Siemer v. Reetz

2024 IL App (2d) 230293-U

• Court: Appellate Court of Illinois
• Decided: December 5, 2024
• Docket: 2-23-0293
• Status: Unpublished

Opinion

2024 IL App (2d) 230293-U No. 2-23-0293 Order filed December 5, 2024

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

VINCENT SIEMER and JANE DINSDALE ) Appeal from the Circuit Court SIEMER, ) of McHenry County. ) Plaintiffs-Appellants, ) ) v. ) No. 19-LA-316 ) PATRICIA ANN REETZ and STEVEN ) REETZ, ) Honorable ) Joel D. Berg, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in (1) denying plaintiffs leave to file a third amended complaint; (2) granting defendants partial summary judgment; (3) granting defendants’ motions in limine; (4) granting defendants’ motion for a directed finding; and (5) denying plaintiffs’ motion for substitution of judge.

¶2 Plaintiffs, Vincent Siemer and Jane Dinsdale Siemer, purchased a home from defendants,

Patricia Ann Reetz and Steven Reetz. A year later, they filed suit alleging misrepresentation and

breach of contract arising out of three issues: (1) the septic system, (2) flooding, and (3) structural

settlement. The trial court granted in part defendants’ motion for summary judgment, and the 2024 IL App (2d) 230293-U

remaining matters proceeded to a bench trial after which the trial court granted defendants’ motion

for a directed finding and entered judgment in favor of defendants. On appeal, plaintiffs allege that

the trial court erred in: (1) denying them leave to file a third amended complaint; (2) granting

partial summary judgment in defendants’ favor; (3) granting defendants motions in limine; (4)

granting defendants’ motion for a directed finding; and (5) denying plaintiffs’ motion for

substitution of judge. For the reasons that follow, we affirm.

¶3 I. BACKGROUND

¶4 Plaintiffs purchased a home on Pistakee Lake in McHenry County, Illinois from defendants

on August 25, 2018. The property was purchased “as is,” and no inspection of the home was

undertaken by plaintiffs. In conjunction with the sales listing, defendants prepared a residential

real property disclosure (Disclosure) pursuant to section 35 of the Residential Real Property

Disclosure Act (765 ILCS 77/35 (West 2018)). On the Disclosure, defendants indicated by

checking a box “yes” that they were “aware of flooding or recurring leakage problems in the crawl

space or basement” and that they were “aware that the property is located in a flood plain.”

Defendants checked a box “no,” indicating that they were not “aware of material defects in the

basement or foundation” of the property. In the additional space provided below the list of

disclosures, defendants wrote:

“Property on 100 year flood plane [sic]. Had floor checked when we bought 18 years ago,

original floor in place and no water damage of any sort. [W]ent up an additional 4 inches

during renovation -Worst flood in history considered to be the 100 year flood in 2017- No

lasting water damage on [l]and/property- no repairs required or done and no water within

4 feet of the bottom of the house.”

¶5 Plaintiffs, represented by counsel, filed a complaint on October 4, 2019, and then, after

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motion practice, filed subsequent amended complaints. The second amended complaint was filed

on January 27, 2021, and alleged claims of common law fraud by misrepresentation, as well as

breach of contract, related to the (1) septic system, (2) flooding, and (3) structural settlement of

the foundation. Regarding the septic system, plaintiffs alleged that the subject property was a 3-

bedroom, 2-bath single family home with no perimeter foundation and supported by piers and floor

beams. They alleged that defendants had undertaken extensive remodeling of the house during

their 18 years of ownership of the property and had also done some work on the surrounding lot.

It is alleged that defendants knew that there was no functioning septic system serving the home

but falsely represented in the Disclosure that there were no “material defects in the septic, sanitary

sewer, or other disposal system.” It is further alleged that defendants were informed of septic issues

when a tenant brought portable waste disposal equipment onto the property.

¶6 As for the issue of flooding, plaintiffs noted that defendants stated in the Disclosure that

when the property had flooded, there was “no water within 4 feet of the bottom of the house,”

when, in fact, “[w]indswept floodwaters and mud reached the house and would have done lasting

damage if the flood level had persisted longer or if the flood level had been 6 inches higher.”

Finally, regarding the structural settlement, plaintiffs alleged that the Disclosure falsely

represented that there were no material defects in the basement or foundation, but that the home

suffered “settling and upheaval” such that, in one bedroom, an exterior bedroom wall was bowed

and the floor was cracked and buckled. It was alleged a queen-sized mattress and box spring hid

these defects in the “staging and published” photos of the property. Further, plaintiffs alleged that

they relied to their detriment on these false statements and were damaged. The breach of contract

count contended that the misrepresentations as to these issues breached a duty to disclose in the

sales agreement.

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¶7 On April 6, 2021, defendants filed a motion to dismiss the second amended complaint

pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)), which was later

converted—upon motion—to a motion for summary judgment. While the motion was pending,

some discovery was undertaken by the parties, numerous court hearings occurred, and plaintiffs’

attorney withdrew. The plaintiffs then began representing themselves pro se. By order of the court,

discovery was closed on January 14, 2022, although some discovery was undertaken and discovery

issues continued to be heard by the court after that date.

¶8 On November 17, 2022, the trial court held a hearing on defendants’ motion for summary

judgment and granted the motion in part and denied it in part. It denied the motion with respect to

plaintiffs’ claims of fraudulent misrepresentation regarding the septic system and flooding. But it

granted judgment to defendants as to the claim of fraudulent misrepresentation regarding structural

settlement. Regarding the structural settlement count, defendants argued that plaintiffs had not

established that any settlement of the house had been fraudulently concealed. Defense counsel

stated that the “house is a hundred years old. There was no statement that it was perfect and

pristine. It was sold as-is, as a matter of fact.” Further, counsel asserted that there was “no

allegation of any overt representation by [defendants] about anything inside the house.” Further,

the mattress was not so difficult to move as to block any attempts to check the foundation. Plaintiffs

argued that during depositions, defendants admitted that there was a defect in the foundation, but

that it was not a significant defect. The trial court likewise entered summary judgment in favor of

the defense as to that part of the claim for breach of contract to the extent that the breach of contract

was based upon the issue of structural settlement.

¶9 Following the hearing on the motion for summary judgment, the parties addressed the

status of discovery and pleadings. The trial court noted that plaintiffs had filed a third amended

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complaint, without leave of court, and later struck the third amended complaint because it was

filed without leave but explained that plaintiffs could ask for leave to file an amended complaint.

¶ 10 Shortly after the entry of the order ruling on the summary judgment motion, plaintiffs filed

a series of motions: a motion for leave to file their third amended complaint; a motion to reconsider

the order granting partial summary judgment; another motion to reconsider an order denying a

previous motion by plaintiffs to compel defendants to produce the real estate listing; and a motion

for sanctions against defense counsel on the basis that she intended to “thwart production of a

relevant document,” that being the aforementioned real estate listing.

¶ 11 Plaintiffs’ pending motions were set for hearing on January 24, 2023. However, plaintiffs

failed to appear on that date. In plaintiffs’ absence, the trial court heard defendants’ argument on

plaintiffs’ motion for leave to file a third amended complaint. Defendants contended that filing a

third amended complaint would be improper, as the new complaint would be “the fourth attempt

of [these] plaintiff[s] to set forth what really happened, even though [they] swore to what happened

the first, second and third time.” Further, plaintiffs were attempting to file this third amended

complaint after the close of discovery and after summary judgment had been granted in part.

Finally, defense counsel argued that plaintiffs third amended complaint “counteracts the previous

verified complaints, and it is not appropriately verified.” The trial court indicated that “it is because

of that reason that their motion for leave to file the third amended complaint is heard, and most

respectfully, denied.” The trial court also denied plaintiffs’ motion for sanctions.

