidence to

16 No. 1-23-0847

rebut the affidavits, in the form of Panish’s deposition, is properly included in the record on

summary judgment. See Sacramento, 318 Ill. App. 3d at 575.

¶ 46 II. Fraud

¶ 47 Having resolved the Disclosure Act claims, we move to the Buyers’ theories for common-

law fraud against the Sellers. In order to recover for fraud, a plaintiff is required to prove that (1)

the defendant made a false statement of material fact, (2) the defendant knew that the statement

was false, (3) the defendant intended to induce the plaintiff to act in reliance upon the statement,

(4) the plaintiff reasonably relied upon the truth of the statement, and (5) the plaintiff suffered

damage as a result. Lewis, 2020 IL 124107, ¶ 30. In evaluating fraud claims, the law presumes that

transactions are honest, and thus fraud must be proven by clear and convincing evidence. Avery v.

State Farm Mutual Auto Insurance Co., 216 Ill. 2d 100, 191 (2005).

¶ 48 Consistent with the above, we find that because there was no showing of actual knowledge

ffor Counts II through V, those theories of fraud also fail. On Count I for leaking or flooding

defects, however, we find there is a genuine issue of material fact of whether the statement in the

disclosure form constituted fraud. If we accept that a genuine issue of material fact exists as to

whether the Sellers actually knew of leaking or flooding in the basement, but chose to misrepresent

this on the disclosure form, the record evidence can satisfy each element of fraud—the Sellers

made a false statement, knew it was false at the time, and did so to induce the Buyers to continue

with their purchase of the Property, which the Buyers did to their detriment. Lewis, 2020 IL

124107, ¶ 30; Bauer, 359 Ill. App. 3d at 906 (“A fraudulent misrepresentation claim may be based

solely on a disclosure made pursuant to the Act.”).

¶ 49 In so finding, we necessarily reverse the circuit court’s finding on reliance specific to Count

I only. That finding was predicated on the idea that the 2018 Inspection placed the Buyers on notice

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of the full scope of defects in the basement, which ignores the issue that the 2018 Inspection only

alerted the Buyers to potential for water penetration issues. Given the evidence in the record that

at least permits the reasonable inference that leaks had in fact occurred in the past, which the

Sellers knowingly misrepresented by denying the existence of a material defect on the disclosure

form, the Buyers can establish reasonable reliance by showing they followed through with the

purchase relying on the misrepresentation that material flooding or leaking defects did not yet

exist. Id.; see also Pack v. Maslikiewicz, 2019 IL App 1st 182447, ¶¶ 105-08 (rejecting the

argument that the plaintiff could not show reasonable reliance for a fraud claim because their own

inspection of a home revealed potential issues, reasoning, “even if plaintiffs should have

investigated further as to the permits, a defendant’s liability for an intentional tort such as fraud

generally cannot be defeated by an assertion of plaintiffs’ negligence once plaintiffs show they

had a right to rely on the misrepresentations”). Whether the Buyers’ reliance was actually

reasonable in light of the indications that a material defect existed regardless of the Sellers’

representation (such as the issues listed in the 2018 Inspection and the Buyers’ letter

acknowledging the same) is a factual issue that may ultimately be resolved against them, but such

resolution is inappropriate at the summary judgment stage. See Lewis, 2020 IL 124107, ¶ 14;

Centro Medico Panamericano, Ltd. v. Benefits Management Group, Inc., 2016 IL App (1st)

151081, ¶ 34 (reasonable reliance is typically a factual issue).

¶ 50 The theory of common-law fraud as to Count I, survives summary judgment, and its

dismissal is reversed. While the theories for fraud on Counts II through V all fail, and their

dismissal is affirmed.

¶ 51 Finally, we find the common-law fraud theory based on the Sellers’ alleged

misrepresentation that the Property was a rehab fails and affirm the circuit court’s dismissal

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thereof. The Buyers have cited no evidence that the Sellers knew the property was not a rehab.

Instead, they rely on the alleged inconsistencies between the Property’s condition at the time of

purchase and the MRED definition of “rehab,” but this evidence does nothing to establish the

Sellers understood the property was not a rehab, then affirmatively misstated that to the Buyers,

as would be required to establish the first two elements of fraud. Lewis, 2020 IL 124107, ¶ 30.

Additionally, the Buyers’ argument that the Sellers or their real estate agent should have known

about the MRED definition is irrelevant because the Buyers did not raise a negligence claim, and

the real estate agent is not a defendant. The claim also fails because the Buyers offered no evidence

or argument establishing that the MRED definition of “rehab” has any legal significance such that

describing a property in contravention of the definition could constitute fraudulent conduct, and it

is not the role of this court to research this issue independently. See Toushin v. Ruggiero, 2021 IL

App (1st) 192171, ¶ 73 (the appellate court “is not a depository in which a party may dump the

burden of argument and research”).

