Pack v. Maslikiewicz
144 N.E.3d 37
Ill. App. Ct.2019Background:
- Defendant Magdalena Maslikiewicz routinely bought, renovated, and resold single‑family houses; she purchased the subject property to renovate and sell and did not live there.
- In the sales contract defendant completed a Residential Real Property Disclosure answering "no" to material-defect questions (including basement/foundation issues); the listing also described the house as a "complete renovation."
- After closing plaintiffs discovered hidden defects when drywall and flooring were removed: buried live electrical boxes/wires, plumbing shutoffs buried, construction debris and old drywall behind new walls, inadequate concrete slab, and an improperly supported structural post.
- DAL Builders (owner David Larkin) performed demolition and repairs and issued estimates; discovery produced disputes about whether Larkin was timely disclosed as an expert and defense counsel pressured Larkin not to testify.
- The trial court found defendant not credible, concluded she knew or should have known of the concealed defects (imputing knowledge of her contractor), entered judgment for fraud and violations of the Consumer Fraud Act (CFA), awarded remedial damages plus attorney fees and costs, and denied defendant’s request to bar Larkin’s testimony.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Larkin's testimony (Rule 213) | Larkin was timely disclosed as a Rule 213(f)(2) independent expert; late supplementation was caused by defense obstruction | Larkin was not properly disclosed as an expert and should be barred | Court: no abuse of discretion; disclosures and circumstances (including defense conduct) meant no unfair surprise, so testimony admitted |
| Qualification of Larkin | Larkin’s construction experience qualified him to opine on defects and workmanship | Larkin lacked specialized licenses and code citation knowledge | Forfeited on appeal (no trial objection on qualifications); trial court reasonably found him qualified |
| Common‑law fraud (affirmative misrep. & concealment) | Defendant made false disclosure statements and deliberately concealed defects behind new finishes; plaintiffs reasonably relied and suffered damages | Defendant lacked knowledge of defects and was not chargeable with contractor’s knowledge; plaintiffs should have discovered issues | Court: findings not against manifest weight; fraud proven by clear and convincing evidence; contractor’s knowledge imputed; reliance reasonable |
| Applicability of Consumer Fraud Act and fees | Defendant acted in trade/commerce (business of flipping) so CFA applies; fees recoverable | CFA inapplicable to casual individual sale of a single‑family home (Zimmerman line) | Court: CFA applies where seller is in business of buying/renovating/reselling homes (distinguishing Zimmerman); CFA violation found and fees awarded |
Key Cases Cited
- Ragan v. Columbia Mut. Ins. Co., 183 Ill. 2d 342 (discovery rulings reviewed for abuse of discretion)
- Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305 (factors for excluding testimony for discovery violations)
- Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100 (elements, burden, and fee authority under the Consumer Fraud Act)
- Zimmerman v. Northfield Real Estate, Inc., 156 Ill. App. 3d 154 (Consumer Fraud Act does not extend to ordinary individual sale of owner‑occupied single‑family home)
- Kleczek v. Jorgensen, 328 Ill. App. 3d 1012 (CFA may apply where seller is in business of building/selling houses)
- Eychaner v. Gross, 202 Ill. 2d 228 (deference to trial court factual and credibility findings)
- Sullivan v. Edward Hospital, 209 Ill. 2d 100 (factors for sanctions/exclusion and discovery conduct considerations)