¶ 12 On January 25, 2023, plaintiffs filed a “motion for reconsideration of leave to file [third]

amended complaint.” In this motion, plaintiffs stated that they were unable to attend the January

24, 2023, hearing because they were experiencing technical difficulties, and the trial court should

again hear the motion on its merits. Plaintiffs also filed “submissions” in support of their motion

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to reconsider, arguing that the trial court based its ruling on the motion for summary judgment

“upon oral representations of opposing counsel at the hearing,” and not evidence. They further

argued that defense counsel intended to “ambush” them at the hearing by not filing a written

response to the motion. Plaintiffs also took issue with “unverified,” “late” discovery. Finally,

plaintiffs contended that it was improper for the trial court to conduct the hearing on the motion to

reconsider because they were not present for the hearing.

¶ 13 On March 3, 2023, at the hearing on plaintiffs’ motion to reconsider, plaintiffs argued that

the trial court erred in partially granting defendants’ motion for summary judgment because the

court based its findings on the reasoning that the home was “older” and sold “as-is.” The trial court

responded that this characterization was incorrect, as its decision was based upon the fact that

plaintiffs’ only evidence of settlement was that a mattress was placed on a floor in the home, but

there was no evidence that this placement was intended to prevent plaintiffs from being able to

inspect the premises or inspect the appearance of the floor. The trial court denied plaintiffs’ motion

to reconsider, explaining to plaintiffs its belief that “[a]s-is isn’t a bar to fraud, but [the] only claim

of fraud was based upon the placement of the mattress and nothing else beyond *** speculation

as to what that must have meant.” Following a discussion, the trial court also ordered that defense

counsel contact defendants’ real estate attorney to locate the real estate listing and that the

document be tendered to plaintiffs. Five days later, plaintiffs filed a “motion for reconsideration

of partial summary judgment and refusal to reconsider.”

¶ 14 On March 23, 2023, the trial court held a hearing on an unrelated motion to reconsider, that

is, plaintiffs’ motion to reconsider the denial of leave to file their third amended complaint. Prior

to that hearing, the trial court ordered that the motion to reconsider the March 3, 2023, ruling

(denying the motion to reconsider the partial grant of summary judgment) be stricken on the court’s

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motion, telling plaintiffs that “[y]ou cannot file a motion to reconsider a motion to reconsider or a

case would never, ever, ever, ever, ever, ever, ever, ever, ever end. You would be filing motions

to reconsider ad nauseam.”

¶ 15 The trial court then denied plaintiffs’ motion for leave to file a third amended complaint.

In addressing its concerns about the third amended complaint, the trial court noted that it was

treating this as a hearing on the original motion, not as a motion to reconsider the January 24, 2023,

hearing. The trial court addressed inconsistencies between the second and third amended

complaints, noting that several of the new counts had been previously dismissed, in whole or in

part. Specifically, it observed that the consumer fraud and negligent misrepresentation counts were

new and “most certainly” should not be in the complaint.

¶ 16 Following the hearing, plaintiffs filed a “motion for judicial recusal of Judge Berg under

Canon 2, Rule 2.11 of the Code of Judicial Conduct or Motion for Leave Seeking Recusal in the

Alternative.” See Illinois Code of Judicial Conduct, Canon 2 (eff. Jan. 1, 2023). In their motion,

plaintiffs copied and pasted numerous subsections of the Code of Judicial Conduct. Further,

plaintiffs opined that the trial court had predetermined issues in this matter and had ignored the

relevant law.

¶ 17 On April 13, 2023, the presiding judge of the division (“presiding judge”) held a hearing

on plaintiffs’ “motion for judicial recusal.” In sum, plaintiffs claimed bias and cited the “Bangalore

Principles that talk about United Nations Resolution 2006/23, Paragraph 81, Reasonable

apprehension of bias.” Further, as evidence of bias, plaintiffs opined that the trial court ruled that

they could not file a motion to reconsider a motion to reconsider, which plaintiffs believed to be

incorrect. This was compounded by the fact that the trial court then struck their motion as

improperly filed without leave.

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¶ 18 The presiding judge denied plaintiffs’ motion, explaining that “judges, of course, are

presumed impartial, and the burden of overcoming the presumption of showing prejudicial trial

conduct or personal bias rests on the party making the charge.” Further, it noted that “[o]pinions

formed by the judge on the basis of facts introduced or events occurring in the course of the current

proceedings do not constitute the basis for a bias or impartiality motion unless they display a deep-

seated favoritism or antagonism that would make fair judgment impossible,” nor do “judicial

remarks made during the course of trial that are critical or disapproving or even hostile to counsel.”

Based on this presumption of impartiality, the presiding judge ruled that the conduct complained

of did not rise to a level of prejudice that would require substitution of the judge overseeing the

instant case and denied the motion.

¶ 19 On June 15, 2023, defendants filed their motion in limine, which sought to bar three classes

of evidence: all of the fifteen newly named witnesses on a witness list recently tendered by

plaintiffs; any expert witnesses, because no expert disclosures were made in plaintiffs’ previous

interrogatory answers; and documentary evidence not tendered before the discovery closure.

Plaintiffs filed their opposition to the motion in limine as well as several other motions, which

were all heard before the trial court on July 20, 2023. After hearing argument, the trial court granted

the motion in limine as it related to newly disclosed witnesses. It then considered the request

exclude expert testimony that was not properly disclosed. The trial court asked whether either party

disclosed a witness pursuant to Rule 213(f)(2) (Ill. S. Ct. Rule 213(f)(2) eff. Jan. 1, 2018) or Rule

213(f)(3) (Ill. S. Ct. Rule 213(f)(3) eff. Jan. 1, 2018). Plaintiffs contended that their expert

witnesses were disclosed on the recently tendered consolidated list. After hearing further

argument, the trial court barred expert testimony as well as previously undisclosed documentary

evidence. After further discussion on plaintiffs’ disclosures, the trial court urged plaintiffs “to

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speak with an attorney [] regarding the 213 disclosures and get his or her opinion on that witness

list that you just handed to me with all of that because [] I anticipate that being a huge problem at

trial.” The trial court further explained to plaintiffs how a proper expert witness disclosure might

be presented, telling plaintiffs that they should include the curriculum vitae and what the expert

would testify to, again advising plaintiffs to speak to an attorney because their disclosures were

“really, really, really big deals, huge deals.”

¶ 20 After the hearing on the motion in limine, plaintiffs filed a “motion for reasons, rulings on

objections, to reconsider and/or for leave to supplement discovery.” In this motion, plaintiffs

opined that the trial court had “predetermined” its rulings on certain motions and asked that the

trial court “reconsider” its rulings on the motions in limine, seeking to “augment this discovery by

way of an amended consolidated witness list.” Plaintiffs further argued that “discovery rules

cannot be used as a blunt tool to decimate [their] case and access to justice.” A hearing on the

motion was held on July 31, 2023, where plaintiffs summarized their motion, stating that defense

counsel worded her motions in limine “effectively to prevent a trial because *** she’s asking for

no witnesses, no documents to be allowed.” Plaintiffs argued that they had properly disclosed all

discovery and witnesses with their consolidated list, to which the trial court reminded them, it had

“seen that consolidated list” and that it did “not comply with Rule 213 in any way, shape, or form.”

The trial court denied plaintiffs’ motion.

¶ 21 On August 2, 2023, plaintiffs filed a “motion for order that defense produce defendants for

cross-examination on their evidence” at the trial set for August 14, 2023. Plaintiffs contended that

defendants had filed affidavits in the case, “thereby committing themselves as fact witnesses.” The

motion was denied.

