Pack v. Maslikiewicz

2019 IL App (1st) 182447

144 N.E.3d 37

437 Ill.Dec. 237

Adam PACK and Jennifer Pack, Plaintiffs-Appellees,

v.Magdalena MASLIKIEWICZ, Defendant-Appellant.

No. 1-18-2447

Appellate Court of Illinois, First District, Fourth Division.

Opinion filed September 26, 2019

Modified upon denial of rehearing October 31, 2019

Pericles Abbasi, of Chicago, for appellant.

Robert A. Shipley, of Shipley Law Group, Ltd., of Chicago, for appellees.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant, Magdalena Maslikiewicz, was found liable for common-law fraud and for violating the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) ( 815 ILCS 505/1 et seq. (West 2016)), in connection with her sale of a single-family residence to plaintiffs, Adam and Jennifer Pack. A judgment was entered in favor of plaintiffs and against defendant for $148,119.50, plus costs and attorney fees of $68,444.79. Defendant appeals, claiming that (1) the trial court's findings were against the manifest weight of the evidence, (2) the trial court erred in finding the Consumer Fraud Act applicable, (3) the trial court erred in admitting certain evidence, and (4) the trial court erred in awarding attorney fees and costs. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 I. Complaint

¶ 4 On February 16, 2016, plaintiffs filed a verified two-count complaint against defendant. Count I was for common-law fraud and alleged that plaintiffs were the owners of a single-family home on North Moody Avenue, which they agreed to purchase from defendant on October 28, 2013. Defendant had previously purchased the home and rehabbed it, advertising that the property was for sale as a " ‘complete renovation.’ " Plaintiffs alleged that defendant's purchase and renovation of the property was "solely for ultimate sale and commercial gain" and that defendant never resided at the home. Plaintiffs alleged that they executed a real estate sales contract to purchase the residence "based upon defendant's marketing representations that there had been a complete renovation along with the representations in the contract in which defendant denied any issues or problems with the residence including specifically the basement, foundation, electrical or HVAC systems."

¶ 5 Plaintiffs alleged that defendant was "directly and intimately involved with the original purchase of the property and the subsequent construction activities," and that prior to listing the property for sale, defendant "had actual or presumed knowledge" as to the condition of the property, including the scope of any renovation construction activities. Plaintiffs further alleged that defendant was "directly and intimately involved" with the marketing of the property and "was aware of and had actual or presumed knowledge" of the conditions and defects alleged in the complaint. However, plaintiffs alleged that defendant falsely denied the existence of any alleged issues, including during the interim period between execution of the contract and the December 4, 2013, closing, "with the intent of inducing [plaintiffs] to rely upon the statements and misrepresentations and complete the purchase [of] the property."

¶ 6 Plaintiffs alleged that the defects present within the property were known to defendant but "were covered up and hidden during the ordinary and normal course of construction and could not have been discovered by" plaintiffs. Plaintiffs further alleged that the defects were "apparent and known only by defendant as the renovation construction did not comply with applicable construction standards and codes as well as construction customs and practices." Plaintiffs alleged that they relied on defendant to complete the renovation construction of the home in compliance with the applicable construction standards and codes and that they did not know, and could not have known, that the renovation construction did not comply with applicable construction standards and codes.

¶ 7 Plaintiffs alleged that after the execution of the contract, but prior to closing, they asked defendant several questions about the property, including "questions relating to water infiltration and improper electrical service." Defendant denied the existence of any water infiltration and represented that the electrical service was adequate and appropriate; plaintiffs alleged that they relied on these denials. However, after the closing, plaintiffs discovered multiple issues concerning water infiltration and the electrical service and also discovered that the representations defendant had made concerning " ‘new appliances’ " were false. Due to these issues, plaintiffs retained multiple contractors to inspect the home.

¶ 8 Plaintiffs alleged that the contractors informed them of numerous defects and problems with the home, including:

"a. Failure to waterproof the basement;

b. Failure to install drain tile in the basement;

c. Failure to demolish the existing walls when performing renovation construction of the basement;

d. Improper electrical grounding in the basement wiring;

e. Buried electric boxes in the basement walls;

f. Failure to install proper load bearing support beams in the basement;

g. Failure to properly construct the basement floor."

