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______________________________________________________________________________ 2018 IL App (2d) 170340 No. 2-17-0340 Opinion filed April 24, 2018

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

BRADLEY E. BLEVINS and ANNE ) Appeal from the Circuit Court KINSELLA BLEVINS, ) of Du Page County. ) Plaintiff s-Appell ant s, ) )

v. ) No. 15-L-137 ) JOHN MARC HESCHI, LAURA ) MARCHESCHI, and GREAT HOUSE REAL ) ESTATE, LLC , ) Honorable ) Brian R. McKillip , Defendant s-Appell ee s. ) Judge, Presiding.

JUSTICE B URKE delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

OPINION
¶ 1 Plaintiffs, Bradley E. Blevins and Anne Kinsella Blevins, sued defendants, John
Marcheschi, Laura Marcheschi, and Great House Real Estate, LLC, for breach of contract,
consumer fraud, fraudulent misrepresentation, and negligent misrepresentation based on
defendants’ failure to disclose water damage in the house they sold to plaintiffs. The trial court
granted defen dants’ motion to dismiss plaintiffs’ complaint , without prejudice, pursuant to

section s 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West
2014)). The court ruled that , because plaintiffs ’ complaint was based on the Residential Real2018 IL App (2d) 170340

Pr operty Disclosure Report (Disclosure Report) completed by the Marcheschis, it was untimely

under the one

- year statute of limitations set forth in the Residential Real Property Disclosure Act
( Disclosure Act) (765 ILCS 77/60 (West 2014)). Then, strik ing th e allegations re garding the
Disclosure Report from the complaint, the court found the complaint insufficient to state a cause

of action . Plaintiffs filed an amended complaint and a se cond amended complaint, preserving
their rights on appeal by incorporati ng the claims in the original complaint . The court dismissed
those complaints without prejudice. Thereafter , the court granted plaintiffs’ request to dismiss
the second amended complaint with prejudice.
¶ 2 On appeal, p laintiffs argue that the trial court erred in applying the Disclosure Act’s oneyear limitations period on the basis of the Disclosure Report , dismissing the complaint pursuant

to section 2 -619, and striking the allegations regarding the Disclosure Report. They also argue

that the court erred in finding the complaint factually insufficient pursuant to section 2

- 615. We
reverse and remand the cause with directions to reinstate the original complaint.
¶ 3 I. FACTS
¶ 4 Plaintiffs’ pleadings alleged the following facts. On A ugust 21, 2012, plaintiffs
purchased from defendants a single

- family home in Glen Ellyn, Illinois. The contract
specifically referenced the residential real estate disclosures required by statute, including the
Disclosure Report required by the Disclosure Act ( id. §§ 20, 35) . In the Disclosure Report,

defendants represented that they were no t “aware of material defects in the walls or floors.”
¶ 5 On or about October 22, 2012, a few months after plaintiffs moved in, a painting
contractor hired to paint the kitchen noticed an area of damaged gypsum wallboard on the
western wall. He advised plaintiffs that the damage appeared to have been caused by water. He
repaired it , but around January 2013, a mushroom

- like material began to protrude from the

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-2018 IL App (2d) 170340

damaged are a . Plaintiffs retained KJN Renovations (KJN) to remediate the damage

. Plaintiffs
also retained GZA GeoEnvironmental, Inc. (GZA) , to investigate during the remediation process.
¶ 6 On August 28, 2013, materials were removed from the damaged wall and significant
damage was located inside the wall. The damage included water

- damaged trim work and
gypsum wallboard, additional fungal growth, and nail corrosion, and the exterior fa c ade of the

wall was removed. Under the exterior fa c ade, KJN and GZA f ound wet wood and water damage

to exterior sheathing comprised of oriented strand board and to the wo od en supports of the

window bank

. GZA issued a report (GZA Report) conclud ing that the conditions found under

the wallboard were from water infiltration a nd that the infiltration and damage began before
plaint iffs purchased the property. Further, considering the “chronic damage” and “the
significance of the fungal contamination,” GZA concluded that it was “inconceivable that
[defendants] were not aware of the water damage, fungal growth, or building materials impacts”

within the wall . Plaintiffs incurred $45,640 in costs for the remediation of the damage

. ¶ 7 On February 1 1 , 2015, plaintiffs filed their original complaint, alleging breach of
contract, consumer fraud, fraudulent misrepresentation, and negligent misrepresentation.