¶ 22 Trial was held on August 14, 2023, on the remaining counts, which were Count I (fraud–

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septic), Count II (fraud–flooding), and Count IV (breach of contract–to the extent based upon

alleged failure to disclose alleged septic and flooding). Plaintiffs first called Vincent Siemer to

testify on his own behalf. He testified as follows. When plaintiffs purchased the home, defendants

filled out a real estate contract and the Disclosure. Defendants answered “no” in the portion of the

Disclosure that asked whether they were aware of material defects in the basement or foundation

of the home. After moving into the home, Vincent noticed issues with the septic system backing

up. This issue began in May 2019 and prompted Vincent to call Steven Reetz. Steven provided a

diagram of where the septic system was located. During their conversation, Steven told Vincent

that he had never experienced an issue with the septic system. Vincent later observed sewage

pouring into the yard.

¶ 23 Regarding the issue of flooding, Vincent testified that defendants had disclosed that “the

worst flood in history [was] considered to be the hundred-year flood in 2017,” but that there was

“no lasting water damage on [the] land/property.” Vincent stated that this was “a grossly inaccurate

representation of fact” because “the garage had sunk after the 2017 flood.” He further testified that

after he purchased the home, he noticed mud marks on the vertical pylons. The mud marks were

within six inches of the structural beams, indicating to him that the flood waters had risen that

high. Vincent stated that the home had a basement and fully enclosed crawl space. He testified that

plaintiffs “would not have paid as much as [they] actually did for the property had the defendants

not contractually misrepresented the flood risk.” Vincent began to discuss the real estate listing

which had become contested during discovery, at which point the trial court interrupted him to

remind him that the parties were before the trial court “for bench trial,” and that “[t]here [were]

two counts remaining before the court, fraudulent misrepresentation regarding the septic and

fraudulent misrepresentation regarding flooding.” It reminded Vincent that he needed to prove the

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elements related to those causes of action.

¶ 24 Vincent then attempted to testify that the flood level in 2017 had been three and a half feet

higher than defendants disclosed. He also attempted to introduce into evidence an expert witness’s

professional appraisal, stating his belief that Rule 213(f)(1) discovery closing did not prohibit

expert witness evidence. When the trial court told Vincent that he was “ignoring every single

ruling” the court made, Vincent responded “[t]hat’s prejudicial. I’m sorry. That’s disrespectful.”

¶ 25 Returning to the issue of the septic system, Vincent testified that he began to smell sewage

emanating from the side of the house in a large area of the yard, so plaintiffs employed a septic

company to pump the septic tank. After prodding in the yard, an employee of the septic company

found a patio block three inches under the soil. Under the block there was a hole with branches

thrown over it. From the hole, there was a plastic pipe that ran to an old cistern made of brick.

When plaintiffs attempted to flush the toilet, sewage flushed directly into the ground. Vincent then

telephoned Patricia Reetz, who told him that three weeks before plaintiffs had taken possession of

the house, defendants invited 30 people over for Labor Day and defendants did not have any

problems with the septic system. Vincent testified about an email he had received from Patricia

after closing where she stated that

“we know that the tank is concrete and pipes are cast iron. We do not know the age, but we

were told by the neighbors as well as the owners we bought from that his father went

overboard on what was necessary in code at the time. The neighbors indicated that he may

have been in the industry. From our research, concrete tanks seem to be strongest with least

deterioration.”

However, Vincent discovered that there was no tank on the property, concrete or otherwise.

¶ 26 At this point, the trial court briefly interrupted Vincent’s testimony to ask whether plaintiffs

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had ordered a well and septic inspection of the property. Vincent stated that they had not, as “[i]t

wasn’t a requirement” and plaintiffs “relied on the sellers’ disclosure.” Vincent also confirmed for

the trial court that plaintiffs had “every right to get a well and septic exam.” The trial court further

told plaintiffs that “a real property disclosure is where they have to report to you any issues that

are known to them. It is not an affirmative obligation to go out and validate and verify,” and that

it was “waiting” for testimony about the misrepresentations made, specifically that it needed “to

hear a material misrepresentation of fact, *** reliance on the material misrepresentation of fact,

and *** damages as a result of the misrepresentation of fact, okay?”

¶ 27 Vincent continued that he paid an invoice to a septic company for $190. The sewage

problem, in his opinion, required immediate attention, which became difficult because many septic

companies refuse to service septic systems located on floodplains. Vincent found a contractor in

the spring of 2020. He attempted to testify as to what his contractor would testify to, arguing that

he should have been able to call the contractor as an expert witness because defendants were

“notified” that plaintiffs wanted to call the contractor as a witness. The trial court reminded the

plaintiffs of its ruling barring expert testimony and refused the evidence. Vincent then testified on

cross-examination as follows. In October of 2018, he had at least 10 truckloads of dirt brought

onto the property. Plaintiffs lived in the home for three or four weeks in the fall of 2019. In the fall

of 2018, plaintiffs had friends stay at the property. Regarding the design of the home, Vincent

stated that there were pylons visible from outside the home. From the crawl space, the pylons

appeared to be three feet high. From the basement, the pylons appeared to be seven feet high.

¶ 28 Daniel Thorsen, a retired operating engineer, was next called to testify. He visited the

property and did not locate a septic system. He stated that Vincent had dug up a pipe to find out

what the problem was, but the pipe either went nowhere or to a “little tiny cistern right about three

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foot in diameter and about three-foot deep.” This was located on the west side of the house.

Thorsen and Vincent dug up “this septic line coming out of the house.” It went to the cistern and

was “all bowed and all caved in.” They dug out the old cistern and installed a new 1000-gallon

holding tank and backfilled it. When asked if he witnessed anything unsafe or unhealthy, Thorsen

responded, “[s]ewage that’s coming on top of the ground, that’s unhealthy.” He further stated that

the sewage in the ground appeared to be “seeping up.” When asked if there was “anything that

indicated that system was rigged to cover up the fact that it wasn’t a septic,” he responded, “No,

there was nothing indicated other than the sewage coming up through the ground.” After

investigating it, he found out the whole cistern had collapsed. The cistern was brick with a stone

top. On cross-examination, Thorsen testified that the tank was full of bricks and material that had

collapsed.

¶ 29 Jane Siemer testified as follows. After closing on the home, plaintiffs stayed at the property

for about three weeks. Two friends joined them for a portion of that time. She stated that they

began noticing septic issues because the toilets were not flushing and were “backing up a bit.” She

recalled a septic company coming to the property and sticking a pole into the ground, looking for

the septic. The employee for the septic company began hitting tiles and dug one up. Jane further

testified that she remembered flushing the toilet and seeing water come out of the main sewer line.

She noticed toilet paper exit the pipe too.

¶ 30 After Jane’s testimony, plaintiffs rested. Defendants moved for a directed finding pursuant

to section 2-1110 of the Code (735 ILCS 5/2-1110 (West 2022)). Defendants contended that

plaintiffs had not advanced sufficient evidence to meet all the prima facie elements of fraudulent

misrepresentation for either septic system or the flooding. Specifically, they argued that the court

had not “heard a word *** about any statements prior to closing other than the admission that there

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was no well and septic or any other kind of inspection done here.” They further argued there was

“no evidence of damages that were caused by anything [defendants had] done,” and that a directed

finding was appropriate.

¶ 31 Plaintiffs responded that “it’s not a case of as-is. It’s a case of disclosure, which is a

contractual obligation, and it’s founded in the law.” They further opined that “there is no tank and

no septic field. That was never contested, yet the house was sold with a septic tank and septic

field.” The trial court asked plaintiffs what evidence there was regarding the condition of the septic,

and plaintiffs responded that it was in the email Vincent testified about. The trial court clarified

that this email was sent after closing on the home. Vincent indicated that there was also evidence

of a phone call with Steven prior to closing, but Vincent admitted that that information was

provided in his affidavit. He did not testify to it.