Plaintiffs alleged that as a result of defendant's knowing failure to comply with applicable building codes and construction customs and practices, plaintiffs had spent substantial sums of money to identify and correct the defects.

¶ 9 Count II of the complaint alleged the same facts as in count I but alleged that defendant's conduct constituted deceptive acts and business practices in violation of the Consumer Fraud Act.

¶ 10 II. Pretrial Proceedings

¶ 11 After the denial of a motion to dismiss, the parties proceeded to discovery, and defendant filed a motion for summary judgment, which was denied on November 13, 2017. On December 6, 2017, defendant filed a motion to bar the testimony of David Larkin, the president of DAL Builders (DAL), the contractor who discovered and repaired the alleged defects in the home. Defendant claimed that plaintiffs had indicated during the briefing on the motion for summary judgment that Larkin would serve as an expert in their case, but that Larkin had, in fact, never agreed to be their expert. Defendant further argued that the supplemental disclosures under Illinois Supreme Court Rule 213 (eff. Jan. 1, 2007) naming Larkin as an expert were untimely since they were filed after the court's deadline. Finally, defendant claimed that the alleged opinions set forth in the supplemental disclosures were insufficient and did not provide a basis for any of Larkin's opinions. Accordingly, defendant sought to bar Larkin's testimony.

¶ 12 Attached to the motion to bar was an undated certification by Larkin, in which he stated that "nobody ever asked me to act as an expert or offer any opinions related to any work performed by others and I have no opinions one way or the other on the work performed by any other persons." Larkin further stated that "I do not have any opinions to provide in this case including opinions that there was [sic ] ‘code violations and construction defects as well as the scope of the construction activities.’ " Attached to his certification were e-mails between Larkin and defendant's counsel,¹ in which defense counsel stated that he had discovered that DAL's work was performed without permits and indicated that he "[would] have no choice but to alert the proper authorities about the illegal work and ask that the City of Chicago conduct an investigation into DAL and its business practices in the City of Chicago." However, defense counsel stated that "[o]f course, if [plaintiffs] agree to dismiss the case immediately with prejudice or if DAL tells me in writing that they will withdraw any and all testimony in this case, then the matter will be dropped." Larkin responded that "if it is a[n] option to withdraw all testimony and not be involved with this case at all I am all for that option. Let me know what needs to be done so I am done with all this." In later e-mails, Larkin reaffirmed that he would not be acting as an expert in the matter.

¶ 13 Also attached to the motion to bar was a June 5, 2017, case management order providing that the parties were to answer Rule 213(f) interrogatories by August 3, 2017, and that depositions of Rule 213(f)(1), (2), and (3) witnesses were to be completed by September 3, 2017. The order also provided that the parties "waive 60 day rule for expert discovery."

¶ 14 Finally, attached to the motion to bar was an unfiled copy of plaintiffs' supplemental Rule 213 disclosures, in which plaintiffs stated that Larkin, "previously disclosed as a witness," was additionally "expected to testify to the following defects and code violations:"

"1. New basement walls having been constructed in front of existing (old) walls.

2. The pre-existing ‘old’ walls had clear evidence of water damage and staining.

3. Debris and garbage was stuffed between the old and new walls.

4. Buried live electrical connections in the old wall, which created a fire hazard.

5. Improper grounding of the water service.

6. Improperly wired switches.

7. Improper use of BX in electrical wiring.

8. Improper excavation of the old concrete floor and pouring of a new concrete floor directly onto clay. The excavation of the old floor was not sufficiently deep and there was a failure to properly prepare the base with gravel and rebar. The existing water and sewer lines were not replaced and buried within the new floor. The result was that the ‘new’ concrete floor heaved and cracked.

9. The posts supporting the basement ceiling were not properly secured in the concrete. No piers were constructed. When the old basement floor was excavated, the existing area which surrounded the post was left with the new floor poured around. The existing concrete ‘supporting’ the posts was crumbling, causing a structural issue.

10. Concrete and

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