"I KNOW NOTHING DEFENSE" NOT CREDIBLE IN DISCLOSURE ACT CASE. - Mark P. Loftus
The Fourth District Appellate Court was not impressed with the defendant’s thinking in Messerly v. Boehmke. Way back in 1998, plaintiffs purchased a home from the defendant. The home was located in Gillespie, Illinois. Prior to the sale, the defendant partially filled out the required Residential Real Property Disclosure Report which is required under the Illinois Real Property Act[The Act]. The defendant denied any problems in his answers to most of the first 17 questions. He did acknowledge material defects in the basement foundation – specifically cracks and bulges.
Defendant also denied any knowledge of material defects in the walls or floors. And defendant just flat out skipped questions 17-22.
Interestingly, several years BEFORE closing, defendant had filed a claim with his insurance carrier regarding some damage to the home. The carrier arranged an inspection and determined the damage to the home was due to settling. Settling can certainly impact walls and floors.
Just days after the plaintiffs moved in, the lower level shower was leaking water out of the walls. Plaintiff’s wife called defendant who promptly told her that a specific tool was necessary to tighten a pipe. A plumber who inspected the house told plaintiffs that the problem was poor work and the only way to fix the leak was to tear the pipes out. Additionally the plumber found other issues he thought were health concerns. A subsequent inspection of the property found – get this – 21 different violations. Plaintiffs sued under the Act. The defendant filed for judgment arguing that there was no failure to disclose material defects in the home. Defendant himself – in an affidavit – denied any knowledge of defects in the house. Shockingly, the trial court granted defendant’s motion. Importantly the trial court said that the plaintiff’s decision to move forward with the closing, when faced with only a partially completed form, waived any action against defendant. Plaintiff appealed. Good call.
The Appellate Court didn’t see things like defendants had hoped. First, the Court ruled that plaintiffs decision to go ahead with the closing didn’t waive their right to sue. The Opinion also noted that any suggestion defendant was unaware of the problem was not credible. After all, defendant knew precisely what pipe to fix when the plaintiff’s called to complain about the leaks. The Appellate Court concluded that there was certainly evidence to infer defendant was aware of the problems.
Lastly defendant argued the plaintiffs had to show a causal connection between defendant’s decision to leave one or more questions blank and their resulting damages. The Appellate Court shot that down as well.
Lower court’s decision reversed the trial court judgment.