¶ 32 The trial court asked plaintiffs what evidence there was of flooding. Plaintiffs responded

that the evidence was in the depositions, which were not in evidence. They also argued that Vincent

testified that there were water marks and mud marks on the pylons that were six inches beneath

the horizontal beams. Further, plaintiffs opined that “with that and the damages of having all these

companies search unsuccessfully for a septic system, putting the tank in, getting the engineering

done, so the misrepresentations, in my submission, are quite clear there.”

¶ 33 The trial court granted the motion for directed finding. In so ruling, it explained to plaintiffs

that it did not find any evidence that the property flooded, stating “I have mud marks. That is it.”

Further, plaintiffs presented no evidence that defendants made a false statement regarding

flooding. It continued, that the “only evidence I have at this time is a dispute between was the

water four feet away or six inches away, but four feet or six inches is still away and it is not

flooding. *** I cannot even draw an inference from the evidence that has been presented.” Based

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on the limited evidence presented by plaintiffs, the trial court stated “I have no evidence that a

false statement was made. I have no evidence that it was made with the knowledge that it was

false. I have no evidence it was intended to induce.” Thus, the motion for directed finding on the

count of fraudulent misrepresentation regarding flooding was allowed.

¶ 34 Regarding the septic issue, the trial court found that plaintiffs’ “entire case on the septic

system at this time hinges on two things. It hinges, first, on the real property disclosure.” The trial

court believed that plaintiffs “urged upon [the trial court] that that is essentially to be treated as a

breach of contract.” However, it stated that the issue was not a breach of contract, as the Disclosure

“is not a warranty sheet,” but a form where defendants checked boxes “based upon their best

knowledge.” The trial court then proceeded to read the evidence presented about defendants’

knowledge of the septic system and found it to be “very clear right out of the gate that they don’t

have a clue what kind of septic they [had]. *** They [were] literally reporting what they were told

20 years ago, and they [made] it clear that is what they are doing.” After reading the email evidence

further, the trial court found that it had no evidence that any of defendants’ statements were made

with knowledge that the information was false. It had “no evidence that they knew any of that was

a lie. None.” Because plaintiffs failed to demonstrate that defendants had any awareness that they

were making false representations regarding the septic, the motion for directed finding on the

septic issue was heard and allowed.

¶ 35 Finally, regarding the breach of contract count, plaintiffs argued that defendants breached

the contract because “the sellers’ disclosure was used as an inducement and [plaintiffs] reasonably

relied upon it.” But the trial court granted the motion for directed finding as to the breach of

contract count, stating that the merger doctrine “says that the contract merges into the deed upon

closing and delivery of the deed.” Final judgment was entered in favor of defendants and this

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timely appeal followed.

¶ 36 II. ANALYSIS

¶ 37 A. Plaintiffs’ Third Amended Complaint

¶ 38 Plaintiffs first argue that the trial court erred in denying their motion for leave to file a third

amended complaint. In support of their motion, plaintiffs rely on the factors set forth in Loyola

Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 272-77 (1992).

¶ 39 We review the trial court’s ruling on a plaintiff’s motion to amend a complaint for an abuse

of discretion. United Conveyor Corporation v. Allstate Insurance Co., 2017 IL App (1st) 162314,

¶ 35; Loyola Academy, 146 Ill. 2d at 273-74. Section 5/2-1005(g) of the Code allows a party to

amend pleadings upon just and reasonable terms before or after the entry of summary judgment.

735 ILCS 5/2-1005(g) (West 2022); United Conveyor Corp., 2017 IL App (1st) 162314, ¶ 35.

Although Illinois law adopts a liberal policy regarding the amendment of pleadings, the right is

not unlimited, and there is no absolute right to amend a complaint. United Conveyor Corp., 2017

IL App (1st) 162314, ¶ 35.

¶ 40 In Loyola Academy, 146 Ill. 2d at 273, our supreme court articulated four factors a court

must consider when ruling on motions to amend before final judgment: (1) whether the proposed

amendment would cure a defective pleading; (2) whether other parties would sustain prejudice or

surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and

(4) whether previous opportunities to amend the pleading could be identified. The party seeking

leave to amend bears the burden of demonstrating that all four factors favor the relief requested.

United Conveyor Corp., 2017 IL App (1st) 162314, ¶ 36.

¶ 41 We have considered each of the Loyola factors and find that the trial court did not abuse

its discretion in denying plaintiffs’ motion for leave to file a third amended complaint. As to factor

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one, whether the proposed amendment would cure a defective pleading, we find that this factor

weighs against plaintiffs. Plaintiffs argued that the third amended complaint cured their defective

pleading by adding a new cause of action and addressing the causes of action which had been

stricken previously by the trial court. However, plaintiffs’ third amended complaint was not

verified—unlike the first two complaints—and allegations in the third amended complaint were

contradictory to those in the prior complaints. “A sworn statement of fact in a verified pleading

remains binding on the party even after an amendment, and the party cannot subsequently

contradict the factual allegation.” L.D.S., LLC v. Southern Cross Food, Ltd., 2011 IL App (1st)

102379, ¶ 35. Thus, the contradictions in fact between the verified complaints and plaintiffs’ third

amended complaint do not weigh in favor of curing a defect. Having said that, we see no material

difference between the proposed and the current complaint with respect to factual allegations

related to fraud predicated on structural settlement. Summary judgment had been entered in favor

of the defense as to those allegations, but nothing in the third amended complaint would have

required revisiting that ruling.

¶ 42 As to factor two, whether other parties would sustain prejudice or surprise, this factor again

weighs against plaintiffs. Plaintiffs’ third amended complaint was filed on October 17, 2022—

over three years after the initial complaint and nine months after the second amended complaint.

Further, it contained allegations that were contradictory to the previous complaints. Finally, it

purported to allege a new cause of action, consumer fraud, which would undoubtedly have been

the subject of motion practice. To file a complaint with a new count and new factual allegations

contradicting those that the parties had been operating with in the three years that the case was

pending would cause prejudice to defendants.

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¶ 43 This point also touches upon the third factor (timeliness) as well as the fourth (whether

previous opportunities to amend can be identified). On these points, we agree with the trial court

that plaintiffs’ proposed amendment was untimely and their delay in seeking amendment is

unexplained. They moved for leave to file the third amended complaint on December 1, 2022, nine

days after the summary judgment ruling and over three years after filing their original complaint.

At the time plaintiffs filed their motion, discovery had been closed for nearly a year and almost

two years had passed since plaintiffs filed their second amended complaint. See United Conveyor

Corp., 2017 IL App (1st) 162314, ¶ 37 (the plaintiff’s motion for leave to amend was not timely

where the plaintiff sought to amend its complaint 22 days after the trial court entered its summary

judgment ruling and more than three years after it filed its complaint).

¶ 44 Plaintiffs also argue that the trial court erred by conducting an ex parte hearing first and

later treating the motion as a “rehearing.” This is disingenuous. Plaintiffs knew of the date for

hearing on their motion to amend—January 24, 2023—the date they failed to appear. Thus, when

the trial court initially ruled on their motion in plaintiffs’ absence, it was not ex parte. See Black’s

Law Dictionary 657 (9th ed. 2009) (an ex parte hearing is held “without notice to” the opposing

party); see also Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 11. But more to

the point, the trial judge heard the “motion to reconsider” as a hearing on the original motion to

amend, because it learned that plaintiffs had been kept out of the virtual hearing due to technical

issues. This worked to plaintiffs’ benefit. As we have stated, the trial court’s order denying

plaintiffs leave to file a third amended complaint was not an abuse of discretion.