¶ 52 The Buyers argue that the Sellers’ pursuit of a property tax reappraisal demonstrates actual

knowledge that the Property was not a rehab, but the record does not support this claim. Instead,

the relevant documents relating to the tax assessment only demonstrate that the Sellers requested

a reduction of the Property’s assessment and cited comparable properties in the same neighborhood

with similar construction dates in support. The Buyers provide no explanation or testimony which

could permit this court to conclude these documents allow an inference the Sellers knew the

Property was not a rehab. Id.

¶ 53 B. Claims Against the Inspection Defendants

¶ 54 1. Breach of Contract and Negligence

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¶ 55 We turn to the Buyers’ claims against the Inspection defendants. Before substantively

addressing these claims, we must address the issue that the circuit court’s November 14, 2022,

order does not reflect its intent as expressed in the November 9, 2022, hearing transcript. The order

simply grants the Inspection defendants summary judgment, but the transcript is clear that the court

intended to (1) enter judgment for the Buyers in the amount of $449 (the cost of the inspection and

the agreed amount of damages per the Agreement’s exculpatory clause); and to then (2) grant

summary judgment to the Inspection defendants to the extent the Buyers sought recovery beyond

that amount. Using our authority under Illinois Supreme Court Rule 366(a) (eff. Feb. 1, 1994), and

finding that the report of proceedings illuminates the lower court’s intent (see P & A Floor Co.,

Inc. v. Burch, 289 Ill. App. 3d 81, 88-89 (1997)), we correct the November 14, 2022 order to reflect

a finding in favor of the Buyers for the amount of $449, with a grant of summary judgment to the

Inspection defendants for any further claims, and will review the Buyers’ claims on appeal

accordingly. In so ordering, we are guided by the resolution in Zerjal v. Daech & Bauer

Construction, Inc., 405 Ill. App. 3d 907, 911-16 (2010) (affirming the grant of the defendant’s

motion to dismiss for any claims exceeding the amount stated in an enforceable exculpatory

clause).

¶ 56 With the circuit court’s order corrected, the issue on appeal now becomes whether the court

appropriately granted summary judgment for the Inspection defendants on the Buyers’ claims to

the extent they exceed $449.

¶ 57 First, we consider the breach of contract and negligence claims, which, if the exculpatory

clause is enforceable, would be precluded in full. Id. at 911 (citing Harris v. Walker, 119 Ill. 2d

542, 548 (1988)). The Agreement reads, in relevant part, “Home Advantage Inspections assumes

no liability and shall not be liable for any mistakes, omissions, or errors in judgment of its

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employees, or subcontractors, beyond the cost of the inspection report.” In Zerjal, this court upheld

a clause functionally indistinguishable from the one here, explaining that such clauses, whether

described as exculpatory clauses or liquidated damages clauses, “are enforceable unless (1)

enforcement would be against a settled public policy of the state” or “(2) something in the social

relationship of the parties militates against enforcement.” Id. The Zerjal court ruled that neither

condition applied to the relationship between a potential homebuyer and an inspection service they

hire to perform a preliminary home inspection, reasoning that (1) such clauses were not against

public policy as violative of the Home Inspector License Act (225 ILCS 441/1-1 et seq. (West

2016)) because that statute “addresses the licensing and regulation of home inspectors but does

not address inspectors’ liability,” and (2) the relationship between a home inspector defendant and

homebuyer plaintiff was not “special” because the “homeowners are not in a position similar to

the position of patrons of common carriers or employees [because] the homeowners were in

control of their own fate and could have gotten a second inspection or bargained for different

terms.” Id. at 912.

¶ 58 Based on Zerjal’s guidance, we find the Agreement’s exculpatory clause was enforceable

and affirm the circuit court’s grant of summary judgment on the Buyers’ negligence and breach of

contract claims in excess of $449. The Buyers argue that both exceptions apply to invalidate the

clause but fail to offer support for either theory. First, they contend the clause was against public

policy. “A contractual provision will not be invalidated on public policy grounds unless it is clearly

contrary to what the constitution, the statutes, or the decisions of the court have declared to be in

the public policy or unless it is manifestly injurious to the public welfare.” American Access

Casualty Co. v. Reyes, 2013 IL 115601, ¶ 9. The Buyers’ arguments do not implicate any of these

scenarios, as they simply cite to the Home Inspector Act as evidence of a public policy violation,

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a theory this court already considered and rejected. See Zerjal, 405 Ill. App. 3d at 912. The Buyers

have not presented a substantive ground for this court to depart from this established area of law,

and thus their public policy argument fails.