Defendants filed a motion to dismiss pursuant to section s 2-619 and 2- 615. They argued that ,
because the allegations were all based on the Marcheschis’ representation in the Disclosure
Report that they were unaware of any material defects in the walls , the Disclosure Act’s one

- year limitations period applied and the complaint was therefore barred

. Id. § 60. Defendants also

maintained that “[t]her e is not one fact in the complaint that gi ves any real basis for saying
[defendant s] knew of wat er infiltration or water damage” and that plaintiff s attempted to fill this
factual void with an opinion from a contractor.
¶ 8 As for defendants’ argument regard ing section 2

- 619, the court applied the Disclosure

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Act’s one

- year limitations period because it “believe[d] that the gist of each and every count in
the complaint [was] based upon the [ Disclosure Act].” The court stated that, “when you use [the
Disclosure Report ] as the underlying basis and you state that that was a fact that was misstated or
an omission, then I think [you are] invoking the [ Disclosure Act] and the actual remedies given
in that [Act].”
¶ 9 In addressing defendants’ argument under section 2-615, the court stated:
“[B]ecause if I take those allegations out of the complaint, strike them and then
read the complaint and each and every count again and striking what I’m talking about is
the actual contract any allusion to or statement regarding the facts contained in the Real

Estate Residential Disclosure Act, and you strike those out of the complaint, you will see
that the complain t is insufficient to state a cause of action as far as the standard needed as
to facts regarding a third situation, which would be

— the third situation would be a
situation where statements are made by the defendants to the plaintiff, some type of oral

or written statement outside of the Real Estate R esidential Disclosure Report.”
¶ 10 The court granted defendants’ motion to dismiss and dismissed the complaint without
prejudice, granting plaintiffs leave to file an amended complaint, including claims “with regard
to other situations or that they can place in the complaint that do not include statements

contained in the Res idential Real Property Disclosure Report .”
¶ 11 Plaintiffs filed an amended complaint , reiterating their argument regarding the
inapplicability of the Disclosure Act and explaining that the trial court had made it “impossible

for Plaintiffs to file an amended complaint that fully complies with the Court’s order.”
Preserving their rights on appeal, plaintiffs stated in the amended complaint that they “are not
replacing their original Complaint and fully incorporate the claims stated therein as though fully

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res tated and realleged in this Amended Complaint.” Plaintiffs also attached a copy of the
original complaint as an exhibit to the amended complaint.
¶ 12 The amended complaint alleged the same four causes of action as in the original
complaint― breach of contract, consumer fraud, fraudulent misrepresentation, and negligent
misrepresentation― but made no allegations regarding the Disclosure Report

. However,
plaintiffs attached a copy of the GZA Report as an exhibit to support the allegations regarding

the ca use and duration of the damage to the kitchen wall. Defendants filed a motion to dismiss

and a motion for leave to file moti ons for sanctions and attorney fees. 1 Defendants restated and
incorporated by reference their motion to dismiss the original complaint and their response to
plaintiffs’ motion to reconsider.
¶ 13 Following argument s , the trial court di s miss ed the amended complaint without prejudice

.
The court found no support for the breach -of- contract claim, because the contract imposed no
obligation on defendants to disclose the water damage to the property. The court also found that
the allegations regarding the condition of the property and the GZA Report did not support the

fraud or mis representation claims. It struck all four causes of action under section 2

- 603 of the
Code (735 ILCS 5/2 -6 03 (West 2014)) and recommended that plaintiffs allege more “ultimate
facts” in their next amended complaint.
¶ 14 Plaintiffs filed a second amended complaint, alleging the same four causes of action. The
complaint contained no allegations regarding the Disclosure Report , but plaintiffs again fully
incorporated the claims of the first two complaints t o preserve those claims for purposes of

1 On March 22, 2016, defendant s were g ranted leave to file a motion for sanctions.

D efendants never filed such a motion.