¶ 45 B. Summary Judgment

¶ 46 Next, plaintiffs argue that the trial court erred in granting partial summary judgment as to

plaintiffs’ claim of common law fraud by misrepresentation based on settlement of the home, and

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that part of the breach of contract claim which relied on allegations of fraud regarding the structural

settlement. Specifically, plaintiffs argue that the trial court made its ruling by reasoning that the

house was sold as-is. We note that while defendants have filed a brief in this court and argued

about other contentions made by plaintiffs on appeal, their brief omits any discussion of this ruling.

However, this omission does not require automatic reversal, and plaintiff continues to bear the

burden of establishing error. See TSP-Hope, Inc. v. Home Innovators of Illinois, LLC, 382 Ill. App.

3d 1171, 1173 (2008).

¶ 47 “The purpose of a summary-judgment proceeding is not to try an issue of fact but, instead,

to determine whether a genuine issue of material fact exists.” Evans v. Brown, 399 Ill. App. 3d

238, 243 (2010). “Summary judgment is properly granted when the pleadings, depositions,

admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show

that there is no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law.” Enbridge Pipeline (Illinois), LLC v. Kiefer, 2017 IL App (4th) 150342, ¶ 35. In

evaluating a motion for summary judgment, we are limited to the record as it existed at the time

the motion was presented to the trial court. Monson v. City of Danville, 2018 IL 122486, ¶ 47

(citing McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941, 947 (1993)).

¶ 48 We review a trial court’s order granting summary judgment de novo. Northern Illinois

Emergency Physicians v. Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). “In

undertaking such review, our function is to determine whether the court reached the proper result.

The reasons given by the court for its decision or the findings on which the decision is based are

not material if the judgment is correct.” Id. We may affirm a grant of summary judgment “for any

reason that finds its basis in the record, regardless of whether the trial court exercised similar

reasoning.” Brettman v. M & G Truck Brokerage, Inc., 2019 IL App (2d) 180236, ¶ 28.

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¶ 49 The elements of common-law fraud are: (1) a false statement of material fact; (2) the

defendant’s knowledge that the statement was false; (3) the defendant’s intent that the statement

induce plaintiff to act; (4) the plaintiff’s reliance upon the truth of the statement; and (5) the

plaintiff’s damages resulting from reliance on the statement. Connick v. Suzuki Motor Co., 174 Ill.

2d 482, 496 (1996); Capiccioni v. Brennan Naperville, Inc., 339 Ill. App. 3d 927, 933 (2003). In

the context of common law fraud, the law presumes that transactions are fair and honest; fraud is

not presumed. Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 191–92 (2005).

Accordingly, a plaintiff has the burden of proving each element of fraud by clear and convincing

evidence. Findlay v. Chicago Title Ins. Co., 2022 IL App (1st) 210889, ¶ 80, as modified on denial

of reh’g (Nov. 3, 2022), appeal denied, 201 N.E.3d 575 (Ill. 2023).

¶ 50 The plaintiffs’ complaint alleged that the Disclosure fraudulently denied that sellers were

aware of any material defects in the foundation, walls, windows doors or floor, in that there was

“preexisting settling and upheaval” resulting in defects in the North bedroom: a bowed wall, and

damage to the floor. The complaint stated that this was concealed by the placement of a mattress

and box spring “over and in front of the defect in their staging and published photographs of the

property.” The defendants’ answer denied any material defect, any concealment, and any alleged

damages.

¶ 51 Setting aside the parties’ briefs on the motion for summary judgment, relevant to the

summary judgment, the trial court had before it the following evidence: (1) sworn affidavits from

both defendants, appended to their motion, (2) the plaintiffs’ sworn affidavits, attached to their

response, and (3) plaintiffs’ jointly sworn interrogatory answers. While the deposition of Daniel

Thorsen, a septic engineer, was properly before the court, it related only to the septic claims. That

was the only sworn deposition testimony before the court.

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¶ 52 The affidavit of Mrs. Reetz stated:

“The home on the Property is over 100 years old. It has character. It was never represented

to be a new construction home. The age was fully disclosed. Over 100 years of wear and

tear and settling, it is not surprising that some portion of the home is not perfectly square.

There were no cracks that we knew of and certainly no significant cracks anywhere in the

walls, floors or of the home on the Property at the time of Closing. The Complaint describes

a Southeast corner of the home as being the location with the buckling in the bedroom,

hidden by the bed; however, the southeast corner is a closet. At all times between August

9, 2018 and September 28, 2018, the home was available for inspection by Plaintiffs or

their agents. At no time between August 9, 2018 and September 28, 2018 did we take any

steps to hide, cover or mask any cracks or buckling at the Property. At no time did we place

any furniture, rug or other obstruction to cover any defect.”

¶ 53 The affidavit of Mr. Reetz said stated that

“when we closed on the sale of the Property, on September 28, 2018, there were not any

latent defects on the floor or walls in the second bedroom (which is actually located at the

NE end of the home). We were unaware of any buckling and cracking and photos reflect

condition at closing.”

The listing photos were attached to the affidavits, and relative to the issue of settlement as alleged

in the complaint, there is a photo of the North bedroom, which appears to be a small bedroom with

a low bed, made with pillows and coverlet, in the corner. The flooring, windows, and walls are

unremarkable, although only partially visible due to the angle of the camera. None have discernible

defects. In their memorandum supporting their motion, the defendants argue that they were entitled

to summary judgment related to the settlement issue because of the absence of sufficient evidence

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to establish the non-movants’ case, asserting that “Plaintiffs have proffered no evidence of

knowledge, false statement, intent to induce reliance, reasonable reliance, causation or damages.”

¶ 54 Plaintiffs responded with their own sworn affidavits, but on the issue of the structural

settlement, neither offers much information. Mrs. Siemer provides some facts about the flooding

and the septic but says nothing about alleged settlement in the North bedroom. Relevant to that

topic, Mr. Siemer’s affidavit says only this: “The house settlement REETZs are alleged to have

concealed is, as Ms Reetz indicates, in the northeast corner of the house and not the southeast

corner.” The plaintiffs’ brief raises arguments about some of the factual assertions made by

defendants but added nothing to the factual material properly before the court. Defendants replied,

asserting that, with respect to the issue of structural settlement, plaintiffs had proffered no evidence

of defendants’ knowledge, false statements, intent to induce reliance, reasonable reliance,

causation or damages.

¶ 55 Defendants further claimed the Plaintiffs had abandoned the structural settlement count,

not addressing it at all. In their sur-reply brief, plaintiffs allude in conclusory and argumentative

fashion to statements Mrs. Reetz purportedly made about the North bedroom at her deposition, but

the deposition was not in the record before the court, therefore these arguments were not evidence

properly before the court for the purposes of the summary judgment motion. See Essig v. Advocate

BroMenn Medical Center., 2015 IL App (4th) 140546, ¶¶ 41-43 (finding that expert’s report

attached as an exhibit to non-movant’s brief in opposition to summary judgment motion “not

properly before either the trial court or this court” for the purpose of summary judgment, because

it was not sworn to, notarized, or otherwise made under oath).

¶ 56 “The purpose of a summary judgment proceeding is not to try an issue of fact but, instead,

to determine whether a genuine issue of material fact exists.” Evans v. Brown, 399 Ill. App. 3d

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238, 243 (2010). Summary judgment is appropriate only “if the pleadings, depositions, and

admissions on file, together with the 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). “When a party moving for summary judgment files supporting affidavits

containing well-pleaded facts, and the party opposing the motion files no counter affidavits, the

material facts set forth in the movant's affidavits stand as admitted. [Citation.] The opposing party

may not stand on his or her pleadings in order to create a genuine issue of material fact.” Enbridge

Pipeline (Illinois), LLC v. Kiefer, 2017 IL App (4th) 150342, ¶ 49 (Internal quotations omitted).