¶ 59 Second, regarding “special” social relationships, the Buyers again fail to explain why this

situation is distinct from Zerjal; they provide no argument as to why they could not have bargained

for better terms, including removal of the exculpatory clause, or retained a different home

inspection company if they believed the offered terms were unfair. Id.; see also Hussein v. L.A.

Fitness International, L.L.C., 2013 IL App (1st) 121426, ¶ 19. It follows that, as in Zerjal, the

Buyers have not established that its relationship with the Inspection defendants constituted a

“special” social relationship such that the exculpatory clause could be invalidated based thereon.

¶ 60 2. Fraud and Consumer Fraud

¶ 61 The enforceability of the exculpatory clause does not resolve all of the Buyers’ claims

against the Inspection defendants, though, because the clause does not shield the Inspection

defendants from liability for intentional acts—which would include the claims for common-law

fraud and Consumer Fraud. See JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C., 2014

IL App (1st) 121111, ¶ 65. The elements of fraud are listed above, while the elements of a

Consumer Fraud claim are (1) the defendant engaged in a deceptive act or practice, (2) the

defendant intended plaintiff to rely on the deception, (3) the deception occurred in the course of

the defendant’s business, (4) the plaintiff suffered actual damages, and (5) causation. Tri-Plex

Technical Services, Ltd. v. Jon-Don LLC, 2024 IL 129183, ¶ 26. Both common-law fraud and

Consumer Fraud claims require a showing that the defendant knowingly engaged in the alleged

conduct. Addison v. Distinctive Homes, Ltd., 359 Ill. App. 3d 997, 1000-01 (2005).

22 No. 1-23-0847

¶ 62 We find the Buyers’ claims for both common-law fraud and Consumer Fraud against the

Inspection defendants fail because the Buyers do not identify any specific acts or statements as

fraudulent or deceptive. Moreover, the record rebuts any such claims, as the 2018 Inspection is

thorough and neutral, and nothing therein could be construed as facially fraudulent or deceptive.

The Buyers contend remand is appropriate because the circuit court did not substantively consider

the Consumer Fraud claim during the summary judgment oral argument before making its ruling,

but this argument fails because this court may affirm the lower court on any basis contained in the

record, and the record is clear that the Buyers never identified any specific fraudulent or deceptive

acts or statements by the Inspection defendants. See Village of Bartonville v. Lopez, 2017 IL

120643, ¶ 34.

¶ 63 C. The Dissent

¶ 64 While the dissent says the Buyers’ evidence is weak on “critical facts” and based on

speculation, the dissent also says Buyers were aware of the defects like the cracks in the

foundation, efflorescence, and moisture intrusion that was the result of years of moisture buildup.

If these defects were evident to the Buyers, they would be evident to the Sellers and should have

been disclosed on the Disclosure form. In his affidavit, Chorvat admitted to the presence of

efflorescence in the basement, and he denied that he ever experienced actual leaking or flooding.

We again note that the expert, Panish, contradicted this representation at his deposition by

testifying that based on the extent of the efflorescence and staining issues, the Sellers likely had

actual knowledge of leaking issues in the basement that pre-dated the completion of the disclosure

form and were not disclosed. This presents a question fact for a jury.

¶ 65 The dissent’s analysis ignores that actual knowledge can be demonstrated through

circumstantial evidence. See In re County Treasurer, 302 Ill. App. 3d at 647. Given the Sellers

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awareness and the lack of disclosure, whether the pre-disclosure flooding or leaking occurred is a

fact under dispute, and there is no question the resolution of this dispute is material, meaning Count

I (as limited to flooding or leaking defects) survives summary judgment. See Lewis, 2020 IL

124107, ¶¶ 14-15.

¶ 66 The dissent’s analysis also fails to acknowledge the central inference for which Panish’s

testimony allows and characterizes the Buyers as acting with “willful ignorance.” Again, if the

Sellers experienced active flooding and leaking, but chose not to disclose it, the Buyers did not act

with “willful ignorance;” instead, they simply relied on the Seller’s Disclosure. A jury should

decide whether Buyers should have known that Sellers misrepresented the condition of the home.

¶ 67 The dissent would have this court weigh Panish’s testimony against the record evidence

supporting the Sellers’ position, decide we favor the Sellers’ side, and grant summary judgment

accordingly. Such a resolution is improper, regardless of whether we agree with the dissent’s

conclusions on the comparative strength of the evidence. The dissent does not dispute that the

Buyers submitted some evidence to support their claim that the Sellers had actual knowledge of

previous leaking and flooding, which they then failed to disclose. This created a genuine dispute

of material fact for the factfinder to resolve at trial, the identification of which ends our role on

review, and requires remand.