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appeal. Defendants moved to dismiss , argu ing that the claims suffered from the same pleading

deficiencies that the previous complaints had

. ¶ 15 The trial court granted the motion to dismiss , without prejudice. Plaintiffs , however,
requested that the second amended complaint be dismissed with preju dice , and the court granted
their request . Plaintiffs timely appeal.
¶ 16 II. ANALYSIS
¶ 17 A. Section 2 -619 Motion
¶ 18 Plaintiff s first contend th at the trial court erred in dismissing the complaint as untimely
pursuant to section 2 -619

. A section 2 -61 9 motion to dismiss admits the legal sufficiency of the
complaint but asserts affirmative matter to avoid or defeat the claim. Lamar Whiteco Outdoor
Corp. v. City of West Chicago , 35 5 Ill. App. 3d 352, 359 (2005). “When ruling on such motions,
a court must accept as true all well

- pleaded facts, as well as any reasonable inferences that may

arise from them [citation] , but a court cannot accept as true mere conclusions unsupported by
specific facts.” Patrick Engineering, Inc. v. City of Naperville , 2012 IL 113148, ¶ 31. Our

review of a dismissal under section 2-619 is de novo

. Id

. ¶ 19 P laintiffs argue that the trial court erred in invoking the Disclosure Act’s one

- year

limitations period to bar the original complaint because the claims were based on the Disclo sure Report and that it then erred in striking the allegations related to the Disclosure Report

. We

agree

. ¶ 20 While s ection 60 provides that actions brought pursuant to the Disclosure Act may not be

co mmenced later than one year from the earlie st of the date of possession, the date of occupancy,

or the date of recording ( 765 ILCS 77/60 (West 2014) ), s ection 45 provides that the Disclosure

Act “ is not intended to limit or modify any obligation to disclose created by any other statute or

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that may exist in common law in order to avoid fraud, misrepresentation, or deceit in the

transaction.” Id. § 45.
¶ 21 I n Rolando v. Pence , 331 Ill. App. 3d 40 (2002), we held that the Disclosure Act
provides, “without exception, that it does not limit or modify any duty to d isclose information in
order to avoid liability for fraud.” Id. at 45. Accordingly, we found that section 45 was
unambiguous, and we allowed the buyers to seek recovery for fraudulent misrepresentation
based solely on a disclosure made pursuant to the Di sclosure Act. Id

. at 46. We further noted
that, “[i]f we were to hold that a statement in a Disclosure Report was insufficient to sustain a
cause of action for fraud, we would render section 45 inoperative.” Id . at 45 -46.
¶ 22 In King v. Ashbrook , 313 Ill. App. 3d 1040 (2000) , an interlineation at the addendum

section of a contract to purchase a home indicated that an attached Disclosure Report stated that

the defendant was aware of basement and roof defect s that were to be fixed before the plaintiffs
purcha sed the property. M ore than one year after the parties entered into the contract , t he
plaintiffs sued the defendant for breach of contract upon discovering that the disclosed defects
were not fixed prior to closing as agreed in the contract. Id . at 1041

- 42. On appeal, the

defendant argued that the trial court erred in finding that the Disclosure Act’s limitations period

was not applicable to the breach

- of

- contract action . The appellate court disagree d. “ The fact the
disclosure report became p art of the contract did not eliminate plaintiff’s right to sue for a breach

of contract or change the statute of limitations for breach of contract. The Disclosure Act does
not limit or change a purchaser’s common- law remedies.” Id

. at 1044.
¶ 23 Here, none o f plaintiffs’ cl aims was brought under the Disclosure Act. As in Rolando

and King , the fact that the claims arose from the Marcheschis’ representation in the Disclosure
Report that they were un aware of material defects in the walls did not eliminate plaintiffs’ right

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to sue for breach of contract, consumer fraud, fraudulent misrepresentation, or negligent
misrepresentation

. Taking plaintiffs’ claims as true , as we must , the Marcheschi s’
misrepresentation is actionable under the common

