Cantrall v. Bergner
2016 IL App (4th) 150984
| Ill. App. Ct. | 2017Background
- In March 2011 Andrea Cantrall contracted to buy Daniel and Vickie Bergner’s house; sellers completed a Residential Real Property Disclosure Report denying awareness of leaks or material roof defects.
- A pre-purchase home inspection noted damaged/missing fascia and wood rot and recommended a roofer evaluation; parties executed a repair addendum requiring sellers, if competent or via a qualified contractor, to repair/replace wood rot and missing fascia.
- Seller Daniel attempted self-repair of fascia (had no roofing expertise); at closing sellers represented repairs were complete. Cantrall observed a watermark during final walk-through but did not obtain a roofer’s evaluation.
- After moving in, the roof leaked; sellers refused to repair and Cantrall paid $2,500 for roofing repairs. She sued alleging: violation of the Residential Real Property Disclosure Act (count I), fraudulent concealment (count II), and breach of contract (count III).
- Trial court found for defendants on counts I and II, for plaintiff on count III (breach of repair addendum) and awarded $2,500; denied both parties’ requests for attorney fees. Both parties appealed the fee rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract’s fee-shifting clause ("may") required awarding attorney fees to the prevailing party | "May" entitles prevailing party to mandatory fees once sought | "May" is permissive; trial court has discretion to award fees | "May" is permissive in private contract context; trial court discretion upheld (no abuse) |
| Whether trial court abused discretion in denying plaintiff fees under the contract | Denial improper because clause allows recovery of fees | Denial proper given mixed results (plaintiff prevailed only on one of three counts) | No abuse of discretion—denial reasonable given split results |
| Whether defendants were entitled to fees under the Residential Real Property Disclosure Act (765 ILCS 77/55) as prevailing party | Prevailing on count III shows claims not meritless; plaintiff did not engage in knowing misconduct | Plaintiff engaged in knowing misconduct or frivolous prosecution, warranting fees | Defendants not entitled to fees; record lacks proof plaintiff engaged in knowing misconduct |
| Whether plaintiff engaged in knowing misconduct under Rule 137 standard (for awarding fees to defendant under the Act) | Plaintiff’s suit had merit (won breach claim); no evidence of bad faith or frivolous filings | Plaintiff knew of roof condition and failed to act prudently, causing unnecessary delay and cost | No knowing misconduct found; trial court did not abuse discretion in denying defendants’ fee request |
Key Cases Cited
- Bright Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC, 403 Ill. App. 3d 234 (strict construction of contractual fee-shifting clauses)
- Carr v. Gateway, Inc., 241 Ill. 2d 15 (standard of review for interpreting whether "may" is discretionary or mandatory)
- McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App. 3d 104 (review of trial court fee-award abuses of discretion)
- Pioneer Trust & Savings Bank v. Zonta, 96 Ill. App. 3d 339 (comparison of differing fee clause language and effect)
- Housing Authority v. Lyles, 395 Ill. App. 3d 1036 (interpretation of "enforcing" in fee-shifting lease clauses)
- Miller v. Bizzell, 311 Ill. App. 3d 971 (discretionary award of fees under the Disclosure Act; Rule 137 guidance)
- Krautsack v. Anderson, 223 Ill. 2d 541 (use of Rule 137 as guideline for when defendant fees are appropriate)