¶ 68 D. Attorney Fees

¶ 69 Finally, the Buyers challenge the award of attorney fees to both sets of defendants per Cook

County Circuit Court Rule 25.11(d) (Apr. 1, 2021), which permits recovery of reasonable attorney

fees when the party rejecting an arbitration award fails to procure a better result. We review an

award of attorney fees for abuse of discretion. In re Marriage of Heroy, 2017 IL 120205, ¶ 13.

Based on the above, neither attorney fee award may stand. First, the Sellers’ counsel’s attorney fee

24 No. 1-23-0847

award must be vacated because we reverse the grant of summary judgment on the limited bases

described above. Second, the attorney fee award to the Inspection defendants’ counsel must be

reversed because the Buyers achieved a better result than the initial arbitration award of $0 when

the circuit court entered judgment in its favor for $449, per the Agreement’s exculpatory clause.

¶ 70 CONCLUSION

¶ 71 For the reasons stated above, we (1) reverse the grant of summary judgment against the

Sellers respecting Count I and the corresponding theory for fraud; (2) affirm the grant of summary

judgment on Counts II through V against the Sellers, the theories for fraud corresponding to those

counts, and the “rehab” theory of fraud; (3) affirm the grant of summary judgment against the

Inspection defendants in full; (4) vacate the attorney fee award to the Seller’s counsel; (5) reverse

the attorney fee award to the Inspection defendants’ counsel; and (6) remand for further

proceedings consistent with this order against the Sellers only.

¶ 72 Affirmed in part; reversed in part; vacated in part; remanded with instructions.

¶ 73 JUSTICE GAMRATH, concurring in part and dissenting in part:

¶ 74 I concur in the majority’s decision to affirm summary judgment in favor of the Inspection

defendants in full and in favor of the Sellers on Counts II through V and the corresponding fraud

theories. However, it is my belief we should affirm summary judgment on Count I and related

fraud theory against the Sellers. Therefore, I dissent.

¶ 75 Summary judgment is a drastic remedy, but it is also a suitable mechanism to avoid

needless trials where, as here, the Buyers’ evidence is so weak on critical facts that no judgment

in their favor could stand. After four years of litigation, the only evidence the Buyers proffered to

defeat summary judgment is the opinion of their expert Panish, who testified “it’s highly unlikely

from efflorescence that I saw in that foundation and from the overall intrusions through the paint

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and bubbling and all the cracking that was down there that [the Sellers] lived in that property for

a period of time without knowing there was water actively leaking through the foundation.”

¶ 76 “Highly unlikely” suggests a low probability that the Sellers did not know of flooding or

recurring leakage problems in the basement. However, this is different from “actual knowledge,”

which is the standard to prove fraud and liability under the Property Disclosure Act, and it is

nowhere near the clear and convincing evidence the Buyers need to prove their case.

¶ 77 Had Panish left no doubt about the Sellers’ knowledge, I would agree his opinion is

sufficient to reverse summary judgment. But Panish merely speculates there is a likelihood based

on photos, observations, and the scent of mildew and mold he smelled when he walked through

the property on October 17, 2021, three-and-a-half years after the Sellers moved out and the Buyers

moved in. Yet, the Buyers admitted there was no smell of mold or mildew when they purchased

the property. Nor did their inspector or Permanent Seal detect one. Panish’s opinion also

presupposes there was active leaking into the basement despite no evidence whatsoever that the

moisture penetrated through the walls and flooded the basement while the Sellers lived there.

While an expert opinion is usually sufficient to raise a genuine issue of material fact, Panish’s

opinion must be based on fact. It cannot be a conclusion or based on an assumption or speculation

to defeat summary judgment.

¶ 78 This is not a typical battle-of-the-expert case where reasonable minds could differ to

preclude summary judgment. The Sellers unequivocally denied actual knowledge of flooding or

recurring leakage in the basement. The Buyers have no evidence otherwise. Prior to the sale, the

Sellers saw the same efflorescence that the Buyers’ inspector saw on the walls. The Sellers said

they did not know this was a sign of a recurring or active leak and denied any flooding in the

basement. The Property Disclosure Act did not impose a duty on the Sellers to make any specific

26 No. 1-23-0847

investigation or inquiry about the efflorescence, so they did not. The Buyers, however, did

investigate and admittedly knew before closing because of the inspection about cracks in the

foundation, bubbling paint, moisture intrusion, and efflorescence that was “likely the result of

years of moisture buildup.” The majority says: “If these defects were evident to the Buyers, they

would be evident to the Sellers and should have been disclosed on the Disclosure form.” However,

the defects became evident only after a professional inspector conducted a thorough and detailed

inspection prior to closing, after the Sellers signed the Property Disclosure form.