¶ 57 In this case, construing record strictly against the movant as we must, (see Monson, 2018

IL 122486, ¶ 12), there was the denial of a crack or any defects in the north bedroom by Mrs. Reetz

in her affidavit, and Mr. Seimer’s agreement that the “house settlement REETZs are alleged to

have concealed is, as Ms Reetz indicates, in the northeast corner of the house and not the southeast

corner.” Even if we read this comment generously as an attempt to incorporate a conclusory

allegation in the complaint that there was a defect in the room and give it “evidentiary weight for

purposes of summary judgment,” (Essig, 2015 IL App (4th) 140546, ¶ 49; see People ex rel.

Stephen B. Diamond, P.C. v. Henry Poole & Co. 2023 IL App (1st) 220195, ¶ 36 (observing that

allegations sufficient to surpass a motion to dismiss may be insufficient to surpass summary

judgment)), we would be required to affirm because plaintiffs did not present any specific evidence

of damages. There were no receipts, estimates, or similar material that could demonstrate their cost

before the court at the hearings. “In order to survive a motion for summary judgment, a plaintiff

need not prove her case, but she must present a factual basis that would arguably entitle her to a

judgment.” Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. “If the plaintiff fails to establish any

element of the cause of action, summary judgment for the defendant is proper.” Williams v.

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Manchester, 228 Ill. 2d 404, 417 (2008). Essig, 2015 IL App (4th) 140546, ¶ 38. In sum, plaintiffs

presented no facts to support their claim regarding structural settlement issues with the home. We

therefore find the trial court’s grant of summary judgment on this count was properly entered.

¶ 58 C. Rulings on Motion in Limine

¶ 59 Plaintiffs next contend that the trial court erred in its rulings on defendants’ motion in

limine to bar undisclosed evidence which was heard just prior to trial. In sum, plaintiffs argue that

the trial court erred in granting defendants’ motions in limine and, as a result, limiting the evidence

which plaintiffs could present at trial.

¶ 60 The case was filed on October 4, 2019. On July 27, 2021, the trial court entered a discovery

order requiring Rule 213(f)(1) discovery to be completed by September 8, 2021, which was later

extended until October 8, 2021, and then again extended until January 14, 2022. It should be noted

that plaintiffs’ attorney moved to withdraw as counsel on January 10, 2022, which was granted on

March 18, 2022. Plaintiffs then filed their appearance to represent themselves pro se on May 3,

2022. On August 30, 2022, the court granted plaintiffs leave to take depositions of defendants,

Steven Reetz and Patricia Reetz, setting a deadline of September 16, 2022, but denied plaintiffs’

request to serve new interrogatories. The trial court also ordered that any and all discovery which

was not completed by September 16, 2022, was “waived.” In their brief in this court, plaintiffs

concede discovery was cut off in 2022. In March of 2023, the case was set for bench trial on August

14, 2023.

¶ 61 On June 15, 2023, the defense filed a motion in limine asking the court to bar undisclosed

testimony witnesses or exhibits not timely disclosed. According to defendants’ motion, plaintiffs’

previous and timely disclosures named three witnesses, plaintiffs themselves and Daniel Thorsen.

These disclosures were made in September 2021 (Thorsen was deposed by the defense in

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September 2022). But now, the defense alleged that plaintiffs had served upon them a new witness

list dated March 14, 2023, plaintiffs’ Rule 213 “Consolidated Witness List,” naming 15 additional

witnesses, four of whom were identified as experts. The motion also requested the bar of

previously undisclosed documentary exhibits. The trial court granted the motion and denied a

motion to reconsider. On appeal, plaintiffs argue that the trial court erred by finding that their

witnesses and documentary evidence had not been previously disclosed during discovery; that,

even if not formally disclosed, defendants were on notice of the witnesses to be called at trial such

that any violation was harmless; and that the trial court failed to consider appropriate factors in

imposing a harsh sanction.

¶ 62 The supreme court of Illinois has propounded rules of discovery allowing a party broad

access to pretrial disclosure of “any matter relevant” to the cause of action. Ill. S. Ct. R. 201(b)(1)

(eff. Mar. 17, 2023); see Ill. S. Ct. R. 201-224 (eff. Oct. 1, 2024). Supreme Court Rule 214 requires

a party to provide requested documents, including photographs and “all retrievable information.”

Ill. S. Ct. R. 214 (eff. July 1, 2018). Supreme Court Rule 213 requires a party—upon request—to

identify their witnesses at trial and provide information about the witness’s anticipated testimony.

Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2018); Heriford v. Moore, 377 Ill. App. 3d 849, 852 (2007)

(“Subparagraph (f) of that rule provides a clear condition precedent to the provision of discovery,

unlike Rule 222. The duty to disclose arises ‘[u]pon written interrogatory.’ ”).

¶ 63 The amount of information required by Rule 213 concerning each witness varies by the

type of witness. There are three categories. See Ill. S. Ct. R. 213(f)(1)-(3) (eff. Jan. 1, 2018); id. at

Committee Comments (“The paragraph divides witnesses into three categories, with separate

disclosure requirements for each category.”).

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¶ 64 The first category is lay witnesses. A lay witness is one who will testify to facts or lay

opinions; for these witnesses, the disclosure need only disclose the subjects of the witness’s

testimony. See Ill. S. Ct. R. 213(f)(1) (eff. Jan. 1, 2018); id. at Committee Comments (stating that

“subjects” means “the topics, rather than a summary.”). The second category of witness for the

purposes of Rule 213 is an independent expert witness. See Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1,

2018). That is a person who will offer expert testimony, but is not the party, the party’s employee,

or the party’s retained expert. Id. Rule 213(f)(2) requires disclosure of the subjects on which an

independent expert will testify and the opinions the party expects to elicit. Id.

¶ 65 The third category of witness recognized by Rule 213 requires the most detailed

disclosures. See. Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018); id. at Committee Comments (“[R]ule

requires the party to provide all of the details requires by the former rule.”). Supreme Court Rule

213(f)(3) requires that a party calling a controlled expert witness must identify: (i) the subject

matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the

bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness

about the case. See Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018).

¶ 66 Turning to the application and construction of the rule, the rule itself states: “This rule is

to be liberally construed to do substantial justice between or among the parties.” See Ill. S. Ct. R.

213(k) (eff. Jan. 1, 2018). The seminal case construing Rule 213 is Sullivan v. Edward Hospital,

209 Ill. 2d 100 (2004). There, the supreme court observed:

“This rule is intended to be a shield to prevent unfair surprise but not a sword to prevent

the admission of relevant evidence on the basis of technicalities. The purpose of the rule is

to allow for a trial to be decided on the merits. The trial court should take this purpose into

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account when a violation occurs and it is ordering appropriate relief under Rule 219(c).”

Sullivan, 209 Ill. 2d at 109.

¶ 67 When there is an objection to evidence based upon Rule 213, the proponent of the evidence

has the burden to prove that the information was provided in an answer to a Rule 213 interrogatory

or in the witness’s discovery deposition. See Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 850

(2010). As Sullivan signals, a finding of whether there is a Rule 213 violation is only the first step

in the analysis of a Rule 213 objection. Zickuhr v. Ericsson, Inc., 2011 IL App (1st) 103430, ¶ 79.

If there is a violation of the rule, the discussion is not over because there is no automatic bar of the

violative testimony. Zickuhr, 2011 IL App (1st) 103430, ¶ 80. The trial court must then determine

the appropriate sanction for the Rule 213 violation. Id.

¶ 68 Rule 219(c) authorizes a trial court to prescribe sanctions, including barring witnesses and

exhibits, when a party failed to comply with the trial court’s orders regarding discovery, Ill. S. Ct.

