Anderson v. Klasek

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 5th District Appellate » 2009 » Anderson v. Klasek

Anderson v. Klasek

State: Illinois

Court: 5th District Appellate

Docket No: 5-07-0390 Rel

Case Date: 07/27/2009

Preview:NO. 5-07-0390
N O T IC E Decision filed 07/27/09. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ KENNETH B. ANDERSON and LOIS A. ANDERSON, ) Appeal from the ) Circuit Court of ) Jackson County. Plaintiffs-Appellants, ) ) v. ) No. 03-L-139 ) LILA L. KLASEK and JANE ) BUTCHER, ) Honorable ) E. Dan Kimmel, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________ JUSTICE GOLDENHERSH delivered the opinion of the court: Plaintiffs, Dr. Kenneth B. Anderson and Lois A. Anderson, filed a four-count complaint in the circuit court of Jackson County after purchasing a house with termite damage. Count I was directed against defendant Lila L. Klasek, the seller, and alleged a violation of the Residential Real Property Disclosure Act (Disclosure Act) (765 ILCS 77/1 et seq. (West 2002)). Count II was a negligence claim directed against defendant Mike Smith, a home inspector. Count II was dismissed prior to the trial when plaintiffs and Smith reached an out-of-court settlement. Count III was directed against defendant Jane Butcher, Klasek's real estate agent, and alleged a violation of the Real Estate License Act of 2000 (License Act) (225 ILCS 454/1-1 et seq. (West 2002)). Count IV was also directed against Butcher and alleged a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2002)). The case was tried before a jury. The jury returned a verdict in favor of both defendants. Plaintiffs now appeal. On appeal, plaintiffs contend as follows: (1) the trial court erred in allowing the case to proceed

disposition of the same.

1

to a jury trial and the judgment must be reversed and the cause remanded with directions that a bench trial be conducted, (2) the trial court erred in giving jury instructions on the Disclosure Act claim, and (3) the trial court erred in denying plaintiffs' motion to amend the complaint to conform to the proofs at the trial. We reverse and remand. FACTS Plaintiffs purchased a home located at 97 Birdsong in Carbondale from Lila Klasek in 2003 after months of negotiations. Jane Butcher was the listing agent. The home was initially listed at $199,950. On July 15, 2003, Klasek completed a disclosure form required by the Disclosure Act. Questions 18 and 19 pertained to termites and wood-boring insects. Question 18 stated, "I am aware of current infestations of termites or other wood[-]boring insects." Question 19 stated, "I am aware of a structural defect caused by previous

infestations of termites or other wood[-]boring insects." Klasek answered "No" to both questions. On July 18, 2003, plaintiffs offered Klasek $196,500. Klasek counteroffered

$198,000. The initial offer was contingent on a home inspection. Plaintiffs retained a home inspector, Mike Smith. The inspection was conducted on July 26, 2003. Kenneth Anderson accompanied Smith to the home inspection, during which some problems were discovered. On July 28, 2003, Dr. Anderson wrote a letter to his real estate agent, Leslie Panky. In the letter he listed eight "[s]ignificant issues with the house" that were not obvious during plaintiffs' walk through of the house but were discovered via the home inspection. The alleged problems included unsafe electrical breaker boxes, condensation/leaking in basement air-conditioning units, and live termite infestation. Regarding the termite infestation, Dr. Anderson specifically stated as follows: "Termite tracks and live termites were found in the basement and crawl[]space. I understand that the house is under contract and the seller should contact the contractor

2

immediately to control the problem

Download Anderson v. Klasek.pdf