¶ 79 On March 7, 2018, prior to closing, the Buyers hired a home inspector to inspect the

property. The 64-page inspection report flags several areas of moisture intrusion and notes cracks

in the foundation three separate times. The report mentions moisture 27 times and informs the

Buyers that there is efflorescence on the foundation walls. The report shows pictures of

efflorescence and bubbling paint along the basement wall. The report says this may indicate

moisture penetration into the walls and recommends the Buyers have a qualified waterproofing

contractor evaluate the condition. The report also highlights deficiencies in the drainage system

and says that the routing of the downspouts can result in excessively high moisture levels at the

foundation. The report recommends adding extensions to the drainage system to protect the home

structure. It even includes a diagram for clarity. The report also notifies the Buyers of small

openings in the vinyl siding and says they should be sealed to prevent moisture intrusion. The

report describes the gutters and downspouts as “serviceable,” but notes drainage blockage. It also

alerts the Buyers to a grading and runoff deficiency and recommends regrading to prevent moisture

intrusion.

¶ 80 The inspection report put the Buyers on notice of all sorts of moisture issues, including

pooling of water at the base of the home and cracks in the foundation that “may allow water into

27 No. 1-23-0847

the structure.” The report specifically and repeatedly recommends that the Buyers contact

professional contractors to evaluate the several areas at risk of water. The Buyers chose not to until

after they closed and agreed to forgo any action on issues contained in the inspection report,

including routing of the downspouts, the grading and runoff deficiency, small openings in the

siding, and all other conditions noted in the report. The only relevant issue the Buyers raised was

over the “foundation and it’s current condition,” which their lawyer described in Exhibit A as “a

major concern for [the Buyers].”

¶ 81 In Exhibit A, the Buyers admit: “Various areas show cracks, moisture intrusion, and

efflorescence that is likely the result of years of moisture buildup.” The Buyers asked for more

time to “evaluate the cost/remedy of addressing this condition” and had Perma-Seal Basement

Systems visit the property prior to closing and provide a bid. Perma-Seal identified three cracks in

the foundation. It gave the Buyers a bid of $2,673 to repair the cracks and apply vapor barrier

sheeting designed to protect the foundation from moisture damage. The Buyers negotiated a $3,000

credit from the Sellers for these issues, but did not do any of the work Perma-Seal recommended.

They cannot accept payment, shut their eyes to the moisture problems, ignore the cracked and

deteriorating foundation, moisture intrusion, efflorescence, and years of moisture buildup, and

turnaround and recover for defects they had notice of prior to closing even if they were unaware

of the extent of the damage.

¶ 82 In fact, the record shows no one was aware of the extent of the damage until after a major

rain when the Buyers began noticing water-related problems and had contractors investigate. After

a deep dive and scoping of lines, they discovered a collapsed drainage pipe buried underground

and a downspout that burst at the seams causing water to leak from the rooftop, down the sides of

the house, into the walls and windows, and pool at the foundation. The Buyers blame the Sellers

28 No. 1-23-0847

for this, alleging that their failure to maintain and clean out the gutters resulted in the downspouts

splitting at the seams. This, coupled with the incorrect routing of the water and collapsed drainpipe

below ground, caused a calamity of flooding problems that went undetected until the Buyers

probed into it. But the Property Disclosure Act does not require a seller to inquire or investigate

potential material defects prior to signing the Property Disclosure form. It does not require a seller

to install or upgrade a drainage system to prevent future leaks. And it does not impose liability for

mere neglect or ignorance where there is no actual knowledge of a recurring problem.

¶ 83 It is time to end this litigation where the facts clearly show the Buyers were aware of

moisture problems and could have discovered the extent of the damage through a more diligent

inspection, as their inspector recommended. The Buyers’ willful ignorance of red flags and

unreasonable reliance on the Property Disclosure form should not be rewarded absent specific facts

of fraud or concealment, of which there is none. The Buyers bought the property and even

negotiated a $3,000 credit based on cracks in the foundation, moisture intrusion, efflorescence,

bubbling paint, and years of moisture buildup – all which Panish relied on to say the Sellers

committed fraud. Under these circumstances, I agree with the trial court that the Buyers did not

meet their burden of coming forth with sufficient facts to defeat summary judgment on Count I.

Accordingly, I dissent.