R. 219(c) (eff. July 1, 2002); Nedzvekas v. Fung, 374 Ill. App. 3d 618, 620 (2007). That

determination is guided by consideration of six factors. These are: (1) the surprise to the adverse

party; (2) the prejudicial effect of the testimony; (3) the nature of the testimony; (4) the diligence

of the adverse party; (5) the timely objection to the testimony; and (6) the good faith of the party

calling the witness. Sullivan, 209 Ill. 2d at 100. The same test is used in determining sanctions

under Rule 214. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 124 (1998). The

imposition of discovery sanctions is within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of discretion. Nedzvekas, 374 Ill. App. 3d at 620-21.

¶ 69 Prior to considering the merits of the trial court’s bar order, we must first address

defendants’ argument that plaintiffs failed to preserve for appeal the issue of exclusion of evidence

because plaintiffs made no competent offer of proof at trial. The Illinois Rules of Evidence provide

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that: “Error may not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected, and *** [i]n case the ruling is one excluding evidence, the

substance of the evidence was made known to the court by offer or was apparent from the context

within the questions were asked.” Ill. R. Evid. 103(a)(2) (eff. Jan. 1, 2011). Section 103(b)(3) adds:

“In civil trials, even if the court rules before or at trial on the record concerning the admission of

evidence, a contemporaneous trial objection or offer of proof must be made to preserve a claim of

error for appeal.” Ill. R. Evid. 103(b)(3) (eff. Jan. 1, 2011).

¶ 70 A party claiming he or she has not been given the opportunity to prove his or her case must

provide a reviewing court with an adequate offer of proof as to what the excluded evidence would

have been. In re Estate of Romanowski, 329 Ill. App. 3d 769, 773 (2002). An adequate offer of

proof apprises the circuit court of what the offered evidence is or what the expected testimony will

be, by whom it will be presented, and its purpose. Clayton v. County of Cook, 346 Ill. App. 3d 367,

385 (2003), modified on reh’g (Feb. 26, 2004). The purpose of an offer of proof is to inform the

trial court, opposing counsel, and a court of review of the nature and substance of the evidence

sought to be introduced. Volvo of America Corp. v. Gibson, 83 Ill. App. 3d 487, 491 (1980). The

failure to make an offer of proof results in a forfeiture of review of whether the evidence was

excluded improperly. Clayton, 346 Ill. App. 3d at 385.

¶ 71 In Volvo of America Corp. v. Gibson, 83 Ill. App. 3d 487 (1980), the lessee of a car was

sued for his failure to make payments on the lease. During the lessee’s examination by his own

counsel, objections to questions concerning the operability and functioning of the car being leased,

as well as of a similar previously leased car, were sustained. Volvo of America Corp., 83 Ill. App.

3d at 490. The appellate court held that not only did the offer of proof fail to apprise the trial court

of the purpose of the testimony and assess its value to the case, it also left the appellate court unable

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to review the issue: “From the foregoing we are unable to find that the proposed evidence should

have been received or that prejudice resulted from its exclusion.” Id. at 492.

¶ 72 In this case, no offer of proof was made to the trial court concerning any of the excluded

evidence. That would have served the purpose of allowing the trial court an opportunity to

understand the nature of the evidence sought to be admitted, as well as consider the prejudice and

surprise (or lack thereof) that its admission might have effected on defendants, key factors in

applying the six factor Sullivan test. See Sullivan, 209 Ill. 2d at 110. More to the point, it would

have also provided this court with a basis to review the bar order imposed by the trial court.

¶ 73 An appellate court will review a trial court discovery sanction using the same six Sullivan

factors. See Sohaey v. Van Cura, 158 Ill. 2d 375, 380 (1994). Like the court in Cotton v. Coccaro,

“we are left guessing as to what evidence was even excluded, and we have no way to weigh

prejudice stemming from that ruling if it was, in fact, erroneous.” Cotton v. Coccaro, 2023 IL App

(1st) 220788, ¶ 15 (affirming trial court exclusion of evidence and finding forfeiture of argument

on appeal where appellant failed to raise the issue at trial and made no offer of proof). We

determine the issue has been forfeited.

¶ 74 Forfeiture aside, plaintiffs’ Rule 213 “Consolidated Witness List,” first produced on March

14, 2023, might have provided adequate disclosure, albeit untimely, for lay witnesses under Rule

213(f)(1), assuming the terminology used is accurate—an assumption which is difficult to assess

absent an offer of proof. But with respect to controlled experts (at least three of the 15 newly

identified witnesses were listed as “controlled experts”), the disclosures were certainly inadequate.

The rule demands detailed disclosures. See Ill. S. Ct. R. 213(f)(3) (eff. Jan. 1, 2018); Steele v.

Provena Hospitals, 2013 IL App (3d) 110374, ¶ 96 (“[T]he requirement that the party identify the

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‘subject matter’ of the testimony means that the party must set forth the gist of the testimony on

each topic the witness will address”).

¶ 75 The supreme court rules regarding discovery represent our supreme court’s best efforts to

manage the complex and important process of discovery. Sullivan, 209 Ill. 2d at 109. An enduring

goal of the discovery process is full disclosure (Simpkins v. HSHS Medical Group, Inc., 2017 IL

App (5th) 160478, ¶ 33), and clearly that did not happen here. The “imposition of sanctions for a

violation of discovery rules has always been, and still remains, a matter largely within the sound

discretion of the trial court.” Prather v. McGrady, 261 Ill. App. 3d 880, 886 (1994). Plaintiffs have

not established an abuse of discretion.

¶ 76 We note that for some barred evidence, plaintiffs argue that they provided discovery on an

earlier date. The trial court found they did not. As we said, when there is a Rule 213 objection to

evidence based upon an alleged discovery violation, the proponent of the evidence has the burden

to prove that the information was provided. See Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 850

(2010) (applying Rule 213). Based on the evidence before the court at the hearing on defendants’

motion, we are unable to conclude that its ruling was erroneous. We note that, in their post-trial

motion, plaintiffs offered the trial court an email exchange between their previous counsel and the

defense, along with a list of links to documents, as proof of timely compliance. But that email

exchange does not clarify exactly what was tendered. In any event, without an offer of proof to

assess the merits of the discovery ruling and its importance to plaintiffs’ case, we cannot perform

a proper review.

¶ 77 Plaintiffs also contend that January 14, 2022, was a “phantom date,” and not the actual date

close of discovery, but it is apparent from a review of the record that plaintiffs were on notice of

the close of discovery, as there were numerous court orders indicating the deadline for discovery

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and the trial court referenced the date numerous times. Additionally, plaintiffs were warned by the

trial court that their disclosures did not comply with Rule 213(f)(2) and Rule 213(f)(3) prior to the

hearing on defendants’ motion. They conceded in their brief that discovery closed in 2022,

therefore, clearly their March 2023 disclosures were untimely. Finally, plaintiffs claim that defense

counsel misled the court and alleged that the defense was late with their own discovery, but none

of these arguments are availing, nor do they suggest that honoring plaintiffs’ forfeiture would work

an exceptional injustice. See Reynolds v. Village of Creve Coeur, 2022 IL App (3d) 210260, ¶ 23.

¶ 78 D. Directed Findings

¶ 79 Plaintiffs next claim that the trial court erred in granting defendants’ motion for directed

finding at trial and in applying the merger doctrine to dispose of the breach of contract claim. At

the close of the plaintiffs proofs, the trial court granted defendants’ motion for directed finding

and disposed of plaintiffs’ three remaining counts: common law fraud by misrepresentation

(septic); common law fraud by misrepresentation (flooding); and breach of contract as it related to

the septic and flooding. We will address these arguments in turn.

