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Appeals panel reverses ruling and nearly $200,000 award in suit over home sale

By Jonathan Bilyk | Dec 11, 2013

A Chicago couple that purchased a fixer-upper will not receive the nearly $200,000 in damages that the lower court had ordered the sellers of an Old Town home to pay, an appeals panel held.

In an unpublished ordered issued Dec. 5, a panel of the First District Appellate Court reversed the judgment of Cook County Circuit Court Judge Ronald F. Bartkowicz, as well as the damages he awarded to home buyers and plaintiffs Marc and Lisa Becker in their dispute with sellers Allison Scherer and David Thomas.

In reversing Bartkowicz, the panel held that the sellers did not commit fraud or violate the law in not fully disclosing to the buyers that the home suffered from a leaky roof and foundation before the sale closed.

The panel's order was written by Justice Terrence J. Lavin. Justices Nathaniel R. Howse Jr. and James Fitzgerald Smith concurred.

The matter surrounded the April 2005 sale of a 100-year-old, four level home in the 1300 block of N. Cleveland in Chicago’s Old Town neighborhood from Scherer to the Beckers.

According to the order, the Beckers paid more than $2 million for the property, which they considered to be their “dream home.”

However, a few weeks after closing on the property, a “torrential rain” revealed leaks at several points in the home, including the roof and foundation, producing flooding within the home that the Beckers said caused damage requiring various repairs, including mold remediation.

The Beckers filed suit several months later, alleging that Scherer and Thomas violated Illinois’ Residential Real Property Disclosure Act and committed breach of contract and fraud when they sold the home.

Litigation in the matter dragged on for six years, as the sellers failed to file for summary judgment and neglected other options that could have shortened the matter.

Finally, after a lengthy bench trial, the circuit judge ruled in favor of the buyers, awarding them $193,000 in damages, including attorney’s fees. Scherer and Thomas then appealed the ruling.

The appellate court found that the weight of the evidence in the case did not support the Bartkowicz’s ruling.

They noted, among other items, that the buyers obtained inspections of the home prior to closing, which disclosed various problems related to water, including damp basement walls and “leaks above and below.”

When the buyers discussed potential repair issues with the sellers, however, the appeals panel noted that their correspondence did not include any mention of the water-related issues.

By failing to object to the problems spelled out in the inspection reports, the panel held that the buyers essentially “waived the right to complain about the leaky foundation and roof,” as well as “the mold, leaky windows and spalling stone that are alleged to have later resulted from the original leaks.”

“The buyers chose to proceed with the purchase, and, in so doing, they willingly bought a home that was known to have water penetration issues at its top and bottom,” Lavin wrote for the court. “Their dream home resulted in the delineated drama because of their decision making."

The justices noted in their order that while these errors, and the subsequent unnecessary protracted legal “drama" was a burden for the buyers, they also produced a “tragedy” for the sellers.

“We will leave it to the reader to decide if this tale is more redolent of drama, comedy, or farce, since it clearly has elements of each,” Lavin wrote.

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