- law theories i n plaintiffs’ original complaint , despite the fact that it was “manifested in the false Disclosure Report. ” As plaintiffs maintain,
“[h] ad the Marcheschis ’ misrepresentations been spoken rather than set out in the Disclosure
Report, there would be no disp ute as to what statute of limitation applies.” The Disclosure Act’s

one- year limitations period does not govern plaintiff’s common

- law actions. See 765 ILCS
77/45 (West 2014).
¶ 24 In sum , the Disclosure Act does not limit plaintiffs’ ability to bring claim s based on the

common law or other statute s, and plaintiffs can rely on the disclosures made pursuant to the

Disclosure Act to seek recovery on such theories

. We therefore find that the trial cou rt erred not
only by invoking the Disclosure Act’s one

- year limitations period because the claims were based
on the Disclosure Report but also by striking any re ference to those disclosures from plaintiffs’

c omplaint. Defendants do not dispute plaintiffs’ argument that, except for the application of

section 60 of the Disclosure Act, plaintiff’s causes of action were all timely. Accordingly, we

find that the trial court erred by granting the section 2 -619 motion to dismiss.
¶ 25 B. Section 2-615 Motion
¶ 26 Plaintiffs next contend that the trial court erred by granting defendants’ motion to dismiss
the complaint pursuant to section 2

- 615. A section 2 -615 motion to dismiss tests the legal
sufficiency of the complaint , based on defects apparent on its face. Doe

- 3 v. McLean County
Unit District No. 5 Board of Directors , 2012 IL 112479, ¶ 15. A section 2 -615 motion presents
the question of whether the facts alleged in the complaint, viewed in the light most favorable to
the plaintiff, and with all well

- pleaded facts and all reasonable inferences that may be dra wn

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from those facts taken as true, are sufficient to state a cause of action upon which relief may be
granted. Doe -3 , 2012 IL 112479, ¶ 16. A section 2

- 615 dismissal is reviewed de novo

. Doe -3 , 2012 IL 112479, ¶ 15.
¶ 27 Defendants first counter that the allegations concerning the disclosures under the

Disclosure Act must be removed due to the Act’s one

- year limitations period. We held above
that this argument fails.
¶ 28 Defenda nts next argue that plaintiffs alleged only co nclusions and opinions , unsupported
by facts , that a false statement was knowingly made and relied upon. In particular, defendants
claim that there was not one actual fact alleged in the complaint to show that defendants knew of

wat er infiltration or wate r damage.
¶ 29 Illinois is a fact

- pleading s tate, which means that, although pleadings are to be liberally
construed and formal or technical allegations are not necessary, a complaint must, nevertheless,

contain facts to state a cause of action. People ex re l. Fahner v. Carriage Way W est , Inc. , 88 Ill.
2d 300, 308 (1981). A complaint is deficient when it fails to allege fact s necessary for the
plaintiff to recover. But a pleader is not required to set out his evidence. Only the ultimate facts
to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.

Id . “A statement of a defendant’s knowledge is an allegation of ultimate fact and not a

conclusion.” Ward v. Community Unit School District No. 220 , 243 Ill. App. 3d 968, 974
(1993). The plaintiff need not plead the evidentiary facts that he will use to prove the
defendant’s knowledge. Board of Education of the Kankakee School District No. 111 v. Kankakee Federation of Teachers Local No. 886 , 46 Ill. 2d 439, 446- 47 (1 970).

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¶ 30 The original complaint in this case alleged that defendants knew that there was water

infiltration and water damage in or about the damaged wallboard. 2 This sati sfies the pleading
requirement that plaintiffs need allege only ultimat e facts, not evidentiary facts

. Id .; Borcia v.
Hatyina , 2015 IL App (2d) 140559, ¶ 21. (We note that the second amended complaint

included the same allegations.) Because plaintiffs pled the necessary ultimate facts to bring
their claims within the causes of action alleged, the original complaint wa s sufficient

. We hold

that the trial court erred in dismissing the original complaint pursuant to section 2-615.
¶ 31 III . CONCLUSION
¶ 32 For the preceding reasons, the judgment of the circuit court of Du Page County is

reversed and the cause is remanded with directions to reinstate the original complaint.
¶ 33 Reversed and remanded with directions

.

2 This was supported by the factual allegation that , based on the condition of the
wallboard, GZA determined that it is inconceivable that the Marcheschis were not aware of the
water damage.

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