¶ 80 Directed Findings at the Close of Plaintiffs’ Evidence

¶ 81 In a bench trial, section 2–1110 of the Code of Civil Procedure (735 ILCS 5/2–1110 (West

2022)) allows a defendant, at the close of the plaintiff's case, to move for a finding or judgment in

his favor. Our supreme court has recently discussed the proper procedural framework for ruling

on this motion. In re Estate of Coffman, 2023 IL 128867, ¶¶ 51-56. In a two-step inquiry, the trial

court should first determine whether plaintiffs presented a prima facie case as a matter of law. Id.,

¶ 52. If so, then, second, the court should weigh all of the evidence, considering the credibility of

witnesses and drawing reasonable inferences, and then decide if the totality of the evidence

presented, including any evidence favorable to defendants, negates some of the evidence

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underpinning the prima facie case. Id., ¶¶ 53-54. The standard of proof to be applied to the

evidence in this weighing process is the standard of proof required by the underlying cause of

action. Id., ¶ 54. If the trial court finds that the plaintiff has failed to present a prima facie case as

a matter of law, the appellate standard of review is de novo. Id., ¶ 52. However, if the trial court

moves on to consider the weight and quality of the evidence and finds that no prima facie case

remains, the appellate standard of review is the “manifest weight of the evidence” standard. Id., ¶

54.

¶ 82 To present a case of common law fraud by misrepresentation, plaintiffs needed to provide

evidence for each of the elements: (1) a false statement of material fact; (2) the defendant’s

knowledge that the statement was false; (3) the defendant’s intent that the statement induce the

plaintiff to act; (4) the plaintiff’s reliance upon the truth of the statement; and (5) the plaintiff’s

damages resulting from reliance on the statement. Connick, 174 Ill. 2d at 496; Capiccioni, 339 Ill.

App. 3d at 933. Where fraud is alleged, plaintiff has the burden of proving each element by clear

and convincing evidence. Findlay, 2022 IL App (1st) 210889, ¶ 80.

¶ 83 In this case, as it relates to flooding, the trial court acknowledged statements in defendants’

Disclosure that the home sat in a floodplain and that the land upon which the home sits had

experienced flooding. But the trial court found no evidence in the record established that the home

itself flooded. “I have mud marks,” and “a dispute between was the water feet away or six inches,

but four feet or six inches is still away and it is not flooding.” Additionally, the court noted there

was “zero evidence” of any damages related to alleged flooding. We agree with this assessment of

the record and find no error in the directed finding.

¶ 84 Turning to the issue of the septic system, the trial court examined all of the evidence before

it. It found the Disclosure was not a warranty and not a contract to deliver a functioning septic; it

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was a statement that the defendants were not aware of material defects. The court discussed the

post-closing statements of the defendants’ about the facts they understood about the septic system.

An email, admitted during plaintiffs’ case at the trial, by Mrs. Reetz to plaintiffs after the Siemers

raised questions about the system,-stated: “We have done a little research this week about the septic

system. We know that the tank is concrete and pipes are cast iron. We do not know the age, but

we were told by the neighbors as well as the owner we bought from that his father went overboard

on what was necessary in code at that time. The neighbors indicated that he may have been in the

industry.” The court found: “It is very clear right out of the gait [sic] that they don’t have a clue

what kind of septic they have. I don’t see how anybody could read this and guess otherwise. They

are literally reporting what they were told 20 years ago.” The court pointed out that defendants’

lack of problems with the system was consistent with their use of the home as a weekend house.

Further, it found the evidence consistent with plaintiffs’ testimony that they used the house with

four people living there and had no problems with the septic until a year after closing. The court

concluded: “And what is their false statement of material fact, that we have no clue what we have.”

Given the trial court’s careful review and assessment of the evidence, we cannot say that the

directed finding was against the manifest weight of the evidence.

¶ 85 The Merger Doctrine

¶ 86 Next, plaintiffs claim that the trial court erred in its application of the merger doctrine,

specifically that the court erred in placing the “onus on the [p]laintiffs to invoke an exception to

the doctrine *** when no such obligation was even possible, much less existed in law.” They

further argue that the merger doctrine was inappropriate to apply to the case at hand.

¶ 87 “The doctrine of ‘merger by deed’ (also referred to as simply the ‘merger doctrine’ or

‘merger rule’) is well established in our case law.” Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008).

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Under this doctrine, all prior agreements between a buyer and a seller are merged in the deed upon

its acceptance, and the deed supersedes the provisions of the real estate contract and becomes the

only binding instrument between the parties. Id. Illinois courts have recognized exceptions to the

merger doctrine where there was misrepresentation when the deed was delivered, mutual mistake,

or the contract contained provisions that delivery of the deed did not fulfill. Id. at 369-70.

¶ 88 Here, plaintiffs’ breach of contract was premised on counts alleging fraud by

misrepresentation regarding the septic system, flooding, and settlement issues. However, the trial

court determined, and we affirm, that plaintiffs failed to present clear and convincing evidence of

fraud regarding those counts. Thus, plaintiffs did not demonstrate that an exception to the merger

doctrine existed based on misrepresentation when the deed was delivered. Accordingly, we affirm

the trial court’s order granting the motion for directed finding as to breach of contract.

¶ 89 E. Motion for Substitution of Judge

¶ 90 Finally, plaintiffs argue that the trial court erred in denying their motion for substitution of

judge. Plaintiffs argue that after hearing their argument on the motion, the presiding judge “failed

any legal or factual test” in denying their motion.

¶ 91 In Illinois, the substitution of a judge is governed by statute. See 725 ILCS 5/114–5 (West

2022); 735 ILCS 5/2–1001(a) (West 2022). Section 2–1001 of the Code allows a litigant a

substitution of judge for cause. Under this provision of the statute, every “application” for such a

substitution “shall be made by petition.” 735 ILCS 5/2–1001(a)(3)(ii) (West 2022). “Although the

statute does not define ‘cause,’ Illinois courts have held that in such circumstances, actual prejudice

has been required to force removal of a judge from a case, that is, either prejudicial trial conduct

or personal bias.” In re Marriage of O’Brien, 2011 IL 109039, ¶ 30. Judges are presumed impartial,

and the burden of overcoming the presumption by showing prejudicial trial conduct or personal

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bias rests on the party making the charge. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). The

Eyechaner court further stated:

“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the

course of the current proceedings, or of prior proceedings, do not constitute a basis for a

bias or partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, judicial remarks during the course of a trial

that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases,

ordinarily do not support a bias or partiality challenge. They may do so if they reveal an

opinion that derives from an extrajudicial source; and they will do so if they reveal such a

high degree of favoritism or antagonism as to make fair judgment impossible. (Emphases

in original.)” Id. at 281 (quoting Liteky v. United States, 510 U.S. 540, 555, (1994)).

A trial court’s decision on a motion for substitution for cause will not be disturbed on appeal unless

it is against the manifest weight of the evidence. In re Marriage of Peradotti, 2018 IL App (2d)

180247, ¶ 16.

¶ 92 Here, plaintiffs argued that the trial court generally deferred to defense counsel’s assertions

and refused to hear or consider plaintiffs’ arguments. A review of the record demonstrates that this

is untrue. The trial court gave plaintiffs numerous opportunities to argue their case, as well as the

benefit of re-hearing a motion when plaintiffs failed to appear for the hearing, and ordered the

defendants to produce evidence that the trial court felt lacked relevance. Any deference to the

statements of defense counsel certainly was not indicative of a high degree of favoritism or

antagonism. Plaintiffs cite as evidence of bias the fact that the trial court told them they could not

file a motion to reconsider the ruling on a motion to reconsider and struck some of the amended

motions and petitions as filed without leave of court. Again, this was not evidence of opinions

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derived from an extrajudicial source or from a deep-seated bias. Accordingly, we do not find the

trial court’s order denying plaintiffs’ motion for substitution of judge to be against the manifest

weight of the evidence.

¶ 93 III. CONCLUSION

¶ 94 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

¶ 95 Affirmed.

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